November 10, 2007
Does reefer no longer inspire madness?
Time magazine has this interesting new article entitled "Mellowing Out on Marijuana." Here is how it starts:
Those Rocky Mountains are getting higher. Two municipalities — Denver, Colorado, and the small town of Hailey, Idaho — passed pro-marijuana measures on election day this week, joining a growing number of liberal localities that are reducing or removing penalities on using pot. It's part of a slowly evolving populist rehabilitation of the drug. San Francisco, Oakland and Santa Monica in California, along with Missoula, Montana, and Seattle, Washington, have previously passed laws that give the lowest priority to enforcing existing marijuana laws.
Federal regulations, which supercede local ordinances, continue to prescribe heavy penalties — even in some cases death — for major dealers of illegal drugs, including marijuana. The federal penalty for possession of even a miniscule amount is a misdemeanor punishable by one year in prison and $1,000. Penalties are higher with cultivation, sale and crossing state lines. However, magistrates generally use state and local laws as sentencing guidelines — unless there is federal intervention, which doesn't occur in every drug case because they would increase court time and costs.
Federal judge adds banishment as sentencing provision
According to this piece in the Boston Globe, a federal district judge included banishment in the set of sentencing terms imposed upon a set of drug dealers:
A federal judge sent a message to three reputed gang-bangers who pleaded guilty yesterday to dealing cocaine: Get out and stay out.
In an unprecedented ruling, U.S. District Court Judge William Young told the three men who allegedly terrorized the Bromley-Heath projects in Jamaica Plain that after serving their prison sentences they would be banned from moving back to Boston for an additional 12 years, U.S. Attorney Michael Sullivan said yesterday. “We have never seen this happen before,” Sullivan said. “The judge was persuaded to separate them from the people they influence.”...
Young’s ruling to keep the three thugs out of Suffolk County for a dozen years after they are released from prison is meant to prevent them from returning here as crowned gang heroes....
Some related posts on other banishment sentences:
Vermont Supreme Court limits retroactivity of its Blakely ruling
As detailed in this AP story, the Vermont Supreme Court "ruled yesterday that a 2005 decision that found Vermont's laws on sentencing murderers unconstitutional did not apply to a long list of killers sentenced before it was issued." This ruling came in State v. White, 2007 VT 113 (Nov. 9, 2007) (available here), and White is an especially interesting read now that the US Supreme Court is considering state retroactivity authority in the Danforth case (discussed here and here and here).
November 9, 2007
Great JPI briefs on public safety research
I just noticed at this website that the Justice Policy Institute has now released three effective briefs in its "Series on Public Safety." Here are the basics (with links) on the briefs in the series:
Housing and Public Safety shows that increased availability of housing is associated with positive public safety outcomes. The first in the series, Education and Public Safety, was released in August. The second in the series, Employment, Wages and Public Safety was released in October.
Some long weekend reading thanks to SSRN
Federal courts are closed on Monday, which give folks a extra day to check out some of these new pieces recently posted on SSRN:
- Sarbanes-Oxley's Purported Over-Criminalization of Corporate Offenders by Lisa H. Nicholson
- The Sentencing Theory Debate: Convergence in Outcomes, Divergence in Reasoning by Malcolm Thorburn & Allan Manson
- Hyperbolic Criminals and Repeated Time-Inconsistent Misconduct by Manuel A. Utset
Wondering about any amicus briefs in Baze
As noted in this post, the defendants in Baze filed earlier this week their brief on the merits asserting that "Kentucky's three-drug lethal injection protocol violates [a] bedrock Eighth Amendment requirement." I believe amici generally have to file SCOTUS briefs at the same time as the side they support, and thus I had expected we would see some Baze amicus briefs from anti-death penalty groups making the rounds this week. But, as of this writing, I have not seen or heard about any amici briefs filed in Baze. Do any readers know of any additional Baze filings?
UPDATE: A helpful reader reminded me that I was not up on the latest new SCOTUS rules. Here is the friendly e-mail that showed me the light:
The Court's rule governing amicus briefs, Rule 37, was amended earlier this year (and effective Oct. 1) to change the due date for amicus briefs to seven days after the filing of the merits brief for the party the amicus is supporting. So, the due date is next Tuesday, Nov. 13 (because Monday is a holiday).
In other words, next week is when we will hear from friends with views on the death penalty.
Is NJ on the verge of repealing its (dormant) death penalty?
The news from New Jersey is that the state may be on the verge of legislatively repealing its (never used) death penalty:
The Assembly will vote next month on legislation to repeal New Jersey's never-used death penalty, Speaker Joseph Roberts (D-Camden) said today, adding he is "cautiously optimistic" the bill will pass.
At a Statehouse news conference with Sister Helen Prejean, whose ministry to death row inmates was described in her book "Dead Man Walking," Roberts said he is committed to making New Jersey "the first state to legislatively repeal the death penalty." With support for capital punishment waning nationally, such a move would make New Jersey "a beacon on the hill" that other states will follow, Prejean predicted. "I know you're known as the Garden State; it's going to be great to also be known as the life state," said Prejean, who has made a dozen trips to New Jersey to urge repeal of the death penalty.
Roberts said the Assembly will take up a bill (A-3716) by Assemblyman Wilfredo Caraballo (D-Essex) that would replace capital punishment with life imprisonment without the possibility of parole. "The bottom line of that bill is to lock murderers in jail and throw away the key," Roberts said. "The cost of having a death penalty that never gets used can no longer be tolerated."
Though I am sure abolitionist will welcome this news, anyone concerned about over-punishment should be hesitant about praising these developments. I believe the New Jersey abolition bill may, as discussed here, expand the number of persons subject to mandatory life without parole. Especially given the reality that no defendant has been executed in New Jersey in modern times, I believe the abolition movement in New Jersey, if successful, could actually be ushering in a harsher set of punishments in the Garden State.
Some related posts on New Jersey's capital punishment debate:
What will AG Mukasey do about federal sentencing policy?
As detailed in this New York Times article, the "Senate confirmed Michael B. Mukasey as attorney general Thursday night, approving him despite Democratic criticism that he had failed to take an unequivocal stance against the torture of terrorism detainees." As the article further explains, the "53-to-40 vote made Mr. Mukasey, a former federal judge, the third person to head the Justice Department during the tenure of President Bush, placing him in charge of an agency that members of both parties say suffered under the leadership of Alberto R. Gonzales."
As noted here, there was very little sentencing talk at Mukasey's confirmation hearings. But, Mukasey now takes over the Justice Department at a time when possible Booker fixes, crack sentences, mandatory minimums, federal death penalty policy, lethal injection litigation, extreme sentences for white-collar and non-violent offenses and national sex offender policies all are ripe topics for DOJ leadership. It will be very interesting to see if he does anything consequential in these areas over the next year.
Some related posts (asking lots of questions):
- Any thoughts about Mukasey as the new AG?
- What might AG-nominee Mukasey mean for federal sentencing?
- Any serious sentencing talk at the Mukasey hearings?
- Could all the changes at DOJ lead to changes in the post-Booker landscape?
November 8, 2007
Rep. Rangel assails selective compassion
Writing at the Huffington Post, Representative Charles Rangel from New York has this potent new commentary noting the willingness of prominent Republicans to forgive friends but not others for legal wrong-doings. Here are highlights from an effective piece:
Fred Thompson seems to think forgiveness is one of his strong suits. The Republican presidential aspirant recently brushed off news that one of his campaign co-chairmen, Phil Martin, posted a guilty plea in 1979 for selling 11 pounds of marijuana and a no-contest plea in 1983 for cocaine trafficking and conspiracy.... Not to be outdone, Rudy Giuliani, the former New York City mayor running for the Republican presidential nomination, has excused the illegal dealings of Bernard Kerik, Giuliani's former police commissioner whose nomination to become secretary of the Department of Homeland Security he supported....
Even before them, President George Bush commuted the 30-month prison sentence of Lewis "Scooter" Libby who had been convicted of perjury, obstruction of justice and lying to investigators in the probe of the leak of the name of a CIA operative. In another case of compassion and forgiveness of the powerful, the President claimed that Libby's sentence was "excessive," and that the suffering of the former aid to Vice President Cheney "long-lasting."
Thompson, Giuliani, and Bush have proven that they're willing to forgive millionaires and the powerful for big mistakes. Libby is one of the few exception to Bush's stinginess with forgiveness of prisons -- on pace to issue the fewest pardons since George Washington. If either Thompson or Giuliani become president, I just hope they'll extend the same compassion to wayward kids in my community who have run-ins with the law that they've shown to their friends....
The criminal justice system certainly hasn't been forgiving over the past 20 years. In response to the onslaught of cocaine abuse in the 1980s, the nation crafted a drug policy totally lacking in compassion, and worse, that was totally unfair to the weakest, and most disadvantaged, in society....
The inequality is feeding the population of 2.2 million prisoners, the world's largest. Blacks, who are most likely to be caught up in drug sweeps, comprise only 15 percent of users but account for over 40 percent of the 500,000 imprisoned drug offenders....
President Bush and presidential wannabes Thompson and Giuliani seem to find it so easy to find compassion when one of their own breaks the law. But they are silent when the poor and powerless are warehoused in our jails because of an unjust criminal justice system.
More of the crack facts and retroactivity arguments
The latest issue of Time has this article on the new crack guidelines, which includes this effective analysis of what's happening:
Drug dealers are bad guys, but even they should be treated fairly. That's why advocates of sentencing reform are cheering a recent federal move to narrow the jaw-dropping disparity in sentences for trafficking in two versions of the same drug, cocaine. But it's way too early for them to be declaring victory... [W]hile the new guidelines have reduced the penalties above the mandatory minimums, those minimums are still firmly in place....
What's more, even the changes in the guidelines will have only a limited effect unless the sentencing commission makes them retroactive — an issue it is expected to discuss at a Nov. 13 meeting. As of now, the new guidelines will affect only new offenders. If the commission decides to go retro, the move could shorten the prison terms for some 19,500 inmates by an average of 27 months.
On the "retro" front, the Sentencing Commission has now made available here some of the comments it has received from "the judiciary, the executive branch, interested organizations, members of the defense bar, and individual citizens." I especially liked Judge Richard Kopf's to-the-point pitch for retroactivity:
I urge the Commission to make the "crack" amendments to the Guidelines retroactive. Even though that will mean more work for judges, every conception of justice of which I am aware justifies such an action.
On its main webpage, the USSC also notes that it "received more than 33,000 letters from individuals expressing their views on retroactivity." Next week's USSC hearing on these issues ought to be a doozy.
Some recent related posts:
- USSC sets agenda for crack amendment retroactivity hearing
- Judicial Conference urges retroactivity of new crack guidelines
- DOJ and FPD advocacy to the USSC about crack amendment retroactivity
- Is there any principled basis for DOJ opposition to the crack amendment being retroactive?
- Debate over retroactive application of new crack guidelines
- USSC analysis on potential crack amendment retroactivity impact
- Latest FSR issue covers crack sentencing
Another report tentatively praising faith-based prisons
Thanks to this post at Corrections Sentencing, I discovered this relatively new report from the Urban Institute entitled "Evaluation of Florida's Faith- and Character-Based Institutions." The report provides a detailed account of Florida' "FCBIs" along with some cautious praise. Here are some snippets from the executive summary:
In addition to traditional solutions such as education and vocational training, corrections officials are increasingly implementing faith-based models, as well as secular programs that emphasize moral development and character building. Florida is one of many states to follow this trend, but set itself apart from other corrections agencies when, on Christmas Eve 2003, it opened the first state-operated correctional institution dedicated exclusively to a faith- and character-based approach to rehabilitation.
The findings and recommendations outlined below — and explored in detail throughout this report — highlight the results of a process and impact evaluation conducted by the Urban Institute of two of Florida’s Faith- and Character-Based Correctional Institutions (FCBIs)...
Staff, inmates, and volunteers overwhelmingly find value in the FCBI model and believe that it is achieving its goals of changing inmate behaviors, preparing inmates for successful reentry, and ultimately reducing recidivism. Respondents feel that, in particular, the FCBI experience helps promote family reunification and employment prospects upon release, while also improving the prison environment for inmates, volunteers, and staff. That these successes are achieved in large part through volunteer resources from the private and non-profit sectors is cited as both a cost savings to FDOC and an asset to the model, as some respondents indicate that volunteers can provide more effective, dynamic services than those the state is able to offer....
FDOC should be cautiously optimistic about the impact of FCBIs on reoffending behaviors, particularly given the potential cost savings associated with the volunteer-led program offerings. Indeed, it is possible that inmates across FDOC facilities could benefit from volunteer-run self-betterment programs that are virtually budget neutral. However, corrections officials may also wish to replicate the impact analysis reported in this document in a year’s time, when the sample sizes are more likely to yield results in which they can have increased confidence.
Some related posts on faith-based prison programs:
- Is faith the best thing to happen to prisons since ... the faithful started prisons?
- Interesting Ohio report on correctional faith-based initiatives
- The virtues of faith-based prisons
- Interesting examination of faith-based prison movement
- A thoughtful, but disappointing, attack on a faith-based prison program
- Religion, sentencing and corrections
- Having faith in prisons
USSC holding a public briefing on incarceration alternatives
I am intrigued to see a notice on the US Sentencing Commission's website indicating that the Commission has scheduled a "public briefing session" for next Wednesday morning. According to this agenda, the focus of the public briefing is "Alternatives to Incarceration" and will include presentations by Commission Staff and by Margaret Colgate Love, Director, American Bar Association, Commission on Effective Criminal Sanctions.
Florida Supreme Court denies execution stay
Providing the Supreme Court with yet another opportunity to stay (or not stay) an execution while the Baze case is pending, the Florida Supreme Court yesterday denied a stay a defendant scheduled to be executed next week. Here are details from this coverage in the Orlando Sentinel:
The Florida Supreme Court on Wednesday rejected another request to postpone the execution of Mark Dean Schwab, the child killer scheduled to die Nov. 15. Justice Barbara J. Pariente wrote in an opinion issued in Tallahassee that it should be up to the U.S. Supreme Court to issue Schwab a stay if it intends to impose "a de facto moratorium on the death penalty."...
Although Pariente noted in the opinion that courts can't tell legislators what to do, she recommended they explore using other drugs that may carry "less risk of pain" for the condemned than the pancuronium bromide and potassium chloride now used. Pancuronium bromide is used to stop an inmate's breathing, while potassium chloride stops the heart.
Two justices -- Harry Lee Anstead and Peggy Quince -- dissented from the majority of the court. Anstead wrote that a stay "will result in no detriment to the state" because Florida would be free to execute inmates after the U.S. Supreme Court renders its decision in the Kentucky case.
Yesterday's Florida Supreme Court ruling can be accessed at this link.
Paroling the elderly
This morning's New York Times has this interesting article about New York's decision to parole the state's oldest inmate. Here is how it starts:
A panel of the State Parole Board voted 2 to 1 yesterday to release Charles E. Friedgood, a wealthy Long Island surgeon who was convicted in 1976 of murdering his ailing wife and who is now, at 89, the oldest state prison inmate in New York. He is expected to be freed in mid-December and admitted to a veterans’ hospital.
Reversing a ruling announced on Oct. 10 by a panel of three other parole commissioners, the majority concluded yesterday, “There is reasonable probability that, if released, this inmate will live and remain at liberty without violating the law.”
November 7, 2007
Mass SJC gives force to due process and fundamental fairness at sentencing
As noted by How Appealing and explained in this Boston Globe article, yesterday the Supreme Judicial Court of Massachusetts concluded in State v. Ly that the "execution of the defendant's sentences, after an unexplained delay of sixteen years on the part of the Commonwealth to have the sentences executed, would violate due process and principles of fundamental fairness." Here are passages from the ruling (with some cites omitted):
It is a basic principle that a defendant sentenced to incarceration has a due process right to serve the sentence promptly and continuously, rather than "in installments." White v. Pearlman, 42 F.2d 788, 789 (10th Cir. 1930) (premature release). Otherwise, "[a] prisoner sentenced for one year might thus be required to wait forty under the shadow of his unserved sentence before it pleases the marshal to incarcerate him." Smith v. Swope, 91 F.2d 260, 262 (9th Cir. 1937) (unexecuted sentence). Consistent with these cases is the proposition that the execution of a defendant's sentence, including one which has been stayed pending the resolution of an appeal, as a matter of fundamental fairness, must be pursued with reasonable diligence. We conclude that requiring the defendant to serve his sentences, at this point in time and on these facts, would violate the concept of fundamental fairness that is at the core of due process. See State v. Roberts, 568 So. 2d 1017, 1019 (La. 1990) (due process and fundamental fairness required release of prisoner [on parole] when government failed to execute sentence for six years). Other courts considering circumstances like this have reached the same result based on different theories....
This court addressed at length, in Aime v. Commonwealth, 414 Mass. 667, 673-675 (1993), key differences between the constitutional protections against improper governmental action known as "substantive due process" and "procedural due process." We have decided this case under a traditional procedural due process analysis, similar to that used in determining whether a defendant has been denied the constitutional right to a speedy trial. We need not decide, therefore, whether incarcerating the defendant (at this point in time and on these facts) would "shock the conscience," thereby violating his right to substantive due process as well.
Seventh Circuit finds "fairly pernicious scrivener’s error" in presumptively reasonable guidelines
Even a circuit generally eager to praise the reasonableness of the sentencing guidelines cannot always avoid acknowledging their flaws. Today, for example, the Seventh Circuit vacates a within-guideline sentence in US v. England, No. 06-2381 (7th Cir. Nov. 7, 2007) (available here), although the panel does not declare the imposed sentence unreasonable. Rather, the sentence is vacated because the district court did not assess possible sentencing disparities resulting from following the guidelines in an quirky case in which "it appears that the Sentencing Guidelines might have a fairly pernicious scrivener’s error."
Eighth Circuit shows yet again that within-guideline sentences are essentially per se reasonable
I was hopeful — though not especially optimistic — that circuit courts would review within-guideline sentences with a bit more rigor after Rita. But today's Eighth Circuit ruling in US v. Otterson, No. 06-3555 (8th Cir. Nov. 7, 2007) (available here), reveals yet again that some circuits view any within-guideline sentence as essentially per se reasonable.
In Otterson, the defendant was sentenced to just under 20 years' imprisonment after pleading guilty to sending child porn to an undercover officer posing as a thirteen-year-old girl. At sentencing,
Otterson emphasized the fact that he came from a troubled home, he was the victim of sexual abuse, his father sexually abused his sisters, and his mother was committed for mental health issues while Otterson was still a minor. He discussed his own well-documented history of physical and mental disabilities, including the fact that he suffered from Bell’s palsy which, together with other conditions, Otterson claimed made social contact difficult and ensured he lived essentially as a hermit. Finally, he admitted that he had been using drugs at the time of the offense.
Otterson argued primarily that his social history and physical and mental infirmities provided justification for a lower sentence. He also argued that because he did not actually produce child pornography or physically touch any children related to the present offense, his sentence should not be at the top of the Guidelines range. Finally, he argued that his criminal history was overstated given his characterization of his prior property offenses as minor and his light sentence on the Missouri sex crime charge.
In response, "the district court imposed the sentence of 235 months [the top of the 188-235 guideline range] to be followed by supervised relief [sic] for life." To justify this outcome,
the district court specifically stated its view as to the severity of the offense, referenced the sadistic and masochistic nature of the materials, and referenced Otterson’s online discussions with the undercover officer who posed as a thirteen-year-old girl. The district court stated the sentence was appropriate “to address the sentencing objectives of just punishment, general deterrence, and incapacitation.” The district court did not expressly address other factors under 18 U.S.C. § 3553(a) or discuss the issues Otterson raised as mitigating factors.
On this record, the Eighth Circuit panel rejects the defendant's reasonableness challenge. It asserts simply that all the mitigating issues raised by Otterson "were clearly presented to the court in the PSR and at the sentencing hearing and are accounted for in the undisputed Guidelines range."
As an initial matter, I do not quite understand the basis for the panel's assertion that Otterson's mental and physical condition and his social history "are accounted for" in the Guideline range. The guidelines do not provide any mitigating adjustments for any of these factors. Though a judge might reach a reasoned conclusion not to reduce a sentence based on these factors under § 3553(a), Rita stresses that, even when giving a guideline sentence, a judge should "explain why he has rejected those arguments" put forward by defendants for a different sentence. The district court's silence in this case does not seem to me to be an adequate explanation in light of Rita.
Moreover, and perhaps even more disturbing, neither the district court or the Eighth Circuit panel explained why they view as "sufficient but not greater than necessary" for Otterson a prison sentence of 235 months (at the top of the applicable guideline range), instead of a sentence of, say, 188 months (at the bottom of the range). Despite making numerous non-frivolous mitigating argument, Otterson was given four more years in prison than the (presumptively reasonable) guideline range demands, and it is hard for him or anyone else to understand exactly why.
Denver voters approve initiative busting up pot busts
The Denver Post reports here on the results of an interesting criminal justice initiative that appears to have been passed by city voters:
More than half of Denver voters favored an initiative making marijuana the city's lowest law enforcement priority. With just a handful of ballots left to count, the measure had captured 55 percent of the vote. The result means the mayor must appoint a panel to monitor how marijuana cases are handled by the police and city prosecutors and issue a report.
"It appears as if it is going to pass, and it shows there is a wealth of support around the city," said Mason Tvert, campaign director of Safer Alternative For Enjoyable Recreation, the group behind the initiative. Tvert says the measure was motivated by what he says are overzealous police who continue to cite adults for possessing under an ounce of marijuana despite a law that allows simple pot possession in Denver.
Denver police and prosecutors say possessing marijuana still violates state and federal laws. A spokeswoman for Denver Mayor John Hickenlooper has said that enforcement of laws governing small amounts of marijuana is already a low priority.
Similar initiatives passed in Seattle in 2003 and in Missoula, Mont. last year. Seattle's marijuana panel reported that marijuana prosecutions and arrests are down, but Seattle's city attorney says the group cannot agree whether the initiative caused the drop. In Missoula, the city attorney has told prosecutors in his office not to pursue simple marijuana possession cases involving adults.
I love that the acronym for this campaign was SAFER, but wouldn't Really Excited Enthusiasts For Enjoyable Recreation have been a more appropriate name for the group? Also, would we have expected any other result from the Mile High City?
More seriously, I am intrigued by various efforts to wage populist counter-attacks on the war on drugs through the initiative process. I wonder if anyone is working on these ideas for the big 2008 election cycle.
USSC sets agenda for crack amendment retroactivity hearing
Over at its website, the US Sentencing Commission has posted this planned agenda for the public hearing scheduled for November 13 at Georgetown University Law Center concerning whether its amendments reducing the crack guidelines should be applied retroactively to previously sentenced defendants. The agenda suggests that this USSChearing should be a quite an event, with 18 speakers scheduled to speak (most of whom, I believe, will be advocating retroactivity).
Some recent related posts:
- Judicial Conference urges retroactivity of new crack guidelines
- DOJ and FPD advocacy to the USSC about crack amendment retroactivity
- Is there any principled basis for DOJ opposition to the crack amendment being retroactive?
- The Sentencing Project urges retroactivity of USSC crack amendment
- Debate over retroactive application of new crack guidelines
- USSC analysis on potential crack amendment retroactivity impact
- ABA makes pitch for USSC crack amendments to be made retroactive
- Latest FSR issue covers crack sentencing
NY Times editorial pushing Second Chance Act
This morning's New York Times has this editorial entitled "A Second Chance for Ex-Offenders." Here are excerpts:
If past patterns hold true, more than half of the 650,000 prisoners released this year will be back behind bars by 2010. With the prison population exploding and the price of incarceration now topping $60 billion a year, states are rightly focusing on ways to reduce recidivism. Congress can give these efforts a boost by passing the Second Chance Act, which would provide crucial help to people who have paid their debts to society....
The Second Chance Act would add to what the country knows about the re-entry process by establishing a federal re-entry task force, along with a national resource center to collect and disseminate information about proven programs.... The programs necessary to help former prisoners find a place in society do not exist in most communities. The Second Chance Act would help to create those programs by providing money, training, technical assistance — and a Congressional stamp of approval.
It is sad but telling that the Second Chance Act has not yet become a reality even though it has had bipartisan support since President Bush in his 2004 State of the Union address spoke passionately about the importance of showing compassion (and providing job training and placement services) to convicted offenders because "America is the land of second chance."
Some related posts discussing the Second Chance Act:
November 6, 2007
Crunching the numbers on a presumption of reasonablenss
I was very pleased to learn of this new article on SSRN, which examines empirically the impact of the presumption of reasonableness for within-guideline sentences. The article by Alex Robbins and Lynda Lao is entitled "The Effect of Presumptions: An Empirical Examination of Inter-Circuit Sentencing Disparities After United States v. Booker," and here is the full abstract:
In the two years since United States v. Booker, the circuits have divided over how to use the Federal Criminal Sentencing Guidelines when reviewing sentences imposed by district courts. Seven circuits have held that a sentence within the Guidelines range is entitled to a presumption of reasonableness on appeal; five have held that it is not. Although the Supreme Court's recent holding in Rita v. United States allows the courts of appeals to adopt a presumption of reasonableness for within-Guidelines sentences, it does not require them to, and so the circuit split remains.
Using this circuit split as a natural experiment, we undertake what we believe to be the first statistically robust analysis of the effect of a presumption of reasonableness on sentences imposed at the federal district court level. Specifically, using 145,047 individual-level observations recorded by the United States Sentencing Commission (comprising all recorded federal sentences in all twelve circuits for a one-year period beginning in November 2004 and ending in October 2006), we perform a multivariate regression analysis to determine how a circuit's adoption or rejection of a presumption of reasonableness for within-Guidelines sentences affects the frequency with which district courts impose below-Guidelines sentences. We find that a circuit's adoption of a presumption of reasonableness decreases the frequency of below-Guidelines sentences by less than one percent, although this result is statistically significant.
Our results do not, however, robustly support the inverse hypothesis that a circuit's rejection of a presumption of reasonableness increases the frequency of below-Guidelines sentences. The effect of such a rejection is insignificant when we control for circuit-specific fixed effects, and appears to be driven almost entirely by the particular behavior of the Second Circuit. Finally, we are similarly unable to find robust empirical support for the hypothesis that intercircuit differences in sentencing after Booker can be explained simply by a circuit's underlying characteristics.
November 6, 2007 in Advisory Sentencing Guidelines, Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Rita reactions, Sentences Reconsidered | Permalink | Comments (1) | TrackBack
Virginia Supreme Court rejects reliance on penile plethysmograph in presentence report
Regular readers know from prior posts here and here, the use of penile plethysmography (PPG) has generated a number of notable legal disputes. And, thanks to this post at AL&P, I see that the Virginia Supreme Court last week issued this interesting ruling in Billips v. Virginia concerning "the admissibility of opinion evidence based upon plethysmograph testing at a sentencing proceeding." (We all had to know this issue would come up in Virginia given the state's legendary slogan.)
The two opinions in Billips have various interesting aspects, and this section of the concurring opinion highlights that Billips majority perhaps can be read to support an argument for defendant's receiving full trial protections at sentencings:
The majority’s holding is particularly troublesome to me because, in this case, we are concerned only with the admissibility of evidence contained in a pre-sentence report prepared in accordance with the provisions of Code §§ 19.2-299 and –300. Such a pre-sentence report is considered only by a trial court in its sentencing decision. The majority applies the evidentiary rule set forth in Spencer even though there is a relaxed standard governing admissibility of evidence contained in a presentence report.
Some related prior posts:
Hate crime enhancements and the pressures to plea
A helpful readers alerted me to this fascinating article from the New York Times discussing a notable case that raises a lot of notable sentencing issues. Here are snippets:
In a case that has drawn intense scrutiny to the legal meaning of hatred, the last of four young men charged with selecting a gay man as a robbery target and chasing him to his death in traffic pleaded guilty yesterday to manslaughter and attempted robbery as hate crimes.
The defendant, Ilya Shurov, 21, agreed to serve 17 1/2 years in prison. In exchange, prosecutors dropped charges of felony murder as a hate crime, which could have meant a life sentence. “If there was no life sentence,” said a defense lawyer, Hermann P. Walz, “we would have rolled the dice.”...
The victim, Michael J. Sandy, 29, a designer from Williamsburg, was lured from his home to a secluded lot in Sheepshead Bay on Oct. 8, 2006. He was directed to a beach known as a meeting place for gay sex, then beaten and chased into traffic. He was struck by a car and later died of his injuries.... Prosecutors accused four men of hate crimes, a distinction that can extend prison sentences.
In pretrial hearings, defense lawyers argued that no evidence showed that the defendants harbored any real animosity toward homosexuals. Prosecutors countered that the defendants had selected Mr. Sandy as a robbery target believing a gay man would offer little resistance and hesitate to report the crime.
Justice Jill Konviser-Levine, who had helped draft the state hate crime law as a senior assistant counsel to Gov. George E. Pataki, allowed the charges to stand. She rejected a defense argument that the law was unconstitutionally vague. “The statute provides clear standards for enforcement,” she wrote, “in that it does not permit a hate crime to be charged merely because a victim happens to possess a trait protected by the statute.”
One defendant, Gary Timmins, 17, pleaded guilty to attempted robbery as a hate crime and accepted a sentence of four years in exchange for testifying against his friends. Two others, Anthony Fortunato, 21, and John Fox, 20, were accused of selecting Mr. Sandy as a robbery target. They were convicted of manslaughter and attempted robbery as hate crimes last month in a joint trial before separate juries.
Former Governor Ryan loses last appeal for bail
As detailed in this post by Lyle Denniston at SCOTUSblog, former Illinois Governor George Ryan can no longer avoid the cold realities of a federal prison sentence:
Supreme Court Justice John Paul Stevens at midday Tuesday refused to delay the imprisonment of former Illinois Gov. George H. Ryan, Sr., and his close associate, Lawrence E. Warner. They are due to report to federal prison officials on Wednesday.
In a brief order and without an opinion, Justice Stevens denied the application for bail that would have kept the two out of prison until the Supreme Court could act on their coming appeal. (Application 07A373, Warner and Ryan v. U.S.) The planned appeal, due to be filed by Jan. 23, will challenge their convictions following a six-month trial that they claim was plagued by juror misconduct and missteps by the trial judge and prosecutors.
Justice Stevens acted on his own, without referring the application to the other Justices. He had the authority to do so as the Circuit Justice for the Seventh Circuit.
How Appealing collects some of the media coverage of this ruling here.
Well-timed conference on right to effective counsel
How Appealing collects here major media coverage of the Supreme Court's new case, Arave v. Hoffman, which will explore ineffective assistance of counsel in plea bargaining (basics here). Perhaps yesterday's grant in Hoffman reflects a new right-to-counsel mojo in DC, as this week also brings a conference hosted by the Constitution Project concerning the right to counsel. All the details are set out on this webpage, and here is the official description:
CP to Host Conference: Strickland v. Washington: How Effective is the Right to the Effective Assistance of Counsel Standard?
Please join the Constitution Project on November 7, 2007, as we host a day-long conference on the right to the effective assistance of counsel and the Supreme Court's 1984 decision in Strickland v. Washington. Speakers will include judges, prosecutors, defense lawyers, legal scholars, and other experts.
Notably, Sandra Day O'Connor, who authored the majority opinion in Strickland v. Washington, will be giving a keynote address. Though I doubt she will say she got it all wrong in Strickland, I also doubt that any other speakers will say she got it all right in Strickland.
Petitioner's brief in Baze lethal injection case
Now available at lethalinjection.org, the great web project of the Berkeley Law Death Penalty Clinic, is the Petitioner's brief on the merits in Baze v. Rees, which was filed in the Supreme Court yesterday. Karl Keys seems impressed by the effort, and here is the start of the summary of argument:
The Eighth Amendment prohibits the “unnecessary and wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976). In the capital punishment context, the Eighth Amendment’s prohibition on the “gratuitous infliction of suffering,” id. at 183, requires States to avoid inflicting more pain than is necessary to cause death.
This prohibition applies fully to the manner in which a government carries out executions, not merely to its choice of particular execution methods. Even an execution method such as lethal injection that is humane in theory can be carried out by means of flawed or haphazard procedures that create a foreseeable danger of inflicting severe pain in actual practice. Performed repeatedly over time in the absence of adequate safeguards, such a method of execution will inevitably involve the infliction of gratuitous pain in some executions. Inflicting gratuitous pain on a subset of condemned prisoners is no more tolerable than inflicting gratuitous pain on all condemned prisoners. A State therefore violates the Eighth Amendment when its execution procedures create a significant and unnecessary risk of inflicting severe pain that could be prevented by the adoption of reasonable safeguards.
Kentucky’s three-drug lethal injection protocol violates this bedrock Eighth Amendment requirement. It is undisputed that a condemned prisoner injected with pancuronium and potassium will suffer torturous pain and agonizing death if the prisoner has not been properly anesthetized — but will be unable to alert anyone to this suffering, and will appear serene and comfortable to the executioners and other observers while enduring an excruciating death. It is also undisputed that Kentucky could easily eliminate the risk of such suffering by forgoing the use of pancuronium and potassium, and relying instead on a lethal dose of an anesthetic such as thiopental or pentobarbital — which will produce death in a matter of minutes. The Commonwealth was unable to identify any legitimate penological justification for persisting in the use of the three-drug formula — or even for its refusal to take the alternative step of monitoring the anesthetic depth of executed prisoners.
November 5, 2007
Are we days or weeks (or months) away from a ruling in Gall and Kimbrough?
Over at SCOTUSblog, Jason Harrow asks in this post "When Will the First Opinion Be Released?". Here is a snippet:
Tomorrow or Wednesday, however, are possibilities for the issuance of the Court’s first signed opinions of the term, as is one week from tomorrow, 11/13 (Monday being a legal holiday). That is the last possible day until the first Tuesday of the “December” sitting, which is November 27. Other possible opinion days in calendar year 2007 are 11/28, 12/4, 12/5, and 12/10.
Especially because was very bad at predicting when we'd get a decision in Booker, I am not going to venture any guesses as to when exactly we should expect to see Gall and Kimbrough. However, Jason's post has me thinking it will come sometime in 2007.
Anyone dare predicts the date(s) and author(s) of Gall and Kimbrough?
DOJ and FPD advocacy to the USSC about crack amendment retroactivity
A helpful reader has made sure this blog could provide a full account of the debate over the retroactivity of the crack amendments by sending me the Justice Departments (anti-)retroactivity letter and the federal defenders (pro)retroactivity letter. These lengthy letters can be downloaded below:
Lots of sentencing stuff from the Ninth Circuit
The Ninth Circuit today has two lengthy opinions covering important sentencing issues. Here are the basics taken from the opening paragraphs of each opinion:
US v. Gonzales, No. 04-30007 (9th Cir. Nov. 5, 2007) (en banc) (available here):
In United States v. Williams, 291 F.3d 1180, 1195 (9th Cir. 2002), we held that a totally suspended six-month sentence for criminal mischief counted as a “prior sentence,” mandating an additional point on the defendant’s criminal history score; however, in United States v. Hernandez-Hernandez, 431 F.3d 1212, 1220 (9th Cir. 2005), we also held that a partially suspended three-month misdemeanor sentence resulting in three days of imprisonment did not count as a “prior sentence,” and thus did not increase the defendant’s criminal history score. We agree with both the government and Gonzales that our analysis in Williams was flawed by its failure to read the relevant Guidelines sections as a whole. We hold that the language “term of imprisonment” in § 4A1.2(c)(1) refers only to certain non-felony sentences for which the defendant actually served a period of imprisonment. Therefore, we overrule Williams, clarify Hernandez-Hernandez, vacate Gonzales’s sentence and remand for resentencing.
US v. Cope, No. 06-50441 (9th Cir. Nov. 5, 2007) (available here):
In this appeal we consider, among other matters, whether the district court’s imposition of a lifetime of supervised release was reasonable and whether the district court was required to articulate findings before imposing certain special conditions of supervised release pertaining to medication. Under the circumstances presented by this case, we conclude that the term of supervised release imposed was reasonable, but that the district court should have articulated findings before imposing special conditions of release that would implicate a particularly significant liberty interest of the defendant. Therefore, we affirm in part, vacate the sentence in part, and remand for further proceedings.
Interesting data on modern state judicial systems
The Bureau of Justice Statistics has a new report available here that goes by the thrilling title "State Court Organization, 1987-2004." The full report has (too much?) state court operational data, much of which needs to be appreciated by anyone seriously interested in the practicalities of criminal justice reform. Here are some of the data highlights for criminal justice fans:
- State courts nationwide experienced increased caseloads over the 18-year period... [and] in general jurisdiction trial courts, the largest increase was in criminal case filings (67%).
- From 1987 to 2004 the number of states with active sentencing commissions fluctuated. At the lowest point, 15 states had active sentencing commissions in 1987. The number peaked in 1993 when 25 states had these commissions.
- Specialty jurisdiction or problem-solving courts, such as drug, family, mental health, and domestic violence courts, became more common over the 18-year period. States developed and expanded the use of these courts to address the large populations of specific types of offenders revolving through the courts and correctional institutions. These specialty courts were designed to couple case-specific treatment services with the administration of justice. The drug court movement in particular spread across the country. In 1989 Florida established the very first drug court in the country. By 2004 every state except South Dakota had created a specialized drug court treatment program.
Supreme Court takes a case addressing ineffective assistance in plea bargaining
According to this post at SCOTUSblog, the Supreme Court has granted cert in a case concerning ineffective assistance of counsel in plea bargaining. (They also had a summary disposition in a capital habeas case, Allen v. Siebert, that split the court 7-2). Here is Lyle Denniston's account of the new case:
The Supreme Court agreed on Monday to spell out the remedy that may be available for ineffective defense lawyer’s efforts during plea bargaining, if the individual was later convicted at a fair trial. The Court granted review of that question, which it spelled out in its order, in Arave v. Hoffman (07-110).
This is fascinating news and in future posts I hope to assess the potential impact of Hoffman. For now, I can suggest that this grant continues the Supreme Court's wonderful recent tendency to focus on important real-world criminal justice issues that have often previously escaped its attention.
It is interesting to speculate why the Justices are now, in my view, more regularly taking up more consequential and dynamic criminal justice issues. Perhaps it is the presence of two new justices, including one (Justice Alito) with a significant criminal justice background. Perhaps it is a recent lack of interesting civil cases to fill the Court's docket. Perhaps the Justices are finally fatigued with the death penalty and habeas cases that have clogged up the Court's criminal docket in recent Terms.
Whatever the explanation for the Supreme Court's apparent interest in more interesting criminal cases, I hope these trends will continue. (I also hope readers will suggest additional issues meriting SCOTUS attention.)
UPDATE: Thanks to SCOTUSblog, the cert petition from the state of Idaho in Hoffman can be found here. The petition reveals that this new case does concern death and habeas (and even Apprendi), though it does seem that interesting plea issues can and will remain at the center of the case.
November 4, 2007
Another reminder of capital punishment's significant costs
Today's NY Times article about the costs of administering capital punishment have me wondering again when jurisdictions will fully appreciate the extraordinary costs of running a sound death penalty system. As the article highlights, many states still want to do the death penalty on the cheap:
Courts have repeatedly demanded a better defense in capital cases, but states have repeatedly refused to pay for it. In 1996, Congress established a “fast track” that would shorten federal deadlines in capital cases if states agreed to provide competent representation to death row inmates. No state has fulfilled the requirements.
Capital defense lawyers face the highest possible stakes, but in many states the job is one of the lowest-paid in the legal system. In New Mexico, for example, appointed capital defenders work under a contract system that caps their fee at $24,500, a salary that amounts to an hourly wage of just $19.50 for the average death penalty case, not enough to cover their overhead, according to a brief filed by the New Mexico Criminal Defense Lawyers. In contrast, private criminal defense lawyers in New Mexico made an average of $161 per hour in 2004.
As every consumer knows, you get what you pay for. Consequently, states that do not adequately fund capital defense get sub-standard efforts that lead to more costs on the back end during appellate review. Indeed, as the posts below highlight, any capital punishment system is necessarily a very costly endeavor:
Impressive new CCJRC website
The Colorado Criminal Justice Reform Coalition ("CCJRC"), which runs the great Think Outside the Cage blog, has launched this new website. It has lots of notable features, including a link this this Drug War Clock noting the millions spent yearly on the war on drugs. The website also spotlights these sad statistics reflecting modern mass incarceration realities:
- Colorado prison population has grown 604% since 1980, while the population of the state grew 59%.
- The odds of a male born in 2001 going to prison during his lifetime are: 1 in 3 for African Americans, 1 in 6 for Latinos, and 1 in 17 for Caucasians.
- The United States incarcerates more people for drug offenses, than the European Union does for all offenses combined.
- 65% of women in prison are mothers of children under 18 years old.
- The [Colorado] Dept of Corrections budget is $703 million, up from $70 million in 1985.
Lots of capital news that's fit to print (and blog about)
The New York Times this morning has these three piece covering notable aspects of the modern administration of the death penalty:
These articles and many other recent developments are covered in the recent strong blog work of Karl Keys at Capital Defense Weekly. Also, StandDown Texas Project has collected lots of the media coverage of lethal injection issues.
So, it seems that the mere fact that there are no executions these days is not stopping the media or the bloggers from providing copious coverage of capital case concerns.