August 11, 2007
Just like Howard Bashman, I spent Friday night watching live a terrific baseball game between NL East rivals. Courtesy of a great friend in a high place, I had an amazing seat in the absolute front row at Shea Stadium on the third-base side for Florida Marlins 4, New York Metropolitans 3. You can access the wraps from MLB.com at this link.
The game had lots of highlights from our seats, including a great view of the visitors returning to the dug-out after each side retired, a beat-out bunt in the Mets only scoring inning, and a flying bat when a Marlins pinch hitter lost his grip. Unfortunately for those root, root, rooting for the home team, Billy Wagner blew only his second save of the season and so, as the great song goes, the game's result ultimately was a "shame." But I still had a great time (despite fall-like weather) and was grateful for my host's hospitality.
Meanwhile, as I was traveling to Shea, Tiger Woods almost rewrote another record at the PGA Championship. It's hard not to have a strong feeling that nobody is going to catch him this weekend. Of course, I recommend The Golf Blog for coverage.
August 10, 2007
Ninth Circuit on drug addiction as grounds for variance
Today, in United States v. Garcia, No. 05-30569 (9th Cir. Aug. 10, 2007) (available here), the Ninth Circuit clarifies that the district court after Booker is not prohibited in all circumstances from considering a defendant’s drug addition in choosing a reasonable sentence. Here is the key passage:
We agree with our sister circuits and hold that district courts are not prohibited in all circumstances from considering a defendant’s drug addiction in choosing a reasonable sentence. We express no opinion as to whether Smith’s alleged drug addiction and diminished mental capacity would be an appropriate consideration in this case. Rather, because we are not certain that the district court would impose the same sentence if it had full knowledge of its discretionary authority to consider drug addiction during sentencing, we remand for the district court to consider this question in the first instance.
More reasonable Sixth Circuit work on reasonableness review
While others are buzzing about a new split Sixth Circuit death penalty ruling in Richey (see posts ODPI and Volokh), I am more intrigued by the split Sixth Circuit reasonableness ruling in US v. Thomas, No. 06-1299 (6th Cir. Aug. 10, 2007) (available here). Unlike the Seventh Circuit's eagerness to call appeals of within-guideline sentences frivolous, the Sixth Circuit seems to be taking Rita seriously and in Thomas finds a within-guideline sentence to be procedurally unreasonable. Here is the heart of the majority's decision:
[T]he record in Rita made clear that the district court considered and rejected the defendant’s arguments for a lower sentence, as the district court summarized the defendant’s three arguments before rejecting them and sentencing the defendant within the Guidelines range. Id. at 2461. In this case, the district court’s only mention of Thomas’s numerous arguments for a lower sentence was the statement, “I certainly have received [the sentencing memorandum], read it and understand its presentations.” J.A. at 34 (2/2/06 Hr’g at 7). This conclusory statement leaves us unsure as to whether the district court adequately considered and rejected Thomas’s arguments regarding proper application of the § 3553(a) factors or whether it misconstrued, ignored, or forgot Thomas’s arguments. Because the district court did not “set forth enough to satisfy the appellate court that he has considered theparties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority,” Rita, 127 S. Ct. at 2468, Rita requires that we vacate Thomas’s sentence.
August 9, 2007
Taking a crack at fairness in crack sentencing
As detailed in this ACLU press release, a "coalition of criminal justice advocacy organizations is launching 'It's Not Fair. It's Not Working,' a national effort to reform the 100-to-1 federal sentencing disparity ratio between crack and powder cocaine." Here is more from the press release:
"All Americans want to live in drug-free communities. Unfortunately this law locks up small-time drug users who need to be in treatment programs instead of prison," said Nkechi Taifa of the Open Society Institute (OSI). Other coalition partners include The Sentencing Project, American Civil Liberties Union (ACLU), and the Drug Policy Alliance (DPA).... The coalition will release a series of ads that focus on the disparity in sentencing between crack and powder cocaine.
More information is available at this link from The Sentencing Project, which shows some of the print ads that are part of this campaign.
Judge Posner for Seventh Circuit calls appeal of within-guideline sentence frivolous
In his concurrence in Rita, Justice Stevens stressed that the Court's majority opinion "makes clear ... that the rebuttability of the presumption [for within-guideline sentences] is real." Nevertheless, Judge Posner today writing for the Seventh Circuit in US v. Gammicchia, No. 06-3325 (7th Cir. Aug. 9, 2007) (available here) deems one defendant's efforts to rebut the presumption frivolous. Here is how the opinion begins:
The defendant appeals from his 30-month prison sentence for obstruction of justice. The appeal bespeaks a misunderstanding of federal sentencing law under the regime created by the Booker decision. When as in this case a criminal appeal is frivolous, the defendant’s attorney should file an Anders motion rather than waste the court’s time on a lost cause. We write in the hope of heading off what is assuming the proportions of an avalanche of utterly groundless sentencing appeals.
Sex offender panic reaching juve offenders
A helpful reader sent me a link to this article detailing that Florida has now put its juvenile offenders on its sex offender registry. Here are the basics:
Young teens convicted of sex crimes behind the closed doors of juvenile court will now end up on the state's public registry of sex offenders. A state law that went into effect July 1 will list teens as young as 14 on the same Web site as adults who are convicted pedophiles and sexual predators. The designation will follow them and their families as they enter schools, move to new communities and eventually apply for colleges, trade schools and jobs.
Some public defenders and legal experts describe the law as revolutionary because it makes public the actions of juvenile court. They say it may hinder rehabilitation of those who commit relatively minor offenses by publicly labeling them as sex offenders. Public defenders plan to challenge the law, saying it sentences juveniles as adults without allowing jury trials.
And some specialists in the field say parents, often the first to learn of teens' sex crimes, may be reluctant to seek help for their children if they will be labeled and their families' homes identified on the sex offender list. "Their names, their home address, and other information are going to be there for the public to see," said Jan Abee, who is helping the Department of Juvenile Justice carry out the law. "That means a lot for their families, too, because they'll be living at the same address."
Florida legislators unanimously approved the measure to comply with the Adam Walsh Child Protection and Safety Act and to qualify for millions of dollars in federal funding. The Adam Walsh Act, which went into effect last year, requires children 14 and older who engage in genital, anal or oral-genital contact with children younger than 12 to be included in community-notification laws, such as the predator list. The intent of the federal law, according to state officials, was to add juveniles who use force or coercion while committing sex crimes to the state and national sex offender lists.
Interesting Sixth Circuit split on ACCA predicate
A split Sixth Circuit panel has issued three interesting separate opinions in US v. Amos, No. 06-5032 (6th Cir. Aug. 9, 2007) (available here) addressing the issue of whether a defendant's prior conviction for possession of a sawed-off shotgun is a predicate "violent felony" for purposes of a sentencing enhancement under the Armed Career Criminal Act.
Around the blogosphere
Lots of great new posts on lots of different topics of interest at:
- Capital Defense Weekly
- Crime and Consequences
- Corrections Sentencing
- Grits for Breakfast
- White Collar Crime Prof
Economic realities of state sentencing reform
This commentary from Michigan, entitled "Budget pitting prisons against our universities," spotlights some of the state economic realities that often are the catalyst for new sentencing reforms. Here is how it begins:
Michigan is at a crossroads and facing a critical choice about its future direction, perhaps nothing defines the choice as clearly and fundamentally as the coming budget struggle between prisons and universities. Yes, there are many funding priorities and many worthy programs and services facing stress because of the state's projected deficit for the 2008 fiscal year, which could run as high as $1.8 billion, according to the Senate Fiscal Office.
But shaping choices between Corrections (the backbone of public safety) and universities (the gateway to the knowledge economy) is symbolic of the struggle that faces Michiganians. It is not just a struggle for today or even for 2008, because the actions taken now will set the tone for what type of state Michigan wants to be and what future those who live here can expect.
August 8, 2007
The state of pardons in one state
A helpful reader sent me this link to an interesting article the in Willamette Week (from Portland, Oregon) discussing how rarely Oregon Governor Ted Kulongoski has granted pardons, and questioning why he chose to grant a pardon to one well-connected man while denying pardons to many more meritorious applicants. The article talks a lot about the recent history of pardons in Oregon. Here is a snippet:
Unlike the deluge of news surrounding President George W. Bush's commutation last month of Lewis "Scooter" Libby's prison sentence, Kulongoski's pardons are a quiet affair involving a small number of people.
The pittance of pardons means only a lucky few have hit the jackpot. Only six out of 301—just 2 percent—have gotten a pardon. They had a better chance of getting into Harvard or Yale.
But according to the governor's general counsel, David Reese, the process is as methodical as its lucky recipients are spare. "The stars all really have to be aligned for your [pardon] application to move forward," says Reese, who researches and presents the governor with a recommendation on each pardon application....
Yet even a self-described "crime-fighting advocate" such as Republican Kevin Mannix wonders why Kulongoski offers such long odds for other pardon applicants. "I don't think the governor exercises his pardoning power as much as he might," says Mannix, Kulongoski's opponent in 2002 and the main sponsor of 1994's Measure 11, which instituted mandatory sentencing for violent offenders. Mannix has touted the governor's pardon as Measure 11's escape valve, counterbalancing the law's removal of judges' sentencing discretion. "With the tougher sentences of Measure 11," he told WW in 1999, "I always said that one of the offshoots would be that the governor, from time to time, would need to exercise clemency power."
A quick NASC wrap
Mike Connelly is so pooped from the terrific NASC conference he helped organize that we will have to wait a bit for his wrap-up. In the meantime, this article from The Oklahoman provides some highlights.
Some recent related posts (with strong comments):
The latest on Missouri's lethal injection litigation
This AP story provides the latest news on the Missouri lethal injection litigation winding its way through the federal courts:
A federal appeals court has refused to consider whether Missouri's lethal injection method of capital punishment is constitutional, leaving it unclear whether executions will resume in the state.... Taylor had appealed to the full appeals court after a three-judge panel ruled in June that Missouri's execution procedure is not cruel and unusual punishment. That ruling had overturned another judge's decision to ban executions until the lethal injection process was reformed.
Taylor's attorney said Wednesday that she will ask the U.S. Supreme Court to review the case. And while the high court accepts only a small percentage of the thousands of cases it is asked to review each year, "this has a better shot than most," attorney Ginger Anders said. "It's an extremely important issue, one that is going on in a lot of states."
I would not bet on SCOTUS review, but perhaps this case will get the cert pool bubbling.
Third Circuit adds to the ugly reasonableness hit parade
Continuing a week full of notable reasonableness opinions from the federal circuits, the Third Circuit today in US v. Lessner, No. 06-1030 (3d Cir. Aug. 8, 2007) (available here), rejects an array of claims lodged against a within-guideline sentence of 51 months and a $938,965.59 order of restitution. The reasonableness discussion does not start until page 28, and the ruling spotlight the extraordinary lengths to which a circuit court will go to affirm a within-guideline sentence as reasonable.
In the district court, the "explicit discussion of the § 3553(a) factors was, admittedly, scant" and the defendant apparently made a significant record concerning "her lack of profit from her fraud, her diagnosis of depressive disorder, her exemplary work record, and the onerous nature of the restitution order." Nevertheless, the Lessner panel is content to conclude that, becauseof "extensive and thoughtful questioning by the [district] Court over two days of hearings," the district court must have given "meaningful consideration [to] the pertinent factors."
I was hopeful (as was Justice Stevens) that the Supreme Court's Rita ruling might give just a little more bite to reasonableness review of within-guideline sentences. But Lessner — along with other recent decisions like Hurn from the Seventh Circuit and Ruhbayan from the Fourth Circuit — further confirms that most circuit judge are generally content to treat any and all within-guideline sentences as virtually per se reasonable even after Rita.
Sixth Circuit reverses another below-guideline sentence
After a fairly quite post-Rita summer, the circuits are now for some reason starting to crank out reasonableness opinions at a steady clip. Today's first opinion of note in this regard comes from the Sixth Circuit in US v. Keller, No. 05-6562 (6th Cir. Aug. 8, 2007) (available here). Here is how it starts:
Stephen Keller and Grant Sutherlin were convicted of multiple counts of fraud and money laundering in connection with their operation of a viatical company. At their initial sentencing hearings, the district court imposed the lowest possible sentence on both defendants, pursuant to the then-mandatory Sentencing Guidelines. Sutherlin was sentenced to 151 months of imprisonment and Keller received 168 months. Following the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), both defendants’ sentences were vacated and their cases remanded for re-sentencing. On remand, the district court imposed sentences on each defendant that varied downward substantially from their respective Guidelines’ minimums. The court sentenced Sutherlin to 36 months in prison, representing a variance of 115 months; Keller was sentenced to 120 months in prison, which constitutes a variance of 48 months.
The Government now appeals Sutherlin’s sentence as substantively unreasonable. In addition, Keller appeals his sentence as both procedurally and substantively unreasonable. For the reasons described below, we VACATE Sutherlin’s sentence and REMAND for re-sentencing, and AFFIRM Keller’s sentence.
Seventh Circuit reverses within-guideline sentence on procedural grounds
Covering a number of important issues, the Seventh Circuit yesterday in US v. Schmitt, No. 06-2207 (7th Cir. Aug. 7, 2007) (available here), reversed a within-guideline sentence while also rejecting state-federal sentencing disparity as a basis for a variance. Here is the opinion's lengthy first paragraph:
William Schmitt pleaded guilty to one count of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A). Everyone agreed that, if the Sentencing Guidelines were to be followed, his sentence would fall between 63 and 78 months’ imprisonment. Schmitt, however, argued that the only reasonable sentence for him would be below that range. At his sentencing hearing, he showed convincingly that the overwhelming majority of defendants charged with the same crime in the state courts covering the same area as the Eastern District of Wisconsin received sentences far lower than 63 months. Indeed, only nine of 104 defendants sentenced in the previous five years in those counties received any prison time at all. Schmitt argued to the district court that it should take this evidence into account and sentence him below the guideline minimum. The district judge disagreed and imposed a guideline sentence of 63 months. Schmitt appeals his sentence, arguing that 18 U.S.C. § 3553(a)(6) requires district courts to consider the disparity between state and federal sentences in choosing a sentence. He also asserts that the district court erroneously believed that the guidelines are mandatory in cases involving child pornography and accordingly afforded too much weight to the guidelines in this case. We agree with Schmitt in part. Although the district court correctly rejected Schmitt’s argument about federal/state disparities, we cannot be confident that it approached the guidelines in the way that United States v. Booker, 543 U.S. 220 (2005), and now Rita v. United States, 127 S. Ct. 2456 (2007), require. We therefore vacate the sentence and remand for resentencing.
First Circuit reverses another below guideline sentence
I mentioned here yesterday's First Circuit ruling on juvenile convictions as ACCA predicates, but an even more notable decision from that court came yesterday in US v. D'Amico, No. 05-1468 (1st Cir. Aug. 7, 2007) (available here). As DotD details here, the First Circuit has "vacated a below-Guidelines sentence given to Michael D'Amico, a city councillor who was convicted of taking a bribe and lying about it." Here are some notable passages:
While we accept the district court's characterization of D'Amico as a responsive city councillor who made worthy contributions to Quincy during his time in office, we are left with the firm conviction that the court overvalued these contributions in imposing D'Amico's sentence....
We agree with the Seventh Circuit that it is usually not appropriate to excuse a defendant almost entirely from incarceration because he performed acts that, though in society's interest, also were the defendant's responsibility to perform and stood to benefit the defendant personally and professionally. Thus, D'Amico's performance of good works as a city councillor does not support such a substantial variance from the GSR.
Nine lives of shame in Thailand
A kind reader flagged this amusing story about a new initiative in Thailand using a shaming sanction. Here are the basics:
It is the pink armband of shame for wayward police officers, as cute as can be with a Hello Kitty face and a pair of linked hearts. No matter how many ribbons for valor a Thai officer may wear, if he parks in the wrong place, or shows up late for work, or is seen dropping a bit of litter on the sidewalk, he can be ordered to wear the insignia.
"Simple warnings no longer work," said Pongpat Chayaphan, acting chief of the Crime Suppression Division in Bangkok, who instituted the new humiliation this week. "This new twist is expected to make them feel guilt and shame and prevent them from repeating the offense, no matter how minor," he said. "Kitty is a cute icon for young girls. It’s not something macho police officers want covering their biceps."
August 7, 2007
Missing stuff while on the road...
A day of speaking and traveling has kept me mostly off-line, and a quick check of How Appealing suggests it was a big day for big opinions in the circuits, and the action included a notable First Circuit ruling on "whether juvenile adjudications constitutionally may be used as predicate convictions to support an ACCA enhancement." I hope to catch up on all the action late tonight, but I'd be grateful to readers who help me find anything especially noteworthy I might miss.
August 7, 2007 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (0) | TrackBack
August 6, 2007
Seventh Circuit blesses extreme acquitted conduct enhancement
Harlan J. Protass, who authors the Second Circuit Sentencing Blog, sent me this e-mail flagging a Seventh Circuit opinion of note from late last week that I missed:
Thought you would absolutely want to check out the 7th Circuit’s decision this past Friday in US v. Hurn, No. 06-3666 (7th Cir. Aug. 3, 2007) (available here). It strikes right at the heart of the acquitted conduct issue. He was tried on crack and powder charges. He was convicted of the powder charge, and acquitted of the crack charge. If sentenced purely on the cocaine charge, he would have received 27 to 33 months. He wasn't. Instead and based on acquitted conduct, he got 210 months. Wow. And the 7th Circuit affirmed it.
In addition to being concerned about the Seventh Circuit's willingness to bless again an acquitted conduct enhancement, Hurn also applies the presumption of reasonableness to a crack guideline sentence despite the fact that the US Sentencing Commission has repeatedly said that the crack guidelines are excessive. And the Hurn panel also rejected the defendant's claim that his very low IQ should be a significant mitigating consideration.
In various ways, Hurn's affinity for the guideline range calculated based on acquitted conduct reveals the disappointing nature of post-Booker sentencing review for reasonableness.
A thought-provoking, NASC-inspired question
The first day of the 2007 Conference of the National Association of Sentencing Commissions has been very intriguing. (The local AP provides coverage here and Corey Yung discusses one panel here.) Among the thoughts provoked concerns the place of traditional parole mechanisms in modern sentencing systems.
As many readers surely know, the federal system eliminated traditional parole over 20 years ago in the Sentencing Reform Act of 1984. And, in the 1990s, the feds also encouraged states to eliminate traditional parole systems as part of "truth-in-sentencing" reforms. Nevertheless, a number of states have retained traditional parole in various forms.
In the first plenary session at NASC, Kevin Reitz indicated that the ALI will soon debate whether parole has a place in its on-going revision of the sentencing portion of the Model Penal Code. Kevin noted that he favors a system without traditional parole, but fellow panelist Steve Chanenson made a pitch for retaining parole mechanisms in some form.
So, dear readers, here is the NASC-inspired question of the day: Do you think an ideal sentencing structure should include or exclude a traditional parole mechanism?
Interesting justification ruling from the Fourth Circuit
How Appealing notes this interesting ruling from the Fourth Circuit that finds a defendant's counsel ineffective for telling him he could not possibly succeed with a justification defense to a federal felon-in-possession charge. Though not technically a sentencing decision, I cannot help but think that the defendant's 15-year sentence may have played at least an indirect role in the Fourth Circuit's decision to vacate the defendant's conviction.
NY Times against hiding the executioner
This editorial, entitled "The Executioner's Hood," appears in today's New York Times. Here is a snippet:
Even those who support executing their citizens must see the need to ensure that the process is not barbarically cruel and is fully open to public scrutiny.
Last month, however, Missouri’s governor signed a law that makes it a crime to reveal the identities of current or former executioners.... Under the new secrecy law, Missouri’s capital punishment system may plunge deeper into incompetence and cruelty, and it will be harder for citizens to stop it.
Some related posts:
Churches interested in sentencing
This AP article describes an interesting new role for churches in the operation of the criminal justice system. Here are some highlights:
John Becknell enters the courtroom and finds his usual spot in the front row, just behind the prosecutor's table. Becknell — a devout Christian known to many as "Brother John" — pulls out a pen and an inch-thick docket, mostly of drug and alcohol cases. For the next three hours, he takes diligent notes on the judge's actions, the attendance of police officers, repeat offenders making another appearance, and so on.
The purpose? To make sure drug offenders in eastern Kentucky are getting what they deserve. Frustrated with widespread drug abuse — especially of easily accessible prescription painkillers — a handful of mountain churches are moving away from their traditional role as a refuge for the poor and addicted. Now they're more interested in law enforcement.
The Community Church of Manchester is leading the way through "Court Watch," a program in which volunteers attend court hearings to monitor judges overseeing drug-related cases.... The Rev. Doug Abner, pastor at Community Church — whose slogan for a 2004 anti-drug march was "get saved or get busted" — said the presence of Court Watch volunteers puts "mild pressure" on judges "to do the right thing."...
August 5, 2007
Off to the NASC conference with fitting reading
Today has been spent getting myself together to head to Oklahoma for the 2007 Conference of the National Association of Sentencing Commissions. Details about this great conference can be found at this link. On my way out my office door, I saw and was able to print out a new article on SSRN that will make for interesting and perhaps fitting reading while in transit. The piece is entitled "An Informational Approach to the Mass Imprisonment Problem," by Adam Gershowitz and here is the abstract:
The United States is plagued by the problem of mass imprisonment, with its prison population having risen by 500 percent in the last three decades. Because the overwhelming majority of criminal cases are resolved through plea bargaining, there is room for prosecutors to reduce mass imprisonment by exercising their wide discretion. At present, prosecutors likely do not give much consideration to the overcrowding of America's jails and prisons when making their plea bargain offers. However, if prosecutors were regularly advised of such overcrowding they might offer marginally lower sentences across the board. For instance, a prosecutor who typically offers a first-time drug offender a twenty-month sentence might instead agree to an eighteen-month plea bargain if she were aware that prisons were overcrowded and incarceration rates were on the rise. A rich body of social psychology literature supports the view that informing prosecutors about mass imprisonment might cause them to offer lower sentences. Legislatures have an incentive to enact such a proposal because a reduction in incarceration would reduce the already huge and escalating costs of criminal corrections. At the same time, because legislatures would simply be instructing that prosecutors be advised of the scale of imprisonment, and not specifically advocating lower sentences, there would be no danger of legislators appearing "soft on crime."