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October 6, 2007

An ADR perspective on plea bargaining

Thanks to this cool new ADR blog, Indisputably (which is co-authored by one of my colleagues), I saw this interesting post spotlighting this new paper on plea bargaining entitled "Cooperating or Caving In: Are Defense Attorneys Shrewd or Exploited in Plea Bargaining Negotiations?".  Here is the abstract (which does not quite seem like a perfect fit with the title):

Following a larger previous study on the negotiation styles of lawyers, this article examines more specifically the data relating to criminal lawyers and found that the percentage of lawyers engaged in problem-solving was higher than any other practice area.  Furthermore, when I ran breakdowns of prosecutors and defense attorneys, it turned out that 86% of defense attorneys were perceived as problem-solving.  This was almost 20% more than prosecutors and also any other practice area.

What is going on?  One could hypothesize that it is the long term relationship and small community of criminal lawyers that lead to problem-solving. It could also be the case load, the fact that the majority of defendants are already in jail when they plea bargain, the sentencing discount given in a plea versus a trial (for example, a plea might result in a 6 year sentence when a trial could result in 30 years), and also that most defendants do not have the education or financial wherewithal to push their attorneys to be more assertive on their behalf.

October 6, 2007 in Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

My favorite and most regular blawg reads

The folks at Blawg Review have created this meme throughout the blawgosphere urging the creation of a "list of blawgs that are 'simply the best.'"  Because I think a "best" label is inapt for a medium that is so diverse, I am going to categorize my list and label it a bit differently.  (Also, for conflict-of-interest reasons, I am leaving off various members of the Law Professor Blogs Network, even though CrimProf Blog and White Collar Crime Prof are regular reads.)  Here goes:

MY FAVORITE AND MOST REGULAR BLAWG READS

Sentencing/crim justice issues:

General (and almost exclusively) law:

General law-related chatter:

As I look over this list (and consider other blawgs that did not quite make the list), it is clear that I am especially drawn to blawgs that post frequently and that generally provide a good deal of original content (and links) concerning issues that are not being thoroughly covered in the mainstream media.

October 6, 2007 in On blogging | Permalink | Comments (2) | TrackBack

Crack wackiness brewing over impact of crack amendments

As detailed here, this week the US Sentencing Commission posted an important memorandum titled "Analysis of the Impact of the Crack Cocaine Amendment If Made Retroactive" (available here).  Families Against Mandatory Minimums is doing a great job covering this story at its website, but FAMM's coverage highlights that a lot of legal wackiness and uncertainty may ensure if and when the amendments become effect and are made retroactive.  Here are the two recent postings at FAMM spotlighting these matters:

Some recent related posts:

October 6, 2007 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

October 5, 2007

New edition of SL&P casebook now in print

I am pleased and proud to note that this week I received a hard copy of the second edition of the sentencing casebook I co-author (with Nora Demleitner, Marc Miller, Ronald Wright), entitled "Sentencing Law and Policy: Cases, Statutes, and Guidelines."  As this web page details, the completely updated second edition includes complete coverage of Blakely, Booker and Rita, as well as new materials focused on sex offenses and drug offenses and discussing the role of sentencing as part of a larger social response to crime.

To my knowledge, over two dozen schools used the first edition of this casebook in some kind of dedicated sentencing course.  I am hopeful that this updated edition — along with the extraordinary attention that sentencing issues are now receiving — will lead to dozens of additional adopters.

Related recent post:

October 5, 2007 in Recommended reading | Permalink | Comments (0) | TrackBack

SF Mayor Gavin Newsom: "End this war on drugs."

Thanks to TalkLeft, I see from this news report that San Francisco Mayor Gavin Newsom yesterday came out swinging with potent advocacy against the "war on drugs."  Among other strong statements, Newsom said "shame on my party, the democratic party, because they don't have the courage" to do anything about harms from the drug war.   Here's a bit more:

San Francisco Mayor Gavin Newsom proclaimed the nation's war on drugs a total failure and insisted the crime rate would go down if the government spent money on treatment as opposed to jailing people with drug problems.

"If you want to get serious, if you want to reduce crime by 70% in this country overnight, end this war on drugs," he told reporters at City Hall on Thursday. "You want to get serious, seriously serious about crime and violence end this war on drugs."  The mayor maintained local jails are overcrowded with people incarcerated for drug offenses, taking up room that could be used to hold more violent criminal offenders.  He said violent criminals with lengthy felony records are being turned loose, too often.

Seems like more proof to me that we are getting ever closer to a tipping point on tough-on-crime attitudes and undue emphasis on incarceration as the "solution" to every perceived problem.

Some recent related posts:

October 5, 2007 in Drug Offense Sentencing | Permalink | Comments (1) | TrackBack

Great TNR coverage of JEC hearing on mass incarceration

I am very pleased to see that Bradford Plumer writing at The New Republic Online has this effective coverage of yesterday's congressional hearing by the Joint Economic Committee (JEC) on mass incarceration in the United States.  The piece is entitled "Two Lonely Senators Look at Prison Reform: The Prison Dilemma."  Here is how it starts:

It's eleven-thirty on a Thursday morning in the Senate Hart building, and the House-Senate Joint Economic Committee is doing something fairly unprecedented: It's talking about prison reform.  Not prison reform in the sense of why-we-need-to-build-more, but why-we-need-to-build-fewer.  Curious as to how this came about — as a rule, Congress only gets "tough" on crime, never "soft" — I had asked a staffer, who explained that Chuck Schumer, the committee chair, was letting each member hold his or her own hearing on whatever topic they so desired.  Senator Jim Webb, who had reported on the Japanese prison system as a journalist in the 1980s, had picked this critical issue.  And so, for the past hour, five experts had put forward overwhelming evidence that the sprawling U.S. prison state — essentially a $200 billion per year social program that rivals the New Deal in size and scope — is devastating inner cities, deepening poverty, and making the crime problem worse, not better. But now it comes time for questions, and the congressional chairs are mostly empty.  Only Webb and fellow freshman Bob Casey of Pennsylvania are still hanging around. Critical, indeed.

October 5, 2007 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Will the Sixth Circuit consider acquitted conduct enhancements en banc?

An intriguing little opinion today from the Sixth Circuit in US v. White, No. 05-6596 (6th Cir. Oct. 5, 2007) (available here), indicates that there is division within that court over acquitted conduct enhancements after Booker.    Here is the heart of the per curiam opinion in White:

In this sentencing appeal, after two members of the panel agreed to an opinion reversing the defendant's 14-year-upward adjustment based specifically on conduct for which the jury had acquitted the defendant, another panel of our court rendered an opinion in United States v. Mendez, ____ F.3d ____, 2007 WL 2316498 (6th Cir., Aug. 15, 2007) to the contrary.  The panel in Mendez filed its opinion for publication before the majority released its opinion in the instant case.  The Mendez opinion reaches the opposite conclusion concerning the use of acquitted conduct to enhance a criminal sentence.  It continues to allow the use of acquitted conduct to increase a sentence. If the majority in the instant case had filed its opinion, a conflict of opinions would exist in the Sixth Circuit.

Therefore, the panel has agreed to affirm the sentence in the instant case, including the enhancement based on acquitted conduct; but the panel strongly recommends that counsel for the defendant file a petition for en banc rehearing on the question of whether the continuing use of acquitted conduct as a sentencing enhancement violates United States v. Booker, 543 U.S. 220 (2005), particularly in light of the language in Justice Stevens’ opinions at pages 240 and 278 and Justice Breyer’s opinion in Booker at page 251.

Upon the filing of the en banc petition, the three members of the panel will strongly recommend that the full court grant the en banc petition to review this important question. The panel does not believe that the other issues raised by defendant justify reversal of the judgment below.

Notably, the Mendez opinion (available here) in a per curiam ruling issued by a panel with only two one active Sixth Circuit judge (and one senior judge and one district judge sitting by designation).  It also has a fairly cursory discussion of the acquitted conduct issue.

As detailed in many prior posts (some of which are linked below), I think the issue of acquitted conduct enhancements merits much greater consideration after Blakely and Booker than it has generally received from the circuit courts.  I sincerely hope that the always-thoughtful (and often-divided) Sixth Circuit takes up this issue en banc ASAP.

October 5, 2007 in Booker in the Circuits | Permalink | Comments (5) | TrackBack

Local coverage of JEC hearing on mass incarceration

Disappointingly, I see only a bit of local coverage of yesterday's congressional hearing by the Joint Economic Committee (JEC) entitled, "Mass Incarceration in the United States: At What Cost?".  Nevertheless, the Richmond Times Dispatch provides nice coverage in two articles: one piece entitled "Webb panel looks at toll of incarceration: Lawmakers examine cost, racial makeup of prisons in U.S." and another piece entitled "Confronting problem of prisons."

Some recent related posts:

October 5, 2007 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

New article examining incapacitation innovations

Anyone interested in techncorrections (like the folks at Corrections Sentencing) will want to check out this new article recently posted at SSRN.  The article by Erin Murphy is entitled "Paradigms of Restraint" and here is part of the abstract:

This Article examines the generally unheeded intersection between two well-documented trends: the state's increasing desire to preventively regulate targeted classes of individuals, and its increasing capacity to use innovative technologies, rather than physical incapacitation, to realize that desire. This Article identifies four loosely grouped emerging technologies of control: DNA databasing, electronic monitoring, electronic indexing, and biometric scanning.  It then reviews the legal landscape upon which they operate, and demonstrates that, across the range of doctrines, courts unduly focus upon the physical world as the relevant metric against which all restraints are judged. As a result, technologies of restraint are imposed without necessary procedural safeguards.  This Article then outlines four concerns peculiar to the technological nature of these restraints, and illustrates how these significant concerns are wholly overlooked when the physical world is the determinant referent of review.  The Article closes by urging greater judicial scrutiny of technological restraints, and by laying out a series of potential inquiries that might aid in such an effort.

October 5, 2007 in Criminal Sentences Alternatives | Permalink | Comments (0) | TrackBack

A life sentence for contempt?

This article from the New York Sun spotlights a remarkable sentencing recommendation coming from the feds in a high-profile terrorism-related case:

Federal prosecutors are urging that a Palestinian Arab activist spend the rest of his life in prison for refusing to testify before a grand jury investigating Hamas links in America.

Earlier this year, a jury in Chicago convicted Abdelhaleem Ashqar, 49, of contempt of court and obstruction of justice. However, jurors acquitted Ashqar of participating in a racketeering conspiracy to support Hamas, a terrorist group responsible for a string of bombings and other attacks that killed hundreds in Israel, Gaza, and the West Bank. Despite the jury's decision to acquit Ashqar on the most serious charge, prosecutors filed a legal brief Wednesday arguing that a probation officer's recommendation of a life sentence for contempt was "correctly calculated."

"Defendant Ashqar remains defiant, and to this day keeps locked within himself information and evidence directly relating to the domestic and international support network through which the Hamas terrorist organization perpetuated its long reign of terror, and in the process has allowed the directors and facilitators of that reign of terror to evade … legal sanction," the prosecution team from the office of U.S. Attorney Patrick Fitzgerald wrote.  "That defiance reflects defendant Ashqar to be a continuing threat who is not capable of rehabilitation."

There is no statutory limit to Ashqar's sentence because he was convicted of criminal contempt, a crime for which Congress has set no maximum punishment.  Other alleged Hamas activists who lied to or defied courts have received sentences of a year or two in prison. Obstruction of justice carries a maximum prison sentence of 10 years.

October 5, 2007 | Permalink | Comments (4) | TrackBack

October 4, 2007

New Amnesty International report on lethal injection

Thanks to posts from StandDown Texas Project and TalkLeft, I see that Amnesty International has produced this big new report on lethal injection executions entitled "Execution by lethal injection" A quarter century of state poisoning."  Here is a paragraph from the introduction:

Amnesty International argues that every execution is a violation of fundamental human rights. Amnesty International is therefore totally committed to ending executions whether by lethal injection or any other method. Any potential increase in executions or lobbying for the death penalty as a result of the use of lethal injection is of serious concern.  The increased pressure on medical professionals to participate in executions also raises serious ethical and human rights issues.  This paper reviews developments with respect to lethal injection executions over the past decade.  In this 25th year of lethal injection executions, Amnesty International renews its call on health professionals to respect professional ethics and human rights and not to facilitate or participate in the taking of life in state-ordered executions. It also calls for an end to the death penalty and a more human rights-affirming response to crime.

Reports about the report are available from BBC News and The Guardian.

October 4, 2007 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Senator Craig loses effort to withdraw guilty plea

Those interested in criminal justice consistency will be pleased to hear that Senator Roger Larry Craig, like most criminal defendants, was not permitted to withdraw his guilty plea.  This piece from Reuters has the basics:

Minnesota judge on Thursday refused to let Sen. Larry Craig take back the guilty plea he made after a sex sting arrest.... Judge Charles Porter of the Hennepin County District Court ruled a week after Craig's lawyers contended at a hearing that he had panicked and had been rushed into pleading guilty after an undercover officer arrested him in an airport men's room. Porter ruled Craig's guilty plea was "accurate, voluntary and intelligent, and ... supported by the evidence."

UPDATE:  As commentors have highlighted, I had sports on the brain when thinking about Senator Craig's first name.  Problem fixed (on this post, not for Senator Craig).

October 4, 2007 in Procedure and Proof at Sentencing | Permalink | Comments (13) | TrackBack

Georgia schedules two executions for later this month

I had expected that Texas would be the state battling to go forward with executions while the Supreme Court considered the constitutionality of lethal injections in Baze.  But now, as detailed in articles here and here from the Atlanta Journal-Constitution, Georgia now appears poised to test whether the Baze case is in fact going to result in a de facto national moratorium on executions.  As the AJC articles details, two death warrants have now been signed by county judges setting up execution dates for later in October.

My initial thought is that these scheduled Georgia executions will end up stayed, but I would not make book on such a prediction.  Notably, as detailed in this story, last week the "Georgia attorney general said he will continue pushing death penalty cases until a court tells him to stop."

Some recent related posts:

October 4, 2007 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

More on the JEC hearing on mass incarceration

As noted previously here, this morning Congress's Joint Economic Committee (JEC) is holding a hearing entitled, "Mass Incarceration in the United States: At What Cost?".  It appears as though Senator Jim Webb put this program together; his webpage now has interesting links to "Facts about the United States prison system" and "Floor Charts and Graphs" that spotlight, inter alia, that the "composition of prison admissions has ... shifted toward less serious offenses, characterized by parole violations and drug offenses."

In addition, now available on this page are links to the written statements or testimony of the following participants in this JEC hearing:

I find it extraordinarily encouraging that the Senate is having a hearing to discuss how the country can andshould be smarter on crime rather than just always seeking to be tougher on crime.  (Relatedly, it is disappointing that this JEC hearing has so far gotten very little press attention.)

Some recent related posts:

October 4, 2007 in Scope of Imprisonment | Permalink | Comments (9) | TrackBack

The complications of federal sentencing and federalism

Three items I noticed this morning provide a great primer (and perhaps great fodder for scholarship) on the ways in which federalism issues can create complications for federal sentencing.

1.  The Sixth Circuit this morning in US v. Malone, No. 06-2099 (6th Cir. Oct. 4, 2007) (available here), reverses a defendant's below-guideline sentence holding "that a district court's consideration of a defendant's possible state court sentence as part of its sentencing calculus is improper and renders the resulting sentence unreasonable."

2.  The Boston Globe this morning has this interesting article discussing a brouhaha over a state judge vacating a prior state conviction in an effort to impact federal sentencing realities.  As the article explains, federal prosecutors "said they were stunned when [the defendant] showed up in federal court for his sentencing on cocaine charges later that afternoon and his lawyer announced that his old conviction had been dismissed, meaning that instead of facing 21 to 27 years in prison on the federal charges, he would face less than two years."

3.  On SSRN, Randy Barnett has this short piece entitled "Three Federalisms," which spotlights that the "importance of federalism are often obscured by the fact that there are not one, but three distinct versions of constitutional federalism that have arisen since the Founding."  I wonder which versions of federalism would approve (or disapprove) of the Malone ruling and the happenings in Boston.

October 4, 2007 in Booker in the Circuits | Permalink | Comments (10) | TrackBack

A reasonable analysis of the challenges of reasonableness review

Over at FindLaw is this new essay by Mark Allenbaugh and Donald Purdy discussing the Gall and Kimbrough cases. The piece is entitled "Drugs, Disparity, and Judicial Sentencing Discretion: Two Cases Invite the Roberts Court To Finally Clarify What Constitutes A Reasonable Sentence Under the Now-Advisory U.S. Sentencing Guidelines."  Here are snippets:

During oral argument, the Court clearly was concerned about the lack of a clear substantive definition on appeal for "reasonableness" in this context.  The Court seems caught between a rock and a hard place.  A forgiving "reasonableness" standard would essentially take federal sentencing back to the pre-Guidelines era, where similarly-situated defendants could and did receive grossly disparate sentences. Yet a strict and closely-Guidelines-based reasonableness standard, conversely, would seem to simply effectively make the Guidelines mandatory once again....

Without clarification from the Court regarding both appellate "reasonableness" review and the specific meaning of the Court's declaration that the Guidelines are now advisory, federal sentencing will become increasingly chaotic, and we will indeed see the strange "Wonderland" of sentencing Justice Scalia predicted in his dissent in Booker two years ago.

October 4, 2007 in Federal Sentencing Guidelines, Gall reasonableness case, Kimbrough reasonableness case | Permalink | Comments (6) | TrackBack

USSC analysis on potential crack amendment retroactivity impact

Newly available on the US Sentencing Commission's website is a memorandum titled "Analysis of the Impact of the Crack Cocaine Amendment If Made Retroactive."  This memo, which can be downloaded (slowly) here, "provides a Commission staff analysis of the impact of the crack cocaine amendment (Amendment 9) submitted to Congress on May 1, 2007, if the Commission were to [exercise its authority to allow this amendment to] be applied retroactively to previously sentenced defendants."  Here is one of many fascinating findings discussed in this memo:

This section of the memorandum provides an analysis of the estimated impact of the Commission's 2007 crack cocaine amendment on those offenders incarcerated as of November 1, 2007 in the federal prison system should the Commission vote to make that amendment retroactive. This analysis was prepared by the Commission's Office of Research and Data (ORD). ORD estimates that 19,500 offender sentenced between October 1, 1991 and June 30, 2007 ... would be eligible to seek a reduce sentence if the Commission were to make the 2007 crack cocaine amendment retroactive. These offenders would be released over a period of more than three decades.

October 4, 2007 in New USSC crack guidelines and report | Permalink | Comments (7) | TrackBack

October 3, 2007

Should Michael Vick get sentencing credit for PETA passage?

Over at CNN is this AP piece about recent doings by Michael Vick, entitled "PETA: Vick passes 'rigorous' be-nice-to-animals test."  Here are details:

Vick accepted the offer of Ingrid Newkirk, president of People for the Ethical Treatment of Animals, to take a course in empathy and animal protection . The course lasted eight hours and was followed by a "rigorous" test. "Actually, we were very surprised he took us up on it," PETA spokesman Dan Shannon said Tuesday.  "We made it clear to him that this was something he needed to try to get something out of. We weren't interested in some kind of PR ploy."

PETA, one of the most outspoken organizations against Vick as details of the grisly enterprise emerged, also told Vick it still thought he needed to go to prison for his crimes against animals in six years' involvement in the dogfighting operation. But Vick still showed up September 18, listened to speakers from around the country, watched videos, took notes and even asked questions, Shannon said.  And when he took a written test later, he passed, Shannon said.

So, dear readers, should Vick's PETA work merit at least some minor credit at his upcoming sentencing due to his positive rehabilitation efforts?

Some related posts:

October 3, 2007 in Celebrity sentencings | Permalink | Comments (1) | TrackBack

ACS issue brief on the pardon power

Reviving a topic that was hot this summer, ACS has a new issue brief available here about Presidential pardon authority.  The brief, authored by Margaret Colgate Love, in entitled "Reinventing the President's Pardon Power," and here is an abstract:

In Reinventing the President’s Pardon Power, Margaret Colgate Love, former United States Pardon Attorney, explores the pardon power, placing it in historical context and explaining why the power was included in the Constitution and granted exclusively to the president. Love then describes how the pardon power was used and administered until the 1980s to serve the overall goals of the republic, effectuate justice and grant mercy.  She turns next to what she terms “the decline and fall of ordinary pardoning,” a period in the most recent few decades during which presidential pardoning went into a decline in terms of both the frequency and purposes of its use.

The author advocates a return to the regular use of the pardon power as it may be used effectively by presidents to do justice, to communicate a vision of criminal justice, to advance law reform and to avoid infamy for making rare grants that the public perceives as favoritism.  Noting that public confidence in pardons has been justifiably diminished, Love urges that “[O]ur next president ought to identify the values pardon serves, define a clear role for it in the criminal justice system, and establish a system for administering the power that will maximize its potential for correcting injustice and encouraging reform.”

Some related posts about presidential pardons:

October 3, 2007 in Clemency and Pardons | Permalink | Comments (0) | TrackBack

Congressional hearing on mass incarceration

As detailed in this press advisory and this webpage, tomorrow morning the Joint Economic Committee (JEC) will be holding a hearing "to explore the economic consequences and causes of and solutions to the steep increase of the U.S. prison population." The hearing is entitled, "Mass Incarceration in the United States: At What Cost?" and will take place Thursday, October 4, 2007 at 10:00am in Room 216 of the Hart Senate Office Building.  Here is the set up from the press advisory:

The United States has 25 percent of the world’s prisoners, despite having only 5 percent of the world’s population. The JEC will examine why the United States has such a disproportionate share of the world’s prison population, as well as ways to address this issue that responsibly balance public safety and the high social and economic costs of imprisonment.

Expert witnesses have been asked to discuss the costs of maintaining a large prison system; the long-term labor market and social consequences of mass incarceration; whether the increase in the prison population correlates with decreases in crime; and what alternative sentencing strategies and post-prison re-entry programs have been most successful at reducing incarceration rates in states and local communities.

Witnesses (as of September 27):

  • Dr. Glenn Loury, Economics and Social Sciences Professor, Brown University
  • Dr. Bruce Western, Director Inequality and Social Policy Program, Harvard University
  • Alphonso Albert, Executive Director, Second Chances
  • Michael Jacobson, Executive Director, Vera Institute for Justice

October 3, 2007 in Scope of Imprisonment | Permalink | Comments (2) | TrackBack