February 11, 2006
California has gendered alternative to prison as mass incarceration bills come due
The Los Angeles Times today has this terrific article about plans in California to "move 40% of the state's female inmates out of their cells and into neighborhood correctional centers." The article is packed with fascinating information about women offenders and the state of corrections in the nation's biggest state. Here are snippets from a must-read article:
The plan, most of which requires legislative approval, reflects a growing consensus among experts nationally that female inmates are ill served by a one-size-fits-all correctional system designed for violent men. If adopted, the initiative would make California a leader among states remaking prison systems to reflect differences between the sexes.
The proposal also offers the state a way to ease the severe overcrowding plaguing the $8.1-billion correctional system. With the total inmate population at an all-time high of 168,000 — enough to fill Dodger Stadium nearly three times — tensions on cellblocks are rising and wardens are wedging convicts into gyms, TV lounges, even hallways. Almost every prison is packed to twice its intended capacity....
The large majority of female prisoners — about 66% — are serving time for nonviolent crimes, with an average stay in state custody of 13 months.... Like other states, California has seen a steady increase in its female inmate population and now houses 11,400 women — almost twice the number in 1990....
Officials said the typical inmate qualifying for neighborhood placement would be serving a sentence of less than a year for a crime such as forgery, burglary, auto theft, drug possession or sale, or driving under the influence.... An overriding goal of the policy change is to keep inmates more closely connected to their families, a link known to decrease the odds that an offender will commit crimes again.... Although the expense of housing women in neighborhoods would be lower than prison costs, the expanded services they receive would initially consume any savings.
A registry for meth offenders?
Sex offender registries are in place in nearly every state and are now nationally coordinated (details here and here), Mike Coan, a Georgia state representative, brings a new spin to the registry idea through this commentary:
Sex offenders ... must register with the state Department of Corrections. Residents can check a Web site to find out whether sex offenders live in their ZIP code. With the growing problem of methamphetamine abuse and crimes related to it, we must now take the same steps to "out" offenders who bring this dangerous drug into our communities. That's why I have introduced legislation to create the Methamphetamine Offender Registry, which would be administered by the Georgia Bureau of Investigation....
The registry is necessary because the production, distribution and use of this powerful street drug is the source of so much crime, ranging from robbery, theft, forgery, child abuse and neglect to a host of violent offenses.... Just as sex offenders do irreparable harm to children, meth abusers also harm innocent children. The addiction to this street drug is so powerful that addicts neglect their families, spend all their wages buying meth and behave extremely erratically, sometimes abusing children and spouses....
Information is power, and when residents have the ability to find out who lives in their community — whether it is a sex offender or a meth offender — they can make better decisions about how they live their lives. Gov. Sonny Perdue has declared meth abuse to be perhaps the worst scourge on Georgians of all income levels today. I believe a meth registry is one more step we can take to help combat this problem.
UPDATE: Gideon here at a Public Defender notes this interesting report from Connecticut, which discusses registry laws and notes that Kansas, Montana, and Oklahoma require violent offenders to register. Gideon asks: "Why not require all offenders to register?"
Giving clemency a black eye in California
In this recent post, I noted the ugly sparring in the clemency papers submitted to Governor Arnold Schwarzenegger in the Michael Morales case. But, as detailed in stories from the AP, from the Los Angeles Times, and from the San Francisco Chronicle, the ugliness has reached new heights:
State and local prosecutors said Friday that former Whitewater independent counsel Kenneth Starr and another lawyer representing a death row inmate submitted to the governor forged letters from jurors who were falsely portrayed as wishing the condemned man would be spared.
The news articles provide basic background on this remarkable development and its possible impact on Morales' scheduled execution (which, as detailed here, might be delayed because by his lethal injection litigation). Available for download below is a length press release from he San Joaquin County District Attorney's Office which asserts that Morales' clemency materials contain many separate false and forged statements from jurors and a witness. Only in Hollywood!
UPDATE: Perhaps unsurprisingly, as evidenced here and here and here, Ken Starr's involvement in this clemency ugliness is drawing attention throughout the blogosphere. Also, Howard Bashman has more coverage at this link.
ANOTHER UPDATE: Mike at Crime & Federalism has a great take on this brouhaha.
Sentencing triple salchow from the Seventh Circuit
After watching the opening ceremonies, I have Olympic fever (which this great NBC Olympics site and this "official" blog will aggravate). Consequently, everyone should prepare for (silly? bad?) Olympic phrases in some posts.
A decision yesterday from the Seventh Circuit in US v. O'Neill, No. 04-2589 (7th Cir. Feb. 10, 2006)(available here), allows me to start with my favorite skating term, the triple salchow. In O'Neill, the Seventh Circuit panel splits three ways in reviewing a long guideline sentence in which the district court refused to give the defendant credit for his cooperation as urged by the prosecution. The three separate opinions from the judges jump to different issues and spin around in all directions, culminating in a ruling that, I think, requires resentencing before a new judge. I think, especially under the new scoring system, the Seventh Circuit should lose some points for poor technique in O'Neill.
February 10, 2006
Review of Booker's impact and white-collar sentencing
A helpful reader sent me to this article from the ABA Journal, which discusses the Jamie Olis resentencing and ways in which Booker and other factors are leading to a reconsideration of loss calculations in federal guideline sentencing. Here are a few snippets from a good read:
Harsh prison terms for Olis and other corporate criminals are getting a second look, as is the guidelines' usefulness in cases where the amount lost drives up sentences almost to the exclusion of other factors... [B]usiness interests are complaining that in some instances white-collar punishments don't fit the crimes. And courts are beginning to listen.
Critics say the guidelines simply aren't up to the job of arriving at reasonable sentences because the extent of the loss often dwarfs other sentencing considerations that may favor leniency. They also argue that the government provides unrealistic loss estimates that sometimes effectively lay all blame for major corporate wrongdoing at the feet of relatively minor defendants.
Related posts with more background on the Jamie Olis case:
- Will it be a happy new year for Jamie Olis?
- Government arguing for 15+ years for Jamie Olis
- Attorneys for Jamie Olis urging a 5-year cap for resentencing
- Are the federal guidelines too tough on white-collar offenders?
February 10, 2006 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0) | TrackBack
Ninth Circuit (en banc) approves acquitted conduct enhancement
The Ninth Circuit today in US v. Lynch, No. 02-30216 (9th Cir. Feb. 10, 2005) (available here), at the end of a long en banc opinion focused on jurisdictional issues, provides a disconcertingly rote endorsement of the use of acquitted conduct to support a sentence enhancement. Here is the full text of the en banc court's per curiam sentencing discussion in Lynch:
The district court imposed a twenty-year sentence on Lynch for the Hobbs Act offense (Count I). In a special interrogatory the jury determined that the government had failed to prove beyond a reasonable doubt that Lynch had murdered Carreiro. However, the district court found by clear and convincing evidence that Lynch had participated in the murder and therefore cross-referenced United States Sentencing Guidelines Manual (U.S.S.G.) § 2A1.1, the first-degree murder guideline, as required by U.S.S.G. § 2B3.1(c)(v).
The Supreme Court has held that a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge. United States v. Watts, 519 U.S. 148, 157 (1997). In this case, Lynch was not found innocent of a charge of murdering Carreiro. In response to the special interrogatory, the jury merely found that they did not unanimously agree that the government had established Lynch's murder of Carreiro by proof beyond a reasonable doubt. It was therefore not error for the court to make its own finding in sentencing Lynch.
In this circuit, when a sentencing factor has an extremely disproportionate effect on the sentence relative to the conviction, the government must prove such a factor by clear and convincing evidence. United States v. Hopper, 177 F.3d 824, 833 (9th Cir. 1999). Since the use of the enhancement in this case increased the sentencing range by 105 to 203 months, the clear and convincing standard applied. There was sufficient evidence for such a finding by the district court and the defendant does not challenge the sufficiency of that evidence for the clear and convincing finding. There was no error in the court's use of the first degree murder cross reference.
I describe this discussion as "disconcertingly rote" because I am left to wonder whether or how Blakely and Booker were considered by the Ninth Circuit. As detailed here and here and here, more than a few district judges have held that Blakely and Booker cast great doubt on Watts and the use of acquitted conduct at sentencing. Even if the Ninth Circuit does not find these arguments compelling, it ought to have discussed Blakely and Booker before endorsing judicial sentencing enhancements based on offense facts that have been affirmatively rejected by a jury (albeit with a higher standard of proof).
Sorting through Blakely error and Recuenco
I have be wailing for a long time about the many post-Blakely and post-Booker questions that I think merit the Supreme Court's attention (which in part accounts for my kvetching again and again about SCOTUS taking so many death penalty cases). Thus, you'd think I'd be happy that SCOTUS, as detailed in a series of posts from last October (here and here and here), granted cert in Washington v. Recuenco to explore whether Blakely errors can be subject to harmless-error analysis. However, because of the nature of the Recuenco issue and its procedural posture, it seems that SCOTUS has selected a case (from a cert pool filled with many pressing Blakely/Booker issues) that could engender more confusion than clarity.
Recuenco could make the post-Blakely world even messier because the defendant's brief (available here) argues that harmless-error review "is impossible here because of an unusual circumstance under state law." In other words, the defendant (who prevailed below) seems to be contending that the Supreme Court ought to just dismiss Recuenco as improvidently granted. And, because the defendant has uber-SCOTUS-litigant Jeff Fisher on his team, one can expect the Court will give careful consideration to the idea that it ought to just make the case go away.
"But not so fast," says Steven Sanders in a forthcoming article in the New Jersey Lawyer, which carries the terrific title "Is Washington v. Recuenco a Big Fat Dud?". Steve argues in this article that any argument suggesting that SCOTUS "should decline to resolve a question of immense importance to prosecutors and defense attorneys alike ... is fundamentally misguided." Available for download below, Steve's short article provides a useful primer on Recuenco and leads me to the conclusion that, no matter what SCOTUS does, the case could well engender even more post-Blakely confusion.
UPDATE: Steve has produced a slightly revised version of his article (as of Feb. 17, 2006), which is available below:
And the lethal injection litigation played on...
The latest news comes from California: this article reports that a "federal judge on Thursday suggested he may be willing to postpone California's next scheduled execution later this month so he can hold a full-blown evidentiary hearing to consider a constitutional challenge to the state's lethal injection procedure." Additional reporting on today's hearing in the Morales case, which is making headlines for other reasons as well, can be found in this AP story.
Meanwhile, this AP article provides a partial update on another one of the scrummages over the constitutionality of lethal injection. The article details that, a week after a Missouri death row defendant's execution was stayed, the Eighth Circuit has now clarified that his lethal injection challenge now "rests with a three-judge appeals panel."
For a very clear and effective review of all the lethal injection scrummages (which I cover here and here), check out this fine article from Charles Lane in Friday's Washington Post entitled, "Supreme Court Puzzles Some With Mixed Answers on Lethal Injection."
February 9, 2006
Might the NSA kerfuffle and the AG's Senate showing impact any brewing Booker fix?
Jack Balkin provides this comical account of AG Alberto Gonzales' testimony before the Senate Judiciary Committee concerning the Bush Administration's eavesdropping programs. But this editorial about the sparring between Gonzales and Republicans raises the serious question of whether the AG in the NSA kerfuffle may be greatly damaging his credibility — and thus impacting his ability to argue effectively for a legislative "Booker fix".
As the editorial notes, Gonzales' testimony created a "skeptical bloc of committee Republicans — the chairman, Arlen Specter, Pa.; Lindsey Graham, S.C.; Mike DeWine, Ohio; and Sam Brownback, Kan." These are folks whom, I believe, would be critical voices and votes in any future legislative debate over new sentencing legislation that the Justice Department might seek. Especially important would seem to be Committee Chair (and former prosecutor) Arlen Specter, who had this reaction to what Gonzales was saying:
Specter said the administration's reading of the law "just defies logic and plain English." He was even sterner later when he said of Gonzales to a Washington Post reporter, "He's smoking Dutch cleanser."
Not only could Specter's reaction to the AG's work impact the Justice Department's advocacy for sentencing legislation, it also makes a great line for defense lawyers arguing with prosecutors over interpretations of Booker and 3553(a). Any time a prosecutor states a guideline sentence is presumptively reasonable, perhaps the retort should be that too much Dutch cleanser is being smoked inside DOJ.
More great sentencing reading from SSRN
Over at SSRN, you can find a host of fascinating looking papers on a range of sentencing (and sentencing-related) topics:
- The Market for Illegal Goods: The Case of Drugs by Gary S. Becker, Kevin M. Murphy and Michael Grossman
- Roper v. Simmons and the Limits of the Adjudicatory Process by Daniel R. Williams
- Should we Aggregate Mental Hospitalization and Prison Population Rates in Empirical Research on the Relationship between Incarceration and Crime, Unemployment, Poverty, and Other Social Indicators? On the Continuity of Spatial Exclusion and Confinement in Twentieth Century United States by Bernard E. Harcourt
- Killer Seatbelts and Criminal Procedure by David Alan Sklansky
IACHR hearing on federal mandatory minimum sentencing
As detailed in this press release, the Inter-American Commission on Human Rights (IACHR) "will hold a hearing on the issue of mandatory minimum sentencing on March 3, 2006," which will "review findings that show mandatory minimums are applied in a discriminatory fashion and lead to increased arbitrariness in federal sentencing." (Background on the IACHR and its work are available at this link.)
The press release reports that the hearings were spurred by a petition from the Justice Roundtable (available here) and a supporting letter from the American Bar Association's Criminal Justice Section (available here). As the press release explains:
The petition cites the 100-to-1 quantity ratio between crack and powder cocaine sentencing as the most flagrant example of how mandatory minimums have a discriminatory impact, since harsh sentences for crack- cocaine convictions fall disproportionately on African Americans. The ABA's letter referenced the Kennedy Commission findings that state "the American policy makers' embrace of mandatory minimums and other practices have produced a steady, dramatic, and unprecedented increase in incarceration and drastically increased racial disparities in the criminal justice system." This increase in incarceration has occurred despite the fact that recently released Department of Justice data reveal a decline in crime.
A potent and important prosecutorial statement against sex offender residency restrictions
I just received an extraordinary document released recently by the Iowa County Attorneys Association concerning sex offender residency restrictions in Iowa. The ICAA, as detailed here, is an organization of county prosecutors seeking "to promote the uniform and efficient administration of the criminal justice system." As explained in its five-page statement (which can be downloaded below), the ICAA believes that the Iowa's broad sex offender residency restriction "does not provide the protection that was originally intended and that the cost of enforcing the requirement and the unintended effects on families of offenders warrant replacing the restriction with more effective protective measure."
The ICAA's potent statement (which everyone should read in full) explains in great detail why Iowa's broad sex offender residency restriction is ineffectual and harmful to public safety. Of course, persons impacted by residency restrictions have long argued their unfairness and some researchers have highlighted concerns about their efficacy. But the ICAA statement provides a thoughtful explanation from prosecutors as to why these laws are a bad idea and make our society less safe.
A Google news search reveals that the ICAA statement received some press attention a few weeks ago (see here and here), but not nearly as much as I think the statement merits. As detailed in this story from Iowa and another from Ohio, the ICAA statement can (and certainly should) significantly impact policy debates over the adoption of sex offender residency restrictions, which are raging in legislatures and local communities nationwide. Moreover, I think the ICAA statement could (and perhaps should) significantly impact constitutional challenges to residency restrictions. The statement suggests to me that overly broad residency restrictions ought not even survive rational basis review when subject to serious constitutional scrutiny.
Related posts on the constitutionality of, and policy deabtes over, sex offender residency restrictions:
- Sex (offenders) in the city
- Iowa Supreme Court upholds broad sex offender residency restrictions
- Great blog debate over residency restrictions
- USA Today overview of sex offender realities
- More politicians participating in sex offender panic
UPDATE: Dan Filler over at Concurring Opinions has this thoughtful amplification of points raised above. I must especially concur with this statement from Dan: "It is heartening to see rational policy debate creep into what has otherwise been the land of moral panic."
Sentencing as family and constitutional law
I often tell my students that all areas of law somehow find their way into becoming issues of sentencing law and policy: e.g., contract law --> plea deals; election law --> felon disenfranchisement; corporate law --> white-collar sentencing; property law --> forfeitures. A decision from the First Circuit yesterday, US v. Smith, No. 04-2448 (1st Cir. Feb. 8, 2006) (available here), provides an interesting example of family and constitutional law becoming a matter of sentencing law and policy.
There is a lot of interest in a relatively short space in Smith, which concerns a challenge to a supervised release condition restricting a father from see his young daughter. Here is the start of Smith:
Defendant-appellant Gregory Smith challenges a condition of supervised release, imposed by the United States District Court for the District of Massachusetts, that directs him to stay away from his minor daughter, Alisa McDonald. The appellant claims that this supervised release condition (i) denies him his fundamental right to associate with family members and (ii) lacks any reasonable relationship to the permissible goals of supervised release. After careful consideration, we uphold the challenged condition.
Military executions in the works
As detailed in this news article, "President Bush has been asked to authorize the executions of two men who have been on the military's death row at Fort Leavenworth for a combined 35 years." Notably, the method of execution to be used by the military would be lethal injection, so any capital plans could be impacted by the scrummages over the constitutionality of lethal injection (background here and here).
February 8, 2006
Capital business as usual in Texas
As detailed in this article, all the litigation over lethal injection protocols did not keep Texas from executing another murderer, Robert Neville, on Wednesday. As the article notes:
About an hour before his scheduled execution time, the U.S. Supreme Court rejected his final appeals. His lawyers had hoped to block the execution with appeals in the federal courts that questioned whether the lethal drugs used in the punishment were humane and that Neville suffered a mental illness brought on by lupus that should disqualify him from the death penalty.
The article also details why Texas is on pace to again lead the country in executions in 2006: Neville was "the third prisoner executed this year and the first of three over the next 15 days in the nation's most active capital punishment state."
Interesting review of incarceration and redemption
Thanks to this post at ACSBlog, I see that the organization Opportunity Agenda has released a report entitled "The State of Opportunity in America," which purports to track the nation's progress toward making opportunity available to all. Of particular interests to sentencing fans is this interesting chapter covering Redemption, which begins this way:
Over the last two decades, the scope of the criminal justice system has been expanded as a means of social control. But this expansion has had a dampening effect on opportunity. Opportunity is threatened by high rates of incarceration and the disproportionate impact of the criminal justice system on low-income communities of color. Policies that limit access to educational resources, provide inadequate resources to address prisoners' health problems, and deny the vote and access to public benefits, also hurt opportunity — often well after offenders have paid their debts to society.
The chapter closes by suggesting strategies to allow criminal justice laws to help "restore and redeem individuals and communities whose lives are affected both directly and indirectly by criminal justice policies."
Ugly clemency sparring in California
As I have mentioned before, California's scheduled execution of Michael Morales in less than two weeks is interesting to watch because of a brewing scrum over the constitutionality of lethal injection (background here and here). But this news article highlights that the case is also heating up through dueling claims in the clemency papers submitted to Governor Arnold Schwarzenegger:
Convicted killer Michael Morales' attorneys, including Clinton prosecutor Kenneth Starr, used a forged document in their bid for clemency, prosecutors said Monday — a claim the defense vehemently denied.
UPDATE: The LA Times on Thursday has this lengthy article discussing the lethal injection litigation in the Morales case and the broader story of constitutional challenges to lethal injection protocols.
Escaping an appeal waiver in the Fifth Circuit
Because I can barely keep up with published opinions, I rely on kind readers to alert me to unpublished dispositions that seem noteworthy. And one kind reader sent me a note reporting excitement in the Fifth Circuit over Monday's unpublished decision in US v. Whavers, No. 04-61162 (5th Cir. Feb. 6, 2006) (available here). Whavers seems perhaps significant because the Fifth Circuit refuses to enforce an appeal waiver after finding that, because the district court at rearraignment provided "an inaccurate characterization of the appeal waiver[,] ... the appeal waiver was not knowing and voluntary."
Eleventh Circuit remands unexplained life sentence
The Eleventh Circuit today in US v. Williams, No. 04-14350 (11th Cir. Feb. 8, 2006) (available here) remanded a life sentence in a crack case because the district court failed to comply with its obligations under 18 U.S.C. § 3553(c)(1) to "state in open court the reasons for its imposition of the particular sentence, and, if the sentence . . . exceeds 24 months, the reason for imposing a sentence at a particular point within the range." Here are highlights from Williams:
We focus exclusively on the "sufficiency" of the court's conduct at sentencing, not that of the defendant: "Congress has specifically proclaimed that a sentencing court shall state 'the reason for imposing a sentence [exceeding 24 months] at a particular point within the range.' . . . When a sentencing court fails to comply with this requirement, the sentence is imposed in violation of law . . . ." U.S. v. Veteto, 920 F.2d 823, 826 (11th Cir. 1991) (citations omitted) (emphasis added).
In Veteto we remanded for compliance with § 3553(c)(1) because the trial court explained a sentence in excess of 24 months with the "truism" that the chosen punishment "seem[ed] right." Id. at 824, 826. Here the trial court offered no reason for the life sentence it elected to impose upon 26 year-old Williams. The duty of this Court in the instant case, then, is as clear as the explicit statutory duty imposed by § 3553(c)(1).
Reforming Texas justice
Thanks to this post at Grits for Breakfast, I see that the Texas Governor's Criminal Justice Advisory Council has released this interesting report about improving the state's criminal justice system. As detailed in this press release, the report's proposals include more DNA testing, more forensics labs, and greater monitoring of sex offenders. Of course, the state's administration of capital punishment is integral to some aspects of the report and its recommendations. Media coverage of the report is available from the Houston Chronicle and the AP.