December 8, 2007
Reviewing California's prison problems
This AP story provides the latest update on California's continuing prison woes. Here are excerpts:
When California adopted its criminal sentencing code 30 years ago, a state appeals court marveled that it was virtually incomprehensible, comparing it to income tax forms and insurance policies. The appellate judges wondered if the Legislature had used "some long departed Byzantine scholar to create its seemingly endless and convoluted complexities."
Since then, California has added more than 1,000 felony sentencing laws and more than 100 other changes that can lengthen prison terms. As a result, the state's prisons are so dangerously jammed that there is a possibility federal courts could cap the population, potentially forcing the early release of some inmates. The number of inmates in California prisons has soared, from nearly 25,000 in 1980 to more than 170,000 this year. The state has an incarceration rate of 475 per 100,000 residents, well above the national average of 445 per 100,000. So far, political efforts to simplify the convoluted process have failed....
Proposals by Gov. Arnold Schwarzenegger and Democratic lawmakers to create a commission to review sentencing collapsed this year amid partisan infighting. Some feared that a commission could open prison doors too wide. "We are jammed up with this situation right now because we have fallen in love with one of the most undocumented beliefs: That somehow you get safer if you put more people in jail," Senate President Pro Tem Don Perata said this spring....
A little weekend campaigning
This post is a weekend pitch asking readers to go over to the ABA's Blawg 100 list and vote here for this blog as among your favorite criminal justice blogs. This is my first campaign post, precipitated by the fact that I have now fallen to third in the voting behind a "blawg" that only does about one or two posts each week.
UPDATE: As of Sunday morning, I've jumped to first place. Thanks everyone, and keep stuffing this virtual ballot box on my behalf.
Another bipartisan call for President Bush to commute border agent sentences
As detailed in this Washington Times article, "Rep. Bill Delahunt, Massachusetts Democrat who heads the subcommittee on international organizations, human rights and oversight" has called upon President Bush to "immediately commute the prison sentences of two former U.S. Border Patrol agents convicted in the shooting of a drug-smuggling suspect." This story from CNSNews.com provides more details on the bipartisan calls for a commutation in this case:
Two Democrats and one Republican introduced a House resolution Thursday calling for the release of two jailed ex-Border Patrol agents by Christmas. The former agents, Ignacio Ramos and Jose Compean, were sentenced to 11 and 12 years respectively in federal prison for shooting and wounding a suspected illegal alien drug smuggler in the rear.
"President Bush can correct a gross miscarriage of justice with the stroke of a pen," said Rep. William Delahunt (D-Mass.), who co-sponsored a resolution to commute the sentences of the two men. "This resolution will put Congress on the record demanding that he do just that," Delahunt continued. "I hope that the president will allow these men to see their families in time for Christmas." Delahunt was joined by Reps. Silvestre Reyes (D-Texas) and Dana Rohrabacher (R-Calif.) in sponsoring the legislation....
Last month, the suspected drug smuggler, Osvaldo Aldrete-Davila was arrested for attempting to smuggle additional drugs into the country even while he had legal immunity because of the earlier case, in which he testified against the two Border agents.
Some prior posts about the Border Agents case:
Quite a Monday on tap for federal sentencing fans
Monday is the scheduled sentencing date for two high-profile and very distinct federal defendants: Conrad Black and Michael Vick. (This new AP story provides some Black background, and this new local piece provides some Vick basics)
In part because Black lost at trial and Vick pleaded guilty, it is virtually assured that Black will be getting a much longer sentence than Vick. But there is a lot of legal and factually uncertainty surrounding both cases as sentencing approaches. Moreover, Black is still free on bail and could remain free for a long time if he is granted bail pending appeal. Meanwhile, Vick is already serving his (not yet imposed) federal sentence, and he could very well complete his sentence before Black starts his (again, if Black gets bail pending appeal).
In addition, there is a chance (though I think a slim one) that the Supreme Court will hand down opinion in Gall and Kimbrough on Monday. And, if that's not exciting enough, on Tuesday we may get a decision from the US Sentencing Commission concerning the retroactivity of its new crack guidelines (basics here). I may need to keep celebrating Repeal Day to stay calm during all the sentencing excitement.
December 7, 2007
Weekend reading on "Restoring Ideals of Humane Punishment"
This week included new prison statistics, a new report on racial disparities in incarceration, and Hillary Clinton's stunningly disappointing opposition to greater sentencing justice (details here and here). Against that backdrop, I am pleased to take home to read this new piece by Eva Nilson just appearing on SSRN, entitled "Decency, Dignity, and Desert: Restoring Ideals of Humane Punishment to Constitutional Discourse." Here's the abstract:
American punishment today is degrading, indecent, and harsher than deserved despite a Constitution designed to protect people from cruel and unusual punishment. Unfortunately, the U.S. Supreme Court's response to the increasing inhumanity of contemporary punishment has been to reduce its Eighth Amendment jurisprudence to tidy categories, legal fictions, and hollow phrases. Absent from the discourse is any acknowledgment of the actual day-to-day experience facing the convicted person, or any suggestion that, although punishments can be degrading, they need not be. The case for treating a convicted person with respect for his human dignity, and for constitutional scrutiny of punishment as it is actually experienced, is rarely made.
This Article seeks to present that case. Part I demonstrates that sentences are longer and meaner, prison conditions are more degrading and dangerous, and post-release reintegration is severely hobbled by numerous barriers that guarantee a permanent underclass. The second part explains how the Court's narrow and formalistic reading of the Eighth Amendment has produced a profound legal and moral blindness to the constitutional infirmities these punishments present. In the third part, the Article suggests avenues to more robust conceptions of human dignity and decent treatment that may still be found in the Constitution and in emerging global norms.
Another "priors" case with some rule of lenity spicing
This new post at SCOTUSblog provides a bit more background on Burgess, the most sentencing-focused case in today's big bunch of cert grants. Here are the Questions Presented in the case:
1. Whether the term “felony drug offense” as used in federal statute requiring imposition of enhanced mandatory minimum 20 years’ imprisonment when drug offender has “prior conviction for a felony drug offense” must be read in pari materia with federal statutes defining both “felony” and “felony drug offense”, so as to require imposition of minimum 20-year sentence only if prior drug conviction as both punishable by more “than one year in prison and characterized as a felony by controlling law.
2. When the court finds that a criminal statute is ambiguous, must it then turn to rule of lenity to resolve ambiguity?
By my count, Burgess is the fourth case this Term dealing with how federal statutes define state prior offenses for purpose of certain sentencing enhancements. Because these issues arise a lot, and because they can often generate circuit splits, I am not surprised these case often garner attention in the cert. pool. However, with so many other issues competing for the Justices' attention, I suspect a few SCOTUS watchers are not that excited that more than 5% of the argued docket this term is focused on these state priors issues.
Thoughtful Blakely opinion from Arizona Supreme Court
With all the on-going federal sentencing stories these days, I cannot keep track of all the notable Blakely issues still being worked out by state courts. Fortunately, a friend of the blog alerted me to this new opinion from the Arizona Supreme Court in State v. Price (available here) which this opening paragraph effectively previews:
We accepted review to determine whether the defendant's sentence was aggravated in violation of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and Blakely v. Washington, 542 U.S. 296, 305 (2004), which hold that the Sixth Amendment affords a right to have a jury, rather than a judge, determine any fact, other than a prior conviction, that increases a defendant’s statutory maximum sentence. The trial court imposed an aggravated sentence based on facts that the State now concedes were not found in compliance with Apprendi and Blakely. We hold that the case must be remanded for resentencing and reject the State’s suggestion that, as a reviewing court, we should find other aggravating facts to uphold the flawed sentence.
In addition to a thoughtful majority opinion, Judge Hurwitz has a strong concurrence that starts to crack another tough Blakely nut, but is "content to leave final resolution of this conundrum to another day."
A bunch of new cert grant at SCOTUS
Over at SCOTUSblog, Lyle Denniston has this post entitled "Court grants six new cases." Here are snippets from the post, which spotlights that a few of these grants should interest sentencing fans:
The Supreme Court agreed on Friday to rule on claims by two U.S. citizens being held by the U.S. military in Iraq that they have a right to challenge their detention there and future transfer to Iraqi authorities — one of them to be tried, the other to be executed for a prior Iraqi conviction. The cases, drawing the Court more deeply into defining the rights of detainees, will be heard together, probably in March. The cases are Munaf v. Geren (06-1666) and Geren v. Omar (07-394)....
The Court also agreed to hear cases on the rights of disabled workers to be assigned to open jobs ahead of other workers (Huber v. Wal-Mart, 07-480), on enhanced federal sentences based on prior state conviction for possession of cocaine (Burgess v. U.S., 06-11429), on the power of states — or lack of it — to require proof of greater mental capacity for an accused individual to act as his own lawyer than is required to stand trial (Indiana v. Edwards, 07-208), on the scope of the bankruptcy law’s exemption from “stamp taxes” and other transfer taxes imposed by states and cities (Florida Department of Revenue v. Piccadilly Cafeterias (07-312), and on the proof the federal government must offer in order to gain added prison time for someone accused of carrying an explosive during commission of a felony (U.S. v. Ressam, 07-455).
Do USSC reappointments show support for new crack guidelines?
Intriguingly, this White House press release detailing some new Presidential nominations suggests that George W. Bush is happy with the recent work of the US Sentencing Commission. Specifically:
Nominations Sent to the Senate
Ricardo H. Hinojosa, of Texas, to be a Member of the United States Sentencing Commission for a term expiring October 31, 2013. (Reappointment)
Ricardo H. Hinojosa, of Texas, to be Chair of the United States Sentencing Commission. (Reappointment)
Michael E. Horowitz, of Maryland, to be a Member of the United States Sentencing Commission for a term expiring October 31, 2013. (Reappointment)
Given that the biggest actions of the USSC in recent months have been the new reduced crack guidelines and its apparent interest in allowing that amendment to be applied retroactively, I read these reappointments as an indirect blessing of the USSC's recent progressive reform efforts.
Some recent related crack sentencing posts:
- USSC analysis on potential crack amendment retroactivity impact
- A retroactive litmus test on leading Democratic candidates
- Latest FSR issue covers crack sentencing
Tenth Circuit affirms sentence of almost 20 years for "innocent"(?) posession of ammunition
As How Appealing noted here, a split Tenth Circuit yesterday in US vs. Baker, No. 07-3002 (10th Cir. Dec. 6, 2007) (available here) held "that 'innocent possession' is not a defense to being a felon in possession of ammunition." The main legal issues and the (disputed) facts in Baker are quite interesting: the defendant claimed that he found on the ground and picked up a clip of ammunition on Halloween night and was on his way to turn this ammunition in to the police when arrested. Though the story may sound suspicious, the majority rules as a matter of law that even "if a defendant obtains ammunition innocently, with no illicit purpose, and takes adequate measures to rid himself of it as promptly as reasonably possible" he is still criminally liable under the felon-in-possession criminal statutes.
Though the merits of this legal issue divides the Tenth Circuit panel, I am troubled mostly by the long sentence that James Baker ultimately received for his horrific crime of possession a clip of ammunition: a (within-guideline) sentence of 235 months imprisonment! Because of prior convictions, Baker was subject to armed career criminal enhancement, and thus he will now be in federal prison until roughly the year 2025 for possessing a clip of ammunition.
Though Baker did contest the application of a guideline enhancement based on his prior record, it appears that Baker did not contest the reasonableness of his sentence. I am not quite sure why, especially given the fact that the within-guideline sentence given here does not seem to reflect the "nature and circumstances of the offense" as 3553(a)(1) requires. Indeed, the dissenting opinion, though not focused on reasonableness, highlights the realities of the Baker ruling:
The majority’s holding is that, even if the jury believed every part of Baker’s testimony, it is in keeping with Congressional intent that Baker serve nearly 20 years in prison for his conduct. I cannot agree that Congress intended such a harsh and absurd result.
Because the Baker ruling is contrary to a DC Circuit ruling from 2000, a strong cert petition might get Baker a real shot to garner attantion from the Supreme Court. Indeed, this case seems tailor made for all those Supreme Court clinics looking for good work.
Friday forum: what advice would you give Barry Bonds?
As detailed in this New York Times article, the next official development in the Barry Bonds prosecution takes place this morning. Here are the basics:
Bonds, major league baseball’s career home run leader, is scheduled to make his first court appearance in the case Friday morning. He is expected to plead not guilty to four counts of perjury and one count of obstruction of justice, charges that stem from the government’s assertion that he lied four years ago when he told a grand jury he did not take steroids or human growth hormone.
In the NYT article, Bonds gets some advice from a local expert: "Peter Keane, a 30-year veteran defense lawyer and dean emeritus at Golden Gate University Law School who has studied the case, said his best advice to Bonds would be for him to stop fighting and start negotiating." Similarly, in this USA Today piece, has a formal federal prosecutor also suggesting a plea and it notes sentencing prospects: "Keane and [former U.S. attorney] Matt Orwig agree that, even if Bonds accepts a plea bargain instead of going to trial, he's certain to serve time in jail. Were he to get convicted, Bonds faces up to 30 years in prison, though lawyers say 24 to 36 months is a more likely sentence."
Notably, as this Wall Street Journal report documented, Barry Bonds is not eager to pay top dollar for legal help. So I thought I would open up a Friday forum for folks to use the comments here to give Barry some free advice.
An intriguing new blog focused on judicial independence
l I received an e-mail from folks at the Justice at Stake Campaign announcing an interesting looking new blog. Here part of the pitch I received:
A new legal blog, Gavel Grab, [will] focus on attacks on the independence and impartiality of the courts — in judicial elections, in legislatures, and on the airwaves. We launched this week with posts on the Supreme Court’s Guantanamo cases (by Slate’s Dahlia Lithwick), growing calls for a Wisconsin high court justice to recuse herself from a campaign supporter’s case, and a look at how the Terri Schiavo episode continues to ripple through the Presidential primaries. And each day our staff provides links to interesting legal stories and blog posts.
As regular readers know well, sentencing decisions are often the focal point for judicial attacks. I'll be reading this new blog regularly.
December 6, 2007
Eighth Circuit vacates above-guideline sentence
Today in US v. Wiley, No. 06-3534 (8th Cir. Dec. 6, 2007) (available here), the Eighth Circuit vataced an above-guideline sentence. Here is an unofficial summary of Wiley from the court's website:
Defendant did not forfeit his ability to challenge the reasonableness of his sentence when he failed to make an objection to the length of the sentence after the court decided at the sentencing proceeding to vary upward from the advisory Guidelines range; given that the Guidelines took into account defendant's recidivism and his commission of the offense while incarcerated, the recommended sentence range did not so substantially under-represent the seriousness of defendant's criminal history as to justify imposing a sentence almost twice as long as the top of the advisory Guidelines range; 60 month sentence on this record was unreasonable, and the matter is remanded for resentencing. Judge Gruender, concurring.
"Speak out, judges"
The title of this post is the title of has this op-ed by former state judge James Dolan in today's Boston Globe. Here are snippets that I hope every judge involved in an important criminal case takes to heart:
During my 26 years on the bench, I frequently saw colleagues hammered for making "mistakes" - often in the context of a bail or restraining order hearing in which the judge released a defendant who went on to harm someone.
Most simply took the beating without responding, on the grounds that it would be an ethical violation to make a statement regarding a pending case....
Unfortunately, the failure of judges to promptly explain controversial decisions reinforces the public view that they are arrogant and unaccountable. This damages not only the judge but also the court system.... The public will tolerate a mistake, but people understandably refuse to accept the stonewalling evident in the stock phrase: "I cannot comment on a pending case."
There is a difference between commenting on a case and explaining a decision. Granted, the judge should not hold a press conference or go on a talk show. But where is the harm in writing a memorandum explaining the basis of a decision? Is a court proceeding jeopardized by a judge explaining a bail decision?
When a tragedy occurs, the public's rush to judgment is fueled by talk show hosts and the press, often reacting out of hindsight - and with little or no information about what prompted a judge's decision. Intent upon blaming someone for a tragedy, the judge who supposedly "should have known what was going to happen" is the obvious target.
In those circumstances, a judge's silence underscores the perception that the judge was wrong and his or her actions indefensible, and that the court system is unresponsive.
Judges balance the risks of flight and harm against the right of a defendant to be free pending trial. A judge who holds a defendant even when the risks are slight knows he or she is not likely to be criticized. But judges cannot and should not hold everyone. There is always the risk that a released defendant will harm someone. Tragedies have happened before, and they will happen again....
The public reasonably expects public officials to give reasons for their controversial decisions.... The public has a right to know. I expect most judges want the right to explain.
Any reports or news from today's House hearing?
I have been away from the computer all day, but I wonder if anyone followed this hearing today in the House of Representative's Subcommittee on Crime, Terrorism, and Homeland Security on "Promoting Inmate Rehabilitation and Successful Release Planning." The list of witnesses looks eclectic and interesting, as is their linked testimony. I'd be grateful to get reader reports in the comments or via e-mail.
Death penalty plea case dying before SCOTUS
Getting on-line in the midst of a day on the road I was intrigued to see this new post at SCOTUSblog reporting that "Dismissal sought in capital plea bargain case." Here are the basics:
One month after the grant of certiorari in a case involving an inmate on Idaho’s death row, attorneys for both the prisoner and the state attorney general’s office have asked the Justices to vacate the Ninth Circuit ruling below and dismiss the case as moot.
That should teach the Justices for taking yet another death case (even though this one raised an interesting plea issue). And now they have more room to finally take up an acquitted conduct case, or the Rule 32 split, or any of a dozen other Blakely/Booker issues that won't be going away anytime soon.
NJ report suggests efficacy of sex offender GPS tracking
Here another boost for technocorrections: a report asserting that "initial data suggests the State Parole Board's GPS monitoring has contributed to a significantly lower recidivism rate than nationwide data indicates for high-risk sex offenders." This line comes from this new document, a "Report on New Jersey’s GPS Monitoring of Sex Offenders" coming from the state's Parole Board.
This local media account of the report provides more basics. Here is a snippet from the account:
Only one out of the state's 225 worst sex offenders, all being monitored by a new satellite-tracking system, was implicated in a new sex crime over a two-year period, the State Parole Board said Wednesday.... "New Jersey is on the leading edge of this GPS monitoring," said Parole Board Chairman Peter Barnes Jr., a former Democratic state assemblyman from Middlesex County and a career FBI agent.
The Parole Board said in a written statement that its load of more than 4,300 sex offenders is one of the largest in the nation, comprising almost a third of all cases handled by parole officers. The one offender arrested out of the 225 being monitored was apprehended at the scene of a rape in April 2006. That case is pending. Nineteen other offenders committed technical offenses, such as not properly wearing the GPS device, in the two-year window.
Some related posts on sex offender GPS tracking:
December 5, 2007
The latest on Offendar
As previewed in this post, Ohio legislators on Wednesday heard about the latest technocorrections idea for keeping track of sex offenders. Here are the latest details from this new AP story:
A tiny electronic device that could warn people when a sex offender is approaching was grabbing attention at the Ohio Statehouse on Wednesday. Offendar, a sex offender radar invented by a northeast Ohio company, is about the size of a key fob and vibrates when picking up the signal from a parolee’s monitoring bracelet from up to 50 yards away.
State Sen. Tim Grendell, a Chester Township Republican who chairs the Senate Judiciary Committee on Criminal Justice, asked the device’s Chagrin Falls makers, Offendar LLC, to host 90 minutes of demonstrations of the patent-pending technology for lawmakers Wednesday....
Not everyone supports the idea. David Singleton, executive director of the Ohio Justice & Policy Center, called the concept “utterly ridiculous and absurd.” He said it plays on fears in the community while penalizing people who have already served time in prison for their crimes. “What are we trying to do, make it impossible for people to get on their feet again and be productive citizens?” Singleton said. “This is crazy and I’m outraged by it, because it doesn’t make my daughter any safer.”
The Cleveland Rape Crisis Center’s Lindsay Fello-Sharpe said nine in 10 sex crime victims are assaulted by a person they know or trust. “This just plays on the great myths out there, such as the stranger danger myth that’s not true,” she said. “It’s sending the wrong message and setting people up with a false sense of security.”
The latest BJS stats on prisoners, probation and parole in the land of the free
Among many holiday season traditions for sentencing fans is the release by the Bureau of Justice Statistics of its national head count of the number of persons in State and Federal prisons, and the number of persons on probation and parole, at yearend the prior year. Here are links to these data-filled reports:
Here are some of the statistical highlights from this press release discussing both reports:
The U.S. adult correctional population — incarcerated or in the community — reached 7.2 million men and women, an increase of 159,500 during the year, the Justice Department’s Bureau of Justice Statistics (BJS) announced today in a new report. About 3.2 percent of the U.S. adult population, or 1 in every 31 adults, was in the nation’s prisons or jails or on probation or parole at the end of 2006.
The number of men and women who were being supervised on probation or parole in the United States at year-end 2006 reached 5 million for the first time, an increase of 87,852 (or 1.8 percent) during the year. A separate study found that on December 31, 2006, there were 1,570,861 inmates under state and federal jurisdiction, an increase of 42,932 (or 2.8 percent) in 2006.
During 2006 the number of inmates under state jurisdiction rose by 37,504 (2.8 percent). The number of prisoners under federal jurisdiction rose by 5,428 (2.9 percent).
In 2006 the number of prisoners in the 10 states with the largest prison populations increased by 3.2 percent, which was more than three times the average annual growth rate (0.9 percent) in these states from 2000 through 2005. These states accounted for 65 percent of the overall increase in the U.S. prison population during 2006. The federal system remained the largest prison system with 193,046 inmates under its jurisdiction.
Repeal Day and the war on drugs
As explained at this website, December 5 is "Repeal Day." As the cite explains, "on December 5th, 1933, Utah, the final state needed for a three quarters majority, ratified the 21st Amendment, repealing Prohibition and restoring the American right to a celebratory drink." Ever the festive patriot, I had a beer with students and a glass of wine at home to honor this uniquely American holiday.
It is interesting to think about the history of Prohibition and the the enactment and repeal of the 18th Amendment against the backdrop of the modern war on drugs. Specifically, this fascinating article in this month's Rolling Stone, entitled "How America Lost the War on Drugs," provides lots of interesting ideas about the market realities surrounding the human affinity for intoxicating substances.