December 12, 2006
That was quick... Skilling to start serving sentence
The AP reports here that, less than 24 hours after staying the start of his sentence (news here), the Fifth Circuit "denied former Enron Chief Executive Officer Jeffrey Skilling's request to remain free during his appeal Tuesday and ordered him imprisoned immediately." According to the AP story, the Fifth Circuit's "order notes 'serious frailties' in Skilling's convictions, [but] says those problems fail to raise a 'substantial question' likely to result in the overturning of all Skilling's convictions, as would be required to grant bail during appeal."
Nuanced federal discretion ... for prosecutors
As detailed here and here throughout the blogosphere, U.S. Deputy Attorney General Paul McNulty has announced that the Justice Department has revised its corporate charging guidelines for federal prosecutors. The new "McNulty memo" can be accessed here, and I have already received this informed reaction from a reader:
When I got to the passage at the top of page 5, I couldn't help but be reminded of Section 3553(a). In deciding whether to prosecute a corporation, the AUSA must "consider" a list of 9 factors. "Some or all of these factors may or may not apply to specific cases, and in some cases one factor may override all others." "In most cases, however, no single factor will be dispositive." Policies in certain enforcement areas "may require that more or less weight be given to certain of these factors than to others." The need for a case-specific determination, without any factor carrying "presumptive weight," is driven home in the next sentence: "Of course, prosecutors must exercise their judgment in applying and balancing these factors and this process does not mandate a particular result." (Emphasis added). The next paragraph reminds the prosecutor to ensure that the "general purposes of the criminal law . . . are adequately met[.]"
Imagine what an improvement it would be if only the sentencing statute operated in this manner. Oh, wait. I think that is the way the sentencing statute reads. Too bad DOJ does not trust sentencing judges to engage in the same sort of process it has devised for its own attorneys at the charging stage. (And AUSA's charging decisions aren't even reviewed for reasonableness.)
Around the blogosphere
Lots of goodies around the blogosphere worth a link:
- Criminal Background Checks Of Jurors at Concurring Opinions
- Musladin Coverage: Good, Bad, and Ugly at Crime & Consequences
- "Underenforcement" and "Executing the Innocent" at Grits for Breakfast
- The McNulty Memo - Attorney-Client Privilege Waivers & Attorney Fees at White Collar Crim Prof Blog
- Thompson Memo Out, McNulty Memo In at WSJ Law Blog
Major capital ruling from en banc Fifth Circuit
I just got word from a helpful reader that the Fifth Circuit has issued its en banc opinion in Nelson v. Quarterman, which addresses Penry issues in the wake of the Supreme Court's Tennard decision. Unfortunately, the Nelson opinion is not yet on the Fifth Circuit's web site yet, but I'll provide a link (and commentary) once I see the opinion.
UPDATE: Nelson is now available at this link. The pdf of the opinion runs 161 pages, and there appears to be six opinions: one for the en banc court, one long concurrence and four different dissents. Judge Edith Jones is the author of what appears to be the chief dissent, so perhaps that gives readers a clue as to the outcome. Any commentary by any folks with the energy to read all the Fifth Circuit's wisdom will be greatly appreciated. Here's how a helpful reader describes the ruling in an e-mail to me:
This is a major victory for capital habeas petitioners, a surprising about-face in the Fifth Circuit's Penry jurisprudence, and a fascinating decision in light of the Supreme Court's recent cert grants on cases raising similar issues.
MORE: Capital Defense Weekly here calls Nelson "perhaps the most important Fifth Circuit decision since I started posting online a decade ago."
Eighth Circuit reverses another below-guideline sentence
So much for the Claiborne effect. In this post, I speculated that Eighth Circuit's affirmance of a downward variance last week might be the echo effect of the Supreme Court's recent cert grant in Claiborne, the Eighth Circuit case involving a reversal of a downward variance. But today, in US v. Grinbergs, No. 06-2369 (8th Cir. Dec. 12, 2006) (available here), the Eighth Circuit returns to its old ways when reversing a downward departure/variance.
Grinbergs is a child-porn possession case in which a district judge imposed a 12-month sentence for a first offender facing a guideline range of 46 to 57 months. Here are snippets from the panel's reasoning rejecting the reduced sentence:
Even when viewed through the lens of reasonableness, the district court's reliance on Grinbergs' mental capacity falls short of providing adequate justification for the large departure in this case....
[T]he district court found that Grinbergs was an atypical offender because he was making progress toward rehabilitation and because he was not likely to become an active sexual predator. Neither of these circumstances was sufficient to take this case out of the heartland, however.... That Grinbergs had been regularly attending therapy sessions, had been avoiding the triggers of his pornography addiction, and had come to acknowledge the wrongfulness of his conduct are all commendable actions, but they are not the marks of extraordinary or atypical rehabilitation....
When measured against the factors in § 3553(a), the sentence was also unreasonable. Neither Grinbergs' reaction to his arrest and indictment nor the progress he has made in therapy set him apart from other offenders to any great degree. There is also nothing unusual about the nature or circumstances of his offense. Even if the individually deficient reasons for the departure or variance are aggregated, they still fall short of providing the justification required for a departure of this degree. Since there is nothing in the record that significantly differentiates this case from other cases of child pornography possession, the sentence imposed failed adequately to take account of Congress's stated desire to "avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."
Opposition to Iowa's residency restrictions
Among lots of interesting new posts at Sex Crimes is this item noting opposition to Iowa's sex offender residency restrictions from a "group of county prosecutors, county sheriffs and victim advocates." As detailed in press reports here and here, this group is stressing that the residency restrictions are not working. Here's more from this article in the Quad City Times:
A coalition of law-enforcement and victim-advocacy groups came together Monday to ask the Legislature to throw out the state’s 2,000-foot residency restriction on sex offenders. "Good public policy needs to protect children," Corwin Ritchie, executive director of the Iowa County Attorneys Association, said at a Statehouse news conference. "This residency requirement doesn’t do that."...
The problem with the current law, Ritchie said, is that it requires tremendous time and effort to enforce but does little to protect children from sexual abuse. "We find no correlation between where an offender resides, or sleeps, and whether that offender might re-offend," he said.
Clay County Sheriff Randy Krukow, president of the sheriffs’ group, said the 2,000-foot law may make children less safe, because its restrictions force offenders to relocate, sometimes without telling law enforcement where they’ve gone. "Before this law went into effect, I had 99 percent of (sex offenders) registered," Krukow said. Now he devotes three members of his 10-person staff to tracking where sex offenders are living. He said that takes resources away from other areas, such as drug enforcement.
The coalition cites figures from the Iowa Department of Public Safety showing that the number of unaccounted-for sex offenders has more than doubled since the law took effect, rising from 142 to 346.
Some related posts on residency restrictions:
Detailed report on Washington's death penalty system
Thanks to the Death Penalty Information Center, I have discovered an interesting new report on the administration of the death penalty in Washington. DPIC provides this background on the report:
The Death Penalty Subcommittee of the Committee on Public Defense of the Washington State Bar has prepared a report on the state's death penalty that will be submitted to the Bar Association's Board of Governors in early 2007. The Subcommittee was formed to examine the costs of the state's death penalty and to recommend whether the death penalty should be continued, given the expenses and the state's experience in carrying out death sentences. The Death Penalty Subcommittee was made up of supporters and opponents of the death penalty, all with extensive experience with the criminal justice system.
When will Skilling have to report to prison?
Lots of news folks were talking up the fact that Jeff Skilling was due to report to prison this week, as evidenced by articles here and here and here. But, as the Houston Chronicle reports here, the Fifth Circuit has now stayed Skilling's prison report date so it could fully consider his motion for bail pending appeal:
The U.S. 5th Circuit Court of Appeals has delayed the start of former Enron CEO Jeff Skilling's prison sentence that was scheduled to begin here Tuesday. The court said today he would not have to report to prison while it considers his motion for bail pending his appeal on his conviction. "This order is entered solely to allow this court to give careful consideration to the request for bail pending appeal," the court said.
The Washington Post has more coverage here.
December 11, 2006
A wiki list of Bush pardons
A helpful reader sent me this link to a recently updated list of President Bush's pardons at Wikipedia. The e-mail came with this appropriate note:
The list is still missing about 30 people and a shout out to people who might be able to complete it would be appreciated. I couldn't find any good comprehensive lists via Google. It is around the time of year that a round of pardons is often made by a President.
Some related posts on Bush's clemency and pardon powers:
At least another month until Cunningham
Lyle Denniston reports at SCOTUSblog that, after today's two rulings and new orders, the Supreme Court "completed its public sessions until after the holidays [and its] next scheduled public sitting is Monday, Jan. 8." This means that sentencing fans eagerly awaiting what the Court will say in the Cunningham case about Blakely's applicability to California's sentencing system will have to wait at least another month.
Some have speculated that, in light of the cert grants on Booker issues in Claiborne and Rita, the Court might not issue Cunningham until late Spring. Personally, I would be surprised if the Justices will sit on Cunningham until it deals with Claiborne and Rita (which won't be argued until late February), but who know what we should expect from slow-poke SCOTUS these days.
Of course, as the NY Times highlighted today, California has plenty of other things to worry about while it awaits new on the constitutionality of its sentencing system.
In support of indeterminate sentencing
In this recent post, I noted a Texas report touting the virtues of parole in a modern state sentencing system. On a related front, thanks to the always terrific Corrections Sentencing, I see that the Utah Sentencing Commission has issued this fascinating statement in support of the state's indeterminate sentencing system. Here is the statement's executive summary:
By avoiding precise and fixed sentencing and release determinations, Utah's primary sentencing interests are best protected. An offender's release from incarceration is contingent on the individual nature of the crime committed, mitigating and aggravating circumstances associated with the criminal offense, past criminal history, the offender's conduct in the prison system, and proven amenability to rehabilitation over time. Our indeterminate system preserves control over the offender and enables a careful evaluation of the offender prior to releasing him back into the community.
Perhaps Utah ought to be a model for Congress if it ever decides that a Booker fix is needed for the federal sentencing system.
Ninth Circuit reversed on button prejudice case
The Supreme Court ruled Monday that a federal appeals court had no basis for overturning a state court ruling that allowed the family members of a murder victim to wear buttons with his picture during the trial. Six members of the Court said it remained an open question whether the conduct of spectators at a trial, as opposed to activities of the prosecution, could be so prejudicial as to deny a fair trial to the accused.
Justice Clarence Thomas wrote the main opinion in Carey v. Musladin (05-785), and had the full support of five other Justices. Three Justices wrote separately, raising questions about allowing spectators to engage in courtroom activity that arguably might impair trial fairness.
After meetings I hope to have a chance to read and comment on this opinion (which appears to be the only major SCOTUS criminal law action today).
UPDATE: The short majority opinion in Carey v. Musladin (decision here) is more about habeas standards than about button-wearing prejudice, though the three short concurrences get into the substantive issues a bit more. For some additional blogosphere commentary, check out Crime & Consequences and Althouse.
California's desperate need for reform
The New York Times has this extended article detailing the sorry state of sentencing and corrections in California. The pictures accompanying the story are stark and telling, and the text of the article really only provides the most basic details of California's woes. Notably missing from the discussion is the possibility that Supreme Court in Cunningham might declare California's structured sentencing system unconstitutional (lots of background here).
The entire article spotlights the challenging politics of sentencing reform, even when a state's situation seems desperate. Also, the second part of the article make a nice case for sentencing commissions. Here is a long snippet from today's must-read:
By nearly every measure, the California prison system is the most troubled in the nation. Overcrowding, inmate violence, recidivism, parole absconders and the prison medical system are among its many festering problems....
"The November election is over, and that is critical in terms of the politics of prison reform," said the State Senate majority leader, Gloria Romero, Democrat of Los Angeles. "The governor is particularly looking at his legacy, and I do not believe he can have a positive one if he does not solve the prison crisis."
Overcrowding is so severe that 16,000 inmates are assigned cots in hallways and gyms; last month, the state began asking for volunteers to be moved to prisons out of state. The system's medical program is in federal receivership and much of the rest of the system is under court monitoring. Cellblocks are teeming with violence. Seven of 10 inmates released from prison return, one of the highest rates in the country....
Like so many things in California, the scope of the prison problem stems largely from its size. The system houses 173,000 inmates — second-place Texas has 152,500 — and has an $8 billion budget. Its population explosion is in large part an outgrowth of a general increase in the state's population, its unusual sentencing structure and parole system, a legislature historically enamored with increasing penalties, and ballot measures like the three-strikes initiative.
Further, most rehabilitation programs have been eliminated from the system in recent years, which some criminal justice experts believe has increased the rate of recidivism. Some experts also argue that a legislature bound by term limits has created an expertise vacuum on the complex and emotional issue of prison sentencing....
[A] consensus has been building over the last six months, with union officials, the governor, public policy experts and many members of the legislature agreeing that a sentencing commission is in order. Sentencing commissions, made up of a diverse group of experts including former judges and crime victim advocates, essentially treat prison beds as scarce resources that need to be properly allocated.
Some related posts on California's prison problems:
All the death data
Now available here from DOJ's Bureau of Justice Statistics is "Capital Punishment, 2005." This publication presents lots and lots of current and historical data on persons under sentence of death and executed in the United States.
Some of the demographic highlights include the fact that, at year end 2005, of "those under sentence of death, 56% were white, 42% were black, and 2% were of other races." Also, 52 women "were under sentence of death in 2005, up from 47 in 1995."
Perhaps the data I found most interesting concerned the steep decline in the number of death sentences nationwide over the last decade. In 1995, a total of 325 persons were sentenced to death; in 2000, only 236 persons were sentenced to death; and in 2005, only 128 persons were sentenced to death. The numbers in part explain why, in each of the last five years, the total number of persons on death row has decreased.
UPDATE: This Los Angeles Times article discusses the drop in annual death sentences in Texas, which declined from "40 in fiscal 1996 to 14 in 2006, according to statistics compiled by the Texas Office of Court Administration."
December 10, 2006
The virtues of faith-based prisons
The front page of today's New York Times has this lengthy article entitled "Religion for Captive Audiences, With Taxpayers Footing the Bill." Though not solely about faith-based prisons, the article critically examines the fact that faith-based prison programs are proliferating. The article spotlights that "Corrections Corporation of America, the nation's largest prison management company ... is substantially expanding its religion-based curriculum" and that "the federal Bureau of Prisons, which runs at least five multifaith programs at its facilities, is preparing to seek bids for a single-faith prison program."
Regular readers know I tend to support the faith-based prison movement. Though I am agnostic on the constitutional issues such programs can present, I am a true believer in the beneficial resources and energies that get devoted to faith-based prison programs. My instincts were recently confirmed by this report from the Florida ex-offender task force, which noted these virtues of faith-based prisons:
The transformation of the prison culture in faith and character-based prisons shows promise for prisons across the state. Much of the change in these prisons is due to leadership changes, increased mutual respect among staff, inmates and volunteers, the increased engagement of volunteers, and a focused emphasis on rehabilitation....
Faith and character-based institutional transformations are budget-neutral and appear to be achieving some good outcomes. Although it is too soon to measure recidivism rates of the people leaving the transformed facilities, the disciplinary rates of these facilities are about half of similar profiles of inmates in other facilities.
Some related posts:
- Interesting examination of faith-based prison movement
- A thoughtful, but disappointing, attack on a faith-based prison program
- Religion, sentencing and corrections
- Sentencing and Religion
- Having faith in prisons
Sunday's death penalty headlines
Seems like every Sunday brings notable capital punishment newspaper articles. Here is a selection:
- From the Washington Post here, "Witnessing Execution a Matter of Duty, Choice"
- From the Sarasota Herald-Tribune here, "Crist expected to continue Bush pace in executions"
- From the AP here, "Study: Fewer Inmates on Death Row in '05"