May 26, 2007
Are microchip implants for offenders inevitable?
Legislation that would authorize microchip implants in people convicted of violent crimes was sent back to a committee yesterday. This after state House members questioned whether the proposal would violate constitutional civil liberties.
The measure, approved by the Senate, authorizes microchip implants for persons convicted of one or more of 19 violent offenses who have to serve at least 85 percent of their sentence. The tiny electronic implants are commonly used to keep track of pets and livestock, but several House members questioned whether their forced use in people would be unconstitutionally invasive.
As highlighted in this article, a West Palm Beach Alzheimer's care center is talking about placing microchips into its patients; and this article notes that a "deputy with the Palm Beach County Sheriff's Office has been implanted with a microchip that will give emergency doctors access to his medical information."
I would wager it is only a matter of time before these kinds of technocorrections really take off.
UPDATE: A very helpful reader pointed me to this on-point recent article in one of Ohio State's own journals about human tracking technology. The article is by William Herbert and is entitled "No Direction Home: Will The Law Keep Pace With Human Tracking Technology to Protect Individual Privacy and Stop Geoslavery?" Here is the abstract:
Increasingly, public and private employers are utilizing human tracking devices to monitor employee movement and conduct. Due to the propensity of American labor law to give greater weight to employer property interests over most employee privacy expectations, there are currently few limitations on the use of human tracking in employment. The scope and nature of current legal principles regarding individual privacy are not sufficient to respond to the rapid development and use of human tracking technology. The academic use of the phrase geoslavery to describe the abusive use of such technology underscores its power. This article examines the use of such technology under current federal and state law and suggests potential means for developing greater legal protections against the abusive use of the technology and the intrusion into personal privacy.
Exploring article selection for student-edited law reviews
With a hit tip to Orin Kerr for the pointer, anyone writing about sentencing topics may want to check out this notable new article, entitled "The Law Review Article Selection Process: Results from a National Study," exploring how student editors select article for law review publication. Here is the abstract:
The student-edited law review has been a much criticized institution. Many commentators have expressed their belief that students are unqualified to determine which articles should be published in which journals, but these discussions have been largely based on anecdotal evidence of how journals make publication decisions. It was against that backdrop that we undertook a national survey of law reviews in an attempt to determine how student editors responsible for making publication decisions went about their task. This article compiles the results of that survey, which received 191 responses from 163 different journals. We analyzed 56 factors that influence the selection process and then grouped similar items together to form 17 constructs using factor analysis. Finally, we disaggregated the results to determine whether the results were significantly different based on the prestige of the journals involved. While many of our results confirm what has been widely assumed to be true, there are also some surprising findings. We found, for example, that Articles Editors seek to publish articles from well-known and widely-respected authors. It appears, however, that editors do not assume that prestigious authors produce the best scholarship, but instead they pursue the work of well-known authors because it can increase their journals' prestige within the legal academic community. The survey reveals that editors are not nearly as likely to seek out articles dealing with hot or trendy topics as some commentators have assumed, and that author diversity plays almost no role in the article selection process. We hope that our study will provide some structure to the ongoing debate about how best to use students in the law review publication process and will allow a more informed consideration of whether students are sufficiently well-trained to evaluate articles and whether they are using the proper criteria.
May 25, 2007
Government pushing for around 3 years for Libby
As previewed here, the Libby sentencing story is now to start heating up with some tough government advocacy and guideline recommendations. How Appealing has the basic media coverage here and TalkLeft and Firedoglake have good early analysis. I'll post a lot more when I take it all in this weekend. In the meantime, readers go at it.
UPDATE: I have now had a chance to give the Government's intricate guideline calculation memo and its broader sentencing memo. Both are amazing documents that suggest that Judge Walton will have a lot to sort through when sentencing Libby on June 5. I surmise that Libby's lawyers are going to be asking for probation, that the government wants at least a 30-month prison sentence, and that the presentence report has suggested something in between these pretty wide extremes.
As I was reading both of the government's Libby sentencing filings, I could not help thinking about Victor Rita, whose 33-month sentence is currently pending before the US Supreme Court. (I have previously stressed Libby-Rita parallels in posts here and here.) For so many reasons, the context and import of Lewis Libby's perjury seems far, far, far worse than Victor Rita's perjury. Though Rita's 33-month sentence may be reversed by the Supreme Court, it will be quite telling if Libby gets a sentencing term that is lower.
More great stuff from the FSG conference
As I had expected, the morning plenary panels on the last day of National Seminar on the Federal Sentencing Guidelines in Salt Lake City were stellar. Here are two particular highlights:
1. As emphasized by all the district judges, the reality of post-Booker sentencing varies dramatically for circuit to circuit (although such circuit variations were common before Booker, too). Providing a dramatic capper on this reality, judge Gerald Lee of theEastern District of Virginia said simply from the audience "The guidelines are mandatory in the Fourth Circuit."
2. Deputy SG Michael Dreeben predicts that "Claiborne and Rita will be close votes and will be decided in the second week of June." I think both predictions are very sound (but certainly not certain).
So much for a within-guideline sentence being unreasonable in the Eighth Circuit
The Eighth Circuit on Friday issued a number of published sentencing decisions ruling against defendants. This common reality is itself not newsworthy, but it is notable that one opinion, US v. Goodwin, No. 06-2502 (8th Cir. May 25, 2007) (available here), now affirms the within-guideline sentence of the only defendant that had ever previously had her within-guideline sentence reversed as substantively unreasonable.
Upon remand in Goodwin, the district judge explained more fully the reasons for giving defendant Goodwin a within-guideline sentence, and now the Eighth Circuit affirms that sentence. The term Pyrrhic victory comes to mind.
Sixth Circuit reverses guidelines sentence for inadequate explanation
I am about to head off to a panel National Seminar on the Federal Sentencing Guidelines in Salt Lake City that has six great district judges providing a sentencing "view from the bench." They might be interested to learn of a decision today from the Sixth Circuit, US v. Johnson, No. 05-4277 (6th Cir. May 25, 2007) (available here), which reverses a within-guidelines sentence for inadequate explanation. Here's the key concluding paragraph:
We have examined carefully the transcript of the sentencing proceedings and the other documents submitted and are unable to find any discussion of the reasons for which the district court chose the sentence it settled upon. The district court determined that the appropriate advisory sentencing guideline range was 262 to 327 months, announced a “tentative sentence” at the bottom of the range, gave the parties an opportunity to object and comment, and when no objections were forthcoming, advised the defendant of his appellate rights. We have little doubt that the experienced and learned trial judge was aware that the sentencing guidelines were advisory and that the factors enumerated in section 3553(a) were to guide her discretion; but we are unable to point to anything in the record to confirm our surmise. Therefore, we must vacate the sentence and remand for resentencing.
Libby sentencing buzz starting
Josh Gerstein has this article in the New York Sun previewing the upcoming sentencing of Lewis Libby. Here are excerpts:
Prosecutors and defense lawyers for a former White House aide, I. Lewis Libby Jr., face a deadline Friday to give their final recommendations on the sentence he should receive for his conviction on charges of perjury, obstruction of justice, and lying to the FBI. However, the real cliffhanger at the sentencing hearing, set for June 5, is not what punishment Judge Reggie Walton imposes, but whether he allows Libby to remain free while pursuing his appeal....
Bail for Libby would amount to a reprieve for President Bush, who would then have until next year to make the politically sensitive decision about a pardon for the former chief of staff to Vice President Cheney. However, if the judge orders Libby jailed forthwith, Mr. Bush will face intense and immediate pressure from many of his supporters to commute the sentence or grant a pardon.
A former U.S. attorney for the capital, Roscoe Howard Jr., said he doubts Judge Walton will allow Libby to delay serving his sentence until his appeals are resolved. "I don't see that here," the ex-prosecutor said.
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 24, 2007
Another messy execution in Ohio
As detailed in this AP report, Ohio once again had trouble with a lethal injection execution today. Here are basic details and reactions:
A man executed Thursday for killing a cellmate chatted and laughed with prison staff as they struggled to find veins in his arm to deliver the deadly chemicals, taking so long that at one point he was given a bathroom break.
Christopher Newton, who had insisted on the death penalty as punishment for choking and beating the cellmate after arguing over a chess game, died at 11:53 a.m., nearly two hours after the scheduled start of his execution. The execution team stuck him at least 10 times with needles to get in place the shunts where chemicals are injected....
Prison officials said the difficulty prison staff had finding Newton's veins resulted from the girth of the 265-pound, 6-foot inmate. Newton told a public defender it was hard for blood to be taken from his veins because of his weight. Fifty-three minutes into the process, prisons spokeswoman Andrea Dean flashed a note to reporters: "We have told the team to take their time. His size is creating a problem."
Gov. Ted Strickland said every precaution was taken to make sure Newton was treated respectfully and was not in pain. "The procedure worked as it was intended to work," Strickland said. "If someone is against the death penalty then I can understand why they would want me to have a moratorium on the death penalty, but I think what happened today is not any supporting justification for that."
Of course, Ohio Death Penalty Information is THE place to go for copious coverage of this story, and ODPI has spotted this ACLU press release calling for an immediate halt to executions in Ohio as a result of today's troubles.
UPDATE: ODPI has all the morning press coverage of the Newton execution collected here.
A few quick notes from the annual FSG conference
I've had a long and fun day at the National Seminar on the Federal Sentencing Guidelines in Salt Lake City (details in this event brochure). I moderated a panel on departures and variances, and all of the speakers had lots of great (competing) insights about post-Booker realities (especially in light of recent Commission amendments). The morning plenary sessions were not too eventful because they mostly consisted of US Sentencing Commissioners talking about past and planned USSC activities. However, here are a few notable items from today's activities:
1. No one knows quite what to expect from the Supreme Court in Claiborne and Rita, and most folks are even afraid to make predictions (though USSC Vice-Chair Ruben Castillo promised that the guidelines are "here to stay").
2. USSC Chair Ricardo Hinojosa seemed disappointed that I did not ask a question during the first plenary session.
3. The USSC is clearly working very hard to keep Congress informed and at ease about various sentencing developments, and no serious Booker fix is in the works.
4. The House has plans for lots of hearings in the coming months on issues like mandatory minimums, "what works" to reduce crime, and on possibly expanding good time credits.
Effective HLR casenote on post-Booker crack sentencing
Another new Harvard Law Review casenote — which is available here and is entitled "Eighth Circuit Holds That District Court Cannot Reduce Sentence Based on Categorical Disagreement with 100:I Powder/Crack Cocaine Quantity Ratio: United States v. Spears, 469 F.3d 1166 (8th Cir. 2006) (en banc)" — does a great job taking apart the analysis most circuit courts have used to deny district courts discretion to lower crack sentences. The note merits a full read, but here is the heart of the pitch:
Recently, in United States v. Spears, the Eighth Circuit ruled that it was impermissible for a district judge to grant a reduced sentence to a crack offender based on categorical disagreement with the ratio. This decision relied on questionable conclusions about Congress's intent regarding both the 100:1 ratio and the place of judicial policy choices in a post-Booker world, and its result cabins judges into a cramped and counterproductive role in the sentencing of crack offenders.
Notable HLR casenote urging judicial civil disobedience
A new Harvard Law Review casenote — which is available here and is simply entitled "Ninth Circuit Affirms Mandatory Sentence: United States v. Hungerford, 465 F.3d 1113 (9th Cir. 2006) — urges judges to exercise civil disobedience by failing to uphold unfair sentencing terms. The note merits a full read, but here is the heart of the pitch:
Federal judges should realize that they all have the power to craft a more just, humane, and cost-effective approach to criminal punishment. In fact, federal judges are uniquely well-suited to spark a movement against draconian sentencing by telling a credible, knowledgeable, and powerful story. To ignite and participate in this transformation, judges must step out from their traditionally prescribed roles.
Civil disobedience by federal judges is both justified and required when two conditions are met: first, when an essential contradiction exists between stated ideals and ostensible justifications on the one hand and how people are actually living and actually being treated on the other; and second, when such a contradiction is not likely to be exposed and remedied as effectively by social movements or other means absent judicial intervention. The ways in which America treats its criminal defendants and its prisoners satisfy both of these conditions, and the Ninth Circuit should have refused to apply the statute. It should have reversed Marion Hungerford's sentence.
May 23, 2007
Still more great reading from SSRN
Thanks to SSRN, I now see two new great sentencing reads to take on my trip:
- The Future of Federal Sentencing Policy: Learning Lessons from Republican Judicial Appointees in the Guidelines Era by David M. Zlotnick
- Recidivism, Incapacitation, and Criminal Sentencing Policy by Andrew D. Leipold
Interesting reads for SCOTUS fanatics
I am about to head to Salt Lake City for the National Seminar on the Federal Sentencing Guidelines (basics here), and I am excited to be bringing along two interesting-looking SCOTUS-related reads:
- As previewed here, David Stras has this new article explaining "Why Supreme Court Justices Should Ride Circuit Again."
- As flagged here, the Michigan Law Review's online companion, First Impressions, has this collection of short pieces on "Televising the Supreme Court."
A highly caffinated sentence for dirty coke dealing
As detailed in stories from the AP and Bloomberg, a federal district judge today decided to throw the book at the former Coca-Cola secretary convicted of conspiring to steal the company's trade secrets (background here). Here are the highlights from the AP:
Joya Williams, 42, had faced up to 10 years in prison on the single conspiracy charge in a failed scheme to sell the materials to rival Pepsi for at least $1.5 million. She was convicted Feb. 2 following a jury trial in U.S. District Court in Atlanta, where Coca-Cola Co. is based.
"This is the kind of offence that cannot be tolerated in our society," U.S. District Judge Owen Forrester said in imposing sentence. A co-defendant, Ibrahim Dimson, was sentenced to five years in prison.
Forrester's sentence for Williams was more severe than the 63-to 78-month sentence recommended by federal prosecutors and federal sentencing guidelines. He said the seriousness of the crime necessitated a departure from the guidelines, which federal judges are not bound by. "I can't think of another case in 25 years that there's been so much obstruction of justice," the judge said of Williams' conduct. Forrester largely ignored a tearful apology by Williams, which was the first time she acknowledged what she did.
Sixth Circuit rejects challenges to unconvicted conduct enhancement
In a lengthy opinion covering lots of issues, the Sixth Circuit today in US v. Brika, No. 05-4537 (6th Cir. May 23, 2007) (available here) rejects various constitutional and Booker challenges to a sentence significantly enhanced by the "the district court's consideration of conduct on which a jury could not agree." Here are some key snippets from the opinion:
Brika first alleges that the district court's consideration at sentencing of conduct on which a jury could not agree violated the Sixth Amendment. We believe that this argument is foreclosed by Watts v. United States, 519 U.S. 148, 157 (1997).... If district courts at sentencing may employ conduct on which a jury rendered a judgment of acquittal using only a preponderance-of-the-evidence standard, then surely they may employ conduct on which a jury could not agree using the same standard....
We see no logical contradiction between Watts and Booker. It is clear after Booker that district courts may still find facts at sentencing by a preponderance of the evidence.... Booker permits district courts to find facts at sentencing. Watts discusses only the standard of proof that applies when that fact-finding takes place. There is no contradiction between them. Accordingly, Watts controls here. Until the Supreme Court holds differently, a jury's inability to reach a verdict on a particular count under a reasonable-doubt standard does not require district courts to employ anything other than a preponderance standard at sentencing.
The Brika opinion makes a number of other important points about post-Booker sentencing realities that may or may not get addressed by the Supreme Court in Claiborne or Rita. Brika thus highlights another array of issues still festering in the lower courts after Blakely and Booker that the Justices, if they are genuinely interested in helping lower courts consistently apply Booker, perhaps should reach out to address.
Will SCOTUS grant cert on Blakely consecutive sentencing issue?
The latest "Conference Call" column in Legal Times is entitled "Supreme Court Asked to Clear Up Sentencing Muddle." The column highlights a case raising an important Blakely issues that the Justices are scheduled to consider this week. Here are the highlights:
By setting constitutional limits on a judge's discretion to sentence, [Apprendi and Blakely] called into serious question the sentencing schemes of the federal government and of dozens of states. In its private conference Thursday, the Supreme Court will consider whether to hear a case -- Washington v. VanDelft, No. 06-1081 -- that presents yet another wrinkle in the ever-evolving field of sentencing jurisprudence.
The question in VanDelft is whether the decision to impose consecutive rather than concurrent sentences is one that a judge can make, or whether, instead, it is a question that Apprendi and Blakely repose in the jury.
The issue is a significant one because the imposition of consecutive rather than concurrent sentences can have a substantial effect on a defendant's overall time of incarceration....
The defendant in VanDelft, William VanDelft, received multiple convictions in state court for various attempts to abduct young boys for sex. Two of those convictions were for attempted first-degree kidnapping; a third was for attempted second-degree kidnapping. Washington state sentencing law stated that the sentences for first-degree kidnapping "shall be served consecutively to each other." By contrast, sentences for second-degree kidnapping "shall be served concurrently." Importantly, though, the law goes on to state that consecutive sentences can be imposed in exceptional circumstances....
The [Washington Supreme Court] noted that Washington sentencing law contained a "statutory presumption of concurrent sentencing" for VanDelft's second-degree kidnapping conviction, and that this "presumption" served as the relevant statutory maximum under Apprendi and Blakely. The trial judge unconstitutionally exceeded this maximum, the court held, when he nevertheless imposed a consecutive sentence on VanDelft based on a separate finding that a concurrent sentence would be "too lenient."
A different kind of coke sentencing in Atlanta
As detailed in this AP article, a defendant in Atlanta faces sentencing today for a distinct version of the crime of dealing coke:
A former Coca-Cola secretary's claim of innocence during her trial could weigh against her when she is sentenced Wednesday for conspiring to steal trade secrets from the world's largest beverage maker. Joya Williams faces up to 10 years in prison for the foiled scheme to steal secrets from Atlanta-based Coca-Cola and sell them to Purchase, N.Y.-based PepsiCo Inc. for at least $1.5 million. She was convicted Feb. 2.
Williams, 42, asserted her innocence and testified at the trial that she did nothing wrong in the Coke case. Both are factors that federal judges are allowed to consider when imposing a sentence. "Penalizing someone for exercising their right to testify on their own behalf is in every sense wrong, but it has been challenged in court and it has been upheld," said Janice Singer, Williams' attorney. Williams doesn't have a prior criminal record, and that could benefit her at sentencing.
A prosecution spokesman, Patrick Crosby, declined to say Tuesday what sentence the government will recommend for Williams. Details of a pre-sentence report prepared by probation officials were under wraps....
Singer said Tuesday that she will ask U.S. District Judge J. Owen Forrester for leniency for Williams, though the attorney said she hadn't decided whether to seek a specific sentence. Forrester is not bound by federal sentencing guidelines, though any departure from the guidelines has to be reasonable.
I wonder if readers might be inclined to venture a guess as to the likely sentence (or to argue for a particular sentence) for the coke bandit. Without having any idea of the applicable guideline range, I'm guessing that around a year in prison is possible.
May 22, 2007
Louisiana Supreme Court upholds death sentence for child rape
In a case that seems likely to get US Supreme Court attention, the Louisiana Supreme Court today upheld the death sentence of child rapist Patrick Kennedy in Louisiana v. Kennedy, No. 05-KA-1981 (La. May 22, 2007) (available here). Here is a snippet of the heart of the analysis of the majority opinion in Kennedy:
Looming over this case is the potential for the defendant to be the first person executed for committing an aggravated rape in which the victim survived since La. R.S. 14:42 was amended in 1995 to allow capital punishment for the rape of a person under the age of twelve. The defendant contends that Louisiana stands in a minority of jurisdictions in which legislatures have authorized capital punishment for the rape of a child not resulting in homicide and predicts that La. R.S. 14:42 is unlikely to survive the scrutiny of the United States Supreme Court, whose decisions the defendant interprets as making it clear that the loss of life is the essential component which renders capital punishment a proportionate penalty under the Eighth Amendment....
While we cannot purport to exercise the Supreme Court's independent judgment on any matter, it can be said for child rapists as a class of offenders that, unlike the young or mentally retarded, they share no common characteristic tending to mitigate the moral culpability of their crimes. Contrary to the mentally retarded and juvenile offenders, execution of child rapists will serve the goals of deterrence and retribution just as well as execution of first-degree murderers would. Our state legislature, and this Court, have determined this category of aggravated rapist to be among those deserving of the death penalty, and, short of a first-degree murderer, we can think of no other non-homicide crime more deserving.... We affirm [our prior] reasoning [in Wilson] today and hold that the death penalty for the rape of a child under twelve is not disproportionate.
The AP has this early report on the Kennedy decision.
Some related posts:
- Direct test of constitutionality of the death penalty for child rape
- A capital experiment spreading in the state laboratories
- Debating death for child rape
- Could there be symbolic and practical value in making repeat child rape a capital offense?
Who's writing how many opinions in Claiborne and Rita?
In the this post and its comments, Tom Goldstein speculates that Justice Stevens is writing the opinion for the Court in Claiborne and Rita. Others suggest that Justice Breyer might have the assignment. I am pretty convinced that they will both author something in these cases. (After all, these two Justices combined for four opinions in Booker).
In addition to speculating about who is writing for the Court, it is also fun to ponder how many total opinions there will be in Claiborne and Rita. Technically, these are two distinct cases that surely could produce different voting outcomes/patterns and thus might require distinct majority and dissenting opinions. In addition, I would guess that, in addition to Justices Stevens and Breyer, at least three or maybe four or perhaps even five other Justices — Justices Scalia, Ginsburg, Alito and maybe also Justices Kennedy and Thomas — may want to speak their peace in these cases.
For all these reasons, I'll set the over/under for total opinions in Claiborne and Rita at six (which was the total number of opinions in Booker). I am eager to hear readers make arguments for either the over or the under as we wait.
MySpace sentencing enhancement
It is a modern day cliche to warn persons to be careful about what they put online for the world to see. But this NPR story on "Day to Day" give this cliche a fascinating new sentencing twist. Here is the NPR teaser:
Darryl Perlin is the Senior District Attorney in Santa Barbara County, California who used a MySpace.com page in court to plead for a longer sentence for a defendant. Perlin talks to Alex Cohen.
The full audio story indicates that a defendant convicted of manslaughter as a result causing a death while drunk driving MySpaced her way to an additional two years in prison by posting pictures and comments suggesting she was not at all remorseful for her crime.
Latest post-Booker data from the USSC
The US Sentencing Commission has a new batch of post-Booker sentencing data on its website, and just in time for this week's National Seminar on the Federal Sentencing Guidelines in Salt Lake City (details of this exciting event are set out in this event brochure). This new data, available here, is the "FY2007 2nd Quarterly Sentencing Update," which provides an "extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2007. The numbers are prepared using data sentenced by close-of-business on March 31, 2007 and received, coded, and edited by the Commission by May 1, 2007."
Based on a very quick overview, it appear that the well-established post-Booker trends of most sentences being within the guidelines persists. It will be very interesting to see if Claiborne and Rita ultimately disrupt what have now become relatively clear (and boring?) post-Booker sentencing realities.
Sending in the troops (to prison)
I just learned of this new publication from the Bureau of Justice Statistics, entitled "Veterans in State and Federal Prison, 2004." Here is how this entry page summarizes the report and key findings:
Using the 2004 Survey of Inmates in State and Federal Correctional Facilities, this report presents data on the military and criminal backgrounds of incarcerated veterans, uses new measures to describe their substance abuse and dependence histories, and provides a detailed measure of their mental health problems. It compares incarceration rates for veterans and nonveterans in the U.S. population and describes trends from 1986 to 2004 in the prevalence of military service among inmates. The report also examines characteristics of incarcerated veterans who served in the 1990-91 Gulf War and the Afghanistan/Iraq operations since 2001.
Highlights include the following:
- The percentage of veterans among State and Federal prisoners has steadily declined over the past three decades, according to national surveys of prison inmates conducted by the Bureau of Justice Statistics.
- In 2004,10% of State prisoners reported prior service in the U.S. Armed Forces, down from 12% in 1997 and 20% in 1986.
- The majority of veterans in State (54%) and Federal (64%) prison served during a wartime period, but a much lower percentage reported seeing combat duty (20% of State prisoners, 26% of Federal).
Some related posts:
- Thinking about sentenced troops on Veterans Day
- My amicus effort to support our troops
- Should prior military service reduce a sentence?
- Lovely Rita, SCOTUS case...
- Why isn't there a prior good works guideline?
Is it okay to rat out rats?
In today's New York Times, Adam Liptak has this intriguing article about the website "Who's a Rat." The website describes itself as "a database driven website designed to assist attorneys and criminal defendants with few resources [allowing] individuals and attorneys to post, share and request any and all information that has been made public at some point [including information about an] Informant who makes his or her Informant status known to any person." Here are snippets from the Times article about reactions from the Justice Department:
There are three "rats of the week" on the home page of whosarat.com, a Web site devoted to exposing the identities of witnesses cooperating with the government. The site posts their names and mug shots, along with court documents detailing what they have agreed to do in exchange for lenient sentences....
Federal prosecutors are furious, and the Justice Department has begun urging the federal courts to make fundamental changes in public access to electronic court files by removing all plea agreements from them — whether involving cooperating witnesses or not. "We are witnessing the rise of a new cottage industry engaged in republishing court filings about cooperators on Web sites such as www.whosarat.com for the clear purpose of witness intimidation, retaliation and harassment," a Justice Department official wrote in a December letter to the Judicial Conference of the United States, the administrative and policy-making body of the federal court system. "The posting of sensitive witness information," the letter continued, "poses a grave risk of harm to cooperating witnesses and defendants."...
Judge John R. Tunheim, a federal judge in Minneapolis and the chairman of a Judicial Conference committee studying the issue, acknowledged the gravity of the safety threat posed by the Web sites but said it would be better addressed through case-by-case actions. "We are getting a pretty significant push from the Justice Department to take plea agreements off the electronic file entirely," Judge Tunheim said. "But it is important to have our files accessible. I really do not want to see a situation in which plea agreements are routinely sealed or kept out of the electronic record."
May 21, 2007
The intriguing new politics of crack sentencing
As I have highlighted here and here, the political reverberations of the US Sentencing Commission's new crack work (basics here and here) are hard to predict. Helpfully, Seth Stern has a a great new piece in CQ Today entitled "Momentum Builds for Narrowing Powder, Crack Cocaine Sentencing Gap," which looks at some of the political dynamics. Here are some interesting excerpts:
African-American lawmakers and liberal groups have long decried the fact that it takes 100 times more powdered cocaine than crack to trigger lengthy mandatory minimum prison sentences, a disparity that disproportionately affects minority defendants. A combination of factors — including the Democratic takeover of Congress and growing Republican interest in alternatives to lengthy prison sentences — is helping create momentum for narrowing the differential first enacted 21 years ago....
Last week, Jeff Sessions, R-Ala., one of the most conservative members of the Senate Judiciary Committee, announced plans to introduce legislation that would raise the quantity of crack and lower the quantity of cocaine that would trigger a mandatory minimum sentence so that the ratio would be 20-1, rather than 100-1. Sen. Orrin G. Hatch, R-Utah, is expected to introduce an alternative that would reduce the ratio to 20-1 by only increasing the crack trigger, an approach favored by liberal groups that don't want any changes to result in lengthier sentences for cocaine defendants.
While the Senate Judiciary Committee has not settled on a single approach, Hill staffers and lobbyists for several groups expect Joseph R. Biden Jr., D-Del., chairman of the Judiciary Subcommittee on Crime and Drugs, to introduce legislation in coming weeks that would set the ratio lower than 20-1.
The sticking point may be on the House side, where members of the Congressional Black Caucus, including Robert C. Scott, D-Va., chairman of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, have long insisted that the triggers for crack and cocaine be equalized. "The facts haven't changed," Scott said. "There's no justification for any differential." Charles B. Rangel, D-N.Y., has introduced a bill (HR 460) that would make them equal.
But even if House Democrats compromise, getting a bill passed in that chamber might still be difficult, says one Republican staff member familiar with the issue. "I don't think the Democrats are going to push this issue coming into 2008 unless they get a lot of Republicans on board, and I don’t think they will," the staff member said....
The Bush administration has maintained that it prefers to consider the crack-cocaine disparity as part of a broader review of sentencing policy. That would probably include an effort to curb the discretion the Supreme Court gave federal judges when it ruled that the federal sentencing guidelines are advisory rather than mandatory.
Some related posts on sentencing politics:
- Previewing the (quite unpredictable) new federal politics of crack sentencing
- Clinton and Obama, crime and punishment
- Will sentencing issues surface in the Clinton-Obama battle for black votes?
- Politics and the war on drugs
- Is there a "new right" on criminal sentencing issues?
Eleventh Circuit confirms statutory safety-valve is not discretionary
The Eleventh Circuit in US v. Quirante, No. 06-13527 (11th Cir. May 21, 2007) (available here), has confirmed that the "safety valve provision mandated by 18 U.S.C. § 3553(f) and reflected in § 5C1.2 of the guidelines is not discretionary. Its plain terms are plainly mandatory." Quirante involves quirky facts that produces this potent quotable, but may only produce quitetude for the rare defendant sentenced above the guideline range even when qualifying for the safety valve.
Ninth Circuit rejects Eighth Amendment challenge to 15 years for child porn distribution
The Ninth Circuit issued an unsurprising ruling today in US v. Meiners, No. 06-30389 (9th Cir. May 21, 2007) (available here), which rejects a defendant's claim that his 15-year federal sentence for advertising and distributing child porn was unconstitutional. What makes the case blog-worthy is that the Meiners ruling emphasizes the particular harms that flow from advertising and distributing child pornography. Meiners thus perhaps indirectly suggests that a very long sentence for simply receiving child porn — such as the 200-year Arizona state sentence given to a Phoenix high school teacher for simply possessing child pornography (basics here, commentary here) — might produce a different Eighth Amendment assessment.
Some related posts on the Berger case:
- Arizona Supreme Court upholds 200-year sentence for possessing child porn
- What ever happened to state constitutional law, textualism, and libertarianism?
- Liberty versus security in the war on ... sex offenders
- More on the cert denied in Berger
A NPR two-fer on sex offender supervision
Today's edition of NPR's Day to Day has two interesting stories on how sex offenders are treated after release. These stories are linked below, and the titles highlight the basics:
The joys of an AEDPA DIG and Justice Scalia, dissenting
The per curiam opinion supporting today's DIG in Roper v. Weaver will likely only be of great interest for folks consumed by AEDPA or capital jurisprudence. However, the 5-1-3 vote line-up is intriguing, and the final paragraph of Justice Scalia's dissenting opinion (joined by Justices Thomas and Alito) is worth quoting as an example of Nino in fine form:
A postscript is warranted in light of the unusual circumstances in which we dispose of this case. The greatest harm done by today's cancellation is not to the State of Missouri, which will have to retry this murder case almost two decades after the original trialthough that is harm enough. The greatest harm is that done to AEDPA, since dismissing the writ of certiorari leaves the Eighth Circuit's grossly erroneous precedent on the books. (That precedent, by the way, cannot be explained away — as perhaps the Court's own opinion can — as the product of law-distorting compassion for a defendant wronged by a District Court's erroneous action. As noted earlier, the Eighth Circuit was not informed of that erroneous action. It presumably really believes that this is the way AEDPA should be applied.) Other courts should be warned that this Court's failure to reverse the Eighth Circuit's decision is a rare manifestation of judicial clemency unrestrained by law. They would be well advised to do unto the Eighth Circuit's decision just what it did unto AEDPA: ignore it.
Eighth Circuit reverses below guideline sentence again
As Yogi Berra might say, it's deja vu all over again: the Eighth Circuit today in US v. Pepper, No. 06-2453 (8th Cir. May 21, 2007) (available here), reverses for the second time a below-guideline sentence in a drug case. Here is the first paragraph of the new opinion:
This case returns after a remand to the district court for resentencing. In United States v. Pepper, 412 F.3d 995, 999 (8th Cir. 2005) (Pepper I), we held the district court erred by granting a 75% downward departure for substantial assistance and imposing a sentence of 24 months' imprisonment, because the district court erroneously based the extent of the departure on matters unrelated to Jason Pepper's (Pepper) assistance. On remand, the district court granted a 40% downward departure (five offense levels) for substantial assistance, followed by a 59% downward variance (eight offense levels), and again imposed a sentence of 24 months' imprisonment. The government appeals. We reverse.
The Eighth Circuit ultimately upholds the departure portion of the sentence, but concludes "the district court abused its discretion in granting the downward variance." It also requires this hot Pepper case to be assigned to a new district judge for resentencing.
A busy SCOTUS is mostly civil
As detailed in posts here and here from SCOTUSblog, the Supreme Court today granted cert in three new cases and issued rulings in five old ones. Most of the action involves civil matters, but one cert grant and one disposition should be of interest to sentencing fans. Here's the criminal law highlights from early posts by Lyle Denniston at SCOTUSblog:
Notable cert grant: "The Supreme Court agreed on Monday to add three new cases for decision at its next Term [including one] on the extent to which Supreme Court decisions against making criminal law decisions retroactive binds the states."
Capital (non) decision: "In the final ruling of the day, the Court dismissed a case testing whether federal appeals courts have authority to overturn a state death sentence because the prosecutor used inflammatory remarks in closing argument urging that the accused be executed. The Court said circumstances of the case had changed."
I believe that the next possible day for opinions to be issued is next Tuesday (after the long Memorial Day weekend). So, we have all got at least eight more day to wait for Claiborne and Rita.
May 20, 2007
Continued pitch for cert on an important Blakely issue
As detailed in this post, I am part of a team seeking cert in Faulks v. US, a case from the Fourth Circuit concerning the procedures for revoking supervised release. Our initial petition is here, and earlier this month the government filed its brief in opposition (BIO). A few days ago, we filed our reply to the government's BIO. These latest filings can be accessed here:
Though I am partial, I am genuinely convinced that the issues we have raised in Faulks need the Supreme Court's attention ASAP. If the Justices in the Blakely five (or the Cunningham six) are genuinely committed to its articulated Sixth Amendment doctrines and principles, the judge-centered procedures employed in federal supervised release revocation proceedings ought to be cause for significant constitutional concern (especially in a case with extreme facts like Faulks).
As has been well documented in the SCOTUSblog stats, SCOTUS needs to grant cert in a bunch of new cases to fill its fall argument calender. And the Court has not taken up any new Blakely issues in a while (although, of course, Claiborne and Rita might address Sixth Amendment issues). I am hopeful we have a real shot with Faulks.
Seeking rulings, filings, commentary on the USSC's new crack work
There are, on average, over 100 crack offense sentencings in federal courts each week. Thus, the US Sentencing Commission's new crack guidelines (basics here) and new report criticizing the old crack guidelines (basics here) ought to be immediately impacting at least some of the large number of on-going crack sentencing cases (see my commentary here and here).
I have not yet seen a ruling impacted by the USSC's new crack work, but I imagine some lawyers have at least sought continuances in light of the new USSC's data and recommendations. I'd be grateful if folks would report or send me information about ruling or even lawyer filings that reflect the USSC's latest crack work.
In addition, the next issue of the Federal Sentencing Reporter will be discussing and assessing the USSC's latest work in this arena. Anyone interested in developing a short commentary on crack sentencing topics should try to get me a draft before the end of this month so we can stay on-time for a June publication.
Some recent related posts:
- How will the new USSC crack work impact present (and past) cases?
- Conclusive proof old crack guidelines unreasonable
- Time to get crackin' on crack sentencing reform
- The new USSC cocaine report is here, the new USSC cocaine report is here....
- More reactions to the USSC crack report
- Should SCOTUS now just remand Claiborne in light of the new USSC report?
Killers willing to be executed, raise your hand...
This coming week, Robert Comer is scheduled for execution in Arizona and Christopher Newton is scheduled for execution Ohio. Both are "volunteers": they have given up their appeals and thus it is likely that their executions will go forward.
I find the reality of, and reactions to, death row "volunteers" quite intriguing, and Amnesty International now has this new report on this underexamined aspect of the modern death penalty. Here are some highlights:
About one in 10 of the men and women put to death in the USA since judicial killing resumed there in 1977 had given up their appeals. Outside of the five main executing states of Texas, Virginia, Oklahoma, Missouri and Florida, this figure rises to one in five for the remaining 28 jurisdictions that have executed since 1977. Four of the first five executions in the USA after 1977 were of "volunteers"....
Fourteen US states, and the federal government, resumed executions after 1977 with the killing of a prisoner who had waived his appeals. Five of the states which have resumed executions, Connecticut, Idaho, New Mexico, Oregon and Pennsylvania, have yet to execute a "non-volunteer". In other words, if the eight inmates who have been put to death there had not given up their appeals, these five states would likely not yet have resumed executions. Twenty of the 27 executions so far carried out in Kentucky, Montana, Nevada, Utah and Washington have been of prisoners who waived their appeals (see table at end of report).
Race and mental health appear to be the strongest predictors of who will waive their appeals – most "volunteers" are white males (as are the five prisoners featured in the second half of this report), and many have a history of mental disorders. Nevertheless, a review of such cases suggests that any number of factors may contribute to a prisoner’s decision not to pursue appeals against their death sentence, including mental disorder, physical illness, remorse, bravado, religious belief, a quest for notoriety, the severity of conditions of confinement, including prolonged isolation and lack of physical contact visits, the bleak alternative of life imprisonment without the possibility of parole, pessimism about appeal prospects, or being worn down by the cycle of hope and despair generated by winning and then losing appeals.
Some related posts:
A high-profile example of disparity in mercy
Both Capital Defense Weekly and Crime and Consequences provides coverage of the high-profile verdict this week from Chicago in which multiple murderer Juan Luna was spared a death sentence. This Chicago Tribune article details some of the interesting back-story of the lone juror who voted for a life sentence and thus precluded the unanimous verdict needed for imposing a death sentence. Here are snippets:
Earlier this month, as the jury pondered whether to convict Luna of murdering seven workers at the Palatine fast-food restaurant, the 28-year-old customer-service representative expressed strong doubts that Luna entered the restaurant with the intent to kill.
"We kept asking her what we could explain to her to make her understand that he did it," recalled juror Sherwood Brown, a computer programmer from the South Side. "She kept saying we had no proof that he went in there to murder. That it was a robbery gone bad." Brown said the woman held out for hours and then, without explanation, joined the rest of the jury in voting guilty.
She had no similar change of heart last week, however, refusing to go along when the rest of the jury voted to sentence Luna to death. Without unanimity, the jury was required by law to recommend a life sentence. The woman, whom fellow jurors and defense and prosecuting attorneys declined to name, didn't explain that decision to most of the jurors, either. However, a few have said they felt she was moved by the pleas of Luna's 10-year-old son who had begged the jury to show mercy.
UPDATE: This "Sidebar" column by Adam Liptak in the New York Times discusses the Luna verdict.