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.
July 30, 2007
Debating the death penalty as bargaining chip
I have previously noted (such as in this post) that I think the biggest impact of having (or not having) the death penalty in a jurisdiction may be its possible impact charging and plea bargaining practices. Especially because this aspect of capital punishment has received relatively little attention, I am pleased to see this new AP article, entitled "Strategy changing on death penalty," discussing the pros and cons of the use of the death penalty as a bargaining chip by various Washington State prosecutors' offices. (Hat tip: ODPI) Here is how it begins:
In an interview early this year, Pierce County Prosecutor Gerry Horne called Washington state’s death penalty law a farce, and he suggested it is so ineffective that the Legislature should consider getting rid of it. When time came to find 12-year-old Zina Linnik, though, he was glad to have it.
Four days after the Tacoma girl disappeared, Horne — believing time was running out to find her alive — promised not to seek the death penalty against the suspect, Terapon Dang Adhahn, if he told detectives where she was. Adhahn agreed, leading them to her body in East Pierce County. Without the death penalty, “We would have no leverage in some instances,” Horne said last week. “It’s nice to have that tool in your kit.”
Horne’s attitude reflects the evolving considerations prosecutors in Washington weigh when dealing with potential capital cases. For generations, prosecutors refused to use the death penalty as a “bargaining chip” in obtaining guilty pleas. Agreements to spare serial killers Robert Yates in Spokane County and Gary Ridgway in King County in exchange for confessions or help finding remains opened the door to some extent.
I would be very eager to hear — both from death penalty proponents and death penalty opponents — what they think about using the death penalty as a bargaining chip. Of course, all sorts of nin-capital punishments are used as bargaining chips in the criminal justice system, but there may be reasons that both proponents and opponents might think in this arena death should be different.
Great new resource on judicial views on the federal sentencing guidelines
I am happy to know about a spotlight a great new federal sentencing resource created by Professor David Zlotnick, who in recent years has been doing some of the most innovative and important "ground-level" work on federal sentencing reforms. Here is David's own description of his new website:
I am pleased to announce that the website for my federal sentencing project can be now be accessed at this link. The underlying research for this project was funded by a Soros Senior Justice Fellowship grant and was conducted over the past four and a half years. The heart of the work is contained in forty comprehensive case studies of federal cases in which Republican appointees complained that the sentences required by law were excessive. These profiles are the most comprehensively documented cases studies of federal sentencings available on the Internet.
The site also includes a draft of my forthcoming article in the Colorado Law Review, "The Future of Federal Sentencing Policy: Learning Lessons from Republican Appointees in the Guidelines Era." This article contains a blueprint for sentencing reform legislation that might resonate with this cohort of federal judges in the post-Booker era.
The launch of the website this summer is intended to allow my work to be used by sentencing reformers in the upcoming debate in Congress over the Sentencing Commission's proposed changes to the crack cocaine penalties. By showing that Republican appointees share many of the same concerns as academics and criminal defense attorneys, I hope to explode the myth of the liberal federal judiciary and pave the wave for meaningful and bipartisan sentencing reform.
Capital punishment news and notes
Thanks to fellow bloggers, I can quickly cover a lot of new death penalty items:
- How Appealing here discusses the Eighth Circuit panel decision rejecting Angela Johnson's efforts to overturn all of her federal death sentences imposed against her. As Howard notes, Johnson's death sentence was the first given to a woman by a federal court in the modern capital punishment era.
- ODPI here reports that Ohio Governor Ted Strickland today issued yet another execution reprieve for death row inmate John Spirko to allow more DNA testing of evidence in his case.
- How Appealing here provides this pass-through link to Adam Liptak's "Sidebar" in today's New York Times entitled "After Flawed Executions, States Resort to Secrecy."
Some SCOTUS summer fun
SCOTUSblog has reports on the Supreme Court's activity today in conjunction with its issuance of its first orders of the summer. This post notes that today's orders list "consist[ed] mainly of denials of rehearing," but that the Court took no action on the rehearing request in Rita (basics here). Might the Justices be seriously considering asking the SG to file a response to Victor Rita's rehearing petition?
Also, this post reports on the high Court's release of it "argument calendar for its opening sitting beginning on Oct. 1, the first day of the new Term." The calender shows that the two big post-Booker cases, Gall and Kimbrough, will be head on Tuesday, Oct. 2. Also of interest, five of the nine case to be heard during start of the SCOTUS term are criminal justice cases.
LA Times calls for clemency for American Taliban
If nothing else, the Scooter Libby commutation has energized various folks to call upon President Bush to exercise his clemency powers in a number of other cases. This recent op-ed from the Los Angeles Times, for example, focuses attention on the case of John Walker Lindh, the so-called "American Taliban." Here are excerpts:
Lindh, who converted to Islam as a teenager, joined the Taliban before Sept. 11, not after; he did so to fight the Northern Alliance, not the United States. Lindh never took up arms against this country. He never engaged in terrorism; indeed, his commitment to Islam leads him to oppose the targeting of civilians.
John Walker Lindh broke the law. He pleaded guilty to the one crime of which he was guilty -- aiding the Taliban -- and to carrying a gun and hand grenades in the service of that regime's war against the Northern Alliance. For that, he deserved to go to prison, and he should not receive a pardon. He is a felon, and his record should never be cleared.
The issue, then, is not Lindh's guilt but his sentence. He was ordered to spend 20 years in prison, far longer than comparably situated defendants. Maher Mofeid Hawash pleaded guilty to violating the same law, and, after he agreed to cooperate, the government recommended that he serve seven to 10 years in prison. Yaser Esam Hamdi, who fought with Lindh in the Taliban military, was released back to Saudi Arabia in 2004, having spent less than four years in custody. David Hicks, an Australian, pleaded guilty to terror charges before a military commission and was sentenced to nine months. Of all the suspects rounded up across the world in the administration's war on terror, only shoe bomber Richard Reid, who actively attempted to destroy a plane in flight, is serving a longer sentence than Lindh....
The concept of mercy spans testaments and faiths, and any system of justice requires the embrace of mercy for leavening and legitimacy. In this case, justice has been served by Lindh's time in prison. Now Bush is uniquely positioned to grant mercy, for while many will long argue over the effectiveness of his war on terror, none question his commitment to it. By giving Lindh a commutation, Bush could prove that his war is, as he often and properly asserts, not against Islam but against those who seek to harm America. Lindh never sought to harm his country; he has served long enough. Bush should send him home.
As detailed in this post, I can name a number of other defendants that would seem to merit clemency attention as much as Mr. Lindh. Nevertheless, I am always pleased to see a major media outlet making a stink about a perceived example of excessive punishment.
USSC seeking comments on priorities and retroactivity
As detailed at the official homepage of the US Sentencing Commission, the USSC has just officially put out these two important federal register notices:
- Federal Register Notice of Proposed Priorities and Request for Public Comment (submitted July 27, 2007). As part of its statutory authority and responsibility to analyze sentencing issues, including operation of the federal sentencing guidelines, and in accordance with Rule 5.2 of its Rules of Practice and Procedure, the Commission is seeking comment on possible priority policy issues for the amendment cycle ending May 1, 2008. Public comment should be received on or before August 23, 2007.
- Federal Register Notice (submitted July 27, 2007). Request for public comment regarding retroactive application of amendments pertaining to cocaine base (crack) and to criminal history.
Though the proposed priorities of the USSC are always important, the retroactivity issue is especially huge because it could impact literally tens of thousands of federal defendants now in prison. As detailed here, some judges are already advocating making the crack changes retroactive.
Noting incarceration's racial imbalance up north
Writing in the Rochester Democrat and Chronicle, Ryan King of the Sentencing Project has this column that provides a New York spotlight on the problems of racial disparities in prison populations. Here are excerpts:
In New York, home to the Big Apple, one of the world's most diverse cities seen by many as the embodiment of the "melting pot" ideal, recent data illustrating high rates of racial disparity in the use of incarceration should sound alarms. African Americans in New York state are incarcerated at nine times the rate of whites — the ninth highest rate in the country. Why do we see these inequities?
The knee-jerk response might be that African Americans commit more crimes and, thus, are imprisoned in disproportionately higher numbers. However, while different crime rates partly explain these figures, any serious consideration of racial disparity must move beyond arrest rates to examine the underlying causes of these disconcerting statistics in greater depth.
No single factor has exacerbated disparities in rates of arrest and incarceration over the past 30 years more than the "war on drugs." Since 1980, the number of people in state prisons for drug offenses increased more than 1,200 percent and now represents one of every five people incarcerated. Much of this growth has occurred in communities of color.
Despite making up 13 percent of the general population and 14 percent of regular illegal drug users, more than a third of people arrested for drug offenses and more than half of people in prison for drug offenses are African American. In New York state, the numbers are particularly stark: More than 90 percent of people incarcerated for drug offenses are African American or Latino.
Some recent related posts:
July 29, 2007
More summer sentencing reading from SSRN
Here are some recent pieces appearing on SSRN that sentencing fans may want to check out:
- Booker's Unnoticed Victim: The Importance of Providing Notice Prior to Sua Sponte Non-Guidelines Sentences by Ilya Beylin
- But Did They Listen? The New Jersey Death Penalty Commission's Exercise in Abolitionism: A Detailed Reply by Robert Blecker
- Sentencing Acquitted Conduct to the Post-Booker Dustbin by James J. Bilsborrow
- The Prisoners' (Plea Bargain) Dilemma by Oren Bar-Gill and Omri Ben-Shahar
Questioning sex offender residency restrictions
Today's Cincinnati Enquirer has a series of interesting pieces discussing sex offender residency restrictions in Ohio and Kentucky. The lead article, entitled "Sex offender limits: Too far?," begins this way:
It seems like a common-sense precaution to protect children: Prohibit sex offenders from living within 1,000 feet of a school. But that simple premise — which has been law in Ohio since 2003 and Kentucky since 2006 — is quickly degenerating into a legislative free-for-all, fraught with unintended consequences, controversy and constitutional questions.
The Ohio and Kentucky supreme courts are poised this fall to decide if the laws are unconstitutional because they subject offenders to further punishment after they've served their sentences. Meanwhile, evidence suggests that residency restrictions may be counterproductive, forcing sex offenders underground and lulling parents into a false sense of security.
Hamilton County sheriff's deputies, for example, have arrest warrants out for 49 sex offenders who should have registered their addresses — but who have dropped out of sight. Seven of them simply stopped registering after the city of Cincinnati told them they couldn't live within 1,000 feet of a school.
And there's this: As more areas become off-limits, sex offenders are being concentrated into neighborhoods with few schools and inexpensive housing — neighborhoods like Westwood and Florence, an Enquirer analysis of sex offender registration data shows.
Here are some of the aditional piece in the Enquirer's coverage of this issue today:
- Editorial: False security in sex offender laws
- Housing, programs provide magnet
- Area sex offender cases
- Letters: Do sex-offender laws make sense?
A co-defendant running to the prosecutor faster than Michael Vick
This AP article and this Atlanta Journal-Constitution article details that one of Michael Vick's co-defendant appears poised to plead guilty to the dog fighting charges that have derailed the NFL star's football career. Here are a few details from the AJC piece:
One of the men facing federal dogfighting charges along with Falcons quarterback Michael Vick is discussing a plea deal with federal prosecutors, which could spell bad news for Vick. Tony Taylor, 34, of Hampton, Va., has a plea agreement hearing scheduled for 9 a.m. Monday in the U.S. District Court in Richmond before Judge Henry E. Hudson....
The plea hearing could mean that Taylor, who pleaded not guilty to the charges Thursday, has agreed to cooperate with federal prosecutors.... "This could be very bad news for Vick," said Steven D. Benjamin, a veteran criminal defense attorney from Richmond who has represented many clients before Hudson. "If he is pleading guilty, he is cooperating with the government."
Taylor could get a lighter sentence through a plea deal. "Whoever is the first in line gets the best deal," said Michael Morchower, a former federal prosecutor and now a Richmond criminal defense attorney who has also represented defendants before Hudson. "That's the problem with co-defendants. They are going to want to save themselves. And the government wants cooperation. And the person who cooperates first gets the biggest reward."
Covering similar ground is this Virginian-Pilot article, headlined "Co-defendant's plea deal a bad sign for Vick, experts say."
Some related Vick posts:
Sad setting for noticing sentencing differences
With thanks to the many readers who sent me the link, this AP story, headlined "Sentences vary when kids die in hot cars," provides yet another example of the inevitability of different sentencing outcomes in the most challenging of criminal cases. Here are excerpts:
Since the mid-1990s, the number of children who died of heat exhaustion while trapped inside vehicles has risen dramatically, totaling around 340 in the past 10 years. Ironically, one reason was a change parent-drivers made to protect their kids after juvenile air-bag deaths peaked in 1995 — they put them in the back seat, where they are more easily forgotten.
An Associated Press analysis of more than 310 fatal incidents in the past 10 years found that prosecutions and penalties vary widely, depending in many cases on where the death occurred and who left the child to die — parent or caregiver, mother or father:
- Mothers are treated much more harshly than fathers. While mothers and fathers are charged and convicted at about the same rates, moms are 26 percent more likely to do time. And their median sentence is two years longer than the terms received by dads.
- Day care workers and other paid baby sitters are more likely than parents to be charged and convicted. But they are jailed less frequently than parents, and for less than half the time.
- Charges are filed in half of all cases — even when a child was left unintentionally.