August 25, 2007
Wondering about the USSC's data (and advocacy) plans
Earlier this year, the US Sentencing Commission was doing a great job producing and publishing post-Booker data on its Booker webpage, but now its been more than three months since any new data or information has appeared there. I hope we see some more district court sentencing data soon, and I still hold out hope that we might also get some sophisticated post-Booker appellate data and analysis at some point.
Also, the USSC webpage is showing its age by still mentioning Claiborne as a Supreme Court case, while failing to mention Gall or Kimbrough. Perhaps this is a sign that the USSC did not even consider filling an amicus brief in either of these cases.
Lots of death penalty news and notes
Distracted by the start of classes and all the celebrity sentencings, I've not kept up with lots of interesting on-going capital punishment stories. Fortunately, the usual suspects — Capital Defense Weekly and Crime and Consequences and Death Penalty Information Center and Ohio Death Penalty Information — have lots and lots of new posts on an array of these capital topics.
MTV coverage of whether Lohan and Richie are being treated special
With all the troubled famous 20-somethings, there too much good sentencing stuff in the entertainment world for me to ignore. Specifically, consider this effective MTV piece about the recent sentencing fortunes of Lindsay Lohan and Nicole Richie. The piece's headline highlights its themes: "Lindsay Lohan And Nicole Richie Got Off Light? Experts Disagree: California legal pros say celebs were treated just like anyone else would have been."
August 24, 2007
Collateral plea consequences: NFL suspends Vick indefinitely
As detailed here at NFL.com, "Commissioner Roger Goodell notified Falcons QB Michael Vick on Friday that he is suspended indefinitely without pay from the National Football League, effective immediately." Here are excerpts from Goodell's letter to Vick:
Your admitted conduct was not only illegal, but also cruel and reprehensible. Your team, the NFL, and NFL fans have all been hurt by your actions.
Your plea agreement and the plea agreements of your co-defendants also demonstrate your significant involvement in illegal gambling. Even if you personally did not place bets, as you contend, your actions in funding the betting and your association with illegal gambling both violate the terms of your NFL Player Contract and expose you to corrupting influences in derogation of one of the most fundamental responsibilities of an NFL player....
I will review the status of your suspension following the conclusion of the legal proceedings. As part of that review, I will take into account a number of factors, including the resolution of any other charges that may be brought against you, whether in Surry County, Virginia, or other jurisdictions, your conduct going forward, the specifics of the sentence imposed by Judge Hudson and any related findings he might make, and the extent to which you are truthful and cooperative with law enforcement and league staff who are investigating these matters.
Some related Vick posts:
- 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?
Michael Vick's plea agreement and statement of facts
Booker/guideline fans may be especially intrigued by various sentencing sections of the plea agreement. in particular, it appears that the section 2 of plea agreement stipulates to an upward departure under USSG 5K2.0 in order to get the ultimate offense level to 13 for a guideline range of 12-18 months.
The Washington Post provides some more of the basics in this new story.
Another sentencing day in the circuits
I spent this morning enjoying a sunny, hot day on the links (though I thought about work issues a lot). But, there is no long weekend for the federal circuit courts, as evidence by two notable sentencing ruling from the Sixth Circuit that a helpful reader spotted. Here is the reader's description of the day's holdings (which can be accessed from this opinion page):
1. United States v. Kennedy: D invoked Fifth Amendment against polygraph and plethysmograph examination, on advice of counsel. When District Court overruled the objection, D appealed. District Court then revoked bond just after proof briefs were filed. D dropped appeal, but District Court used "non-cooperation" as justifying top-end sentence and lifetime supervision. A very, very conservative panel affirms.
2. United States v. Sims (Unpublished): Jury found more than 5 but less than 50 grams of crack; by proof beyond a reasonable doubt. District Court finds 500+ grams of crack for sentencing purposes by a preponderance. Sixth Circuit affirms.
Speedy prison "justice" for Nicole Richie
This Los Angeles Times story about Nicole Richie's minutes in prison provies perhaps a fitting issue for Friday commentary. Here are the baics:
Now that's what you call fast service. Reality TV star Nicole Richie was released by the Los Angeles County Sheriff's Department after serving just 82 minutes of her four-day sentence for driving under the influence of drugs. Richie reported to the Century Regional Detention Facility in Lynwood at 3:15 p.m. After being processed, sheriff's officials released her at 4:37 p.m.
Authorities said her sentence was radically cut under guidelines the Sheriff's Department uses to deal with chronic overcrowding in its jail system. The county is under a federal order to reduce overcrowding, resulting in the release of thousands of inmates who serve just a fraction of their sentences....
Undersheriff Larry Waldie, second in command at the department, said Richie was treated like any other female inmate. "The reality of overcrowding is that would have happened to any female inmate with a 96-hour sentence," he said. "They were told to treat her like any other inmate, and that is what happened here."
Officials said a nonviolent woman sentenced to less than 30 days in jail typically serves less than 12 hours. In 2006, actress Michelle Rodriguez received a 60-day sentence for violating probation and was out after four hours and 20 minutes because of jail overcrowding. Over the last five years, more than 200,000 inmates have been released early because of overcrowding in county jails.
August 23, 2007
Government concedes in Gall that variances can be "based solely on policy disagreements with the Guidelines"
This week the Government filed its merits brief in US v. Gall, the below-guidelines reasonableness case to be heard by the Supreme Court at the start of the new Term, and it is available for download below. Confirming an important point conceded by Deputy SG during last Term's oral arguments, the Government's Gall brief states repeatedly that policy disagreements with the Guidelines can be a valid basis for a variance — even though many circuit have held otherwise (like the Tenth Circuit in a split ruling yesterday) and even though many lower court briefs filed by the Government have argued otherwise.
Here is a brief snippet from the summary of argument in the Government's Gall brief that spotlights this important point:
Contrary to petitioner’s suggestion, proportionality review does not require an “extraordinary” justification for every non-Guidelines sentence. Only sentences that dramatically vary from the range require substantial justification. Similarly, proportionality review does not demand that every variance be supported by a “fact” that is not encompassed within the jury verdict or guilty plea. Considerations of policy, as well as facts, can support a variance; the test is the cogency and strength of the rationale, not whether it is fact-based.
ABA makes pitch for USSC crack amendments to be made retroactive
Yesterday, the American Bar Association submitted a letter regarding the US Sentencing Commission's 2008 priorities. The ABA letter, which is mostly focused on arguing that the USSC should make its new crack amendments retroactive, can be downloaded below. Here is a snippet:
Over the years, the Commission has amended the drug guideline with the effect of lowering sentences in particular drug cases, and in each instance, has made the amendment retroactive by including it in the list of amendments eligible for reduction under Section 3582(c)(2)....
The Commission’s current proposed amendment to Section 2D1.1 -- that would modestly reduce offense levels across the board for crack cocaine -- is intended as an interim measure to alleviate the “urgent and compelling” problems associated with the 100-to-1 crack-to-powder ratio. At the very least, principles of fairness, consistency, and proportionality should likewise lead the Commission to include this amendment in the list of amendments eligible for reduction under Section 3582(c)(2). The relevant factors weigh in favor of making the amendment retroactive:
Since 1995, the Sentencing Commission has consistently taken the position that the 100:1 ratio was unwarranted from its inception, and has a racially disparate impact. The Reason for the May 11, 2007 Amendment notes that the Commission set drug quantity thresholds to produce base offense levels corresponding to guideline ranges above the statutory mandatory minimum penalties.
The amendments to the drug guidelines related to LSD, marijuana, and oxycodone and made retroactive have generally benefited caucasian defendants. Given the racially disparate impact of the 100:1 ratio and the public perception that our drug laws are racially discriminatory, making this amendment retroactive is the only fair and principled course.
New article on "Plea Bargaining and Victims"
Professor Michael O'Hear latest thoughtful contribution to interesting sentencing debates, which entitled "Plea Bargaining and Victims: From Consultation to Guidelines," now is available here via SSRN. Here is the abstract:
In its efforts to establish a genuine, participatory role for victims in the criminal process, the victims' rights movement has properly focused its attention on plea bargaining as a crucial locus of decisionmaking in the criminal justice system. Prompted by victims' advocates, many jurisdictions have adopted consultation requirements, mandating that prosecutors seek input from victims before consummating deals with defendants. Such requirements have been criticized on grounds of both principle (victims are not parties to criminal litigation, which exists to serve public interests in crime control and just punishment, not private interests in vengeance or compensation) and practical efficacy (consultation is costly and promotes expectations of decision control among victims that cannot be fulfilled). Against the former objections, and in light of social psychology research on procedural justice, this Article suggests reasons why victim participation in plea bargaining may actually advance, rather than undermine, public interests in crime control and just punishment. The Article further proposes, as a complement to mandatory consultation, the adoption by prosecutors of publicly available charging and plea-bargaining guidelines. Such guidelines may helpfully address the practical efficacy objections to mandatory consultation. They may also make an important contribution in their own right to victims' perceptions of procedural justice.
Big doings (and split reasonableness ruling) from the Tenth Circuit
Lots of late-day news yesterday from the Tenth Circuit provides the media and sentencing fans with lots to talk about today.
First, as detailed in the Denver Post, the Tenth Circuit "ruled Wednesday that Joe Nacchio can remain free on $2 million bail pending an appeal of his conviction for illegal insider trading — a surprising win for the former Qwest chief executive."
Second, in a split ruling in US v. Garcia-Lara, No. 06-3054 (10th Cir. Aug. 21, 2007) (available here), the Circuit declares unreasonable a below-guideline sentence in a meth case. There are lots of notable pasages and Rita reconstructions in the long dueling opinions in the case.
In ruling a below-guideline sentence unreasonable in Garcia-Lara, the majority asserts that, a "court's conclusion that the Guidelines are simply 'wrong' or an inadequate reflection of the statutory sentencing purposes is an unreasonable application of the § 3553(a) factors unless the court can justify the sentence imposed in light of the facts of the particular case considered under § 3553(a)." The dissent in turn says the majority "faild to follow the letter and spirit" of Rita:
In my opinion, the decision announced today stands as exhibit A on two points: First, it shows that notwithstanding the repeated reaffirmation and clarification of an appellate abuse of discretion standard by the majority and concurrence in Rita, the Newtonian pull of the Guidelines toward a near-mandatory center remains. Second, it demonstrates that the “trust that those Judges who had treated the Guidelines as virtually mandatory during the post- Booker interregnum will now recognize the Guidelines are truly advisory,” id. at 2474 (Stevens, J., concurring), is misplaced.
Recent white-collar federal sentencing stories
Thanks to law.com, everyone can now check out two new pieces about the always dynamic world of federal sentencing for white-collar offenders. Here are headlines with links:
- 3rd Circuit Rules Prison Time 'Reasonable' for Tax Cheat: Dissenting judge complains that majority is departing from the court's post-'Booker' cases
- Lawyers 'Fly Blind' on Options Penalties: Debate over how to calculate losses and which sentencing guidelines should apply
August 22, 2007
More reasons to expect a GPS-world of corrections
Like Michael Connelly at Corrections Sentencing, I see this piece from Wyoming about the selling of GPS-tracking systems to provide a telling window into why the future is technocorrections (and the future may be now). Here are snippets from a piece that should be read in full:
Powell Mayor Scott Mangold could be located with a few keystrokes on a computer over the weekend, as a network of satellites tracked his every move. Mangold strapped on an electronic monitoring anklet Thursday and wore it until Sunday morning to test a system being marketed by Freedom Fighters, a Wyoming company seeking to sell the gear to law enforcement.
Powell Police Chief Tim Feathers wrote in a memo to Mangold that he sees potential advantages in using the device as a possible alternative to incarceration for certain nonviolent, first-time offenders. Mangold said he thinks it could save taxpayers money at a time when hundreds of the state's prisoners are housed out of state, and finding qualified jailers can be difficult when competing with high oil and gas wages.
"Prison is a place for repeat, violent offenders, but this offers an alternative," said Boone Tidwell of Freedom Fighters, who will be pitching the device to Wyoming sheriffs and prison managers. Tidwell, a retired sheriff's detective and former bail bondsman, is marketing the device in Wyoming for manufacturer SecureAlert, a Utah company that also monitors offenders wearing the anklets.
Equipped with a global positioning unit and a cell phone, the TrackerPal is a little larger than a pack of cigarettes, uses detachable, rechargeable battery packs, and is attached with a custom tool. Police can use the TrackerPal's cell phone to speak with offenders.... Future versions of the device available by early next year will be able to take readings from the wearer's skin and detect drug or alcohol use, Tidwell said.
"This would help a lot of the 'meth moms' that we're giving those massive jail sentences of 10 or 15 years to," Mangold said. "You could attach one of these to them after they've completed a treatment program and get them back to their families and into the work force. If it detects meth, they go back to jail," he said. Because offenders would wear the anklets instead of being locked up, they would be volunteering for the program, and could be required to help pay for some or all of its costs, he said.
Tidwell figured the anklets would cost around $15 to $25 per day, including monitoring, which could be done by local law enforcement or through SecureAlert. "When you consider we're shipping hundreds of prisoners out of the state to be housed at a cost of $60 per day, this could mean a savings of several millions of dollars a year," he said.
Some related posts on GPS tracking:
- Is the future parole with GPS and other techno-reentry devices?
- Every step you take, every move you make...
- Is GPS tracking a better way?
- More on the pros and cons of GPS tracking
- The devil's in the details of GPS tracking of sex offenders
- A practical challenge to GPS monitoring
Judge Young's take on post-Rita sentencing realities
Yesterday, Judge William Young of the District of Massachusetts, whose sentencing work always merits attention, issued an interesting opinion in United States v. Birkett, No. 06-10139 (D. Mass. Aug. 21, 2007) (available here). There is a lot of interesting modern sentencing ground covered in Birkett, and this concluding paragraph provides a window into some parts of the opinion:
Th[e] sentence [in this case] protects Birkett’s Sixth Amendment rights by identifying the statutory limit that may be imposed given the facts to which he pled guilty. Once this was established, the Court was not required to turn a blind eye to relevant conduct that informed the Court as to where the sentence ought fall below that statutory maximum. In so doing, the Court considered the guidance provided by the Sentencing Commission substantively as it applied to this case and these facts, which included facts of a prior conviction that, while impermissible to raise the statutory maximum, would require a sentence more severe than the “properly” calculated advisory guidelines. To do otherwise would exemplify the fear that sentencing judges will now apply the advisory guidelines mechanically, thus reducing the sentencing judge’s role to that of a arithmetician. This is a fear that is only furthered by the Supreme Court’s decision in Rita, which now encourages and insulates a within-guideline sentence.
Intriguing new Wisconsin report on race and sentencing
Thanks to this post at Corrections Sentencing, I see that the Wisconsin Sentencing Commission has released a new report (available here) entitled, "Race & Sentencing in Wisconsin: Sentence and Offender Characteristics Across Five Criminal Offense Areas." The two-page executive summary suggests that this a very thoughtful effort reaching a number of interesting conclusions. Here are a few highlights from the executive summary:
- Racial disparities, when present, were typically found in sentence types (prison or probation), not sentence lengths.
- Where disparities existed, a higher percentage of Black and Hispanic offenders received prison sentences (versus probation) than White offenders.
- The amount of racial disparity found in sentence types typically increased as offense severity decreased....
- In Drug Trafficking cases, across the board, a higher percentage of Black offenders received prison sentences (versus probation) than White offenders. This disparity increased as offense seriousness decreased....
- Racial disparities were not typically found in sentence lengths....
As shown in the findings of this report, racial disparities do exist within Wisconsin's sentencing system. Yet, the true causes of these disparities are often difficult to identify and measure. Disparities in sentencing are most likely due to the confluence of multiple issues, and are the result of institutionalized defects rather than malicious intent. Due to the fact that race is generally correlated with many legal sentencing factors permissible for judges to consider — criminal record, employment history, and educational opportunities — it becomes a challenging directive to sufficiently separate the effect of race over other interconnected factors. Ultimately, more and better data is required to improve the strength and meaning of the results.
Mid-week forum: is it fair for Vick also to face state criminal charges?
This AP article details that local prosecutors in Virginia are talking about bringing state criminal charges against Michael Vick. Here are some of the particulars:
Michael Vick now must wait and worry. Already looking at a possible five years in prison on federal dogfighting charges, the Atlanta Falcons quarterback also could be facing prosecution in Virginia.... Local prosecutor Gerald Poindexter has said he likely will pursue charges against Vick, who has plummeted from favorite son to a symbol of animal abuse in the four months since authorities raided his Surry County property.... Among the state laws Vick could be charged with violating are those against dogfighting and animal cruelty. Both are felonies punishable by up to five years in prison.
I believe that, under traditional dual sovereignty doctrines, there are no federal Double Jeopardy limits on a state prosecutor trying to take a second criminal bite at Vick. However, it strikes me that, at some point, Vick has a right to complain about piling on: in addition to his federal conviction and sentence, Vick will also likely be significantly sanctioned by the NFL and maybe also by the Atlanta Falcons.
My sense is that, at the very least, local prosecutors ought to see what punishment Vick ultimately receives elsewhere before starting to make significant public statements about a possible state prosecution. (Also, I wonder if the local prosecutor has said already whether he will also go after Vick's co-defendants.)
Here's an interesting sentencing twist on all this: can and should the federal sentencing judge consider giving Vick a sightly lower sentence if he knows Vick will be subject to a duplicative state prosecution? Of course, this could create a kind of criminal justice Mobius strip: a federal judge could potentially reduce a sentence based on an expected subsequent state prosecution, and then a state prosecutor could decide to go forward with a subsequent prosecution because the feds imposed a sentence that seemed too lenient.
Why don't they talk about capital punishment for drunk drivers in Texas?
As my students know, I often wonder why those who support the death penalty on deterrence grounds generally do not consider making drunk driving a potential capital offense. This Dallas Morning News article reports that, based on the latest national statistics, "Texas led the country in the number of drunken driving fatalities last year with 1,354." Interestingly, this means that, based on data from the Texas Department of Public Safety, the number of years drunk driving deaths in Texas is roughly comparable to the number of murders.
As I have suggested in previous posts, typical drunk driving crimes seem likely to be much more deterrable than typical murders. Moreover, we could and should expect that only the most horrific drunk driving offenses would ever lead to capital charges (just like we can and do expect that only the most horrific murders lead to capital charges).
So, given the state's capital punishment track record, is it only a matter of time before some Texans start talking seriously about the possibility of the death penalty for drunk drivers who kill?
Some related posts on drunk driving sentencing:
- Shouldn't we be much, much tougher with drunk drivers?
- Technology versus toughness to combat drunk driving
- Is capital punishment for drunk driving morally required?
- Getting tougher on drunk driving
- Why do we worry so much more about sex offenders than drunk drivers?
Around the blogosphere
Lots of interesting new sentencing-related stuff to be found at:
August 21, 2007
Ground-breaking empirical work on habeas actions under AEDPA
As detailed in this news release from Vanderbilt, a new study led by Professor Nancy King "finds that fewer state convictions and sentences are being ruled unconstitutional by federal courts." Here's more background about this important work from the press release:
The two-year study was partially funded by the National Institute of Justice and is the first to examine the effects of 1996 amendments to the habeas corpus law that apply when state prisoners challenge their convictions and sentences in federal court. The research examined nearly 2,400 non-capital cases, randomly selected from among the more than 36,000 habeas cases filed in federal district courts nationwide by state prisoners during 2003 and 2004, and more than 360 death penalty cases filed in 13 federal districts between 2000 and 2002.
Before the 1996 law, known as the Anti-terrorism and Effective Death Penalty Act or "AEDPA," federal courts granted a writ of habeas corpus to a state prisoner in about one of every 100 non-capital cases filed. A writ of habeas corpus is a mandate from a court to a prison official ordering that an inmate be be released from custody, re-sentenced, or retried. King's research found that after the new law was enacted, the grant rate was closer to one in every 300 cases.
I must first spotlight that the data show that state capital defendants fair much, much better than non-capital defendants in federal habeas proceedings. Specifically, the report finds that, of 2384 non-capital filings examined, petitioners received relief a rate of 1 in every 341 cases filed, whereas of the 267 capital cases examined, about 1 in 8 petitioners received relief. In other words, in capital cases, the habeas relief "grant rate is 35 times higher than the rate in non-capital cases." Thus, it seems if you really want to get a federal habeas court to take your procedural complaints seriously, try to make sure you get convicted of murder and sentenced to death in state court.
Intriguing split First Circuit ruling on sentence for failing to appear
Anyone interested in statutory interpretation as well as sentencing should check out the First Circuit's work today in US v. Smith, No. 07-1246 (1st Cir. Aug. 21, 2007) (available here). A split panel comes to different view on this issue (as stated in the majority opinion):
[In this case we must] decide a surprisingly controversial question: if the failure to appear relates to a supervised release revocation hearing, is the relevant punishment under the statute the period of incarceration available for the supervised release violation, or the period of incarceration available for the underlying offense which led to the imposition of the supervised release condition?
S.COTUS here in his summary at AL&P provides this amusing account of the First Circuit's work in answering this question:
Using the rhetoric of “plain language” (and, of course, looking outside the statute) the First concludes that a supervised release violation isn’t a “criminal offense.”
[Judge] Selya dissents, saying that the result doesn’t track Congress’s intent, which was “...plainly to create a hierarchy of penalties geared to the magnitude of the sentence that was at stake in connection with the proceeding for which the defendant failed to appear.” Oh great. The majority says the text is “clear” (and looks outside the statute) and the dissent says that the “intent” is clear.