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September 14, 2007

Lawyer-presidents and future sentencing reforms

Over at Law School Innovation, Anupam Chander has this new post highlighting that "the three leading candidates for President in both parties are all lawyers."  (This recent USA Today article covers similar ground.)  Of course, this factiod has me thinking about which of the lawyer-president-wannabes would be most likely to champion sound sentencing reforms. 

Our last few lawyer-presidents — Richard Nixon, Gerald Ford, and Bill Clinton — have hardly had inspiring records on various criminal justice issues, and I have noted some of my gripes with Clinton's sentencing record in some posts linked below.  That said, Rudy Giuliani has called at least one federal guideline sentence "grossly excessive" (when discussing Scooter Libby's original prison term), and Barack Obama has indicated an interest in "expert evidence" concerning sentencing reform (though in comments suggesting he is oblivious to the work of the US Sentencing Commission), and Fred Thompson has recent criminal justice experience (though this comes from pretending to be a DA on Law & Order). 

Sarcastic comments aside, I wonder if any readers have thoughts on how a single-issue sentencing voter ought to sort through the crowded field of presidential candidates.

Some related posts on sentencing politics:

September 14, 2007 in Campaign 2008 and sentencing issues | Permalink | Comments (3) | TrackBack

Not quite sentencing the dead

This sentencing item from the AP wires seems fitting for a Friday afternoon:

Prosecutors [in Indiana] are investigating whether a phony obituary was placed in a newspaper in an attempt to keep a convicted forger out of prison.  The obituary reporting the supposed death and cremation of Shawnda K. Hatfield was faxed to Delaware Circuit Court Judge Robert Barnet Jr.

But Hatfield, 41, was later found at her home in nearby Dunkirk and arrested.  Barnet sentenced her Thursday to four years in prison for altering a check drawn on the account of White Feather Farms, where she formerly worked.  Hatfield said she had no idea how her obituary ended up in The Star Press.

September 14, 2007 | Permalink | Comments (1) | TrackBack

A strong argument for commuting Patrick Kennedy's death sentence

I have now had a chance to read closely the effective petition for writ of certiorari in Kennedy v. Louisiana (available here), which calls upon the Supreme Court to review and reverse the Louisiana Supreme Court's decision to uphold the death sentence given to Patrick Kennedy for the crime of child rape.  Because the petition is so strong and effective, I have decided that the case ought to get "resolved" before the Supreme Court even has a chance to consider it.  Specifically, I now think the Governor of Louisiana ought to — perhaps even ought to feel obligated to — commute Patrick Kennedy's death sentence.

As I have explained in this post, I believe states could reasonably garner symbolic and practical benefits from making certain repeat child rape a capital offense.  Consequently, as I read the Kennedy cert petition, I am troubled greatly by arguments suggesting that it is always unconstitutional to make any extreme non-homicide offenses subject to the death penalty.  And yet, because the facts surrounding the Kennedy case do not seem extremely aggravating, I am troubled greatly by the fact that Patrick Kennedy is the only person sentenced to death for a non-homicide offense.

Of particular note, Patrick Kennedy has no significant criminal history, he may be mentally retarded, he has "insisted on his innocence," and there does not seem to be any distinctive aggravating factors surrounding his crime.  See petition at pp. 4-8.  In other words, Patrick Kennedy does not fit the image of a monstrous predator sex offender perhaps deserving of a death sentence.  Indeed, anyone considering the distinctive facts of the Kennedy case could readily conclude that it is "cruel and unusual" for Patrick Kennedy to be the only rapist sentenced to death in the modern capital era.  Consequently, because the Governor of Louisiana has an obligation to uphold the Constitution, I think the Governor ought to — perhaps even ought to feel obligated to — commute Patrick Kennedy's constitutionally-suspect death sentence.

The irony of Patrick Kennedy being the potential test defendant for the capital child rape issue is evident when one considers the crimes of Ehrlich Anthony Coker, the defendant at the center of the Supreme Court's 1977 decision declaring the death an unconstitutional punishment for the crime of adult rape.  As I have suggested elsewhere, Coker would seem to be a poster boy for the death penalty given this description of his life and crimes from Chief Justice Burger's opinion in Coker:

On December 5, 1971, the petitioner, Ehrlich Anthony Coker, raped and then stabbed to death a young woman.  Less than eight months later Coker kidnaped and raped a second young woman. After twice raping this 16-year-old victim, he stripped her, severely beat her with a club, and dragged her into a wooded area where he left her for dead.  He was apprehended and pleaded guilty to offenses stemming from these incidents. He was sentenced by three separate courts to three life terms, two 20-year terms, and one 8-year term of imprisonment.  Each judgment specified that the sentences it imposed were to run consecutively rather than concurrently.  Approximately 1-1/2 years later, on September 2, 1974, petitioner escaped from the state prison where he was serving these sentences.  He promptly raped another 16-year-old woman in the presence of her husband, abducted her from her home, and threatened her with death and serious bodily harm.

Since the state of Georgia was constitutionally barred from executing Ehrlich Anthony Coker, I have a very hard time seeing how Louisiana's executive officials can feel constitutionally certain about moving forward with the execution of Patrick Kennedy.

UPDATE:  A helpful reader sensibly suggested that I highlight that the Kennedy petition stresses the distinctive nature of "person-on-person" violent crime and further explains in a footnote that this particular phrasing "leaves aside 'sui generis' crimes such as treason and espionage, as well as offenses such as air piracy and the federal 'drug kingpin' law that inherently involve a reckless disregard for human life on a large scale."

September 14, 2007 in Clemency and Pardons, Death Penalty Reforms, Sex Offender Sentencing | Permalink | Comments (15) | TrackBack

September 13, 2007

Should Crawford confrontation apply at capital sentencing?

In this recent post, I flagged a number of sentencing-related issues that are or could be coming before the Supreme Court this Term.  And, thanks to this post at SCOTUSblog, I see another lively issue related to death sentencing.  Here's a snippet from Lyle Denniston's report about a new cert petition:

The petition in Fields v. U.S. (07-6395, download here), filed Sept. 4 by the Capital Punishment Center at the University of Texas Law School, raises five issues, but the Confrontation Clause question is the central one.  It asks whether the Supreme Court's 2004 decision in Crawford v. Washington, limiting the use at trial of out-of-court testimony not subjected to cross-examination, has so altered constitutional understanding that it should be extended to sentencing. The dissenting judge in the Fields case, relying upon Crawford and recent developments in criminal sentencing, argued that, when a death sentence depends upon fact-finding, the facts should only be those "tested through confrontation."

Some related posts:

September 13, 2007 in Death Penalty Reforms | Permalink | Comments (13) | TrackBack

Cleaning up the jail

This little AP story from my home state to too fun to resist a post:

Inmates at the Allen County Jail are scrubbing floors and showers after complaining about sanitary conditions at the facility.  Sheriff Dan Beck says he eliminated phone and television privileges for two days in two cell blocks and made inmates start cleaning. Some of the inmates had signed a petition complaining of leaky roofs and toilets, poor air quality and mold in the jail.

September 13, 2007 in Scope of Imprisonment | Permalink | Comments (12) | TrackBack

Sixth Circuit panel splits over penile penology procedures

Though the defedant's challenge to the possible use of penile plethysmography (PPG) add a prurient element to the case, the Sixth Circuit's split panel decision today in US v. Lee, No. 06-5848 (6th Cir. Sept. 13, 2007) (available here), turns on a number of interesting legal process issues.

In Lee, the majority dismisses as unripe the defendant's challenge to possible PPG as a supervised release conditions, in part because this condition would not be applicable until the defendant finishes his prison term and PPG many not be used when that occurs more than a dozen years from now.   Judge Batchelder dissents to argue that the defendant's claim should be dismissed with prejudice because of an appeal waiver.

September 13, 2007 in Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

When saying sorry is not enough

The New York Times and the The Virginian-Pilot have coverage of the dog-loving amici brief urging a stiff sentence filed yesterday in the Vick case (details here).  Part of the local coverage has this interesting account of how and why the brief was put together:

Flora Edwards, a New York attorney who is also helping the dog advocates, said the organizations behind the motion coordinated largely through the Internet.  Their push for action grew after many of the members felt Vick wasn’t genuinely contrite in his public apology after his guilty plea, Edwards said.

Some related posts on Michael Vick's sentencing:

September 13, 2007 in Celebrity sentencings | Permalink | Comments (1) | TrackBack

Coverage of Carrington and Chemerinsky course changes

It is no news that strange things happen in California, but today there is lots of news about surprising changes of course:

September 13, 2007 | Permalink | Comments (0) | TrackBack

September 12, 2007

Major Human Rights Watch report about sex offender sanctions

Thanks to this post at Sex Crimes, I see that Human Rights Watch has released a major new report about sex offender law and policy, entitled "No Easy Answers: Sex Offender Laws in the US."  The lengthy and wide-ranging report is available at this link, and here is an excerpt from the summary:

Federal law and the laws of all 50 states now require adults and some juveniles convicted of specified crimes that involve sexual conduct to register with law enforcement — regardless of whether the crimes involved children.  So-called “Megan’s Laws” establish public access to registry information, primarily by mandating the creation of online registries that provide a former offender’s criminal history, current photograph, current address, and other information such as place of employment.  In many states everyone who is required to register is included on the online registry. A growing number of states and municipalities have also prohibited registered offenders from living within a designated distance (typically 500 to 2,500 feet) of places where children gather — for example, schools, playgrounds, and daycare centers.

Human Rights Watch appreciates the sense of concern and urgency that has prompted these laws. They reflect a deep public yearning for safety in a world that seems increasingly threatening. Every child has the right to live free from violence and sexual abuse. Promoting public safety by holding offenders accountable and by instituting effective crime prevention measures is a core governmental obligation. Unfortunately, our research reveals that sex offender registration, community notification, and residency restriction laws are ill-considered, poorly crafted, and may cause more harm than good:

  • The registration laws are overbroad in scope and overlong in duration, requiring people to register who pose no safety risk;
  • Under community notification laws, anyone anywhere can access online sex offender registries for purposes that may have nothing to do with public safety.  Harassment of and violence against registrants have been the predictable result;
  • In many cases, residency restrictions have the effect of banishing registrants from entire urban areas and forcing them to live far from their homes and families.

The evidence is overwhelming, as detailed in this report, that these laws cause great harm to the people subject to them.  On the other hand, proponents of these laws are not able to point to convincing evidence of public safety gains from them. Even assuming some public safety benefit, however, the laws can be reformed to reduce their adverse effects without compromising that benefit.  Registration laws should be narrowed in scope and duration. Publicly accessible online registries should be eliminated, and community notification should be accomplished solely by law enforcement officials. Blanket residency restrictions should be abolished.

September 12, 2007 in Sex Offender Sentencing | Permalink | Comments (31) | TrackBack

An amici sentencing brief going to the dogs

Though the dog-days of summer have come to an end, the dog-days of sentencing are just starting to heat up.  Specifically, today I received a copy of a "Brief of Amici Curaie" in US v. Vick, with the friends being a group of "organizations concerned about animal welfare and responsible dog ownership."  This brief runs over 30 pages and can be downloaded below.

There are many interesting facets of this brief, including (1) a section purporting to be "a victim impact statement on behalf of the bad newz kennel dogs, (2) a section arguing that the "agreed upon offense level does not adequately reflect the nature of Vick's conduct nor his role in the offense," (3) a calculation indicating that Vick's guideline offense level should be 20 and his sentencing range 33-41 months, (4) a request that amici have a "brief opportunity to be heard at sentencing."

Perhaps most notable is the precise sentencing recommend in this amici brief: that the court impose a 57-month sentence and a $250,000 fine, and order the forfeiture of the property on which the dog-fighting took place, and that Vick has to pay to renovate and convert his property into a "no-kill shelter for abused and neglected dogs."

Download amici_brief_in_vick_sentencing.pdf

Some related Vick sentencing posts:

September 12, 2007 in Booker in district courts | Permalink | Comments (8) | TrackBack

A big SCOTUS sentencing Term in the works?

The SCOTUS preview season is getting started, and the big Booker reasonableness cases — Gall (index here) and Kimbrough (index here) — to be heard at the start of the Term surely deserve early attention.  And hard-core sentencing fans can also look forward to October SCOTUS oral arguments in Watson (QP here) and Logan (basics here), which will examine some technical federal sentencing issues, and in Medellin (QP here) and Danforth (basics here), which will examine interesting criminal justice questions that can impact sentencing outcomes.

Further, a number of other interesting non-capital sentencing issues are floating in the cert pool.  For starters, I still have my fingers crossed for the petition I helped put together in Faulks regarding the constitutionality of certain supervised release revocation procedures.  And, as detailed here, another notable Apprendi-Blakely issue from Washington is before the Court noting splits over the "prior conviction exception."   And, as reported here by SCOTUSblog, the Court also got a recent petition seeking resolution of a circuit split on "the question whether a court of appeals may order an increase in a criminal defendant's sentence sua sponte, absent an appeal or cross-appeal by the Government."

Of course, no Supreme Court Term would be complete without some notable death penalty cases.  As indicated here, the constitutionality of the death penalty for child rape may be ripe for SCOTUS review.  Also, as Crime & Consequences notes here, some of the state lethal injection litigation has made its way back to the Court in new cert petition.  And I am sure there are some other capital cases helping to keep the cert pool full of life-and-death issues.

In addition, I know there are a lot of other cert-worthy issues in or around the cert pool, with topics ranging from acquitted conduct enhancements to Blakely/Booker retroactivity to bible-impacted capital jury deliberations to due process requirements at sentencing.  (Readers are encouraged to flag other petitions and issues worth watching.) 

Though I am sure that SCOTUS won't address all these matters over the next 9 months, I am already reserving time in my July 2008 calender for putting together a long supplement to my co-authored casebook Sentencing Law and Policy.  Moreover, the chaotic world of sentencing jurisprudence highlights that the Supreme Court's could stop the shrinking of its docket by deciding to decided just some of the many important (and often long-festering) sentencing questions they've not resolved in prior terms.

September 12, 2007 in Who Sentences? | Permalink | Comments (3) | TrackBack

What's a fitting punishment for a cheating NFL team?

I have not done any football posts recently (even while experiencing such schadenfreude over the early season fates of the maize and blue).  Consequently, I cannot help but turn a brewing NFL controversy into a sentencing debate. 

As detailed in this ESPN report, "NFL commissioner Roger Goodell has determined that the New England Patriots violated league rules Sunday when they videotaped defensive signals by the New York Jets' coaches."  And, continues the ESPN report, "Goodell is considering severe sanctions, including the possibility of docking the Patriots 'multiple draft picks' because it is the competitive violation in the wake of a stern warning to all teams since he became commissioner....  The Patriots have been suspected in previous incidents."

Is loss of NFL draft picks a sufficient sanction for what seems like blatant cheating that likely impacted the game play?  I suppose this sanction could serve some deterrent purposes, but what about other other theories of punishment.  Why not, in service to the goals of retribution and restitution, require the Patriots to forfeit the game (which, I believe, is a common NCAA sanction)?  Why not, in service to incapacitation, force the Patriots to play the rest of the season without any technological devices?

And there is one additional question I am pondering: what will this mean for Tom Brady's future performance on my fantasy team?

September 12, 2007 in Criminal Sentences Alternatives | Permalink | Comments (7) | TrackBack

Tennessee conducts old school execution

As detailed in articles from Reuters and the AP, "Tennessee used its electric chair for the first time in 47 years on Wednesday to execute a man who killed his three sons and their half-sister."

Some related posts:

September 12, 2007 in Death Penalty Reforms | Permalink | Comments (3) | TrackBack

September 11, 2007

When will SCOTUS address the constitutionality of the death penalty for child rape?

At SCOTUSblog, Lyle Denniston has this extended post discussing the filing of a petition for writ of certiorari in Kennedy v. Louisiana.   The petition is available at this link, and here is the questions it presents:

1. Whether the Eighth Amendment’s Cruel and Unusual Punishment Clause permits a State to punish the crime of rape of a child with the death penalty.

2. If so, whether Louisiana’s capital rape statute violates the Eighth Amendment insofar as it fails genuinely to narrow the class of such offenders eligible for the death penalty.

Regular readers know these questions have been widely debated in lower courts and law review pages, Kennedy seems to be the first well-positioned case for the Supreme Court to take up these issue. 

In my view, it is inevitable that the Supreme Court will address the constitutionality of capital punishment for child rape before anyone is actually executed for child rape.  Still, one might develop a number of interesting Bickelian arguments for why the Justices should consider ducking this issue right now and taking it up only if and when this case goes through state and federal habeas review.

Some related posts:

September 11, 2007 in Death Penalty Reforms | Permalink | Comments (6) | TrackBack

Ninth Circuit panel reverses course on equitable Booker relief

Today, a Ninth Circuit panel in Carrington v. US, No. 05-36144 (9th Cir. Sept. 11, 2007) (available here) decided to change course on allowing certain defendants to get resentenced after Booker through the recalling of prior mandates.  Specifically, it appears that since this prior opinion in the case, one panel member (Judge Noonan) changed his mind/vote, and here is how he starts his separate opinion in the new disposition:

Resolution of this appeal turns on how the constitution is conceived to be.  For some, the constitution is an unchanging document, speaking now as it did in 1789 except for such amendments as have been duly added to it.  The paper and ink of the old document have not altered; neither has its meaning.  Stability is the bedrock of our government of laws.

In the same interesting vein, Judge Noonan closes his opinion with this interesting response to Judge Pregerson's dissent:

The strength of Judge Pregerson’s position must be acknowledged.  It is humane, and humaneness is a necessary quality in humans who are judges.  The panel has the power to do what he asks.  The panel does not have the authority.

Because I was a fan of the original Carrington opinion (as detailed here and here and here), I am not too pleased to see this panel do a 180 on this fascinating Booker issue.  (Also, I have to like Judge Pregerson's dissent because it cites this blog in a footnote.)  For lots of (needed) background and good commentary on these matters, check out these prior posts and their comments:

September 11, 2007 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Notable Rita reversal from the Seventh Circuit

Through a relatively short opinion in US v. Ross, No. 07-1215 (7th Cir. Sept. 11, 2007) (available here), the Seventh Circuit covers a lot of notable post-Rita ground.  The first paragraph of the opinion highlights the main issues in Ross:

William Ross challenges his 78-month sentence for his role in a conspiracy to possess and distribute cocaine and marijuana.  Because it appears from the record that the district court improperly applied a presumption of reasonableness for a within-guidelines sentence, we vacate the sentence and remand for resentencing.

September 11, 2007 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

USSC official statement of priorities

The US Sentencing Commission has now officially "identified its policy priorities for the upcoming amendment cycle."  These priorities can be accessed at this link, and here are a few highlights:   

[T]he Commission has identified the following priorities:...

(2) Continuation of its work with Congress and other interested parties on cocaine sentencing policy to implement the recommendations set forth in the Commission’s 2002 and 2007 reports to Congress, both entitled Cocaine and Federal Sentencing Policy, and to develop appropriate guideline amendments in response to any related legislation;

(3) Continuation of its work with the congressional, executive, and judicial branches of the government and other interested parties on appropriate responses to United States v. Booker and United States v. Rita, including any appropriate amendments to the guidelines or other changes to the Guidelines Manual with respect to those decisions and other cases that may be adjudicated during this amendment cycle, as well as continuation of its monitoring and analysis of post-Booker federal sentencing practices, data, case law, and other feedback, including reasons for departures and variances stated by sentencing courts;...

(9) Preparation and dissemination, pursuant to the Commission’s authority under 28 U.S.C. § 995(a)(12)-(16), of research reports on various aspects of federal sentencing policy and practice, such as updating the Commission’s 1991 report to Congress entitled Mandatory Minimum Penalties in the Federal Criminal Justice System and studying alternatives to incarceration, including information on and possible development of any guideline amendments that might be appropriate in response to any research reports.

September 11, 2007 in Who Sentences? | Permalink | Comments (1) | TrackBack

Editorial calls for a California sentencing commission

This morning's San Jose Mercury News has this editorial, entitled "Time running out on prison reform," discussing California's continued struggles with systematic sentencing and corrections reform efforts. Here are snippets:

California has one last stab at legislation that could avert a court takeover of the state's prison system. But time is running out. A bill to create a sentencing commission must be passed this week. The commission would make sense of the crazy quilt of sentencing laws that helped cause the prison overcrowding that lawsuits now are forcing the state to alleviate.

A panel of three federal judges is considering whether to intervene further. They'd likely view a failure to pass a bill as another sign that the governor and Legislature simply aren't up to the task of reform. A commission has worked well in other states to establish uniform and even-handed sentences....

It's one thing to be tough on violent criminals. But California has been cramming prisons with drug offenders and minor parole violators, while providing neither space nor money for job training and drug rehab. It can't claim its current sentencing and parole laws are working; the state has the nation's highest recidivism rate.

A sentencing commission would include judges, prosecutors, public defenders, victims' advocates, legal scholars, sheriffs and mental health experts.  It would set sentencing priorities, in part by studying what has worked elsewhere.

September 11, 2007 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Sentence of two dozen years in terror case

A high-profile terror sentencing took place yesterday in California.  This Sacramento Bee article provides these details:

Hamid Hayat, a 25-year-old cherry packer from Lodi with a seventh-grade education, was sentenced Monday in Sacramento federal court to 24 years in prison for providing material support to terrorists and making false statements to hide his conduct.

On April 25, 2006, a jury found Hayat, who was born in Stockton but has lived nearly half his life with relatives in Pakistan, guilty of undergoing terrorist training in Pakistan and returning to Lodi prepared to wage violent jihad -- or holy war -- against fellow U.S. citizens. He also was found guilty of lying to conceal the training and his terrorist intent when initially questioned by FBI agents....

The prison term is 11 years less than the 35 sought by the government and recommended by a probation officer. On the other hand, it is nine years more than the defense's request for 15, the statutory maximum for the material-support count.

September 11, 2007 in Booker in district courts | Permalink | Comments (11) | TrackBack

September 10, 2007

Back-to-school musings: teaching sentencing

A few years ago when guest-blogging at PrawfsBlawg, I suggested here that sentencing law and policy is badly "under-taught" in law school.  I contended (and still believe) that a sentencing course should become a modern staple in the upper-level law school curriculum.  Two years later, I sense that a (slowly) growing number of schools are offering a sentencing course, but such a course is still a curricular exception rather than the rule.  (Of course, my pitch for more sentencing instruction is biased for many reasons, including the fact that I have recently wrapped up work on the second edition of my co-authored casebook entitled Sentencing Law and Policy.)

Against this backdrop, I was intrigued to see Larry Kramer, Dean of the Stanford Law School, make a strong pitch for moving the law school calender away semesters to quarters to "increase the number of course opportunities by 50%."  (Dean Kramer's comments and related musings are noted in this post at Law School Innovation.)   I suspect that if more law schools moved to a quarter system, there would be more opportunities for the development of sentencing courses and other courses that are not yet, but should be, part of a standard law school curriculum.

Other posts in this series:

September 10, 2007 | Permalink | Comments (4) | TrackBack

Another big circuit discussion of Bible-influenced capital sentencing

Addressing en banc an issue that arises frequently in lower courts, the Ninth Circuit today upheld a death sentence in Fields v. Brown, No. 00-99005 (9th Cir. Sept. 10, 2007) (available here), despite the jury's consideration of biblical passages while deciding upon the defendant's penalty.  The length opinions in Fields all make for interesting reading, but you will need almost 100 pages in your printer if you want a hard-copy of the Ninth Circuit's en banc work.

As detailed in posts linked below, lower courts have split over the consequences of juror consideration of biblical passages during the penalty phase of a capital trial.  It will thus be interesting to see if Fields might get Supreme Court attention.  If it does, the defendant might set a modern record for the length of capital appeals: his death sentence was imposed in 1979 and thus his appeals have occupied state and federal courts now for 28 years.

Some related prior posts:

September 10, 2007 in Death Penalty Reforms | Permalink | Comments (39) | TrackBack

Lots of sentencing due process talk from the Third Circuit

The Third Circuit today issued two lengthy sentencing opinions discussing two different aspects of post-Booker sentencing procedures.  Both US v. Ausburn, No. 06-2250 (3d Cir. Sept. 10, 2007) (available here) and US v. Fisher, No. 06-2250 (3d Cir. Sept. 10, 2007) (available here), merit a close read and further discussion, but I won't be able to provide anymore on these notable rulings until after I teach this afternoon.  However, a quick scan suggests that fans of due process won't be too excited about these rulings.

September 10, 2007 in Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Strong commentary on acquitted conduct sentencing

Harlan J. Protass, who runs the terrific Second Circuit Sentencing Blog, has this new commentary in the National Law Journal, entitled "Not guilty? Go to jail."  The commentary attacks acquitted conduct sentencing enhancements and focuses on the Seventh Circuit troublesome decision last month in US v. Hurn (discussed here).  Here are snippets from the commentary:

In his novel The Trial, Franz Kafka describes a totalitarian state with a repressive judicial system.  One technique of this repression is provisional acquittals — the practice of clearing the accused and lifting the charges from their "shoulders for the time being," only to lay the charges on them again "as soon as an order comes from on high."  This is the way Mark Hurn must feel....

Hurn was charged and tried by a jury on charges of possession with intent to distribute both cocaine and crack.  He was found guilty on the cocaine charge, and not guilty on the crack charge.  He was sentenced to 17.5 years in prison.  If Hurn's sentence had been based solely on his cocaine conviction, he would have received jail time of about 2.5 years. It wasn't.  Instead, Hurn's lengthy sentence — almost seven times what he faced for his cocaine conviction — was based on the crack offense of which he was found not guilty....

Acquitted conduct sentencing ... goes against virtually everything we know and respect about the American criminal justice system.  We understand that the government cannot lock people up unless and until guilt has been proven to a jury beyond a reasonable doubt.  We also understand that the American criminal justice system would rather free a guilty person than imprison an innocent one.  Sentences based on acquitted conduct erode these principles and, with them, our respect for the law....

We've been taught from a young age that juries are the bedrock of the judicial system, and that we should take pride in the system's inherent fairness.  But acquitted conduct sentencing effectively nullifies jury verdicts and allows judges to usurp the jury's fact-finding role — no need for juries at all if a sentence can be based on conduct of which a defendant was found not guilty. This upsets the delicate balance that the founding fathers struck when framing the U.S. Constitution. As Alexander Hamilton put it, "arbitrary punishments upon arbitrary convictions" are the "great engines of judicial despotism."...

Mark Hurn is no boy scout.  He's a drug dealer. But the government failed to prove beyond a reasonable doubt that he was dealing crack.  Nevertheless, Hurn is serving time as if the government had — 17.5 years, to be precise.  That's a long time.  He'll likely spend much of his time wondering how he got there.  The American public and lawmakers should spend some of that time asking the same question.

A few related posts on acquitted conduct sentencing enhancements:

September 10, 2007 in Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

Another split reasonableness ruling from the Sixth Circuit

Another work week means another week of circuits working on exactly what reasonableness review means.  Today, in US v. Hairston, No. 06-4072 (6th Cir. Sept. 10, 2007) (available here), the Sixth Circuit splits when judging the substantive reasonableness of a below-guideline sentence in a low-level crack case.  The majority (per Judge Martin) rejects the government's assertion that the imposition of a 60-month mandatory minimum was substantively unreasonable, whereas Judge Batchelder dissents on this point.  Judge Batchelder's dissent concludes with this notable flourish:

If Mother Teresa sold 5 grams of crack then she could not possibly get less prison time than the majority opinion approves for Hairston. There are clearly “more worthy defendants” than Hairston.  Therefore, Hairston’s sentence is not substantively reasonable.

Given that Mother Teresa died long ago, I doubt that news coverage of the discovery that she is now selling small amounts of crack would focus on her minimum possible federal sentence.  Nevertheless, I suppose Mother Teresa would be flattered that she is still in the minds of federal judges as they consider drug sentences even a full decade after she passed away.

September 10, 2007 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

The ironic purge of prison religious readings

When a group of 18th century progressives imagined alternatives to capital and corporeal punishment, they "proposed a radical idea: to build a true penitentiary, a prison designed to create genuine regret and penitence in the criminal's heart." They built a prison in which in a "vaulted, skylit cell, the prisoner had only the light from heaven, the word of God (the Bible) and honest work (shoemaking, weaving, and the like) to lead to penitence." (Quotes from this history of the historic Eastern State Penitentiary.)

Knowing that the Bible was originally to be the only reading allowed prisoners, it is thus sadly ironic to see this story in today's New York Times, entitled "Prisons Purging Books on Faith From Library."  Here is how the piece begins:

Behind the walls of federal prisons nationwide, chaplains have been quietly carrying out a systematic purge of religious books and materials that were once available to prisoners in chapel libraries.  The chaplains were directed by the Bureau of Prisons to clear the shelves of any books, tapes, CDs and videos that are not on a list of approved resources.  In some prisons, the chaplains have recently dismantled libraries that had thousands of texts collected over decades, bought by the prisons, or donated by churches and religious groups.

September 10, 2007 in Scope of Imprisonment | Permalink | Comments (2) | TrackBack

September 9, 2007

Lots of capital news and notes

There are lots and lots of new and different posts on a wide array of death penalty topics at some of my favorite DP blogs:

Also, Crime & Consequences has this long post on the always interesting topic of doctor involvement in executions.  And, the New York Times has this interesting piece on a condemned killer's in Tennessee choosing the electric chair over lethal injection.

UPDATE: How Appealing details via links here that New York's highest court starts the week with a death penalty case.  Also, check out the PBS show Expose, in which after "an extraordinary four-year investigation, McClatchy Supreme Court beat-reporter Stephen Henderson finds that defense lawyers in four states are failing [to provide a vigorous defense of murder defendants]; as a result their clients — even those who have suffered lifetimes of abuse and/or have IQs suggesting mental retardation — are heading to death row."

September 9, 2007 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Another strong editorial on correction costs

Ball_chain This morning's Detroit Free Press has another effective editorial, entitled "Stop the state prison drain: Sentencing, parole reforms are key to getting state Corrections costs in line."  This latest editorial hits similar themes as this earlier one on the costs to Michigan of ever-increasing incarceration rates.  Here is how it starts:

Michigan's super-sized prison system has put the state on financial lockdown. The Department of Corrections is largely responsible for the state's ongoing budget crisis and the nearly $2-billion shortfall it faces for the next fiscal year.  Michigan taxpayers spend $1.9 billion a year -- $5 million a day -- to lock up more than 50,000 prisoners.  That's more than it spends on higher education.  Today, one of three state civil service employees works for Corrections; in 1980, one in 20 did.

Most troubling, Michigan incarcerates at an average rate of 40% higher than the seven other Great Lakes states, which also report lower crime rates. Michigan's higher incarceration rates take an extra $500 million a year from the state's depleted general fund. It's money that could be better used for education, health care, roads or even a tax cut.

Some recent related posts on sentencing costs, politics and increased incarceration:

September 9, 2007 in Scope of Imprisonment | Permalink | Comments (7) | TrackBack

Ernon appeal in the news

As detailed in this Houston Chronicle article, entitled "Enron's Skilling asks court to throw out all his convictions," the highest profile white-collar conviction is back in the news.  The WSJ Law Blog has more here on the looong opening appeal brief filed by Jeff Skilling's lawyers.  The sentencing arguments made to the Fifth Circuit start on page 206 of the 239-page brief.

I expect that it will take a while for the Government to respond, and thus it seem unlikely that oral argument will take place before 2008 and it surely could be a full year or more before Skilling's appellate claims are adjudicated.  Because he lost his plea for bail pending appeal, Skilling is serving time in prison while his arguments on appeal work their way through the courts.

September 9, 2007 in Enron sentencing | Permalink | Comments (1) | TrackBack