« September 23, 2007 - September 29, 2007 | Main | October 7, 2007 - October 13, 2007 »

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

Intriguing insights about lethal injection concerns

Both Capital Defense Weekly and StandDown Texas Project have lots of new posts on various capital punishment issues, and my favorite read is this piece at Reason by Jacob Sullum entitled, "Injection Injunction: Are we just one tweak away from the perfect execution method?".  Here are some thought-provoking snippets:

By agreeing to consider a challenge to current methods of lethal injection, the Supreme Court has begun to tinker quite literally with the machinery of death, a repair job that promises to further slow an already creaky contraption. For opponents of the death penalty, the ultimate goal is a finding that execution is unconstitutional in practice because it cannot always be carried out instantly and painlessly.

As a matter of constitutional law, I think they're wrong.  But the squeamishness reflected by the continuing quest for a perfect execution method suggests the abolitionists may ultimately win the policy debate, and perhaps they should....

All [execution] methods, if they're done properly, can kill a man with minimal pain, but they can also be botched, and none is pleasant to witness. 

On that score, it's striking that abolitionists' accounts of botched executions often feature gruesome details that do not indicate prolonged suffering, such as involuntary defecation, smoking skin, and accidentally severed heads.  If a man is already unconscious or dead, the condition of his body cannot cause him any discomfort.  Why does it still upset people who see or hear about it?

This is a question that should interest conservatives who believe disgust reflects moral intuition.  If the aim is to quickly and reliably kill people while inflicting as little pain as possible, it would be hard to improve on the guillotine or a close-range shot to the back of the head.  Yet we shrink from such methods, perhaps because they too vividly display the reality of killing a man in cold blood.

October 3, 2007 in Baze lethal injection case | Permalink | Comments (0) | TrackBack

Ted Koppel looking at California's prison overcrowding

As detailed at this page, Ted Koppel has this new documentary on the Discovery Channel entitled "Breaking Point" which takes an up-close look at California's prison crisis.   Here is how the piece is previewed:

What does the California prison system have in common with Harvard University?  It costs precisely as much to house, feed and guard one prisoner for one year in a California state prison as tuition, meals and housing cost for a student enrolled for one academic year at Harvard.  As far as California taxpayers are concerned, it gets even worse.  Their prison system is so overcrowded that it’s reached a breaking point.  Either the state finds a long-term solution or the federal courts have warned they’ll begin ordering the release of inmates, just to ease the crush.

In this two-hour broadcast, Ted Koppel examines how California got to this point and presents an inside view of the crisis through in-depth interviews with inmates, guards and prison officials at California State Prison Solano in Vacaville.

Designed to accommodate no more than 100,000 inmates, California’s prisons now hold 173,000, each at an annual cost of $43,000. How did things get so out of control? Mandatory sentencing is a big part of the answer.  When California voters threw their support behind a get-tough-on-crime bill that came to be known as "Three Strikes and You’re Out," the state prison system filled up and is now overflowing.

While shooting, Koppel spent a number of days among the general population at Solano. His reporting focuses on the inhabitants of H Dorm, where inmates are stacked in triple-deck bunk beds on an old indoor basketball court.  Correctional officers are so badly outnumbered that prison officials keep inmates segregated by race and gang affiliation in a desperate effort to avoid friction and maintain control.  Even so, Solano still sees three to four race riots a year. Using smuggled cell phones, gang bosses continue running criminal operations on the street from behind prison walls.  At the same time, they’re running drug and prostitution rings inside Solano.

October 3, 2007 in Scope of Imprisonment | Permalink | Comments (7) | TrackBack

Gall and Kimbrough SCOTUS argument wrap-up

Thanks to this post at How Appealing, everyone can quickly catch up with major newspaper coverage of yesterday's oral arguments in the two Booker reasonableness cases.  This editorial from the Washington Post puts an interesting spin on what the take-away should be from the Kimbrough case:

By the end of yesterday's Supreme Court argument in Kimbrough v. U.S., two things seemed clear.  First, thousands of defendants charged with crack cocaine offenses will continue to face irrationally long sentences.  Second, the justices probably will move further down a path that will lead to the slow, painful death of the federal sentencing guidelines.

Also, this law.com coverage rightly highlights that Justice Scalia had the line of the day during the Kimbrough argument: "Indeed, it might be quite impossible to achieve uniformity through advisory guidelines, which is why Congress made them mandatory."

Wrap-up of recent blog coverage of Gall and Kimbrough:

October 3, 2007 in Gall reasonableness case, Kimbrough reasonableness case, Who Sentences? | Permalink | Comments (1) | TrackBack

Is the developing moratorium on executions risking innocent lives?

As noted here, another stay of a scheduled Texas execution further suggests that the Baze lethal injection SCOTUS case is going to lead to a de facto national moratorium on lethal injection executions.  Kent Scheidegger at Crime & Consequences has this notable reaction: "There is substantial reason to believe that moratoriums kill innocent people.  See Dale O. Cloninger & Roberto Marchesini, Execution Moratoriums, Commutations and Deterrence: the case of Illinois, Applied Economics, vol. 38, no. 9, pp. 967-973 (2006)."

Relatedly, Kent has this new post spotlighting this new paper on the continuing debates over the new death penalty deterrence literature.  Kent makes this spot-on observation about the deterrence debate:

Nothing induces hysteria in the anti-death-penalty crowd as much as the new generation of studies confirming that the death penalty does, indeed, have a deterrent effect and save innocent lives when it is actually enforced.  There is good reason for the reaction.  Deterrence is the strongest argument for the death penalty in terms of persuading people who are otherwise on the fence.

The controversy and reactions surrounding the provocative paper by Cass Sunstein & Adrian Vermeule, entitled "Is Capital Punishment Morally Required?  Acts, Omissions, and Life-Life Tradeoffs," certainly support Kent's observation here.  That paper also has me wondering whether Sunstein and Vermeule would contend that the Supreme Court (or even Congress) has a moral obligation to prevent the risk to innocent lives that might possibly result from a de facto national moratorium on lethal injection executions.  At the very least, I feel comfortable arguing that the Supreme Court has a moral obligation to adjudicate the Baze case ASAP.

Some related posts on the death penalty deterrence debate and the lethal injection moratorium:

October 3, 2007 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (20) | TrackBack

A big day for federal sentencing vibes, especially in the First Circuit

The Supreme Court's oral argument on post-Booker issues must have created some kind of distant sentencing karma because numerous circuit on Tuesday issued published sentencing opinions.  But though the Fifth, Sixth, Seventh, Eighth, Ninth and Eleventh Circuits all added to the sentencing corpus, the only must-read is the First Circuit's remarkable work in US v. Cirilo-Munoz, No. 05-2469 (1st Cir. Oct. 2, 2007)(available here).  Both AL&P and DotD note the craziness of Cirilo-Munoz, which is highlighted by this start to the ruling:

It is the decision of the court, by vote of the majority, that Ernesto Cirilo-Muñoz’s sentence is vacated and remanded.  One judge votes for that remand because of his view that the sentence imposed is unreasonable and that the explanation for it is inadequate.  The other judge votes for remand because of the inadequacy of the sentencing explanation.  One judge dissents from this remand decision.

The majority of the court has rejected defendant’s sentencing arguments that the sentence was unreasonable because there was insufficient evidence to convict him and, separately, that the fact of the sentence disparity between defendant and Lugo itself establishes that the sentence is unreasonable. Two judges of the court disagree as to whether there was a Guidelines error as to the minimal participant issue; the third judge finds it unnecessary to address the issue on appeal in light of the remand for resentencing.

This result is explained by the three attached opinions.

October 3, 2007 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

October 2, 2007

Another Texas execution halted ... is moratorium now official?

As detailed in this new AP article, the "Texas Court of Criminal Appeals on Tuesday stopped this week's scheduled execution of a Honduran man."  This is the second straight Texas execution to be stayed since the Supreme Court took the Baze lethal injection case.  And if Texas can't or won't be able to go forward with executions, I will be surprised if any other states try to conduct a lethal injection until the Supreme Court eventually (in June?) rules in Baze

Some recent related posts:

UPDATE:  Howard Bashman has collected here the major media coverage of this latest Texas stay.

October 2, 2007 in Death Penalty Reforms | Permalink | Comments (9) | TrackBack

A fitting take on SCOTUS sentencing cases fit to be tied

As she does so well, Dahlia Lithwick finds a way in this great Slate piece to cut through all the reasonableness mumbo-jumbo and cut to the heart of the Supreme Court's work today. Her piece is entitled "Run-On Sentencing: The Supreme Court takes another crack at the sentencing mess," and I found the first and last paragraphs riotously spot-on (and very flattering):

At the risk of an unfair generalization, I think the legal world sorts rather neatly into Booker people and non-Booker people.  One of my best friends is a Booker person.  Can talk about sentencing cases for hours. Days.  The wonderful Doug Berman is the Booker czar and his blog is the Booker holy grail. Me?  Not so Booker....

So just to catch you non-Booker people up on what you've missed in the last few years: There used to be a lack of uniformity in sentencing.  Congress created sentencing guidelines.  The court decided the guidelines were merely advisory.  Appeals courts said sometimes advisory guidelines are still mandatory.  District courts got confused.  And now the high court asks the parties to make immutable rules out of standards, and flexible standards out of rules.  Kimbrough and Gall think a good rule is that the guidelines should go away.  The Justice Department thinks a good rule is that the judges should go away.  And the court?  It may finally have to pick a side.

October 2, 2007 in Who Sentences? | Permalink | Comments (6) | TrackBack

First-cut reactions to the Kimbrough transcript

Upon first read, the SCOTUS oral argument transcript in Kimbrough is a bit less frustrating because Kimbrough's lawyer did a nice job stressing that Derrick Kimbrough's 15-year sentence seems in harmony with the sentencing purposes Congress set forth in 3553(a)(2).  However, it is still aggravating to me that the Justices seem to approach these cases as if both district judges and circuit judges are always making broad systemic judgments about valid and invalid sentencing considerations.  But that's not what Congress in 3553(a) to do at sentencing. 

Instead, as a quick review of Congress's express commands in section 3553(a) of the Sentencing Reform Act makes clear, Congress told judges to "impose a sentence sufficient, but not greater than necessary, to comply with" the traditional purposes of sentencing (while also considering various relevant facts and factors including the guidelines).  By my lights, that is exactly what Judge Jackson did when sentencing Derrick Kimbrough (and also what Judge Pratt did when sentencing Brian Gall).  Tellingly, in the Kimbrough argument, the government never seriously asserts that 15 years' imprisonment was insufficient punishment for Derrick Kimbrough.

Another aggravating aspect of Kimbrough is the constant refrain about the potential harms of having different sentencing judges apply different cocaine sentencing ratios.  I understand this disparity worry, but I do not understand why it is a bigger problem than different prosecutors rewarding cooperation differently.  There is extensive evidence of profound disparity in how different prosecutors "reward" cooperation, and yet everyone accepts this as the price of giving prosecutors largely unregulated discretion to strike cooperation deals.  In the end, I think the Supreme Court must come to terms with the reality that some relatively minor disparity in crack sentencing outcomes is the price of allowing the guidelines to be advisory and avoiding the procedural requirements of Blakely.

October 2, 2007 in Kimbrough reasonableness case | Permalink | Comments (7) | TrackBack

First-cut reactions to the Gall transcript

As I hinted here, I am finding the transcript in Gall more frustrating than enlightening.  My frustration primarily stems from the fact that the advocates failed to explore how the explicit text of 3553(a) can and should give content to reasonableness review.  Particularly disappointing was the failure of Gall's lawyer to stress that the government has never effectively shown --- or even really argued --- that Brian Gall's below-Guideline sentence was insufficient to achieve the sentencing purposes Congress set forth in 3553(a)(2).

Though 3553(a) is has lots of vague language, a number of valuable sentencing principles can and should be derived from the text that Congress enacted (and that Booker made central to the application of an advisory guideline scheme).  Rather than try to concoct an array of legal definitions for reasonableness review, I believe the Supreme Court should simply encourage circuit courts to determine and explain, on a case-by-case basis, whether and how a particular sentencing outcome serves the purposes that Congress set out in the statutory text of the Sentencing Reform Act.  As the last section of Rita suggests, the process should be more important than any specific outcome.  If the process is thoughtful, reasoned, and respectful of congressional broad goals as expressly stated in 3553(a), significant appellate deference should be the norm.  But, if the process is not thoughtful or poorly reasoned, or is plainly disrespectful of the text of 3553(a), then more searching appellate review seems justified.

Venting aside, the competing voices of the Justices in Gall is really intriguing.  Particularly notable is the way in which Justice Scalia seems to be channeling the late Justice Brennan, such as when he suggest it could not possibly be unreasonable for a sentencing judge to say he "thought only in a rare case should there be jail time."

October 2, 2007 in Gall reasonableness case | Permalink | Comments (19) | TrackBack

Read all about it: Gall and Kimbrough transcripts

Now available at this SCOTUS webpage are the transcripts from this morning's oral argument in Gall and Kimbrough.  Based on brief reports from folks in attendance, the arguments we nuanced and I will have lots of comments once I get to consume these transcripts.  I think I'll read the Gall transcript first, since that case was argued first, and then the Kimbrough transcript.

Fellow readers (and/or argument attendees) are welcome to use the comments to share their thoughts and insights.  Lyle Denniston has shared his views at SCOTUSblog with this post entitled "Analysis: More trouble for Guidelines."

UPDATE:  Though I am finding the transcripts a bit more frustrating than enlightening, but I did very much enjoy seeing Jeff Green in the Gall argument talk about the reasonableness of a sentencing judge looking to a "legal database, for example, or even a blog or something like that."

October 2, 2007 in Gall reasonableness case, Kimbrough reasonableness case | Permalink | Comments (15) | TrackBack

Ninth Circuit rejects challenges to DNA Act

Joining every other circuit to consider these and related issues, the Ninth Circuit today in US V Lujan, No. 02-30237 (9th Cir. Oct. 2, 2007) (available here), summarily rejected various challenges to the DNA Act.  Here is how the opinion starts:

Lisa Renee Lujan appeals from the district court’s order authorizing the probation office to demand the collection of a blood sample as a condition of her supervised release, as mandated by the DNA Analysis Backlog Elimination Act of 2000 (“DNA Act”), 42 U.S.C. §§ 14135-14135e. She alleges that the Act violates the Fourth Amendment and the Ex Post Facto Clause, that it is an unconstitutional bill of attainder, and that it contravenes separation of powers. We reject these constitutional challenges and affirm.

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

Am I foolish to dream about consensus in Gall and Kimbrough?

As I eagerly await the transcripts of the Gall and Kimbrough arguments to be available here this afternoon, I cannot help but dream about the Justices finding their way in these cases to some consensus on post-Booker sentencing standards.  I am driven to dream in part by this spot-on commentary by Benjamin Wittes at the New Republic lamenting the Court's recent divisiveness.  Here are snippets:

Chief Justice John G. Roberts Jr. has spoken eloquently about the importance of unanimity and the corrosive effect of separate opinion-writing on the court's institutional capital.... But it's hard to identify important areas in which the court [last term] spoke with a strong voice that rose above the polarized views of its members.  The court, rather, performed exactly as believers that it is nothing more than a political institution would have predicted.  And it made fools of those of us who believe in it as something more elevated: an institution that aspires to rule based on principle....

[N]ow it's a new day and a chance to start over.  And who knows?  A few months from now, last term may seem far away; the brethren may seem once more fraternal; and the institution may look a little more like a court ruling on law than a fractious bunch of politicians striking exactly the poses their constituencies expect of them.  But I'm not holding my breath.  And I'm not excited about watching them try.

Of course, when addressing Sixth Amendment issues, the Court has been deeply divided for a decade now, and the new Justices have not yet been able to quell to squalling.  However, Gall and Kimbrough ultimately have more to do with judicial discretion and appellate review than with the Sixth Amendment, and back in 1996 the Court came together in Koon to deliver a unanimous ruling (per Justice Kennedy) that embraced broader district court sentencing discretion and light appellate review.  I think there is a real chance that the Court might find consensus in these principles again.  (But, then again, a few weeks ago I also thought there was real chance the Mets and Padres would be gearing up for the MLB playoffs right now.)

October 2, 2007 in Gall reasonableness case, Kimbrough reasonableness case, Who Sentences? | Permalink | Comments (0) | TrackBack

A original look at the Eighth Amendment

Well timed in light of the Supreme Court's cert grant last week on lethal injection, John Stinneford has posted on SSRN this interesting looking article, entitled "The Original Meaning of 'Unusual': The Eighth Amendment as a Bar to Cruel Innovation."  Here is the abstract:

Very briefly, my argument is that the word “unusual” was a term of art that referred to government practices that deviate from “long usage.”  Under the common law ideology that came to the framers through Coke, Blackstone, and various others, the best way to determine whether a government practice comported with basic principles of justice was to ask whether it enjoyed “long usage” — that is, whether is was continuously employed throughout the jurisdiction for a very long time.  The opposite of a practice that enjoys “long usage” is an “unusual” practice, or an innovation.  The word “unusual” is included in the Cruel and Unusual Punishments Clause to direct courts to give scrutiny to new or innovative punishment practices; the assumption underlying the Clause being that when the government innovates in the realm of punishment, it often does so in the direction of greater cruelty.

The implications of recognizing the original meaning of “unusual” are not merely academic. In recent decades, both Congress and state legislatures have significantly increased the penalties imposed on criminal offenders for a wide range of crimes.  Seven states have imposed the previously unthinkable punishment of chemical castration on sex offenders, and several more are currently debating the imposition of surgical castration — a punishment practice that fell out of usage in England in the 13th century.  Such new punishments are often highly popular, and by that measure they comport with current “standards of decency,” which is the standard the Court now uses to determine whether a punishment violates the Eighth Amendment.  Without a renewed recognition of the significance of the word “unusual,” courts will be powerless when faced with the primary danger against which the Cruel and Unusual Punishments Clause was designed to protect: The tyranny of enflamed majority opinion.

October 2, 2007 in Sentences Reconsidered | Permalink | Comments (5) | TrackBack

Debating discretion: time for oral argument in Gall and Kimbrough

It is sentencing two-for-Tuesday in the Supreme Court later this morning: the Gall and Kimbrough reasonableness cases are due to be argued starting at 10am (and transcripts of the arguments ought to be available here by this afternoon).  Warren Richey has this article in the Christian Science Monitor previewing both cases, and the AP has this new report focused on Kimbrough and crack sentencing.

I have, of course, lots and lots of posts on these cases, most of which can be accessed through the Gall case index and the Kimbrough case index (the briefs are there, too).  In addition, the posts spotlighted below have some of my focused commentary on these cases.

On Gall:

On Kimbrough:

UPDATE:  NPR has this nice overview piece by Nina Totenberg , and SCOTUSblog has basics and links to its wiki here.

October 2, 2007 in Booker in the Circuits, Federal Sentencing Guidelines, Gall reasonableness case, Kimbrough reasonableness case | Permalink | Comments (1) | TrackBack

October 1, 2007

Was the ABA's Ohio death penalty report just a big capital waste?

Thanks to this post by Crime & Consequences, I see that the local AP has now documented in this article how and why the ABA's mega-report urging a moratorium in Ohio (discussed here) has so far had no impact on the state's death penalty debate.  Here are snippets from the article:

Death penalty opponents hoping a long-awaited study would bolster their efforts to end capital punishment saw the opportunity overshadowed by questions over the study's bias and much bigger news from the U.S. Supreme Court....

[T]he study found itself in trouble almost immediately over the makeup of the 10-person team of Ohio lawyers.  No members are current prosecutors.  Four are defense lawyers, a fifth is a lawyer and professor who works to free innocent people through DNA testing, and a sixth is a Democratic lawmaker, Rep. Shirley Smith of Cleveland, long opposed to the death penalty....

"All you have to do is look at the membership of this group and see where it's going to go," said John Murphy, executive director of the Ohio Prosecuting Attorneys Association.... Criticism of the report didn't just come from prosecutors.  Chief Justice Thomas Moyer of the Ohio Supreme Court, who has upheld his fair share of death sentences over the years, issued a brief statement promising to look at the results, while noting, "the Supreme Court of Ohio was not consulted in the preparation of this 500-page report."

October 1, 2007 in Death Penalty Reforms | Permalink | Comments (19) | TrackBack

Latest FSR issue covers crack sentencing

I am pleased to report that, just in time for the Kimbrough SCOTUS oral argument (background here), the latest issue of the Federal Sentencing Reporter addressing crack and mandatory minimum sentencing has gone to press.   The opening commentary to this FSR issue, which I co-authored with Steve Chanenson, is entitled "Federal Cocaine Sentencing in Transition" and can be downloaded below.

The full contents of this latest FSR issue are listed below and should be accessible electronically here very soon. (The Federal Sentencing Reporter can be ordered on-line here.)

EDITORS' OBSERVATIONS

CRACK-COCAINE SENTENCING DEVELOPMENTS

STATEMENTS FROM HOUSE HEARING ON FEDERAL MANDATORY MINIMUMS

October 1, 2007 in New USSC crack guidelines and report | Permalink | Comments (4) | TrackBack

First Circuit lacks the gall to await Gall and reverses probation sentence

I am eagerly awaiting tomorrow's SCOTUS sentencing arguments in Gall and Kimbrough to see how the Justices discuss the status of below-guideline after Booker.  But, as evidenced by its ruling today in US v. Tom, No. 07-1074 (1st Cir. Oct. 1, 2007) (available here), the First Circuit seems no reason to await further guidance on reasonableness review before reversing a below-guideline sentence in a white-collar case.  Here are the Tom basics from the start of the opinion:

The government appeals as unreasonably lenient a sentence of thirty-six months' probation (including six months of community confinement) imposed on a whitecollar criminal, Michael Tom. Tom, a securities professional, illegally made almost $800,000 in insider trading profits and then obstructed justice by lying under oath to the Securities and Exchange Commission, encouraging another witness to lie, and creating a false document.

The low end of the Sentencing Guidelines range for Tom, including a two-level increase for obstruction of justice, was thirty-seven months' imprisonment, and the prosecution agreed to make that recommendation as part of a plea agreement. After accepting Tom's guilty plea, the court declined to sentence within the Guidelines range or to imprison Tom, and stated three reasons for its sentence. The court primarily rested on a disparity rationale: that Shengnan Wang, who as a cooperating co-defendant received a U.S.S.G. § 5K1.1 departure, was the insider tipper and gained $9,761, and had been sentenced by a different judge to twelve months' probation (and 500 hours community service). The court stated that Tom was less culpable than Wang, and that made any Guidelines sentence for Tom unjust.  The court also articulated a concern that Tom was subject to sanctions by the SEC, and a prison sentence would over-punish him.  Finally, while the court had concluded that family circumstances would not justify a downward departure, the court noted that Tom's family problem -- a daughter's illness -- factored into the mix.

We agree with the government that the sentence is unreasonable and that it did not give adequate consideration to the seriousness of the offense, the need for general deterrence for white-collar crimes, and the need for some imprisonment. We reverse and remand for resentencing.

October 1, 2007 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

The other sentencing cases taken up by SCOTUS last week

Now posted over at SCOTUSblog is this long account of the other sentencing cases that the Justices decided to take up last week.  Here are some highlights from the post:

Last Tuesday, the Court granted certiorari in two cases that will examine the range of predicate convictions that qualify a person for elevated sentences under the Armed Career Criminal Act of 1984 (the "ACCA").  The ACCA imposes a minimum 15 year sentence, and authorizes a term of life imprisonment, for a person convicted of being a felon in possession of a firearm if that person has been previously convicted on three separate occasions for a "violent felony" or "serious drug offense."...

Begay v. United States asks whether a felony conviction for driving while intoxicated counts as a "violent felony" under the ACCA.... The other ACCA case, United States v. Rodriquez, asks whether a court, in determining whether a prior state drug conviction prescribed a sufficiently long maximum sentence to count as a "serious drug offense" under the ACCA, can look only at the maximum sentence named in the particular state drug statute or has to take into account a sentencing enhancement applicable to the case under a state recidivism statute.

October 1, 2007 in Offender Characteristics | Permalink | Comments (1) | TrackBack

What's up with another of DC's federal appellate courts?

While all legal eyes are on DC for the start of the Supreme Court Term (which brings, inter alia, a new look for SCOTUSblog), I am wondering what's going on these days with the DC Circuit.  Specifically, why exactly has that court not issued, according to this opinion page, a single formal opinion since August 24, 2007?

I ask in part because the DC Circuit has rendered some of the most interesting circuit sentencing opinions, and delivered the most thoughtful and nuanced work on crack sentencing in US v. Pickett, No. 05-3179 (DC Cir. Feb. 13, 2007) (available here).  I do not believe that the DC Circuit has yet to say anything at all about the Supreme Court's work in Rita

Whatever the DC Circuit judges are up to these days, I hope they know at least one blogger misses their sentencing efforts.

UPDATE:  Commentors rightly noted, that because DC has plenty of appellate courts, the title of this posted meritted tweaking.  It has been so tweaked.

October 1, 2007 in Who Sentences? | Permalink | Comments (9) | TrackBack

Bumming over cert denied

Though I am still looking forward to a big SCOTUS sentencing term, I am definitely bumming that at the top of today's huge list of cert denials is Faulks v. US.  Faulks is the case from the Fourth Circuit concerning the procedures for revoking supervised release in which I helped develop a petition raising Blakely issues (details here and here).

When time permits, I hope to flag some other notable cert denials, though perhaps reads can help by mentioning other denials of sentencing interest in the comments.  Ultimately, the Faulks denial is another reminder that, even with all the sentencing action this term, there are no shortage of additional (Blakely and non-Blakely) issues that I wish the Justices would tackle ASAP.

UPDATE:  In the comments, Peter G. rightly note the notable absence of Rita GVR's.  Here's Peter's reaction to this Rita dog not barking: "I infer that the Court is washing its hands (and modeling to the courts of appeals to wash their collective hands) of 'substantive unreasonableness' challenges to post-Booker Guidelines and below-Guidelines sentences."

Also in the comments is a query about the status of "Jeff Fisher's ACCA/juvenile adjudication case out of Washington."  I believe that case was Sasouvong v. Washington (discussed here), and it also suffered the one-line fate of "cert denied."

October 1, 2007 in Blakely in the Supreme Court | Permalink | Comments (5) | TrackBack

Sixth Circuit stresses accurate sentencing stories

Perhaps providing a fitting start to what should be a very interesting sentencing (and baseball) month, the Sixth Circuit's today in US v. Story, No. 05-6422 (6th Cir. Oct. 1, 2007) (available here), remands for resentencing in a case in which the district court misstated the bottom of the applicable sentencing range.  So, as a lesson to us all, let's how the Sixth Circuit helps everyone appreciate the importance of keeping errors to a minimum as important Fall seasons unfold. 

October 1, 2007 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

The challenge of collecting sentencing data

The Cleveland Plain Dealer today has this very interesting article that highlights the challenges that surrounding the collection of sentencing data at the state level.  The article is entitled "Ohio law on tracking race of felons is ignored," and here is how it begins:

A dozen years ago, judicial leaders troubled that Ohio's courtrooms were getting an unwanted reputation for treating blacks more harshly than whites for similar crimes turned to state lawmakers for help.  The result was a law urging the Ohio Supreme Court to force lower-court judges to track the race, ethnicity, gender and religion of everyone before their bench convicted of a felony to test whether the perceptions were rooted in reality.

Yet today, not a single digit of the data has been collected. And despite two reports since then from state study groups urging implementation of the law, the matter hasn't seriously been considered in at least five years.  Meanwhile, that perception problem — it's just as bad, some jurists say.

Though focused on race issues in particular, the article does an effective job reviewing the array of issues that arise in the effort to collect lots of dynamic sentencing data effectively.

October 1, 2007 in Race, Class, and Gender | Permalink | Comments (3) | TrackBack

Is Gall the most important SCOTUS sentencing case?

The long-standing debate over crack sentencing policy ensures that the Kimbrough case gets lots of media attention (see here and here), and national fixation with the death penalty ensures that Baze will always be an above-the-fold story (see here and here).  Nevertheless, as we gear up for a major SCOTUS sentencing term, I think Gall may end up being the case and ruling with the greatest long-term significance and impact. 

Whether the Supreme Court uses Gall to broaden or restrict the scope of post-Booker discretion, the decision in Gall is likely to impact greatly how all district courts sentence after Booker.  The decision will also likely frame future debates over Booker as a new Attorney General (and eventually a new administration) takes stock of federal sentencing realities. 

For more on the Gall case and related issues, the Des Moines Register has this helpful article and this effective editorial.  The article notes that the Gall case "could affect criminal sentences in every federal courtroom in America," and the editorial calls for "Congress [to] eliminate the garden-variety drug prosecutions and return the federal courts to their original purpose of hearing major criminal cases that cut across state lines and exceed local authority and resources."

Some related SCOTUS new Term posts:

UPDATE:  This CNN piece about the new SCOTUS Term is headlined "Law-and-order issues top Supreme Court docket."

October 1, 2007 in Booker and Fanfan Commentary, Gall reasonableness case, Kimbrough reasonableness case, Rita reactions, Who Sentences? | Permalink | Comments (2) | TrackBack

September 30, 2007

A timely note about physician involvement in executions

In light of the Supreme Court's cert grant in the Baze lethal injection case (index here), a note in the August 2007 issue of the Georgetown Law Journal seems especially timely.  The note is entitled, "Second Opinion: Inconsistent Deference to Medical Ethics in Death Penalty Jurisprudence," and can be accessed at this link.  Here is a snippet from the introduction:

This Note illustrates the inconsistent judicial deference to medical ethics by focusing on two increasingly controversial roles physicians play in capital proceedings: their direct participation in the lethal injection process itself and their treatment of insane inmates to restore the condemned’s competency to be executed. Part I of this Note provides an overview of the medical community’s ethical proscription against physician involvement in executions and outlines some reasons why physicians nonetheless breach medical ethics by participating in executions.

Some related posts/readings about doctors and executions:

September 30, 2007 in Baze lethal injection case | Permalink | Comments (0) | TrackBack

An array of notable sentencing stories

With the Supreme Court back in action tomorrow, the papers have plenty of SCOTUS coverage.  And, especially with SCOTUS having lots of notable criminal cases on the docket, these articles all ought to be of interest to sentencing fans:

Relatedly, the New York Times today has this op-ed entitled "Jena, O. J. and the Jailing of Black America."

UPDATE:  Additional Kimbrough coverage is available here from US News in a piece headlined "Revisiting the Case of a Sentencing Double Standard: Justices consider disparities for powder and crack cocaine."

September 30, 2007 in Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack