March 28, 2007
California's continued struggles
California continues to struggle with its response to Cunningham and its on-going prison over-crowding problems. Here are two news accounts with new developments:
- As a response to Cunningham, "Assembly Approves Changes to California Sentencing Law"
- As a response to over-crowding, "Hold placed on bills that might swell prisons"
March 27, 2007
More on FSR issue on Claiborne and Rita
As detailed here, the Federal Sentencing Reporter's latest issue, entitled "Claiborne & Rita: Reasonableness Review in the Supreme Court," is focused on the two post-Booker cases now pending before the Court. The issue has now gone to press and will be available on-line here before long. My Editor's Observations, which I have made available for downloading below, previews some of the issue's themes. Here is a snippet:
This Issue of FSR ... seeks to provide both context and concepts for understanding the federal sentencing realities that may have prompted the Claiborne and Rita cert grants and that may impact the Court's decisions. The articles in this Issue, some of which directly address federal sentencing realities in Booker's wake and some of which address broader issues concerning the operation of guideline systems, provide varied perspectives on whether and how Claiborne and Rita could impact the current state and future direction of post-Booker federal sentencing.
The information, insights, and ideas in the articles that follow are not readily summarized. But all the pieces point to two broad themes that have potentially profound implications not only for Claiborne and Rita but also for the future of all structured sentencing efforts. One theme, which is most prominent in the articles by Professor Frank Bowman and Judge Nancy Gertner, is the difficulty of integrating the Supreme Court's Sixth Amendment jurisprudence and a judge-centered sentencing system. The other theme, which is particularly prominent in other articles in this Issue, is the difficulty of integrating formal sentencing doctrines and practical sentencing dynamics.
Time to register for the annual FSG seminar
Now is the time to sign up for the Sixteenth Annual National Seminar on the Federal Sentencing Guidelines, co-sponsored by the US Sentencing Commission and the Federal Bar Association, which takes place on May 23-25 in Salt Lake City, Utah. All the particulars of this exciting event are set out in this event brochure, which highlights that the Seminar presents an opportunity to commune with the entire sentencing commission, many staff, key judges, prosecutors, professors and others coping with post-Booker realities.
As detailed in the brochure, this Seminar brings together many folks who are really in-the-know about federal sentencing law and practice. I am honored to be moderating a great panel on "Guideline Departures & Variances Outside the Range under § 3553(a)." Though I doubt Claiborne and Rita will be decided by May, the event will be especially exciting if the Justices tell us more about what Booker means as we head to Utah.
Latest interesting Vienna Convention development
Over at SCOTUSblog, Lyle Denniston has this interesting report on the latest development in the long-running saga concerning the application of Vienna Convention rights in a set of capital cases from Texas. Here's the basics:
The Bush Administration, continuing its sturdy defense of presidential powers, has urged the Supreme Court to rule that President Bush had the authority to direct state courts to obey a decision of the World Court. In an amicus filing in the case of Medellin v. Texas (06-984) [available here], the government called for reversal of a Texas state court ruling that Bush did not have the power to ensure that state courts complied with the international tribunal's decision on the rights of foreign nationals arrested and prosecuted within the U.S. for crimes here.
The Vienna Convention on Consular Relations gives such individuals a right to meet with a diplomatic officer from his or her home country. The World Court (the International Court of Justice at the Hague) ruled that the U.S. government must take steps to assure that 51 Mexican nationals prosecuted in the U.S. had that right, despite state court rules that barred them from relying upon the Convention in challenging their convictions....
The government supports the appeal of Jose Ernesto Medellin, a Mexican national who was denied his consular access rights, and the Texas court found he had failed to raise that issue properly as his case unfolded in state court. Medellin's appeal to the Justices was filed on January 16.... Medellin's appeal is also supported by the Mexican government and by a group of law professors who are experts on World Court matters.
In the lower court ruling at issue, the Fifth Circuit Court decided that Medellin had defaulted in failing to raise the Convention issue at his trial and on appeal, and also decided that the Convention does not give an individual the right to seek its enforcement. The case has not yet been scheduled for a Conference of the Justices.
More on slow-poke SCOTUS
Though the Supreme Court issued two new opinions today (details here and here from SCOTUSblog), the Justices still have not resolved one case from its October sitting and a few from its November sitting (including the James case I am eagerly anticipating). And, picking up on the Court's slow pace, Bloomberg New has this new article entitled "Roberts's Supreme Court Falls Behind in Pace of Issuing Rulings." Here is the article's start:
As U.S. Supreme Court cases go, Global Crossing v. Metrophones, an administrative-law tussle over pay-phone fees, hardly looms as a landmark. That's why lawyers in the dispute are so puzzled that almost six months after hearing arguments, the court hasn't ruled.
The case has become a symbol of John Roberts's second year as chief justice, one in which the court has fallen well behind its typical schedule. Six months into the 2006-07 term, the justices have issued only 19 signed opinions, 12 fewer than at this point a year ago. "I don't remember the pace of opinions ever being this slow,'' said Roy Englert, a Washington lawyer who argued his first Supreme Court case in 1987 and represented Metrophones Telecommunications Inc. in the Oct. 10 pay-phone argument.
While the court may release more opinions today, the delays, coupled with an unusually large number of April arguments, mean the vast majority of rulings will come in the term's final three months. Still to be decided are potentially far-reaching cases on abortion, school integration, student free-speech rights and election spending.
Some recent related SCOTUS posts:
The crisis in criminal justice funding
The National Law Journal has this important new article entitled "Public Defenders, Prosecutors Face a Crisis in Funding." The story focuses on a few particular state systems, though it justifiably suggests that adequate funding is a nationwide problem:
A review by The National Law Journal shows that many public defender's offices across the country are strained beyond capacity or tipping into crisis. Inadequate funding has led to constant turnover, staff reductions and spiraling caseloads.
Litigation over poorly funded public defender systems are pending in Michigan and Louisiana. The problem has become so acute that in at least one jurisdiction, officials toyed with the idea of trimming back workweeks. New York attorneys, tired of inconsistent funding and a patchwork organization, are pushing this month to launch a statewide public defender system.
In some jurisdictions, prosecutor's offices are not much better off. While salaries are slightly higher, prosecutors in states across the country are seeing the same budgetary stalemates and rising caseloads as their defense colleagues. In one jurisdiction, prosecutors are thinking of unionizing to counteract the effect of static budgets and rising caseloads.
Virginia's governor vetoes capital expansion
As detailed in this Washington Post article, "Virginia Gov. Timothy M. Kaine, a Democrat who personally opposes the death penalty, vetoed yesterday a set of bills that would have increased the list of crimes eligible for capital punishment, including killing judges or witnesses." Here are more details:
I don't think we need to expand capital punishment in Virginia to protect human life and keep people safe," Kaine said. "It's just that simple." Republicans, meanwhile, are considering whether to attempt to override the vetoes during the General Assembly's one-day session April 4. Among the bills vetoed was one that would have revised the so-called triggerman law, which stipulates that only the person who pulls the trigger in a murder case may be eligible for execution. The revision would have included some accomplices.
NYTimes reentry editorial
Today's New York Times has this editorial discussing prisoner reentry issues. Here is how it begins:
With corrections costs going through the roof, states and localities are beginning to figure out the long-term costs of just shoving inmates out the door when their sentences are finished. To prevent people from ending up right back inside, states will need to embrace re-entry programs that provide ex-offenders with training, jobs, places to live and a range of social services that don’t exist in most places.
March 26, 2007
Justice Talking on the death penalty
First used in Texas in 1982, lethal injection is the method of execution now authorized in 37 of the 38 states that have the death penalty. But the recent botched execution of Angel Nieves Diaz in Florida raises new questions of whether the method violates the Eighth Amendment's prohibition against cruel and unusual punishment. Join us on this edition of Justice Talking as we take a new look at capital punishment and ask age-old questions about whether the death penalty is appropriate retribution for heinous crimes, whether it deters criminal activity and whether it can be administered in a fair and humane way.
Another AFDA webcast on Booker developments
I have been working again with Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), to again utilize the AFDA's cool Audio Webcast System. As detailed here, my second audio webcast is scheduled for this Tuesday (March 27) at 12noon EST.
The basic plan is to provide an "informal, 90-minute discussion covering key developments in federal sentencing." I expect to focus on what we might take away from the Claiborne and Rita arguments and other current legal and political realities surrounding federal sentencing these days.
Unlike other groups seeking big bucks for such webcasts, the AFDA only charges a nominal fee for participating and the webcast is made available free to all federal court personnel, federal public defenders, and full-time law professors and students. I am grateful to Greg and the AFDA for putting this event together, and I hope to continue participating in these sorts of user-friendly webcasts on a regular basis if it helps folks trying to sort out the post-Booker world.
Justices to look at child porn
It's hard to resist a provocative headline upon learning, from this SCOTUSblog post, that the Supreme has granted cert in US v. Williams (06-694), a case concerning "the constitutionality of a 2003 law passed by Congress to criminalize distribution of child pornographic materials." I do not know if there is a sentencing angle in Williams, but I suspect the buzz around this new SCOTUS case could impact debates over severe sentences for simply downloading child porn (such as the 200-year prison sentence given to former Phoenix high school teacher Morton Berger discussed here and here.)
Some possibly related posts:
- Arizona Supreme Court upholds 200-year sentence for possessing child porn
- What ever happened to state constitutional law, textualism, and libertarianism?
- More on the cert denied in Berger
- Intriguing child porn guideline ruling from Ninth Circuit
- On severe sex offender sentences
- Liberty versus security in the war on ... sex offenders
UPDATE: SCOTUSblog now has this further account of the child porn cert grant:
The case on pornography is U.S. v. Williams (06-694; cert. petition, reply). It involves the validity of the 2003 "PROTECT Act" that Congress passed to try to shore up federal controls on child porn after the Supreme Court struck down a 1996 federal law on the subject in Ashcroft v. Free Speech Coalition (2002). The PROTECT Act is separate from the law struck down last week by a federal judge in Philadelphia, involving a federal law that solely targets Internet distribution of sexually explicit materials in order to protect children with access to computers and other online devices.
Fodder for the legal blogosphere
Here are three Monday morning newspaper pieces that I suspect may produce some blogosphere buzzing:
- From the New York Sun here, "Obama's View of the Constitution Hinted in Article"
- From the New York Times here, ""In Alabama, Execution Without Representation"
- From the Washington Post here, "Justices Are of an Opinion, but Not Often"
All three pieces are great reads for lots of different reasons (e.g., the Sun article suggests law professors ought to be careful about thanking research assistants with political aspirations). I find the Post article interesting because it notes the slow SCOTUS pace that I highlighted here last week.
Fourth Circuit rules that troops should not be honored too much at sentencing
Thanks to this effective article in the Baltimore Sun, I see the Fourth Circuit last week in an unpublished opinion, US v. Medina, No. 05-5165 (4th Cir. Mar. 21, 2007) (available here), declared unreasonable a district court's decision to rely heavily on military service to justify a below-guideline sentence. Here are the basics from the Sun article:
After Jose Medina Jr. served 18 years in the Army, a federal judge in Baltimore wanted to honor his patriotism even after the war veteran committed a crime. Medina, a federal civil employee from Aberdeen, was caught with child pornography on his work computer in 2004 and later pleaded guilty to a single charge of possessing 10 images.
At his sentencing, the judge credited Medina substantially for his military service and imposed prison time well below recommended guidelines. "I start with the understanding that vets should get a break," U.S. District Judge William D. Quarles Jr. said before sentencing Medina to one year plus a day behind bars.
Last week, an appeals court disagreed. The 4th Circuit Court of Appeals in Richmond, Va., sided with prosecutors in ruling that Quarles had been too lenient when the judge gave too much weight to one factor -- Medina's military record. The judge, the panel decided, violated the principle of a "reasonable" sentencing and ordered the case back for resentencing using the recommended guidelines of about 3 1/2 to less than five years in prison. The case illustrates a still-simmering, two-year-old debate in the federal judiciary over how much discretion individual judges should have in crafting sentences.
As noted in posts below, I have long thought and argued that if prior bad behavior (in the form of criminal history) produces significant sentence increases, then prior good behavior (in the form of distinguished military service) ought sometimes serve as a proper ground for a significant sentence decrease. Apparently the Fourth Circuit does not think troops should be honored this way, although making the Medina decision "unpublished" perhaps suggests that the court does not feel strongly about this matter.
Among the disturbing aspects of Medina is the decision to render this opinion while Claiborne and Rita are pending. Both Claiborne and Rita raise issues pertinent to the Medina disposition. Indeed, if Jose Medina seeks cert, I would expect SCOTUS to GVR the case after it decides Claiborne and Rita.
Some related posts on military service as a sentencing factor:
- Lovely Rita, SCOTUS case...
- My amicus effort to support our troops
- NLJ coverage of Patrick Lett appeal
- Why isn't there a prior good works guideline?
- Thinking about sentenced troops on Veterans Day
Intriguing op-ed on pardon realities
With the Lewis Libby case in mind, George Lardner Jr. has this interesting op-ed about pardon law and realities in today's New York Times. Here is a taste:
Mr. Libby may escape prison time, but if he accepted a pardon, he (and Mr. Bush) would have a hard time continuing to insist that he was an innocent victim of a vengeful prosecutor. It would also undermine the claim that the Plame investigation was a partisan ploy to discredit the White House, and leave another stain on Mr. Bush's legacy. Here's why: If Mr. Libby were to accept a traditional presidential pardon — a "full and unconditional" grant of clemency — he would be admitting that he was guilty of the crimes of which he was convicted: obstructing justice, perjury and lying to the F.B.I.
Perhaps it shouldn't be that way, but it is — no ifs, ands or buts about it. So, while many who have been pardoned like to claim they have been "exonerated," that simply isn’t so. The Supreme Court laid down the law in 1915 in a case that, paradoxically, grew out of a debate over the sanctity of a newspaperman's sources.
Some recent related posts:
March 25, 2007
Interesting political twists in California reform debate
A helpful reader sent me this interesting piece from the Los Angeles Times noting a change in the way the California prison guard union is approaching sentencing reform discussions:
Is one of California's most feared unions now playing nice? That's the question on many minds here as the capital confronts an overcrowding crisis that has the state's system of 33 prisons operating at nearly twice its capacity. Behind the scenes, the California Correctional Peace Officers Assn. — the 30,000-strong prison guards union famous for punishing its political enemies and supporting tough-on-crime policies that keep the prisons full — has been embracing its critics.
Union officials have opened up the organization to academics, pushed for new spending on alternatives to incarceration, and begun regular meetings with other unions. Over the last three months, the union has convened a working group of inmate advocates, defense attorneys and politicians who support the kinds of shorter sentences that were long anathema to the union.
Their goal: creating a sentencing reform bill that, with the union's sway over lawmakers, could pass the Legislature this year. According to notes obtained by The Times, the group's proposal calls for a state sentencing commission that would seek to replace incarceration for nonviolent inmates with "community based punishment."
By reaching out, the union is shaping the debate over the state's prison crisis, and may be outmaneuvering the governor — who has yet to win support for his own prison proposals — and the federal courts, which are examining various parts of the prison system.... Still, ven among those who have been the subject of this prison guard charm offensive, doubts run deep about the union's sincerity. Police chiefs, narcotics officers and district attorneys say the union's new, seemingly progressive policies are merely a strategy for preserving its power. Others say the union is trying to appear cooperative in an effort to secure a new contract with the state, or avoid a possible takeover of the prisons by a federal judge who might remove job protections.
Mike Jimenez, union president, said in an interview with The Times that the union's new openness to sentencing reform and enhanced rehabilitation represents a heartfelt response to the state's prison crisis and to his own personal difficulties. Disclosing few details, Jimenez said his 17-year-old son has been in trouble in connection with petty theft and drinking. The union leader also has discussed his son with other unions and in recent meetings on sentencing. "I've been humbled," Jimenez said. "I gotta believe in redemption. I gotta believe that you can convert." Referring to the union, he added: "We've come to understand that what's bad for inmates is bad for our members."...
It is telling and sad (and yet all-too-common) that those who often espouse tough-on-crime rhetoric start talking more sense when someone they know or love is facing the consequences of such rhetoric. Whatever it takes, it is nice to see some sensibilities starting to inform some sentencing debates in California.
County sentencing disparities in Michigan
The AP has this extended story on sentencing disparities in Michigan, entitled "Is Michigan justice unequal?: Prison sentences may depend on where defendants are convicted." Here is a snippet:
A man convicted of breaking into a house in rural Hillsdale County often ends up in prison if the judge has the ability to send him there. Doing the same thing 80 miles away in suburban Detroit would more likely get the convict jail time, probation or a lighter punishment.
Michigan's sentencing guidelines are meant to ensure that consistent sentences are handed out for similar crimes. But when given a choice, judges in most smaller counties are sending certain offenders to prison at a higher rate than judges in larger counties, according to state Department of Corrections data.
Chicago Tribune calls for death penalty abolition
The Chicago Tribune today has this lengthy editorial entitled simply "Abolish the death penalty." Here is the essence:
It has, as well, long been the position of this editorial page that the government should have the legal right to impose capital punishment--the death penalty.
An editorial in 1869 stated: "Imprisonment as a penalty for capital crime has lost all its preventative value." A Tribune editorial in 1952 called the death penalty "the most powerful deterrent to other criminals." In 1976 this page said, "The danger of executing an innocent person is often cited, but we think unjustifiably."
That last sentence sounds chilling today, in light of evidence in recent years of scores of cases in which government has wrongfully convicted defendants and sentenced them to death. The evidence of recent years argues that it is necessary to curb the government's power. It is time to abolish the death penalty.
Is AG Gonzales going to persevere?
Media coverage at How Appealing here and here and here have me really unsure whether AG Alberto Gonzales is likely to survive the purge pandemonium. Whether Gonzales will persevere, my personal view is that, because his credibility and wisdom is now so suspect, I doubt he can be a truly effective head of the US Department of Justice for the next 22 months. Ironically, for some of the reasons being cited to justify the US Attorney firings, I think it is probably time for AG Gonzales to be encouraged to move on.
Some related posts:
- E-mails, politics, coups and the need for new leaders
- What's the real-world fall-out of the US Attorney purge?