October 13, 2007
Suggestions for helping the Roberts Court deal with shrinkage
Time magazine has this great cover story on the Roberts Court. The piece is entitled, "The Incredibly Shrinking Court" and here are some (of many) highlights:
As the dust rises and the opinions, concurrences and dissents pile up, the court turns its attention to ever smaller cases related to ever narrower points of law. There is, it seems, an inverse relationship between the passions expressed in judicial writings and the import of the cases that inspire them. In the midst of these battles, no one seems to have noticed that the stakes have diminished....
The familiar hot-button controversies -- abortion, affirmative action, the death penalty, police powers and so on -- have been around so long, sifted and resifted so many times, that they now arrive at the court in highly specific cases affecting few, if any, real people. And it's not clear that Roberts wants to alter that trend. His speeches on the judicial role suggest a man more interested in the steady retreat of the court from public policy than in a right-wing revolution. Unless the Roberts court umpires another disputed presidential election (à la Bush v. Gore in 2000--a long shot, to say the least), the left-right division will matter mainly in the realm of theories and rhetoric, dear to the hearts of law professors and political activists but remote from day-to-day existence. What once was salient is now mostly symbolic....
A sense of proportion is among the defining qualities of a judge. Yet the Roberts Court so far is better known for making symbolic mountains out of real-life molehills.
Though the Time piece suggests that the new Chief is not troubled by the shrinking court, I am troubled by the Court's Constanza-like shrinkage experience. Of particular concern to me is the Court's repeated tendency to shrink like a frightened turtle from an array of important questions ranging from procedural rights at sentencing to extreme mandatory sentences to residency restrictions.
Consider, as but one example, the meaning of the Fifth and Fourteenth Amendments' Due Process Clause at sentencing. The Justices have not addressed this issue head-on since the mid 1980s in McMillian, and the very-dated 1949 Williams decision is still a leading precedent. And yet, with well over a million felony sentences imposed every year, roughly 4000 "real people" are impacted by sentencing procedures every single day the nation's courts are open for business. I sure wish the incredibly shrinking Court would come out of its shell to take a modern look at what the Due Process Clause means at sentencing.
Does the efficacy of sex offenders residency restrictions impact their constitutionality?
This new piece by Sarah Tofte at the Huffington Post, entitled "Sex Offender Laws May Do More Harm Than Good," chronicles the potential inefficacy of sex offender laws. Here are snippets:
A growing number of child safety and rape prevention advocates agree that current laws are not working. For example, the California Coalition Against Sexual Assault (CALCASA), a state-wide coalition of 84 rape crisis centers and sexual assault prevention programs, had this to say about residency restriction laws: They "waste valuable resources on sex offenders who are unlikely to reoffend, while leaving a deficit of treatment, supervision, and focus on offenders who we know should be receiving more intense scrutiny."...
Residency restriction laws, in place in 20 states, are based on another popular belief about former offenders -- that keeping them away from places where children gather will reduce their risk of re-offending. But there is no evidence these laws diminish crimes against children and some to suggest the opposite.
A recent study by the Minnesota Department of Corrections analyzed 224 sex offender recidivists to see if where they lived had an effect on their crimes. The study found that residential proximity had very little impact on a recidivist's opportunity to re-offend. Many took pains to drive far from their neighborhoods in order to re-offend. More than half (113) came into contact with their victims through "social or relationship proximity" to the child. The most common example was that of a male offender who found his victim(s) while socializing with their mother.
The main impact of residency restrictions may be to drive former offenders underground, away from families, police supervision and the help that can stop them re-offending. As an Iowa sheriff pointed out, "We've taken stable people who have committed a sex crime and cast them out of their homes, away from their jobs, away from treatment, and away from public transportation. It's just absolutely absurd what these laws have done, and the communities are at greater risk because of it."
It will be interesting to see whether, as evidence mounts about the inefficacy of sex offender residency restrictions grow, whether more courts are inclined to find these laws unconstitutional.
Some related related posts:
October 12, 2007
A challenge: help me "come off the fence" concerning the death penalty!
In a wonderfully provocative comment, peter here urges me to "come off the fence" concerning the death penalty. OMG echoes and endorses "peter's very respectful observation." If forced off the fence, however, I am probably not inclined to land on the abolitionist side (where peter and OMG apparently want me). In the (silly?) hope of generating a productive debate, let me quickly explain to peter and others why I am so ambivalent about the death penalty.
1. Uncertainty about deterrence. Lacking sophisticated social science skills, I cannot reach a firm conclusion on the empirical debate over whether the death penalty saves innocent lives. But my consequentialist philosophy makes me willing to endorse the execution of a few convicted murderers if doing so could save innocent lives. Though many justifiably raise doubts about deterrence data, only clear evidence that the death penalty costs innocent lives would turn me into a committed abolitionist.
2. Concerns about alternatives. In the spirit of JS Mill's famed speech, I am troubled by the embrace of life imprisonment without parole (LWOP) as a "more just" alternative to the death penalty. It is telling (and disappointing) that many modern efforts to abolish the death penalty lead to more LWOP sentences (often even for some offenders who would not have been subject to capital punishment).
3. Sincere assertions of victims' interests. I believe victims should have a prominent (though not dominant) say in how the criminal law responds to their victimization. Consequently, I have a hard time disregarding the voices of those victims who sincerely assert and genuinely believe that only the execution of a murderer will bring catharsis or repose for them.
4. Respect for democratic choices. Points made above do not make me a supporter of the death penalty, just an agnostic. But that agnosticism makes me skeptical of abolitionist opposition to the death penalty in light of broad democratic support for the punishment. Though I do not agree with all policy positions supported by public opinion polls, my respect for democratic choices makes me wary of the implicit political commitments of committed abolitionists.
That all said, I still view the modern flawed American death penalty system as an expensive, convoluted and distorting legal machinery that probably does more harm than good. But that is why I tend to be drawn more toward arguments to fix the death penalty --- by, as suggested here and here, making it exclusively federal --- rather than toward abolitionist claims.
But, on a Friday afternoon after a long week, perhaps I just can't see the great arguments for pushing me off the fence regarding the death penalty. Commentors are encouraged to help me see the light.
When and how will SCOTUS address residency restrictions?
There is lots of news around the blogosphere about sex offender residency restrictions:
- How Appealing here collects media coverage of a new brouhaha between the California Supreme Court and Governor Arnold Schwarzenegger over enforcement of the state's residency restriction.
- Sex Crimes here notes the dispute in California along with the litigation now before the Ohio Supreme Court concerning retroactive application of Ohio's residency restrictions.
- f/k/a here laments the extreme residency restrictions recently enacted in Utica, New York and in Newton, New Jersey.
All these developments confirm my instinct that it is only a matter of time before the US Supreme Court is going to have to take up legal challenges to sex offender residency restrictions. It is interesting to speculate exactly when and how these issues will come before the High Court.
October 11, 2007
The latest lethal injection news
As this new NPR piece highlights, it is still not clear whether the Supreme Court's consideration of the Baze lethal injection case will halt all states from carrying out executions. The NPR piece, entitled "States Still Planning Lethal Injection Executions," highlights that Georgia has recently scheduled two execution dates for later this month (previously discussed here).
In addition, StandDown Texas Project has a great round-up here of various other developments on the lethal injection front. All this uncertainty and state-federal craziness draws me back to this post from 18 months ago in which I urging Congress to be more proactive in trying to deal with all the lethal injection messiness.
Some recent related posts:
- SCOTUS stops Texas execution: is a national Baze moratorium now a given?
- A Texas companion? A lengthy de facto moratorium? What the Baze f@%$, SCOTUS?
- Georgia schedules two executions for later this month
- Another Texas execution halted ... is moratorium now official?
- Is the developing moratorium on executions risking innocent lives?
UPDATE: The Miami Herald provides an update on developments in Florida in this article entitled "Court weighs fairness, secrecy of executions."
ANOTHER UPDATE: Over at Capital Defense Weekly, Karl Keys has this terrific post providing a "rough thumbnail sketch of the rest of this year's scheduled executions." The post concludes with this summary: "Long story short, stays in light of Baze are possible, and believed to be likely, for all the currently scheduled execution dates through Christmas save Monday's scheduled date of [execution volunteer] William Castillo in Nevada."
Exploring prior good works in a white-collar world
Peter Henning of White Collar Crime Prof fame has posted on SSRN this new piece, entitled "Prior Good Works in the Age of Reasonableness," that should be of interest for folks following the federal sentencing of offenders with any color collar crime. Here is the abstract:
The Supreme Court's decision in United States v. Booker allows federal judges a bit more discretion in sentencing, and with greater discretion in sentencing likely means less predictability in individual cases if the background of the person being sentenced takes on a larger role in assessing the appropriate punishment. One area that may become more prominent in sentencing in white collar crime cases is a defendant's prior good works, which the Federal Sentencing Guidelines discourage as a sentencing factor but judges in the post-Booker age of reasonableness may pay greater attention to in their sentencing decisions. The President's recent commutation of the sentence of I. Lewis "Scooter" Libby, based in part on his valuable government service, will only increase the likelihood that prior good works will be an important ground for seeking a reduced sentence.
With greater discretion comes the potential for disparity, and in this Article I offer three rules of thumb for trial courts, and appellate courts reviewing the reasonableness of a punishment, to keep in mind when considering whether a defendant's prior good works should be a factor in the sentence. The three rules are: (1) Money matters; (2) Beware the corporate chieftain; and (3) Elected officials violating the public trust should not receive credit for good works.
Some related posts about prior good works at sentencing:
Lastest federal-state head-butting over prior convictions
I noted here last week this article from Boston discussing a brouhaha over a state judge vacating a prior state conviction in an effort to impact federal sentencing realities. The latest twists in the story come from this new Boston Globe story. Here are excerpts:
A prominent federal judge issued an angry rebuke yesterday against his counterpart in the state district court, adding another extraordinary twist in the now failed attempts of a repeat convict to sidestep a lengthy prison term under the career criminal statute.
"It never occurred to me that there could be [such] a deviation from the laws of the Commonwealth," US District Court Judge William Young said at a sentencing hearing. His ire was directed not at the convicted drug dealer before him, but at Quincy District Court Judge Diane E. Moriarty, who last month vacated a previous state conviction against the defendant without prosecutors present. Moriarty's Sept. 24 decision to rescind a previous assault conviction against Matthew West, who was awaiting sentencing on a federal drug charge, would have spared him designation as a career criminal and a longer prison term. According to transcripts, she told West's lawyer to tell his client that "it was an early Christmas present."
While Young never mentioned Moriarty by name, his criticism clearly referred to her decision, which would have reduced West's maximum prison time from 27 years to less than two. Young said it never occurred to him that a state judge would display "so little respect" for court proceedings by ruling without consulting Suffolk County prosecutors. "I confess that having gone over the record, I am guilty of a stunning naïveté," said Young, a Superior Court judge from 1978 to 1985, who sentenced West yesterday to 15 years in prison for his March conviction on two federal counts of distributing cocaine.
The rare public rebuke was the latest development in the topsy-turvy case in which Moriarty rescinded her reversal Tuesday, under pressure from federal prosecutors.... As a result of Moriarty's initial dismissal of the conviction, Young said he would change procedures for sentencing federal defendants who are waiting to see whether they can get minor state convictions thrown out to avoid being labeled career criminals.
Oregon Supreme Court applies Apprendi to consecutive sentences
Providing a great reminder that there are still many unsettled Blakely issues, the Oregon Supreme Court today in State v. Ice, No. S52248 (Ore. Oct. 11, 2007) (available here), holds that the "federal constitution requires that a jury, rather than a judge, find the facts that Oregon law requires be present before a judge can impose consecutive sentences." All Blakely fans should make the time to check out Ice.
The majority's opinion in Ice is cool for many reasons: it has a thoughtful discussion of state constitutional law, it effectively reviews the Apprendi line of cases, and it essentially castigates other state supreme courts for reading Apprendi too narrowly. But the dissent in Ice is also cool: it notes the long tradition of judges deciding whether to impose consecutive or concurrent sentences, it accuses the majority of "extending the rule in Apprendi farther than either the holding or the reasoning in that case warrants," and it documents that nearly every court "that has considered this [consecutive sentencing] question has held that Apprendi does not apply in this context."
Because Ice deepens a split over the reach of Apprendi and Blakely, the case might be viewed as quite cert worthy if Oregon decides to appeal Ice to the US Supreme Court.
Second Circuit revises reversal of above-guideline sentence
As How Appealing notes here, the Second Circuit today issued this revised decision in its important variance case of United States v. Cavera (previously discussed here). I am hopeful that Harlan at the Second Circuit Sentencing Blog will help everyone figure out what's new and extra important in this revised effort.
Split Sixth Circuit ruling upholding large upward variance
A divided Sixth Circuit panel this morning in US v. Smith, No. 06-5681 (6th Cir. Oct. 11, 2007) (available here), upholds a large upward variance. Here is how the majority opinion authored by Judge Griffin begins:
Defendant Ronald Russell Smith pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). After noting that Smith committed the robbery while on supervised release for two other federal felonies, had 22 prior state convictions, and continued to commit crimes while in custody, the district court sentenced him to a term of 132 months of incarceration. The district court considered the advisory Sentencing Guideline range of 46 to 57 months, but concluded that a 132-month sentence was warranted because of defendant’s extraordinary criminal history and exceptional danger to public safety. Defendant now appeals his sentence as being unreasonable. For the reasons set forth below, we affirm Smith’s sentence. In doing so, we hold that defendant’s above-the-Guidelines sentence is both procedurally and substantively reasonable, and thus the district court did not abuse its sentencing discretion.
Here is how the dissenting opinion authored by Judge Cole ends:
[I]n affirming the district court’s sentence as reasonable, the majority has departed from our central task in reviewing sentences–to ensure ‘“a sentence [is] sufficient, but not greater than necessary, to comply with the purposes set forth in’” section 3553(a). Under our “proportionality review,” the record simply does not permit this Court to conduct a meaningful review as to whether an upward variance of 158 percent is proportionate to the instant offense or offender. Had therebeen a fuller explanation from the characteristically thorough, experienced, and competent judge who sentenced the defendant–a defendant who clearly has an extensive criminal past–then my review might have come to a different result.
Getting to the emotional heart of the death penalty
Susan Bandes, who has done a lot of interesting work on law and emotions, has this new piece about the death penalty posted on SSRN. The piece is entitled "The Heart Has its Reasons: Examining the Strange Persistence of the American Death Penalty," and here is the abstract:
The debate about the future of the death penalty often focuses on whether its supporters are animated by instrumental or expressive values, and if the latter, what values the penalty does in fact express, where those values originated, and how deeply entrenched they are. In this article I argue that a more explicit recognition of the emotional sources of support for and opposition to the death penalty will have salutary consequences for the clarity of the debate. The focus on emotional variables reveals that the demarcation between instrumental and expressive values is porous; both types of values are informed (or uninformed) by fear, outrage, compassion, selective empathy and other emotional attitudes. More fundamentally, though history, culture and politics are essential aspects of the discussion, the resilience of the death penalty cannot be adequately understood when the affect is stripped from explanations for its support. Ultimately, the death penalty will not die without a societal change of heart.
A defendant a bit too motivated to present mitigating evidence
A friendly reader sent me a link to this interesting local story discussing a recent development about a federal sentencing proceeding in Arkansas. Here are the highlights:
A motivational speaker accused of filming girls as they undressed and downloading images of infant rape submitted forged letters of support in an attempt to reduce his prison sentence, a federal judge found Tuesday. The ruling could mean tougher punishment for Michael V. Fortino, a Pittsburgh man who was arrested on child pornography charges in 2005 after a speaking engagement in Fayetteville.
Fortino, 47, was sentenced last week in U. S. District Court to 11 years and three months in prison then 20 years of supervised release after entering a plea agreement charging him with one count of transmitting child pornography across state lines. Prosecutors and probation officers, who conducted pre-sentencing investigations, had asked for leniency, saying Fortino had accepted responsibility for his actions and had cooperated with investigators.
But last week, the U. S. attorney’s office filed a motion to vacate the sentence after receiving information that led them to believe that two letters, including one supposedly written by the father of a girl who had been secretly taped, were fake. Judge Jimm L. Hendren said that had the court known Fortino submitted fraudulent letters, his sentence likely would have been harsher.
October 10, 2007
Does the Blakely Five really care about sentencing procedures?
One of many reasons I thought Blakely was so important was because it suggested that five Justices really cared about procedural rights in modern sentencing schemes. But, as Steve Sady highlights in this recent post, the Supreme Court continues to deny cert on many issues that seek to follow-up on Blakely's promise to champion "adversarial testing" over "judicial inquisition" at sentencing.
Of course, the Booker remedy seriously undercut efforts to champion "adversarial testing" over "judicial inquisition" at sentencing. Nevertheless, a range of follow-up Booker issues, ranging from the proper burden of proof at sentencing to acquitted conduct enhancements to judicial fact-finding to revoke supervised release, all present fresh and important opportunities for the Blakely Justices to champion again "longstanding tenets of common-law criminal jurisprudence." Sadly, though, more than 3 years after Blakely, we are still awaiting the Court to fulfill Blakely's promised commitment to robust procedure justice at sentencing.
A lengthy argument in Medellin
As reports from SCOTUSblog and the AP highlight, the Medellin case argued today before the Supreme Court gave the Justices plenty to think (and talk) about. The full transcript of today's oral argument is available here, and it runs 40 pages longer than most.
New paper on increasing prison sentences
I just got an e-mail alerting me to this new short article by Marc Mauer in the journal Social Research. The article is entitled "The Hidden Problem of Time Served in Prison," and here is what the e-mail tells me about the article:
[This article] addresses one of the key factors contributing to the rising rate of incarceration in the United States - the increasing length of prison sentences. As a result of such policies as mandatory sentencing, "three strikes and you're out," and cutbacks in parole eligibility, the average time served in prison before first release rose by 32% in the 1990s, according to Department of Justice data.
Lengthening prison terms is problematic for several reasons:
- Increasing time served does not reduce recidivism
- Longer prison terms are expensive and erode community ties
- Increasing time served does not contribute to general deterrence
The commentary also suggests reforms in sentencing policy and practice that could scale back the length of prison terms without causing any negative consequences for public safety.
Can we be sure Martians are against capital punishment?
As Wikipedia notes here, the term "world" can reference just the Earth or the entire universe. Because I suspect that the organizers of today's "World Day Against the Death Penalty" are eager to give the term its broadest meaning, I am left wondering how we would know if life on other planets might be for or against capital punishment. (Of course, if there is the death penalty on other planets, I suppose the certain terrestrial prison officials will be eager to find out if any aliens have devised an execution technology superior to lethal injection.)
Astrophysics and metaphysics aside, I suppose it is fitting that the Supreme Court is honoring this worldly day by hearing oral argument in Medellin v. Texas (06-984), a capital case examining the President's power to direct Texas courts to comply with a judgment of the World Court concerning the Vienna Convention on Consular Relations. SCOTUSwiki has effective coverage of the case here.
The evolution of Justice Thomas and the wonderful nuance of sentencing law
As noted by Howard Bashman and Orin Kerr, the folks at Bloggingheads.tv have produced this amazing segment with Dahlia Lithwick and Jan Crawford Greenburg discussing Justice Clarence Thomas's new book and partisan dynamics surrounding coverage of Supreme Court. Anyone interested in the Court/Justices or the legal media/blogging must find time to listen to the whole segment.
Among many themes developed are (1) the seemingly limited evolution of Clarence Thomas as a Justice, and (2) the constant politicization of Court coverage. As is my tendency, my first reaction is "But everyone is failing to pay enough attention to sentencing!" If Lithwick and Greenburg and others would all just become Blakely/Booker people, they could add so much more nuance and insight to these important issues.
First, consider Justice Thomas: he evolved (quite rapidly) concerning his understanding of the Sixth Amendment. In 1998, he provided the fifth vote in Almendarez-Torres for what would become the "prior conviction" exception to the Apprendi rule. But, by 2000 in Apprendi, Justice Thomas became perhaps the most ardent and vocal advocate for a broad reading of the Sixth Amendment.
Second, consider politicized debates: sentencing cases regularly defy the usual left-right tripe. Consider, for example, the Court's work last term in Cunningham, which split the new Justices with the Chief joining the Blakely five and Justice Alito authoring a strong dissent. Or how about James, which led to Justice Alito (for an unusual majority coalition) and Justice Scalia to trading barbs over statutory interpretation.
Another strong piece about race and justice
Writing in the National Journal, Stuart Taylor has this effective piece entitled "Criminal Injustice And Race." Here are some highlights:
[T]he heart of the racial injustice in our penal system is the grossly excessive punishment of hundreds of thousands of nonviolent, disproportionately black offenders whose long prison terms ruin countless lives and turn many who could have become productive citizens into career criminals.
The Supreme Court heard two cases on October 2 that focus on a relatively small piece of this problem: how much discretion federal district judges have to depart from federal sentencing guidelines that provide savagely severe prison terms for small-time drug offenders, among others. The most savage penalties of all are for people -- overwhelmingly, black people -- caught with fairly small amounts of crack cocaine.
But the justices, hemmed in by wrongheaded mandatory sentencing laws, are merely rearranging deck chairs on the Titanic, no matter how they rule. Nothing that the Court will ever do could make much of a dent in the overly punitive regime that has sent the number of prisoners in this country soaring to 2.2 million, more than in any other nation. This represents more than a sixfold increase in the number of incarcerated Americans since 1970, when it was 330,000. More than 40 percent of these prisoners are black. And according to a recent study by the nonprofit Sentencing Project, 500,000 of the 2.2 million are locked up for drug crimes, and a majority of the convicted drug prisoners have no history of violence or high-level drug-selling....
Our penal system visits these dire consequences on a staggeringly high percentage of the African-American population. More than 22 percent of all black men in their early 30s and more than half of the subset who dropped out of high school have spent time behind bars. These percentages are far higher than they were during the worst era of American apartheid.
Is this situation the fault of white racism? Well, the main reason that an overly punitive system has such a severe effect on black men is that they commit hugely disproportionate numbers of crimes. As The Economist points out, "Young black men are seven times more likely to be jailed than whites, but they are also seven times more likely to murder someone, and their victims are usually black." The absurdly excessive penalties for possessing or selling crack cocaine could be seen as evidence that many white voters and legislators are subconsciously more willing to throw away the lives of small-time black offenders than small-time white offenders. You can call that racism, but only by stretching the word....
In short, focusing mainly on the residue of racism is a distraction from the far bigger problem of over-punishment. It is also a distraction from understanding why African-American crime rates are so high.
Some recent related posts:
October 9, 2007
Advice for the Justices on Gall
Greg Poe and Brian Willen have this short article on Gall in the current issues of Legal Times. The piece is entitled "Tailored To the Crime: Sentencing case shows need to defend judicial discretion," and it concludes with this sound tripartite advice to the Justices:
First, there should be no thumb on the scale in favor of a guideline sentence. Although the judge must consider the advisory guideline range, that range is not to be treated as a tether. Congress has set out a variety of factors to guide courts in sentencing. Judges must assess those factors and articulate how any particular sentence would advance the legislative goals.
Second, the sentence ultimately imposed, whether inside or outside of the guideline range, should be entitled to substantial deference on appeal as long as the district court follows correct procedures and articulates substantial reasons for the sentence. Such deference recognizes a trial judge’s superior ability to assess the facts and circumstances of each case. But deference is not abdication, and appellate review would allow true outlier sentences to be corrected.
Third, judges must respect the statutory command to impose a sentence “sufficient, but not greater than necessary” to achieve specified purposes of punishment. This “parsimony principle,” which traces back to Montesquieu, has been a central maxim in American criminology since the framing of the Constitution.
Notable aspect of the oral argument in Watson
The transcript from today's SCOTUS oral argument in Watson v. United States (06-571) in now available here. As well previewed in this article from the Christian Science Monitor, the facts are a bit more engaging that the legal issue raised by a sentence enhancement from a gun-for-drug transaction.
The transcript is an interesting read, though what stood out for me was how Justice Breyer (and even Justice Ginsburg) seemed so eager to stretch the applicable federal statutes to find a way to skunk the defendant, while Justice Scalia (and also Chief Justice Roberts) seemed most troubled by the government's arguments.