August 4, 2007
The SCOTUS distortion of state sentencing realities
Reflecting on the numbers and many comments from my post on state sentencing realities, it dawned on me that the US Supreme Court perhaps merits the most blame for the undue modern obsession with the death penalty. Even though only roughly 1 in every 10,000 state felony sentences is a death sentence, the Supreme Court this past term had at least eight cases on its ever-shrinking docket focused on a state death sentence (see DPIC list here) and only one case focused on a state non-capital sentence (Cunningham).
Though I have not (yet) gone back and done an exact count, I know that over the past few decades the Supreme Court has reviewed hundreds of state death sentences (includes a couple it has reviewed more than once), but it has only reviewed a handful of state non-capital sentences. With the High Court setting the pace and the tone for state sentencing litigation, I suppose it is ultimately not surprising that lower courts and advocactes and the media share with the Justices an unhealthy and costly obsession with the death penalty.
Some recent related posts:
More weekend reading from SSRN
I am still catching up on a lot of major court reading this week, ranging from two long Michigan Blakely opinions, to notable circuit rulings in the Third, Fourth, Seventh (here and here), Eighth and Tenth (here and here) Circuits, to the top-side briefs in Kimbrough and Gall). But, I also see SSRN has these new notable pieces that I'll be adding to my reading pile:
- Herding Bullfrogs Towards a More Balanced Wheelbarrow: An Illustrative Recommendation for Federal Sentencing Post-Booker by Brian Gallini and Emily Q. Shults
- Privacy versus Antidiscrimination by Lior Strahilevitz
- Crime and Expected Punishment: Changes in Perceptions at the Age of Criminal Majority by Randi Hjalmarsson
Another notable double-decade sentence for white-collar offender
The Miami Herald report here on the sentencing of "Hector Orlansky, one of two brothers who presided over one of the biggest bank frauds ever in South Florida," who "was sentenced to 20 years in federal prison Friday." Here are more interesting details:
U.S. District Judge Adalberto Jordan ignored pleas for leniency from Orlansky's lawyer before imposing the sentence. The judge said he based the sentence on the severity of the crime and his wish to have it serve as a deterrent to other white-collar crime. ''This was not a run-of the-mill white-collar offense,'' Jordan said. "This is a case involving a huge amount of loss. The loss was close to $167 million. That is a staggering sum.''...
Outside the Miami federal courthouse, Orlansky's sister, Marina Handel, expressed anger at the sentencing. ''This is a travesty,'' said Handel, who lives in New Jersey. "We are an honest and decent family.''
Said U.S. Attorney R. Alexander Acosta in a statement: The "20-year sentence is an important benchmark to our business community that honesty and integrity in commercial dealings must be protected, and that those who cheat face serious consequences.''... The government recommended a sentence at the low end of the advisory sentencing guidelines, which were about 22 years to 27 years. Jordan veered slightly from that, citing Orlansky's age and various health issues.
Peter Henning at the White Collar Crime Prof highlights here that the "defendant is 62, so this is virtually a life sentence."
August 3, 2007
Fourth Circuit affirms life sentence for perjury and obstruction
The Fourth Circuit today in US v. Ruhbayan , No. 05-5166 (4th Cir. Aug. 3, 2007) (available here), affirms a life sentence for perjury and obstrcution of justice over an array of sentence objections. Here is how the opinion begins:
Rajul Ruhbayan takes this appeal from his 2005 sentence of life imprisonment and three concurrent sixty-month prison terms. See United States v. Ruhbayan, 427 F. Supp. 2d 640 (E.D. Va. 2006). The sentence resulted from Ruhbayan’s convictions in the Eastern District of Virginia on four offenses arising from a perjury and obstruction of justice scheme. On appeal, Ruhbayan contends that the district court erred in four respects: (1) by enhancing his sentence under 18 U.S.C. § 1512(j), thereby increasing his prison exposure from ten years to life, in violation of the Sixth Amendment; (2) by applying United States v. Booker in contravention of the Ex Post Facto Clause of the Fifth Amendment; (3) by miscalculating his sentencing range under the Sentencing Guidelines (the "guidelines"); and (4) by failing to properly consider the 18 U.S.C. § 3553(a) sentencing factors. As explained below, we reject these contentions and affirm.
Why I obsess over courts and others obsessing about the death penalty
The latest BJS stats on state felony sentencing provide me a statistical reminder about why I obsess over undue obsession about the death penalty. Consider these basic number from this report:
In 2004 State courts convicted an estimated 1,079,000 adults of a felony....
Among the estimated 8,400 persons convicted of murder or nonnegligent manslaughter in 2004, 20.4% were sentenced to life in prison. In 2004, 29 States received 115 prisoners under sentence of death.
In other words, only roughly 1 in every 10,000 state felony sentences is a death sentence, and only 1 in 75 sentences for intentional homicide is a death sentence. And yet the US Supreme Court and surely some other courts and academics likely spend far more time on death sentences than on any other type of state sentence. What a waste, especially since those getting the death penalty are generally the worst of the very worst.
UPDATE: Ben Barlyn goes deep with this strong follow-up reaction. Here are highlights:
From my own vantage point here in New Jersey, where our death row is populated by nine — that's it, folks, nine — profoundly repellent specimens of inhumanity and the general prison population is filled to bursting with thousands of non-violent drug offenders (the highest percentage in the USA, mind you), the imbalance referenced by Professor Berman is as acute as it disheartening.
I'm still amazed: a state commission transparently front-loaded with opponents of capital punishment issues a predictable and not-particularly illuminating report calling for the abolition of the death penalty in NJ (legislation to effectuate the report's recommendation was long ago tabled — it is an election year, after all) and the world stops.
Yet not one news outlet in NJ saw fit to cover (or carry the AP story of) the more recent and far more shocking (and, to my knowledge, undisputed) findings of The Sentencing Project regarding the state's well-known racial disparity between white and black inmates.
Latest BJS statistics on felonies sentenced in state courts
3Late last month the Bureau of Justice Statistics released its report entitled, "Felony Sentences in State Courts, 2004." The full report is available here, and this official BJS webpage provides some background and highlights. Here are those "official" highlights:
- Between 1994 and 2004, the number of felony convictions in State courts increased 24%.
- 94% of felony convictions occurred in State courts, the remaining 6% in Federal courts.
- 7 in 10 convicted felons in State courts were sentenced to incarceration.
The entire report, which only runs three full pages, is chock full of other fascinating bits of data. Here is one passage among many worth thinking about:
State prison sentences averaged 4 years and 9 months in 2004. Persons convicted of a violent felony received the longest prison sentences in 2004. Felony sentences to jail averaged 6 months. The average felony sentence to incarceration (prison or jail) in State courts was about 3 years in 2004, compared to just over 5 years in Federal courts. Federal felony drug offenders received incarceration terms (7 years) that were about 2½ times the length of felony drug offenders in State courts (2 years and 7 months).
August 2, 2007
Seventh Circuit affirms 10-year sentence increase for uncharged murder
The Seventh Circuit today in US v. Santiago, No. 06-3193 (7th Cir. Aug. 2, 2007) (available here), affirms a sentence in which a district judge varied up from a guideline sentence of 20 years to impose a sentence of 30 years because of his "participation in the kidnap and murder of a man named Jesus Colon" even though the defendant "had not been charged with, or convicted of, any offense related to these events."
The case is an interesting read, and the defendant justifiably won't get much sympathy given his background. But, the case provides yet another interesting example of how defendants in federal court can have their sentences enhanced based on an uncharged murder. As highlighted in posts linked below, Justice Scalia and four other Justices expressed concerns about this possibility in Blakely, but apparently lower courts are not too troubled by these federal sentencing realities.
Some related posts:
- Sentenced for an uncharged murder
- Sentenced for three uncharged murders
- Seventh Circuit upholds upward departure based on uncharged (and unproven?) crimes
- Eleventh Circuit approves sentences based on hearsay evidence of uncharged murders
- Eighth Circuit affirms another lengthy sentence for an uncharged murder
"Who Survives on Death Row?"
The title of this post is the title of this article in the August 2007 issue of the American Sociological Review, which explores the variables that seem to influence which defendants get executed after they are sentenced to death. Here is the abstract:
What are the relationships between death row offender attributes, social arrangements, and executions? Partly because public officials control executions, theorists view this sanction as intrinsically political. Although the literature has focused on offender attributes that lead to death sentences, the post-sentencing stage is at least as important. States differ sharply in their willingness to execute and less than 10 percent of those given a death sentence are executed. To correct the resulting problems with censored data, this study uses a discrete-time event history analysis to detect the individual and state-level contextual factors that shape execution probabilities.
The findings show that minority death row inmates convicted of killing whites face higher execution probabilities than other capital offenders. Theoretically relevant contextual factors with explanatory power include minority presence in nonlinear form, political ideology, and votes for Republican presidential candidates. Inasmuch as there is little or no systematic research on the individual and contextual factors that influence execution probabilities, these findings fill important gaps in the literature.
I had a chance to see an early draft of this paper at a workshop by its lead author, OSU sociology Prof David Jacobs. It is really interesting stuff, and adds an important empirical gloss to the debates over collateral appeal issues and appellate delays in capital punishment litigation. I am pleased to see both the media and the blogosphere already take note of this work, though Newsweek's web coverage here is far from perfect. Capital Defense Weekly and ODPI do a much better job keeping the reporting precise.
Some recent related posts:
Sentencing two-fer from the Tenth Circuit
I missed reporting on two intriguing sentencing decisions released yesterday by the Tenth Circuit. Here are cites and each decision's first paragraph:
- US v. Tom, No. 05-2347 (10th Cir. Aug. 1, 2007) (available here):
The United States appeals the sentence imposed by the district court on Defendant-Appellee Charlie Tom for the murder of his infant son. It contends that the award of a Guidelines sentencing range reduction based on Tom’s acceptance of responsibility was inappropriate in light of Tom’s challenge to the factual element of intent in the case against him. It further contends that the district court’s decision to exercise its discretion under 18 U.S.C. § 3553(a) to vary by approximately 60% from the correct Guidelines sentencing range was unreasonable. We agree with the Government's first contention and decline to reach the second.
- US v. Ruiz-Rodriguez, No. 06-2184 (10th Cir. Aug. 1, 2007) (available here):
In 2005, Defendant-Appellant Jose Ruiz-Rodriguez was charged with and pled guilty to unlawful reentry after deportation subsequent to a conviction for commission of an aggravated felony, see 8 U.S.C. § 1326(a) and (b), and was sentenced to 41 months of imprisonment. He now appeals his sentence, specifically the portion based on his prior conviction for a crime of violence, arguing that the elements of the prior crime at issue do not meet the relevant Sentencing Guidelines’ definition of a crime of violence. We agree.
The Eighth Circuit dealing with resentencing headaches
The Eighth Circuit today in US v. McMannus, No. 06-2447 (8th Cir. Aug. 2, 2007) (available here), seeks to sort through a variety of resentencing questions. Here is the Circuit's official summary of the ruling:
On remand, the district court erred in setting defendant Brinton's sentence when it determined that the stipulation in her plea agreement that she had instructed her daughter to withhold information about the crimes was not sufficient to support a two-level enhancement for obstruction of justice. When this court remands a case for resentencing, the district court is limited to hearing evidence it could have heard at the first sentencing, and evidence of post-sentencing rehabilitation is not relevant to the resentencing and may not be considered; here, the district court erred in hearing extensive evidence of McMannus's post-sentencing conduct and in relying on this evidence in setting his sentence; fact that the court stated it would impose the same 24-month sentence without the evidence of post-sentencing rehabilitation cannot support the sentence as the remainder of the remand record is essentially similar to the record at the first sentencing, and this court has already held that a 24-month sentence was an unwarranted variance based on this record; sentences vacated and the cases remanded for resentencing.
Judge Melloy and Judge Smith, concurring, and suggesting that when a case is remanded for resentencing, the district court should be able, in exceptional situations, to consider evidence of post-sentencing rehabilitation when it sets the new sentence.
August 1, 2007
Top-side briefs in Gall and Kimbrough
All the briefs on the petitioners/defendants' side of the two pending SCOTUS reasonableness cases, Gall v. United States and Kimbrough v. United States, were filed last week. I believe all of these briefs can be accessed at this page created on the New York Council of Defense Lawyers ("NYCDL") website. (In addition, Paul Rashkind has assembled a lot of the briefs here, and I believe they will also appeal on this defender website eventually.)
I have only so far had a chance to read some of the briefs (in part because I was helping with this NYCDL brief in Gall). There appears to be a lot of interesting and important post-Rita work being done in these briefs, and readers are encouraged to spotlight particular efforts and passages they consider especially notable. I hope to find time after the bottom-side briefs are filed to comment on what the Justices might think about what they are being told.
Michigan Supreme Court finds ways to keep dodging Blakely
I have been remiss in not previously noting two major Michigan Supreme Court rulings on Blakely from late last week (with thanks a number of readers for the head's up). Here are cites/links to the two big rulings:
- People v. McCuller, No. 128161 (Mich. July 26, 2007) (available here)
- People v. Harper, No. 130988 (Mich. July 26, 2007) (available here)
As one reader noted to me, "each runs over 80 pages, including dissenting opinion." A quick scan lead me to the conclusion that a majority of the Michigan Supreme Court (like many justices on other state supreme courts) remain eager to keep Blakely from upsetting the current state sentencing apple cart. It remains to be seen whether federal judges considering these matters in habeas cases will share this instinct.
I highly encourage readers with knowledge of Michigan law and practice to help me understand who is getting the best of the arguments in these cases.
2. Curses to any evil or misguided bloggers who harass or unduly burden court public information officiers and thereby give us not-so-evil or misguided bloggers a bad name. Upon hearing various war stories about how some bloggers have bothered CPIOs, I now better understand why not all blogs and bloggers are beloved.
3. Kudos to Dan Solove at Concurring Opinions for continuing to update his "Law Professor Blogger Census" with a new 2007 Version. I also was intrigued by his follow-up post here about "Deadwood Bloggers."
Seventh Circuit affirms Judge Adelman's below-guideline work
The Seventh Circuit has kick off a new month with a lengthy opinion in US v. Wachowiak, No. 06-1643 (10th Cir. Aug. 1, 2007) (available here), that affirms Sentencing Hall of Famer Judge Lynn Adelman's decision to impose a below-guideline sentence in a child porn downloading case. Because I now have to run to share a podium with Howard Bashman, I'll let the start of the court's opinion summarize this important ruling:
Judge Adelman sentenced 24- year-old Robert Wachowiak to 70 months’ imprisonment for downloading and electronically “sharing” child pornography on his home computer. Wachowiak’s sentence is considerably less than his advisory guidelines range of 121 to 151 months, and the government submits it is unreasonably low in light of the sentencing factors in 18 U.S.C. § 3553(a). In addition to discounting the seriousness of Wachowiak’s offense, the government argues, the judge deviated from the sentencing guidelines on the basis of mitigating factors routinely present in child pornography possession cases or already reflected in Wachowiak’s guidelines range. A 70-month sentence, the government maintains, lies beyond the outer limit of the district court’s post-Booker sentencing discretion. We affirm.
Although lenient, this below-guidelines sentence survives review for reasonableness, a deferential standard that has both procedural and substantive aspects. See Rita v. United States, 127 S. Ct. 2456, 2465, 2468-70 (2007); United States v. Wallace, 458 F.3d 606, 609-10 (7th Cir. 2006). The government concedes that Judge Adelman explicitly considered the litany of factors specified in § 3553(a), including the nature and severity of the crime, Wachowiak’s history and characteristics, the advisory guidelines range, and the purposes of sentencing enumerated in § 3553(a)(2). The challenge mounted here is substantive, not procedural. We conclude that Judge Adelman’s reasons for selecting a 70-month sentence — Wachowiak’s “excellent” character, genuine remorse, susceptibility to treatment, low risk of recidivism, strong family support, and certain mitigating aspects of his offense — are rooted in § 3553(a), sufficiently individualized to the circumstances of this case, and generally associated with sentencing leniency. Given the seriousness of this crime, we might not have weighed these factors so heavily, but we cannot say Wachowiak’s sentence is unreasonable.
Tenth Circuit on post-Booker sentencing and harmless error
A split Tenth Circuit panel issued an interesting set of opinions in US v. Arrevalo-Olvera, No. 06-2291 (10th Cir. July, 31, 2007) (available here). The majority finds that the district court erred in its approach to post-Booker sentencing, but then holds that the error was harmless because the district court imposed a sentence above the bottom of the applicable guideline range. The dissent, which sees the harmless error issue differently, begins this way:
I join that portion of the majority opinion holding that the district court erred by refusing to consider Arrevalo-Olvera's request for a variance below the applicable Guideline range until the district court satisfied itself that a sentence within the range would be unreasonable. However, because we should not guess a defendant into a particular sentence when "[t]here is no concrete indication the district court would impose the same sentence on remand . . .," United States v. Nickl, 427 F.3d 1286, 1302 (10th Cir. 2005) (Murphy, J.), I respectfully dissent. I would reverse the district court's decision and remand for resentencing.
"Why Are So Many Americans in Prison?"
This title of this post is the title of this potent commentary the latest issue of the Boston Review. Here are a few excerpts:
Never before has a supposedly free country denied basic liberty to so many of its citizens. In December 2006, some 2.25 million persons were being held in the nearly 5,000 prisons and jails that are scattered across America’s urban and rural landscapes. One third of inmates in state prisons are violent criminals, convicted of homicide, rape, or robbery. But the other two thirds consist mainly of property and drug offenders. Inmates are disproportionately drawn from the most disadvantaged parts of society. On average, state inmates have fewer than 11 years of schooling. They are also vastly disproportionately black and brown....
My recitation of the brutal facts about punishment in today’s America may sound to some like a primal scream at this monstrous social machine that is grinding poor black communities to dust. And I confess that these brutal facts do at times incline me to cry out in despair. But my argument is analytical, not existential. Its principal thesis is this: we law-abiding, middle-class Americans have made decisions about social policy and incarceration, and we benefit from those decisions, and that means from a system of suffering, rooted in state violence, meted out at our request. We had choices and we decided to be more punitive. Our society — the society we have made — creates criminogenic conditions in our sprawling urban ghettos, and then acts out rituals of punishment against them as some awful form of human sacrifice.
July 31, 2007
Third Circuit approves of guideline-centric realities
The Third Circuit today in US v. Hankerson, No. 06-3291 (3th Cir. July 31, 2007) (available here), rejects a defendant's various claims that his within-guidelines sentence is unreasonable and that he received ineffective assistance of counsel at sentencing. Hankerson is a classic post-Booker example of a defendant emphasizing personal circumstances in arguing for a below-guidelines sentence and of a district court obviously feeling the "gravitational pull" of the guidelines when deciding upon what sentence to impose.
There is a lot of notable ground covered in Hankerson, especially for those working within the Third Circuit. And I found especially telling this rejection of a last argument by the defendant:
Finally, Hankerson argues that his counsel's argument remained "guidelines-centric," even though after Booker, the guidelines were no longer binding. First of all, contrary to Hankerson's characterization, counsel did present evidence tailored to the § 3553(a) factors, and did not argue his downward departure motions to the exclusion of argument on those factors. (See App. 37-40.) Secondly, given that "[t]he advisory guidelines range . . . continues to play an integral part in sentencing decisions" after Booker, and that a sentence within the range is more likely to be reasonable than one without, it was entirely reasonable for defense counsel to focus much of his argument on the guidelines and on his successful argument for a downward departure. Cooper, 437 F.3d at 331. As such, counsel's approach to sentencing was both reasonable and effective, and thus fails the Strickland test for ineffectiveness.
In other words, even after Booker and even in a case with significant mitigating personal circumstances, this Third Circuit panel still views a "guidelines-centric" approach to sentencing to be "both reasonable and effective." Hmmm.
Everybody dance now....
In this post at Above the Law, David Lat rightly notes that I have been remiss in failing to blog about this extraordinary YouTube video of 1,500 Filipino prisoners dancing to Michael Jackson's "Thriller." The video is amazing, and ATL links to all sorts of other coverage of the prison's dancing machine. I like Charles Nesson's (punctuation challenged) questions about the video in this post: "what is the story behind this video. who are the people that made it. has the making of it had positive effect on individuals and institution. is it possible that a different way of thinking could change prisons."
In a perfect world, I'd have Milbarge's and Fitz-Hume's talents for turning this video clip into a sentencing song parody (prior examples here and here and here and here). Instead, I'll just be content to suggest that some warden might find requiring prisoners to watch me dance could be its own novel form of punishment (at least until Elaine Benes gets back on the dance floor).
Vick now having to play defense after co-defendant cooperates
Though still only a few weeks since his indictment, the federal prosecution of Michael Vick and others on dog-fighting charges is already a sentencing story because of one co-defendant's plea. As detailed in this article, as "part of a plea agreement, Tony Taylor pledged to fully cooperate with the government in its prosecution of Vick and two other men accused of running an interstate dogfighting enterprise." Here are more sentencing-related details from this article:
The plea deal requires Taylor to testify against Vick and his two remaining co-defendants if called upon to do so. Taylor cannot get a stiffer sentence or face any new charges based on any new information he provides, according to terms of the agreement....
Taylor, who will be sentenced Dec. 14, said he was not promised any specific sentence in return for his cooperation with the government. He faces a maximum of five years in prison and a $250,000, although federal sentencing guidelines likely will call for less. The range will be determined by the court's probation office, but the judge can depart from that range if he finds aggravating or mitigating circumstances.
Anyone have any guesses about what sentence Taylor is likely to get? I'd suspect his lawyers think this deal and his cooperation makes a term of probation possible, but that's certainly not a given. And it seems that the evidence being provided by Taylor reduces the chances that Vick might be able to get off with probation if he were to go the plea route.
Some related Vick posts:
Prison overcrowding creates shipping issues
Today's New York Times has this important article, entitled "States Export Their Inmates as Prisons Fill," documenting some of the notable consequences of overcrowded state prisons. Here are excerpts:
Chronic prison overcrowding has corrections officials in Hawaii and at least seven other states looking increasingly across state lines for scarce prison beds, usually in prisons run by private companies. Facing a court mandate, California last week transferred 40 inmates to Mississippi and has plans for at least 8,000 to be sent out of state.
The long-distance arrangements account for a small fraction of the country’s total prison population — about 10,000 inmates, federal officials estimate — but corrections officials in states with the most crowded prisons say the numbers are growing. One private prison company that houses inmates both in-state and out of state, the Corrections Corporation of America, announced last year that it would spend $213 million on construction and renovation projects for 5,000 prisoners by next year....
But while the out-of-state transfers are helping states that have been unwilling, or too slow, to build enough prisons of their own, they have also raised concerns among some corrections officials about excessive prisoner churn, consistency among the private vendors and safety in some prisons.
Moving inmates from prison to prison disrupts training and rehabilitation programs and puts stress on tenuous family bonds, corrections officials say, making it more difficult to break the cycle of inmates committing new crimes after their release. Several recidivism studies have found that convicts who keep in touch with family members through visits and phone privileges are less likely to violate their parole or commit new offenses. There have been no studies that focused specifically on out-of-state placements.