May 12, 2007
Conclusive proof old crack guidelines unreasonable
Though it's still a few more days until the US Sentencing Commission releases its new cocaine sentencing report (background here and here), the USSC has now posted on its website this reader-friendly version of all its new proposed guidelines amendments. (It also has released online this Spring 2007 newsletter which summarizes the new amendments and other USSC developments.)
The reader-friendly document describing the reasons for the USSC's new crack changes provides further support for my long-held view that the old crack guidelines were presumptively unreasonable. Consider these paragraphs (and especially the highlighted sections):
Current data and information continue to support the Commission’s consistently held position that the 100-to-1 drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere. These findings will be more thoroughly explained in a forthcoming report that will present to Congress, on or before May 15, 2007, a number of recommendations for modifications to the statutory penalties for crack cocaine offenses. It is the Commission’s firm desire that this report will facilitate prompt congressional action addressing the 100- to-1 drug quantity ratio.
The Commission’s recommendation and strong desire for prompt legislative action notwithstanding, the problems associated with the 100-to-1 drug quantity ratio are so urgent and compelling that this amendment is promulgated as an interim measure to alleviate some of those problems. The Commission has concluded that the manner in which the Drug Quantity Table in §2D1.1 was constructed to incorporate the statutory mandatory minimum penalties for crack cocaine offenses is an area in which the Federal sentencing guidelines contribute to the problems associated with the 100-to-1 drug quantity ratio....
Having concluded once again that the 100-to-1 drug quantity ratio should be modified, the Commission recognizes that establishing federal cocaine sentencing policy ultimately is Congress’s prerogative. Accordingly, the Commission tailored the amendment to fit within the existing statutory penalty scheme by assigning base offense levels that provide guideline ranges that include the statutory mandatory minimum penalties for crack cocaine offenses. The Commission, however, views the amendment only as an interim solution to some of the problems associated with the 100-to-1 drug quantity ratio. It is neither a permanent nor a complete solution to those problems.
This fully up-to-date and expert analysis from the USSC provides, in my view, conclusive evidence that a sentence imposed within the old crack guidelines is NOT likely to serve the purposes of punishment Congress set forth in 3553(a)(2). Consequently, each every defendant sentenced within the old crack guidelines has a very strong basis for arguing on appeal that his sentence is unreasonable (and certainly that a presumption of reasonableness should not apply to any within-the-old-crack-guideline sentence).
Related posts on the USSC new crack work:
- USSC provides (yummy?) half-a-loaf crack amendment
- Why the USSC's new crack work is soooooo significant
- How will the new USSC crack work impact present (and past) cases?
- Previewing the (quite unpredictable) new federal politics of crack sentencing
May 12, 2007 in Claiborne and Rita reasonableness case, Drug Offense Sentencing, Federal Sentencing Guidelines, New USSC crack guidelines and report, Race, Class, and Gender | Permalink | Comments (4) | TrackBack
May 11, 2007
More weekend reading from SSRN
Though I hope to enjoy great spring weather while celebrating moms this weekend, these new papers on SSRN look might be worth taking to the hammock:
- Punishment and Accountability: Understanding and Reforming Criminal Sanctions in America by Donald Braman
- Violence between Lovers, Strangers, and Friends by Carissa Byrne Hessick
- What is the True Prevalence of Severe Mental Illness in Jails and Prisons? by Steven K. Erickson et al.
- Optimal Drunk Driving Penalty Structure by Darren P. Grant
- Model Uncertainty and the Deterrent Effect of Capital Punishment by Ethan Cohen-Cole et al.
The latest news from Paris
Sadly, but unsurprisingly, the sentencing realities surrounding Paris Hilton get more coverage than much more important and consequential sentencing stories. Nevertheless, there are broader lessons to learn while in Paris. For example, this AP story highlights that "Paris Hilton may spend far less than 45 days in county jail for violating probation because of state policies and jail overcrowding, authorities said Thursday." Here are more details:
Hilton, sentenced last week to do the time, could spend three weeks or less behind bars because of a state requirement that grants inmates time off for good behavior and because of overcrowding in the system, Los Angeles County sheriff's spokesman Steve Whitmore said. "It's possible that it could be 21 days, 23 days. It's a complicated formula that the state sets down. It's possible that she could do less time," Whitmore told The Associated Press.
As for overcrowding, "our jail is bursting at the seams" and some women inmates have been released after serving only 10 percent of their sentence, Whitmore said.
Last year, "Lost" actress Michelle Rodriguez was sentenced to 60 days in jail for violating probation after her drunken driving arrest in Hawaii. She was released in hours because of overcrowding. Hilton's time will be determined when she is booked into the county system, Whitmore said.
Meanwhile, this Newsweek article details the chances of Hilton's appeal and pardon possibilities. It also has a photo-gallery of "Jet-setters in Jail."
Great post on legal media and blogging
A fellow named Simon, at the blog Stubborn Facts (which has a great Twain motto), has this extraordinary post (with pictures and 41 endnotes) providing comprehensive coverage of traditional/new media panels at the Seventh Circuit's recent judicial conference. Simon's long post both reports and comments on the legal media and legal bloggers in thoughtful ways; his great work justifies the time needed for a full read (including all the endnotes).
NY Times attacks treating juve criminals as adults
A number of folks have sent me the link to today's New York Times editorial about juvenile justice issues. Here is a snippet:
The United States made a disastrous miscalculation when it started automatically trying youthful offenders as adults instead of handling them through the juvenile courts. Prosecutors argued that the policy would get violent predators off the streets and deter further crime. But a new federally backed study shows that juveniles who do time as adults later commit more violent crime than those who are handled through the juvenile courts.
The study, published last month in The American Journal of Preventive Medicine, was produced by the Task Force on Community Preventive Services, an independent research group with close ties to the Centers for Disease Control and Prevention. After an exhaustive survey of the literature, the group determined that the practice of transferring children into adult courts was counterproductive, actually creating more crime than it cured.
The study referenced in this editorial and some other pieces are available at this link.
DC Circuit rejects Booker retroactivity (and suggests Blakely might be watershed?)
The DC Circuit today in In Re: Fashina, 06-3002 (DC Cir. May 11, 2007) (available here) rejects a Booker retroactivity claim (after working through some complicated AEDPA issues). Since no court ever decided that Booker was retroactive, this is not big news. However, Fashina has an extended discussion of whether Booker might qualify as a "watershed rule" exception under Teague which perhaps hints that the reasonable doubt part of Blakely might be fully retroactive. Here is the passage that especially caught my attention:
[W]e share [the defendant's] premise about the foundational role of the reasonable doubt standard of proof in criminal cases. [Long quote from In re Winship, 397 U.S. 358, 363 (1970)].... We also note that Winship was made retroactive, albeit prior to the Court's setting the current standard for retroactivity in Teague. See Ivan V. v. City of New York, 407 U.S. 203, 204-05 (1972).
Important as the reasonable doubt standard no doubt is, our task is to determine whether Booker works so "sweeping and fundamental" a change in its application as to constitute a watershed rule.
Wonderful Sixth Circuit opinion on purposes and parsimony
Continuing to play the role of my favorite post-Booker, the Sixth Circuit today has affirmed a below-guidelines sentence in US v. Cherry, No. 06-5579 (6th Cir. May 11, 2007) (available here) with some terrific discussion of 3553(a)'s sentencing purposes and the parsimony provision. Here is a sample:
The essence of the Government’s argument appears to be that the 120-month sentence imposed here cannot be reasonable because it results in such a relatively low sentence — relative, that is, to the Guidelines range of 210 to 262 months. Cherry is, in the Government’s opinion, a run-ofthe- mill offender, and the variance in this case does not comport with § 3553(a)(2)(A)1 because Congress and the Sentencing Commission have expressed their will through the Guidelines. However, the Government’s argument regarding § 3553(a)(2)(A) would give too little effect to the parsimony provision of § 3553(a) — that the district court shall impose a sentence “sufficient, but not greater than necessary,” to comply with § 3553(a)(2). The district court, moreover, concluded that Cherry is, in a number of ways, unlike other defendants the district court has sentenced for similar offenses. Thus, the issue is not whether the sentence is below the Guidelines, but whether, as it pertains to this defendant and the offenses he committed, the sentence comports with the purposes of § 3553(a)(2)(A). The district court imposed a 10-year sentence, double the mandatory minimum. Such a sentence reasonably reflects the seriousness of the offense, promotes respect for the law, and provides just punishment for the offense....
In sum, the district court, in imposing a sentence 43% below the applicable Guidelines range, stressed repeatedly the seriousness of Cherry’s offense, took into account the kinds of sentences available (and concluded that the minimum was too lenient), considered Cherry’s willingness to get help and his progress in counseling, and considered Cherry as an individual entitled to an individualized sentence below the Guidelines. Although we might have adhered to the Guidelines or imposed a harsher sentence were we in the position of the sentencing court, our review is not de novo and we cannot conclude that the sentence imposed by the district court is substantively unreasonable.
Is DP abolition likely in NJ?
As detailed in articles from the Newark Star-Ledger and the New York Times, a "State Senate committee passed a bill on Thursday that would make New Jersey the first state to abolish the death penalty since states began reinstating their capital punishment laws more than three decades ago." The Times article suggests that the odds of death penalty abolition are still less than 50%, but this vote brings New Jersey closer to de jure abolition than any other state. (Of course, NJ has had de facto abolition for a quarter-century: no one has been executed in the state in the modern capital era.)
The Star-Ledger article provides coverage of some interesting-sounding testimony from victim's at yesterday's State Senate hearing. And I found especially intriguing this report on how the abolition bill will deal with defendants current on New Jersey's death row:
As amended yesterday, the bill would mandate life imprisonment without possibility of parole for all murderers found by a jury to have committed a crime with any of a dozen "aggravating" factors that currently could trigger a death sentence. Murdering a law enforcement officer or a child under 14 during a sex crime already carries life without parole, and still would....
The nine men on death row would be given 60 days to make a weighty decision: Give up future sentencing appeals and accept life without parole, or "remain under the sentence of death previously imposed."
Some related posts:
Mass talking about crime fighting through the elimination of mandatory minimums
A helpful reader pointed me to this Boston Globe article focused on Massachusetts' Governor Deval Patrick new statewide anticrime plan. The concluding section of the article spotlights that getting rid of mandatory minimums is on lawmakers' crime-fighting agenda:
Salvatore F. DiMasi, House speaker, said lawmakers should consider eliminating mandatory minimum sentences as part of any comprehensive plan to reduce crime. "Mandatory minimum sentences aren't working, and we're paying for the mistakes we made in the past," said DiMasi. "We need to do more. Young people need to have a chance in life to turn away from the streets, not turn to the streets."
Critics, including Patrick and Senate President Therese Murray, argue that mandatory sentences make it less likely that prisoners will be able to rejoin society successfully once they are freed because they are barred from participating in work release, rehabilitation, or furlough programs. Also, once prisoners serving mandatory sentences are released, they are sent back to society unsupervised.
Patrick said yesterday that he hopes the anticrime council, which met for the first time yesterday, will look at ways to change the state's mandatory sentencing laws -- which were passed in the 1990s as a response to the perceived leniency on some drug- and gun-related crimes.
May 10, 2007
News (and no news) on capital cases
Capital Defense Weekly and Ohio Death Penalty Information and StandDown Texas Project all have new and interesting (and different) posts on death penalty developments in various states (including the stay of a scheduled execution in Texas).
And yet, I still am wondering about and remain mystified concerning the lack of news and information about the many stayed federal executions. Notably, states seems to be turning the corner on the lethal injection scrummages: Alabama and Indiana and Tennessee have all been able to carry out executions in recent days, and Florida appears ready to get back into the execution business. And yet, as I noted here and here last month, the Bush Administration seems to be readily embracing a de facto moratorium on federal executions simply because of questionable complaints about the federal execution protocol.
The multi-front crack attack
Within the next few days, the US Sentencing Commission should release its highly-anticipated new cocaine sentencing report. As highlighted here and here, I am very excited to see how this new report — which the USSC says will reiterate its "consistently held position that the 100-to-1 crack-powder drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere" — might ripple through the current federal sentencing pond.
Meanwhile, the crack-cocaine sentencing ratio is still being assailed through cert petitions filed in the Supreme Court. Coincidentally, today I received a copy of an initial petition filed in the Young case from the Third Circuit and a copy of a reply brief filed in the Spears case coming from the Eighth Circuit. (These documents, which are great reads for folks following the crack story closely, can be downloaded below.)
Both Spears and Young would present great opportunities for the Supreme Court to remedy the ugly ways in which most circuits have been approaching crack sentencing after Booker. However, it seems to me quite possible that the Justices will (at least indirectly) address some of these issues in Claiborne (and perhaps also Rita). Consequently, I would anticipate post-Claiborne GVRs in both these cases.
Juicy Fourth Circuit discussion of sentencing purposes
As noted by How Appealing here, the Fourth Circuit today in US v. Shortt, No. 06-4774 (4th Cir. May 10, 2007) (available here), has affirmed an above-guideline sentence for a doctor who pleaded guilty to providing anabolic steroids and human growth hormone to NFL players. The Shortt opinion is long on juiced-up discussion of sentencing factors and the application of 3553(a). I feel stronger just reading the Shortt opinion, and here are some of my favorite pumped-up passages:
Thus, § 3553(a) serves two functions. First, it prescribes that every sentence comply with the four announced purposes for sentencing. Second, it lists seven factors that a court must consider in determining a particular sentence, and included as one of the factors is the list of announced purposes for sentencing in § 3553(a)(2).
A sentence that does not serve the announced purposes of § 3553(a)(2) is unreasonable. Likewise, a sentence that is greater than necessary to serve those purposes is unreasonable....
The proper application of § 3553(a) therefore requires a sentencing court to focus on the four purposes of sentencing, as applicable in a particular case, and to consider, in determining a sentence that achieves those purposes, the seven factors listed in § 3553(a)(1)-(7). A sentence that fails to fulfill the purposes cannot be saved, even if it is supported by consideration of the six other factors.
In related news, you can watch video of Barry Bonds' 745th career home run at this link.
Will Claiborne or Rita address the status of "traditional" departures?
As I noted here last year, there is a consequential circuit split over the status of "traditional" departures after Booker. The Seventh Circuit pioneered the notion that "traditional" departures are obsolete after Booker, and the Ninth Circuit has echoed this sentiment. But most other circuits (and the Sentencing Commission) have expressly called for district courts to conduct a "traditional" departure analysis before considering 3553(a) factors.
Today the Seventh Circuit in US v. Simmons, No. 06-3894 (7th Cir. May 10, 2007) (available here), reiterates its view that a district court errs by granting a traditional departure (although this error is deemed harmless in Simmons). Technically, neither or Claiborne or Rita raises a departure issue, but the Justice may want to clear up the post-Booker status of departures if they are genuinely concerned about national sentencing consistency.
Simmons also highlights that district courts in the Seventh Circuit still have not quite gotten the message that "traditional" departures are obsolete. Indeed, Sentencing Commission statistics indicate that district courts in the Seventh Circuit granted more traditional departures in the last 3 months of 2006 than did district courts in the neighboring Sixth and Eighth Circuits.
More on Scooter's coming sentencing
US News & World Report has this new piece discussing the preparation of Scooter Libby's presentence report. Here is how it starts:
Lewis "Scooter" Libby — the former top aide to Vice President Cheney who was convicted of obstruction of justice, perjury, and lying to the FBI in March — will be a step closer to learning his fate next week, when the presentencing report for his case is due to be completed.
Libby's lawyers and special prosecutor Patrick Fitzgerald will get their hands on the report May 15, but the document will not be publicly released–not before Libby's June 5 sentencing nor after. The report will include a probation officer's calculation of what sentence Libby should receive under federal guidelines and a judgment on whether the case merits a different sentence. Lawyers on both sides can contest parts of the report, and the judge ultimately can depart from its findings, but it will serve as a kind of first draft of the eventual sentence.
Some Libby sentencing posts:
- Comparing Lewis Libby and Victor Rita
- Sentencing and pardon politics in the Libby case
- Will VP Cheney help Libby at sentencing?
May 9, 2007
Florida ready to get back to executions
As detailed in this Reuters article, Florida appears poised to get back to the business of lethal injection after a hiatus precipitated by a botched execution last December:
Florida will change some execution procedures because of the slow death of a condemned killer last year but will continue to use lethal injection, the state's top prison official said on Wednesday. Florida halted executions in December after Angel Diaz, who was sentenced to death for the 1979 murder of a Miami strip club manager, took 34 minutes to die.
Among the changes: Death chamber personnel will undergo more intensive training on how to insert needles and how to recognize when a prisoner is unconscious, said James McDonough, secretary of the Florida Department of Corrections.... Florida would not scrap lethal injection, said McDonough. "The three-drug cocktail that currently is being used here and virtually every other state, is the protocol that we are going to stick with," he said. McDonough said his department would be ready to resume executions within 14 days of implementing changes recommended by a panel appointed to prevent a repeat of the Diaz execution.
Maryland Gov debating drug sentencing reform
Thanks to the always great Corrections Sentencing, I saw this strong article from yesterday's Washington Post about Maryland Gov. Martin O'Malley's uncertainty about signing a bill that would make twice-convicted drug dealers eligible for parole. Here some highlights from the article:
Twenty-five years ago, Maryland joined a national movement to stem the rising drug trade, requiring sentences of 10 to 40 years for drug dealers. But locking up the hard-to-reform offenders with fixed sentences did little to prevent their re-arrest and even less to address the addiction that led to their crimes.
O'Malley (D) said last week that he is reviewing the bill and is "very much in favor of drug treatment." But he faces a conflict between his liberal sensibilities and his experience as a two-term mayor of Baltimore, where he saw daily homicides committed by drug addicts. "Anyone who doubts that drug distribution is a violent crime need only look at the morgues of this state," he said.
The Legislative Black Caucus, concerned that African Americans make up a majority of defendants jailed on drug charges, made House Bill 992 a top priority this year, but it was still among the most divisive of the just-concluded legislative session.... The measure reflects a bipartisan shift in the politics of crime in Maryland, where corrections officials estimate that drugs played a role in the offenses of 70 percent of 22,692 state inmates....
On the Senate floor last month, two Republicans said they favored rehabilitation over punishment. "My thinking has completely changed," said Sen. Larry E. Haines (R-Carroll), telling colleagues of his recent work with addicts. "These people need treatment."
It's the same conclusion drawn in the past four years by 22 states, including Michigan, Texas and New York, that have rolled back mandatory minimum drug sentences or restructured penalties. At the federal level, the U.S. Sentencing Commission recommended last week that Congress reduce minimum sentences for first-time crack cocaine convictions. House leaders are expected to hold hearings on the issue....
The bill's original language included funding for treatment. But it came to the floor of both chambers with none in a year with little new spending. This stirred concern among opponents, who said it would be irresponsible to parole drug offenders without a safety net. "I'm not prepared to gamble with public safety by letting these people get paroled early and hoping they get treatment," said Del. Christopher B. Shank (R-Washington), the minority whip.
The number of drug offenders given fixed sentences in Maryland is relatively small, about 100 people a year, according to the Justice Policy Institute, a national advocacy group. But public defenders say the system encourages prosecutors to push thousands more defendants into plea bargains to avoid lengthier sentences.
Ninth Circuit ruling on BOP closing up boot camps
Thanks to this BOPWatch notice, I see that the Ninth Circuit in Serrato v. Clark, No. 06-15167 (9th Cir. May 9, 2007) (available here), has refused to grant relief to a defendant complaining about a 2004 decision by the Federal Bureau of Prisons ("BOP") to terminate its boot camp programs. Here are snippets from the start and end of the opinion:
Before the boot camp program was terminated, Nora Luz Serrato pleaded guilty to, and was convicted of, possession of methamphetamine with intent to distribute. Serrato wanted to attend boot camp. At sentencing, the judge recommended that Serrato be placed in the program ... [but was later] informed that the program had been terminated and that no such transfer was possible. Faced with the prospect of losing the six-month sentence reduction boot camp held out, Serrato filed a petition for writ of habeas corpus....
Although this case is not moot and Serrato has standing to challenge BOP's termination of boot camp, her substantive challenges fail. BOP's decision, which was prompted by what it saw as budget constraints and better uses of its lump-sum appropriation, was committed to its discretion by law, and did not require notice and comment. BOP's act did not violate sentencing statutes, the Guidelines, or the separation of powers. Serrato has suffered no harm cognizable under the Ex Post Facto Clause or our retroactivity doctrine.
Will VP Cheney help Libby at sentencing?
The scheduled sentencing of Lewis "Scooter" Libby, Vice President Dick Cheney's former chief of staff, is now less than four weeks away. If all is moving on schedule, the lawyers' presentencing work should be quite advanced now, and it is fun to speculate about whether and how Libby's defense team may be reaching out to his old boss for sentencing support.
This recent commentary from John Mashek at US News & World Report makes a strong plea for VP Cheney to make a strong plea for Libby. Here are excerpts:
On June 5, Lewis "Scooter" Libby will face a probable prison sentence of around two years. He should not stand alone. As the apparent fall guy in the perjury case over the outing of a CIA agent, he deserves a personal and forthright appearance by his former boss, Vice President Cheney....
Cheney needs to step up and say more in Libby's behalf other than argue that he is a fine man and a good public servant. Libby deserves more from the vice president. The presiding judge in the formal sentencing should hear directly from Cheney–in person and not in writing.... Cheney should at least be willing to put in that personal plea for Libby before his former chief of staff is led away to jail.
Some Libby sentencing posts:
Tennessee's lethal injection execution
As detailed in this AP report and this local article, in Tennessee Phillip Workman "was executed by lethal injection early Wednesday after state and federal courts rejected his attorneys' pleas for more time to examine the state's newly revised execution protocols." According to the AP report, he "showed no obvious signs of discomfort or pain" during the execution process. Coincidentally, "Workman was executed nearly 25 years to the day of his conviction in the 1981 shooting death of Memphis police Lt. Ronald Oliver."
Some recent related posts:
- Split Sixth Circuit panel lifts Tennessee execution stay
- Tennessee execution disrupted by lethal injection scrummage
- Academic insights on the lethal injection scrummages
- A new study assails lethal injection protocols
PBS airing "When Kids Get Life"
I spotlighted in this post the new PBS Frontline special entitled "When Kids Get Life." My TV listings indicates that this special airs tonight in my area, though a favorite reader reports to me that it may have already aired in some other parts of the country.
This terrific PBS website indicates this important show will also soon be available to watch online. The Website also has this terrific page with a map detailing which states have offenders serving life without parole for crimes they committed as juveniles.