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:
A Gall sighting (or citing?) in the Sixth Circuit
I think the Sixth Circuit wins the award for being the first federal appeals court to issue a published reasonableness decision incorporating the Supreme Court's work in Gall into its discussion. In US v. Lalonde, No. 06-4536 (6th Cir. Dec. 12, 2007) (available here), a panel affirms a within-guideline sentence and starts its sentencing discussion with these Gall goodies:
Post-Booker, the Sentencing Guidelines are no longer mandatory, United States v. Booker, 543 U.S. 220, 260-61 (2005), and “the ‘range of choice dictated by the facts of the case’ is significantly broadened.” United States v. Gall, 552 U.S. --, No. 06-7949, Slip Op. at 20 (Dec. 10, 2007). However, the Sentencing Act, 18 U.S.C. § 3553(a), “nonetheless requires judges to take account of the Guidelines together with other sentencing goals” when fashioning a defendant’s sentence. Booker, 543 U.S. at 261 (emphasis added). As the Supreme Court just recently clarified in Gall, “the Guidelines should be the starting point and the initial benchmark” in determining a sentence and “a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.” Slip Op. at 11 (emphasis added); accord United States v. Gale, 468 F.3d 929, 934 (6th Cir. 2006) (Post-Booker, “the district court must still consider the Guidelines in fashioning a defendant’s sentence, and must construe them correctly in doing so.”).
On appeal, we must ensure that the district court properly calculated the advisory Guidelines range as part of its overall consideration of the § 3553(a) factors. See Gall, Slip Op. at 12 (directing appellate courts to “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range”).
"Give them McDeath, not McLiberty"
Though there will surely be lots of different political reactions to the US Sentencing Commission's crack retroactivity decision, I found this news item reporting on one reaction especially notable:
Yesterday, Congressman Patrick McHenry (R-NC-10) issued the following statement in response to the U.S. Sentencing Commission’s decision to give retroactive leniency to convicted crack cocaine abusers and dealers.....
“The bottom line is this decision will let over 500 convicted criminals loose on the streets of Western North Carolina, and, frankly, that is unacceptable,” said Congressman McHenry. “The Commission’s decision defies basic common sense, and poses a serious threat to public safety.”
I suppose, were this congressman to get a guest spot on Grey's Anatomy, he might get the moniker "McMeany."
In all seriousness, Congressman McHenry's concerns are understandable, but my "basic common sense" tells me that the federal judges in North Carolina and nationwide will, as the USSC urges, give special attention to public safety issues before letting too many dangerous criminals loose on the streets.
More broadly, this visceral reaction to crack retroactivity spotlights the serious possibility that some members of Congress might make a serious effort to undo the USSC's work yesterday before it becomes effective in March 2008.
Once around the blogosphere
Not suprisingly, with so much sentencing action this week, the legal blogosphere is full of interesting posts:
- At SCOTUSblog, Frank Bowman has this pitch perfect Rashomonian assessment of Gall and Kimbrough from three perspectives
Major media coverage of crack retroactivity decision
As he does so well, Howard Bashman has collected here some of the major media coverage of the US Sentencing Commission's decision to make its new crack guidelines retroactive. The Washington Post has this front page article, which includes a number of notable quotes:
"Making the revised guidelines for crack cocaine retroactive will make thousands of dangerous prisoners, many of them violent gang members, eligible for immediate release," Craig S. Morford, acting deputy attorney general, said in a statement released by the Justice Department. "These offenders are among the most serious and violent offenders in the federal system."...
"The profound reason why we should get this retroactive application is it is the right thing to do," Vice Chair Ruben Castillo said minutes before the vote. "We should constantly strive to make sure that race plays no role in the day-to-day operation of the criminal justice system."
Commissioner Beryl A. Howell called the vote "one of the most important decisions the commission has made" during her three years of service. She noted that the panel contributed to the disparity by establishing guidelines that were even more severe than what Congress allowed for in the Anti-Drug Abuse Act of 1986....
But the change is not a "get out of jail free" card, said commissioner Michael E. Horowitz. "Not everybody is automatically entitled to this reduction," he said, explaining that federal judges, many of whom supported making the guidelines retroactive, will decide cases individually on merit....
Karen Garrison, a D.C. mother whose twin sons, both Howard University graduates whose convictions were based on witness testimony, said: "This is the first time I have really been excited about anything." Lamont Garrison's 19-year sentence could be reduced by four years, and Lawrence's sentence could be reduced by three. Secoya Jenkins, 16, of Orange, N.J., smiled broadly and said, "I'm excited because my mom is coming home." Nerika Jenkins, 35, also convicted because of witness testimony, is serving a 19-year sentence.
"It is a remarkable day," said Marc Mauer, executive director of the Sentencing Project. "While this is only the federal system and it's a small change, it's going to resonate around the world."
December 11, 2007
Some legal particulars around crack retroactivity implementation
In this official press release, the US Sentencing Commission reviews some of the legal particulars involved in its crack retroactivity decision:
Retroactivity of the crack cocaine amendment will become effective on March 3, 2008. Not every crack cocaine offender will be eligible for a lower sentence under the decision. A Federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered. That determination will be made only after consideration of many factors, including the Commission’s direction to consider whether lowering the offender’s sentence would pose a danger to public safety.
The statutory overlay to all this come from this intricate statutory text set out in 18 U.S.C. § 3582(c)(2), which provides:
(c) Modification of an Imposed Term of Imprisonment.— The court may not modify a term of imprisonment once it has been imposed except that ... (2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
I have added the bold and italics to highlight what seem to be key legal concepts going forward. Specifically, now that the USSC has made the guidelines retroactive, district courts can entertain what might be called a "modification motions" or a "3582(c)(2) motions" and may reduce a prison term if and when doing so is consistent with the Commission's policy statements (which were apparently issued today and emphasize consideration of public safety).
A few circuit rulings have suggested that full Booker resentencings should be the result of these modification motions, but I am not sure the statutory text supports this view. That said, though, some defendants may develop creative constitutional or statutory argument to try to max out the possible benefits flowing from the USSC's new guidelines. Stay tuned.
A new batch of Bush pardons and a crack commutation
As detailed in this AP story, the White House has just announced that "President Bush granted pardons Tuesday to carjackers, drug dealers, a moonshiner and an election-laws violator but not to I. Lewis "Scooter" Libby." Also conspicuously absent from the list of 29 convicts granted a pardon are former Border Agents Compean and Ramos. As the AP story details, "[n]early all of those to win pardons this year were small-time crooks who at most were imprisoned for five years. Many of them never served time at all, and instead were fined or put on probation."
Fascinatingly, the single commutation in this batch of clemency grants (official list here) was to a defendant sentenced to nearly 20 years on a crack offense and still serving that sentence. It is quite an amazing bit of timing that one of a tiny handful of Bush commutations was granted to a crack defendant on the very same day that the US Sentencing Commission made its reduced guidelines retroactive and the day after the Kimbrough ruling. Amazing times and a December to remember.
Coincidentally, it seems, the folks at The Huffington Post here have started a "I'll Be Freed For Christmas 2008 George W. Bush Pardon Pool."
Some related posts:
- Scooter Libby drops appeal ... is a holiday pardon on the way?
- Bipartisan call for commuting border agent sentences
- Another bipartisan call for President Bush to commute border agent sentences
- Few giving the President sentencing thanks
- ACS issue brief on the pardon power
- Latest FSR issue on "Learning from Libby"
Official USSC press release on crack retroactivity
The United States Sentencing Commission unanimously voted today to give retroactive effect to a recent amendment to the Federal Sentencing Guidelines that reduces penalties for crack cocaine offenses. Retroactivity of the crack cocaine amendment will become effective on March 3, 2008. Not every crack cocaine offender will be eligible for a lower sentence under the decision. A Federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered. That determination will be made only after consideration of many factors, including the Commission’s direction to consider whether lowering the offender’s sentence would pose a danger to public safety....
On November 1, 2007, after a six-month congressional review period, the Commission’s amendment to the Federal sentencing guidelines for crack cocaine offenses took effect. The amendment was intended as a step toward reducing some of the unwarranted disparity currently existing between Federal crack cocaine and powder cocaine sentences. The Sentencing Reform Act of 1984 specifically authorized the Commission to provide for retroactive effect of amendments that result in lower penalties for classes of offenses or offenders, as this amendment could.
The Commission made its decision on retroactivity of the crack cocaine amendment after months of deliberation and years of examining cocaine sentencing issues. It solicited public comment on the issue of retroactivity and received over 33,000 letters or written comments, almost all of which were in favor of retroactivity....
The Commission considered a number of factors during its deliberations, including the purpose for lowering crack cocaine sentences, the limit on any reduction allowed by the amendment, whether it would be difficult for the courts to apply the reduction, and whether making the amendment retroactive would raise public safety concerns or cause unwarranted sentencing disparity in the federal system. Ultimately, the Commission determined that the statutory purposes of sentencing are best served by retroactive application of the amendment. Mindful of public safety and judicial resource concerns, the Commission today issued direction to the courts on the limited nature of this and all other retroactive amendments and on the need to consider public safety in each case. The Commission delayed the effective date of its decision on retroactivity in order to give the courts sufficient time to prepare for and process these cases.
The Commission’s actions today, as well as promulgation of the original amendment for crack cocaine offenses, are only a partial step in mitigating the unwarranted sentencing disparity that exists between Federal powder and crack cocaine defendants. The Commission has continued to call on Congress to address the issue of the 100-to-1 statutory ratio that drives Federal cocaine sentencing policy. Only Congress can provide a comprehensive solution to a fundamental unfairness in Federal sentencing policy.
Time for a round of applause and some sympathy
As we await further specifics on the US Sentencing Commission's crack retroactivity decision (which I hope will appear on its website soon), I have to applaud the work of both "USSC"s this week: the rulings in Gall and Kimbrough yesterday by the US Supreme Court struck me as very sound, and the decision today by the US Sentencing Commission to give retroactive effect to its new crack guidelines also seems wise from a number of perspectives. Both institutions merit special praise for achieving near consensus in its decisions: Gall and Kimbrough were the least divided or divisive sentencing rulings from the Supreme Court in nearly a decade, and the Commission managed to engineer a partial crack fix that garnered broad support and (so far) has not prompted any serious political backlash.
Along with applause for these folks inside the Beltway, everyone should now have lots of sympathy for the judges, lawyers, probation officers and others around the nation who will have to deal with the significant practical fall-out from a historic week of federal sentencing. Implementing on a case-by-case basis the new crack guidelines to previously sentenced defendants will not be easy and will surely generate complicated legal issues. Similarly, though Gall and Kimbrough help clarify some additional post-Booker realities, they still leave plenty of questions to consider (and reconsider) in lower courts. In other words, a nice bottle of wine (or maybe a Starbucks gift card) would be a great holiday gift for anyone you know who works in or around the federal criminal justice system.
USSC unanimously votes to make new crack guidelines retroactive...
Though I am relying here on second-hand reports, I have now on pretty good authority from two sources that the US Sentencing Commission today voted to make its new crack guidelines retroactive. Here's what I received from one of these reputable sources:
The vote is yes — they have made the amendment retroactive effective March 3, 2008.
They also promulgated an application note intended to restrict resentencings exclusively to the issue of the two-level reduction. It makes public safety a central concern for courts to evaluate when reconsider these sentences.
Assuming this report is accurate, this strikes me as another example of the Commission's commitment to justice being effectively implemented with political savvy. It also makes me wonder whether Senator Hillary Clinton or anyone else who has come out against retroactivity might try to get Congress to overturn this decision before it will become effective in three months.
UPDATE: FAMM has this press release discussing the decision on its website.
In praise of the USSC's recent crack work (so far)
As I await word on the US Sentencing Commission's hearing on crack retroactivity this afternoon (background here and here and from TalkLeft here), I want to take just a moment to praise the USSC's work on this important issue. Though I have often been (justifiably?) hard on the Commission's post-Booker efforts, I have been quite impressed with both the commitment to justice and the political savvy shown by the Commission throughout 2007.
I have argued in a number of recent articles (such as "Tweaking Booker..." and "Beyond Blakely...") that the Commission can and should be a leading voice for sound sentencing reforms in the wake of the Supreme Court's Blakely/Booker jurisprudential earthquake. Though I hope and wish the Commission will get serious about deep systemic reform of a number of federal sentencing problems, its attentiveness to the crack/powder disparity shows that it is not afraid to take on a politically-charged issue when a true commitment to justice demands action. Especially impressive has be the transparency with which the USSC has proceeded in the crack arena, informing all interested persons about its plans and giving everyone a reasonable opportunity to weigh in.
Of course, I may have to take back all this praise if the USSC does not have sufficient courage to make its new guidelines retroactive. However, I am cautiously optimistic that the USSC will have the courage of its convictions and will enable previously-sentenced defendants to be eligible to get the benefit of the improved (though still imperfect) new crack guidelines.
Looking at some the realities of reentry
Though not quite stated in these terms, some of the debate over the retroactivity of the new crack amendments is really a debate about whether the offenders that might benefit from the reduced sentences are prepared to re-enter the community and become productive citizens. Against this backdrop, this new article about reentry realities in US News & World Report is a must read. Here are some highlights:
Getting cons to stay ex-cons has long been one of the most vexing challenges of the criminal justice system. One out of every 31 American adults is in jail, on parole, or on probation, and the central reality is this: Nearly everyone who enters the prison system eventually gets out.
The problem is, most of those ex-offenders quickly find themselves back inside. Today, ending the cycle of recidivism has become an increasingly urgent problem as communities nationwide are forced to absorb record numbers of prisoners who also often struggle with addiction and other illness.
There are more than 1.5 million people in state or federal prison for serious offenses and 750,000 others in jail for more minor crimes. Prison populations have swelled since the early 1970s, and now offenders are returning to their neighborhoods at a rate of more than 1,400 per day. In 1994, nearly 457,000 prisoners were released from state and federal custody, and in 2005, almost 699,000 prisoners were released. That is the largest single exodus of ex-convicts in American history....
The process of coordinated prisoner reintegration is now known as "re-entry," rather than rehabilitation or release. Whereas rehabilitation assumed that individuals could change on their own, re-entry focuses on educating employers and communities about how they can help the offender on the outside. It aims to break though the red tape that has historically delayed social services for felons and to prevent the snags — like drug treatment programs that reject offenders who have been clean only a short time — that keep them from making a healthy return to society.
In practice, that means synchronizing many different social and correctional services while offenders are still inmates and continuing that assistance after their release. Re-entry programs don't necessarily require more funding, just better coordination of existing resources like job training and stable housing. "Rehab is focused on the individual offender; re-entry is about communities, families, children, coworkers, and neighbors," says Amy Solomon, a criminal justice researcher at the Urban Institute.
Eighth Circuit needs no Gall to affirm above-guideline sentence
As many folks recognize, the pro-discretion ruling in Gall does not ensure lighter sentences for everyone: Gall seems to give district courts even more discretion to sentence above the guidelines and should lead circuit courts to review these decisions more deferentially. However, a decision handed down this morning by the Eighth Circuit in US v. Jones, No. 07-1212 (8th Cir. Dec. 11, 2007) (available here), highlights that district and circuit courts really did not need Gall to feel comfortable imposing and approving above-guideline sentences.
In Jones, the district court relied on the defendant's misconduct in jail while awaiting sentencing to add nearly 1.5 years of additional imprisonment to his suggested guideline sentence. The Eighth Circuit panel in Jones, not surprisingly, finds a way to uphold this enhanced sentence despite a thin sentencing record that it has previously found insufficient to support reduced sentences. This Jones opinion was likely completed last week; it does not mention Gall, though Jones now seems sounder in the wake of the Supreme Court's repeated assertion that reasonableness review should be highly deferential.
The weighty guidelines question after Gall
I have now re-read the Supreme Court's work in Gall, and I am intrigued by a weighty question left unaddressed by the majority opinion — namely, how much weight can and should the guidelines be given in a post-Booker advisory sentencing system.
After Booker, many lower courts tried out various terms to define the amount of weight to be given to advisory guidelines — ranging from "heavy" to "substantial" to "considerable" — although the nomenclature seemed more important as an attitude than as a concrete standard. Notably, the majority opinion in Gall does not directly address this issue. Intriguingly, the Gall majority says "the Guidelines are only one of the factors to consider when imposing sentence," Gall slip op. at 20-21, but earlier it indicated that "district courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process." Id. at 11 n.6.
Intriguingly, Justice Alito's solo dissent is focused on weight issues. He repeatedly asserts his view that the Booker remedy should be interpreted to mean that "sentencing judges must still give some significant weight to the Guidelines sentencing range." Slip op. at 8. But the fact that he is writing alone — and does not get the vote of any Justices who joined the Booker remedy, not even Justice Breyer who is such a guideline fan — suggests that all the other Justices do not think that the guidelines must be given "some significant" weight. That said, as Justice Alito stresses in the final footnote of his dissent, it does seem that the Court still believes the guidelines must be given "some weight."
In short, after Booker, it seems that federal sentencing does not require giving "some significant weight" to the advisory guidelines, and yet giving them "some weight" is still required. Got that district judges?
A preview of USSC crack retroactivity vote
As spotlighted here, the US Sentencing Commission has this public meeting scheduled for 3:30pm today, at which it seems likely to resolve whether its new crack guidelines can be applied retroactively. A few new stories covering this consequential issue include this AP story, " Panel Weighs Easing Old Crack Sentences," and this ABC News piece, "Panel to Consider Crack Sentence Reductions."
Here is an abridged account of some of my prior blog coverage:
- USSC analysis on potential crack amendment retroactivity impact
- Thoughtful review of crack amendment retroactivity debate
- Latest FSR issue covers crack sentencing
No matter what the USSC decides this afternoon, this story is going to march on. There will surely be a lot of lower court litigation (and likely some disparate legal rulings) regardless of whether the USSC makes its new crack guidelines retroactive. But, critically, what the USSC decides will set the terms of debate and the broader tone of this inevitable litigation.
Judicial reactions, formal and informal, to Gall and Kimbrough
As detailed in this Los Angeles Times piece, headlined "To some jurists, high court ruling brings vindication," federal sentencing judges long troubled by the rigidity and severity of the federal guidelines are sure to celebrate the Supreme Court's work yesterday in Gall and Kimbrough. Here is the start of the article:
To judges and others who long battled strict federal sentencing rules for crack cocaine offenders -- considered draconian and racist by longtime opponents -- Monday's Supreme Court decision brought vindication. "I am delighted," said veteran Los Angeles federal Judge Terry J. Hatter Jr., who for more than 20 years has publicly assailed federal sentencing laws as ill-conceived and unfairly targeted toward minorities. "This brings some justice back to our justice system," the 74-year-old jurist added.
The article also reminded me that some circuits have still pending some major en banc cases dealing with various post-Booker issues that now may look different after Gall and Kimbrough (e.g., the Sixth Circuit has yet to decide Vonner and the Ninth Circuit still has Zavala and Carty to resolve).
More generally, as Michael O'Hear and Carissa Hessick have rightly stressed in posts at SCOTUSblog, there is plenty of dicta in Gall and Kimbrough to allow, in Hessick's words, "those appellate courts that have clung to the Guidelines in the wake of the Court's decision in Booker to continue to do so."
In sum, then, as was true after Booker and Rita, how lower courts formally and informally react and construct an understanding of Gall and Kimbrough will determine whether the decision marks a significant turning point, or just a relatively minor tweak, in the post-Booker federal sentencing universe.
All the sentencing discretion that's fit to analyze
Effectively covering the Supreme Court's work in Gall and Kimbrough, the New York Times has these two strong pieces:
- From Linda Greenhouse here, "Court Restores Sentencing Powers of Federal Judges"
- From Adam Liptak here, "Given the Latitude to Show Leniency, Judges May Not"
Both article astutely note that another big federal sentencing story may break Tuesday afternoon. As Liptak's piece explains:
Indeed, this week's sentencing decision most likely to have the broadest short-term impact is not on the Supreme Court’s docket. On Tuesday, the United States Sentencing Commission is set to decide whether more than 19,000 federal prisoners convicted on charges involving crack cocaine should be eligible for re-sentencing based on amendments to the guidelines that became effective last month. The amendments reduced the disparity between sentences for crack and powder cocaine.
December 10, 2007
New Jersey on path to kill its moribund death penalty
As detailed in this New York Times article, New Jersey's legislature took its first major step toward abolishing the state's death penalty. Here are details:
The New Jersey Senate voted Monday to make the state the first in the country to repeal the death penalty since the United States Supreme Court allowed executions to resume in 1976 and established the nation’s current system of capital punishment. Passage in the Senate was seen as the bill’s biggest obstacle, and in the end it was approved 21 to 16, receiving the bare minimum number of votes required.
Legislators on both sides of the debate expect the measure to pass easily on Thursday in the Assembly, where the Democrats enjoy a 50-to-30 majority. Gov. Jon S. Corzine, a staunch opponent of the death penalty, has repeatedly said he would sign a measure ending executions....
Opponents of the death penalty said today that they hoped that New Jersey’s action would re-energize movements in states that have recently voted down abolition bills and serve as a catalyst for other states to revisit their capital punishment laws....
While the Senate vote mainly broke down along party lines, four Republicans did break from the party leadership and vote for the bill. Three of them — Mr. Martin, James J. McCullough and Joseph A. Palaia — will not be returning to the Senate when the new Legislature is seated next month.
Earlier in the day, legislation to replace the death penalty with life in prison and no chance of parole was approved by the General Assembly’s Law and Public Safety Committee.
Some related posts:
A district judge who is true to his word
Long-time readers with great long-term memories may recall an entertaining opinion written in the weeks after Booker by US District Judge Richard Kopf. In US v. Wanning, No. 4:03CR3001-1 (D. Neb. Feb. 3, 2005) (discussed here), Judge Kopf rejected Judge Pratt's view that the guidelines are just to be one of many factors considered by sentencing judges after Booker. When expressing his view in Wanning, Judge Kopf added this footnote:
I like and have great respect for Judge Pratt. Nothing I say in this memorandum is intended as a personal criticism of him. I simply (but strongly) disagree with his legal reasoning on this subject. While I take the liberty of using Judge Pratt's decision as an example of a methodology that I think is incorrect, I certainly do not intend to single him out. Indeed, and to be fair, many of my colleagues (Judges Bataillon and Strom, for example) side with Judge Pratt. If I turn out to be wrong, I will buy them all a beer.
Id. at slip op. at 2 n.2 (empahsis added)
In the wake of Judge Pratt's ruling in Gall being affirmed today by the Supreme Court, I received this e-mail from Judge Kopf (which he graciously allowed me to post here):
I wrote Bob Pratt today, with copies to Joe Bataillon and Lyle Strom, indicating that I owe them all a beer. It now occurs to me that I owe you one as well. Until I pay you, feel free to publish this mea culpa as my guarantee that beer is on the way to Columbus.
Take care.Rich KopfUnited States District Judge
A manic Monday recap, and a dinner break
I predicted over the weekend that this could be quite the sentencing day, and it sure has not disappointed. Of course, the strong statements by a strong majority of the Supreme Court in Gall and Kimbrough is the most consequential news (and How Appealing collects early media coverage here). But I suspect non-lawyers will ultimately end up spending more time talking about the federal sentences given today to Michael Vick and Conrad Black. Whatever your interest, as I head out to a needed dinner break, here is a review of my posts covering manic Monday (many of which have great reader comments):
SCOTUS RULINGS IN GALL AND KIMBROUGH
- SCOTUS rules for the defendants in Gall and Kimbrough!!
- The start of the majority opinion in Gall
- The start of the majority opinion in Kimbrough
- A quick take on winners and losers in Gall and Kimbrough
- A quick Justice-by-Justice review of Gall and Kimbrough
- FSG are truly advisory (even in crack cases), but what about....
OTHER NOTABLE SENTENCING NEWS
- Michael Vick gets 23 months in prison
- Conrad Black gets 78 months (after a favorable guideline ruling)
- Scooter Libby drops appeal ... is a holiday pardon on the way?
- SCOTUS also rules for the defendant in Watson
As we reflect on all these developments, it is worth spotlighting that both Michael Vick and Conrad Black ended up getting within-guideline sentences. This is a useful reminder that, even now after the Supreme Court has clarified in Gall and Kimbrough that the federal guidelines are really, truly, yes-we-really-mean-it advisory, lots of sentencing judges are still going to be following the guidelines advice.
A shameful break from all the FSG talk
Thanks to a number of kind readers, amidst all the federal sentencing excitement I still found time to read this interesting article from the New York Times headlined "A Starring Role for Drivers Who Drink." As regular readers know, I tend to be a cautious supporter of shaming sanctions and I tend to worry that sentences for DWI are often too lenient given all the lives lost and persons harmed by drunk drivers. Consequently, I am intrigued by the article's discussion of a new type of shaming sanction:
A conviction for driving under the influence of alcohol is something many people try to conceal, even from their families. But now the bleary-eyed, disheveled and generally miserable visages of convicted drunken drivers here, captured in their mug shots, are available to the entire world via a Web site.
The hall of shame is even worse for drunken drivers convicted of a felony. A select few will find their faces plastered on billboards around Phoenix with the banner headline: Drive drunk, see your mug shot here.
The Web site and billboards, which began last month, are the brainchildren of Andrew P. Thomas, the county attorney here who has served as the prosecutorial counterpart to the county’s hard-edged sheriff, Joe Arpaio, who has been known to force inmates into pink underwear. The purposes of the billboards and the Web site, Mr. Thomas has said, are to inform the public about drunken-driving laws, and to serve as a deterrent. “People tend to like it, and it gets a message across to the offender,” said Mike Scerbo, a spokesman for Mr. Thomas, who declined to be interviewed. “We haven’t heard any complaints.”
There are five billboards near freeways in the Phoenix area, with Mr. Thomas’s name in bold letters, and more will be up soon, Mr. Scerbo said. While other states have used shame tactics like forcing convicted drunken drivers to use special license plates or pick up roadside litter wearing a placard announcing their crimes, defense lawyers and the spokeswoman for the national chapter of Mothers Against Drunk Driving said they had never heard of billboards or the Internet being used as scarlet letters. The billboards will only feature convicted felons, whose crimes, which almost always involve someone’s death, are explained in detail on the Web site, StopDUIAZ.com.
Scooter Libby drops appeal ... is a holiday pardon on the way?
As very well covered by various bloggers here and here and here, the legal teams for I. Lewis "Scooter" Libby has announced that Libby has decided to drop his appeals of his convictions. For a variety of reasons, I do not find this news especially surprising simply as a matter of economics and practicalities given that, even if his appeal was successful, Libby still could have faced an unpleasant retrial.
What is interesting is the timing of this announcement. TalkLeft here speculates on a pardon this holiday season, though I do not know why President Bush would not be content to wait until the traditional lame duck clemency season next year. Then again, maybe Scooter is upset that, because of federal felon-in-possession laws, he will not able able to go hunting this season (or any other) unless and until he gets a pardon.
Another possibility is that Libby, after learning that the latest issue of the Federal Sentencing Reporter is all about his case (details here; available on-line here), decided he needed more time to reflect on the lessons to be drawn from his case.
FSG are truly advisory (even in crack cases), but what about....
... guidelines increased based on acquitted conduct? Justice Scalia continues to suggest that sentences based heavily on acquitted conduct present as-applied Sixth Amendment violations even within an advisory guideline system.
... below-guideline sentences reduced based on co-defendant or state/federal or fast-track disparities? Circuit courts have generally held it to be improper for a district court to consider these types of disparities, but these same circuits had also said consideration of crack/powder disparity was improper. Especially in light of Justice Stevens' opinion in Gall, the Supreme Court seems to be blessing the consideration of co-defendant disparities, but state/federal and fast-track disparities present tougher questions.
... below-guideline sentences based on policy disagreements with the guidelines' overall severity? Can a judge act on his reasoned conclusion, perhaps supported by lots of data and the USSC's own reports, that he genuinely believes the guidelines are 25% too harsh in all non-violent cases? That is, could a judge, after properly calculating a guidelines range as "the starting point and the initial consideration," consistently and repeatedly impose a sentence 25% below the guidelines in every non-violent case based simply on his policy conclusion that the guidelines set sentences to high in such cases to serve 3553(a)?
... above-guideline sentences imposed without advance notice of the reasons to the defendant? or ... within-guideline sentences based on an guideline manual that increased sentences since the time of the crime? As previously noted in prior posts, there are circuit splits on these issues in the wake of Booker that Rita and Gall and Kimbrough do not come close to resolving.
I am sure I have left out other post-Booker head-scratchers that will ensure there is lots to keep me and others plenty busy in the weeks and months ahead.
Conrad Black gets 78 months (after a favorable guideline ruling)
Former newspaper mogul Conrad Black was sentenced Monday to 6 1/2 years in prison for swindling shareholders in his Hollinger International media empire out of millions of dollars to help finance his lavish lifestyle.
Black, 63, a Canadian-born member of the British House of Lords renowned for his flamboyant way with words, had faced up to slightly more than 8 years in prison under sentencing guidelines determined earlier Monday by U.S. District Judge Amy J. St. Eve.
Federal prosecutors previously asked St. Eve, who presided over Black's four-month trial earlier this year, to sentence the silver-haired press lord to federal prison for as long as 24 years for his July 13 convictions on three counts of mail fraud and one count of obstruction of justice.
As hinted in this account, Lord Black got the benefit of very favorable guideline rulings at the outset of his sentencing and they got a sentence at the bottom of the calculated guideline range. It will be interesting to see if the Government, after Black appeals his convictions, considers a sentencing cross-appeal.
A quick Justice-by-Justice review in Gall and Kimbrough
There is so much to say about the substance of the rulings in Gall and Kimbrough (basics here), and I will likely need a few days to unpack all the important particulars. Here I want to do a quick Justice-by-Justice review what we see in Gall and Kimbrough, in part because I think it could foreshadow the Court's work on any number of future sentencing issues. So here goes:
Justice Ginsburg, the author of Kimbrough, reveals yet again that she only agreed to the Breyerian Booker remedy on the theory that the guidelines would be truly advisory. Throughout her opinion she emphasizes a number of key facets of a truly advisory guideline system that should help ensure district courts appreciate how much discretionary sentencing authority they now have.
Justice Stevens, the author of Gall, reveals yet again that he can give the defense bar lots of great dicta. His Rita concurrence was full of potent dicta, and many aspects of the Gall ruling support arguments of stressed by defense attorneys (e.g., the seriousness of supervised release and probation terms; the importance of co-defendant disparity under 3553(a)(6)).
Chief Justice Roberts and Justices Breyer and Kennedy, the three Justices who do not bark at all but join both majority opinions, reveal general disinterest and/or general exhaustion. As was true with his vote in Cunningham, CJ Roberts seems more interested in harmony and stare decisis than in grinding and particular sentencing ax. As shown by their opinions in Rita and Cunningham, Justices Breyer and Kennedy seem most concerned that guidelines, the Commission, and judicial power remain vibrant even in Apprendi-land, and Justice Breyer likely got both Justices Stevens and Ginsburg to add a bit of dicta to that end in Gall and Kimbrough.
Justice Scalia, the author of brief concurrences in both Gall and Kimbrough, continues to emphasize his concern with sentencing procedures and the Sixth Amendment. Especially for issues like acquitted conduct enhancements, it is nice to see Justice Scalia continue to stress the viability of "as-applied constitutional challneges to sentences."
Justices Souter and Thomas, both of whom write separately to show they are still mad at Ginsburg for following the Breyer pied piper down the road of advisory guidelines, express their aggravation for the tangled web that the Booker remedy has weaved. Ever the genteel New Englander, Justice Souter makes a simple call to Congress to get back to mandatory guidelines that respect the Sixth Amendment; ever the grumpy Gus, Justice Thomas makes an impassioned statement that, because the post-Booker jurisprudence has become so lawless, he's just not going to take it anymore.
Justices Alito, who authors the only real substantive dissent in either case, shows that his pro-prosecution instincts are stronger than his allegiance to statutory text. Nowhere is his dissent does he address the parsimony mandate of 3553(a), even though he concedes that a reasonable jurist "could conclude that a sentence of probation [for Brian Gall] was sufficient in this case to serve the purposes of punishment set out" in 3553(a)(2).
A quick take on winners and losers in Gall and Kimbrough
I have now had a chance to read both Gall and Kimbrough, and I am really intrigued and impressed by how much good stuff is packed into two relatively short opinions. (Perhaps it helps that, for the first time in a major Apprendi, Blakely, Booker case, Justice Breyer does not have anything to say. In a future post, I plan to do a Justice-by-Justice take on what these two rulings show us about the Justices.) Let me provide a much-too-quick review of my sense of winners and losers:
- All District Courts, which now should feel even more comfortable coming to their own independent judgments about the application of 3553(a) to reach what they consider to be just sentencing outcomes.
- The US Sentencing Commission, which gets some dicta love in both opinions and now has even more cover for its likely decision to make its new crack guidelines retroactive.
- Federal Defense lawyers, who now have many new and renewed arguments for arguing for below-guideline sentences.
- Most Circuit Courts, which were chided in both opinions for not giving enough respect to either the Supreme Court's decision in Booker to make the guidelines advisory or to district court efforts to take seriously the idea that the guidelines are truly just advisory.
- Some crack defendants sentenced within the old guidelines, who may have failed to preserve the argument that the crack/powder disparity alone provided a valid basis for a below-guideline sentence.
Win some, Lose some
- The Department of Justice, which technically lost both of these cases, but likely can find enough helpful dicta to continue to urge most district courts to continue to impose within-guideline sentences.
- Most Federal Defendants, who are not like Brian Gall and cannot always be confident that a sentencing judge won't use her discretion to impose a sentence above the guidelines.
- Congress and the 2008 Campaigns, which could reasonably decide to make much, or to completely ignore, these rulings.
UPDATE: I am pleased to see my friend Mark Osler has this post at SCOTUSblog with his own sense of winners and losers. Here are headings from his post:
- Winner: Parsimony Provision
- Loser: Judicial Transparency
- On the Horizon: Booker, Part 2?
Michael Vick gets 23 months in prison
The Atlanta Journal Constitution has this report on this morning's sentencing for Michael Vick. Here are the basics:
Michael Vick was sentenced Monday to 23 months in prison by a federal judge who found the fallen NFL star had not fully accepted responsibility for his conduct in a dogfighting operation. U.S. District Court Judge Henry E. Hudson said he believed Vick had been less than candid in admitting to killing pitbulls that did not test well as fighting dogs.
The judge also noted that Vick had given contradictory statements to officials regarding his drug use while out on bond. Vick tested positive for marijuana in September shortly after entering a plea agreement. Vick, wearing a black and white stripped prison jumpsuit, acknowledged to Hudson that he had made some bad decisions. "I'm willing to deal with the consequences and accept responsibility for my actions," Vick told Hudson.
After Vick apologized to Hudson, his family and his children, Hudson told him he should also apologize "to the millions of young people who looked up to you." Hudson called Vick's actions "cruel and inhumane" and said Vick played a major role by financing the dogfighting operation. "You were a full partner and equally culpable," with his three co-defendants. Vick also received three years probation.
Should the Vick and Black sentencings be postponed so the judges and lawyers can review Gall and Kimbrough?
If I were representing either Conrad Black or Michael Vick, I think I would ask for sentencing to be postponed, at least for a few days, so everyone can review and assess what Gall and Kimbrough might mean for their cases. For a variety of reasons, I somewhat doubt that these sentencing proceedings will be postponed, but I am interested to hear if readers think that they should be.
UPDATE: Vick already has been sentenced, and to 23 months. Basics from the AJC here.
The start of the majority opinion in Kimbrough
Here is how the Kimbrough decision's majority opinion authored by Justice Ginsburg gets started:
We hold that, under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only, and that the Court of Appeals erred in holding the crack/powder disparity effectively mandatory. A district judge must include the Guidelines range in the array of factors warranting consideration. The judge may determine, however, that, in the particular case, a within- Guidelines sentence is “greater than necessary” to serve the objectives of sentencing. 18 U. S. C. §3553(a) (2000 ed. and Supp. V). In making that determination, the judge may consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses.
The start of the majority opinion in Gall
Though the Kimbrough decision may garner more attention because of the historical controversies over crack sentencing, the Gall decision likely will be the most consequential for post-Booker sentencing realities. Here is how Justice Stevens summarizes the majority's decision:
We now hold that, while the extent of the difference between a particular sentence and the recommended Guidelines range is surely relevant, courts of appeals must review all sentences — whether inside, just outside, or significantly outside the Guidelines range — under a deferential abuse-of-discretion standard. We also hold that the sentence imposed by the experienced District Judge in this case was reasonable.
SCOTUS also rules for the defendant in Watson
Though much less consequential than the rulings in Gall and Kimbrough (basics here), the Watson case was also decided today by the Supreme Court. Here's the basics from SCOTUSblog:
In the last of three rulings on Monday, the Court decided unanimously that one does not “use” a gun, for purposes of imposing a mandatory five-year sentence, if the person receives the gun in a trade for drugs. Justice David H. Souter wrote the opinion in Watson v. U.S. (06-571).
The opinion in Watson (06-571) is here, and this ruling (along with Gall and Kimbrough) reinforce my view that the US Supreme Court is right now the most pro-defendant appellate court on criminal sentencing issues in the nation. Whatever one thinks about the Court's purported moves to the right on other issues, in the arena of criminal sentencing, federal defendants certainly should be more hopeful arguing before the current Justices than before any other group of appellate judges.