December 15, 2007
Missouri Governor calls for child rape to be a capital offense
As detailed in this local article, Missouri "Gov. Matt Blunt on Thursday called for the death penalty for child rape." Here are more details:
Blunt’s proposal would impose the death penalty on those who commit forcible rape or forcible sodomy on children younger than 12. The governor announced his proposal at an Internet crimes summit in Jefferson City, where he took a tough stance on cyber predators. “Sexual predators in Missouri should be put on notice that if they think they can roam Internet chat rooms or our neighborhoods for Missouri victims without consequence, they are wrong,” Blunt said in a statement.
If Missouri passed such a law, it would join a handful of other states, including Oklahoma, South Carolina and Louisiana, with similar measures. A man convicted of raping a child under the Louisiana law now sits on death row in that state, and the case may be headed to the U.S. Supreme Court.
Among the ironies of the Supreme Court's capital jurisprudence, the death penalty for child rape may become more constitutionally sound if (and perhaps only if) Missouri and other states join those already with statutes providing for the death penalty for child rape.
Some related posts:
- When will SCOTUS address the constitutionality of the death penalty for child rape?
- A strong argument for commuting Patrick Kennedy's death sentence
- Debating death for child rape
- Could there be symbolic and practical value in making repeat child rape a capital offense?
Fascinating review of recent white-collar sentencing realities
I just noticed this Bloomberg news story detailing some of the sentencing realities of the modern assault on corporate crime. The story is headlined "Bush Fraud Probes Jail Corporate Criminals Less Than Two Years," and here some lengthy excerpts from a very interesting piece:
Sixty-one percent of defendants sentenced in the Bush administration's crackdown on corporate fraud spent no more than two years in jail, escaping the stiff penalties given WorldCom Inc. and Enron Corp. executives. In the past five years, 28 percent of those sentenced got no prison time and 6 percent received 10 years or more, according to a review of 1,236 white-collar convictions....
A wave of corporate corruption marked by Enron's collapse in 2001 and an accounting scandal at WorldCom led Congress to enact harsher penalties. President George W. Bush signed the Sarbanes-Oxley Act to reform governance and named a Corporate Fraud Task Force to push "significant" prosecutions....
Defendants got reduced jail time when they helped prosecutors investigate frauds, served as low- or mid-level executives, or committed crimes that were less sophisticated than complex accounting conspiracies, the review by Bloomberg News found....Of the 1,236 convictions from 2002 to 2007 in the review, 1,133 defendants were sentenced. Forty-seven percent of those got a year or less in prison....
The Justice Department claimed credit for 1,236 convictions in the crackdown on corruption. The department says it doesn't have a comprehensive list. Bloomberg assembled a comparable list based on more than 350 cases from task force annual reports, lists of executives, and press releases on the department's Web site....
Joan Meyer, who oversees the task force as senior counsel to the deputy attorney general, argues that any prison sentence can serve as a deterrent. "Every case can't be an Enron,'' Meyer says. "The question is, do we give a pass to white-collar defendants because their crimes are non-violent and result in lesser sentences? That would be an abdication of our responsibilities.''...
At least 129 defendants cooperated with prosecutors, court records show. The number may be higher, lawyers say, because public files don't always reflect whether a judge credited a defendant for helping the government..... Judges weigh a crime's nature, the amount of financial loss and a defendant's circumstances in sentencing. Offenders who plead guilty tend to get less time than those who go to trial.
Defendants are penalized for not accepting responsibility for their crime, while those convicted at trial may be held accountable for the full loss in a fraud. Of 193 defendants convicted at trial, 38 got 10 years or more.... "The idea that somebody who goes to trial and gets hammered while people who plead guilty get far less time smacks of the Inquisition,'' says defense attorney John Keker of Keker & Van Nest in San Francisco. "I think it's a disgrace. The going-to-trial penalty should be an embarrassment to judges everywhere.''...
Democratic candidates on crime and punishment
At TalkLeft, Jeralyn has this great post previewing an article to appear in a forthcoming issue of EbonyJet Magazine. The article has interviews with Hillary Clinton, John Edwards, Barack Obama and Bill Richardson on their crime and punishment agendas if elected President. Surf over to TalkLeft to get a taste of an article that I'll likely blog more about when it becomes available fee on-line.
Revision of major Georgia ruling on residency restrictions
As noted in posts by other bloggers, and as detailed in this Atlanta Journal-Constitution article, the Georgia Supreme Court this week tweaked in an unclear way the reach of its ruling declaring unconstitutional the state's sex offender residency restrictions. Here are details:
Last month, the state's highest court issued what appeared to be a sweeping decision that struck down the residency restrictions for all 15,000 registered offenders, regardless of whether they owned or rented a home or lived in a place for free.... In late November, Attorney General Thurbert Baker asked the state Supreme Court to clarify its ruling. The question, Baker said, is whether the ruling applies only to those who own property....
On Thursday, the court changed only a few words of its initial opinion, but narrowed its breadth enormously. The clarification says the residency restriction is unconstitutional "to the extent that it permits the regulatory taking of ... property without just and adequate compensation."
The attorney general is pleased with the new ruling, spokesman Russ Willard, said. It "should only protect property owners, not all registered sex offenders, from the residency restriction." Sarah Geraghty, a lawyer for the Southern Center for Human Rights, disagreed with the attorney general's office's interpretation: "Courts in Georgia have repeatedly held that people who rent their homes have a property interest protected by the Fifth Amendment."
As I explained before, the Georgia Supreme Court's initial ruling was based on a somewhat peculiar takings theory, and this follow-up uncertainty flows from that reality.
Some recent related posts:
December 14, 2007
Ninth Circuit ruling provides (non)sober ending to quite a week
Since I plan to celebrate Repeal Day some more this weekend after quite a sentencing week, it is fitting that I'll do a last pre-weekend post noting the Ninth Circuit's ruling today in US v. Betts , No. 06-50205(9th Cir. Dec. 14, 2007) (available here). Though there are lots of notable part to Betts (as AL&P and Sean note), I just like to highlight that the Ninth Circuit struck down a supervised release condition which required the defendant to "abstain from using . . . alcohol." Here's a key passage from the court:
This is not to say that there is anything wrong generally with supervised release conditions requiring abstention from alcohol. Many people commit crimes when they drink too much, and such conditions are often necessary to protect the public and provide correctional treatment. We have upheld abstention conditions where there is some indication in the record of a problem of abuse. Frequently the need for abstention is obvious from the defendant’s criminal history, and the court does not need any admissions from the defendant, because of such past offenses as drunk driving. But the decision has to be individualized, not a matter of policy applicable without regard to the individual defendant.
I'll drink to that! (But don't drink and drive, or else you might soon see your picture on a billboard.)
Sixth Circuit affirms 1,772-month over Eighth Amendment challenge
Today the Sixth Circuit in US v. Watkins, No. 05-4551 (6th Cir. Dec. 14, 2007) (available here), affirms 1,772-month sentence over an Eighth Amendment objection. Here are the basics from the opinion:
Watkins argues that his sentence of 1,772 months is grossly disproportionate punishment when compared to the crimes for which he was convicted. He notes that he did not fire a gun, that no person was physically injured during the robberies, and that his criminal history prior to the robberies was zero. He asserts that his lack of criminal history and the absence of any physical harm to the victims weighs heavily against the imposition of a sentence that will confine him for the remainder of his life....
Although Watkins is correct in arguing that the Eighth Amendment places an outer limit on criminal penalties that are grossly disproportionate to the offense, this is not such a case. See Solem v. Helm, 463 U.S. 277, 290 n.16 (1983) (stating that, under the Eighth Amendment, appellate courts may review a sentence to determine if it is within constitutional limits). Watkins was convicted of six separate robberies, each of which involved the brandishing of a firearm. He and/or his accomplices entered the homes of victims by force and threatened to seriously harm or kill not only the victims, but, in multiple cases, their spouses and small children. In light of the numerosity and seriousness of the offenses, the comparable sentences imposed by this circuit in similar circumstances, and the requirement that sentences for § 924(c) firearms convictions run consecutively to all other sentences, Watkins’s sentence is not grossly disproportionate to the offenses.
Pretty in pink?
Though the graphic and headline in this post might suggest otherwise, I am not joining the Truly Bad Movie Meme (details here and here). Rather, I am setting up this local article about a corrections innovation:
Those who paint Miami County red may wake up in a pink jail cell. It's not a bad dream, but the result of a paint job under way at the Miami County Jail in downtown Troy. The pink walls were the idea of Sheriff Charles Cox, but downtown jail administrator Dee Sandy selected the shade of pink for block walls and the accent colors for the metal bars, bunks and doors.... "It actually is really pretty," Sandy said.
Cox said the idea for the pink jail "basically came off the top of my head." He half jokingly suggested that "sometime we should paint the jail pink. It (the color pink) is supposed to have a soothing effect." Sandy said the first time the sheriff mentioned the concept to her, she thought he was joking. Inmates have found out otherwise.
Around the blogosphere
Not suprisingly, with so much going on this week, the legal blogosphere is full of great stuff. Of particular note are lots of interesting new posts at:
Is Kimbrough as big as Brown v. Board of Ed?
I am usually the first one to suggest that Supreme Court sentencing decisions are hugely important. (Recall that I have described Blakely as perhaps the biggest SCOTUS criminal justice decision ever.) But even I have to take pause when seeing a comparison of Kimbough to Brown v. Board of Ed in this new Newsweek article. Here are excerpts:
For two decades, the United States has pursued, prosecuted and sentenced cocaine offenders in a way that borders on insanity -- targeting petty criminals over serious drug dealers -- while fostering contempt, instead of respect, for the policies that have sent tens of thousands to jail. On Monday, the Supreme Court said enough was enough and empowered federal judges to reject sentencing guidelines rooted in hysteria and ignorance. The move has considerable support on the federal bench. It allows judges "who actually see the people and understand the local community," to better consider their communities' best interests, said Jack B. Weinstein, a federal district judge in New York....
The court's two 7-2 decisions -- authored by Ruth Bader Ginsburg and John Paul Stevens, respectively--contained no rousing rhetoric; they methodically built on the logic of two prior opinions. But Ginsburg's ruling catalogued, at length, criticisms of federal cocaine policy. "This may be the first sentencing decision since the mid 1980s that actually talks about justice, that seems to have some blood in it," said Graham Boyd, director of the ACLU's drug law reform project. Boyd compared the potential impact of Ginsburg's decision to the famous Brown v. Board of Education desegregation ruling. "When the Supreme Court says that something is wrong, the other institutions of government pay attention," said Boyd.
Report on Connecticut hearing on racial disparity in the death penalty
The New York Times has this fascinating report on an unusual court hearing yesterday in Connecticut concerning racial disparities in the operation of the state's death penalty. Here are excerpts:
In a ground-floor courtroom here on Thursday morning, a plasma television offered a pixilated glimpse of what appeared to be a school gymnasium set up for a debate team tournament. Yet the image of the gym was not from a school, but from the Northern Correctional Institution, a maximum security prison 13 miles away in Somers.
Judge Stanley T. Fuger Jr. of Superior Court usually presides over his cases in a courthouse. But with seven of the nine residents of Connecticut’s death row expected to appear before him — defending their claims that Connecticut’s death penalty discriminates against minorities — state officials had deemed no courthouse secure enough....
Beyond the sheer oddity of the proceeding, John Massameno, a senior assistant state’s attorney, objected to the case as “the most egregious abuse of the writ of habeas corpus that we have witnessed and that the courts have accumulated a record of.” At the least, it made for one of the most bizarre courtroom scenes in recent memory, and state officials were hard-pressed to say when an actual proceeding, judge and all, had taken place inside a prison....
[L]awyers for the inmates filed into evidence a newly completed 127-page report by John J. Donohue III, a Yale Law School professor and economist, that they said showed that the death penalty in Connecticut was applied in an unfair and almost random fashion.
December 13, 2007
NJ legislature passes bill to abolish state's death penalty
As detailed in this CNN piece, "New Jersey lawmakers have voted to abolish the death penalty in the state, sending the governor a bill he has already said he will sign. The measure will make New Jersey the first state in more than 40 years to outlaw capital punishment."
Some related posts:
Latest crack retroactivity FAQ from FAMM
Now available and subject to regular revision at FAMM's website is this document entitled "FAQs about crack amendment retroactivity." This 3-page document covers "frequently asked questions about the federal crack guideline amendment and its retroactive application." Here's one of many important Q & A sections:
Q: Will the crack amendment automatically apply to all crack offenders sentenced before November 1, 2007?
A: No. Only the sentencing court can decide whether the amendment applies to the prisoner and whether the prisoner gets a sentence reduction. To obtain a sentence reduction, the prisoner must make a motion under 18 U.S.C. § 3582(c)(2) to the court that sentenced him/her.
Notable criminal cases on the SCOTUS watch list
In this post, the fine folks at SCOTUSblog details "petitions to watch" at the Justices' private conference scheduled for January 4, 2008. Sentencing fans should find these cases from the watch list notable:
Case name: Mathias v. United States
Issue: Whether an escape conviction following a failure to return to a work release program is a violent felony for purposes of the Armed Career Criminal Act. (Note: similar issues are presented in No. 06-10751, Golden v. United States, and No. 06-11206, Chambers v. United States.)
Case name: Kennedy v. Louisiana
Issue: Whether the Eighth Amendment bar on cruel and unusual punishment prohibits capital punishment for the crime of child rape.
Case name: Schriro v. Lambright
Issue: Whether, under Tennard v. Dretke (2001), a court may consider the lack of any causal connection between potential mitigating evidence and the crime in determining whether the failure to introduce the evidence prejudiced the defendant.
Case name: Hartmann v. Burris
Issue: Whether seeking discretionary state court review of a criminal conviction tolls the one year filing requirement under AEDPA.
Of course, Kennedy is the case of this bunch that garners the most attention (even though all of the others are in many ways far more consequential to the day-to-day administration of justice).
Notably, the Court's decision on these and other petitions could be announced on January 7, 2008, with is the same day the Baze lethal injection case is to be argued. (This is also the date of a notable college football game for those of you scoring at home.)
One (of many) tough questions after Gall and Kimbrough
As I have noted, Gall and Kimbrough leave plenty of questions to consider (and reconsider) in lower courts now that we know the guidelines are really, truly advisory. Today's New York Sun has this great piece, headlined "Guns Case Is a Test Of Discretion," spotlighting a case that presents one of these questions. Here is how it starts:
A gun trafficking case out of Brooklyn is emerging as the next test over how much discretion federal judges have in setting prison sentences.
In two decisions this week, the U.S. Supreme Court offered judges greater leeway in deciding for how long to put criminals away. Neither case addressed the vexing question of whether more time can be tacked on just because the crime occurred someplace urban such as New York City, where the chances seem higher that innocent bystanders will be hurt any time a crime is committed. In other words, if judges are now more free to consider penitence, what then of population density?
That question is already at the center of a legal tug of war over how much prison time an elderly diabetic, Gerard Cavera, will receive for trafficking firearms. The judge in the case, Charles Sifton of U.S. District Court in Brooklyn, has sought to stick Cavera with a longer sentence than even the prosecutors sought. The judge argues that guns are generally more damaging in New York City than other areas.
Related posts about Cavera and "local conditions" as a sentencing factor:
California Supreme Court to review sex offender residency restriction
As detailed in this San Francisco Chronicle article, headlined "State Supreme Court to hear challenge to sex-offender residency law," California's highest court has decided to give the state's new residency restrictions a closer look. Here are some particulars:
The state Supreme Court took up the incendiary issue of sex criminals' residency requirements Wednesday, agreeing to decide the constitutionality of a voter-approved law prohibiting paroled rapists and other sex offenders from living within 2,000 feet of a school or park.
The justices voted unanimously to review legal claims by four registered sex offenders, two of them from the Bay Area, who could be returned to prison for parole violations because of where they lived after being released. The court blocked the state from acting against the four men when it first intervened in their case two months ago, but parole officials have started to arrest others in similar circumstances.
The ballot measure, Proposition 83, was approved by 70 percent of California voters in November 2006. One of its provisions barred all registered sex offenders — whose crimes range from forcible rape to indecent exposure — from living within 2,000 feet of a public or private school or a park where children regularly gather. State law previously prohibited only convicted child molesters from living within a quarter-mile of a school. The new law makes most densely populated areas of California off limits to many recent parolees....
Out of more than 5,700 sex offenders now on parole, nearly 1,000 were found to be living in prohibited areas, said Bill Sessa, spokesman for the state Department of Corrections and Rehabilitation. He said only about a dozen have been arrested so far. Of the remainder, Sessa said, about half have declared themselves transients, which means either that they are homeless or that they change residences frequently. They are required to report to their parole officers daily and remain subject to arrest and imprisonment if they are staying within a 2,000-foot zone and disregard their officer's warning, he said. Others with homes inside buffer zones could face prison for parole violations.
The suit by four parolees — one from San Francisco, one from Santa Clara County and two from San Diego County, all identified in court papers by their initials — argues that it is irrational and illegal to apply residency restrictions to ex-convicts like themselves, whose sex crimes did not involve children. Three were convicted of rape and the fourth man was convicted of indecent exposure.
Because all available housing in San Francisco, and virtually all housing in the other counties, is within 2,000 feet of a park or a school, Prop. 83 "will force (the men) to choose between prison or homelessness," Ernest Galvan, a lawyer for the men, said in court papers.
As I have said in a number of prior posts, it is only a matter of time before these issue come before the US Supreme Court. It will be interesting to see if the California Supreme Court issues a kind of decision that could garner the Supreme Court's attention.
Some recent related posts:
December 12, 2007
Media wonders "what if we can no longer obsess about the death penalty"
Perhaps because there have not been any executions to write about for nearly three month because of the Baze lethal injection litigation, the AP today has this somewhat amusing new story headlined, "If Death Penalty Abolished, What Next?"
More than at any time over the past 30 years, the future of capital punishment is in limbo. The Supreme Court will hear arguments next term in a momentous lethal injection case. While it's widely expected that executions will resume in some form following that case, the moment gives Americans a chance to contemplate what would change if they stopped for good.
I think it might be more accurate to say that this moment gives members of the media a chance to contemplate what other (more important) issues it would have to obsess over if executions stopped for good.
Fascinating plea reversal from the Fourth Circuit ... and Seventh, too
The Fourth Circuit has a notable ruling in a case with remarkable facts today in US v. Mastrapa, No. 06-4512 (4th Cir. Dec. 12, 2007) (available here). Here is how it starts:
After Jose Alejandro Mastrapa agreed with two other men to transport several bags of groceries to a hotel room in Shenandoah County, Virginia, undercover agents in the hotel found five pounds of methamphetamine among the groceries and arrested Mastrapa along with the two others. Mastrapa claimed that he had agreed to give the two men a ride and help carry their grocery bags but that he did not know them or what they were doing. Nonetheless, claiming that he hoped to minimize his sentence, Mastrapa pleaded guilty to conspiracy to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1). At his Rule 11 colloquy, however, Mastrapa refused, despite questioning by the district court, to admit to the factual basis necessary to support the charges against him, and the record included no evidence of Mastrapa’s mens rea.
The district court nonetheless proceeded to accept Mastrapa’s guilty plea and sentenced him to 120 months’ imprisonment. Because we conclude that Mastrapa did not admit the necessary mens rea before entering his plea and the record contained no factual basis to support that element of the offense, we vacate the judgment entered on May 8, 2006, and remand for a new Rule 11 proceeding.
Among other notable features of this case, Mastrapa does not speak any English and his original attorney filed an Anders brief with the Fourth Circuit. The Court thereafter appointed the University of Virginia School of Law Appellate Litigation Clinic to file a brief on Mastrapa's behalf, and now he gets a redo.
UPDATE: As a commentor noted, the Seventh Circuit has a notable split ruling in US v. Sura, No. 05-1478 (7th Cir. Dec. 12, 2007) (available here) vacating a plea, though the case has more to do with an appeal waiver than a substantive misunderstanding of a plea.
USSC's "Reader-Friendly" version of retroactivity amendment
Now up at the US Sentencing Commission website is this notice:
"Reader-Friendly" Version of Amendments on Retroactivity Effective March 3, 2008 On December 11, 2007, the Commission voted to give retroactive effect to the recent crack cocaine amendment and adopted other modifications to the policy statement covering retroactivity. This reader-friendly text combines the text of the two amendments to policy statement §1B1.10 [Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)] and shows §1B1.10 as it will appear in a forthcoming supplement to the Guidelines Manual.
Official text of the amendments will be posted on the Commission’s website at www.ussc.gov and can be found in a forthcoming edition of the Federal Register. The amendments incorporated into this reader-friendly version of §1B1.10 do not take effect until March 3, 2008. Until that date, the court should apply §1B1.10 as it exists in the Guidelines Manual effective November 1, 2007.
Republican Kentucky Gov. grants many pardons and commutations
Perhaps inspired by his party's leader, as detailed in this local Kentucky story, just "before vacating his office, Gov. Ernie Fletcher pardoned or commuted the sentences of 101 people, including several convicted of murder." Here's more details from the press account:
Among those given relief by the outgoing governor are a man on Death Row, a county judge-executive who hasn't been convicted of a crime and the son of a state lawmaker. The highest-profile case Fletcher changed was the death sentence of Jeffrey Devan Leonard of Louisville.
Leonard was convicted of stabbing a store clerk in 1983. Fletcher reduced his sentence to life without parole. In his commutation, Fletcher said Leonard was not provided adequate representation by his attorney, Fred Radolovich, who has admitted he didn't even know Leonard's name during the trial. "We're not going to execute somebody who clearly was denied a basic right," said David Fleenor, the governor's general counsel. "We're not saying he's a good person."
Fletcher said he spent "hours and hours over the last few days" weighing the merits of the requests of individuals whose cases filled 10 bankers boxes. "None of those decisions that we have to make are easy but I feel like I can lay my head down and say we've done our very best to carry out the duties of the governor till our last day," he said.
In all, he announced 84 pardons and three commutations of prison sentences yesterday. On Sunday, he announced his intention to pardon nine women who sustained years of domestic abuse before killing, or trying to kill, the abusive man in their life. He also commuted the sentences of five others who committed crimes after enduring domestic abuse.
Fayette County Commonwealth's Attorney Ray Larson said prosecutors around the state are upset with Fletcher's actions, which undermine the state's legal system. "I think it's a disgrace; It's shameful," Larson said. "Why do you go through the process" of a trial? Larson said he is particularly upset that Fletcher's legal team did not bother to contact the prosecutors, victims or survivors in many of the cases.
This lengthy companion piece, headlined "Pardons without political pattern: Fletcher issues most in the past 30 years," suggests that concerns about individualized justice and not other goals drove the decision: "in this case, it's possible, experts and observers say, that Fletcher's troubled tenure and practically extinct political future simply allowed him to use one of the governor's greatest powers to do what he thought was right."
Is Senator Clinton to the right of Justice Scalia on sentencing issues?
As detailed here and here and here, I have been predicting throughout 2007 that crime and punishment issues would find a way into the Obama/Clinton battle for the Democratic presidential nomination. And this new post at The Atlantic.com suggests that the Clinton campaign thinks its "tough-on-crime" approach will help defeat Obama, although these excerpts highlight some nuanced realities:
Campaign aides have said that Obama's support for retroactivity in drug sentences would kill him with tough-on-crime white independents. But the Supreme Court, in a 7 to 2 decision yesterday that included Antonin Scalia, endorsed the view that judges could ignore sentencing guidelines when handing down prison terms for distributing crack versus powder cocaine, and a Bush administration panel today voted seven to nothing to impose retroactivity....
The approach carries risk. Polls show that Clinton is judged to be running the most negative campaign of all the Democrats, and if voters come to perceive her campaign as being in attack mode, her own favorability ratings could suffer.
As I have stressed in prior posts, I think Senator Clinton's approach to retroactivity is not just "negative," but extraordinary harmful to having a sober and balanced national conversation about crime and sentencing.
To their great credit, Justice Scalia and Chief Justice Roberts (and also Justices Stevens, Kennedy, Souter, Breyer and even Alito) have all contributed recently to help create a more balanced dialogue on these important issues. I ultimately trust other so-called "tough-on-crime white independents" to understand that it is not always good to give prosecutors extreme power in the criminal justice system. Indeed, in the wake of the Scooter Libby prosecution, the Border Agents severe sentencing and the Duke lacrosse scandal, I am hopeful that all voters are coming to understand that everyone, not just poor minorities, can suffer from inadequate checks and balances in the operation of criminal justice systems.
Some related prior posts: