March 13, 2007
Libby's economic version of the trial penalty
I have often written about the sentencing dimensions of the trial penalty (examples here and here), i.e., the large sentence increases that defendants who opt to exercise their right to trial will often face. But this Bloomberg news article, which is focused on funds being collected for Lewis Libby's defense, discusses a more economic trial penalty already being suffered by Libby:
Libby's bills, including an expected appeal, will run into the millions, defense lawyers say. Three top criminal lawyers are spearheading his defense. Lead attorney Ted Wells charges about $800 an hour.
"You would have to be an extraordinarily wealthy person for an ordeal like this not to ruin you financially,'' said Bradford Berenson, a white-collar crime specialist at the Sidley Austin law firm in Washington and a former White House lawyer for President George W. Bush. "An overall estimate of $10 million for this whole mess is not unreasonable.''
Though he spent almost five years working in the White House, Libby, 56, is still wealthy from his days as a private attorney. A federal ethics form he filed in 2005 after his indictment and resignation shows his investments valued somewhere between $6 million and $18.5 million....
Libby is represented by three main attorneys: Wells of the New York-based Paul, Weiss, Rifkind, Wharton & Garrison firm; William Jeffress of Baker Botts in Washington; and San Francisco attorney John Cline of Jones Day. There have been about a dozen lawyers working on the case and attending the trial.
Wells, in an e-mail, declined to comment on fees for the case. He said the legal team will continue to represent Libby in the appeals process. Meanwhile, Libby's fundraisers, by necessity, will pick up the pace. Said Washington defense attorney Victoria Toensing: "Not many people have seven figures sitting around in a bank account, particularly those that have been in government service for a long time.''
It is interesting to speculate, aided by hindsight, what it would of cost Libby to plead guilt months ago. He certainly would be in a better position for sentencing and economically. But, of course, I am poorly positioned professionally to complain about a lot of monies being paid to criminal lawyers. I like to be able to tell my students that not all criminal defense attorneys work for slave wages.
More AG heat from a judicial nemesis
I just got set this link to a new AP piece about the brouhaha surrounding the US Attorney purge and AG Gonzales. I though folks who follow sentencing debates would be interested in one particularly loud voice in the continuing debate:
Rep. James Sensenbrenner of Wisconsin, the senior Republican on the House Judiciary Committee, called the Justice Department's management dysfunctional for sending Principal Associate Deputy Attorney General Will Moschella to testify before the panel last week "without knowing all the facts."
"They're going to have to come up with some answers," Mr. Sensenbrenner said Tuesday in an interview with the Associated Press. "If they don't, they're going to lose everyone's confidence."
"What I'd like to hear is the truth," he said, complaining about the Justice Department's different explanations for the dismissals. If that record is not corrected, Sensenbrenner said, "then the Justice Department and the attorney general himself are going to die by a thousand cuts."
UPDATE: The WSJ Law Blog is already here taking suggestions for AG Gonzales' replacement. Some of my personal favorites on the amusing list are (perhaps in order of likelihood): Jim Comey, Orrin Hatch, Patrick Fitzgerald, Greta Van Susteren, Jackie Chiles, Lionel Hutz.
Notable Ninth Circuit sentencing ruling
Perhaps because tough cases are being help pending a SCOTUS decision in Claiborne and Rita (commentary here), there is precious little exciting circuit court Booker action lately. Nevertheless, the Ninth Circuit today issued a little ruling in US v. Zolp, No. 05-50882 (9th Cir. Mar. 13, 2007) (available here), that merits mention. Here's the opinion's first paragraph:
Defendant-appellant Marshall Zolp appeals the district court's sentence following his plea of guilty to federal securities fraud. Zolp challenges two aspects of his sentencing proceedings: (1) the district court's factual finding that the involved stock was "worthless" after the fraud came to light, and (2) the district court's decision to consider Zolp's cooperation only as part of the larger analysis under 18 U.S.C. § 3553(a) and not as part of the court's advisory guidelines calculation. On the first issue, we vacate and remand. On the second issue, we affirm.
Sex offender work restrictions in my backyard
The NIMBY ("not-in-my-backyard") phenomenon has risen to new heights in my own backyard: as detailed in this Columbus Dispatch article, a central Ohio community has "become the first city in Ohio — and one of just a few nationally — to limit not only where sexual offenders live, but also where they work." Here are more details:
Upper Arlington's new law would beef up current state law that bans sexual offenders from living within 1,000 feet of schools to encompass other areas. Then it tacks on a limit for working, as well. The new law bans offenders from living and working within 1,000 feet of not just schools, but also day-care centers, parks, playgrounds, swimming pools and libraries. The restricted areas cover about two-thirds of Upper Arlington.
Councilwoman Linda Mauger made a motion to strike the employment restriction altogether, saying, "I would rather see that money put into education and enforcement." And Councilman Donald B. Leach Jr., another critic of the work restriction, said research has shown that such laws are "neither effective nor enforceable." Councilman Timothy S. Rankin, the law's sponsor, countered: "I’m convinced this law is definitely enforceable and will be enforced."
No details were given concerning how the law will be enforced. Council President Edward F. Seidel Jr. said it's up to police and the city attorney to work it out. There was no discussion about jobs such as pizza-delivery drivers and gas-meter readers, whose jobs might not be located in the city but bring them into Upper Arlington. The law does say that the restriction applies to anyone who works either seven consecutive days in Upper Arlington, or 30 times over a year....
Two states, Alabama and Georgia, and a small number of cities nationwide currently prohibit offenders from working or living within their boundaries. Brenda Schwandt, president of the Upper Arlington Chamber of Commerce, said eight people responded to a recent e-mail survey of 481 businesses in and near the city concerning the new law. The chamber voted last week to not take a stand on the issue, she said....
Before the meeting, Grandview Heights Councilman Stephen Von Jasinski asked where banned Upper Arlington laborers will end up. "It sounds like everyone wants them to be in somebody else’s backyard and not their own," he said. "I don't know why Grandview should be the recipient of all the employees Upper Arlington may not want." Being small, Grandview Heights is largely already covered by state law that prohibits predators living within 1,000 feet of schools. Von Jasinski also worries about the competitive response by neighboring communities. "You're literally saying people have no right to be anywhere when you take this to the full extent of the law. "When do we create that leper island and just throw that key away?"
Any reader thoughts about the constitutionality and/or likely efficacy of this sex offender work restriction? Anyone think the Supreme Court will have to weigh in on the constitutionality of (and possible limits on) all the sex offender restrictions sooner rather than later?
UPDATE: Corey Yung at Sex Crimes has taken up these matters in this thoughtful post.
Make-or-break week for Ohio's death penalty
After new Governor Ted Strickland issued an initial set of reprieves back in January (details here and here), Ohio is scheduled to have its first execution under its new executive administration a week from today. Significantly, Gov. Strickland is scheduled to give his first State-of-the-State address at noon tomorrow, and ODPI notes here that rumors are spreading about a possible statement regarding Ohio's death penalty during this address.
As I have suggested before, I think Ohio serves as an important bell-weather state is the ever-evolving debate over the death penalty. I am very eager to see (1) if Gov. Strickland — who might well have national political aspirations — might do something bold in this arena, and (2) the local and national political reactions if he does.
UPDATE: ODPI has more coverage here of what might be expected in Gov. Strickland's first State-of-the-State address, including a link to a local article in which Strickland indicates that, in his developing budget plans, "he has found 'a few ways to save significant sums of money' and 'lots of ways to save small amounts of money.'" It strikes me that a move away from a litigation-heavy punishment like the death penalty might be a way to save at least a small amount of Ohio's money.
What's the real-world fall-out of the US Attorney purge?
As detailed in this New York Times article, the "White House was deeply involved in the decision late last year to dismiss federal prosecutors, including some who had been criticized by Republican lawmakers." As this story continues to have legs, I continue to wonder if it has any direct or indirect impact in the day-to-day operation of the federal criminal justice system.
I would be eager for readers to use the comments to indicate whether they have seen any tangible change in the behavior or attitudes of federal prosecutors since this story broke. I often suspect that whenever the actions of Main Justice gives federal prosecutors a black eye, assistant US Attorneys feel the impact when walking into court and seeking the respect of, and pro-government rulings from, their local federal judge.
Can anyone report whether there is some real on-the-ground blow-back from the US Attorney purging story?
March 12, 2007
Putting the Libby pardon debate (and the crack sentencing debate) in context
This Bloomberg commentary by Ann Woolner, entitled "Libby's Case Tests Bush's Parsimony With Pardons," provides lots of valuable context for all the Libby pardon talk and also the debate over crack sentencing terms in the federal system. Here are snippets:
Willie Mays Aikens, 52, has done a lot of things in his life. In 1980 he hit two home runs in each of two World Series games, giving the Kansas City Royals their first Series win and himself a place in baseball's Hall of Fame. He later took up illegal drugs, became addicted to crack and pleaded guilty to trying to buy it in 1983. Another drug conviction in 1994, for selling 63 grams of crack, sent him away for 20 years.
He would have been freed long ago if the cocaine had been powder, but he's in the Atlanta federal penitentiary more than 12 years later. President Bill Clinton turned him down for a pardon. So did President George W. Bush. His lawyer, Margaret Love, is still trying. In the meantime, she says, she won't mind if Bush pardons Lewis "Scooter"' Libby, whose perjury and obstruction of justice convictions ignited speculation that the president will spare him from prison. "If pardoning Libby resulted in a more generous exercise of the power for ordinary people, then I would certainly favor it,'' Love said in a telephone interview from Washington.
So far, Bush has been the least forgiving of any president in almost 200 years. Not since Thomas Jefferson has a president exercised the power to pardon so rarely. In six years, Bush has granted 113 petitions for pardons or commutations of sentence, or fewer than 19 a year on average. In this arena, Bush broke his father's record for parsimony, however narrowly. During his four years as president, George H.W. Bush granted 77 petitions. Six of them were for members of his own administration....
The list of the forgiven over the years is 28,500 names long. A Puerto Rican nationalist who tried to kill President Harry Truman won clemency, and so did the physician who helped Abraham Lincoln's assassin escape, Samuel Mudd. Yankees owner George Steinbrenner was pardoned for illegally contributing to the campaign of Richard Nixon, who was himself pardoned before he was even charged with the Watergate crimes that sent many of his aides to prison. George Washington forgave insurrectionists in the Whiskey Rebellion. Andrew Johnson pardoned Confederate rebels. And Jimmy Carter granted amnesty to those who dodged the Vietnam War draft....
Some 1,000 people betting through an online futures market are giving Libby a 62 percent chance of getting a pardon before Bush's term is out, according to John Delaney, who runs Intrade.com. The Washington Post column "In the Loop" has a contest going in which readers can predict the date of the pardon. Love herself has entered. She picked Dec. 24, 2008, when, like his father 16 years earlier, Bush will be headed out the door. Elections will be over, and the generosity of the season will be at full height. Unless Bush intervenes, Aikens will still have years to serve.
The Sentencing Project has this page providing more background on Willie Mays Aikens' sad story. Among other details, the page includes a link to this letter from baseball Hall of Famer Cal Ripken, Jr. urging the Pardons Attorney at the Department of Justice to endorse clemency for Aikens.
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Why true liberals ought to embrace Parker
As suggested in this post, I think the DC Circuit's blockbuster opinion in Parker (available here), which finds part of DC's gun laws violate an individual's Second Amendment rights, should be embraced by any fan of individual liberties. These comments by Clark Neily, an attorney for the plaintiffs in Parker in this NRO mini-symposium, effectively reinforces my basic take on the case:
I subscribe to the currently unfashionable view that the Founding Fathers envisioned a sea of liberty with islands of government power — not the reverse. It is my hope that the Parker lawsuit will not only vindicate the right of law-abiding citizens to possess functional firearms in their homes, but that it will remind conservatives, in particular, about the excesses of majoritarianism and the critical role of judges in combating it.
As a constitutional litigator, I am troubled by the ascendancy of so-called "judicial minimalism" among both liberal and conservative jurists. Following the Supreme Court's appalling Kelo decision, for example, it was dismaying to see conservative bloggers like Jonathan Adler and John Hinderaker (and even the iconic Judge Alex Kozinski) supporting the liberal justices' view that courts should interpret the public use clause of the Fifth Amendment as imposing no meaningful limits on government's power to redistribute private property.
In federal courts today, there is a presumption of government power, not liberty. I think that's exactly backwards. Many conservatives will embrace Parker because it vindicates a freedom they hold dear. If it reacquaints them with the important role of judges in protecting liberty and containing government power, so much the better.
— Clark Neily is an attorney at a Washington, D.C.-area public interest law firm. In his private capacity he is co-counsel for the plaintiffs in Parker v. District of Columbia.
I often view severe and extreme gun laws in the same way I view severe and extreme drug laws and/or severe and extreme consentual sex laws: as a means for governments to (over)regulate potentially (but not always) risky behavior that some people just do not like. I am all for effective regulation of significant risks — which is why I favor tough sentences for drunk driving — but I think severe and extreme laws to combat only potential risks is a very dangerous way to structure government power.
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The limits of electronic monitoring
Perhaps it is a lack of sleep that is drawing me to the more sensational stories today, such as this one from the AP spotlight the limits of one particular form of technocorrections:
An accused child molester cut off his electronic monitoring bracelet, then took a limousine to Chicago to appear on "The Jerry Springer Show," authorities said.
A judge set bail Friday at $50,000 for Mario Sims, 21, who had been awaiting trial on 2004 charges of child enticement and first-degree sexual assault of a child.... "A significant bond is legally necessary given the fact he absconded, admittedly for one of the more unique reasons I’ve heard in my time on the bench," the judge said.
True sentencing March Madness
Today is, of course, the start of NCAA bracket week around the nation. (If you are looking for new bracket rackets, check out bracketscience.com.) Besides being pleased that my Buckeyes looked strong winning the Big 10 tourney and got a well-deserved #1 seed, I am thinking about what standard to use for my traditional "wacky bracket."
Every year, in addition to some completing a few serious brackets, I always fill out one bracket by applying some wacky selection rule. (For example, one year I always selected the school geographically closer to the city that shares a name with one of my kids.) Tellingly, my "wacky bracket" often out-performs some of my serious brackets.
For true sentencing geeks like me, on-going sentencing debates provide great "wacky bracket" opportunities. For example, death penalty abolitionists can select schools from jurisdictions without the death penalty or states struggling with lethal injection protocols. (Picking only abolitionist jurisdictions might lead to a Wisconsin-Georgetown final game, whereas a lethal injection approach could set up a Florida-North Carolina final.) Similarly, non-capital sentencing gurus might favor states most impacted by Blakely over those less impacted by Blakely. This approach could set up a UCLA-Ohio State final or maybe a Blakely ground-zero match-up of Washington State-Gonzaga.
Egyptian blogger sentence upheld
I rarely cover international sentencing developments, but this AP story cuts close to home:
An Egyptian appeals court on Monday upheld the four-year prison sentence given to an Egyptian blogger who criticized conservative Muslims and was convicted of insulting Islam and Egypt's president, court officials said. Abdel Kareem Nabil's sentence last month had been widely condemned by local and international rights groups as a bid to curb free expression.
Nabil, a 22-year-old former student at Cairo's Al-Azhar University, had been sentenced to three years in prison for insulting Islam, the Prophet Muhammad and inciting sectarian strife, and another year for insulting President Hosni Mubarak.
Here's hoping embattled AG Gonzales does not get any ideas.
Are better crack sentences on the horizon?
This USA Today article, entitled "Lawmakers consider lessening crack penalties," provides some encouraging news for those hoping for congressional action on crack sentencing. Here are a few details:
Momentum is building in Congress to ease crack cocaine sentencing guidelines, which the American Civil Liberties Union and other critics say have filled prisons with low-level drug dealers and addicts whose punishments were much worse than their crimes.
Federal prison sentences for possessing or selling crack have far exceeded those for powder cocaine for two decades. House Crime Subcommittee chairman Robert Scott, D-Va., a longtime critic of such sentencing policies, plans to hold hearings on crack sentences this year. In the Senate, Republican Jeff Sessions of Alabama is drawing bipartisan support for his proposal to ease crack sentences. "I believe that as a matter of law enforcement and good public policy that crack cocaine sentences are too heavy and can't be justified," Sessions says. "People don't want us to be soft on crime, but I think we ought to make the law more rational."...
Sessions' bill would lessen the sentencing disparity by increasing punishments for powder cocaine and decreasing them for crack. Crimes involving crack would still draw stiffer sentences, but the difference would not be as dramatic. The bill has drawn support from Democratic Sen. Ken Salazar, a former state attorney general from Colorado, Democratic Sen. Mark Pryor, a former state attorney general from Arkansas, and Republican Sen. John Cornyn, a former Texas Supreme Court justice and attorney general. In the House of Representatives, two bills calling for Congress to equalize the sentences for powder cocaine and crack were filed in January.
"We're going to address all the mandatory minimums," said Scott, chairman of the House Judiciary Committee's Subcommittee on Crime, Terrorism and Homeland Security. "The crack cocaine is probably the most egregious because of its draconian number of years for relatively small amounts." Opposition to weaker sentences has come from police, prosecutors and law enforcement agencies such as the Justice Department and the Drug Enforcement Administration.
UPDATE: Marc Mauer and Kara Gotsch of The Sentencing Project have this new commentary, entitled "Seeking Justice In The Drug War," that calls for congressional action on crack sentencing. Here is the final paragraph:
With champions for criminal justice reform like Rep. John Conyers,D-Mich., and Senator Patrick Leahy, D-Vt., heading the judiciary committees in Congress, the opportunity to redress the misguided crack sentencing policy is upon us. Hearings before both committees are long overdue in this arena and would provide the necessary evidence to dispel the misinformation and hysteria that clouded the public debate on crack cocaine in the past. These myths have done a disservice to developing responsible drug policy, while exacerbating the tragic racial disparities that plague our prison system. Now is the time for congressional attention and action.
March 11, 2007
Second Amendment, gun enhancements, constitutional doubt and Angelos
I have just read the DC Circuit's blockbuster opinion in Parker (available here), which holds that the District of Columbia's gun control laws violate an individual's Second Amendment rights (first noted here). As Jeralyn at TalkLeft spotlights here, any fan of individual liberties ought to be a fan of Parker. And, as Eugene Volokh spotlights here, it will be intriguing to watch how Parker plays out politically in the months ahead. (I am wondering if any leading Democratic nominee will be smart enough to embrace Parker or if any leading Republican nominee be foolish enough to condemn it.)
Of course, I read Parker with an eye on sentencing issues, particularly wondering what Parker could mean for some sentencing enhancements if courts were to seriously enforce the right of "keeping a handgun in the home" recognized in Parker. Specifically, in the wake of Parker, defendants facing sentencing enhancements based on having guns in their homes likely can and should raise constitutional objections based on the Second Amendment. And courts, applying constitutional doubt doctrines, probably should now be more cautious about broad applications of sentencing enhancements based on having guns in the home.
The notable case that came to mind as I thought about these issues is the case of Weldon Angelos (basics here, early commentary here and here). As I recall, one of 25-year sentence enhancements in the Angelos was premised solely on guns found in Weldon's home. If Weldon Angelos had an individual Second Amendment right to keep these guns in his home, isn't the 25-year sentence enhancement he endured as a result of exercising this right constitutionally suspect?
UPDATE: The folks at The Volokh Conspiracy have taken up this issue and provide a lot of on-point analysis here and here. I generally share the view that Second Amendment arguments against gun sentence enhancements still face an uphill battle, but that reality should not prevent counsel from raising these issues (and courts from addressing these issues head-on).
A Libby pardon and DOJ guidelines
A helpful reader pointed me to this effective Newsweek article spotlighting that President Bush would have to skirt the Justice Department's internal guidelines in order to grant Lewis Libby a pardon. Here is a snippet from the piece:
[T]here's one significant roadblock on the path to Libby's salvation: Vice President Dick Cheney's former chief of staff does not qualify to even be considered for a presidential pardon under Justice Department guidelines.
From the day he took office, Bush seems to have followed those guidelines religiously. He's taken an exceedingly stingy approach to pardons, granting only 113 in six years, mostly for relatively minor fraud, embezzlement and drug cases dating back more than two decades. Bush's pardons are "fewer than any president in 100 years," according to Margaret Love, former pardon attorney at the Justice Department.
Following the furor over President Bill Clinton's last-minute pardon of fugitive financier Marc Rich (among others), Bush made it clear he wasn’t interested in granting many pardons. "We were basically told [by then White House counsel and now Attorney General Alberto Gonzales] that there weren’t going to be pardons — or if there were, there would be very few," recalls one former White House lawyer who asked not to be identified talking about internal matters.
The president has since indicated he intended to go by the book in granting what few pardons he'd hand out — considering only requests that had first been reviewed by the Justice Department under a series of publicly available guidelines. Those regulations, which are discussed on the Justice Department Web site, would seem to make a Libby pardon a nonstarter in George W. Bush's White House. They "require a petitioner to wait a period of at least five years after conviction or release from confinement (whichever is later) before filing a pardon application," according to the Justice Web site. Moreover, in weighing whether to recommend a pardon, U.S. attorneys are supposed to consider whether an applicant is remorseful. "The extent to which a petitioner has accepted responsibility for his or her criminal conduct and made restitution to ... victims are important considerations. A petitioner should be genuinely desirous of forgiveness rather than vindication," the Justice Web site states.
Of course, there is nothing that requires Bush to follow these guidelines in reviewing a pardon for Libby (whose lawyer, Ted Wells, stated on the courthouse steps Tuesday that he intended to push for a retrial, adding that he has "every confidence that Mr. Libby will be vindicated.") As Love, the former pardon attorney, points out, "the president can do whatever he wants."
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NY Times urging ouster of AG Gonzales
The New York Times today has this editorial, entitled "The Failed Attorney General," which urges President Bush to dismiss AG Alberto Gonzales. Here is how it begins:
During the hearing on his nomination as attorney general, Alberto Gonzales said he understood the difference between the job he held — President Bush's in-house lawyer — and the job he wanted, which was to represent all Americans as their chief law enforcement officer and a key defender of the Constitution. Two years later, it is obvious Mr. Gonzales does not have a clue about the difference.