August 18, 2007
The enduring challenge of reforming harsh mandatory sentencing laws
This new Time magazine article spotlights the enduring challenge of reforming harsh mandatory sentencing laws, even in a seemingly progressive state like New York. Here are snippets from the article:
The most painful thing to Cheri O'Donaghue about her son's incarceration on drug charges is not the imprisonment itself, but that he is serving the sentence that should go to a narcotics kingpin when all he committed, she says, was the crime of a small-time pusher. Her son Ashley was found guilty of delivering cocaine to two college students in upstate New York in 2003. He was sentenced to seven to 21 years in prison, a penalty mandated by New York's controversial Rockefeller Drug Laws. Ashley is among about 14,000 people sent to New York prisons under the Rockefeller laws, in force since 1973, which impose harsh mandatory minimum terms on even first time offenders — meaning they could get the same sentence as a person convicted of second degree murder.
O'Donaghue once had hope for a positive change in her son's situation. That was because there was a movement to change the Rockefeller laws. The momentum behind that reform, however, has now stagnated as prosecutors and legislators fear that changes in the law are being used as loopholes to free drug lords. With no light at the end of the tunnel, she and other activists fighting for a repeal feel the laws may never change and many of the state's imprisoned — her son included — continue to languish in jail. "The movement is definitely stalled, and we're trying to gain some momentum again, but it's very hard," said O'Donaghue.
Five years for abolitionist's fraud in California
As detailed in this post, last year it was discovered that a former criminal defense investigator, Kathleen Culhane, forged statements from jurors and others involved in death penalty cases. Culhane was prosecuted for fraud and, as noted in this Los Angeles Times article, received a five year sentence earlier this week. The Times piece reviews her crime and sentencing, and here are some interesting snippets:
As she was led off to prison in handcuffs Thursday, former inmate advocate Kathleen Culhane had few regrets about falsifying documents in an attempt to spare the lives of four convicted murderers. Earlier during a brief hearing -- shortly before she was sentenced to five years in prison -- Culhane had called capital punishment "a brutal legacy of lynching," adding that "I cannot have remorse for a government that kills at midnight and invests millions of dollars in the process."...
[In an earlier interview], Culhane said she felt "betrayed by former colleagues" who "rolled over for the prosecution" and actively assisted in the case against her. "I didn't expect that," she said.
Culhane says she is prepared for prison. "After I turned myself in [in February, 2006], the guards referred to me as a celebrity case, which was a drag because the other prisoners didn't like that," she recalled. "But when I told one prisoner what I'd done, she said, 'Right on.' "
Crime and Consequences has more on this case here.
August 17, 2007
A late afternoon Vick update (with federal guideline musings)
The latest news on Michael Vick's plea scramble can be found from CNN and the New York Times. As both stories note, two of Vick's co-defendants pleaded guilty today and they have indicated that "the NFL star helped execute dogs that didn't fight well" and that "the money behind the Bad Newz Kennels dogfighting operation, based on property Vick owns in Virginia, came 'almost exclusively' from the Atlanta Falcons star."
These additional details suggest that Vick's plea negotiations may be focused on some bad newz sentencing guidelines, which would call for a sentence enhancement based on Vick's apparent leadership role in criminal activity under USSG section 3B1.1. (I also wonder if anyone has every tried to apply Chapter 3 victim-based enhancements for vulnerability or restraint to non-human victims.) I would bet that defense lawyers are helping Vick see that he now could be facing a quite long sentence if he does not take a plea, but prosecutors may now already looking for a significant prison term even with a plea.
Some recent related posts:
- Looking over the defense as Vick considers his moves
- Who knows what guidelines apply to dog fighting?
- Vick being sacked by the collateral consequences of an indictment
- Friday forum: what sentence should Vick get if he pleads guilty?
Ninth Circuit reverses within-guideline sentence as substantively unreasonable!!
A full 31 months and five days since Booker, today has brought what I believe constitutes the very first appellate reversal of a within-guideline sentence as substantively unreasonable. Strangely and disappointingly, this ground-breaking ruling appears as the final paragraph of an unpublished per curiam ruling in US v. Paul, No. 06-30506 (9th Cir. Aug. 17, 2007) (available here). Here is that final paragraph in full:
Paul’s 16-month sentence is unreasonable. Several factors that are absent from the district court’s sentencing analysis demonstrate that this case does not fall within the “heartland” of cases to which the guidelines are most applicable, as described by the Supreme Court in Rita v. United States, 127 S. Ct. 2456, 2465 (2007). All of the following facts demonstrate that a 16-month sentence was unreasonably high: Paul was a first-time offender with absolutely no criminal record whatsoever; she promptly returned all of the funds to the school district; she displayed remorse in two statements given to the Department of Labor prior to the filing of criminal charges; and the misappropriated funds represented compensation for work that she had performed for the district. The district court did not adequately consider this strong mitigating evidence in sentencing Paul to the very top of the guidelines range. Accordingly, we vacate Paul’s 16-month sentence and remand with instructions for the district court to resentence Paul after giving appropriate consideration to the above-mentioned factors.
Kudos to the panel for being willing to declare this sentence substantively unreasonable. But why not publish this disposition and explain in fuller detail all the (seemingly quite sound) reasons when the 16-month sentence does not comply with 3553(a)?
Notably, the reference to "heartland" is a throwback to the old pre-Booker departure standard, rather than an engagement with post-Booker issues. For this reason and others, it is hard to tell if the Paul panel is saying the sentence is unreasonable because a departure was not granted when warranted, or rather is saying that the sentencing is unreasonable because the guidelines were followed.
I would like to hear a lot more about Paul from anyone in the know. Why did the feds even decide to prosecute what seems to be a local infraction? Why would the district court sentence at the very top of the range in a case of this type? Has Ms. Paul been serving time during the pendency of her appeal? Inquiring minds want to know....
More of the usual from the Seventh and Eighth Circuits
Friday brings no rest for those weary of circuit rulings against defendants on sentencing issues. The opinion pages for the Seventh Circuit and Eighth Circuit today reveal a slew of new sentencing rulings, all of which appear to reject the defendants' contentions. A quick skim suggest that not much new ground is broken in all these new opinions.
Among the group is this Eighth Circuit decision holding that a "prior Missouri conviction for first-degree tampering with an automobile is a 'violent felony' within the meaning of 18 U.S.C. § 924(e)(1)." Parents should remember this ruling next time their kids are messing with controls in their car. Now they can can shout, "Hey, kids, stop that ... you're committing a violent felony!"
Friday forum: what sentence should Vick get if he pleads guilty?
This story from the Atlanta Journal-Constitution has the latest news out of Atlanta on the Vick case. Here are the basics:
The two remaining co-defendants in Vick's federal dogfighting case are expected to plead guilty in court here Friday morning as part of plea agreements with prosecutors, putting more pressure on Vick to do the same....
Meanwhile, federal prosecutors have warned Vick that he must agree to a plea deal Friday or face more serious charges as part of a superseding indictment that could be announced before the end of this month, according to two people with knowledge of the negotiations....
The ex-Virginia Tech football star was close to accepting the plea deal Wednesday, the two people said. But Vick -- who has a $130 million contract with the Falcons -- had not made a final decision because he wants to hear from the NFL what a guilty plea would do to his football career, the two people said.
Various news stories, including this one from the New York Times, are saying that the plea deal "would most likely come with a recommendation from prosecutors that Vick ... be sentenced to one to two years in prison."
Not surprisingly, commentators have in mind other types of sentences for Vick. Consider this excerpt from this ESPN column:
Vick and his accomplices deserve more than merely prison; they really should spend time working at the humane society.... If I'm the federal judge in charge of sentencing, I make Vick and the others report to the AHS Monday through Sunday at 8 a.m. sharp. There are about 100 cages that need to be cleaned twice each day. Sadly, there are few vacancies at the Humane Society.
Vick could walk dogs. He could help groom them. He could cut the grass and help maintain the grounds. He could stuff envelopes in the administrative offices. He could work with the on-site dog behavior expert. He could offer to work in the AHS wellness clinic, which provides free animal-health services for pets whose owners can't normally afford such care. He could attend the monthly support-group meeting, where animal owners who have lost their pets help each other through the hurt. "It's a cliché term, but it is like losing a family member," says [Carl] Leveridge, [president of the Atlanta Humane Society]....
Most of all, Vick could write a check. Something in the two commas, six-zero variety. It wouldn't bring back the dogs that were allegedly tortured and killed at Bad Newz, but it would save others. The AHS has an annual operating budget of about $4.5 million. It cares for about 400 animals, including about 200 dogs. A Michael Vick Endowment Fund of, say, $5 million, would help bankroll the AHS for the next 20 years. Now that's a legacy.
August 16, 2007
Remarkable Apprendi ineffectiveness ruling from the Sixth Circuit
After seeing this ruling earlier today, I wanted to read it closely to be sure it was as big a deal as it seems. And, upon further review, I am sure that the Sixth Circuit's work today in Nichols v. US, No. 05-6452 (6th Cir. Aug. 16, 2007) (available here), is huge and perhaps gets intriguingly close to giving Booker retroactive potential for some federal defendants. Technically, Nichols concerns an ineffective assistance claim brought in a 2255 petition. But federal practitioners will understand from these excerpts what Nichols could mean:
Petitioner-Appellant Thomas Albert Nichols (“Nichols”) appeals from the district court’s judgment denying his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Nichols argues that his counsel was constitutionally ineffective for failing to challenge enhancements to his Guidelines range. Nichols argues that, based on Apprendi v. New Jersey, 530 U.S. 466 (2000), his counsel should have raised a Sixth Amendment challenge to the sentencing enhancements, even though Nichols was sentenced in 2002, more than two years before the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). Because Apprendi cast the constitutionality of the Federal Sentencing Guidelines into considerable doubt, and because the enhancements to Nichols’s Guidelines range directly presented circumstances that were called into question by Apprendi, we conclude that Nichols’s counsel was constitutionally ineffective for failing to preserve a Sixth Amendment challenge to his sentence, and we therefore REVERSE the judgment of the district court, VACATE Nichols’s sentence, and REMAND the case for resentencing....
We recognize that, under our decision today, the performance of many attorneys who represented criminal defendants after Apprendi but before Blakely and Booker will be deemed constitutionally deficient. The question before us, however, is not what some or most attorneys actually did, but whether the performance of Nichols’s counsel “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. Although we recognize that common practices may provide evidence of the objective standard by which we should measure the performance of individual attorneys, common practices can never be determinative lest we freeze our expectations of counsel at one moment in time, never to improve or change in response to developments in, for example, education, technology, or the law itself. In this case, we conclude that the performance of Nichols’s counsel was constitutionally deficient for failing to take into account and respond to the significant changes in the law effected by Apprendi.
For a range of practical and procedural reasons too complicated to explain briefly, the actual impact of Nichols may not be that huge for the hundreds of thousands of defendants sentenced between Apprendi and Booker. Nevertheless, the import of Nichols is still huge (and likely will lead to further appeals from the government).
The latest sex offender panic news from Ohio
A helpful reader sent me a link to this remarkable cover story from City Beat, entitled "Next Comes Burning at the Stake: Is Ohio getting too tough on sex offenders?". The article covers lots of important ground, and these lengthy snippets provide only a glimpse into the strong work in the article:
It's been 10 years since Ohio started registering sex offenders, notifying neighbors when they move nearby and putting their pictures on sheriffs' Web sites. Has the program improved public safety? No one knows. The state has never studied the results of this relatively new and controversial approach to crime prevention.
But that hasn't stopped the Ohio General Assembly from passing a much tougher version of the law, requiring even more people to register as sex offenders -- and for longer periods. The new law, which took effect July 1, won unanimous approval in the Ohio Senate. But there are serious questions about whether legislators even knew what the law would require.
Passed under pressure from the federal government, the law creates a classification system so severe that some juveniles convicted of sexual misconduct could be branded as sex offenders for the rest of their lives. But far from enhancing public safety, some policy analysts say, the new law could backfire -- making it harder for former offenders to stay out of trouble and making it more difficult for victims of sexual abuse to get help....
The law brings Ohio into compliance with the federal Adam Walsh Child Protection and Safety Act. While the federal government can't force states to enact laws, it can create financial "incentives" for states to adopt them. In this case the incentive was a 10 percent bonus in grants created by the Walsh Act if Ohio enacted the law by July 27. States that don't pass the law by 2009 will face a 10 percent cut in other federal grants.
Ironically, the Ohio Legislature rushed for nothing. Congress hasn't acted to fund the bonuses in the first place, according to Amy Borror, spokeswoman for the Office of the Ohio Public Defender. "There absolutely was a sense of urgency that the legislature wanted to pass it before they adjourned for the summer to meet this July 27 deadline ... to get 10 percent of nothing," she says. "Congress hasn't actually appropriated any money for that so, as of right now, it's 10 percent of zero. Even if there were money, even if it were $1 million or $2 million, that pales in comparison to the cost of implementing this."
Effective district court elaboration of post-Rita realities
I have received (and provided for downloading below) an effective "sentencing memorandum" issued earlier this week by US District Judge Dan Polster in US v. Ortiz, No. 1:06-CR-417-004 (N.D. Ohio Aug. 14, 2007). In Oritz, Judge Polster throughtfully explains his reasoning for imposing a below-guideline sentence in a career offender drug case, and in so doing he takes stock of the state of federal sentencing law in the Sixth Circuit after Rita. Here is a key paragraph from Judge Polster's work in Ortiz:
Therefore, when one considers the Sixth Circuit’s post-Rita line of decisions, along with the Rita opinion itself, it is clear that the district courts have tremendous sentencing discretion in the final determination of the sentence imposed. The sentencing courts are to consider the relevant § 3553(a) factors, the advisory Guideline range, and any other nonfrivolous arguments that each side may make, and indeed, may use the Guidelines as an advisory resource. Ultimately, however, the courts must impose a sentence in accord with § 3553(a)’s parsimony provision, and provide a reasoned explanation of the basis for the sentence.
Another high-profile case becomes about federal sentencing
As detailed in this early CNN report, the "jury in the Jose Padilla terror trial has convicted the American on charges of conspiracy to support Islamic terrorism overseas." The report states that "Padilla and two co-defendants were convicted on all counts," and How Appealing says here that sentencing is scheduled for December 5, 2007.
This means, of course, we get to play another high-profile round of guideline and Booker guessing games. Will Padilla's guideline recommendation be life? Will the sentencing judge follow the guidelines, whatever they provide. Readers are welcome to play Jeane Dixon in the comments.
UPDATE: David Oscar Markus has this terrific summary of today's Padilla proceedings and what comes next at the Southern District of Florida Blog. Also, Orin Kerr has a lot on Padilla at The Volokh Conspiracy.
Reports of Vick plea deal including prison time
This CNN report provides the latest news and rumors concerning a possible plea deal for Michael Vick. Here are the basics:
Michael Vick is considering joining two co-defendants who will ask a judge Friday to sign off on their plea agreements in a federal dogfighting case, according to a spokesman and published reports. The deal offered by federal prosecutors recommends that the Atlanta Falcons quarterback serve a year in prison, The Virginian-Pilot reported in its Thursday editions. The newspaper quotes two anonymous sources.
Some related Vick posts:
Another strong piece examining incarceration nation
Thanks to this post at Think Outside the Cage, I see that The Nation has this new piece that is the must-read of the week. In "Stars and Bars," Daniel Lazare examines the realities of mass incarceration in the United States and critically reviews recent academic literature examining its roots and results. Here is how the piece begins and one of many notable passages:
How can you tell when a democracy is dead? When concentration camps spring up and everyone shivers in fear? Or is it when concentration camps spring up and no one shivers in fear because everyone knows they're not for "people like us" (in Woody Allen's marvelous phrase) but for the others, the troublemakers, the ones you can tell are guilty merely by the color of their skin, the shape of their nose or their social class?
Questions like these are unavoidable in the face of America's homegrown gulag archipelago, a vast network of jails, prisons and "supermax" tombs for the living dead that, without anyone quite noticing, has metastasized into the largest detention system in the advanced industrial world. The proportion of the US population languishing in such facilities now stands at 737 per 100,000, the highest rate on earth and some five to twelve times that of Britain, France and other Western European countries or Japan....
Several of the leading Democratic candidates ... have recently come out against the infamous 100-to-1 ratio that subjects someone carrying ten grams of crack to the same penalty as someone caught with a kilo of powdered cocaine. Senator Joe Biden has actually introduced legislation to eliminate the disparity -- without, however, acknowledging his role as a leading drug warrior back in the 1980s, when he sponsored the bill that set it in stone in the first place. At a recent forum at Howard University, Hillary Clinton promised to "deal" with the disparity as well, although it would have been nice if she had done so back in the '90s, when, during the first Clinton Administration, the prison population was soaring by some 50 percent. Although he is not running this time around, Jesse Jackson recently castigated Dems for their hesitancy in addressing "failed, wasteful, and unfair drug policies" that have sent "so many young African-Americans" to jail. Yet Jackson forgot to mention his own drug-war past when, as a leading hardliner, he specifically called for "stiffer prison sentences" for black drug users and "wartime consequences" for smugglers. "Since the flow of drugs into the US is an act of terrorism, antiterrorist policies must be applied," he declared in a 1989 interview, a textbook example of how the antidrug rhetoric of the late twentieth century helped pave the way for the "global war on terror" of the early twenty-first.
In other words, cowardice and hypocrisy abound.
As highlighted in posts linked below, The Nation is not the only outlet giving serious attention to these important matters:
Notable Second Circuit ruling on notice and guideline procedures
Thanks to this post at AL&P, I see that I missed a notable ruling on notice and other related issues of guideline sentencing procedure coming from the Second Circuit last week. Here is one of various passages (with some cites omitted) from US v. Cole, No. 06-0226 (2d Cir. Aug. 9, 2007) (available here), a case which highlights that at least some process is still due a defendant at sentencing:
In this case, the district court sua sponte imposed an above-Guidelines sentence, departing 12 months above the highest end of the Guidelines range that it found applicable. As Cole correctly notes, a district court must provide reasonable prehearing notice of its intent to consider a sentence above the Guidelines range. Of course, the “right to be heard has little . . . worth unless one is informed that a decision is contemplated.” Burns v. United States, 501 U.S. 129, 136 (1991). The notice given during the course of the sentencing hearing and put into effect less than two hours later was insufficient. Failure to give such reasonable notice constitutes plain error. Consequently, we remand. On remand, the district court must provide the defendant notice so as to avert “unfair surprise” as well as facilitate “adversarial testing of factual and legal considerations relevant” to the contemplated departure.
UPDATE: interestingly, the Second Circuit today decided another notice case in US v. Altman, No. 06-4276 (2d Cir. Aug. 16, 2007) (available here), but came out the other way when supervised release guidelines were involved. Here's the first paragraph of the Altman opinion:
This case asks us to decide, in effect, whether United States v. Booker, 543 U.S. 220 (2005), and our jurisprudence since then has made it necessary for district courts to give notice before sua sponte imposing a sentence outside the range recommended by the applicable United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) policy statements for violation of conditions of supervised release. We hold that such notice and an opportunity to challenge the basis for the sentence outside the applicable advisory range need not be given. Accordingly, we affirm the sentence imposed.
Is AG Gonzales good for criminal defendants?
Jonathan Turley has this provocative op-ed in USA Today, entitled "Gonzales is tough on crime? Hardly. His strong-arm tactics actually have worked to defendants' advantage." Here is how it starts and ends:
Attorney General Alberto Gonzales has continued his campaign to survive at any cost in the face of allegations ranging from false statements to violations of federal surveillance law. Despite persistent calls for Gonzales' removal or impeachment, his allies dismiss the possibility he committed crimes while emphasizing that he is tough on crime. It is a defense that leaves many lawyers chuckling. The fact is that Gonzales is the best thing to come along for criminal defendants since Ernesto Miranda.
Gonzales' appetite for unchecked power has served to undermine prosecutions and alienate courts....
Federal judges now openly question the veracity of government filings; many Republican appointees are ruling in favor of criminal defendants and civil liberties. Even Justice Department attorneys have complained that they are "ashamed" of the politicization and unprofessionalism of the department under Gonzales.
Prosecutors were selected for their political purity rather than their legal abilities. Gonzales ordered the replacement of some of the most effective and respected prosecutors in the country with lawyers such as Tim Griffin, whose only known qualification was service as an aide to Karl Rove.
So what's not to like about Alberto Gonzales? He has undermined easy cases, replaced talented prosecutors with political stooges, alienated even conservative judges, and forced both Republicans and Democrats to call for greater protection of civil liberties. At this rate, the American Civil Liberties Union may well name a wing after him. Who knows, Jefferson, Padilla and others may well be able to attend the ribbon-cutting.
August 15, 2007
Oh geez, who's briefing Obama on criminal justice issues?
This strong post by Jeralyn at TalkLeft points to this notable Boston Globe commentary by Derrick Jackson entitled "Obama's caution on drug sentencing." As Jackson suggests, Barak Obama's latest comments about crack sentencing suggest both an ignorance and an apathy that I find quite surprising and disappointing. Here are the parts of the Jackson column I find so troubling:
[Obama's] vacillation [on criminal justice issues] became evident as he kept talking about crack-vs.-powder sentencing, which has come to symbolize racial injustice in criminal justice. He said that if he were to become president, he would support a commission to issue a report "that allows me to say that based on the expert evidence, this is not working and it's unfair and unjust. Then I would move legislation forward."
That was a puzzling statement because the US Sentencing Commission, created by Congress in 1984, has long said the system is not working and reaffirmed in April that the 100-to-1 ratio "significantly undermines" sentencing reform.
Obama asked if he could make a "broader" point. "Even if we fix this, if it was a 1-to-1 ratio, it's still a problem that folks are selling crack. It's still a problem that our young men are in a situation where they believe the only recourse for them is the drug trade. So there is a balancing act that has to be done in terms of, do we want to spend all our political capital on a very difficult issue that doesn't get at some of the underlying issues; whether we want to spend more of that political capital getting early childhood education in place, getting after-school programs in place, getting summer school programs in place." Obama claimed, "I'm not suggesting it's an either/or but I'm suggesting that an even higher priority for me is getting young men and increasingly young women to stop getting involved in the drug trade in the first place. And that's going to require pretty heavy lifting. That's going to require some billions of dollars of expenditure that aren't there right now."
By asking an open question about spending "all our political capital" on eliminating the 100-to-1 ratio, that raises the possibility he will spend little or none on it. By talking about a "broader" prescription of early childhood school programs -- which means nothing to a 17-year-old in jail -- Obama risks flashing a losing card of being nonconfrontational. President Clinton tried that a decade ago and lost. Obama said he voted in Illinois to stop the perpetration of unjust laws. Without a stronger voice on 100-to-1, he becomes part of the problem of continually passing criminal laws based on anecdote.
I find this so disappointing because I think effective reform of the federal criminal justice system (including its deep racial issues) needs an effective and forceful moral leader, not another unprincipled political strategist --- like Bill Clinton, who turned the federal criminal justice system to the right more than any of his Republican predecessors. I was hopeful that Obama might be that leader, but now I fear I may have to look to some of the Republican candidates. Sigh...
Some related posts:
Around the blogosphere
Lots and lots of good news stuff on sentencing matters to be found at:
Also, Ann Althouse has this really strong post about media biases in reporting about the death penalty.
And Jeralyn has a great post here looking at various criminal justice positions of Barak Obama and other leading Dems. The article referenced in Jeralyn's post merits its own treatment in a separate post.
Eighth Circuit upholds massive upward variance
The Eighth Circuit rarely affirms below-guideline sentences, but today it affirms another massive upward variance in US v. Gillmore, No. 06-3545 (8th Cir. Aug. 15, 2007) (available here). Here is the official summary of the ruling for the Circuit's opinion page:
U.S. District Court for the District of Minnesota - St. Paul [PUBLISHED] [Shepherd, Author, with Murphy and Beam, Circuit Judges] Criminal Case - sentence. District court's grant of upward variance on second degree murder conviction within Indian country from 188 months to 396 months was not unreasonable, in light of district court's thorough and well-reasoned explanation for imposing exceptional variance, namely, the brutal nature of the offense and the threat defendant posed to herself and the public due to her mental illness and chemical dependancy. District court did not abuse its discretion.
A new sports anthem: Please pleas me
The news reports today indicate that two high-profile defendants from the world of sports are working on pleas:
- This AP article reports that "[f]ormer NBA referee Tim Donaghy planned to plead guilty in federal court on Wednesday to charges alleging he wagered on games he officiated."
- This SI article reports that "Michael Vick's lawyers are trying to negotiate a plea deal with federal prosecutors, in hopes of limiting the embattled Falcons quarterback's jail time and paving the way for a quick return to the NFL."
Speeding up the fast track to more capital litigation
The blogosphere is buzzing (at TalkLeft, Volokh and ACS) about this strong article from the Los Angeles Times discussing the new proposed rules that enables the attorney general sign off on 'fast tracking' death penalty appeals under the AEDPA. Here are snippets from the LA Times piece:
The Justice Department is putting the final touches on regulations that could give Atty. Gen. Alberto R. Gonzales important new sway over death penalty cases in California and other states, including the power to shorten the time that death row inmates have to appeal convictions to federal courts.
The rules implement a little-noticed provision in last year's reauthorization of the Patriot Act that gives the attorney general the power to decide whether individual states are providing adequate counsel for defendants in death penalty cases. The authority has been held by federal judges.
Under the rules now being prepared, if a state requested it and Gonzales agreed, prosecutors could use "fast track" procedures that could shave years off the time that a death row inmate has to appeal to the federal courts after conviction in a state court.... Under the law, the attorney general's decision could be challenged before the federal appeals court in Washington....
Some critics question whether the rules would have the desired effect. The rules would require that states establish a "mechanism" for supplying lawyers to death row inmates in order to qualify for the expedited procedures but would not ensure that the lawyers were competent or adequately funded, these critics say.
Though I have many concerns about how AG Gonzales has handled various sentencing issues, I think these new fast-track rules are likely to end up being much ado (and much litigation) about nothing. The AEDPA law passed during the Clinton Administration was designed to speed up federal appeals of state capital cases, and its biggest impact has been the creation of more time-consuming litigation. I suspect the new fast-track rules will simply bring faster litigation well before it brings faster executions.
Some recent related posts:
August 14, 2007
Seeking solutions to Oklahoma's prison problems
This AP article from Oklahoma provides more details on Oklahoma's prison overcrowding problems (basics here), while also spotlighting developing responses from key policy-makers. Here are a few excerpts:
Gov. Brad Henry says policy makers must meet head-on the overcrowding crisis in prisons and end a long cycle of underfunding the Department of Corrections. In an interview, Henry said a mix of programs is needed, including more drug and alcohol treatment and expansion of drug courts, while beefing up maximum-security beds at the Oklahoma State Penitentiary to handle dangerous criminals....
Corrections Director Justin Jones wants to expand the McAlester prison and build a new medium security prison to house 2,400 inmates. The Legislature increased the DOC budget this year to $483 million, but it was not enough to carry the agency through the 12 months of the fiscal year that started July 1. Jones said the agency will need supplemental funding when lawmakers reconvene in February....
Jones recently said inmate overcrowding had hit 98 percent capacity and is probably at the most critical point in three decades because of a lack of options to deal with the problem. He said his only alternative soon will be to back up state inmates in county jails. Henry said it was premature to consider a special session of the Legislature on the issue, while praising the timing of an Associated Press series of articles on overcrowding and prison problems. "If we don't do something, we will hit that brick wall," he said.
Senate Co-President Pro Tem Glenn Coffee, R-Oklahoma City, has opposed prison expansion, while suggesting more utilization of private prisons. Henry said he agreed with Jones that the state should not become too dependent on private prisons.
Presto, never chango ... lifetime supervision approved by Sixth Circuit
The Sixth Circuit covers a lot of post-Booker sentencing ground today in US v. Presto, No. 05-6888 (6th Cir. Aug. 14, 2007) (available here), in the course of affirming a district court's imposition of lifetime supervised release for receipt and possession of child pornography. Here is one of many interesting aspects of a seemingly simple case:
Defendant also argues that his sentence is unreasonable because it would result in significant financial cost to the government, and because “the limitless period of mandatory participat[ion] in a sex offender treatment [program] with polygraph and plethysmograph testing will result in substantial costs to [defendant] for the remainder of his life.” Appellant’s Brief at 23. He provides no legal support for the idea that a sentence is unreasonable if it would result in significant cost to a defendant or the government, and the cost of supervision and testing is not a factor the district court is required to consider under § 3553(a). Thus, the cost of compliance does not render defendant’s sentence unreasonable.
Capital news and notes from the DPIC
The Death Penalty Information Center has a number of new items of note for those who keep close tabs on the practicalities of capital sentencing. Here are the DPIC headlines with links:
August 13, 2007
Vick about to have to play defense alone
As detailed in this USA Today article, Michael Vick seems likely to soon be the last of four indicted co-defendants to be resisting the feeral government's dog fighting allegations. Here is how the article starts:
Two more of Michael Vick's co-defendants have hearings set for later this week on plea agreements with prosecutors. That would leave the Atlanta Falcons quarterback as the lone defendant awaiting a Nov. 26 trial in Richmond, Va., on a federal indictment stemming from alleged operation of a dogfighting ring.
The scheduling of the latest plea agreement hearings appeared Monday on the website of the United States District Court in Richmond. Purnell Peace, 35, of Virginia Beach is to appear Thursday before Judge Henry E. Hudson. The hearing for Quanis Phillips, 28, of Atlanta, is scheduled for Friday.
Collins R. Spencer III, a spokesman for Vick's defense team, told the Associated Press that Vick's lawyers were surprised by the latest plea hearings.
UPDATE: This New York Times article reports on a poll in which "Americans say Michael Vick’s high profile has led to preferential treatment from the authorities, and few say his profession is a disadvantage." As I have suggested in some posts below, I actually think the opposite may be true.
Some related Vick posts:
The intersection of mental illness and mass incarceration
Among lots of good new stuff at Corrections Sentencing is this post spotlighting this new Time piece discussing the reality that much of the nation's mental health treatment takes place in prison settings. Here is an excerpt:
Prisons ... have become the nation's "de facto" mental health care provider. According to the Federal Bureau of Justice Statistics, there are currently 1.25 million inmates..., with debilitating disorders ranging from schizophrenia to post-traumatic stress disorder, abandoned in the U.S. prison system instead of receiving treatment in hospitals.
"If you think health care in America is bad, you should look at mental health care," says Florida state judge and criminal mental health expert Steve Leifman. More Americans receive mental health treatment in prisons and jails than hospitals or treatment centers. In fact, the country's largest psychiatric facility isn't even a hospital, it's a prison — New York City's Rikers Island, which holds an estimated 3,000 mentally ill inmates at any given time. Fifty years ago, the U.S. had nearly 600,000 state hospital beds for people suffering from mental illness. Today, because of federal and state funding cuts, that number has dwindled to 40,000. When the government began closing state-run hospitals in the 1980s, people suffering from mental illness had nowhere to go. Without proper treatment and care, many ended up in the last place anyone wants to be.
Understanding Texas justice as a capital milestone approaches
Reuters has this new piece, entitled "Religion, culture behind Texas execution tally," which provides some background on why Texas stands alone as the leading state for the application of the death penalty. Here are a few excerpts:
Texas will almost certainly hit the grim total of 400 executions this month, far ahead of any other state, testament to the influence of the state's conservative evangelical Christians and its cultural mix of Old South and Wild West.
"In Texas you have all the elements lined up. Public support, a governor that supports it and supportive courts," said Richard Dieter, executive director of the Death Penalty Information Center. "If any of those things are hesitant then the process slows down," said Dieter. "With all cylinders working as in Texas it produces a lot of executions."
Texas has executed 398 convicts since it resumed the practice in 1982, six years after the U.S. Supreme Court lifted a ban on capital punishment, far exceeding second-place Virginia with 98 executions since the ban was lifted. It has five executions scheduled for August.
The average time spent on death row before execution is about 10 years, not much less than the national average of closer to 11 years, according to the Death Penalty Information Center. But the average would be considerably longer if Texas were excluded.
Interesting (unpublished) Sixth Circuit affirmance of upward departure
Though its unpublished status perhaps is supposed to signal that we should not give the decision too much attention, reasonableness review gurus will want to check out the Sixth Circuit's work in US v. Korson, No. 06-2247 (6th Cir. Aug. 8, 2007) (available here), affirming an above-guideline sentence in a white-collar case. Here is the decision's first paragraph:
PER CURIAM. In this sentencing appeal, defendant Daniel Korson contends that the district court relied upon impermissible factors in departing upward from the guidelines range calculated in the defendant’s presentence report, improperly relied on victim-impact statements made at his sentencing hearing, and violated Federal Rule of Criminal Procedure 32(h) by failing to give the defendant notice of the specific grounds upon which the upward adjustment would be based. For the reasons set out in this opinion, we find no reversible error in connection with the sentencing procedure, and we therefore affirm the sentence imposed by the district court.
Many thanks to the fellow blogger who alerted me to this "secret" unpublished decision. As always, readers are highly encouraged to send me links to notable rulings I may have missed.
Also, the Sixth Circuit has kicked the new week off with a bunch of criminal law rulings (both published and unpublished) that can be accessed at its official website opinion page.
Reservations about federal law on reservations
The Wall Street Journal has this interesting front-page article entitled, "On Tribal Land, Tragic Arson Leads to a Life Sentence Justice Can Be Unequal In Reservation Crimes; Prayers at Sweat Lodge." Here are excerpts:
Indian tribes once had control over the dispensation of justice on reservations. But federal laws -- some passed a century apart -- have whittled away that authority, and, critics say, helped create a legal system that's often separate and unequal....
Because the tribes don't have jurisdiction for serious crimes committed on their lands, outcomes of cases can be uneven. In some cases, the federal government doesn't have the resources to prosecute such crimes, allowing criminals to slip through gaps. But Native Americans who do end up being prosecuted face a federal system that has become tougher in recent years.
Since the 1980s, Congress has been toughening federal penalties by adding mandatory minimum sentences -- which are often more severe than those handed out by states. Coupled with that was the abolishment of parole in the federal system. As a result, American Indians, especially the million or so living on tribal land, can face harsher punishments than non-Indians for what are effectively local crimes, say tribal officials and legal experts.
August 12, 2007
More interesting dog-days reading from SSRN
August brins the dog days of summer and also often has professors working like a dog to finish up summer writing projects. Here are three interesting-looking, project that have just been posted on SSRN:
- Punishing Cruelly: Punishment, Cruelty, and Mercy by Paulo D. Barrozo
- Restorative Justice: What is it and Does it Work? by Carrie Menkel-Meadow
- Retribution, Recognition, and Capital Punishment by Adil Ahmad Haque
Tenth Circuit finds undue judicial involvement in plea deal
I've just seen an interesting opinion released late Friday by the Tenth Circuit concerning plea practices. Here is the opening paragraph of US v. Cano-Varela, No. 06-8020 (8th Cir. Aug. 10, 2007) (available here):
Marco Antonio Cano-Varela entered a pretrial status conference disappointed with the plea deal his lawyer had helped negotiate and displeased with his lawyer’s provision of Spanish-language discovery materials. He intended to request a change of counsel so that he could go to trial on drug charges. During the conference, however, the district court informed Mr. Cano- Varela that he would potentially face a vastly longer sentence if he went to trial and was convicted than if he pleaded guilty. Two weeks later, Mr. Cano-Varela accepted the government’s plea deal. We hold that the district court violated Rule 11(c)(1)(C)’s prohibition against judicial participation in plea negotiations by comparing, before Mr. Cano-Varela and the government had reached a plea agreement, the potential penal consequences of pleading guilty versus going to trial. We therefore vacate Mr. Cano-Varela’s guilty plea and sentence.
Toughness bills coming due in Oklahoma
This local AP story discussing the state of sentencing and corrections in Oklahoma describes a situation that exists in far too many states. Here are extended excerpts from a long and strong article:
Tough-on-crime public safety policies are sending inmates to Oklahoma prisons faster than others are being released, leaving prisons filled to capacity and burdening the state with rising correctional expenses and inmate health care costs.
In Oklahoma's 100th year of statehood, its incarceration rate ranks fourth in the U.S. behind Louisiana, Texas and Mississippi, according to the Bureau of Justice Statistics. A study by the Oklahoma Criminal Justice Resource Center found that almost 1 percent of the state's entire adult population age 18 and over was in prison at the end of August 2006.
Also, Oklahoma ranks first in the number of women it puts behind bars in a nation that is the world's leader in incarceration with 2.1 million people in prisons or jails across the country. Oklahoma incarcerated 120 women per 100,000 residents in 2005 compared to the U.S. average of 58....
At midyear 1995, slightly more than 1 million inmates were housed in state prisons nationally and 17,605 were housed in Oklahoma state prisons, according to BJS figures. Eleven years later, more than 1.36 million inmates were housed in state prisons and 23,935 were in Oklahoma prisons. Last month, there were 25,160 state inmates in public and private prisons and more than 98 percent of the state's prison cells were occupied, the Department of Corrections said. Criminal justice officials have warned that an additional 900 inmates are expected to enter the state's penal system in 2008.
"The attitude in the Legislature is get tough on crime,'' said former Republican state Sen. Ged Wright of Broken Arrow, a member of the Oklahoma Sentencing Commission that reviews criminal justice policy and makes recommendations to the Legislature. Wright said state sentencing policies are forcing more inmates to serve longer sentences.... "Nobody wants to be perceived as being soft on crime. That goes into more felonies and longer sentences,'' Wright said. Senate President co-Pro Tem Glenn Coffee, R-Oklahoma City, said population growth, and not harsh criminal justice policies, is responsible for the state's rising inmate population. Oklahoma ranks 28th nationally in population. "The first priority of government is to keep people safe,'' Coffee said.
Rising prison populations are putting new pressure on already pinched state budgets. States spent nearly $35.6 billion on corrections in 2006 and budgeted $37.6 billion for 2007, according to the National Conference of State Legislatures. "The budget pressures and overcrowding issues are the single biggest factor,'' King said. The Oklahoma Legislature appropriated more than $477 million for state prisons this year, an increase of 4.7 percent from the previous year. Last year, the Legislature appropriated $435 million for state prisons, $45 million more than in 2005. The state prison budget grew by 147 percent from 1990 to 2001, more than any other state agency, according to a report by the Tulsa-based Community Action Project....
This year, prison officials sought funding for a 1,500-bed expansion at the maximum-security Oklahoma State Penitentiary in McAlester, opened in 1908, and a new 2,400-bed medium-security prison, but neither plan was considered. Both would have been paid for with a 25-year, $380 million bond issue. "I don't think building a bunch of new prisons and the capital costs associated with that makes sense,'' Coffee said. State lawmakers have hired a Florida-based company, MGT of America, to conduct a performance audit of the prison system to help them balance public safety concerns with the growing costs of state prisons.