June 16, 2007
Thinking through Kimbrough and the state of crack sentencing
The Supreme Court's cert grant last Monday in Kimbrough v. United States, No. 06-6330, justifiably received a lot of attention (see here) because it appears that SCOTUS is finally going to get involved in the long-standing debate over crack sentencing (which has hit new heights since Booker). Notably, this morning brings two distinct commentaries here and here calling upon the Supreme Court and others to do something about crack sentencing inequities.
But, the timing and the context for the Court's foray into this arena has me still scratching my head about what the Justices are up to with federal sentencing these days. Let me explain:
1. Quirky facts: The cert papers in Kimbrough — and here are links to Kimbrough's petition, the government's response, and Kimbrough's reply — indicate the case facts are very quirky. According to the cert petition, Derrick Kimbrough pleaded guilty without a plea agreement and "turn[ed] down the government's offer to dismiss the Â§ 924(c) count," which added five extra mandatory years to his sentence. And yet, for some unclear reason, Kimbrough was denied an "acceptance of responsibility" reduction. I am wondering what weird back-story might explain all this.
2. Quirky timing: Last month the US Sentencing Commission proposed amendments to the crack guidelines and strongly encourage Congress to make further adjustments (details in this archive). The new crack guidelines will become effective (absent congressional action) November 1, which will be after SCOTUS hears argument, but before a ruling, in Kimbrough. Though the district court's initial sentencing in Kimbrough makes the USSC's amendment not directly relevant, now seems like an especially quirky time for the Justices to be opining on crack sentencing dynamics.
That all said, simply the cert grant in Kimbrough should help lower court judges and Congress and the Justice Department and the USSC and others appreciate the need to focus on cocaine sentencing justice throughout 2007. That alone makes the grant in Kimbrough valuable, even if curious.
June 15, 2007
Around the blogosphere
Some airport downtime allows me to spotlight a few notable sentencing-related posts around the blogosphere worthy of weekend reading:
- From blackprof here, "Condi Rice's Sympathy for Scooter Libby"
- From Crime & Consequences here, "Religion and Drug Treatment"
- From CrimProf Blog here, "Judges Across the Nation are Mixing Punishment with Treatment"
- From SCOTUSblog here, "Analysis: Ninth review of Texas death issues?"
- From White Collar Crime Prof Blog here, "Libby Denied Bail Pending Appeal -- On to the D.C. Circuit"
Iran's parliament supporting death for porn producers
Among lots of interesting new posts at Capital Defense Weekly, I saw this interesting AP article about an Iranian "bill that could lead to the death penalty for persons convicted of working in the production of pornographic movies." Here are more details:
In a 148-5 vote, lawmakers approved a measure saying "producers of pornographic works and main elements in their production are considered corruptors of the world and could be sentenced to punishment as corruptors of the world.".... To become law, the bill requires approval from the Guardian Council, a constitutional watchdog in this conservative Islamic country.
It is widely believed that the bill came as a reaction to a scandal last year, when a private videotape, apparently belonging to Iranian actress Zahra Amir Ebrahimi and allegedly showing her having intercourse with a man, became available across Iran. The video was leaked to the Internet and released as a black market DVD, becoming a full-blown Iranian scandal. Ebrahimi later came under an official investigation, which is still ongoing.
Seeking levity after a long sentencing week, readers are welcome to use the comments to come up with good jokes (perhaps involving Paris Hilton) in light of this story.
Commentary on Libby's appeal prospects
At FindLaw, John Dean has this provocative commentary entitled, "Scooter Libby's Appeal: The Focus Shifts To the Highly Political U.S. Court of Appeals for the D.C. Circuit." Here are its closing sentiments:
If [the DC Circuit] stays Libby's sentence, that will be a grievous mistake. Judge Walton has taken care to scrupulously follow the law, and he has clearly set aside the fact he was appointed by a Republican president. If the panel deciding upon the stay should overrule Judge Walton, that result ought send shudders through the land -- because it will mean the rule of law has become secondary to party loyalty.
So we'll see. I would be stunned if a GOP-majority panel or, indeed, any panel gave Scooter Libby a pass.
Could the Libby case be impacting the Justices' views and work on Rita?
As I have highlighted in posts here and here, decorated veteran Victor Rita received a within-guideline 33-month sentence for seemingly less serious instances of perjury and obstruction than the crimes that have led to Lewis Libby's 30-month within-guideline sentence. Meanwhile, as public debate over Libby's sentence has raged for nearly a month, the Supreme Court has been finalizing its ruling concerning whether Victor Rita's sentence is constitutional and reasonable under Booker and 18 U.S.C. § 3553(a).
Notably, the Libby outcome has already led a number of persons known for tough-on-crime views and rhetoric to decry the length of Libby's 30-month within-guideline sentence: former federal prosecutors Rudy Giuliani and William Otis have both made statements suggesting that Libby's sentence is unreasonably long. Though not stated in these terms, these high-profile criticisms of the length of Libby's sentence certainly spotlight the suspect nature of post-Booker doctrines that essentially apply a conclusive presumption that any and every within-guideline sentence is reasonable.
Though Supreme Court rulings are probably rarely impacted by inside-the-Beltway Sturm und Drang, it would be quite difficult for the Justices not to see the shadow of Lewis Libby hanging over their work in Rita. Though I doubt Libby's name will appear in the eventual Rita ruling, I think it is quite possible (and arguably quite appropriate) that the Libby case is impacting the Justices views and work on Rita.
Some recent related posts:
- Revving up for Rita: harsh treatment for a lesser Libby
- Comparing Lewis Libby and Victor Rita
- Rudy Giuliani suggests Libby's within-guideline sentence is unreasonable
- Another former federal prosecutor suggests Libby's within-guideline sentence is unreasonable
- Libby sentencing archive
- Rita reasonableness case archive
June 14, 2007
A creative no-girlfriend sentence from up north
A helpful reader sent me this AP story discussing an intriguing sentence from Canada:
A Canadian man won't be available for a relationship over the next three years — by court order. An Ontario judge has ruled that Steven Cranley cannot have a girlfriend until 2010.
Cranley, who's 24, pleaded guilty earlier this week to charges stemming from an assault on a former girlfriend. He punched and kicked his girlfriend during an argument after their break-up. When police arrived he stabbed himself with a butcher knife, puncturing his aorta.
Doctors say Cranley has a dependent personality disorder, and finds it hard to deal with rejection. And they say he'll probably re-offend if he gets involved in another romantic relationship. Cranley has served nearly 150 days in custody. The judge decided that was enough jail time.
This seems like a hard order to enforce, eh? Does it cover friends with benefits? Indeed, this sentence sounds like the premise for a kooky movie produced by Lorne Michaels starring Norm MacDonald (they're both Canadian).
First Circuit affirms long sentence while suggesting future commutation
The First Circuit today in US v. Godin, No. 06-1749 (1st Cir. June 14, 2007) (available here), affirms as reasonable a within-guideline sentence of nearly 22 years' imprisonment for a mentally ill woman who committed "a robbery that netted a few hundred dollars." The panel in Godin thoughtful recognizes the arguments for and against this sentence and ultimately shows deference to the district court's sentencing judgment. And the Godin opinion concludes with this notable paragraph:
A lower sentence could have been defended. But there was no mistake of law, the district judge made a thoughtful assessment, the result is not indefensible, and there the matter must stand. If Godin could rehabilitate herself in prison and dispel the very real threat of future harm, a responsible penal system would eventually consider a shortening of her sentence. The President, through the commutation process, may choose to do so.
Perhaps in 2025, when Jennifer Godin still has a few years left on her sentence, perhaps President Clinton — Chelsea, that is — will take this commutation suggestion to heart.
The criminal divide on SCOTUS
In this new piece entitled "Low-Profile Supreme Court Case Offers Glimpse of Sharp Divide," Tony Mauro highlights a point that I noticed when reading today's 5-4 decision in Bowles v. Russell: the Justices seem to be deeply divided in nearly all criminal law cases these days. Here's excerpts:
[T]he low-profile case offers as good a glimpse as any into the sharp conservative-liberal divide emerging this term. Convicted Ohio murderer Keith Bowles lost the case on Thursday by a 5-4 vote, because he was two days late in filing a federal habeas appeal back in 2004....
“This court has no authority to create equitable exceptions to jurisdictional requirements,” Justice Clarence Thomas wrote for the majority. Joining him were Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito Jr.
In dissent, Justice David Souter was blunt and unforgiving. “It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch.” He was joined by the other justices in the moderate-liberal bloc: John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer.
“This is a doctrinal thing that only lawyer geeks and the Supreme Court care about,” says Kevin Russell of Howe & Russell in D.C., who authored a brief in the case on behalf of Bowles for the National Association of Criminal Defense Lawyers. “But you also see more frustration from the liberals on the court who are upset that the rules are changing just because the composition of the court has changed.”
Though I've not formally counted, I believe the vast majority of 5-4 splits this term have been in criminal law cases and most (though not all) have been the same 5-4 composition as Bowles.
As regular readers know well, the traditional divides do not hold true to form in the Sixth Amendment sentencing cases. The deepening divide in other areas just makes me that much more eager — and that much more uncertain — about what will happen in Rita.
Should President Bush give Libby a respite?
Last week, as discussed here, former federal prosecutor William Otis advocates clemency for Lewis Libby as an alternative to a full pardon. Today, in this great National Review piece P. S. Ruckman Jr. throws out the idea of a respite. Here is part of an adroit little commentary:
The Constitution gives presidents the power to grant "reprieves and pardons." The U.S. Supreme Court has interpreted that language to include pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines, as well as forfeitures, reprieves, respites, and amnesties. A respite delays the execution of a sentence. It does not address issues of due process or guilt or innocence. It merely suspends sentence for a designated period of time.
George Washington granted the first respites in June, 1795, when he delayed the execution of two men who fought in the Whiskey Rebellion — both of whom were eventually pardoned. The typical respite lasts between 30 and 90 days. But many times, initial grants have been followed by a second and third respite, or as many additional respites as were necessary. Woodrow Wilson delayed the six-and-a-half-year prison sentences of two men with nine respites because an "investigation of the facts" had taken "considerable time" — 13 months to be exact. Wilson also delayed the five-year sentences of W.G. and S.G. Simpson with three respites before pardoning them.... There is, in short, a long history to the use of the respite.
Notable coverage of Genarlow Wilson saga
Coverage of the Genarlow Wilson case continues to provide interesting food-for-thought. Anyone following the Wilson case closely will definitely want to check out these two interesting articles:
- From the Fulton County Daily Report here, "Contrasting Cases Show Murkiness of Sex Law: Genarlow Wilson's win made the news, but another teen sex case looms."
- From the Atlanta Journal-Constitution here, "Girl's mother defends Wilson: Penalty too severe, and sex was consensual, she says; prosecutors suspect that defendants' supporters have been pressuring her."
Following up the AJC article, this AP article has now hit the wires, headlined "Prosecutor meddling in teen sex case? Mother of girl changed statement to newspaper after visit by assistant DA."
UPDATE: This AP story reports that "Georgia's Supreme Court agreed Thursday to hear the state's arguments for keeping in prison a man who had consensual sex with a 15-year-old girl when he was 17. The story also provides more details about reactions to the case and the decision by the Georgia AG to appeal.
Lewis "Scooter" Libby denied bail pending appeal
to As I had expected, Judge Reggie Walton has denied Lewis "Scooter" Libby bail pending appeal of his conviction and 30-month sentence. An expedited appear to the DC Circuit will surely follow, and it will be very interesting to see when and how that court will deal with this legal and political hot potato. This AP report discussed when Libby will have to head to prison:
No date was set for Libby to report to prison but it's expected to be within six to eight weeks. That will be left up to the U.S. Bureau of Prisons, which will also select a facility. "Unless the Court of Appeals overturns my ruling, he will have to report," Walton said.
This delay in when Libby will have to report creates, of course, a period of time for pardon buzz to reach new heights (classic coverage here). In addition, a Supreme Court reversal of Victor Rita's within-guideline sentence as unreasonable could perhaps give Libby a new viable appellate issue for the DC Circuit to rely upon as a basis for bail pending appeal. Interesting times.
Some recent related posts:
Parents start serving 27 months for serving alcohol at son's 16th birthday party
The Washington Post in this editorial, and David Bernstein here at The Volokh Conpirary, are justifiably spotlighting the apparent injustice in this story of two parents given 27-month(!) jail terms for having provided beer and wine at a backyard birthday party for their son when he turned 16.
According to the Post editorial, the prosecutors "originally sought a three-month sentence," but apparently a juvenile court judge "originally imposed eight-year sentences" only an appeals court cut the sentence to the 27 months now to be served.
Commentors at Volokh indicate that the parents' wrongdoing went beyond just serving alcohol. But, geez, wouldn't the three-month sentence (or even six months or nine months) sought by prosecutors have been sufficient? I have long thought that any sentence more than twice what a prosecutor requests should be considered presumptively (though not per se) unreasonable.
More details about this case and related matters are available in this cover article from a publication called "The Hook." The article spotlights that the long sentence given to the parents should have a profound deterrence effect, though I'd think a shorter sentence could do the trick. Can anyone suggest reasons why such a long jail sentence is necessary under these circumstances?
A first extraordinary report on today's Libby hearing
Though a decision on bail pending appeal is not expected until later this afternoon, the AP has this early report on the Lewis "Scooter" Libby sentencing/bail hearing today in Judge Reggie Walton's courtroom. Here are some quite notable highlights:
A federal judge showed no sign that he would delay I. Lewis "Scooter" Libby's prison term in the CIA leak case Thursday — even as he reported getting threatening letters and phone calls after sentencing the former White House aide. "I received a number of angry, harassing, mean-spirited phone calls and letters," U.S. District Judge Reggie B. Walton said. "Some of those were wishing bad things on me and my family."
Walton made the remarks as he opened a hearing into whether to delay Libby's 2 1/2-year sentence while the former White House aide appeals. Walton heard arguments on the request and was scheduled to continue them Thursday afternoon....
The judge also was not persuaded by 12 prominent law professors who filed a legal brief supporting Libby's request for a delay. "The submission was not something I would expect from a first-year in law school," Walton said. "It was submitted for the sole purpose of throwing their names out there."
Libby's newly formed appellate team — Lawrence S. Robbins and Mark Stancil — are standing by. If Libby loses Thursday, they will ask an appeals court for an emergency order delaying the sentence. Libby's supporters have called for President Bush wipe away Libby's convictions.
SCOTUS still keeping us sentencing fans waiting
According to this post at SCOTUSblog, the three opinions issued by the Supreme Court today include nothing exciting for criminal justice fanatics (though there was a 5-4 split ruling against a defendant on a technical appellate jurisdiction issue). So, we will all have to wait until at least next week for a Rita ruling.
I must admit that I'm not too disappointed because now I can focus on other important matters over the next few days.
Dallas DA urges being smart and not just tough on crime
Thanks to StandDown Texas Project, I saw this great column from Craig Watkins, the district attorney of Dallas County, advocating a "smart on crime" philosophy for the criminal justice system. Here are excerpts from a great piece:
During my first 100 days as Dallas County district attorney, I have challenged outdated notions of what constitutes justice and laid the groundwork for real, systemic change.
Violence is prevalent in our county, and we must face that violence head on. There is no place in our community for murderers, rapists, child molesters and other violent predators. Justice demands that these predators face swift prosecution and harsh punishment. I am committed to removing these outlaws from our streets and ensuring the safety of our families and neighbors. Where these criminals are concerned, being "tough on crime" is the only appropriate response.
To progress in the war on crime, however, we must realize the limitations of the "tough on crime" approach. If we are to succeed in ridding our community of crime, we must also be "smart on crime." Today, more than 2 million people are in our federal and state prisons and 8 million Americans in jail, on probation or on parole. Collectively, the 50 states now spend more money building prisons than they spend on higher education....
We must reject this simplistic and reactive approach to the crime problem. If we are going to be "smart on crime," we must ask ourselves, "What more can we do?" When it comes to low-level offenders, we must consider alternative forms of punishment.
Crime requires accountability, but incarceration without opportunity for reform and rehabilitation is not the solution. Its benefits are temporary and short-sighted. We must provide low-level offenders with the means and incentive to choose a lawful path in life when they re-enter our community. Only then will there be a lasting, positive impact on crime in our county....
It is refreshing to see a Texas prosecutor making a strong and aggressive statement about the importance of being smart and not just tough on crime. It is too bad for Genarlow Wilson that prosecutors in Georgia do not seem to understanding or appreciate that toughness must have sensible limits.
Rhode Island discussing elimination of mandatory minimum drug sentences
This thoughtful and inforative local news article indicates that Rhode Island may join a growing number of states eliminating or reducing the severity of its mandatory minimum drug sentencing provisions. Here are some basics:
Before adjourning next week, the General Assembly may make a major revision to state drug laws, doing away with mandatory minimum sentences. A bill to that effect is moving through the state Senate; House leaders said yesterday they are open to the idea.
"Judges have a handle on who should be locked up for excessive amounts of time," says Sen. Harold M. Metts, D-Providence, the sponsor of the bill scheduled for a vote in the Senate Judiciary Committee today. "There's some people that need to be locked up for that amount of time, and there's other people that can reclaim their lives."
The concept of restoring judicial discretion has support from Governor Carcieri, judges and the state police. However, Metts' bill may meet opposition because it would also significantly reduce the maximum sentences for drug charges.
Capitial tales full of sound and fury, signifying something
There lots of on-going dramas in a number of death penalty cases, but I cannot keep up with all the action. Fortunately, Capital Defense Weekly and Crime and Consequences and the Ohio Death Penalty Information blogs are all over all the capital tales.
Analysis indicates Paris Hilton is receiving especially harsh treatment
The Los Angeles Times has this new article providing data-driven context for debates over whether Paris Hilton to receiving a special kind of justice. Here are the highlights:
Paris Hilton will end up serving more time behind bars than the vast majority of inmates sent to L.A. County Jail for similar offenses, according to a Times analysis of jail records. Whether Hilton received special treatment from the Sheriff's Department has become the subject of much debate since Sheriff Lee Baca last week allowed the hotel heiress to go home after less than four full days in jail, despite a promise that she would serve 23 days of a 45-day sentence.
The Times analyzed 2 million jail releases and found 1,500 cases since July 2002 that — like Hilton's — involved defendants who had been arrested for drunk driving and later sentenced to jail after a probation violation or driving without a license. Had Hilton left jail for good after four days, her stint behind bars would have been similar to those served by 60% of those inmates. But after a judge sent her back to jail Friday, Hilton's attorney announced that she would serve the full 23 days. That means that Hilton will end up serving more time than 80% of other people in similar situations.
Now, if only the LA Times would conduct this analysis of the justice received in California by the hundreds of thousands of other persons behind bars who have a much lower Q rating than Ms. Hilton.
In a related vein, check out this interesting piece at Slate by Christopher Hitchens entitled "Siege of Paris: The creepy populism surrounding high-profile defendants."
June 13, 2007
Covering the AG's latest push for a Booker fix
The Bush administration is trying to roll back a Supreme Court decision by pushing legislation that would require prison time for nearly all criminals. The Justice Department is offering the plan as an opening salvo in a larger debate about whether sentences for crack cocaine are unfairly harsh and racially discriminatory. Republicans are seizing the administration's crackdown, packaged in legislation to combat violent crime, as a campaign issue for 2008.
In a speech June 1 to announce the bill, Attorney General Alberto Gonzales urged Congress to re-impose mandatory minimum prison sentences against federal convicts — and not let judges consider such penalties "merely a suggestion." Such an overhaul, in part, "will strengthen our hand in fighting criminals who threaten the safety and security of all Americans," Gonzales said in the speech, delivered three days before the FBI announced a slight national uptick in violent crime during 2006.
Judges, however, were livid over the proposal to limit their power. "This would require one-size-fits-all justice," said U.S. District Judge Paul G. Cassell, chairman of the Criminal Law committee of the Judicial Conference, the judicial branch's policy-making body. "The vast majority of the public would like the judges to make the individualized decisions needed to make these very difficult sentencing decisions," Cassell said. "Judges are the ones who look the defendants in the eyes. They hear from the victims. They hear from the prosecutors."
Will Libby get bail pending appeal?
This AP article provides the basic details of the legal battle over whether Lewis "Scooter" Libby will remain free on bail as he appeals his conviction and 30-month sentence. As the article notes, Judge Walton scheduled a hearing on Libby's request for bail pending appeal for Thursday. TalkLeft has more here.
Any predictions, dear readers?
UPDATE: This new AP article has more about Thursday's coming court activities for Libby, and a commentor rightly spotlights that, if Libby is denied bail pending appeal, we should expect this action to spill over quickly to the DC Circuit. Indeed, this Washington Post piece indicates that Libby's "attorneys have said that if Walton rules against them, they will file an emergency appeal with a panel of the U.S. Court of Appeals for the District of Columbia Circuit."
Should failure to return to a halfway house qualify as a "violent felony"?
I have not discussed much lately the Kafkaesque reality that, as discussed before here and here, many seemingly non-violent state offenses can qualify as crimes of violence triggering severe federal sentence enhancements. But the issue merits another spotlight today following a strong concurring opinion from Judge Hill of the Eleventh Circuit in US v. Taylor, No. 05-15088 (11th Cir. June 13, 2007) (available here).
In Taylor, the panel affirms an enhancement under the Armed Career Criminal Act (ACCA) based upon an escape conviction for "failure to return" to a halfway house counting as a "violent felony." Judge Hill, feeling bound by circuit precedent, concurs separately (along with Judge Wilson) in order to "a tiny, but growing, choruses of doubt that a district court is permitted to enhance a sentence under the ACCA based in part upon a 'failure to return' prior escape conviction." Anyone working on these intricate criminal history issues (or perhaps seeking a cert-worthy issue to pursue) ought to check out Taylor.
Are we just a day away from a ruling in Rita?
Word on the street is that the Supreme Court could issue as many as four opinions tomorrow morning. And, as regular readers may recall from this post, Deputy SG Michael Dreeben last month predicted that Claiborne and Rita would be decided in the second week of June.
Of course, Dreeben's prediction predated the unexpected demise of Claiborne and the new federal sentencing cert grants. Nevertheless, it is surely only a matter of weeks before we get a decision in Rita, and perhaps in fact now it is only a matter of hours.
Any (last-minute?) guesses about what Rita will say and how many opinions there will be?
Classic FSR coverage of pardon policy and practice
In the wake of President Bill Clinton's controversial pardons his last day in office, the Federal Sentencing Reporter in 2001 produced this special double issue entitled "Pardon Power and Sentencing Policy." With the debate heating up over a possible pardon for Lewis "Scooter" Libby, FSR's publisher, UC Press, has made available for free a few of the classic articles from that special issue. Here's what you can now download free from this page:
- Pardon as Prerogative by John Harrison
- Pardon Us: Systematic Presidential Pardons by Charles Shanor & Marc Miller
- Should Clemency Decisions be Subject to a Reasons Requirement? by Daniel T. Kobil
Enjoy (and consider subscribing to FSR).
Genarlow Wilson faces at least another month in prison
As detailed in this Atlanta Journal-Constitution article, despite a big win in his state habeas action overturning his initial sentence, "Genarlow Wilson will remain behind bars at least until next month, when a judge will decide whether he should be released from prison pending an appeal." Here are some more details:
Wilson, now 21, moved a step closer to freedom Monday when Monroe County Superior Court Judge Thomas H. Wilson granted his petition to throw out his 10-year prison sentence. The judge agreed the sentence "would be viewed by society as 'cruel and unusual' in the constitutional sense of disproportionality." The judge also ordered him freed from prison and changed his felony conviction to a misdemeanor without the requirement that he register as a sex offender.
Within hours, however, state Attorney General Thurbert Baker filed notice that he would appeal the ruling to the Georgia Supreme Court. Baker is arguing the judge overstepped his authority. Several civil rights activists demonstrated outside Baker's office Monday, calling on him to back off his appeal or resign. "I think he should be admired for standing up in the face of all that and doing his job," [Douglas County District Attorney David] McDade said. "His sworn duty is to protect all Georgians."
Related posts will background on the Wilson case:
- ESPN effectively covers Genarlow Wilson's sad saga
- Why isn't the severe Georgia sentence constitutionally problematic?
- Genarlow Wilson prevails in state habeas appeal
- Snippets from the Wilson ruling from Georgia
- Georgia AG appeals to keep Genarlow Wilson locked up
Suicides pass executions on death row in California
I suppose it is no surprise to learn that it is very depressing to be on death row. However, as this AP story documents, death row suicides in California have reached a notable modern milestone:
The latest death at San Quentin Prison marked a gruesome landmark that underscored just how jammed up the state's capital punishment system has become: Suicides have now supplanted executions as the second leading cause of death on California's death row. Tony Lee Reynolds' death Sunday was the 14th suicide, one more than the number of condemned inmates executed in California, since the state reinstated capital punishment in 1978.
There are now 666 inmates on death row, according to the Department of Corrections, and executions have been halted now for 16 months by a federal judge who ordered prison officials to revise their lethal injection procedures to ensure inmates don't suffer unnecessarily.... Thirty-eight inmates have died of natural causes, the leading cause of death... [and] the average stay on death row is 17.5 years before execution.
Some recent related posts:
Seeking report from USSC's public meeting
As detailed in this official notice, the US Sentencing Commission had an public meeting today. The primary purpose of the meeting appears to be to move forward on the development of a Victims Advisory Group. I'd be grateful for an on-the-scene report from anyone who was in attendance or who knows anything specific about the USSC's on-going work regarding its new Victims Advisory Group.
June 12, 2007
Fitzgerald not letting up on bail pending appeal
The headline from this AP article says it all: "Prosecutor Wants Libby Imprisoned Now" Here are some basic details:
Special Prosecutor Patrick Fitzgerald urged a federal judge Tuesday not to delay former White House aide I. Lewis "Scooter" Libby's 2 1/2-year prison sentence in the CIA leak case. Libby, the former chief of staff to Vice President Dick Cheney, has argued that he has a good chance of winning an appeal and should be allowed to remain free until that challenge has run its course.
U.S. District Judge Reggie B. Walton, who sentenced Libby to prison for lying to authorities and obstructing the investigation into the 2003 leak of CIA operative Valerie Plame's identity, has said he sees no reason to grant Libby's request. He did not set a date for Libby to report to prison, however, and scheduled a hearing on the issue for Thursday.
A delay in Libby's sentence would give President Bush more time to consider pardon requests from Libby's supporters, who say the loyal aide was caught up in a political investigation and does not deserve prison time. Fitzgerald, in court documents filed Tuesday, said an appeals court is unlikely to overturn Libby's conviction because the evidence against him was so overwhelming.
Talk about having Gall
Though the Supreme Court's cert grant yesterday in Kimbrough (details here and here) is deservedly getting a lot of attention because of the long-standing debate over federal crack sentencing, the decision by the Justices to take up Gall to replace Claiborne is also very significant.
As detailed in the district court's sentencing opinion (available below), the facts in Gall are quite compelling in support of a below guideline sentence. Here is one of many choice paragraphs from the terrific Judge Pratt of Iowa explaining his sentencing decision in Gall:
Any term of imprisonment in this case would be counter effective by depriving society of the contributions of the Defendant who, the Court has found, understands the consequences of his criminal conduct and is doing everything in his power to forge a new life. The Defendant's post-offense conduct indicates neither that he will return to criminal behavior nor that the Defendant is a danger to society. In fact, the Defendant's post-offense conduct was not motivated by a desire to please the Court or any other governmental agency, but was the pre-Indictment product of the Defendant's own desire to lead a better life. Indeed, a sentence of imprisonment may work to promote not respect, but derision, of the law if the law is viewed as merely a means to dispense harsh punishment without taking into account the real conduct and circumstances involved in sentencing.
Of course, the Eighth Circuit, which reversed the below-guideline probation sentence given to Brian Michael Gall, saw matters differently. I briefly discussed the circuit opinion in Gall in this post, and here is a paragraph from the panel's opinion that explains its basic view of the case:
Here, the district court imposed a sentence of probation when the bottom of Gall's advisory Guidelines range was 30 months' incarceration. In essence, this amounts to a 100% downward variance, as Gall will not serve any prison time. Such a variance is extraordinary. "An extraordinary reduction must be supported by extraordinary circumstances." United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005); see also Claiborne, 439 F.3d at 481 (holding that the district court's imposition of a 15-month sentence when the Guidelines range was 37 to 46 months' imprisonment, a 60% downward variance, was unreasonable). We conclude that this extraordinary variance is not supported by extraordinary justifications.
Condemned Texas female escapes execution again
As detailed in this AP story, "Cathy Lynn Henderson won a reprieve today from a divided Texas Court of Criminal Appeals, keeping her from being executed this week for the slaying of a 3-month-old child in her care." Here are more particulars:
Henderson, 50, was scheduled to be executed Wednesday for the death of Brandon Baugh, whose skull was bashed in while she was baby-sitting him. His body was buried in a wine cooler box as she fled the state more than 13 years ago. She would have been the fourth woman to be executed since Texas resumed capital punishment in 1982, and the 12th woman nationally.
The state's highest criminal court voted 5-3, with one judge not participating, to send the case back to the trial court because of new evidence suggesting that the baby's head injuries could have come from an accidental fall, as Henderson has claimed. The high court ordered the trial court to examine arguments that Henderson was innocent of capital murder and that constitutional errors led to her conviction....
in a scathing dissent, Judge Michael Keasler accused the court majority of being "sphinx-like" about Henderson's claims and chided the judges who backed the reprieve without explanation as "indefensible." "They dare not set out their reasons because they might have to defend them," Keasler said.
Recent related posts:
Recapping a major sentencing Monday
The New York Times has these two effective articles covering Monday's two major sentencings developments:
And, lest we forget the sentencing fates of Paris and Scooter in the wake of these new developments, Professor Paul Campos has this effective op-ed placing their stories in a broader sentencing context. Here is how the op-ed begins:
The absurd media frenzy over the perils of Paris Hilton shouldn't obscure the serious issue this made-for-TV pseudo-event raises. That issue is the astonishing number of Americans who are in prisons and jails on any particular day.
At present there are about 2.4 million people behind bars at any one time. We put people in prison at rates that range from about 300 percent to 800 percent higher than other developed nations. While some of these people clearly ought to be behind bars, we also imprison hundreds of thousands of Americans for nonviolent drug offenses, and other largely victimless crimes, at an immense social and economic cost.
June 11, 2007
Thoughtful (but incomplete) analysis of new SCOTUS sentencing cases
In the Washington Post, Charles Lane has this piece focused on the grant in Kimbrough to address crack sentencing after Booker. As Lane notes, "given the opposition to the crack sentencing law among many federal judges, the court's ruling could have a significant national impact." At SCOTUSblog, Lyle Denniston has this extended post discussing both of the new federal sentencing cases on the Court's docket.
Notably, both of these pieces fail to spotlight that the issues raised by post-Booker crack sentencing are now even more intricate and complicated because of the US Sentencing Commission's recent report to Congress and proposed guideline amendments to lower slightly crack penalties (details here). And, as I have suggested, what all this means for the forthcoming Rita case and lower court sentencing decision-making over the coming months is very hard to predict.
Georgia AG appeals to keep Genarlow Wilson locked up
This new CNN article disappointingly reports that the Attorney General of Georgia "quickly filed a notice of appeal, keeping Genarlow Wilson in prison for the time being" in the wake of the state court ruling earlier today reducing his crime and sentence (basics here and here). Here are more details:
The prosecutor's move brought an abrupt halt to the jubilation Wilson's mother, Juannessa Bennett, and his attorney, B.J. Bernstein, were feeling, and the plans they were making for Bennett to be reunited with her son. "It is extremely, extremely disturbing that the attorney general would take this action now," Bernstein said, adding that she did not know what message "he's trying to send" or "who he's representing."
In a written statement, Georgia Attorney General Thurbert Baker said he filed the appeal to resolve "clearly erroneous legal issues," saying that while the judge did have the authority to grant habeas relief, he did not have the authority "to reduce or modify the judgment of the trial court." Separately, Baker noted that Douglas County recently had offered a plea deal "that would have allowed Genarlow Wilson to plead to First Offender Treatment, which would mean that he would not have a criminal record nor would he be subject to registering on the sex offender registry once his sentence had been completed."
I would be interested to hear reactions from current and former prosecutors about the Georgia AG's decision to so swiftly seek an appeal. I also wonder, if Baker is comfortable with a plea deal that gets close to the same result as the court ruling, why the rush to appeal?
SCOTUS scratches my sentencing itch, but also has me scratching my head
I am, of course, excited that the Supreme Court has now taken up two new federal sentencing cases, Kimbrough from the Fourth Circuit and Gall from the Eighth Circuit, to deal with post-Booker sentencing issues (basics here). Based on a quick review (and helpful reader comments) and more from SCOTUSblog, it seems that that Gall is a partial replacement for the Claiborne case because it addresses a below-guideline sentence reversed by the Eighth Circuit. But unlike Claiborne, Gall is not a crack case, so Kimbrough was apparently taken to allow the Justices to address directly whether a district court may deviate from the guidelines based on a disaffinity for the harsh crack guidelines.
Perhaps the key and most significant fact in both Gall and Kimbrough is that the district court in both cases imposed a below-guideline sentence that a circuit court thereafter reversed as unreasonable. In sharp contrast, the Rita case still pending before SCOTUS (and still expected to be decided this term?) deals with a within-guideline sentence imposed by the district court and affirmed as presumptively reasonable by the Fourth Circuit. Also significant is that the Supreme Court apparently plans to hear Gall and Kimbrough under a normal schedule next Fall, but likely still will issue a ruling in Rita this month.
So, adding up these pieces, what does this likely mean for the future of federal sentencing law and post-Booker jurisprudence? I am still scratching my head, but let me venture a few ruminations:
1. Based on the 1996 Koon decision, I have long thought that even anti-Blakely Justices favor significant district court discretion over circuit court lawmaking in the sentence arena. Consequently, I have always expect that the post-Booker cases would champion district court discretion (and perhaps fault excessive circuit court intervention) in sentencing determinations.
2. The "problem" with Rita is that championing district court discretion by affirming the sentence imposed by the district court also serves, at least indirectly, to praise the guidelines. (And, conversely, reversing in Rita might suggest reasonableness review should be aggressive.)
3. Without the Claiborne companion, the Justices may be worried that Rita alone wont allow the development of the complete message they wish to send to lower courts about post-Booker doctrines and practices.
4. But all the timing (and the many options) have me really puzzled. Whatever the court does with Rita, the holding and the dicta will reverberate through the federal sentencing world ASAP. And yet, as the Rita pebble (or boulder) ripples through the federal sentencing pond, everyone will know that the Justices have just picked up two more rocks to throw into the pond. And, under usual timelines, we shouldn't expect rulings in Gall and Kimbrough until perhaps January 2008 or later.
5. Sadly, I am now worried we might know who's the next President before we know what Booker really means for federal sentencing. Oy vey.... though I guess it's good for my business.
June 11, 2007 in Booker in the Circuits, Claiborne and Rita reasonableness case, Federal Sentencing Guidelines, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (7) | TrackBack
Snippets from the Wilson ruling from Georgia
The Atlanta Journal-Constitution now has this coverage of the state court ruling reducing the crime and sentence of Genarlow Wilson (basics here). There is a written opinion supporting the rule, and here are inspiring snippets:
In the Petitioner's case, the imposition of the rnandatory minimum 10-year prison sentence without parole and sex offender registration for consensual oral sex between teenagers would be viewed by society as "cruel and unusual" in the constitutional sense of disproportionality, especially in light of Petitioner's having never been convicted of a prior crime....
If this Court, or any Court, cannot recognize the injustice of what has occurred here, then our court system has lost sight of the goal our judicial system has always strived to accomplish — Justice being served in a fair and equal manner.
When I first heard about the Wilson case last December, I explained here and here why I thought Genarlow had a viable Eighth Amendment claim. I am glad a state judge in this case agreed. Now if the state prosecutors could have the good sense not to bother with an appeal.
Even NPR cannot resist going to Paris
Showing that no media outlet can resist covering the Paris Hilton story, the NPR program "Tell Me More" today has this extended segment entitled "After Paris: Sentencing in America Under Scrutiny." Here is part of the promo:
Changes in the case of Hollywood socialite Paris Hilton is renewing debates about criminal justice in America; the U.S. jails more of its citizens than any other nation in the world.... Marc Mauer of the Sentencing Project is joined by Jenni Gainsborough of Penal Reform International to discuss who should be locked-up and why.
As befits NPR, the "After Paris" segment is quite thoughtful and covers lots of important issues having little to do with Ms. Hilton. Relatedly, the program also has this segment entitled "Drunken Driving Penalties: Too Soft?". Here is it's set up:
More than one million drunk driving arrests are made each year in the United States. Following a string of recent high-profile incidents, some believe the courts should be tougher on those who drive under the influence. Chuck Hurley, CEO of Mothers Against Drunk Driving, and Maryland State Delegate Jolene Ivy discuss the issue.
Genarlow Wilson prevails in state habeas appeal
Good news for folks like me hoping that justice would prevail in the Genarlow Wilson case. Here is the early report from the AP of today's major development in the case:
A judge on Monday voided a 10-year sentence for a man accused of having consensual oral sex with a 15-year-old girl when he was 17. He instead gave Genarlow Wilson a 12-month misdemeanor sentence with credit for time already served. The state is likely to appeal the ruling.
Wilson's original sentence, for aggravated child molestation, was widely criticized on the grounds it was grossly disproportionate to the crime, and state lawmakers later passed a law to close the loophole that led to the 10-year sentence.
Wilson, now 21, has already served more than 27 months. He could remain behind bars while the appeal proceeds.
I am not quite sure why (or even how) Wilson can remain incarcerated if he has now been given a sentence that has been fully served. I suppose there may be a mechanism under state law for prosecutors to stay the sentence change ordered today, but I sure hope Wilson gets his release very soon. He certainly does not seem like a flight risk or a danger to the community.
Related posts will background on the Wilson case:
- ESPN effectively covers Genarlow Wilson's sad saga
- Why isn't the severe Georgia sentence constitutionally problematic?
- Another editorial urging release of Genarlow Wilson
- NYT adds to chorus calling for Genarlow Wilson to be freed
- Genarlow Wilson seeking state habeas relief
- Genarlow Wilson state habeas appeal update
A decision day for consensus at SCOTUS, with big cert news
In this post at SCOTUSblog, Lyle Denniston has the early news on all the Supreme Court action this morning. Apparently the Court has cleared out all of its "easy" cases today by issuing five unanimous decisions, with the habeas decision in Fry v. Pliler being the only action in the criminal law arena. So, more waiting for Rita and Pinetti as wel come down the Term's stretch run.
The cert grants, however, will get federal sentencing fans very excited. Here's the early report from Lyle:
The Supreme Court agreed on Monday to take up at its next Term the long-standing dispute over the fairness of punishing crack cocaine crimes far more severely -- 100 to 1 -- than those involving cocaine powder under federal Sentencing Guidelines. It agreed to hear that issue in Kimbrough v. U.S. (06-6330). It also agreed to take a case -- also to be decided next Term -- on the same Sentencing Guidelines issue that the Court had been considering in Claiborne v. U.S. before Mario Claiborne died. The new case is Gall v. U.S. (06-7949).
I will discuss Kimbrough and Gall at length in coming posts after I find out a bit more about the questions presented and the factual particulars. I'm already giddy for next term!
Lots of interesting sentencing stories in the papers
The morning news reports are teeming with items of interest on mostly capital sentencing topics. Here's a sampling:
- From the AP here, "Studies Say Death Penalty Deters Crime"
- From FoxNews here, "States Weigh Punishing Child Rapists With Death"
- From the Los Angeles Times here, "IQ debate unsettled in death penalty cases"
- From the New York Times here, "Libby's Supporters Who Wrote to Judge Learn That Letters Take on New Life on the Web"
UPDATE: Kent at Crime & Consequences has this lengthy post about the AP piece on death penalty deterrence studies.
June 10, 2007
More telling Libby litigation revelations
TalkLeft here provides more great post-game coverage of the Lewis Libby sentencing, including this order from Judge Reggie Walton (thanks to How Appealing) granting permission for law professors to file amicus brief in support of Libby's motion for bail pending appeal. A footnote in the order give Judge Walton the great last word on this week's sentencing realities.
UPDATE: Here is the full text of Walton's footnote, which has justifably garnered much attention:
It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.
MORE: Eugene Volokh wonders in this long post "What Exactly Is Judge Walton's Beef Here?". Though Eugene makes some sound points, his critical commentary fails to appreciate fully the litigation realities that Judge Walton experiences in typical criminal cases. Unlike in Libby's case, where so many lawyers (and non-lawyers) are working extraordinarily hard to ensure Libby receives the best possible defense, most criminal defendants must make due with the best efforts of a single overworked and underpaid public defender. Because of these realities, many important criminal justice issues necessarily are "under-litigated." The point of Judge Walton's footnote, I believe, is to call attention to the reality that most rich and powerful criminal defendants receive so much help and support, while many poor and powerless defendants barely receive constitutionally adequate assistance.
Paris not appealing ... really?
I have always heard that the city Paris has great appeal, but of course this post's headline refers to this latest AP news that a "day after a tearful Paris Hilton was ordered back to jail, the hotel heiress said she won't appeal her 45-day jail sentence and is 'learning and growing' from her time behind bars."
I have an inkling that this story is far from over (and this Fox News Paris Hilton Center can keep folks up to the minute on this obviously very important sentencing story). But I am definitely intrigued (and perhaps a bit disappointed) that the legal issues raised by this crazy case will not be pressed. I was already thinking about what sort of amicus brief I might write when the US Supreme Court accepted cert. (After all, the Justices and their clerks can no longer can rely on the late Anna Nicole Smith to provide appellate litigation eye-candy.)
Are juve sex offenses on the rise? If so, how should the law respond?
This AP article suggests a worrisome trend in sex offenses, although the data reported is certainly subject to debate. Here are the basics from the story:
Courts have seen the number of sex offense cases involving juvenile offenders rise dramatically in recent years, an Associated Press review of national statistics found, and treatment professionals say the offenders are getting younger and the crimes more violent.
Some psychologists blame the increase in numbers -- 40 percent over two decades -- on a society saturated with sex and violence and the fact that many of the accused were themselves victims of adult sexual predators. Others say there aren't more children committing such crimes, simply more awareness, better reporting and a general hysteria about sex offenders.
"I don't think it's appropriate to suggest we have whole schools full of sexual predators ... but we're seeing more of it and more sexually aggressive acts," said Scott Poland, past president of the National Association of School Psychologists. "How do these kids even know about this? It's permeated throughout our society."
Robert Prentky, a psychologist and nationally renowned expert on sex offenders in Bridgewater, Massachusetts, thinks the statistics are misleading. "There aren't more kids, there are more laws," he said. "We now have fairly draconian laws with very harsh sanctions that apply to juveniles."
The number of children under 18 accused of forcible rape, violent and nonviolent sex offenses rose from 24,100 in 1985 to 33,800 in 2004, the AP's analysis found. Violent offenses include attempted rape and sexual assault, while nonviolent offenses including fondling, statutory rape and prostitution.
A debate over what the data means is interesting, though I am even more intrigued by the question of how should sentencing law respond. Sentences for sex offenses and for juvenile offenders have increased dramatically over the past two decades, so I am not sure we can get much tougher. Perhaps, as the AP article suggests, the response to this data has to be a great emphasis and research on treatment options, especially because it is clear that those who suffer abuse are at great risk of becoming future offenders.
A high-profile appeal on acquitted conduct sentencing
This lengthy article in the Daily Report, Atlanta's legal paper, details some of the particulars of Friday's oral arguments in the Eleventh Circuit in the appeal by former Atlanta mayor Bill Campbell. As the article notes, I accepted this "high-profile case in hopes of drawing attention to the acquitted conduct issue." In addition to providing an extended account of the oral arguments, the Daily Report provides links to Campbell's main brief and reply brief and to the government's brief.
Since I took on this case last year, I have not blogged at all about the particulars. And this will likely be my last post about the case until a decision is rendered by the Eleventh Circuit (which I hope will come before too long).