June 26, 2007
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:
- Powerful attack from Judicial Conference against mandatory minimums
- IACHR hearing on federal mandatory minimum sentencing
- Might Congress move ahead with sound sentencing reforms?
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:
- Genarlow Wilson prevails in state habeas appeal
- Snippets from the Wilson ruling from Georgia
- Georgia AG appeals to keep Genarlow Wilson locked up
- Genarlow Wilson faces at least another month in prison
- ESPN effectively covers Genarlow Wilson's sad saga
- Why isn't the severe Georgia sentence constitutionally problematic?
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:
- The virtues of faith-based prisons
- Interesting examination of faith-based prison movement
- A thoughtful, but disappointing, attack on a faith-based prison program
- Religion, sentencing and corrections
- Having faith in prisons
- Considering faith-based corrections programming
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:
- The pace of executions picking up
- The death of death may be greatly exaggerated
- What's up with federal executions?
- Why is the Bush Administration (secretly?) accepting a de facto moratorium on federal executions?
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.
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.
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).
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:
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."
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:
- T. J. Bonner, President National Border Patrol Council (AFGE)
- The Honorable Paul G. Cassell, Judge Judicial Conference of the United States
- The Honorable Ricardo H. Hinojosa, Chairman United States Sentencing Commission
- Marc Mauer, Executive Director The Sentencing Project
- Serena Nunn
- Richard Roper, U.S. Attorney
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.
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:
- Rita has something for everyone (except Victor Rita)
- The sweet(?) mysteries of Rita... annotated
- Are within-guideline crack sentences now presumptively unreasonable after Rita?
- New (or renewed) ideas and arguments suggested 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.
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.
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 24, 2007
New (or renewed) ideas and arguments suggested by 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.
Upcoming sentencing that sounds like Pelican Brief sequel
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.''