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."