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June 30, 2007

What goes around comes around

This AP article documents Justice Breyer's evident frustrations with the schools ruling this past week:

Supreme Court Justice Stephen Breyer shook his head.  He rolled his eyes. He even grimaced once or twice as he listened to Chief Justice John Roberts read the majority opinion in the school diversity case on Thursday.  As the high court ended its term, Breyer showed obvious disappointment with the opinion.

Funny, this tends to be my reaction when I read Justice Breyer's opinions on the Sixth Amendment.

For lots of end-of-Term coverage, be sure to check out How Appealing and The Volokh Conspiracy.

June 30, 2007 | Permalink | Comments (0) | TrackBack

June 29, 2007

Extended discussion of race and justice among Democratic hopefuls

Thanks to the folks at The Sentencing Project, you can catch a video of the extended discussion of race and criminal justice issues that took up about six minuted in last night's Democratic candidate's debate. Here's the link to the debate link and a brief overview from The Sentencing Project:

Democratic Forum, the first of the All-American Presidential Forums broadcast on PBS and hosted by Tavis Smiley, addressed the issues of mandatory minimum sentencing and racial disparity in the nation's criminal justice system Thursday.  Hosted at Howard University in Washington, D.C., the forum focused on crime and punishment as one of eight topics presented to the Democratic candidates.  Rep. Kucinich first brought up the need to eliminate mandatory minimum sentencing when asked about the disparate rate of incarceration, because "We know who's serving those mandatory minimums."  Several candidates addressed the need for reform of federal crack cocaine sentencing laws, including Sen. Joseph Biden, who this week introduced the Drug Sentencing Reform & Cocaine Kingpin Trafficking Act of 2007 which would eliminate the crack and powder cocaine sentencing disparity.

Some related posts:

June 29, 2007 in Race, Class, and Gender | Permalink | Comments (0) | TrackBack

Criminal sentencing and the Roberts Court after OT '06

After this week's large batch of divided and very partisan rulings from the Supreme Court, the big end of Term themes focus on (1) the Court's turn to the right (see this ACLU press release), and (2) the centrality of Justice Kennedy's views on the Court's rulings (see this SCOTUSblog commentary).   For folks interesting primarily in criminal sentencing issues, these general themes have some interesting and counter-intuitive particulars:

Capital Punishment: As the Panetti decision documents and as Karl Keys effectively highlights here, Justice Kennedy is central to the Court's death penalty work.  Here's is Karl's spot-on assessment of where capital jurisprudence now stands after a Term of split capital rulings:

[T]he Court continues reigning in what Justice Kennedy perceives as the excesses of capital jurisprudence that he sees as out of the mainstream.  Put another way, Justice Kennedy appears to be proposing a "Goldilocks standard" for capital jurisprudence — not too hot (Texas & the Fifth Circuit), not too cold (a certain unnamed west coast circuit), but somewhere in between.  What the next Term holds remains to be seen, but already some are foreseeing another scolding of the Texas Court of Criminal Appeals early next Term in Medellin v. Texas.

Non-Capital Sentencing: As the Rita and Cunningham rulings show, Justice Kennedy is not a dominant force in the Court's still evolving Sixth Amendment jurisprudence (Kennedy's only written dissent this Term was in Cunningham).  Moreover, the result in Cunningham and the dicta in Rita confirm my view that the Roberts Court, though hardly likely to be mistaken for the Warren Court, remains perhaps the most liberal appellate court in the country on non-capital sentencing issues.  Indeed, were it not for the evaporation of the Claiborne case and two purported liberals (Justices Souter and Breyer) preferring Justice Alito's views to Justice Scalia's view in James, this Term could have been a remarkable one for criminal defendants on non-capital sentencing issues.  And, with Kimbrough and Gall in the works for next Term, there is every reason to expect that the Supreme Court will continue to be most liberal appellate court in the country on non-capital sentencing issues in the coming years.

Looking to some broader criminal justice themes, it is also worthwhile and interesting to note that, outside the death penalty context, the Roberts court resolved more criminal justice issues by votes of 9-0 than 5-4.  Except in the high-profile (but low impact) capital punishment realm, this seemingly very divided Court is not all that divided on a variety of criminal justice issues.

June 29, 2007 in Who Sentences? | Permalink | Comments (2) | TrackBack

Nice simple account of Rita from the Seventh Circuit

Though I am still awaiting (and may wait a long time for) a blockbuster post-Rita opinion from the circuit courts, the Seventh Circuit on Thursday provided this effective brief account of the Rita decision in US v. Sachsenmaier, No. 05-3505 (7th Cir. June 28, 2007) (available here):

[T]he Supreme Court has now expressly endorsed the rebuttable presumption of reasonableness for appellate review of a district court’s sentencing decision.  See Rita v. United States, No. 06-5754, 2007 WL 1772146 (June 21, 2007); United States v. Nitch, 477 F.3d 933, 937- 38 (7th Cir. 2007); United States v. Gama-Gonzalez, 469 F.3d 1109 (7th Cir. 2006). The Rita decision emphasized that this is a standard for appellate review only. Rita, 2007 WL 1772146, at *9.  The district courts must calculate the advisory sentencing guideline range accurately, so that they can derive whatever insight the guidelines have to offer, but ultimately they must sentence based on 18 U.S.C. § 3553(a) without any thumb on the scale favoring a guideline sentence.  If, however, a district court freely decides that the guidelines suggest a reasonable sentence, then on appellate review the defendant must explain why the district court was wrong.

June 29, 2007 in Rita reactions | Permalink | Comments (3) | TrackBack

June 28, 2007

Former gov Siegelman and former CEO Scrushy both get around 7 Years

As detailed in this AP article, "former Alabama Gov. Don Siegelman was sentenced to more than seven years in federal prison and former HealthSouth CEO Richard Scrushy got nearly seven years Thursday in a bribery and corruption case that the judge said damaged public trust in state government."  Here are a few details from the article:

Supporters of both men had testified at their sentencing hearing, listing the men's good deeds as their attorneys pleaded with U.S. District Judge Mark Fuller to show mercy.

"While it is true the good far exceeds the bad, I must impose a fair punishment to reassure all that come before this court that justice is blind," Fuller said in sentencing Siegelman.  Both men were immediately taken into custody after the judge denied defense requests to let them remain free while they appeal....

Fuller had increased the possible sentence range for Siegelman to more than 15 years earlier Thursday and left Scrushy's possible range at eight to 10 years. But he was not bound by the guidelines. Prosecutors asked for 30 years for Siegelman and 25 for Scrushy, while the defense pleaded for probation for both.

Related recent posts:

June 28, 2007 in Booker in district courts | Permalink | Comments (2) | TrackBack

Panetti prophesies?

As detailed here at SCOTUSblog, today is likely the last day of the Supreme Court term and the Justices are expected to release their final opinions.  A school integration ruling will likely be the biggest story, but the Court's work in Panetti, the case from Texas concerning the constitutionality of executing a delusional defendant, will also surely garner attention.

Most court-watchers expect Justice Kennedy to be authoring Panetti, and it likely will be a 5-4 decision.  But since Justice Kennedy has split his votes in the major capital cases this Term (unlike the other eight Justices), we cannot be sure whether the defendant or Texas will prevail in Panetti.  And, for the broader operation of capital justice systems nationwide, exactly what the Justices say in Panetti is ultimately more important than how they resolve Mr. Panetti's appeal.

I will be on the road and off-line while heading to a conference today, but SCOTUSblog and death penalty blogs will surely have plenty of Panetti coverage while I'm away.  And readers are encouraged (before and after the opinion is released) to predict whether Panetti will be profoundly important or largely insignificant to the modern administration of the death penalty in the United States.

UPDATE:  How Appealing has all the news coverage of Panetti here, and Amy Howe at SCOTUSblog reviews the opinion here.

June 28, 2007 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

Open thread on Paris Hilton saga

I was pretty bored watching Paris Hilton's interview on Larry King last night (which CNN discusses at length here).  But perhaps others can find some broad insights from the interview or more generally from the whole Hilton saga.  Since I will be off-line most of today, I have created this open thread for any readers eager to use the comments to provide some Paris perspective.

June 28, 2007 in Celebrity sentencings | Permalink | Comments (5) | TrackBack

Is federal judicial intervention necessary for California's prison woes?

This Los Angeles Times article reports on the indications that federal judges are prepared to intervene in order to get serious about remedying California's prison crisis:

Two federal judges charged with forcing changes to California's troubled, overcrowded prisons expressed doubt Wednesday that Gov. Arnold Schwarzenegger would turn the system around, and indicated a willingness to move toward capping the inmate population. Such a move could push California's correctional system — the biggest in the nation — to overhaul the way it sentences criminals or even, some say, trigger the early release of thousands of inmates.

In a federal court hearing, lawyers representing prisoners appealed Wednesday to U.S. District Judges Lawrence Karlton of Sacramento and Thelton Henderson of San Francisco to impanel a three-jurist court to impose a cap.  Schwarzenegger administration attorneys told the judges that recent progress on improving medical and mental healthcare for inmates rendered such a drastic move unnecessary.

Some related posts on California's prison woes:

June 28, 2007 in Scope of Imprisonment | Permalink | Comments (10) | TrackBack

A guidelines update on the Scrushy and Siegelman sentencings

This local story details that the federal judge has finished the "guidelines phase" of the sentencing trial for former Alabama Governor Don Siegelman and former HealthSouth Chairman Richard Scrushy:

A federal judge set a range of 10 to 12 years in prison for former Gov. Don Siegelman on Wednesday and a term of about 7 to 10 years for former HealthSouth CEO Richard Scrushy using federal sentencing guidelines.  U.S. District Judge Mark Fuller must sentence the two men within those terms unless he finds extenuating circumstances.

The judge said he expects to be able to complete the sentencing phase today. The sentencing phase of the June 2006 trial, in which Siegelman and Scrushy were found guilty of bribery, conspiracy and mail fraud, started Tuesday.  The former governor was also convicted of obstruction of justice.

U.S. Attorney Louis Franklin said prosecutors are happy with the range shared by the judge even though it is not as stiff as they requested. The sentencing guidelines set prison time at less than federal prosecutors wanted. They asked for 30 years for Siegelman and 25 years for Scrushy.

The attorneys for the defendants said they will continue to argue for less prison time because of the men's years of public service and the potential impact on their families. Federal prosecutors said the men should receive longer sentences because they are responsible for multiple criminal acts over several years to the detriment of Alabama citizens.  Prosecutors maintain that a firm sentence is needed to deter future criminal acts by public officials.

As he left court for the day, Scrushy said he had no reaction to the sentencing guidelines. Siegelman, on the other hand, said he is pleased that the judge appears open-minded.

It is sadly telling that, even after Booker, the newspaper reports that the district judge "must sentence the two men within [the guidelines] unless he finds extenuating circumstances."  Especially after Rita, I do not think this is legally accurate, but judges may well feel it is practically accurate in light of some post-Booker circuit precedents.

Related posts:

June 28, 2007 in Booker in district courts | Permalink | Comments (2) | TrackBack

June 27, 2007

Did anyone at the Senate hearing today discuss the de facto federal capital moratorium?

I am getting really frustrated by the lack of attention being given to the Bush Administration's acceptance of a de facto moratorium on federal executions based on lethal injection litigation.  As first discussed here, today there was a hearing on "Oversight of the Federal Death Penalty" before a Senate Subcommittee, and all the submitted testimony is now linked here.  I have searched in vain for any mention of the six federal executions that are being indefinitely stayed, with the Justice Department's apparent approval, because of lethal injection litigation.  This NPR report on the Senate hearing does not discuss the issue at all.

I keep harping on this issue because all the deterrence literature supporting the death penalty assert that executions (not merely having the death penalty on the books) is what saves innocent lives.  Indeed, the written Senate testimony from William Otis and Dr. David B. Muhlhausen stress recent evidence of capital deterrence to support the federal death penalty.  Dr. Muhlhausen's testimony, for example, stressed a study that "found that each execution, on average, results in 18 fewer murders" and that "implementation of state moratoria is associated with the increased incidence of murders."

But, if this capital deterrence evidence is credited by these witnesses and others, the Bush Administration's acceptance of a de facto moratorium on federal executions is essentially responsible for an "increased incidence of murders" and the indefinitely delay of six federal executions may be responsible for 108 more murders!  Why aren't death penalty supporters aggrieved by the how this issue is being handled at the federal level?

Of course, I respect efforts by the Justice Department to ensure that the federal lethal injection protocol is sound.  But a number of states have carefully reviewed and improved their protocols and gone forward with executions during the unexplained delay in the operation of the federal death penalty.  Indeed, as noted here at Crime & Consequences, three different states yesterday carried out lethal injections without any obvious problems.

Can anyone help me understand why this issue has received no attention from anyone but me? 

Some related posts:

UPDATE:  To clarify my points and concerns, let me note that I remain agnostic regarding the long-debated issue of whether executions "save lives" through deterrence.  This post is not meant to assert a firm view on the merits of the deterrence argument, but rather to question why those who genuinely believe — and publically claim to believe — that executions "save lives" through deterrence are not publically complaining about the Bush Administration's acceptance of a de facto moratorium on federal executions.

June 27, 2007 in Death Penalty Reforms | Permalink | Comments (11) | TrackBack

The latest BJS stats on incarceration nation

Fresh off the presses from the Bureau of Justice Statistics is its report at this link entitled, "Prison and Jail Inmates at Midyear 2006." Here are some ugly particulars from this official press release from BJS:

During the 12 months that ended June 30, 2006, the nation's prison and jail populations increased by 62,037 inmates (up 2.8 percent), to total 2,245,189 inmates, the Justice Department’s Bureau of Justice Statistics (BJS) reported today. State and federal inmates accounted for 70 percent of the increase.  At midyear 2006, two-thirds of the nation’s incarcerated population was in custody in a state or federal prison (1,479,179), and the other one-third was held in local jails (766,010)....

Forty-two states and the federal system reported an increase in their prison populations during the 12 months ending June 30, 2006. Idaho had the largest percentage increase (up 13.7 percent), followed by Alaska (up 9.4 percent) and Vermont (up 8.3 percent). Eight states reported declines in their prison populations, led by Missouri (down 2.9 percent), Louisiana and Maine (both down 1.8 percent).

The number of federal prisoners increased by 3.6 percent to reach 191,080 prisoners.  At midyear 2006 the federal system had jurisdiction over more prisoners than did any single state, including California and Texas, which had jurisdiction over 175,115 and 172,889 prisoners, respectively....

Black men comprised 37 percent of all inmates held in custody in the nation's prison and jails on June 30, 2006.  About 4.8 percent of all black males in the general population were in prison or jail, compared to 1.9 percent of Hispanic males and 0.7 percent of white males.  Among black men age 25 to 34 years, more than 11 percent were incarcerated in prison or jail.

As I prepare for a coming July Fourth trip to our Nation's capital, perhaps readers can help me understand how these statistics jibe with my favorite line from the Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

June 27, 2007 in Scope of Imprisonment | Permalink | Comments (20) | TrackBack

Genarlow Wilson to remain in prison, despite ruling that his sentence is unconstitutional

Howard Bashman notes reports from the AP and from the Atlanta Journal-Constitution that a state judge has now ruled that Genarlow Wilson is not eligible for bond pending the state's appeal of a ruling that his sentence is unconstitutional.  As previously detailed here and here, lower court has already ruled that Wilson's original sentence was unconstitutional, although that ruling due to be review by the Georgia Supreme COurt in the fall (details here).

I do not quite understand why executive officials in Georgia believe it is necessary and appropriate — or even lawful — to keep Wilson in prison when the last state judge to review this case has declared Wilson's sentence unconstitutional.  I understand that the Georgia Attorney General regards the lower court's ruling as problematic.  But given that the AG apparently recognizes that Wilson presents no risk of flight or dangerousness, shouldn't he agree to Wilson's release pending appeal.  Indeed, might one argue that it is unconstitutional for the Georgia AG to continued Wilson's imprisonment under these circumstances?

June 27, 2007 in Examples of "over-punishment" | Permalink | Comments (11) | TrackBack

Seventh Circuit reverses below guideline sentence (without mention of Rita)

I have already noticed in decisions from the Sixth and Eighth Circuits a few brief references to Rita in standard opinions affirming within-guideline sentences.  Consequently, I am somewhat surprised, and certainly disappointed, that the Seventh Circuit's significant sentencing ruling today in US v. Goldberg, No. 07-1393 (7th Cir. June 27, 2007) (available here), lack any mention of Rita.

The Goldberg decision, which was authored by Judge Posner, reverses a below-guideline sentence of just one day of imprisonment for a seemingly troubled young man convicted of downloading and sharing child porn.  Here are a couple key passages from Goldberg:

A prison sentence of one day for a crime that Congress and the American public consider grave, in circumstances that enhance the gravity (we refer to the character of some of the images), committed by a convicted drug offender, does not give due weight to the "nature and circumstances of the offense" and the "history and characteristics of the defendant." It does not "reflect the seriousness of the offense," "promote respect for the law," or "provide just punishment for the offense."  It does not "afford adequate deterrence to criminal conduct."  And it creates an unwarranted sentence disparity, since similarly situated defendants are punished with substantial prison sentences....

We do not rule that a sentence below a properly calculated guidelines range would have been improper in this case.  The guidelines are merely advisory, and the statutory sentencing factors (a laundry list of incommensurables which guides consideration but does not dictate the sentence or even the sentencing range) leave plenty of discretion to the sentencing judge. But that discretion was abused in this case, and the judgment is therefore reversed and the case remanded for resentencing.

I find most of the Seventh Circuit's work in Goldberg to be well-founded.  But I am troubled a bit by the timing (especially in light of some broad dicta in Goldberg): the case was apparently submitted for decision less than a month ago and the panel obviously rushed out an opinion.  But, with the Rita ruling released last week, I think Judge Posner et al. should have taken a little extra time to see if Rita ought to impact its dicta and dictates (even if not its unreasonableness conclusion) in Goldberg.

UPDATE:  In a similar (and somewhat more comical) vein, the Southern District of Florida Blog notes here provides an account of an Eleventh Circuit ruling that it similarly behind the current sentencing times:

Today the Eleventh Circuit, in an unpublished opinion, affirmed a sentence [in which the defendant argued the Court] should wait until the Supreme Court decided Rita before issuing an opinion.  The 11th Circuit said that wasn't necessary -- it need not wait on the High Court to issue an opinion in Rita because it wouldn't affect the outcome.   Fair enough..... except one thing: the Supreme Court decided Rita last Thursday and Aguirre Lopez came out today.

June 27, 2007 in Booker in the Circuits | Permalink | Comments (7) | TrackBack

Qwestions about victim input at sentencing of former Qwest CEO

As detailed in this news article, the upcoming sentencing of former Qwest CEO Joe Nacchio is raising interesting questions about the role of victims in white-collar sentencing proceedings:

Federal prosecutors on Tuesday requested a process for notifying "victims" so they could exercise their right to be "reasonably heard" at the July 27 sentencing of former Qwest CEO Joe Nacchio.  In a U.S. District Court filing in Denver, prosecutors wrote that Congress requires courts to establish such a procedure, as long as it is reasonable and "does not unduly complicate or prolong the proceedings."

Defense attorney Mark Rufolo argued at a status conference in late May that federal statute prohibits victim statements in such a case.  Prosecutors at that time indicated there likely wouldn't be statements by victims, or people who bought stock at the time Nacchio was making his illegal sales and who later suffered big losses....

Government prosecutors acknowledged in their filing that the U.S. Sentencing Commission has concluded that "victims and their losses are difficult if not impossible to identify" in insider-trading cases.  For example, it's virtually impossible to know exactly which Qwest shareholders bought the exact 1.33 million shares of stock Nacchio sold during the period in question. But stockholders who made investment decisions during the insider-trading period and were affected by Nacchio's conduct also may be considered victims, prosecutors wrote. Qwest itself could be considered a victim, prosecutors added.

Prosecutors requested that a number of actions be taken to reasonably notify victims, including putting information on the U.S. attorney's office Web site, sending a letter to a class-action shareholders group, writing letters to Qwest and the Association of U S West Retirees, and publishing notices in daily newspapers.

Nacchio's lead attorney, Herbert Stern, said Tuesday his team would file a response to the government's motion in "due course."

Some recent related posts:

June 27, 2007 in Who Sentences? | Permalink | Comments (0) | TrackBack

Update on high-profile sentencing "trial" in Alabama

It is hard to take seriously the argument that it is too time-consuming to have juries involved in sentencing after reading press reports from Alabama about the on-going, week-long sentencing "trial" taking place before US District Court Judge Mark Fuller in the case of former Alabama Governor Don Siegelman and former HealthSouth Chairman Richard Scrushy.  This local news report provides details on the first day of sentencing action in a case with no shortage of political and personal drama.

Related posts:

UPDATE:  I see the White Collar Crime Prof Blog here has more on these sentencings, including links to the defendants' sentencing memos.

June 27, 2007 in Booker in district courts | Permalink | Comments (2) | TrackBack

June 26, 2007

Interesting USSC data on mandatory minimums

Now available on line at this link from the US Sentencing Commission is the prepared statement of Ricardo Hinojosa, USSC Chair, for today's House hearing on mandatory minimum sentencing.  This statement is full of very interesting data on the application of mandatory minimum sentences during fiscal year 2006.  Here is a sample of the statement's many interesting snippets of data:

Of these 69,627 cases [with complete information from fiscal year 2006], offenders in 20,737 cases (29.8%) were convicted of a statute carrying a mandatory minimum penalty.  Of these 20,737 offenders, 2,716 (13.1%) received a statutory mandatory minimum sentence that was required to be consecutive to any other sentence imposed....

Black offenders are the only racial/ethnic group that comprised a greater percentage of offenders convicted of a statute carrying a mandatory minimum penalty (32.9%) than their percentage in the overall fiscal year 2006 offender population (23.8%)....

Excluding immigration cases, both Hispanic offenders and black offenders comprised a greater percentage of non-immigration offenders convicted of a statute carrying a mandatory minimum penalty than their percentage in the overall fiscal year 2006 offender population.

June 26, 2007 in Mandatory minimum sentencing statutes | Permalink | Comments (0) | TrackBack

Senate hearing tomorrow on the federal death penalty

200pxmaytag_repairman As officially detailed here, the "Senate Committee on the Judiciary, Subcommittee on the Constitution, has scheduled a hearing on "Oversight of the Federal Death Penalty" for Wednesday, June 27, 2007 at 9:30 a.m. in Room 226 of the Senate Dirksen Office Building."  (I surmise that this hearing is what prompted this new ACLU report entitled "The Persistent Problem of Racial Disparities in the Federal Death Penalty.")  The list of scheduled witnesses on the two panels suggests there is, as one reader put it to me, "a little something for everybody."   

Regular readers know that I have been somewhat perplexed by the fact that, while the Bush Administration has consciously sought to increase the number of federal capital prosecutions, it also seems to be supporting a de facto moratorium on federal executions based on lethal injection litigation and thus is not seriously seeking to carry out scheduled death sentences.  I am hopeful that this Senate hearing will provide some more information on why states are moving ahead with execution plans despite lethal injection challenges,while the federal execution team is playing the role of the Maytag repair man.

Some related posts:

June 26, 2007 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Today's discussion topic: is incarceration a good thing for certain high-profile defendants?

Jeralyn here at TalkLeft cover Paris Hilton's release from jail and comments that "Hilton looks none the worse for the wear of three weeks in jail.  As TMZ notes, she looks....refreshed."  Reflecting on how Martha Stewart and Chuck Colson and a few other high-profile defendants have prospered in various ways from being incarcerated, I am wondering if anyone has formally explored the notion that relatively short periods of incarceration may actually benefit certain types of high-profile defendants.  My guess is that Lewis Libby's lawyers are not working on this project.

June 26, 2007 in Celebrity sentencings | Permalink | Comments (0) | TrackBack

Follow-up on today's House hearing on mandatories

The Administrative Office of the U.S. Courts has just issued this news release reporting on the testimony of District Judge Paul Cassell at this morning's hearing, entitled, "Hearing on Mandatory Minimum Sentencing Laws — The Issues," before the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee.  I am hopeful there will be more media coverage from the hearing, though any readers in attendence are encouraged to provide a report in the comments:

Some recent related posts:

UPDATE:  The Sentencing Project has a brief report on the hearing here.

June 26, 2007 in Mandatory minimum sentencing statutes | Permalink | Comments (1) | TrackBack

Porn hits 4 prisoners in Sweden

Yesterday, as detailed here, the US Supreme Court ruled that American students did not have a right at a school function to unfurl a banner saying "Bong hits 4 Jesus."  But, thanks to How Appealing, I see from this AP article that the "Supreme Administrative Court in Stockholm last week ruled that the Swedish Prison and Probation Service had no right to deny a rape convict access to his porn magazines."   Here are more details:

Prison officials had argued that reading porn would interfere with the man's rehabilitation program. They also said the magazines posed a security problem for staff and other inmates because they could increase the risk of the man relapsing into criminal behavior. But the court, whose ruling cannot be appealed, said the prison service failed to prove that the magazines could "jeopardize the security of the institution."

Perhaps Sweden ought to be the country primarily in charge of trying to spread freedom around the world.

June 26, 2007 in Scope of Imprisonment | Permalink | Comments (4) | TrackBack

The safety valve solution to mandatory minimums

As discussed here and officially detailed here, this morning the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee is holding a hearing entitled, "Hearing on Mandatory Minimum Sentencing Laws — The Issues."   As spotlighted here, US District Judge Paul Cassell, speaking on behalf of the Judicial Conference of the United States, makes a very powerful statement against mandatory minimums. 

Unsurprisingly, however, US Attorney Richard Roper's written testimony argues in support of mandatory minimum sentencing laws and asserts that they are "critical tools for combating certain serious crimes."  Interestingly, though, Roper's testimony expresses support for the federal safety valve provisions, which he says "has been successful at preventing the mandatory minimum drug provisions from sweeping too broadly." 

I concur that the statutory safety valve has helped ameliorate some of the worst excesses of some mandatory minimum sentencing provisions.  However, Judge Cassell's testimony documents that the safety valve does not help in all cases (principally because of some rigid limitations in the reach of the safety valve).  I have long thought that, if Congress lacks the political will to eliminate all broad mandatory minimum sentencing provisions, it ought to at least expand the applicability of the safety valve to all first offenders and perhaps to all other nonviolent offenders.  After all, as Roper's testimony highlights, prosecutors view mandatory minimums as most important and perhaps only justified when directed at "major drug traffickers, gang violence, predators, and those who use firearms to further violent or drug-trafficking criminal activity."

Some recent related posts:

June 26, 2007 in Mandatory minimum sentencing statutes | Permalink | Comments (9) | TrackBack

Putting money where the sentencing injustice is

As detailed in articles appearing in USA Today and the Atlanta Journal-Constitution, a "New York investment manager and 10 of his friends have pledged $1 million in cash to try to win the release of a Georgia man imprisoned for a consensual sex act."  Here are more details from the USA Today article:

Genarlow Wilson, 21, is serving a 10-year sentence for receiving oral sex from a 15-year-old girl when he was 17.  He has been behind bars for more than 28 months.  Two weeks ago, a Monroe County judge ordered his release.  Because Georgia Attorney General Thurbert Baker appealed, however, Wilson remains in prison.

"A miscarriage of justice has occurred here, yet he's still in jail," says Whitney Tilson, a mutual and hedge fund manager who will commit $100,000 of his own money to a bond fund for Wilson.  Tilson, who is founder and managing partner of T2 Partners Management LP and Tilson Mutual Funds, read about Wilson's case in December and thought his punishment was excessive.

Related posts will background on the Genarlow Wilson case:

June 26, 2007 in Examples of "over-punishment" | Permalink | Comments (1) | TrackBack

A intriguing report on a faith-based prison

This BBC News piece presents an intriguing account of some inmates' experiences with faith-based prison programming at the Tucker Correctional Facility, near Little Rock, Arkansas (hat tip: Corrections Sentencing).  The piece notes the constitutional litigation over faith-based prison programming, and it makes me wonder when an Eighth Circuit panel (which includes retired Justice Sandra Day O'Connor) will be issuing an opinion in the litigation arising from faith-based prison programming in Iowa.

Some related posts:

June 26, 2007 in Scope of Imprisonment | Permalink | Comments (5) | TrackBack

June 25, 2007

The notable federal-state disparity in carrying out executions

There has been much discussion of the increased number of federal capital prosecution under the Bush Administration.  But, as detailed in posts here and here, I am more concerned that the Bush Administration seems to be supporting a de facto moratorium on federal executions and not being called to account for its failure to try to carry out scheduled death sentences.  In this vein, here is a new report from the ACLU, entitled "The Persistent Problem of Racial Disparities in the Federal Death Penalty," which laments "federal death prosecutions at an ever-accelerating pace," but does not explore why six federal executions are on hold because of lethal injection litigation.

Meanwhile, in sharp contrast, states are moving forward with scheduled executions.  In fact, as detailed here, Tuesday brings scheduled executions in three different states: in Georgia, in Oklahoma, and in Texas.

Some related posts:

June 25, 2007 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

More sentencing news from Hollywood

Apparently I need to start watching Access Hollywood to keep up with the latest sentencing news.  Or I suppose I could just read People magazine, as this article has the latest celebrity sentencing news:

Tom Sizemore on Monday was sentenced to 16 months in prison for violating his probation in a drug-related case — though a prosecutor tells PEOPLE the actor will only serve two to seven months should he receive credit for time he's already spent in rehab.

Of course, People also has the latest on Paris Hilton's impending release from jail.  I found most interesting, however, this AP story reporting on Hilton's post-prison plans:

Hilton told E! News last week that she plans to build a "transitional home" to help recently released inmates readjust to freedom.  "These women just keep coming back (to jail) because they have no place to go," Hilton said.  "It's a really bad cycle and if we stop it now, we can make our community a better place."

Notably, as detailed here and here, Martha Stewart expressed a similar interest in sentencing and corrections reforms while she was behind bars.  And yet — surprise, surprise — I can't find any reform efforts being pioneered at MarthaStewart.com.  Maybe she's waiting to team up with Lewis Libby.

June 25, 2007 in Celebrity sentencings | Permalink | Comments (0) | TrackBack

Judge Adelman provides thorough (and first?) lower court analysis of Rita

I am pleased to report I have just received a copy of a (first?) major lower court opinion discussing the impact of Rita on post-Booker federal sentencing realities.  The opinion comes from US District Judge Lynn Adelman in US v. Santoya, No. 06-CR-82 (ED Wis. June 25, 2007) (available for download below).  (Judge Adelman, of course, is responsible for many ground-breaking post-Booker decisions, including Ranum on the weight to be given to the guidelines (basics here, commentary here and here) and Smith on crack-cocaine disparities (basics here).)

Judge Adelman does his usual strong and to-the-point work in taking stock of Rita.  Here is one of many significant passages from Santoya:

Thus, while Rita spoke primarily to those courts of appeals who presumed reasonable a guideline sentence, it also assured district courts that the guidelines are truly advisory. The Court affirmed the broad sentencing discretion district judges possess under Booker and stated that they may impose non-guideline sentences by departing or applying § 3553(a).  Correspondingly, the Court stressed the importance of providing reasons for the sentencing decision. Although the judge may, absent non-frivolous arguments to the contrary, often say little when he imposes a guideline sentence, he must respond when "a party contests the Guidelines sentence generally under § 3553(a) — that is argues that the Guidelines reflect an unsound judgment, or, for example, that they do not generally treat certain defendant characteristics in the proper way — or argues for departure[.]" Id. at 12.

The Court thus placed nothing off-limits for district courts, not even arguments that the guideline reflects "an unsound judgment" generally, but instead placed on district courts the burden to explain why they impose the sentences they do.  As I have often stressed post-Booker, while advisory guidelines mean greater discretion, they also mean greater responsibility. See, e.g., United States v. Ranum, 353 F. Supp. 2d 984, 987 (E.D. Wis. 2005).

Download santoya_written_sentencing_memorandum.pdf

As this passage suggests, Santoya is the first must-read after Rita.  Indeed, to paraphrase a well-known quote, those who cannot learn from Santoya are doomed not to reap its many insights.

Some recent related posts:

June 25, 2007 in Booker in district courts | Permalink | Comments (2) | TrackBack

Powerful attack from Judicial Conference against mandatory minimums

As first noted here and as detailed officially here, tomorrow morning the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee is holding a hearing entitled, "Hearing on Mandatory Minimum Sentencing Laws — The Issues."  I have been expecting that most of the speakers would be offering testimony critical of mandatory minimum sentencing statutes.  I have just received a copy of the written statement of US District Judge Paul Cassell on behalf of the Judicial Conference of the United States, and it is even more critical than I expected. 

Judge Cassell written statement on behalf of the Judicial Conference is available for download below.  Here is how it begins:

I am pleased to be here today on behalf of the Judicial Conference of the United States and its Criminal Law Committee to discuss the damage mandatory minimum sentence do to logic and rationality in our nation's federal courts.

Mandatory minimum sentences mean one-size-fits-all injustice.  Each offender who comes before a federal judge for sentencing deserves to have [his or her] individual facts and circumstances considered in determining a just sentence.  Yet mandatory minimum sentences require judges to put blinders on to the unique facts and circumstances of particular cases, producing what the late Chief Justice Rehnquist has aptly identified as "unintended consequences."

Download statement_of_honorable_paul_cassell.pdf

UPDATE:  I now see that the full list of witnesses for the hearing is available at the official House website.  Here is the full list of scheduled witnesses:

June 25, 2007 in Mandatory minimum sentencing statutes | Permalink | Comments (3) | TrackBack

Lots of morning SCOTUS action

This is likely the last week of Supreme Court activity before the summer recess, although only one major criminal justice case — the Panetti death penalty case — is still pending.  Of course, SCOTUSblog and then How Appealing are the places to go for all the Supreme Court news and follow-up. 

This post from Lyle Denniston at SCOTUSblog indicates that today's Court action included a notable death-penalty cert grant:

The Supreme Court on Monday granted four cases for review next Term, including a significant test case on the use of references to the O.J. Simpson not-guilty verdict to help persuade an all-white jury to impose a death sentence on a black defendant.

June 25, 2007 in Who Sentences? | Permalink | Comments (2) | TrackBack

Will there be lower court Rita reactions this week?

As I stressed in this post (and other insightful folks have also noted here and here), the Supreme Court's Rita decision seems to approve a guideline-centric approach to post-Booker sentencing, but also seems to condone any reasoned decision by lower courts to take other approaches to post-Booker sentencing law and procedure.  Consequently, Rita's "meaning" may only became clear as lower courts revise (or reiterate) their approach to post-Booker sentencing. 

Thus, I am especially eager to see if this week there are some early rulings from district or circuit courts articulating views about how Rita changes (or does not change) their views of the post-Booker federal sentencing landscape.  As I have noted in posts listed below, there are lots of new (and old) issues and questions left unresolved by Rita:

As first noted here and detailed here, Gregory Nicolaysen of the Association of Federal Defense Attorneys (AFDA), has organized an audio webcast for today at 12noon EDT to allow me to discuss some of these post-Rita issues and the ruling's possible aftermath.

June 25, 2007 in Rita reactions | Permalink | Comments (2) | TrackBack

More on upcoming Scrushy and Siegelman sentencings

As detailed in this recent post, a federal district court in Alabama will be sentencing for former Alabama Governor Don Siegelman and former HealthSouth Chairman Richard Scrushy, and the case is filled with intrigue.  This new local news article, entitled "Sentencing hearing for Scrushy, Siegelman could be like a mini-trial, lawyers say," highlights that the sentencing will also be filled with lots of legal issues.  Here are snippets:

Ambitious, intelligent and shrewd,  Richard Scrushy and Don Siegelman rose from humble beginnings to create corporate and political empires. Tuesday, the HealthSouth founder and the former Alabama governor will stand together before a federal judge, facing the possibility of years in prison for convictions on federal bribery, conspiracy and mail fraud charges.

Prosecutors are seeking 30 years in prison for the ex-governor, 61, who was also convicted on an additional obstruction of justice charge, and 25 years for the 54-year-old Scrushy.  Defense lawyers say the sentences would amount to life in prison; they will ask for probation and have set their sights on the federal appellate courts to overturn the convictions.

"These defendants have basically thumbed their nose at the criminal justice system," said lead prosecutor Louis Franklin, the acting U.S. Attorney in the case.  Art Leach, Scrushy's defense lawyer and a former federal prosecutor, said such a sentence would be "unprecedented." "I think it's completely incorrect. I think it's actually absurd," Leach said.

The sentencing hearing, set to begin at 9 a.m. Tuesday at the Montgomery federal courthouse, could stretch the rest of the week. The results could decide the fates of two Alabama natives whose lives, until recently, read like all-American success stories.

Related posts:

June 25, 2007 in Celebrity sentencings | Permalink | Comments (0) | TrackBack

Everything Libby (and everyone else) needs to know about pardons

P.S. Ruckman, Jr. has created this interesting blog entitled "Pardon for Scooter Libby?", which "features a series of regularly updated, brief essays regarding the possible presidenital pardon of 'Scooter' Libby with an emphasis on history, law and empirical research."  Among the recent interestings posts are:

June 25, 2007 in Clemency and Pardons, Libby sentencing | Permalink | Comments (1) | TrackBack

June 24, 2007

New (or renewed) ideas and arguments suggested by Rita

Drawing in part on the mysteries of Rita and issues left unresolved, here is a (surely incomplete) list of new or renewed ideas and arguments suggested by the Supreme Court's work in Rita.

Some new or renewed ideas and arguments for District Courts:

1. After Booker, a district court may not legally presume that the guidelines sentence should be given (and may commit reversible error if guidelines are given presumptive force at initial sentencing).  Slip op. at 12.

2. The guideline sentence ought not be given, and a traditional departure is justified, if the offense or offender is "atypical" and thus not within the "mine-run of similar" cases.  Slip op. at 4, 20.

3. Even when a traditional departure is not justified, a non-guideline sentence can be appropriate "because the Guidelines sentence itself fails properly to reflect §3553(a) considerations, or perhaps because the case warrants a different sentence regardless."  Slip op. at 12.

4. The district court must exercise "reasoned sentencing judgment" by making "an effort to filter the Guidelines' general advice through §3553(a)'s list of factors" and by subjecting the "defendant's sentence to the thorough adversarial testing contemplated by federal sentencing procedure."  Slip op. at 12, 18-19.

5. Cases involving "straightforward, conceptually simple arguments" may generally require only a "brief" statement of reasons; cases with complicated issues may generally require "the judge to write more extensively."  Slip op. at 17, 20.

Some new or renewed ideas and arguments for Circuit Courts:

1. Any presumption of unreasonableness has to be non-binding and should not be used to "insist that one side, or the other, shoulder a particular burden of persuasion or proof lest they lose their case."  Slip op. at 7.

2. After Booker, a circuit court reviewing a within-guideline sentence may fairly "assume that the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve §3553(a)'s objectives."  Slip op. at 11.

3. Despite the "rough approximation" of the Guidelines, there must be some within-guideline that do not achieve §3553(a)'s objectives and circuit courts have to identify the "times" when district judges impose sentences that are unreasonable.  Slip op. at 14.

4. Apart from reasonableness concerns, defendants can bring — and should sometimes prevail with? —  "as-applied Sixth Amendment challenges" to within-guideline sentences.  Slip op. at 14-15; Scalia concurrence at 8-9.

5. Defendants can bring — and should sometimes prevail with? — arguments that a "Guidelines sentence is not reasonable under §3553(a) because it expressly declines to consider various personal characteristics of the defendant."  Slip op. at 21.

Readers are, of course, welcome and encouraged to use the comments to identify other new or renewed Booker ideas and arguments in Rita's wake.

June 24, 2007 in Rita reactions | Permalink | Comments (2) | TrackBack

Upcoming sentencing that sounds like Pelican Brief sequel

200pxpelican_brief_dvd This article from Alabama discusses a high-profile sentencing scheduled for this Tuesday that has a Grisham-like backstory:

Sentencing for former Gov. Don Siegelman and former HealthSouth Chairman Richard Scrushy will happen as scheduled this week despite charges of a conspiracy against the two that reportedly has ties to the White House.

The accusations involving White House adviser Karl Rove and others have been lodged by Rainsville lawyer Jill Simpson, a lifelong Republican.  She said last week that she is the source of information that attorneys representing Scrushy used in an effort to remove the federal judge overseeing the sentencing. Scrushy's attorneys have argued that U.S. District Judge Mark Fuller has a conflict of interest in the case. 

Attorneys have been unsuccessful in having Fuller removed.  As a result, the sentencing hearing begins Tuesday in Montgomery.  The 43-year-old Simpson previously released an affidavit that outlines a grand conspiracy to get Siegelman, a Democrat, by the George Bush White House.  She also states the conspiracy involves the Department of Justice, a U.S. attorney's husband in Montgomery, a former Alabama Supreme Court justice, and the lawyer son of Gov. Bob Riley.  Riley stopped Siegelman's re-election bid in 2002 by the narrowest margin ever in Alabama.

The information Simpson supplied involved Fuller's investment in a major government contractor. She said that resulted in Fuller's needing to play ball with federal prosecutors who were trying to put Scrushy and Siegelman in jail so the firm could continue getting major contracts.  Siegelman"I hope these result in a new trial for Mr. Scrushy,'' Simpson said she told attorneys. Scrushy's attorney filed sealed information about Fuller, but it was later unsealed. Fuller remains on the case.

"She called me and let me know she was the source of the information,'' said Louis Franklin, the assistant U.S. Attorney and chief prosecutor in the Scrushy-Siegelman case. "I can't subscribe a motive, but my own personal feelings were they're trying to have a reverse impact on Judge Fuller, making him more reserved in sentencing and he'd be lenient.''

June 24, 2007 in Booker in district courts | Permalink | Comments (0) | TrackBack