December 12, 2007
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.