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December 23, 2006

Shouldn't we be much, much tougher with drunk drivers?

Just in time for the holiday driving season, the AP reports on the latest statistics on nationwide drunken-driving deaths:

The government said 12,945 motorists died in a crash involving a legally drunk driver in 2005, compared with 13,099 in 2004. Alcohol-related fatalities also fell during that span: from 16,919 in 2004 to 16,885 in 2005.

Though this small dip in drunk driving deaths is encouraging, these numbers once again have me wondering about our criminal justice and sentencing priorities.  Relatively few persons are killed each year by sex offenders, but over 1,000 persons die each month because of drunk drivers.  Nevertheless, despite the fact that lives and personal safety are jeopardized far more by drunk drivers than by sex offenders, legislators continue to rush to get tougher and tougher with sex offenders while failing to try anything new or severe regarding drunk driving sentencing.

Some related posts on drunk driving sentencing:

December 23, 2006 in Offense Characteristics | Permalink | Comments (15) | TrackBack

Saturday SCOTUS trivia

Regular readers may recall that, when Supreme Court vacancies were all the vogue, I was asking here whether what SCOTUS really needs is a trial judge.  At that time, Orin Kerr noted that Charles Whittaker was on the district court for two years in the mid 1950s, then on the Eighth Circuit briefly before serving on the Supreme Court for from 1957 to 1962.

I still find it remarkable that we've now gone nearly half a century without a Justice with any federal district court experience.  Moreover, at a law-geek lunch yesterday, the question came up whether any Justice had ever been elevated to the Supreme Court directly from a federal district judgeship.  Anyone know the answer? 

December 23, 2006 in Who Sentences? | Permalink | Comments (6) | TrackBack

December 22, 2006

An all-purpose sentencing Festivus for the rest of us

Two years ago, I celebrated a Blakely Festivus for the rest of us by engaging in some Blakely airing of grievances.  I complained, for example, that it was taking a long time for a ruling in Booker.

Last year, in turn, brought a Booker Festivus for the rest of us: I kept up the grand traditions of the day by encouraging donations to the Human Fund and also by airing a new set of Booker grievances.  I complained, for example, about how the US Sentencing Commission and the Justice Department.

This year, I think I will try to be more positive by spending my energy on Festivus feats of (intellectual) strength.  Specifically, I plan to spend Festivus trying to come up with the best sentencing ideas for the coming year.  Readers are welcome and encouraged to celebrate this all-purpose sentencing Festivus by demonstrating feats of (intellectual) strength in the comments.

December 22, 2006 | Permalink | Comments (2) | TrackBack

Where's Cunningham in California reform plans?

As first discussed here, yesterday California Governor Arnold Schwarzenegger announced his comprehensive proposals for dealing with his state's sentencing and prison woes.  Today, in turn, brings lots of news coverage from the Los Angeles Times and the Sacramento Bee and the San Francisco Chronicle.

One interest facet of these developments is that no one appears to be talking about the Cunningham case before the Supreme Court, which concerns Blakely's applicability to California's sentencing system (lots of background here).  What I consider most intriguing here is that the relationship between Gov. Schwarzenegger's proposals and Cunningham possibly runs both ways: not only will the Supreme Court's eventual decision in Cunningham possibly impact California's reform plans, but California's reform plans might possibly impact the Supreme Court's eventual decision in Cunningham.

December 22, 2006 in Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Reports from the ABA Commission on Effective Criminal Sanctions

As noted by CrimProf here, American Bar Association's Commission on Effective Criminal Sanctions has recently produced a series of reports with recommendations on various topics.  This ABA webpage provides more background and links.  All the reports are linked here, and they cover:

  1. alternatives to incarceration and conviction
  2. improvements in parole and probation supervision
  3. employment and licensure of convicted persons
  4. access to and use of criminal records for non-law enforcement purposes
  5. representation relating to collateral consequences
  6. training in the exercise of discretion

All the reports make for interesting reads, but sentencing fans should be especially intrigued by Report I on Alternatives to Incarceration, Report II on Improvements in Probation and Parole, and Report VI on Training in the Exercise of Discretion.

December 22, 2006 in Criminal Sentences Alternatives | Permalink | Comments (0) | TrackBack

Calling out the Sixth Circuit for making a capital mess

A deeply divided Sixth Circuit has been making a mess of death penalty administration in recent years.  As discussed here and here, lethal injection litigation developments have brought the issue to a new level of ugliness. 

Thus, it's not surprising that Ohio federal District Court Judge Gregory Frost is struggling to figure out applicable law as he faces numerous motions from Ohio death row inmates seeking stays of scheduled executions.  What is surprising is Judge Frost's willing to expressly call out the Sixth Circuit in his latest lethal injection opinion (discussed here).  Check out this passage from footnote three:

It is the hope of this Court that ... whatever panel entertains the likely appeal of the instant decision will explain its rationale in affirming or reversing this Court....  It would afford lower courts of this Circuit the necessary guidance that has thus far proved curiously elusive.

The bold and italics in this quoted passage come directly from Judge Frost's opinion.

Some related posts:

UPDATE: According to OPDI here, the Ohio AG's filed notice of its intent to appeal the Kenneth Biros stay of execution granted yesterday by Judge Frost.  Perhaps this will give the Sixth Circuit a chance to fulfil Judge Frost's request for the explanation and guidance that has been so far "curiously elusive."

December 22, 2006 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

This year's batch of Bush holiday pardons

Just in time for Festivus, President Bush issued a batch of pardons and one commutation yesterday.  This AP story provides all the details, and here are the highlights:

President Bush issued 16 pardons Thursday and commuted the sentence of an Iowa man convicted of drug charges.  Six of the federal offenses were drug crimes, while others included bank fraud, mail fraud, the acceptance of a kickback, a false statement on a loan application and conspiracy to defraud the government over taxes.

Seven of the 16 received no prison or jail time, instead getting probation or a reduction in their military pensions. The longest sentence was nine years, for aiding cocaine distribution, followed by a six-year term for conspiracy to possess marijuana.

With this batch, Bush has issued 113 pardons and commuted three sentences in his nearly six years in the White House, according to spokesman Tony Fratto....

Bush remains among the stingiest of postwar presidents on pardons.  President Clinton issued 457 in eight years in office. Bush's father, George H. W. Bush, issued 77 in four years.  President Reagan issued 406 in eight years, and President Carter issued 563 in four years.

December 22, 2006 in Clemency and Pardons | Permalink | Comments (1) | TrackBack

December 21, 2006

Schwarzenegger's plan to reform California's prison problems

As detailed in this extended AP report, California Governor Arnold Schwarzenegger has announced his proposals for reforming his state's sentencing and prison woes.  Here are some highlights:

Gov. Arnold Schwarzenegger said Thursday he will seek a review of California's prison sentencing guidelines, a politically risky undertaking that is part of a wide-ranging plan to address the state's burgeoning prison crisis.

The governor also is proposing an $11 billion building program to add space for thousands of additional inmates and changes to the state parole system. Schwarzenegger characterized the state's prisons as in crisis and "in deep need of reform."...

Schwarzenegger proposed a 17-member commission that would include four legislators, the attorney general, the corrections secretary, a judge and representatives of law enforcement and crime victims' groups. They would serve four-year terms. Commissioners would spend their first year examining whether California's mandatory three-year parole period could be safely shortened for some ex-convicts...

Another pillar of Schwarzenegger's reform effort is creating more space for state prison inmates and those being housed in county jails. The prison system is designed for about 100,000 inmates but houses 174,000. Many convicts are being held longer at county jails, overwhelming that system, as well. Schwarzenegger already has implemented an emergency plan to transfer nearly 2,300 inmates to private prisons in other states. He now wants to add 28,000 beds at state prisons and 50,000 at the county level.

Govenor Schwarzenegger's official press release is here, and his office has additional information under these links:

December 21, 2006 in Scope of Imprisonment | Permalink | Comments (6) | TrackBack

Lethal injection mess hits Ohio again

As reported here at ODPI, U.S. District Court Judge Gregory Frost has followed up his remarkable lethal injection work earlier this month by today granting a stay to Kenneth Biros because of the litigation and questions surrounding questions Ohio's lethal injection protocol.  Judge Frost's latest opinion is available at this link.  Here is one of many notable passages:

Faced with two different orders by two different panels reaching two different conclusions, this Court is left with the task of determining what the law of this case is. Because neither order provides any reasoning for its outcome, this Court can only conclude that the law of the case is that this Court should evaluate individually and on a case-by-case basis each motion for a preliminary injunction that comes before it. In other words, there is apparently no substantive law of the case as to all intervening plaintiffs here because there is no apparent consistency to the appellate decisions that have arisen from this litigation.

Some recent and related posts:

December 21, 2006 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

Is it time to seriously consider alternatives to lethal injection?

200_executionOver at ODPI, one can find here a notable collection of posts and commentaries in which various folks, responding to the lethal injection brouhaha, have identified various new and old execution procedures that might be explored.  Though some of the suggestions are not completely serious, the topic of execution methods is a fascinating story historically.  (For anyone interested in a little morbid legal history, check out detailed in discussions here and here about the electric chair, and this discussion of older execution techniques.)

Though this is a topic that can readily turn ugly or inappropriate (and my choice of a graphic here perhaps does not help), I would be grateful for serious input about whether states interested in continuing to employ the death penalty should start exploring alternatives to lethal injection.  In Florida and California and elsewhere, the topic right now is how lethal injections can be done better.  But would it be more sensible for states to be looking more broadly to, and more closely at, realistic alternatives?

December 21, 2006 in Death Penalty Reforms | Permalink | Comments (6) | TrackBack

Two more Eighth Circuit reversals of below-guideline sentences

It is an especially rough week for criminal defendants in the Eighth Circuit, as today two different panels reversed two more downward variances from the guidelines in US v. Plaza, No. 05-4035 (8th Cir. Dec. 21, 2006) (available here), and US v. McCormick, No. 06-1716 (8th Cir. Dec. 21, 2006) (available here),  As with the pair of similar reversals earlier this week (discussed here), both cases demonstrate the circuits' continued willingness to second-guess the sentencing judgments of district courts and to rely very heavily on the guidelines when engaging in such second-guessing.

December 21, 2006 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

NYT adds to chorus calling for Genarlow Wilson to be freed

The New York Times' editorial page today takes up a cause I have been championing this week through this editorial entitled, "Free Genarlow Wilson Now."   Here is how it begins:

Genarlow Wilson loves reading mystery novels and can't wait for the next Harry Potter book.  The 20-year-old former high school football player and honor student works in a library, the perfect job for a young bookworm.  Unfortunately, that is where the good news ends and a genuine horror story of this country's legal system begins. The library in Georgia where Mr. Wilson works is in prison.  He is two years into a sentence for engaging in consensual oral sex with a 15-year-old girl at a New Year's Eve party when he was 17.  He won't be eligible for parole until he has served 10 years, essentially sacrificing his remaining youth to an obvious miscarriage of justice.

Interestingly, the NYTimes editorial does not call for clemency, as I have been suggesting here and here, but rather notes that Wilson's lawyer is "planning to file a habeas petition seeking his release" and urges "to grant it and expunge his record so that Mr. Wilson can return to his family and his once promising academic career."  This makes me further wonder if clemency is even legally available for Wilson under Georgia law, an issue thoughtful raised by an insightful commentor.

If in fact clemency is not even available for Wilson under Georgia law, I think his claims under the Eighth Amendment (and perhaps also Due Process and even Equal Protection) become even stronger.  Of course, as detailed here and here, I think Genarlow Wilson's  Eighth Amendment claim is pretty strong already.

Related posts on the Genarlow Wilson case:

December 21, 2006 in Scope of Imprisonment | Permalink | Comments (6) | TrackBack

Commentaries about lethal injection mess

Newspaper columnists and editorial writers are catching up with all the lethal injection news nationwide (highlights here and here).  Here are links to some of their insights:

For my basic perspectives, check out:

December 21, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Virginia internet task force calls for tougher sentences

As detailed in articles here and here, yesterday a group led by Virginia's attorney general studying how to keep the internet safe for kids, the Youth Internet Safety Task Force, produced "a 100-page report that included 25 specific proposals from law-enforcement officials, technology experts, parents and educators who met during the past six months."  The full report can be accessed at this link, and here are some of its law enforcement recommendations:

1. Amend Virginia Code §18.2-374.1 to include statutory and mandatory minimum sentences for production and financing of child pornography.

2. Amend Virginia Code §18.2-374.3 to include statutory and mandatory minimum sentences for online solicitation of children. These mandatory minimums should be bifurcated for offenses involving child victims below 15 years of age and those involving children 15 to 18 years of age.

3. Amend Virginia Code §18.2-374.3 to prohibit sexual solicitations of children ages 15-18. The age of the victim and the age of the offender in relation to the victim should be the determining factors for mandatory minimum sentences.

December 21, 2006 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Ugly realities of California's prison politics

This AP article spotlights the troublesome dynamics that surround prison and sentencing reform in California.  Here's the lead:

The two former California prisons chiefs, who resigned in quick succession this year, told a federal judge Wednesday they were driven out by the political sway the prison guards' union held on Gov. Arnold Schwarzenegger.

December 21, 2006 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

December 20, 2006

How the war on terror impacts the politics of crime

This article from the Washington Post discussing the latest crime statistics from the FBI spotlights ways in which the war on terror seems to be impacting the politics of crime.  In the not-too-distant past, any increase in crime rates would usually lead to calls for tougher sentencing laws.  But now the new crime data is leading to criticisms of shifting priorities:

A surge in violent crime that began last year accelerated in the first half of 2006, the FBI reported yesterday, providing the clearest signal yet that the historic drop in the U.S. crime rate has ended and is being reversed....

The numbers are certain to increase pressure on the Bush administration, whose detractors say local police concerns have been slighted by the focus on homeland security and counterterrorism. The Justice Department inspector general's office has reported sharp declines in the number of FBI agents and investigations dedicated to traditional crimes since the Sept. 11, 2001, terrorist attacks.

In addition, the International Association of Chiefs of Police says that law enforcement programs at the Justice Department have been cut by more than $2 billion since 2002 and that overall funding for such programs has been reduced to levels of a decade ago. "We've been looking at some pretty discouraging numbers, and we've always been concerned that as funding decreases, crime rates will increase," said Gene Voegtlin, the association's legislative counsel.

James Alan Fox, a criminologist at Northeastern University in Boston who has been critical of the Bush administration's crime-fighting strategies, said the overall rise in violent crime should be expected given dramatic cuts in assistance to local police and simultaneous increases in the population of males in their teens and 20s. "We have many high-crime areas where gangs have made a comeback, where police resources are down and where whatever resources there are have been shifted to anti-terrorism activity," Fox said. "It's robbing Peter, and maybe even murdering Peter, to pay Paul."

Justice Department officials have repeatedly rejected such criticism, arguing that the causes and trajectory of the crime increase is still unclear.  Nonetheless, Attorney General Alberto R. Gonzales has launched a series of anti-drug and anti-gang initiatives at Justice, and he acknowledged at a crime conference in Boston last week that local police are struggling with "increased responsibilities" since Sept. 11, 2001.

December 20, 2006 in Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Latest death penalty doings

As usual, folks interested in keeping up with all the latest death penalty doings should check out all the action at Capital Defense Weekly and Ohio Death Penalty Information and StandDown Texas Project.  Most interesting is perhaps this AP story detailing that lawyers for a North Carolina death row inmate scheduled to be executed next month has "asked Gov. Mike Easley on Wednesday to stop the execution so that the method for putting prisoners to death can be studied."  Here is more:

Easley should follow the lead of Gov. Jeb Bush of Florida, who stopped executions there after a botched execution took 34 minutes for the prisoner to die, defense attorney Geoffrey Hosford said. A federal judge in California imposed a moratorium in that state after Florida halted its executions. "North Carolina follows the same formula as Florida and California," said Hosford, who represents condemned prisoner Marcus Robinson....

Hosford also complained that North Carolina keeps the qualifications and identities of executioners secret and "whether or not the person has any medical training is a question." Defense lawyers are scheduled to meet with Easley on Jan. 17 to request clemency. Hosford said he intends to discuss the pain issue with Easley and to introduce it in court filings.

December 20, 2006 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

A thoughtful variance based on co-defendant disparity

The Claiborne and Rita have many focused on the ugly realities of how circuit courts are applying reasonableness review.  But no one should lose sight of all the good post-Booker work still being done in the district courts.  Another example this week comes from Judge Avern Cohn in United States v. Presley, No. 00-80756 (ED Mi Dec. 19, 2006) (available here), which involves a resentence following a Booker remand and deals with the issue of co-defendant disparity in sentencing.  Though the history of Presley are complicated, this conclusion sums up the ruling:

As discussed above, Presley and Davis were both involved in a large scale cocaine conspiracy involving hundreds of kilograms of cocaine and millions of dollars in cash.  Both were tried and both were convicted by the same jury.  By happenstance, a small portion of the evidence at their trial was found to be excludable as to Davis but not as to Presley.  Accordingly, the Court on remand was to review the overall evidentiary basis for the conviction of Davis to see if that conviction could stand without the excluded evidence.  The government had an obligation to see if that case could be made.  For reasons known only to the government, it chose not to make the effort and entered into a compromise with Davis which resulted in a significantly lower sentence 18 for him; a "windfall" in the words of the government.

As the Court of Appeals observed in Williams, supra, it would violate the spirit of the guidelines and be particularly inequitable for Davis to receive a 96 month sentence and Presley a 360 month sentence for the same conduct.  Booker gives the Court discretion to impose a reasonable sentence sufficient, but no greater than necessary, to comply with the purpose set forth in § 3553(a)(2).  The Court is exercising that discretion in a reasoned manner.  It is for these reasons that Presley has been sentenced overall to 120 months, the mandatory minimum under Count 1.

December 20, 2006 in Booker in district courts | Permalink | Comments (4) | TrackBack

Should the prosecutor request clemency for Genarlow Wilson?

I just read this detailed article in Atlanta Magazine, which provides lots of background on Genarlow Wilson's crime and trial that landed him in a Georgia prison for 10 years for consensual oral sex.  This passage about David McDade, the elected district attorney who prosecuted Wilson, jumped out at me:

McDade says that he agrees that consensual teenage sex, including oral sex, does not necessarily warrant a decade-long prison sentence, but he insists there were no other options to consider in this case as long as that law remains on the books.

As noted in prior posts (linked here), "that law" requiring 10 years for Genarlow Wilson is no longer "on the books," but the Georgia Supreme Court has not given Wilson any relief (details here).

As I suggested here, Wilson's case cries out for executive clemency and now I think David McDade should be the one leading the call for clemency for Genarlow Wilson.  Without clemency, Wilson will surely be challenging his sentence in a federal habeas action.  Wouldn't the people of Georgia be better served by helping Wilson get justice through a release than by having the state defend a sentence in federal court that no one thinks is just?

December 20, 2006 in Examples of "over-punishment" | Permalink | Comments (25) | TrackBack

The stunning data on circuit reasonableness decisions

For over a year, and especially as ugly reasonableness patterns emerged, I have been hoping the US Sentencing Commission would start cataloging reasonableness review outcomes and begin analyzing how Booker is being applied at the circuit level.  To date, however, the USSC has not provides any  comprehensive data or sophisticated analysis of Booker reasonableness review.

Fortunately, Claiborne and Rita, the SCOTUS Booker reasonableness cases, has prompted others to do this analysis.  As noted before here, as part of an amicus effort, "NYCDL compiled and analyzed a database of 1,515 post-Booker reasonableness review cases," which documented "that the courts of appeals have affirmed nearly all within- and above-guidelines sentences while reversing nearly all below-guidelines sentences appealed by the government."   

In addition, the federal public defenders have done some amazing analysis of the realities and impact of Booker reasonableness review.  Their work is available though this great webpage, where one finds this report:

Data on Appellate Review: Now posted on the Booker/Fanfan Resources page are a graph and the data used to prepare it showing a widening gap between the rate of below-guideline sentences imposed in circuits that have adopted a presumption of reasonableness and those that have not (click here); a comprehensive review of court of appeals decisions between December 1, 2005 and November 30, 2006 showing the rates of affirmance and reversal of within, above and below-guideline sentences at the national and circuit levels, as well as a comparison of rates in presumption and non-presumption circuits (click here).  Also posted now are transcripts of sentencing hearings in which judges expressed the belief that they could not sentence outside the guideline range (click here).

Recent related posts on Claiborne and Rita briefs:

December 20, 2006 in Booker in the Circuits | Permalink | Comments (6) | TrackBack

Another editorial urging release of Genarlow Wilson

Following up yesterday's editorial in the Atlanta Journal-Constitution here which said "legal system must stop offering Genarlow Wilson condolences and start giving him justice," today the Macon Telegraph has this editorial which concludes with this call for action:

Genarlow Wilson should not be in prison; what consenting teenagers do sexually should not send them to prison for 10 years.  The Legislature, and the people of Georgia, can help right that wrong.

Meanwhile, posts at Legal Fiction and The Debate Link spotlight why concerns about the impact of race in this case should not be quickly discounted.  They point to this article in Atlanta Magazine, which notes two white defendants from the same jurisdiction that got a month or less imprisonment for sexual misdeeds more serious than what got Genarlow Wilson 10 years in prison.

Related posts on the Genarlow Wilson case:

December 20, 2006 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

So much lethal injection buzzing

Thanks in part to Maryland now also jumping into the lethal injection mess (as first noted here), there is media buzz all over about lethal injection protocols.  As he does so well, Howard Bashman has collected a lot of the newspaper coverage about lethal injection developments in Maryland and in California

Also, last night the PBS NewsHour had a debate on lethal injection, and the transcript of the program can be found here.  Meanwhile, Jurist has collected a lot of the latest news and links here, and DPIC provides a "closer look" at the California developments here

For some quick reflections on what this all means, Andrew Cohen at the Washington Post has this commentary on all the happenings.  And, of course, lots of blogs are buzzing about lethal inejction, too.

December 20, 2006 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

December 19, 2006

More on the pros and cons of GPS tracking

Salon.com has this interesting new article entitled, "Tracking sex offenders with GPS."  Here are is how it begins:

It's not every Election Day that voters can cast a ballot to banish thousands of people to the hinterlands, but Californians did just that last month, and eagerly so.  Seventy percent voted to ban registered sex offenders from living within 2,000 feet of a school or park, effectively outlawing them from many residential areas in the state.  Known as "Jessica's Law," after a 9-year-old Florida girl who was kidnapped from her home, sexually abused and murdered by a registered sex offender, the California proposition swept in a myriad of punitive changes.  The crackdown on residency applies to all registered sex offenders, including those convicted of a misdemeanor, such as indecent exposure.

Most notably, felony sex offenders will now be tracked 24 hours a day, seven days a week, via GPS (global positioning system), even after they're out of prison and off parole.  The state senator and advocates behind the proposition call the GPS devices a necessary and vital tool to control sexual criminals.  The California measure makes no distinction between habitual offenders at high risk of striking again, worth having their every move tracked electronically once they're out of prison, and the felons who have served their time and present no apparent threat to public safety in the eyes of the court.  Just put a GPS device on all of them, voters said, forever....

But as states rush to impose harsher penalties on sex criminals, critics -- legal and criminal analysts, and even some victims of sex crimes themselves -- state that the punitive new laws violate civil liberties and are ineffective.  And while a technological fix like fastening GPS devices to former felons may make the public feel safer, it will do little to protect the children who are the victims of most sex crimes.

Some recent related posts:

December 19, 2006 in Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

All the amazing top-side briefs in Claiborne and Rita

As discussed here and here, the first sets of briefs were filed yesterday in Claiborne and Rita, the SCOTUS Booker reasonableness cases to be argued in February.  I am now pleased to report that the New York Council of Defense Lawyers has assembled, on this wonderful webpage, lots of background on the two cases, as well as links and summaries of all the briefs filed so far.

There is a lot of amazing information about the realities of federal sentencing on the NYCDL page — perhaps too much information to completely take in.  Still, I strongly urge everyone involved with or interested in the federal sentencing system — prosecutors, defense attorneys, probation officers, district judges, circuit judges, law clerks, members/staffers of the USSC and Congress — to read as much as they can from the NYCDL page.  There is SOOOO much information and insight in the briefs, and on-going federal sentencing cases and discussions should be informed by all the work therein.

In fact, I am right now heading off to a coffee house to read some more of these briefs.

December 19, 2006 in Claiborne and Rita reasonableness case | Permalink | Comments (0) | TrackBack

The nuance in my provocation

My intentionally provocative questions about the Georgia case here has provoked interesting comments here and these three posts from Eugene Volokh:

Let me just add a bit more nuance to ensure my points are understood:

1.  I am not accusing anyone of intentional racism or suggesting anyone made a consciously racist decision in this case.  Rather, my chief point was to get people thinking about whether events would have played out the same way had Genarlow Wilson been white.  Consider the contrast to Mark Foley. Arguably, his predatory acts were worse given his position of power and his purported maturity.  Did anyone even suggest 10 years in prison for him?  Why not?

2.  I do not mean in any way to suggest that our country should not criminalize some consensual behaviors.  Rather, I just continue to be troubled that libertarians and others who emphasize the importance of freedom in other areas (e.g., freedom of speech) do not get aghast when the state locks citizens up in small cages for extraordinarily long periods of time when their behavior does not clearly justify locking them up this way.

December 19, 2006 in Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Big death penalty doings in Maryland

As detailed in two posts over at ODPI here and here, the nationwide death penalty buzz has gotten especially loud in Maryland.  One post suggests that Maryland's Governor-elect Martin O'Malley might be prepared to try to move the state away from capital punishment.  And, as if on cue, today the Maryland Court of Appeals (the state's highest court) in a 171-page opinion in Evans v. Maryland is (available here)orders state prison officials to conduct a review of the Maryland lethal-injection protocol in a forum open to public input. 

Here is the key part of the ruling in Evans:

We shall find merit in the second aspect of Evans's complaint in No . 122, but no merit in any of his other complaints.  Evans is not entitled to a new sentencing proceeding or to a new trial, but that part of the DOC protocol that directs the manner of administering the lethal injection is ineffective until either (1) it is adopted as a regulation in accordance with the Administrative Procedure A ct, or (2) the Legislature exempts it from the requirements of that Act.

December 19, 2006 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Provocative questions about Georgia sentencing injustice

19georgia Thanks to How Appealing, I see that both the New York Times here and the Atlanta Journal-Constitution here are discussing Genarlow Wilson (pictured here), the young Georgia man who was "sentenced to 10 years in prison without parole for having consensual oral sex with a 15-year-old girl at a New Year's Eve party" when he was 17 years old.  The Times article details that Mr. Wilson is an "honor student and the first homecoming king at Douglas County High School" and that he has already served nearly two years in prison.  The Atlanta Journal-Constitution rightly says in an editorial that the "legal system must stop offering Genarlow Wilson condolences and start giving him justice."

Upon learning more about this case, I cannot help but ask a number of provocative questions:

1.  Had Wilson been white, would he even had been charged with this offense, let alone sentenced to 10 years imprisonment?

2.  Had Wilson been white, would the Georgia legislature have made its subsequent change in the law retroactive to give Wilson the more sensible justice all others will now receive?

3.  Had Wilson committed his offense in other state, could he have even been sentenced to the 2 years he has already served, let alone received the 10-year prison term he is still serving?

4.  Doesn't this story sound like one we might hear from some repressive foreign country, and not from a state in a country that supposedly prides itself on liberty and freedom?

5.  Can anyone make a reasoned argument for keeping this honor student in prison any longer?

Some prior posts posing additional questions:

UPDATES:  I add nuance to my questions in this post, and I have now discovered this website asking "Why is Genarlow Wilson in Prison??"

December 19, 2006 in Sex Offender Sentencing | Permalink | Comments (23) | TrackBack

December 18, 2006

My friendly efforts in Claiborne and Rita

As noted here, the first sets of briefs were filed in Claiborne and Rita, the SCOTUS Booker reasonableness cases to be argues in February.  I had the good fortune to be involved in some amicus briefing; here are the primary fruits of my efforts:

1.  Working with a terrific set of lawyers, I helped develop a pair of briefs in support of petitioners on behalf of the New York Council of Defense Lawyers.  As detailed in this webpage (which has links to the briefs in Claiborne here and Rita here), as part of the amicus effort, "NYCDL compiled and analyzed a database of 1,515 post-Booker reasonableness review cases," which documented "that the courts of appeals have affirmed nearly all within- and above-guidelines sentences while reversing nearly all below-guidelines sentences appealed by the government." 

2.  Working from some of my scholarly writings, I helped put together a joint brief for a group of law professors who study sentencing reform.  This brief is available at this link, and here is how it begins (along with some great quotes from Judge Marvin Frankel and Professor Norval Morris):

A set of long-standing federal sentencing principles should inform the Court's resolution of these cases.  These are principles that find expression in the writings of Judge Marvin Frankel and Professor Norval Morris, two leading advocates of reform proposals that resulted in the Sentencing Reform Act of 1984. These are principles that animate provisions of the Sentencing Reform Act of 1984 and the PROTECT Act of 2003, especially the detailed sentencing instructions Congress has set forth in 18 U.S.C. § 3553.  These are principles that have been emphasized by this Court in rulings from Mistretta v. United States, 488 U.S. 361 (1989), to Koon v. United States, 518 U.S. 81 (1996), to United States v. Booker, 543 U.S. 220 (2005).

These principles recognize the critical importance of judicial sentencing discretion and suggest the touchstone of federal sentencing should be district courts exercising reasoned judgment in response to case-specific factors and broader norms established by the Constitution and Congress.

December 18, 2006 in Claiborne and Rita reasonableness case | Permalink | Comments (0) | TrackBack

Why isn't the severe Georgia sentence constitutionally problematic?

Eugene Volokh's extended riff here on the extreme consensual oral sex sentence for a teenager in Georgia (discussed here and with comments ablaze) includes Eugene's assertion that he doesn't "think there's any Cruel and Unusual Punishment Clause problem here."  I have been reflecting on this issue after this post, and I have come to wonder what arguments could be made, given the facts we know, that the Georgia teen's fate is not "cruel and unusual."   

Again, the key facts are that Georgia Legislature has now said that the defendant's type of behavior should be treated as a misdemeanor, and many studies suggest that the defendant's sexual behavior is quite common among teenagers.  Yet prosecutions for consensual oral sex between teenagers is extremely rare, and I doubt anyone in recent decades has every received more than a year in prison for such an offense, let alone ten years.  Why don't these facts alone make out at least a plausible case of the infliction of a "cruel and unusual punishment"?

Related posts:

December 18, 2006 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Top-side briefing begins in Claiborne and Rita

I am pleased (and overwhelmed) that the first sets of briefs have now been filed in Claiborne and Rita, the SCOTUS reasonableness cases now set to be argued on February 20.  Specifically, counsel for the defendants and their amici filed briefs today, and my e-mail in-box is overflowing.

In this post when cert was granted, I placed the early over/under for amicus briefs at 10.  Looks like the over might win.  Here's what I know has been filed (in no particular order) in addition to the two petitioner briefs:

  1. A joint brief from the NACDL
  2. Two briefs (one for each case) from the NYCDL (which I help with some)
  3. A joint brief from the FPCD and the NAFD
  4. A joint brief from FAAM
  5. A Claiborne brief from The Sentencing Project and the ACLU
  6. A Rita brief on behalf of two veterans' groups
  7. A joint brief from the WLF

Also, I know there are at least two law professor briefs in the mix.  I was involved in one, which was technically filed on behalf of none of the parties, and I know casebook co-authors Marc Miller and Ron Wright were working up another. 

I hope that someone soon will be creating a special page with all these briefs (and the parties briefs) in one place so I can avoid having to post them all here.  There is lots and lots of important reading in these works, and I will be posting details and copies as soon as a I figure out an orderly way to do so.

UPDATE: The New York Council of Defense Lawyers has created this helpful webpage spotlighting its amicus work and providing links to the other briefs filed today.  And in this post I discuss my chief amicus efforts.

December 18, 2006 in Claiborne and Rita reasonableness case | Permalink | Comments (1) | TrackBack

Great blogosphere coverage of lethal injection mess

Not surprisingly, because the death penalty is involved, there is a boat load of blogosphere coverage of all the on-going lethal injection mess.  I cannot keep up with it all, so I'll just refer readers to two very different resources covering the issues: Compare Crime & Consequences with Ohio Death Penalty Information.

UPDATE: From this TalkLeft post, I discovered this Lethal Injection blog.  It appears to provide an anti-death penalty perspective.  I wonder if a pro-DP version is out there in the blogosphere somewhere, too.

December 18, 2006 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Time for a common-person approach to the Eighth Amendment

It's sentencing day over at The Volokh Conspiracy: Eugene Volokh riffs here on the extreme sodomy sentence in Georgia (discussed here and with comments ablaze); Orin Kerr riffs here on Judge Fogel's ruling essentially declaring California's administration of lethal injection unconstitutional (discussed here and here).  Both posts make great reads, and they spotlight the ugliness of modern terribly Eighth Amendment doctrine.

The Eighth Amendment is one of the very hardest of constitutional provisions to operationalize no matter what interpretive theory one embraces.  Justice Scalia's purported originalism often breaks down when asked about severe physical punishments common at the Founding; but fans of a living Constitution like Justices Brennan and Marshall seemed most like philosopher kings when when opining on the limits imposed by the Eighth Amendment.

Here is the full text of the Eighth Amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

I am not sure I have a fully evolved and sound-tight approach to this provision.  But I think a common-person test ought to be of some use.  And I have to think common persons would surely view imprisoning a Georgia teenager for 10 years for consensual oral sex as far more "cruel and unusual" than imperfectly administering a lethal injection to a condemned murderer in California. 

Sadly, common persons do not interpret the Eighth Amendment, lawyers and judges do.  Today that means the Georgia teenager must spend a decade behind bars, while California murderers get an indefinite lease on life (to be served on death row).  Maybe my old law-school classmate Adrian Vermeule is on to something when advocating for lay Justices.

December 18, 2006 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Ninth Circuit still cleaning up the Booker pipeline

Time for the Booker maniac question of the day.  What's more frightening: (A) that the Ninth Circuit is still struggling with Booker pipeline issues as evidenced by its ruling today in US v. Combs, No. 05-30486 (9th Cir. Dec. 18, 2006) (available here), or (B) that a whole new set of pipeline issues (and perhaps also some old ones) may be the fate of lower courts after SCOTUS decides Claiborne and Rita?

However they answer this question, true Booker maniacs will want to check out Combs.  Judge Kozinski finishes his majority opinion this way: "Because the district judge failed to modify his original sentence in light of these new objections, he acted precisely as Ameline contemplated and we must affirm." Judge Berzon, dissenting, begins her opinion this way: "The majority's peculiar interpretation of the word 'reasonableness' not only defies its common usage in the English language, but more importantly, runs contrary to what this court decided, sitting en banc, in United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc)."

December 18, 2006 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Eighth Circuit reverses two more below-guideline sentences

Today brings more proof, in contrast to my speculation in this post, that the Supreme Court's recent cert grant in Claiborne is not going to slow down the Eighth Circuit in reversing downward variances granted by its district courts.  In both US v. Kane, No. 06-1103 (8th Cir. Dec. 18, 2006) (available here), and US v. Morales-Uribe, No. 06-1855 (8th Cir. Dec. 18, 2006) (available here), the Eighth Circuit is again reversing a downward variance from the guidelines thought appropriate by the district judge who actually had the defendant before the court.

Kane and Morales-Uribe involve quite different facts, both as to the crimes involved and the bases that a downward variance was granted.  Also, a completely different set of active judges are on the panel in each case.  But both cases demonstrate the circuits' continued willingness to second-guess the sentencing judgments of district courts and to rely very heavily on the guidelines when engaging in such second-guessing.

December 18, 2006 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

A Georgia case calling for executive clemency?

How Appealing here spotlights an extraordinary Georgia case.  As explained in this concurrence from the Georgia Supreme Court's decision not to reconsider the case, the defendant "was convicted of aggravated child molestation based upon an act of oral sodomy performed on him by victim T.C., which was documented on videotape and seems to show that the victim's participation in the act was voluntary."  The defendant was 17 at the time of the offense, the victim was 15; under "the aggravated child molestation statute then in effect, Wilson was sentenced to ten years imprisonment without possibility of parole."   Ten years ... yikes!  (For a little context, consider that 10 years in prison is nearly what Enron bad guy Andrew Fastow received.)

The Georgia Legislature thereafter amended the applicable statute to provide that "an act of sodomy is only a misdemeanor when the victim is between 13 and 16 years of age and the convicted person is 18 years of age or younger and is no more than four years older than the victim."  But, the Georgia Legislature "expressly chose not to allow the provisions of the new amendments to affect persons convicted under the previous version of the statute," and thus the Georgia Supreme Court decided the defendant was "not entitled to the misdemeanor treatment now accorded to identical behavior under" the revised statute. 

Som the Georgia Legislature has now said that the defendant's type of behavior should be treated as a misdemeanor, and many studies suggest that the defendant's behavior is quite common among teenagers even though prosecutions are rare.  Nevertheless, this defendant is still stuck serving 10 years in prison.  Certainly not my idea of "getting lucky," but rather a case screaming out for the exercise of executive clemency. 

I have a hard time thinking of any reasons why the defendant should remain in prison.  Can readers perhaps help me understand why this case does not involve a far greater injustice than all the hub-bub over lethal injection protocols?  [This paragraph has been tweaked for clarity.]

December 18, 2006 in Clemency and Pardons | Permalink | Comments (22) | TrackBack

"I'm dreaming of a jailed Christmas..."

This story in today's Columbus Dispatch provides a holiday twist on an alternative sentencing idea:

The judge calls it a "Holbrook holiday," but for 23 people convicted in his court, it means spending Christmas in jail. As part of their plea agreements to avoid prison terms, the 23 men and women agreed to spend four days including Christmas in the Franklin County jail every year they are on probation.

The idea is to give them a taste of prison to keep them from going there, said Franklin County Common Pleas Court Judge Michael J. Holbrook. If they play by the rules, they might not have to go back for a second, third, fourth or fifth Christmas, said Brian Stein, a senior probation officer. If they break the rules, they could go to prison. "He gives us the discretion to decide," Stein said. "It’s an alternative to prison, so I’ve never had anybody really complain."

Holbrook, who was elected in 2004, said he got the idea from a federal prison program in which convicts on probation serve national holidays in lockup. "I wanted to send a message to those who were borderline and may have a chance to go to prison. If they’re not Christian in nature, I can use some other day, like their birthday," Holbrook said. "It’s a reminder of where they could be going, if nothing else."

His sentencing program has been successful.  Only two of 15 people failed to appear last year, and five of those who spent last Christmas behind bars have earned a pass this year.

December 18, 2006 in Criminal Sentences Alternatives | Permalink | Comments (1) | TrackBack

Two states turning to overdue reforms

Though death penalty developments get most of the headlines, non-capital sentencing has the broadest impact on criminal justice systems.  Thus, it is heartening to see new that both Alabama and California are getting serious about long needed reforms:

December 18, 2006 in State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Will lethal injection woes speed abolition?

This morning at FindLaw, Austin Sarat has this essay entitled "When Executions Go Wrong: A Horribly Botched Florida Killing Adds Strong Impetus to a National Reconsideration of Capital Punishment."   Here are some snippets:

Last Wednesday, the name of Angel Diaz was added to a long list of persons whose executions have been botched in recent American history.... After this execution, a spokesman for the National Coalition to Abolish the Death Penalty noted that "Florida has certainly deservedly earned a reputation for being a state that conducts botched executions, whether electrocution or lethal injection."

Like the king and his men trying to put Humpty-Dumpty back together again, Florida Governor Jeb Bush immediately reacted to the Diaz fiasco by reaffirming his belief in capital punishment, ordering a halt to all executions, and convening a special commission to review that state's lethal injection procedures to insure that, in the future, they do not result in cruelty and needless suffering.  Yet whatever Governor Bush's commission recommends, it is getting harder and harder for supporters of the death penalty to defend the system. The Diaz case is just the latest is a series of developments adding impetus to abolitionists' efforts to shift attention away from abstract philosophical debates, to the way the death penalty actually works.

Abolitionists have recent cited not only botched executions, but also dramatic exonerations of persons from death row, cases in which defense lawyers fell asleep during capital trials, and concerns over racial disparities in the death penalty system. These abolitionist arguments, each powerful in its own right, have gained so much traction that it now seems safe to say that the future of capital punishment in the United States is very much in doubt. Indeed, the prospect of its end, which once seemed so remote, is a distinct possibility in the foreseeable future.

December 18, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

December 17, 2006

A December to remember

As if October and November weren't exciting enough (as detailed here and here and here), this month has had nearly a full year's worth of notable sentencing events.  Of course, this month is only half over and, among other coming events, tomorrow brings the top-side briefs in the Claiborne and Rita cases (background here).  Nevertheless, since some are already celebrating Festivus, I could not help doing a mid-month review of sentencing highlights:






December 17, 2006 in Recap posts | Permalink | Comments (1) | TrackBack

Some Sunday sentencing headlines

Here is just a sample of some of the sentencing stories making headlines this morning:

UPDATE:  ODPI has lots of links here and here to other articles about all the lethal injection happenings.

December 17, 2006 | Permalink | Comments (1) | TrackBack