July 14, 2007
Latest FSR issue on state reforms now on-line
Now available on-line (with a subscription) at this link is the Federal Sentencing Reporter's latest issue, which is focused on state sentencing reforms and information-driven analyses of sentencing developments. In the issue's editors' introduction, Steve Chanenson and I ask the question "Can and Will Information Spur Post-Modern Sentencing Reforms?"
Other recent FSR issues:
- FSR Issue 19.3: Claiborne & Rita: Reasonableness Review in the Supreme Court
- FSR Issue 19.2: Victims and Sentencing II: Beyond the CVRA
- FSR Issue 19.1: Victims and Sentencing I: Victim Impact Evidence, the Crime Victims' Rights Act and Kenna
- FSR Issue 18.5: Toward Real Reform: The Constitution Project Recommendations; Model Federal Sentencing Guidelines
- FSR Issue 18.4: Sentencing at the Supreme Court
- FSR Issue 18.3: Taking Stock a Year after Booker
- FSR Issue 18.2: Defense Perspectives on the Post-Booker World
- FSR Issue 18.1: State of Blakely in the States
Assessing the different results for different federal defense attorneys
Adam Liptak has this terrific new article in the New York Times reporting on a new study by a Harvard economist which concludes that federal public defenders get better results than private lawyers appointed under the Criminal Justice Act. Here are parts of the article's overview of the study:
Some poor people accused of federal crimes are represented by full-time federal public defenders who earn salaries, others by court-appointed lawyers who bill by the hour. A new study from an economist at Harvard says there is a surprisingly wide gap in how well the two groups perform.
Both kinds of lawyers are paid by the government, and they were long thought to perform about equally. But the study concludes that lawyers paid by the hour are less qualified and let cases drag on and achieve worse results for their clients, including sentences that average eight months longer. Appointed lawyers also cost taxpayers $61 million a year more than salaried public defenders would have cost.
There are many possible reasons for the differences in performance. Salaried public defenders generally handle more cases and have more interactions with prosecutors, so they may have a better sense of what they can negotiate for their clients. Salaried lawyers also tend to have superior credentials and more legal experience, the study found.
The full study by Radha Iyengar, which is entitled "An Analysis of the Performance of Federal Indigent Defense Counsel" can be accessed at this link. Notably, Jeralyn at TalkLeft writing here explains why she thinks "this study is seriously flawed." I do not have the background necessary to assess the empirical work in this new study (and perhaps the folks at the ELS Blog will look closely at the data as a follow-up to this post).
Personally, I am not especially surprised by the result of this study because I find all federal public defenders to be great and the quality of CJA appointed lawyers to be very uneven. Moreover, addressing this issue from a more theoretical perspective, I published this article five years ago in the Iowa Law Review entitled "From Lawlessness to Too Much Law? Exploring the Risk of Disparity from Differences in Defense Counsel Under Guidelines Sentencing." In the article, I flagged my concern that "poor defense representation or differences in the quality of defense counsel may create considerable risks of disparities and other unfair sentencing outcomes under the [Federal Sentencing] Guidelines."
Understanding the difference between clemency law and clemency symbolism
Over at his interesting blog Pardon for Scooter Libby?, P.S. Ruckman, Jr. has this extended post dissecting the written testimony I submitted to the House Judiciary Committee for its hearing this past week on Bush's commutation of Libby's sentence (background here and here). Most of Ruckman's critiques would be more fitting were I writing a scholarly article and not simply sharing perspectives with members of Congress, but I am still grateful for his thoughtful exploration of my thoughts.
Though I have little quibble with many of Ruckman's specific points, I see a conceptual flaw in a lot of his commentary. Ruckman treats my comments as if I was making assertions about federal clemency law, but I ultimately share his view that the federal clemency power operates outside the realm of law. My testimony about the puzzling and potentially harmful aspects of Bush's commutation is principally about the symbolism of the President's sentencing decision and assertions on behalf of Libby, especially against the backdrop of the Bush Administration's broader sentencing policies and practices.
Everyone should and must understand that the Bush commutation has no formal legal impact on other cases. But the symbolism of the decision — and especially the reasons given by the President for his decision — will surely have some impact (at least subconsciously) on sentencing decision-makers and the general public.
July 13, 2007
Eleventh Circuit blesses acquitted conduct enhancement
The Eleventh Circuit decided to put a damper on what had been an exciting week for me by today affirming a conviction and sentence that I advocated against in US v. Campbell, No. 06-13548 (11th Cir. July 13, 2007) (available here). Because I am involved in this matter, I will not comment directly on the panel's decision. I would greatly welcome reactions and insights from readers, particularly as regards the panel's rejection of our claim that sentences based heavily on acquitted conduct reflect disrespect for the jury trial system.
Some related recent posts:
- A high-profile appeal on acquitted conduct sentencing
- Another high-profile case for acquitted conduct sentencing enhancement
- Sincere questions about acquitted conduct sentencing
Dog days reading from SSRN
Thanks to SSRN, here are some new cool-looking sentencing papers for the dog days of summer:
- Do You Receive a Lighter Prison Sentence Because You are a Woman? An Economic Analysis of Federal Criminal Sentencing Guidelines by Supriya Sarnikar, Todd Sorensen and Ronald L. Oaxaca
- District Court Decision-Making Before and After U.S. v. Booker: The Effects of Legislative Action on Judicial Discretion by Lydia Brashear Tiede
- The External Effects of Black-Male Incarceration on Black Females by Stéphane Mechoulan
Another high-profile case for acquitted conduct sentencing enhancement
As noted here at the WSJ Law Blog, another high-profile defendant has to now start worrying about federal sentencing law and procedure:
According to the AP [story here], the jury in the Conrad Black trial has found the fallen media baron guilty on four of the 13 charges brought against him. He was convicted on three counts of mail fraud and one count of obstruction of justice, but the jury acquitted him of wire fraud, racketeering and several other counts.
Of course, as regular readers know so well, the fact that Lord Black was acquitted on the majority of charges does not mean he won't get sentenced on these matters anyway. As detailed in so many of my posts (some of which are linked below), federal defendants can and often do get sentence enhancements based on charges that resulted in a jury acquittal.
Some acquitted conduct sentencing posts:
Going, going, gone ... to federal prison for BALCO leak
Despite notable efforts to get use the Libby commutation to get a reduced sentence, attorney Troy Ellerman received a different kind of Libby treatment when hw was sentenced to 30 month's imprisonment for leaking confidential grand jury testimony of Barry Bonds and other athletes to a reporter. Lots of interesting details of the sentencing are available in articles from the AP and from Reuters. Here are some particulars from the AP:
Ellerman initially blamed federal investigators for leaking the testimony and argued that the case against his client be tossed out because of government misconduct. He also lied to a judge about not knowing the source of the leaks. "This affected, and infected every aspect of the judicial system," U.S. District Court Judge Jeffrey White said.
White also rejected Ellerman's argument that he should get a lighter sentence because President Bush commuted former vice presidential aide I. Lewis "Scooter" Libby's 2 1/2-year prison sentence for perjury to probation. White said to do so would open the door to doling out unduly lenient sentences for other white collar criminals. "If Mr. Ellerman is dissatisfied with his sentence, he should seek a commutation from the president," White said....
Ellerman said the pressures of the high-profile case coupled with alcohol and cocaine abuse were major factors in letting the reporter view the transcripts. "I did not do this seeking publicity," he told the judge. He said trying to cover his tracks "took on a life of its own."
He pleaded guilty to four felony counts of obstruction of justice and related charges, and federal prosecutors dropped their case against the two reporters. They had faced up to 18 months in prison for refusing to divulge the source of the leak.
Judge White also ordered Ellerman to give 10 talks on conduct to law students. The judge didn't fine Ellerman.
New article examining California's lethal injection scrummage
Professors Ellen Kreitzberg and David Richter from Santa Clara have this new article posted at SSRN about lethal injection litigation, entitled "But Can it Be Fixed? A Look at Constitutional Challenges to Lethal Injection Executions." Here is the abstract:
This article examines the constitutional challenge raised to California's lethal injection protocol (San Quentin Operating Procedure 770). We review the history of lethal injection executions in the U.S. and particularly in California. We explore Eighth Amendment challenges to the death penalty generally and to lethal injection procedures in particular, and finally we detail the evidence presented before Judge Jeremy Fogel in September 2006 on the California protocol for lethal injection executions.
The article demonstrates the basis for which Judge Fogel ultimately concluded that the California procedure, as written and as implemented, was broken and suffered from a number of critical deficiencies. The many failings include the random selection and training of the execution team, the inadequate facilities provided for executions, a paucity of oversight for training and implementing executions, the inappropriate choice and administration of drugs, and an overall lack of professionalism in carrying out each execution. We also examine the ethical conflict presented by the use of medical persons in executions as viewed from within the profession and by the public.
We conclude by underscoring the need for transparency and congressional oversight of the procedures and their operations to ensure a more professional, appropriate, and constitutional process. Finally, we suggest taking the time to pause and evaluate our decision to relegate death work to prison guards and administrators.
Some related posts:
More notable commutation ripples in the sentencing waters
I have started a new category archive entitled Post-Libby commutation developments, in part because the ripple effects of President Bush's sentencing work in the Libby case could take many forms and could last longer than Scooter's terms of supervised release. (Indeed, a thoughtful sentencing advocate wrote me suggesting that everyone "interested in federal sentencing reform should welcome [the commutation], which is much bigger than Libby, and may be the most important development in federal sentencing since 1984.")
One notable ripple from the commutation stone thrown into the sentencing pond appears in this post from the blog at Stop the Drug War, which is entitled "We Want Pardons: Petition to Save Bush's Legacy by Persuading Him to Pardon Thousands of Nonviolent Drug Offenders and Not Be a Hypocrite." The post provides the text to this on-line petition addressed to President Bush, and here are some excerpts from the petition:
We, the undersigned, ask you to save your legacy by releasing thousands of nonviolent drug offenders from federal prison before you leave office. Short of taking such a measure, you will be doomed to go down in history as a hypocrite.
Unlike President Clinton, you cannot point to a record of mercy toward people caught in the criminal justice system. While the overall Clinton record in criminal justice was not lenient, he did commute the sentences of 63 people, most of them neither wealthy nor powerful, including 29 nonviolent drug offenders.
You, by contrast, commuted only three prisoners' sentences prior to helping Scooter Libby, one every two years. You have pardoned four times as many Thanksgiving turkeys as people you've released from prison....
You have a year and a half left to prove that justice is for everyone -- not just for your friends. Will you rise to the occasion? History is watching.
Similarly, this new editorial from Newsday, entitled "Use Libby case to fix sentencing," seeks to make lemonade from Libby lemons. Here is an snippet:
Though not Bush's intention at all (which is clear from the pile of 2,500 commutation and 1,000 pardon requests sitting at the Department of Justice), the president, by calling Libby's sentence "excessive," cast attention on minimum sentencing guidelines, the very ones his administration has been working to make mandatory. The message behind Bush's self-protective benevolence has validity despite its messenger and surrounding circumstances.
July 12, 2007
Prosecutors gone wild
David McDade has handed out some 35 copies of a video of teenagers having sex at a party. McDade is no porno kingpin, but a district attorney. And he says Georgia's open-records law leaves him no choice but to release the footage because it was evidence in one of the state's most turbulent cases — that of Genarlow Wilson, a young man serving 10 years in prison for having oral sex with a girl when they were teenagers. McDade's actions have opened him up to accusations that he is vindictively misusing his authority to keep Wilson behind bars — and worse, distributing child pornography.
UPDATE: I see two remarkable new posts at Above the Law suggesting that Mr. McDade has a track record that should make good prosecutors cringe:
The saddest part of all this, of course, is that McDade continues to wreck havoc on Georgia justice while Genarlow Wilson remains behind bars. It is a sad shame that Georgia's Attorney General and Governor are far less concerned about the unjustifiable activities of rogue prosecutors than about teenagers' consensual sexual activities.
America's pastimes?: Baseball, clemency, obstruction
At yesterday's House Judiciary Committee hearing on Bush's commutation of Libby's sentence (basics here), there was only a little discussion of whether and how lawyers and judges would respond to the President's sentencing work in other cases. But this issue has been very effectively covered at White Collar Crime Prof, where Peter Henning now has this new post discussing (and providing this link) to a supplemental brief filedt by the defense team for Troy Ellerman, which is "aligning the attorney who leaked the grand jury testimony of Barry Bonds and other athletes about their steroid use in the Balco investigation with the erstwhile former chief of staff to Vice President Cheney."
Libby's term of supervised release upheld (with some fireworks)
Unsurprisingly, and in accord with all the parties' suggestions, Judge Reggie Walton held today, in a ruling available here thanks to How Appealing, that Lewis Libby's sentence of supervised release remains in effect. Josh Gerstein, writing for the New York Sun, has more here.
Judge Walton's ruling is a great read, and the fireworks start with a lengthy first footnote that cites Rita, the government's brief in Rita, a speech by the Attorney General and concludes by explaining that "it is fair to say that the Court is somewhat perplexed as to how its sentence could accurately be characterized as 'excessive.'"
UPDATE: Lyle Denniston at SCOTUSblog presents an overview and analysis of Judge Walton's ruling in this post.
Bizarro execution week
The headlines of the two most recent posts at Capital Defense Weekly — Stay: Texas and South Dakota Kills — highlight what a strange death penalty week it has been: before yesterday, South Dakota had not had an execution in 60 years, whereas Texas executed four other defendants just last month.
More commutation converage and commentary
NPR this morning has this coverage of yesterday's JHouse udiciary Committee hearing on Bush's commutation of Libby's sentence (basics here). In addition, writing in the Detroit Free Press, the attorney general of the state of Michigan, has this strong commentary entitled "Bush wrong to commute Libby's sentence: Action undermines need for truth." Here are excerpts:
Ultimately, no one was ever convicted of divulging Plame's name to the press, so it is legitimate to ask whether Libby's perjury matters. The same question could be posed regarding President Clinton's lying under oath about engaging in "sexual relations" with Monica Lewinsky. Or, more to the point, do these "lies" matter?
I answer most assuredly yes. I spent years as a homicide prosecutor in a big city, Detroit, where each and every case presented the opportunity for perjury by witnesses, and perjury that would matter, perjury that was literally a matter of life and death.
Clinton's supporters and the supporters of Libby share a common class-based myopia: Neither one can see what sort of damage the tolerance of perjury does to the thousands of criminal prosecutions that happen every year. In essence, the defenders of Clinton and Libby say that if you lie during the course of a white-collar prosecution, it is somehow permissible.
Where does that leave all the witnesses to violent crime who oftentimes are faced with the very real dilemma that truthful testimony about a criminal offense will subject them to the very real possibility of retribution? Are we to tell those who witness violent crime, and thus face very real risks of retribution, that they must tell the truth, while those who are witnesses to white collar crimes are free to fudge and prevaricate?
I applauded when Martha Stewart was sentenced to prison for lying under oath about receiving inside stock information. I felt that justice was done when rapper Lil' Kim was sentenced to almost a year in prison for lying under oath about a shooting. Is it because I take a perverse pleasure in people going to prison? No.
Any time our criminal justice system ensures that the truth-telling function of our system is alive and viable, it is a cause for celebration for all citizens. Telling the truth under oath can be uncomfortable; it can be embarrassing and lead to problems for one's friends and associates, but fudging or protecting one's friends or family does not and cannot commute the necessity for truth-telling.
Simply put, our system of justice depends on truth-telling. Without that rigor, without that pressure, without that compunction to tell the truth, our system of justice will die. As a nation, we must demand that our public officials honor that pact. I have no doubts that Libby is basically a good man. At the same time, a jury of his peers has affirmed his guilt for lying under oath.
If truth is a pillar of our system of justice, then not telling the truth dramatically damages the structural support of that same system of justice. Lying under oath deserves to be punished. And President Bush was wrong to commute Lewis Libby's sentence.
If we really want to deter government corruption...
should we consider following China's lead, as reported here by Reuters:
China on Wednesday hailed the swift execution of the nation's former drug safety chief as a warning to corrupt officials while detailing a web of graft that thrived for years without punishment. Zheng Xiaoyu, former head of the State Food and Drug Administration (SFDA), dominated television and print news a day after he was executed for taking some 6.5 million yuan ($850,000) in bribes to let medicine companies slip past his regulatory net.
The People's Daily, voice of the ruling Communist Party, said the punishment was intended to deter other wayward officials. "Corrupt elements will be thoroughly investigated no matter who they are, how high their post, or how deep they hide, and there can be no appeasement or softness," the newspaper said.
Notably, the Chinese legal system certainly made sure Zheng's sentence was not only severe, but also swift: Zheng "was sentenced on May 29 and his appeal was heard last month" and the execution was carried out this week.
July 11, 2007
Around the blogosphere
While I recover and catch up after a day in DC, everyone should check out all the interesting new stuff at:
- Corrections Sentencing
- Crime and Consequences
- StandDown Texas Project
- White Collar Crime Prof
Adventures in partisan wonderland
My day in DC testifying at the House Judiciary Committee hearing on Bush's commutation of Libby's sentence was quite an experience. Sadly, only a small part of the VERY lengthy hearing was about sentencing issues, principally because the presence of Joe Wilson as a witness led to much partisan bickering over Valerie Plame and yellow-cake uranium (which sounds like a new Cold Stone Creamery flavor).
After my travels and a chance to catch up on other happenings, I hope to be able to comment with some perspective on what the Bush commutation might come to mean for federal sentencing law. Today's fun just reinforced that (unsurprisingly) some politicians are more interested in political soundbites than sentencing policies.
July 10, 2007
Lots of clemency food-for-thought
I am about to head out to make sure I get to DC on time for tomorrow's exciting House Judiciary Committee hearing on Bush's commutation of Libby's sentence (basics here). And, thanks to former pardon attorney Margaret Love, I have some fitting reading for my trip. Margy has completed a small commentary entitled "Rethinking the President’s Pardon Power." Here is a snippet from the piece, which can be downloaded below:
There are many who believe that it is time to consider new approaches to criminal prosecution and sentencing, to reduce our reliance on incarceration and end the racial disparities resulting from our law enforcement practices. If the pardon power is to play a useful role in this law reform effort, as it has in past eras, public confidence in it must be restored. The criteria that presently exist in the Justice Department's policies are perfectly good ones. What needs improvement is the perceived fairness of the pardon process, the regularity and frequency of pardon grants, and above all the president's commitment to using the power in an intentional and generous fashion.
In addition, Margy set along updated post-WWII clemency statistics from the Office of the Pardon Attorney, which can be downloaded here:
UPDATE: Families Against Mandatory Minimums has geared up for the house hearing with this press release, which makes these major point:
Although Mr. Libby's high profile commutation merits discussion, Families Against Mandatory Minimums (FAMM) has written to the committee urging it to also explore how commutations should be used to reduce excessive sentences of deserving, nonviolent federal prisoners. Click here to read FAMM's letter. Many such prisoners have applied for and not received commutations, although they have served long portions of their sentences and their behavior in prison has been exemplary. It is especially troubling that many prisoners wait years to receive a decision and some petitions filed as far back as 2000 have not been acted upon.
The referenced letter includes a dozen questions about commutations that "FAMM suggests the Committee pose ... to the Pardon Attorney, Roger Adams, at the hearing."
Two Rita sightings (citings?) in the Eighth Circuit
I am still waiting for some circuit to issue a major Rita ruling (and perhaps I may have to wait forever). While waiting, the Eighth Circuit today at least cites Rita in two notable sentencing opinions:
In US v. Jones, No. 06-3489 (8th Cir. July 10, 2007) (available here), the panel affirms a within-guideline crack sentence and cites Rita to support the sufficiency of the district court's limited sentencing comments.
In US v. Icaza, No. 06-2882 (8th Cir. July 10, 2007) (avaiable here), the panel reverses three within-guideline sentences because of a miscalculation of the number of victims involved when the defendants "shoplifted from approximately 407 Walgreens stores." Interestingly, as interpretted in Icaza, the federal sentencing guidelines treat shoplifting hundreds of times from different outlets of one store as less serious than shoplifting once from a dozen different stores.
Tasty Grits on sentencing issues
Grits for Breakfast is always a tasty read, but today Scott Henson has these two particularly intriguing posts on sentencing issues: