March 24, 2007
Politics and the war on drugs
Today's Los Angeles Times has this strong op-ed by Arianna Huffington entitled "The war on drugs' war on minorities: Democratic presidential candidates crave the Latino and black vote, but ignore the Drug War's unfair toll on people of color." Here are some snippets:
There is a subject being forgotten in the 2008 Democratic race for the White House. While all the major candidates are vying for the black and Latino vote, they are completely ignoring one of the most pressing issues affecting those constituencies: the failed "war on drugs" — a war that has morphed into a war on people of color....
[A] quick search of the top Democratic hopefuls' websites reveals that not one of them — not Hillary Clinton, not Barack Obama, not John Edwards, not Joe Biden, not Chris Dodd, not Bill Richardson — even mentions the drug war, let alone offers any solutions. The silence coming from Clinton and Obama is particularly deafening....
Because of disenfranchisement statutes, large numbers of black men who were convicted of drug crimes are ineligible to vote, even those who have fully paid their debt to society.
A 2000 study found that 1.4 million African American men — 13% of the total black male population — were unable to vote in the 2000 election because of state laws barring felons access to the polls. In Florida, one in three black men is permanently disqualified from voting. Think that might have made a difference in the 2000 race?
Our shortsighted drug laws have become the 21st century manifestation of Jim Crow. Shouldn't this be an issue Democratic presidential candidates deem worthy of their attention?
Some related posts:
- Will sentencing issues surface in the Clinton-Obama battle for black votes?
- Clinton and Obama, crime and punishment
- Racial disparity and sentencing reform
- New (depressing) report on race and increased incarceration
- Drugs and racial discrimination
Major new report on incarceration of kids as adults
Thanks to this post at TalkLeft, I see that the Justice Policy Institute has helped produce an important new report on the incarceration of youth in adult prisons. The report is entitled, "The Consequences Aren’t Minor: The Impact of Trying Youth as Adults and Strategies for Reform," and is available at this link. This summary comes from this press release:
The Consequences Aren’t Minor: The Impact of Trying Youth as Adults and Strategies for Reform presents research, statuary analysis, and case studies to highlight the problems with the policies and practices that treat young people as adults in the justice system. The study examines the laws and data in seven key states: California, Connecticut, Florida, Illinois, North Carolina, Virginia, and Wisconsin. An estimated two hundred thousand youth end up in the adult system each year, and 40 states allow or require the jailing of youth in adult facilities before they ever go to trial.
Youth prosecuted as adults are often held in adult jails for months or years, even though most are charged with nonviolent offenses, the report demonstrates.... Data shows that tens of thousands of young people end up in the adult system for non-violent offenses. In 2003, over half the youth in California’s adult system were prosecuted for misdemeanors and less than 30 percent received a prison sentence, suggesting that the majority of youth could be safely handled in the juvenile justice system. Of the 8,000 young people who enter Connecticut’s adult court system, the vast majority are arrested for non-violent offenses. In 2002 almost 14,000 17-year-olds were admitted to Wisconsin’s adult jails but only 15 percent of these youth were arrested for violent crimes.
March 23, 2007
FSR Issue on Claiborne and Rita
I have finally put the finishing touches on the Federal Sentencing Reporter's latest issue, which is entitled "Claiborne & Rita: Reasonableness Review in the Supreme Court." As the title suggests, this issue of FSR is focused primarily on the two post-Booker cases now pending before the Court. Here's a review of the contents:
- Douglas A. Berman, Claiborne and Rita — Booker Clean-up or Continued Confusion?
ARTICLES ON POST-BOOKER SENTENCING
- Frank O. Bowman, III, "The Question Is Which Is to Be Master—That's All": Cunningham, Claiborne, Rita, and the Sixth Amendment Muddle (available via SSRN here)
- Nancy Gertner, Thoughts on Reasonableness
- Carissa Byrne Hessick & F. Andrew Hessick, Rita, Claiborne, and the Courts of Appeals' Attachment to the Sentencing Guidelines (available via SSRN here)
- Alexandra A.E. Shapiro & Nathan H. Seltzer, Guidelines or Higher: NYCDL's Study of Reasonableness Review Patterns Reveals the Courts of Appeals' Aversion to Parsimony
- Regina Stone-Harris, How to Vary from the Federal Sentencing Guidelines Without Being Reversed
ARTICLES ON BROADER GUIDELINE OPERATION
- Lynn D. Lu, Prosecutorial Discretion and Racial Disparities in Federal Sentencing: Some Views of Former U.S. Attorneys
- John F. Pfaff, The Vitality of Voluntary Guidelines in the Wake of Blakely v. Washington: An Empirical Assessment
- Frederick H. Weisberg & Kim S. Hunt, Voluntary Sentencing Guidelines in the District of Columbia: Results of the Pilot Program
Other recent FSR issues on Blakely, Booker and federal sentencing dynamics:
- FSR Issue 18.5: Toward Real Reform: The Constitution Project Recommendations; Model Federal Sentencing Guidelines
- FSR Issue 18.4: Sentencing at the Supreme Court
- FSR Issue 18.3: Taking Stock a Year after Booker
- FSR Issue 18.2: Defense Perspectives on the Post-Booker World
- FSR Issue 18.1: State of Blakely in the States
- FSR Issue 17.5: Is a Booker Fix Needed?
A decade of Ohio sentencing reform
To mark what is roughly the 10-year anniversary of sentencing reform in Ohio, the Ohio Criminal Sentencing Commission has created a terrific primer fittingly entitled "A Decade of Sentencing Reform." Though focused exclusively on Ohio developments, the report covers an array of topics that should be of interest to all students of modern sentencing reforms. This report can be downloaded here: Download ohio_decade_of_sentencing_reform.doc
Busy sentencing times around the circuits
Though I surmise some sentencing work in the circuits is on hold as SCOTUS sorts through Claiborne and Rita, a quick tour of circuit websites reveals that parts of the sentencing show must still go on. In fact, I have seen notable opinions covering sentencing issues today from the DC, First, Third, Sixth, Seventh and Eighth Circuits. Here are the two items in today's released opinions that really caught my attention:
1. Criminal history fans will want to check out the DC Circuit's work in US v. Andrews, No. 03-3030 (DC Cir. Mar. 23, 2007) (available here), which is another case debating what constitutes a "crime of violence" and has a long thoughtful concurrence by Judge Williams.
2. Booker fans will want to check out the Sixth Circuit's (unpublished) work in US v. Kosinki, No. 05-2664 (6th Cir. Mar. 22, 2007) (available here), which reviews lots of post-Booker basics, but then makes this not-so-basic assertion about the scope of post-Booker discretion when ordering resentencing:
[T]he district court has discretion to calculate and consider the tax loss amount for sentencing purposes provided that 1) the district court does not consider itself required to do so, and 2) as long as the calculation is based on reliable information and supported by a preponderance of the evidence. See United States v. Yagar, 404 F.3d 967, 972 (6th Cir. 2005).... [T]he district court may — but is not required to — calculate or consider Defendant's tax loss amount... (emphasis added)
A district judge sitting by designation, concurring in Kosinki, questions the Kosinki majority's suggestion here that a district court after Booker has discretion not to calculate a loss integral to determining the applicable guideline range. A helpful reader pointed me to this potentially important (though unpublished) decision. A district judge in the Sixth Circuit might now point to Kosinki to support a decision not to bother working through particular guideline intricacies in a particular case.
On Fisher's ability to hook Justice Scalia
The ABA e-Journal has this great new piece discussing Jeff Fisher's ability in both Crawford and Blakely to connect Justice Scalia and the Supreme Court's liberal wing to develop new rights for criminal defendants. The piece is entitled "A Sixth Sense About Criminal Trials: A young litigator unites Justice Scalia and the court's liberals over defendants' rights," and here are parts of a great article:
Fisher aimed his pitch right [in Crawford] at Scalia's jurisprudential wheelhouse: an originalist theory of constitutional law, a duty to the Constitution's text, and an adherence to bright-line rules. Add for good measure a reverence of 18th century colonial history. For Scalia, originalism says that the Constitution's founders meant what they said and said what they meant. So the court must be faithful 100 percent....
"When it comes to having a jury or witness confrontation or lawyer you pick, it's all or nothing," says University of Pennsylvania law professor Stephanos Bibas, who writes frequently about criminal procedure issues. That meant that in Crawford the court scuttled its long-held test for admitting out-of-court statements, a balancing formula that measured a statement's reliability....
For Scalia, few things grate more abrasively than balancing tests.... "Balancing tests are great if the judiciary shares your values," Fisher says. "As soon as the judiciary doesn't share your values, you need hard-and-fast rules."
Courts, including the Supreme Court, increasingly have favored the prosecution through the 1980s and '90s, says Fisher. "Most federal judges come from the prosecution side," he says. The consequence has been a series of setbacks for the criminal defense bar and for those judges and justices who favor defendants' rights.... "Liberals need not run from constitutional text. They can embrace it."
Scalia’s originalism also speaks to his faith in juries, according to Bibas, and for that the justice relies on colonial history. "The founding generation trusted juries, and not judges, in part because King George III had pressured judges and used them to oppress the colonies," Bibas says. For Scalia, the jury is nothing short of democracy itself — “the spinal column of American democracy,” he wrote in a 1999 case, Neder v. United States, 527 U.S. 1.
High-profile attack on acquitted conduct
Today's New York Sun has this article by Josh Gerstein, entitled "Al-Arian Asks Supreme Court To Overturn His Sentence," which spotlights a high-profile cert petition raise complains about a claimed sentence increase based on acquitted conduct. Here are details:
A Florida college professor who pleaded guilty to a charge of providing services to Palestinian Islamic Jihad, Sami Al-Arian, is asking the Supreme Court to overturn his 57-month prison sentence.
In a petition filed earlier this month, a lawyer for Al-Arian argued that the judge improperly punished the former University of South Florida professor for conduct that a jury acquitted him of during a six-month trial in 2005. "The record of the … sentencing hearing unambiguously demonstrates that the sentencing court did hold ‘acquitted conduct' against the defendant, to justify extending his incarceration for nearly a year," Al-Arian's attorney, C. Peter Erlinder, wrote. "It is difficult to imagine a clearer case for the need for protection against judicial hubris."
I am quoted in the article saying that SCOTUS should take up the issue of acquitted conduct sentence increases. But, as I also said to Josh Gerstein, the facts of the Al-Arian case may not present the best vehicle for the Justices to examine this issue.
Some recent posts on acquitted conduct sentence increases:
More of the costs of a capital case
The Atlanta Journal-Constitution today has this intrigung article that, along with the graphic shown here, seeks to details all the costs of the death penalty prosecution of courthouse killer Brian Nichols. Here is how it starts and some additional details:
Sparks fly over the multimillion-dollar defense of Brian Nichols, but few people complain about the cost of prosecuting the accused courthouse killer. In fact, no one even knows the bottom line. But the Nichols prosecution is running up a hefty tab of its own, a review of court filings, personnel and other information obtained through the Georgia Open Records Act shows.
Some legal experts predict police and prosecutors will spend twice as much — $4 million or more — as the defense by trial's end. The spending does not stop there. Other court expenses, including jury costs and the paychecks of the judge and courtroom security, could top $1 million....
The $82.5 million spent to investigate and prosecute Oklahoma City bombers Timothy McVeigh and Terry Nichols is believed to be a record. Defending McVeigh, who was executed for the 1995 attack that left 168 dead, cost more than $13 million.
Richard Burr, one of McVeigh's lawyers, said the defense team reached 14 lawyers plus six investigators and a number of paralegals. They had to sift through almost 500,000 pages of documents, he said. The cost of the defense is directly proportionate to the cost and the extent of the prosecution," Burr said. "The more work they do and the more resources they use, there has to be a corresponding response by the defense. That said, the defense resources never come close to the prosecution's."
Burr estimated the Nichols prosecution will cost two to three times more than his defense.
Some related posts:
HLR case comment on crack ruling
I noted a great Harvard Law Review note on lethal injection litigation here, and now I have the opportunity to spotlight a great forthcoming HLR casenote on US v. Spears, the Eighth Circuit post-Booker crack ruling. The casenote can be downloaded below, and here is a snippet:
Recently, in United States v. Spears, the Eighth Circuit ruled that it was impermissible for a district judge to grant a reduced sentence to a crack offender based on categorical disagreement with the ratio. This decision relied on questionable conclusions about Congress’s intent regarding both the 100:1 ratio and the place of judicial policy choices in a post-Booker world, and its result cabins judges into a cramped and counterproductive role in the sentencing of crack offenders.
How 'bout them Buckeyes!
March 22, 2007
Fifth Circuit gives short shrift to effort to do crack sentencing justice
In a brief per curiam opinion today in US v. Leatch, No. 06-10526 (5th Cir. Mar. 22, 2007) (available here), the Fifth Circuit follows the misguided herd of other circuits on post-Booker crack sentencing by holding that "a sentencing court may not deviate from the 100:1 crack-powder ratio based solely upon its belief that the policies underpinning that sentencing regime are misguided or unfair." I have explained at length in many prior posts (see, e.g., here and here) why I view this kind of ruling seems so substantively misguided.
Rather than replay my core substantive concerns with the Leatch ruling, let me spotlight some other worries:
1. Why decide this case now rather than await the Supreme Court's direction in Claiborne? As discussed here, apparently numerous circuit courts have decided to hold certain cases in abeyance pending Claiborne's resolution. Leatch would seem especially worthy of holding.
2. In the Claiborne oral argument, Justice Breyer said explicitly "one big power a judge has that they didn't have before, after Booker, is to say the guideline itself is unreasonable." Claiborne transcript at 31. And the Deputy SG also essentially conceded this point during the argument. In light of the SG's concession on Claiborne, the government arguably ought to now dispute the outcome in Leatch.
Feds moving to reduce Abramoff's sentence for cooperation
As all participants in the federal sentencing system know, the best rats always eventually get fed some sentence-reduction cheese. And today, as detailed in this AP story, the high-profile cooperator making headlines is Jack Abramoff. Here are the basics:
Federal prosecutors took the first steps toward reducing the prison sentence of former Washington lobbyist Jack Abramoff, currently scheduled for release in 2011 for a Florida fraud conviction. Documents filed in federal court say Abramoff has provided "substantial assistance" in a separate Washington corruption scandal investigation and continues to work with investigators from his prison cell in Cumberland, Md.
Assistant U.S. Attorney Paul F. Schwartz did not recommend how much Abramoff's sentence should be cut. In the court papers filed Wednesday, Schwartz said prosecutors would recommend a reduction in his sentence and would file further documents describing the "nature, extent and value" of his cooperation
Lots of interesting stuff at SSRN
Here are just some of the interesting-looking new papers I spotted on SSRN for adding to my always growing "to read" pile:
- And Unusual: Examining the Forgotten Prong of the Eighth Amendment by Joshua Lane Shapiro
- From the Asylum to the Prison: Rethinking the Incarceration Revolution - Part II: State Level Analysis by Bernard E. Harcourt
- How Privatization Thinks by Sharon Dolovich
- Shame and the Meanings of Punishment by Chad Flanders
Judge Cassell laments limits of federal restitution
District Judge Paul Cassell issued an interesting opinion yesterday that seeks to explain why the current federal restitution statutes unduly limit the power for federal judges to make crime victims whole. Here is the first paragraph of US v. Garcia, No. 2:05-CR-00827 (D. Utah Mar. 21, 2007) (available for download below):
This case illustrates the need to reform our federal restitution statutes. Defendant Ruby Garcia assumed the identity of a victim (who will be called “H.F.” here) by ordering credit cards in H.F.’s name. Ms. Garcia then ran up thousands of dollars in charges on these and other cards. While Ms. Garcia was quickly caught, the damage to H.F. was substantial. Although she was not liable for charges on the cards (the banks involved suffered that loss), it took H.F. considerable time and emotional energy to clear her credit. Because H.F. is, in her words, “a working mother and wife,” time is “the most precious thing [she] has.” Yet the court is without power to order any restitution for her lost time — in other words, the court is powerless to make H.F. whole for her losses from the crime committed against her. Because the court’s inability to provide full restitution here is a recurring problem, a short opinion describing the problem is appropriate.
Confronting the costs of capital punishment
This New York Times article discusses how a high-profile Georgia case is forcing folks in the state to appreciate and contemplate the economic costs of a capital punishment system. Here are snippets:
A high-profile multiple-murder case has drained the budget of Georgia's public defender system and brought all but a handful of its 72 capital cases to a standstill.
The case involves a rape suspect, Brian Nichols, who is accused of escaping from a courthouse here in 2005 after overpowering a guard, taking her gun and then killing a judge, a court reporter and two other people before he was recaptured. Prosecutors say the evidence against Mr. Nichols, including a videotaped confession, is overwhelming. But the case has cost the public defender system $1.4 million, and, on Wednesday, the judge in the case postponed jury selection until Sept. 10.
The judge, Hilton Fuller, said the "issue of funding" and the "complexities of this case have prevented an orderly and uninterrupted" method of proceeding. The Georgia Public Defender Standards Council, which manages the public defender system, has run out of money....
The situation has become a political issue as the legislature weighs a request for $9.5 million to keep the public defender system solvent through the fiscal year, which ends in June. The case "is testing the will of the state of Georgia with regard to whether or not the death penalty is worth the amount it costs," said Mike Mears, director of the standards council.
Georgia is not the only state pondering the cost of defending suspects in death-penalty cases. This year, the Colorado House Judiciary Committee voted to abolish the death penalty, replacing it with a sentence of life without parole, and to use the money currently spent on capital punishment to help solve some 1,200 cold-case homicides. The bill's sponsor, Representative Paul Weissmann, a Democrat, said it had cost the state $40 million in three decades to execute one inmate and put two others on death row. The bill now goes to the House Appropriations Committee. In Arizona, Maricopa County, which has been overwhelmed by a surge in capital cases, may not seek the death penalty in some cases to save money, officials there said....
Mr. Nichols has offered to plead guilty to all charges in exchange for a sentence of life without parole, but Paul Howard, the Fulton County district attorney, has refused to take the death penalty off the table. "The Nichols case could have been ended millions of dollars ago if the D.A. had been prepared to accept life without parole," said Emmet J. Bondurant, the departing chairman of the Public Defender Standards Council. "You can’t fault the defense for trying as hard as they can to save a man's life."
Some related posts:
March 21, 2007
Will Texas execute a woman next month?
The Death Penalty Information Center now has new coverage on its homepage of the case of Cathy Henderson who "is scheduled to be executed in Texas on April 18 for the 1994 murder of Brandon Baugh, an infant she was babysitting." As detailed here and in this television segment, since her arrest "Henderson has maintained that the child's death was accidental." Henderson claims that she dropped the baby, fracturing his skull, and then panicked and fled (after burying the body).
As noted here, Texas is the one state still in the execution business these days. (DPIC details here that 9 of the 10 US executions in 2007 have been in Texas.) But Henderson does have a clemency petition pending, and her intriguing "partial innocence" claim might provide a basis for some executive sympathy. More generally, as DPIC covers here, only 11 of 1067 executed persons in the modern capital era have been women (and I believe most of the executed women committed crimes arguably more heinous than Henderson).
Especially at a time when so many outside of Texas are questioning the death penalty, it will be very interesting to see how much and what kind of attention Henderson's case gets as her execution approaches.
Interesting death sentencing SCOTUS argument
This AP story provides some highlights of today's SCOTUS oral argument in Roper v. Weaver, which examines a range of issues surrounding a state prosecutor's provocative closing statements during the penalty phase of the capital trial. The official transcript, which is available at this link, is much more to read than yesterday's habeas hullabaloo in Fly v. Pliler (discussed here).
Sentencing job in Blakely's backyard
Any sentencing fan wanting to take their interests to a new level should consider applying for an exciting position now open in the land of Blakely. As detailed in the flier that can be downloaded below, the "Washington State Sentencing Guidelines Commission (SGC) located in the heart of the beautiful Pacific Northwest is seeking a dynamic, legal and legislative-minded Executive Director with technical, policy, managerial, and interpersonal skills."
Though I doubt this job pays quite what federal judges earn, I cannot imagine a more exciting opportunity for persons experienced in the field of sentencing. All the pertinent information about qualifications and application procedures can be found in the flier.
Great HLR note on lethal injection litigation
In this post a few months ago, I expressed my hope that other scholarly voices will start expounding balanced wisdom on all the lethal injection developments. I am now pleased to have discovered that a student at my alma mater has stepped up to the plate. Specifically, in the latest issues of the Harvard Law Review there is now this Note entitled "A New Test For Evaluating Eighth Amendment Challenges To Lethal Injections." The Note is too full of good insights to summarize, and so I'll just reprint the piece's conclusion:
The recent explosion of lethal injection litigation has left courts in a difficult situation. Eighth Amendment challenges to methods of execution are exceedingly difficult to adjudicate as a result of the vagueness of the existing tests and profound disagreement on how they should be applied. Lethal injection challenges are particularly problematic, requiring complex factual determinations and detailed remedies with almost no doctrinal guidance.
Courts should adopt a rule that accounts for both the objective measure of pain or risk associated with the procedure and the state's interest in choosing the procedure. Such a rule would be judicially manageable and consistent with Eighth Amendment precedent. But the onus should be on state executives and legislatures to craft improved protocols. Prompt action by the states would preclude potentially inappropriate judicially crafted remedies and ensure the successful administration of capital punishment.
Needless to say, this Note in especially timely in light of all the lethal injection mess in Ohio and elsewhere (basics here and here and here). Of course, I also like the piece because it is in harmony with my article last year on lethal injection developments for the Cato Supreme Court Review, entitled "Finding Bickel Gold in a Hill of Beans," in which I urged Congress and state legislators to do more to clean up the lethal injection mess.
YLJ Pocket Part on organizational sentencing
Continuing its strong work on covering sentencing issues, the latest installment of The Yale Law Journal's Pocket Part now has three short essays on the prosecution and sentencing of organizations. Here's a summary drawn from an e-mail I received from a helpful YLJ insider:
- The lead piece, by recent YLS grad Timothy Johnson, follows up his YLJ note by arguing that Booker's holding applies to the jury trial rights of organizations.
- Former DOJ lawyers Christopher Wray and Robert Hur respond in this piece; they argue that the organization guidelines have much less effect on corporate behavior than do the decisions of US Attorneys to initiate prosecutions, and they discuss the DOJ's efforts (most recently in the McNulty Memo) to make these charging decisions more transparent, consistent, and predictable.
- Professor Peter Henning adds in this response a call for the Organizational Guidelines to be abolished altogether: "the moment has arrived to put them to rest as a worthy effort whose time simply has passed."