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.
May 8, 2007
Lots around the blogosphere
There are lots of great links and discussions of various sentencing topics around the blogosphere; here is an abridged list of posts worth checking out:
- From Sex Crimes, A Nice Article about Residency Restrictions
- From StandDown Texas Project, Death row's IQ divide
- From Volokh and SCOTUSblog (respectively), The Second Amendment in the Supreme Court and Circuit denies new review of Second Amendment
Great observation on NY's new sentencing reform initiative
Though locked up by a subscription, I saw a great piece in yesterday's New York Law Journal entitled "New York's New Commission on Sentencing Reform" by Alan Vinegrad and Douglas Bloom. The article thoughtfully discusses Governor Eliot Spitzer's establishment of the New York State Commission on Sentencing Reform (previously discussed here). Here are some passages from the informative and insightful article:
The [federal] Sentencing Reform Act of 1984 directed the USSC to create and maintain a determinate sentencing system with the now-familiar Sentencing Guidelines as its centerpiece. The [New York] Commission on Sentencing Reform, on the other hand, does not appear to have been developed with any particular system in mind. Rather, it has been given the open-ended charge of recommending legislative fixes that include alternatives to incarceration and take into account the fiscal impact of the prison system. It appears that, beyond simple uniformity, the commission's aim is to reduce prison populations while still maintaining public safety and the traditional goals of criminal punishment....
Combined with a separate proposed program to consolidate and close state prisons, cost may have been a motivating factor behind the creation of the new commission. With the political freedom to experiment that comes with lower crime rates, Governor Spitzer appears to be seizing the opportunity to explore ways to reduce crime and improve the state budget at the same time. Although not abandoning the goal of limiting sentencing disparity, he has effectively charged his new committee with the difficult task of finding ways to reduce crime and dampen recidivism while still protecting the community at reduced costs.
By focusing on alternatives to incarceration, the commission has an opportunity to achieve this goal. In a sense, Governor Spitzer's answer to Mayor Koch is that the state may not need to choose between education and incarceration. Through re-entry programs, education programs and alternatives to sentencing — such as the Drug and Community Court systems — the state may be able to reduce crime while simultaneously reducing incarceration.
Third Circuit vacates below-guideline sentence for MS pirate
The Third Circuit today in US v. Kononchuk, No. 06-2484 (3d Cir. May 8, 2007) (available here) reverses a below-guidelines sentence for a defendant convicted of selling counterfeit Microsoft software. In an interesting opinion, Kononchuk concludes that the district court's emphasis on restitution and employment was excessive; the Third Circuit holds that the sentencing court "failed to respond to the government's concerns and objections, raised at sentencing," which in turn raised concerns about whether the court "gave 'meaningful consideration' to the § 3553(a) factors."
Especially for folks dealing with restitution along with other post-Booker issues, Kononchuk is a potentially important decision with a lot of nuanced dicta. And this sentence in a footnote grabbed my attention: "The concern with employment prospects is universal among defendants; a term of incarceration is rarely, if ever, a favorable addition to one's resumé." I couldn't help but think about whether Paris Hilton might be one of those rare defendants for whom incarceration provides a resume boost.
Second Circuit reverses large downward departure
The Second Circuit today in US v. Canova, No. 05-6439 (2d Cir. May 8, 2007) (available here) reverses a large downward departure. Here is the opening paragraph of a lengthy and thoughtful opinion (written by one of my former bosses):
This sentencing appeal primarily concerns the reasonableness of a downward departure from a Sentencing Guidelines calculation and the reasonableness of the resulting sentence. The Government appeals from the November 17, 2005, judgment by the District Court for the District of Connecticut (Alfred V. Covello, District Judge) resentencing the Defendant, John Canova, after a remand from this Court, to one year’s probation and a $1,000 fine. The Government contends that the District Court’s 15-level downward departure was unreasonable and that we should remand with instructions to impose a sentence of not less than 12 months. We agree that a remand for resentencing is required, but decline to specify a minimum sentence.
Notably, Canova is remarkably guideline-centric, primarily because the district court apparently was intent to use guideline departure provisions, rather than the instructions of 3553(a), to justify a below-guideline sentence. Because the Second Circuit does not address 3553(a) factors in this latest opinion, it would seem that the district court could yet again give its desired sentence by now relying on 3553(a) instead of traditional departure rationales.
Will we always have Paris (on appeal)?
As detailed in this AP article, "Paris Hilton's lawyers have taken the first step to appeal her 45-day jail sentence." Apparently, she may be gearing up to make an Eighth Amendment claim:
The 26-year-old socialite was ordered by a judge on Friday to report to a county jail by June 5 for violating the terms of her probation in an alcohol-related reckless driving case.... The hotel heiress, who parlayed her party lifestyle into worldwide fame, said she believes the sentence was unfair. "I feel that I was treated unfairly and that the sentence is both cruel and unwarranted and I don't deserve this," Hilton told photographers assembled outside her home Saturday.
Some related posts:
- Why do we worry so much more about sex offenders than drunk drivers?
- Undue leniency for drunk drivers?
- More discussion of leniency for drunk drivers
Can Congress vacate a conviction by legislation?
This item from the New York Times blog pages brings up the border agents' cases (background here and here) and ponders whether Congress can essentially grant a pardon through legislation. Here are the highlights:
Representative Duncan Hunter ... introduced a bill in January to initiate an unprecedented Congressional pardon of two former border patrol agents currently serving 11- and 12-year sentences after shooting a drug smuggler on the Texas-Mexico border in 2005. For Mr. Hunter and other immigration hardliners, their conviction is an "extreme injustice."
While Constitutional objections are "very much a possibility," said Joe Kasper, Mr. Hunter's spokesman, he doesn't see the measure threatening executive power. The president's required signature on the bill "would obviously be synonymous with his authority to execute a pardon," he said. "The Congress is doing nothing more than initiating a pardon."
A House Judiciary Committee spokesperson said a subcommittee will hold a hearing about sentencing guidelines related to the border patrol case in the coming weeks, but "no decisions have been made yet" on Mr. Hunter's bill, which has 98 cosponsors.
The House bill, H.R. 563, can be found here. Technically, the bill does not speak in terms of granting a pardon; its operative language says orders "that the conviction and sentences of Border Patrol Agents Ignacio Ramos and Jose Compean are vacated."
My uninformed gut instinct is that Congress ought to have the power to vacate a conviction. After all, both of the other branches have this power and this power will simply serve to check prosecutorial power exercised by executive branch officials. But perhaps more informed constitutional scholars might have a different view.
Some related posts on the border agents' case:
Split Sixth Circuit panel lifts Tennessee execution stay
As detailed in this AP article, "Philip Workman's execution is back on schedule after being halted last week over concerns about Tennessee's revised execution method"; on Monday, a panel of the Sixth Circuit voted 2-1 to vacate the stay granted by a district judge last week (discussed here). Workman's execution is scheduled for 1 am CDT Wednesday, but his attorneys have appealed to the full Sixth Circuit.
The Sixth Circuit panel's thoughtful and lengthy opinions in Workman are available here (majority per Judge Sutton, dissent from Judge Cole). In addition, thanks to this post at CDW, you can also access the Workman's filings.
May 7, 2007
A pleasing pro-blog comment from the judiciary
As chronicled here, Howard Bashman has recently been up in arms about "Ninth Circuit Judge Alex Kozinski's take-down of blogs." Consequently, it was quite pleasing to receive from a reader this report on the thoughts of a higher authority:
I was at a gathering with Justice Sam Alito this afternoon. He spoke briefly about the dearth of useful material in law reviews, and in response, he was asked if legal blogs might be a more helpful secondary source for judges. He immediately responded that "there's a great sentencing blog" -- but he wasn't sure about the others.
I'm blushing (and thinking that this post with a photo of Justice Alito in fine form got me in good with the new guy).
Shaming sanctions make it to Wal-mart
Shoppers entering the Wal-Mart Supercenter here got a reminder not to try anything funny: Two shoplifters stood outside with signs reading, "I am a thief; I stole from Wal-Mart."
Attalla City Judge Kenneth Robertson Jr. ordered the two people to wear the signs for four hours each during two successive Saturdays. "The only comments we've heard so far have been positive," said store manager Neil Hawkins. "Most of them thought it was a good thing."
One of the shoplifters, Lisa King Fithian, 46, wore the sign from 11 a.m. to 3 p.m. to avoid a 60-day jail sentence. Another convicted shoplifter was at the store from 3 p.m. to 7 p.m.
Eight hours of shaming in lieu of 60 days in jail sounds like a Wal-mart bargain to me. (This exchange rate would mean roughly a week of shaming instead of a year of prison, and six months of shaming for the likes of Bernie Ebbers instead of his 25 years in prison.)
Some posts on shaming sanctions:
- Another dog for the sentencing hall of shame
- A Chinese shaming stirs controversy and debate
- More shame, shame on you
- Weekend reading on shaming punishments
- The state of shaming punishments (with lots of links)
- What punishments really undermine human dignity?
- Shaming punishments and communitarianism
Time piece on making child rape a capital crime
The latest Time magazine has this effective article entitled "Death Penalty for Child Molesters?". Here are excerpts:
In the state that is the nation's undisputed death penalty leader, Texas, you might think there is no such thing as a punishment considered too harsh. But as legislators there consider joining the small but growing number of states making certain convicted pedophiles eligible for the death penalty, a surprisingly vocal group of critics has emerged, arguing that the measure is shortsighted, counterproductive and probably unconstitutional.
"There's tough. And then there's Texas tough," Republican Lt. Gov. David Dewhurst declared at his January inauguration as he pledged to press for mandatory 25 year sentences and a two-strikes death-penalty provision for convicted child predators. The proposal is a more extreme version of the so-called " Jessica's Law " passed by the Florida legislature in the wake of the February 2005 rape and murder of nine-year-old Jessica Lunsford. That landmark statute imposed mandatory 25-year prison terms and life electronic monitoring for sex offenders, and since its passage in May 2005 42 states and Congress have implemented or are considering their own very similar laws.
Dewhurst's stance made headlines and has won him kudos from national backers of Jessica's Law such as Fox News's Bill O'Reilly and John Walsh, producer of America's Most Wanted. But it also sparked the formation of an unexpected coalition of opponents, featuring some of the state's toughest prosecutors as well as victims' rights groups, both of whom worry that the measure could backfire and result in fewer convictions....
The mandatory sentences can backfire, said TAASA spokeswoman Karen Amacher, as prosecutors lose the flexibility to seek lesser sentences in cases where a jury trial may prove too taxing for a child witness, or a jury or judge may not feel a 25-year sentence is warranted. Since an estimated 80% of child sexual assaults are committed by family members, groups like Amacher's are concerned that mandatory sentence laws, not to mention the death penalty, might dissuade certain people from reporting abuse to authorities. "With sex offenders we want to say let's lock them up and throw away the key — these folks are just awful after all — but it's just not realistic," Amacher said....
Legal scholars from both sides of the political spectrum have warned Texas legislators the death penalty for repeat sex offenders would likely be declared unconstitutional. In 1977 the Supreme Court ruled in Coker vs. Georgia that the death penalty in rape cases was cruel and unusual punishment. Nevertheless, several states have retained old laws providing the death penalty for rape of minors — including Florida, Montana and Louisiana. Only one state, Louisiana, currently has someone on death row charged with raping a child: Patrick O. Kennedy, who faces the death penalty after being convicted in 2003 of raping an eight-year-old.
Some recent related posts:
Yet another time with Ameline
A little Ninth Circuit opinion dealing with Ameline "limited remand" sentencing procedures produced three opinions today in US v. Fifield, No. 06-30171 (9th Cir. May 7, 2007) (available here). The short opinions make for interesting reading, though I find it most notable that some Booker pipeline cases are still in the works a full 28 month after Booker was decided. (If the Supreme Court does anything consequential in Claiborne and Rita, I suspect there will be similar pipeline problems.)
Judicial obsession with death in New Jersey
Continuing the New Jersey sentencing news, the NJ Supreme Court today released a massive opinion upholding a death sentence in New Jersey v. Wakefield, No. A-37-2004 (NJ May 7, 2007) (available here). The majority opinion in Wakefield runs 176 pages(!), and there is an interesting concurrence and two dissents adding another 60 pages of Garden State capital sentencing insights.
I suppose I should commend the Justices of the NJ Supreme Court for their commitment to careful justice. But I cannot help but notice that it took the state Justices more than 18 months to churn out Wakefield, and I suspect plenty of other cases (both criminal and civil) would have benefited from some of time the Justices devoted to considering the claims of doubler murderer Brian Wakefield. But then again, I also know that plenty of other projects would have benefited from the quarter of a billion dollars(!) that New Jersey has spent on its death penalty system without having actually executed anyone over the last 25 years.
Nevada struggling with prison problems
This thoughtful AP story spotlights that Nevada, like so many others states, is struggling with prison overcrowding problems. Here is how it starts:
The inmates at Nevada's Warm Springs Correctional were still adjusting to their cramped quarters and new cellmates when Gov. Jim Gibbons toured their cell block. After walking down a hallway between 12-by-12-foot cells now holding four prisoners each, he urged state lawmakers to vote for bigger prisons. "It doesn't take much more than that to force the system into a meltdown," Gibbons warned of the crowded conditions, and lobbied for lawmakers to pass his $300 million budget request for prison expansion.
But in Carson City and several other state capitols, lawmakers are starting to push back against seemingly continual demands for larger prisons and the hefty price tags that come with them. Lawmakers are finding that the harsh mathematics of prison growth can trump party allegiances.
In Connecticut, Texas, Kansas and Nevada, Republicans and Democrats alike are trying to push some of that prison money into mental health and drug treatment programs, which they say will be more effective at treating the root problems of crime. "There's a very definite change in the budget tone," said state Sen. Mark Amodei, R-Carson City. "It's one thing to say you're all going to jail until the sun comes up, but that takes significant resources."
May 6, 2007
Lots of activity in the Garden State laboratory
Justice Brandeis famously advanced the idea of states as "laboratories" in his New State Ice opinion. As detailed in a number of local articles, the laboratory of New Jersey is abuzz with sentencing experiments:
2. As detailed in this local article, a "federally funded study under way in Trenton is trying to determine whether Megan's Law is worth the cost of its 'enormously expensive' monitoring and enforcement requirements." According to the story, researchers "said they were surprised to find that a steady decline in sex crimes across New Jersey had begun in 1991 — three years before Megan's Law."
3. As detailed in this AP article, "New Jersey is set to consider becoming the first state to abolish the death penalty legislatively since capital punishment was reinstated 31 years ago. A Senate committee is slated Thursday to consider replacing the death penalty with life imprisonment without parole."
Examining "total institutionalization"
It appears that Professor Bernard Harcourt has wrapped up his terrific stint of guest-blogging at The Volokh Conspiracy. Harcourt's many thoughtful and detailed posts (which are assembled here) focus on his new work spotlighting the massive shift in institutionalization from mental hospitals to prisons during the 20th century.
I find Harcourt's work (here and elsewhere) very interesting and very important. Everyone interested in prison law and policy ought to read and reflect upon Harcourt's exploration of "aggregated institutionalization."