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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.

August 25, 2007 in Who Sentences? | Permalink | Comments (0) | TrackBack

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.

August 25, 2007 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

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 25, 2007 in Celebrity sentencings | Permalink | Comments (4) | TrackBack

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.

A lot more coverage on all the day's big Vick news can be found at NBC Sports and SI and ESPN.

Some related Vick posts:

August 24, 2007 in Criminal Sentences Alternatives | Permalink | Comments (2) | TrackBack

Michael Vick's plea agreement and statement of facts

Now available thanks to the Richmond Times-Dispatch's website are PDF copies of Michael Vick's official plea agreement and summary of the facts.  Both documents make for very interesting reading.

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.

August 24, 2007 in Celebrity sentencings | Permalink | Comments (10) | TrackBack

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.

August 24, 2007 in Booker in the Circuits | Permalink | Comments (7) | TrackBack

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 24, 2007 in Celebrity sentencings | Permalink | Comments (7) | TrackBack

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.

Download gall_sg_merits.pdf

August 23, 2007 in Gall reasonableness case | Permalink | Comments (18) | TrackBack

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.

Download aba_letter_ussc_08_priorities_82207_1.doc

August 23, 2007 in New USSC crack guidelines and report | Permalink | Comments (7) | TrackBack

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.

August 23, 2007 in Who Sentences? | Permalink | Comments (2) | TrackBack

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.

August 23, 2007 in Booker in the Circuits | Permalink | Comments (9) | TrackBack

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:

UPDATE:  Paul Caron at TaxProf has more here on the Third Circuit's ruling in the taxing sentencing case (which I previously discussed in this post).

August 23, 2007 in Offense Characteristics | Permalink | Comments (0) | TrackBack

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:

August 22, 2007 in Criminal Sentences Alternatives | Permalink | Comments (5) | TrackBack

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.

August 22, 2007 in Booker in district courts | Permalink | Comments (2) | TrackBack

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:

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.

August 22, 2007 in Race, Class, and Gender | Permalink | Comments (4) | TrackBack

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.

August 22, 2007 in Celebrity sentencings | Permalink | Comments (32) | TrackBack

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:

August 22, 2007 in Death Penalty Reforms, Offense Characteristics | Permalink | Comments (14) | TrackBack

Around the blogosphere

Lots of interesting new sentencing-related stuff to be found at:

August 22, 2007 | Permalink | Comments (0) | TrackBack

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.

The full report can be found at this link, and an executive summary is available here.  There is so much interesting data and food-for-thought in this report, I am not sure where to begin.

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.

August 21, 2007 in Sentences Reconsidered | Permalink | Comments (9) | TrackBack

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.

August 21, 2007 in Federal Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Fifth Circuit finds reliance on national sentencing statistics unreasonable

Yesterday proved to be a tough day for defendants who had received below-guideline sentences from district courts.  In addition to previously-noted reversals in the Third Circuit and in the Eighth Circuit, I now just saw another similar circuit reasonableness reversal in US v. Willingham, No. 06-11106 (5th Cir. Aug. 20, 2007) (available here).  Here is the opening paragraph of the Willingham opinion:

The government appeals, contending that the defendant’s non-Guidelines sentence, which was substantially below the advisory range under the Guidelines, is unreasonable.  The question presented is whether the sentence is unreasonable because the district court departed downward based on the conclusion that imposing a Guidelines sentence would create an unwarranted disparity between the defendant’s sentence and the national average for sentences under the same Guidelines section.  We hold that the sentence is unreasonable and remand for resentencing.

Intrigingly, on the same day it reversed as unreasonableness a district court's decision to go 33 months below the guideline range in Willingham, the same panel of judges affirmed as reasonableness a district court's decision to go 33 months above the guideline range in US v. Sanchez-Ramirez, No. 06-40968 (5th Cir. Aug. 20, 2007) (available here).

August 21, 2007 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

Victim impact technology and the Vick sentencing

This intriguing news release discusses a new webpage created by the City of Minneapolis that enables persons to submit victim impact statements online.  Here are highlights from the news release:

Residents and business owners know how livability crimes affect their neighborhoods.  Now, an Internet tool makes it possible for them to share that information with the courts, so the true impact of crime in the community can be taken into account when sentencing an offender.

For the first time, the City of Minneapolis has made it possible to give a community impact statement online rather than in person.  By filling out a short community impact statement, people can tell the courts how crimes really affect the livability of their neighborhood.  Prosecutors can then present these statements to judges during sentencing....

Before the creation of this tool, people had to go to one of the five Minneapolis Police Department precincts to file community impact statements.  And even then, they did not have the ability to browse cases like they can now.

The online tool covers people charged with livability offenses, such as trespassing, consuming in public, disorderly conduct, loitering with intent to buy or sell narcotics, lurking and public urination. These offenses can have a significant impact on people who live and work in the area. By giving a voice to these affected people, community impact statements show the court that these are not victimless crimes.

This news release has me thinking not only about all the unexpected ways in which technology can impact sentencing, but also about what whether a tool of this sort ought to be developed to enable community input at the sentencing of Michael Vick.  I am sure there are lots and lots of folks that would be eager to share their insights with the sentencing judge. 

Some recent related posts about victim input and the Vick sentencing:

August 21, 2007 in Who Sentences? | Permalink | Comments (16) | TrackBack

Yet another set of defendants losing reasonableness arguments in the Eighth Circuit

As has been its common practice, the Eighth Circuit yesterday embraced all of the governments claims on appeal in a series of reasonableness rulings (decisions here and here and here and here). 

The Circuit's rejection of various defendants' arguments in their appeals of long sentences is not at all surprising.  But the reversal of a seemingly reasoned below-guideline sentence in US v. Carlson, No. 06-3372 (8th Cir. Aug. 20, 2007) (available here) suggests that the Circuit still has a tendency to view sentences of probation as presumptively unreasonable, even though the Supreme Court in Rita stressed that circuits may not apply such a presumption to non-guideline sentences.

August 21, 2007 | Permalink | Comments (4) | TrackBack

More capital obsession in fast-track complaints

ODPI and StandDown Texas Project have assembled some of the extensive criticism of the new proposed rules that would enable the US Attorney General to sign off on 'fast tracking' federal capital habeas appeals under AEDPA.   Here are links to many of their posts providing links to all the sturm und drang over the new proposed rules:

As I have said before, though I laud thoughtful consideration of any sentencing issues, I would prefer greatly this much time and attention being paid to other far more troubling and consequential aspects of federal sentencing law and policy (such as the continued reliance on acquitted conduct at non-capital sentencing).

Some recent related posts:

August 21, 2007 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

August 20, 2007

Michael Vick takes a plea deal

How Appealing reports here, based on two news sources, that Michael Vick has agreed to a plea deal and will formally plead guilty to felony conspiracy next Monday.  Here's the latest CNN report on some sentencing and related issues:

Federal prosecutors had offered a deal recommending an 18- to 36-month prison sentence. Vick's attorneys were trying to reduce that to less than a year, two sources told CNN earlier on Monday.  It was not immediately clear whether Vick's attorneys have heard back Monday from National Football League Commissioner Roger Goodell's office.  They wanted to clarify Vick's career options before entering into any deal with federal prosecutors, the sources said.

Some related Vick sentencing posts:

August 20, 2007 in Celebrity sentencings | Permalink | Comments (22) | TrackBack

Split Third Circuit debates (at extraordinary length) reasonableness review

Setting what I think is a record for the longest post-Booker opinion focused exclusively on reasonableness review, a split Third Circuit panel today provides the week's first must-read with US v. Tomko, No. 05-4997 (3d Cir. Aug. 20, 2007) (available here).  Here are the starts of the two (very lengthy) opinions in the case:

From the majority (per Judge Fisher):

The Government appeals from a judgment of sentence imposed on William Tomko, Jr., who pleaded guilty to a fraudulent scheme to evade personal income taxes.  Tomko’s fraudulent scheme resulted in a tax deficiency of more than $225,000.  The District Court imposed a below-Guidelines sentence consisting of 250 hours of community service, three years of probation (including one year of house arrest), and a fine of $250,000. Tomko was also ordered to undergo twenty-eight days of in-house treatment for alcohol abuse.  As discussed below, this sentence is unreasonable in light of the circumstances of this case and the sentencing factors outlined in 18 U.S.C. § 3553(a). It was therefore an abuse of discretion for the District Court to impose it and we will vacate the judgment and remand for resentencing.

From Judge Smith's dissent:

I do not believe it presumptuous to state that each member of this panel, if sitting as a district judge, would have sentenced William Tomko to time in prison.  However, this Court does not review sentences de novo.  Instead, we afford “deference to the District Court because it is in the best position to determine the appropriate sentence in light of the particular circumstances of the case.” United States v. Dragon, 471 F.3d 501, 506 (3d Cir. 2006) (quotation omitted). Post-Booker, reasonableness review is the standard, and it “merely asks whether the trial court abused its discretion.” Rita v. United States, --- U.S. --- , 127 S.Ct. 2456, 2465 (2007); see also id. at 2470-71 (Stevens, J., concurring) (“Simply stated, Booker replaced the de novo standard of review required by 18 U.S.C. § 3742(e) with an abuse-of-discretion standard that we called ‘reasonableness’ review.” (citation omitted)).  Rita reminds us that the Guidelines “reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives,” id. at 2465, and that the Sentencing Commission has carried out the objectives at “wholesale.”  Id. at 2463.  The sentencing judge, in contrast, carries out the § 3553(a) objectives at “retail,” id., so that “[t]he sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the Commission or the appeals court.” Id. at 2469.

In this case, the District Court provided a thorough discussion of how it meaningfully considered the factors outlined in 18 U.S.C. § 3553(a), and then reasonably applied them to the facts of the case before it.  The majority disagrees and, in doing so, makes at least three major errors.

August 20, 2007 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Rita rehearing request rejected by SCOTUS

Lyle Denniston reports here at SCOTUSblog that the Supreme Court has refused to reconsider its decision in Rita. Here's the basics:

Rita's counsel had asked for rehearing by seeking to rely upon President Bush's clemency order in the CIA leak case.  The petition also had urged the Court to reconsider its 2005 decision in U.S. v. Booker that salvaged the federal Sentencing Guidelines by making them advisory, not mandatory. 

This was one significant order on the summer list released at 10 a.m. Monday -- the second of three summer lists.  The third and final of these orders will be released Aug. 31.

This is not at all surprising, but it would have been exciting if the Justices has at least required the Government to respond to the rehearing request.

August 20, 2007 in Rita reactions | Permalink | Comments (0) | TrackBack

The nitty-gritty on sentencing in the Michael Vick case

Analysis of the Michael Vick dog-fighting case is now turning seriously to sentencing issues.  This USA Today article highlights some the sentencing terms of the plea deal entered last Friday by two of Vick's co-defendants.  Here are a few particulars:

In the signed plea agreements for [Purnell] Peace and Quanis Phillips, 28, of Atlanta, both entered guilty pleas to a one-count indictment charging them with conspiracy to travel in interstate commerce in aid of unlawful activities and to sponsor an animal fighting venture.

In both agreements, attorneys for the defense and prosecution agreed to a level 13 sentencing guidelines. In the Federal Sentencing Guidelines Manual, that means a recommendation of 12-18 months' imprisonment.  Initially, both sides agreed to a level 15 guidelines: 18-24 months. The court papers said that was reduced to level 13 due to the "acceptance of responsibility" by Peace and Phillips in entering guilty pleas. Both sides also agreed that "aggravating circumstances" in the case warranted an "upward departure" in the sentencing guidelines, citing "the victimization of execution of pit bull dogs."

Meanwhile, in this new Findlaw article, Mark Allenbaugh and Frank Larry analyze "Michael Vick's Sentencing Gamble: How Much Time Can He Expect?"  Here is a bit of their analysis of how Vick's celebrity status could matter:

Of course, celebrity status is not formally a factor in sentencing considerations.  But it may nevertheless play a role.

If the Guidelines yield a final offense level that allows for alternative sentences such as probation, house arrest, community confinement, intermittent confinement, or community service, Vick's situation may be unusual. For instance, house arrest can be luxurious for a celebrity defendant, whereas a celebrity's community service — for instance, a PETA ad by Vick expressing remorse and publicizing the harms of dogfighting — could be more effective than that of an ordinary defendant. 

Vick's celebrity status also means that his formal sentence will only be part of his punishment: He may lose his career, or at least valuable years of it, as well. Will the Court take that into account? It's unlikely. While the Guidelines generally strive for justice and fairness, they don't take into account collateral consequences particular defendants suffer in their lives due to pleading guilty or being convicted, or due to imprisonment.

Some related Vick sentencing posts:

August 20, 2007 in Celebrity sentencings | Permalink | Comments (2) | TrackBack

August 19, 2007

Lots of Tennessee views on a faster waltz to executions

Yesterday's Tennessean had three pieces (one editorial and two commentaries) about the new proposed rules that would enable the US Attorney General to sign off on 'fast tracking' death penalty appeals under the AEDPA.  Here are the headlines with links:

Though I laud thoughtful consideration of any sentencing issues, I sure would prefer this much time and attention being paid to some other far more troubling and consequential aspects of federal sentencing law and policy (such as the continued reliance on acquitted conduct at non-capital sentencing or even the still unexplained hiatus on federal executions).

Some recent related posts:

August 19, 2007 in Death Penalty Reforms | Permalink | Comments (18) | TrackBack

Gambling NBA ref's cooperation includes fingering others

The Michael Vick case (latest here and here) is showcasing how federal prosecutors can quickly build pressure on a lead defendant to plead guilty.  Not it appears that the gambling prosecution of former NBA referee Tim Donaghy will provide an example of how defendants eager to make nice with prosecutors will often widen the net of an investigation.  Here's the latest on the Donaghy case from this Newday article:

The NBA is refusing to comment on a radio report stating that Tim Donaghy has information about the gambling habits of 20 other referees, a development that could widen the scandal and increase the scrutiny of his former colleagues.

John Lauro, Donaghy's defense attorney, also refused to comment on the report Friday on 1050 ESPN Radio in New York, which stated that Donaghy plans to detail about 20 other referees' involvement in some form of gambling as part of his agreement to cooperate with federal prosecutors. The type of gambling was not specified, but is believed to include casino gambling....

The NBA presumably has conducted its own investigation of Donaghy's activities and the possible gambling involvement of anyone else affiliated with the league.  Such an investigation, typically conducted by a law firm, often is the first step when corporations are faced with a "whistleblower" former employee who has accepted a plea agreement from authorities and could assist them by implicating others.

The potential for 20 referees, a third of the league's officiating staff, being implicated by Donaghy — even in legal gambling activity — only underscores how delicate the NBA's predicament is as it awaits Donaghy's sentencing Nov. 9.

And the situation could get even more serious for the league if local prosecutors all over the country attempt to bring charges against Donaghy if he is found to have wagered on games in their jurisdictions. Maricopa County (Ariz.) prosecutor Andrew Thomas has sent a letter to Stern and the FBI stating that he would consider bringing state charges against Donaghy if he wagered on two Phoenix Suns playoff games he officiated this past season.

August 19, 2007 in Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack