September 1, 2007
A September Senate hearing on crack sentencing
I just received an e-gram from FAMM highlighting that the US Senate appears poised to have hearing on crack sentencing. Here is the FAMM's account:
Senate to hold first-ever hearing on crack cocaine: For the first time in 20 years, crack cocaine sentencing is a major issue in Congress. Three bills in the U.S. Senate and two bills in the House of Representatives are vying for support. The Senate bills would all reduce the sentence for crack cocaine, and so much interest has been generated that the Senate will hold the first ever hearing on crack cocaine on September 18.
FAMM here has lots of details about the bills, and I am sure they will cover the hearings effectively.
Ultimately, I would be surprised to see Congress make any dramatic changes soon, but the nature and tenor of these hearing could surely impact how others handle various on-going sentencing issues. For example, if there are broad expressions of support at these hearings from the US Sentencing Commission's new crack amendments, the USSC might be more inclined to make these amendments retroactive. Also, all this activity seems sure to impact the Supreme Court's work in Kimbrough, the crack sentencing case to be heard next month.
Some recent related posts:
Connecticut Governor appoints sentencing and parole task force
As detailed in this New Haven Register article, Connecticut Governor M. Jodi Rell has created a Sentencing and Parole Review Task Force "to review state charging, sentencing and parole procedures in the wake of the July triple-homicide in Cheshire."
I am impressed to see this sort of sound and sensible reaction to a terrible crime (instead of, say, knee-jerk legislation to increase sentence lengths). But I am disappointed to see that, as detailed here, the new 20-member task force does not appear to include any professors with expertise in sentencing law and policy.
Nebraska high court rejects effort to pass sentencing buck
As detailed in this AP story and this effective news analysis, on Nebraska Supreme Court yesterday declared that the state legislature had violated the state constitution "when they enacted a plan this year intended to have the high court adopt sentencing guidelines aimed mostly at drug offenders." The ruling came in In Re Petition of Nebraska Community Corrections Council, 274 Neb. 225 (Aug. 31, 2007) (available here). Here is how the opinion begins:
The Legislature has mandated by statute that we promulgate by court rule sentencing guidelines for certain offenses. Under the guidelines, courts must consider community correctional programs and facilities in sentencing offenders. In February 2007, the legislatively created Community Corrections Council petitioned this court to adopt its proposed guidelines. We invited the public to comment on the proposed guidelines. Several members of the judiciary raised concerns related to separation of powers.
We conducted a hearing in April. We agree that the Legislature’s mandate violates the Nebraska Constitution’s separation of powers clause. We deny the Community Corrections Council’s petition, because we conclude that the Legislature cannot delegate to the judicial branch its constitutional power to enact the laws of this state.
August 31, 2007
New policy brief on education and public safety
The Justice Policy Institute this week released "a new policy brief summarizing recent findings on educational attainment as it relates to crime trends and public safety." This interesting document is available at this link, and here is how it begins:
The United States leads the world in the number of people incarcerated in federal and state correctional facilities. There are currently more than 2 million people in American prisons and jails. Overall, individuals incarcerated in U.S. prisons and jails report significantly lower levels of educational attainment than do those in the general population. Research has shown a relationship between high school graduation rates and crime rates, and a relationship between educational attainment and the likelihood of incarceration. The impact of policies related to education and public safety are concentrated among people of color, who are less likely to have access to quality educational opportunities, more likely to leave educational systems earlier, and more likely to be incarcerated.
This research brief summarizes recent findings on what is known about educational attainment as it relates to crime trends and public safety. JPI has compared state-level education data with crime rates and incarceration rates and found that those states that have focused the most on education tend to have lower violent crime rates and lower incarceration rates. While there is no silver bullet that will guarantee reductions in criminal activity or crime rates, the research suggests that increased investments in quality education can have a positive public safety benefit.
Long weekend SSRN reading
Since we get an long weekend to start a new month, here is an long list of interesting new pieces recently appearing on SSRN:
- Federal Prosecution of Terrorism-Related Cases: Conviction and Sentencing Data in Light of the 'Data Reliability' and 'Soft Sentence' Critiques by Robert Chesney
- Minding Moral Responsibility by Steven K. Erickson
- A Reader's Companion to 'Against Prediction': A Reply to Ariela Gross, Yoram Margalioth, and Yoav Sapir on Economic Modeling, Selective Incapacitation, Governmentality, and Race by Bernard E. Harcourt
- The Importance of Research on Race and Policing: Making Race Salient to Individuals and Institutions Within Criminal Justice by David A. Harris
- Habeas Litigation in the U.S. District Courts by Nancy J. King , Fred Cheesman & Brian Ostrom
- Why Sentencing by a Judge Fulfills the Right to Jury Trial: A Comparative Law Look at Blakely and Booker by Susan F. Mandiberg
- The Eighth Amendment, the Death Penalty and Ordinary Robbery-Burglary Murderers: A California Case Study by Steven F. Shatz
Suggestions for fixing potholes on the slow road to death in California
Yesterday the Los Angeles Times had this article, entitled "Judge takes on death row gridlock," which details the delays in the death row appeals in California in discussing a recent law review commentary on this topic by a Ninth Circuit judge. Here is the start of the LA Times piece:
The death penalty system in California is so backed up that the state would have to execute five prisoners a month for the next 10 years just to clear the prisoners already on death row.
The average wait for execution in the state is 17.2 years, twice the national figure. And the backlog is likely to grow, considering the trend: Thirty people have been on death row for more than 25 years, 119 for more than 20 years and 408 for more than a decade.
These statistics were cited by an influential judge in a recent article, one in a small but growing number of critiques of California's death penalty machinery, which has proved to be so clogged that one jurist has called capital punishment in the state an illusion.
Arthur L. Alarcon, a veteran judge on the U.S. 9th Circuit Court of Appeals in Los Angeles, supports capital punishment and has voted in favor of death sentences more often than he has voted against them. His article in the Southern California Law Review is drawing considerable attention, not least because, unlike many critics, he does not blame delays on defense lawyers or liberal judges.
Rather, he has called for a radical overhaul of what he described as systemic problems, including a critical shortage of defense lawyers to represent death row inmates on appeal and an inefficient use of judicial resources. Alarcon suggested a major infusion of cash to attract lawyers to the difficult cases. He also proposed shifting automatic judicial review of death penalty cases to the state's appeals courts.
Some recent related posts:
August 30, 2007
The Government's merits brief in Kimbrough
This Government just filed its merits brief in US v. Kimbrough, the crack-cocaine 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. Here is the first paragraph of the summary of the argument:
Congress has the power to prescribe the appropriate level of punishment for criminal offenses. It may not only set minimum and maximum penalties for an offense, but also restrict the courts’ exercise of discretion within the statutory sentencing range. Where Congress imposes such restrictions, and where those restrictions do not violate the Constitution, courts are bound to abide by them. That is true even though courts otherwise have broad discretion in imposing sentence under the Sentencing Reform Act of 1984, 18 U.S.C. 3551 et seq., as modified by this Court in United States v. Booker, 543 U.S. 220 (2005). The Sentencing Guidelines are now advisory, and courts may vary based solely on policy considerations, including disagreements with the Guidelines. But where Congress has made a specific policy determination concerning a particular offense (or offense or offender characteristic) that legally binds sentencing courts, and the Commission (as it must) incorporates that policy judgment into the Guidelines in order to maintain a rational and logical sentencing structure, that specific determination restricts the general freedom that sentencing courts have to apply the factors set forth in 18 U.S.C. 3553(a). Congress did not intend for the general standards in Section 3553(a) to trump specific policy determinations that Congress itself directs to sentencing courts. Booker provides for review of sentences for “reasonableness,” and a sentencing court does not act reasonably when it rejects a specific congressional mandate.
Third Circuit reverses another downward variance
Continuing a week that's been heavy with reversals of downward variances (see here and here and here), the Third Circuit today in US v. Goff, No. 05-5524 (3d Cir. Aug. 30, 2007) (available here), finds unreasonable a four-month below-guideline sentence for "a frequent customer of a child pornography internet site." Here is a paragraph that summarizes the circuit panel's conclusion that Goff got off too easily:
[W]e conclude that the four-month sentence imposed on Goff was unreasonable, as the District Court committed both procedural and substantive errors in imposing that sentence. The court’s decision fails to reflect the required analysis of the factors set out in § 3553(a). Even if all the § 3553(a) factors had been considered, however, a four-month sentence cannot be justified in this case, because the circumstances do not warrant such a downward variance.
Texas Governor commutes death sentence
As covered here and here at StandDown Texas Project, the Texas Board of Pardons and Paroles voted today to recommend that Texas Governor Rick Perry commute Kenneth Foster's death sentence to life, and Governor Perry has now announced he has commuted Foster's death sentence. Governor Perry's statement is available at this link, and here is a snippet:
"After carefully considering the facts of this case, along with the recommendations from the Board of Pardons and Paroles, I believe the right and just decision is to commute Foster’s sentence from the death penalty to life imprisonment,” Gov. Perry said. "I am concerned about Texas law that allows capital murder defendants to be tried simultaneously, and it is an issue I think the legislature should examine." The TBPP voted 6-1 to recommend commutation, and the governor signed the commutation papers Thursday morning.
FAMM alert about the USSC's crack amendments
I just noticed on the website for Families Against Mandatory Minimums this interesting warning:
It has come to FAMM's attention that some in the legal profession (and perhaps some non-lawyers as well) are soliciting business by telling prisoners and their family members that the proposed crack amendment will be made retroactive. We encourage our members to be cautious when approached by anyone promising to bring a loved one home from prison sooner.
This warning comes with a link to this effective document entitled ""Attention FAMM Members: Proposed crack amendment is no guarantee of going home early." Here is how this document starts:
In May of this year, the United States Sentencing Commission proposed an amendment to the sentencing guidelines that would reduce the base offense levels for crack offenses by two levels of severity. This means that crack sentences imposed on or after November 1, 2007 will be, on average, 16 months shorter than crack sentences in similar cases that were imposed before that date.
FAMM supported this proposed amendment on behalf of its members and continues to do so, knowing that changing the crack guidelines will result in fairer sentences for thousands. While this is far short of the real sentencing reform we seek, it is still a significant positive development. The amendment will go into effect on November 1 unless both the Senate and the House of Representatives vote to reject it. We do not expect Congress to reject the amendment. However, there are several important limitations on the effect of the amendment that our members should be aware of.
Notable ABA event about plea negotiations
I received an e-mail alerting me to an intriguing event this fall in DC being presented by the ABA Criminal Justice Section. The event is entitled "Ethics and Professionalism in Plea Negotiations: Best Practices and Worst Pitfalls," and here is an overview:
Learn from experts and leading practitioners about ethical and professional issues involved in plea negotiations. Over ninety percent of all criminal cases are dispensed with through a plea process, but the process itself is seldom examined to identify strategic negotiating techniques and best practices for the prosecutors, defense lawyers and judge involved. Representatives of the National Association of Criminal Defense Lawyers, National Association of Attorneys General, Federal Public defenders, National District Attorneys Association, and National Legal Aid and Defender Association will address Best and Worst Negotiating Practices; How Prosecutors and Defense Lawyers Can Make Good Decisions about Plea Negotiating, The Terms of the Agreement; and Implementing the Agreement. Don't miss this stellar line up of judges, defense attorneys, prosecutors and academics. Click here for brochure.
As the brochure details, the event takes place on November 2, 2007, at George Washington University and has lots of notable sponsors and lots of notable participants.
A hot August for the Texas death chamber
As TalkLeft notes here, Texas has executed defendants each of the last two days and has another execution scheduled for tonight. StandDown Texas has more here on last night's execution, and also spotlights this New York Times piece which explains why tonight's scheduled execution of Kenneth Foster is garnering particular attention.
With its many executions in August, Texas now has been responsible for nearly 2/3 of all executions in the US in 2007. (DPIC has the stats here.) Of course, Texas has long been a national leader in the application of the death penalty, but lethal injection litigation and other forces have now resulted in Texas having an even larger role in the modern American story of capital punishment. Indeed, there may be a record low number of executions this year in states other than Texas, but Texas may kill enough defendants to cause national statistics to show an increase in total US executions in 2007.
August 29, 2007
Doesn't failure to even mention defense arguments or 3553(a) amount to error after Rita?
A helpful reader pointed out a disturbing ruling yesterday from the Tenth Circuit in US v. Cereceres-Zavala, No. 05-2191 (10th Cir. Aug. 28, 2007) (available here). Though citing Rita, the Tenth Circuit's ruling seems to run counter to Rita's emphasis on the importance of sentencing decisions being "reasoned decisions."
In Cereceres-Zavala, the defendant filed "two motions, each styled as a 'Motion for Downward Departure.'" But, when imposing a within-guideline sentence, the "district court court never mentioned or ruled expressly on either of Cereceres's motions for downward departure," nor did it even mention that the guidelines were advisory or that it had considered 3553(a). Finding no error, the Tenth Circuit has this to say:
Although the sentencing court provided no direct response at all to Cereceres's requests for departure, its citation of the PSR's calculation method and recitation of the suggested imprisonment range amply fulfilled § 3553(c)'s requirement of a "general statement noting the appropriate guideline range and how it was calculated." Ruiz-Terrazas, 477 F.3d at 1202. "[C]ontext and the record make clear" the district court's reasoning for rejecting Cereceres's arguments, and the court "must have believed there was not much more to say." Rita, 127 S. Ct. at 2469.
The Rita majority stressed, however, that a sentencing judge "should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decision-making authority." Though the Cereceres-Zavala panel seems pretty easily satisfied, I have a hard time with its attitude after Rita. Rita stresses that, even when giving a guideline sentence, a judge should "explain why he has rejected those arguments" put forward by defendants for a different sentence. Even in context, silence does not seem to me to be an adequate explanation.
Federal habeas ruling finds Blakely problems with NY's persistent felony offender statute
As detailed in this New York Law Journal article, entitled "N.Y. Persistent Felon Law Held Invalid by Federal Court," another federal district court has declared New York state's persistent felony offender statute unconstitutional on Blakely grounds. Here are the basics:
A second federal judge has found New York state's persistent felony offender statute unconstitutional because it allows judges to find facts that can lead to a sentence beyond the statutory maximum. Southern District of New York Judge John Koeltl found that N.Y. Penal Law §70.10 violated the Sixth Amendment right to a jury trial because, under the rapidly evolving case law of the U.S. Supreme Court, a jury has to find the facts that the state law leaves to the judge.
Judge Koeltl granted a petition for a writ of habeas corpus to inmate William Washington in Washington v. Poole, 06 Civ. 2415. The decision comes five months after Eastern District of New York Judge John Gleeson made a similar ruling in a habeas case and just one month after Southern District of New York Judge Robert Sweet went the other way and upheld the law. These three decisions will now join a fourth that is pending in the 2nd U.S. Circuit Court of Appeals, Phillips v. Artuz.
"The constitutionality of these statutes is obviously still in play," said Jonathan Kirshbaum of The Center for Appellate Litigation, who represented Washington.
Latest quarterly post-Booker data from USSC
FY2007 3nd Quarterly Sentencing Update (Published August 29, 2007): An extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2007. The numbers are prepared using data sentenced by close-of-business on June 30, 2007 and received, coded, and edited by the Commission by August 24, 2007.
Readers are encourage to help me discover if this latest data run includes any really suprising numbers.
The moon-suit approach to hiding executioners' identity
As detailed in this AP article and this DPIC item, "[w]hen an inmate receives a lethal injection in Florida, a man in a purple moon suit leans over to listen for a heartbeat and feel for a pulse as witnesses watch and wait." Why, you ask?:
The man is a doctor and the attire shields his identity — not just from the prisoner's family and friends, but from the American Medical Association. Its code of ethics bars members from participating in executions, as do those of the American Nurses Association, the American Society of Anesthesiologists and the Florida Medical Association.
Some related posts:
- Another view of viewing an execution
- NYT piece on lethal injection
- NY Times against hiding the executioner
Wal-Mart executive among those losing in Eighth Circuit
As detailed in this local story and this Bloomberg coverage, the Eighth Circuit's reversal yesterday of many below-guideline sentences (details here) included the sentence of a prominent white-collar offender:
Thomas M. Coughlin, the former Wal-Mart Stores executive convicted of stealing from the company, may have to go to prison after an appeals court ruling that his house-arrest sentence was too lenient.
A three-judge panel of the U.S. Court of Appeals for the 8th Circuit in St. Louis yesterday tossed out a trial judge's sentence of Coughlin, 58, to 27 months of house arrest. Coughlin did not prove that he was too sick to go to prison, the court said. "The district court clearly erred in finding Coughlin suffers an extraordinary physical impairment and abused its discretion," the panel said in a 2 to 1 ruling. The case was returned to the trial court for resentencing.
August 28, 2007
Learning about criminal justice realities from elected officials
Lately we've been learning a lot about sentencing and corrections realities from sports stars and celebrities. But, earlier this summer, some elected officials were the teachers: President Bush explained why Scooter Libby's guideline sentence was excessive and Senators assailed a federal prosecutor for excessive prosecution of Border Agents Compean and Ramos.
Now, as detailed in this CNN story, new lessons are coming from Senator Larry Craig. Craig is now saying that he "overreacted and made a poor decision" when deciding to plead guilty to disorderly conduct after his June arrest following an incident in a Minneapolis airport bathroom. Apparently, Craig is now, in this statement, asserting his innocence:
The senator said he "chose to plead guilty to a lesser charge in the hope of making it go away. I did not seek any counsel, either from an attorney, staff, friends, or family. That was a mistake, and I deeply regret it." On Tuesday, Craig announced that he has retained an attorney.
If we credit Craig's claims, we have a great example of how and why a defendant might plead guilty even when innocent, as well as an example of the importance of getting quality legal advice as soon as possible.
OT '06 review to start the SCOTUS pre-season
Thankfully, the seemingly endless NFL pre-season is finally winding down, and that in turn means it is to begin the SCOTUS pre-season. And, thanks to this post at SCOTUSblog, everyone can get in the SCOTUS mood with the help of Prof. Rory Little's effective summary of last Term's criminal cases.
Of course, because of my sentencing-addled brain, I view Cunningham v. California and Rita v. United States to be among the most interesting and consequential opinions from a relatively low-wattage criminal law docket in OT '06. Anyone have other thoughts from looking back before we begin to look forward?
A triple discretion smack-down from the Eighth Circuit
I just finished reading the Eighth Circuit's troubling en banc work yesterday in Burns (basics here), which led Judge Bright in dissent to express concern than a "majority of my colleagues ... grant more deference and discretion to prosecuting attorneys than to the district judges of this country." And, providing no rest for the weary sentencing judge, today brings three more examples of the Eighth Circuit's disinclination to credit its district judges' sentencing judgments. Here are summaries from this Eighth Circuit opinion page of today's discretion carnage:
US v. Michael Hatcher, No. 06-2814 [Smith, Author, with Bye and Beam, Circuit Judges] (available here): Under the Guidelines, a mandatory consecutive sentence under 18 U.S.C. Sec. 924(c) is an improper factor to consider in making a departure on related felony sentences, and the district court erred when it reduced defendants' sentences on the underlying felonies because of the length of the sentence required under 18 U.S.C. Sec. 924(c); the recidivism provision of 924(c) is a sentencing factor and not an element of the offense.
US v. Marlon J. Bradford, No. 06-3018 [Wollman, Author, with Riley and Benton, Circuit Judges] (available here): The Guidelines expressly limit the extent of a departure to a single criminal history level when the district court determines that the offender's criminal history score is overstated, and the district court erred when it departed by five levels; none of the other factors cited by the court justified the extent of the departure, and the case is reversed and remanded for resentencing.
US v. Thomas M. Coughlin, No. 06-3294 [Riley, Author, with Loken, Chief Judge, and Bye, Circuit Judge] (available here): District court erred in finding defendant suffered from an extraordinary physical impairment and abused its discretion in departing downward eight levels pursuant to Guidelines Sec. 5H1.4; when it imposed an alternative non-Guidelines sentence, the court did not state the reasons for the sentence with sufficient specificity and relied on irrelevant and discouraged grounds in reaching the sentence. Judge Bye, dissenting.
With the below-guideline reasonableness cases Gall (an Eighth Circuit case) and Kimbrough in the SCOTUS works, I thought we might expect the courts of appeals to hold back on reversing below-guideline sentences. Indeed, many other circuits have issued precious few non-guideline reasonableness decision in 2007. But, apparently confident in its own views, the Eighth Circuit keeps telling its district judges that they do not understand the scope and import of their post-Booker discretion even as these SCOTUS cases are pending.