February 10, 2007
Howard Bashman has collected helpful materials highlighting two on-going important California sentencing stories:
- Coverage of developments with Proposition 83 and sex offender residency restrictions is here.
- Coverage of more Cunningham fallout is here based on a Sacramento Bee article that begins this way: "A U.S. Supreme Court ruling that struck down a key aspect of California's sentencing law is causing widespread confusion in the state's criminal courts, and an extraordinary rape case in Sacramento may be the first case statewide to struggle with its effects."
A medley of clips from Medley
Tenth Circuit Judge Michael McConnell probably earned his place in my Sentencing Hall of Fame with his strong recent article entitled "The Booker Mess" (discussed here). But his place surely is secured by his amazing concurrence in the Tenth Circuit's Medley decision (discussed here). Here are just a few of the many terrific insights from Judge McConnell's work in Medley:
[T]here are reasons to think that our current system of sentencing has a systematic bias in favor of higher sentences on remand from successful appeals, even successful appeals by the defendant. If so, this presents troubling questions of fairness and possibly even of due process, wholly apart from any "actual vindictiveness" on the part of district judges.
In any complex system — and the Sentencing Guidelines surely qualify — there is a not-insubstantial chance that those who administer the system will make mistakes, overlooking potentially applicable adjustments and enhancements. Odds are that most of these mistakes are to the benefit of the defendant, because the vast majority of Guidelines provisions relate to upward enhancements rather than downward adjustments....
It follows that, if those who administer the system have occasion to scour the Guidelines a second time with respect to a particular defendant, they often will discover reasons why the advisory Guidelines range should be increased. Whenever a sentence is appealed and reversed, such an occasion will present itself. That is what happened here: on appeal, and then after remand, the government re-examined the PSR calculations, objected to the errors, and obtained a higher sentence. This suggests that, after reversal on appeal, many defendants will end up worse off even though they were the victors in the appellate court.
If these speculations are valid, defendants may be wary of appealing lest, on remand, the probation office and the prosecution revisit the Sentencing Guidelines calculations and calculate a higher range. This opportunity for sentence recalculation is effectively a tax — payable in months or even years of additional prison time — on taking an appeal. This strikes me as unfair to the defendant and bad for the system. Appeals serve an important function, and we should not create disincentives for criminal defendants to appeal when they have meritorious grounds for doing so.
At this point, however, the existence of such a "tax" on appeals is purely speculative. The Sentencing Commission, which is statutorily charged with keeping relevant statistics for the purpose of improving sentencing, 28 U.S.C. § 995(a), does not collect or analyze data on changes in the length of sentencing after remand. I urge it to do so. If my hunch that there are systematic tendencies toward increases is correct, it would also be useful to know whether these are the product of recalculations by probation officers, objections by the prosecution, or exercises of Booker discretion by district courts. Empirical study of these matters by academic researchers would be illuminating.
Friday night (sentencing) lights
Two circuit rulings from late Friday provide remarkable illumination of many remarkable modern federal sentencing realities:
- From the Fifth Circuit, US v. Perrin, No. 06-30115 (5th Cir. Feb. 9, 2007) (available here) is another example of a circuit court reversing a below-guideline sentence as unreasonable and also showcases another variation on my offense/offender ideas. The defendant in Perrin is a college kid who possessed a lot of "unusually reprehensible" child pornography. With a focus on the offender, the sentencing judge imposed a sentence well below the applicable guideline; with a focus on the offense, the Fifth Circuit panel reversed and requires resentencing.
- From the Tenth Circuit, US v. Medley, No. 06-30115 (5th Cir. Feb. 9, 2007) (available here; discussed by DotD here), affirms a sentence that got longer after the defendant won her initial sentencing appeal. What makes the Medley decision really sing is a fantastic concurrence by Judge McConnell which has a lovely mixture of analysis and advice concerning how resentencings may often play out because the "current system of sentencing" may have "a systematic bias in favor of higher sentences on remand from successful appeals, even successful appeals by the defendant."
Judge McConnell's work in Medley is so great that I'll have another post with additional analysis coming soon.
Judge Cassell assails prosecutorial leniency
The Salt Lake Tribune has a notable and telling story about a man-bites-dog sentencing development. As detailed here, a tax fraud sentencing led Judge Paul Cassell to criticize federal prosecutors for their unjustified use of sentencing discretion. (Usually, it is prosecutors complaining about judicial sentencing discretion). Here are the details:
A federal judge says prosecutors ignored their own policy when they gave a lenient plea bargain to a Bountiful accountant who prepared fraudulent tax returns. US District Judge Paul Cassell refused to go along with the deal, which called for no incarceration and no restitution for Lance W. Mercer. Cassell instead ordered Mercer to spend five months in home confinement, then five months in prison and pay $11,378 to the Internal Revenue Service.
Cassell scolded the U.S. Justice Department's tax division for agreeing not to ask for any enhanced sentences under federal sentencing guidelines. Mercer, a tax preparer with a master's degree, had a special skill that he used to cheat the government, Cassell wrote in his order. The accountant used his knowledge of what figures would appear reasonable to make returns "fly through" IRS processing, Cassell wrote. However, prosecutors not only declined to request a sentence enhancement based on the special-skill circumstance, they actually objected to any increase, Cassell said.
The judge noted that in 2003, then-Attorney General John Ashcroft said any sentencing recommendation by the Justice Department "must honestly reflect the totality and seriousness of the defendant's conduct and must be fully consistent with the guidelines." About the same time in 2003, Cassell noted, the Justice Department argued to Congress that judges' failure to comply with the guidelines had resulted in reduced sentences and an erosion of the deterrent value of federal sentencing policy. "The court firmly agrees with the generally stated position of the department that a sentencing system that involves ignoring the obvious facts is 'neither desirable nor capable of sustaining long-term public confidence,'" Cassell said.
I will update this post with Judge Cassell's written order once I track it down.
Death penalty headlines galore
Once again, so much is going on the death penalty arena, all I can do is point to a few of many notable articles in the papers. Here are just some headlines that caught my eye this morning:
- From the Washington Post here, "The Dying Death Penalty?"
- From Florida here, "Lead Executioner in Botched Florida Lethal Injection Had No Medical Training"
- From North Carolina here, "Legislature takes first steps into fight over executions"
- From Tennessee here, "Fire extinguisher called for in lethal injections
Also, remember that Sunday's New York Times Magazine will have this article entitled, "The Needle and the Damage Done." Thanks to a link from ODPI, here's a great YouTube clip of Neil Young singing a great rendition of "The Needle and the Damage Done."
Senator Feinstein jumps into border agent case
The border agent case (background here and here) — which I am following because it highlights many of the problems inherent in mandatory minimum sentencing — continues to make headlines. Today, San Francisco Chronicle reports here on the involvement of a notable Democrat:
Sen. Dianne Feinstein intervened Friday in the cases of two Border Patrol agents who are imprisoned for shooting an alleged Mexican drug smuggler and who have become a cause celebre for anti-illegal immigration GOP politicians, conservative media and activists. The California Democrat, who is a member of the Senate Judiciary Committee, wrote letters to three top administration officials -- Attorney General Alberto Gonzales, Homeland Security chief Michael Chertoff and Federal Bureau of Prisons Director Harley Lappin -- asking for specific information about their agencies' involvement in the case.
Feinstein is the first prominent Democrat to become involved in the case of the border agents, and her office said she has secured the agreement of Senate Judiciary Committee Chairman Patrick Leahy to conduct a committee investigation. She said Leahy is open to a hearing on the matter....
Feinstein told Gonzales in her letter that she strongly believes the agents' sentences are too extreme, given that the victim resisted arrest and was smuggling large quantities of drugs. Further, she wrote, the agents had to her knowledge no prior convictions or aggravating circumstances to warrant such long terms.
The U.S. attorney who prosecuted the case, Johnny Sutton, has maintained that Congress determined the penalty, setting a mandatory minimum 10-year sentence for discharging a firearm during a crime of violence.
Feinstein said she found it even more disturbing that Ramos was beaten in prison. "It is not hard to predict that two federal agents would be targeted in a prison population and that special precautions should have been employed to ensure their safety," Feinstein wrote.
For reasons detailed in some of the posts below, I am very pleased an encouraged to see some Democratic senators showing interest in this cases as an example of over-punishment.
Coverage of new gendered sentencing realities
The St. Petersburg Times has this interesting piece entitled, "Another case of shrinking the gender gap: prison; programs aren't always in place to help the growing population of female inmates. Here's a snippet:
While the number of men and women in Florida’s general population increased at similar rates from 1977 to 2005, the population of women in prison grew 600 percent, compared to 345 percent for men.... A new crop of female prisoners has correction officials scrambling to adjust to women's needs. But a lack of funding and a sparsity of gender-specific prison programs nationwide has proved to be an obstacle.
Over the past six years, the Florida Department of Corrections has seen its programming budget, which includes prison programs for both men and women, decrease from $59-million during fiscal year 2000-01 to $42-million during fiscal year 2004-05. In Florida, the programs that do exist are rooted in gender stereotypes. The state's women's prisons offer cosmetology and fashion design classes. Men's prisons offer carpentry or construction classes.
February 9, 2007
Capital craziness and costs in Arizona
This Arizona Republic article provides some details on the fall-out from an apparent move by prosecutors in Maricopa County to pursue every possible capital case:
Maricopa County's growing death-penalty crisis will be aired at an unprecedented March 2 court hearing, and key players, including County Attorney Andrew Thomas have been asked to testify. Today, Maricopa County's Presiding Criminal Judge James Keppel ordered the hearing to resolve a case that's become a showdown between prosecutors and defense attorneys over the avalanche of capital cases in the court system.
There is a shortage of qualified attorneys to represent people who face the death penalty. At last count, 12 death penalty cases don't have the lead attorney for the legally required two-attorney defense team, said Mark Kennedy, director of the Office of Contract Counsel.
There are a record 130-plus death-penalty cases pending in Maricopa County, more than in any other Arizona county. The Chief Justice of the Arizona Supreme Court created a taskforce last month to address the issue.
The detail that I find most stunning is the fact that there is "130-plus death-penalty cases pending in Maricopa County." Let's put that number in some capital context, help by this data:
- Since Furman, Arizona has only executed 22 persons over the last three decades.
- Since Furman, no state other than Texas has executed more than 100 persons
- Last year, only roughly 115 death sentences were handed out nationwide
And yet, prosecutors in one county in Arizona believe that 130-plus persons should be facing capital charges. Wow! Considering that, just by bringing capital charges, the county prosecutors likely cost the state at least $100,000 in extra lawyer and court expenses, the Maricopa County prosecutors through its capital charging practices have, in essence, allocated an extra $10 million in tax dollars to capital punishment administration by virtue of having decided to pursue 130+, rather than just, say, 30+ capital prosecutions. Once again, Wow!
When snitches go bad
Here is a story worthy of bookmarking both as an example of the problems with some informants and the ways in which prosecutors can and should uphold their commitment to broader justice. This article comes from Legal Times:
Federal prosecutors lauded the results of a major drug sting last year at the Woodland Terrace public-housing project in Southeast D.C., stating in court filings that 23 arrests had dismantled "a full-service open-air drug market" that had "endangered communities throughout the entire Metro area." Now many of those defendants will be back on the streets after the local U.S. Attorney's Office announced Thursday it is dismissing all charges against 13 of the defendants.
The stunning reversal follows a discovery debacle, which included late disclosures by prosecutors about the criminal acts of a crack-addicted police informant, who made scores of videotaped drug buys during the five-month sting and crashed an unmarked police car last year. "We believed it was the right thing to do," U.S. Attorney's Office spokesman Channing Phillips said in a Feb. 8 statement about dismissing the cases. "After reviewing these matters, we have concluded that we should not go forward with any of the 13 Woodland Terrace cases involving this special employee."
The dismissed cases include not only four cases scheduled for trial in D.C. Superior Court but several cases that already resulted in convictions through plea deals, which now will be withdrawn.
Though this case will surely give various DC-area prosecutors a black eye, I hope that the decision by prosecutors to ultimately help achieve justice will garner at least a little praise. Perhaps the prosecutors still controlling Genarlow Wilson's fate (background here and here) who are insisting that he continue to serve an unjust sentence might learn something from this example.
Warm reception in chilly London
I am just back from London.... London, Ohio, that is, after participating in this terrific seminar sponsored by the Ohio Department of Rehabilitation and Correction on "Faith Based Programming, Reentry and Recidivism." In addition to being warmly treated by the audience during my presentation, I gained lots and lots of insights from my co-panelists and from a fascinating presentation given by Steven McFarland, Director of the Task Force for Faith-Based and Community Initiatives for the US Justice Department.
Among other things I learned in my sojourn was that there are so many institutions and organizations with information and resources on an array of corrections and reentry issues. How example, this webpage from the DOJ Task Force has a number of interesting and informative publication. Likewise, the Institute for Excellence in Justice (icon above) has this great knowledge bank with various helpful resources for both academics and folks working in the field.
Revving up for Rita: harsh treatment for a lesser Libby
In this recent post, I noted that the specifics of Claiborne and Rita are quite interesting and nuanced, and I provided a quick account of facets of Mario Claiborne sentencing fortunes. In this post, I wish to note intriguing aspects of Victor Rita's case — which has some parallels to the on-going trial of Lewis Libby.
1. The nature of Victor's crime. Like Lewis Libby, Victor Rita got caught up in a criminal investigation and ultimately was indicted on five felony counts based on allegations that he lied while giving grand jury testimony. And, like Libby, Victor Rita asserted his innocence and exercised his right to a jury trial. (Victor was convicted of all counts at trial; Libby's trial fate is still to be determined, of course.)
2. The impact of a guideline cross-reference. Though lying to government investigators is surely a crime to be taken seriously, Martha Stewart only faced a guideline sentence of 10 months after her conviction on a similar charge. In Victor's case, his guideline range was 33 to 41 months because of the operation of cross-reference provisions in the guidelines — provisions which essentially held him accountable for crimes beyond those which were the basis for his jury conviction.
3. The (in)consequence of a remarkable personal history. As first noted here, Victor Rita is a very sympathetic defendant: he served 24 years in the Marine Corps, had tours of duty in Vietnam and the first Gulf war, and has received over 35 military medals and awards. Also, he is an elderly gentleman who suffers serious health problems. None of these factors played any role in the calculation of his guideline sentencing range, and the imposition of a within-guideline sentence indicates these factors had little or no impact at all at Victor's sentencing. (To spotlight another Lewis Libby parallel, I would expect Libby 's lawyers to stress his government service at sentencing if he gets convicted.)
Posts in this series:
- Revving up for Claiborne and Rita: a series and background
- Revving up for Claiborne and Rita: more resources
- Revving up for Claiborne: a crack(ed) safety-valve sentence
The continuing Cunningham fallout
This AP article provides an update and additional details about the impact of the Supreme Court's Cunninghman decision in California. Here are snippets:
California lawmakers are poised to vote on legislation to counter a U.S. Supreme Court ruling invalidating the state's criminal sentencing law. Senate Majority Leader Gloria Romero, the proposal's chief architect, said SB40 is set to go before the state Senate on Tuesday. Her announcement Thursday came a day after the California Supreme Court also weighed into the dispute and urged lawmakers to respond to the Jan. 22 decision by the U.S. Supreme Court....
Romero's legislation gives judges the discretion to impose the lower, middle or upper terms, so the measure would not unconstitutionally increase sentences because no base term would exist.... "We think it's the most practical response," Romero, D-Los Angeles, said in an interview Thursday. "We have a patient that has been declared dead."
The bill, supported by California Attorney General Jerry Brown and Los Angeles County District Attorney Steve Cooley, faces an uncertain fate in the Assembly. Bill Maile, a spokesman for Gov. Arnold Schwarzenegger, said the Republican governor does not comment on pending legislation.
The California Supreme Court on Wednesday asked lawmakers to rewrite California's sentencing law and also agreed to deal with the 10,000 or so inmates who must be re-sentenced under the high court's decision. Romero said it was the job of the judiciary, not the Legislature, to deal with the flood of appeals for re-sentencing.
Some recent related posts:
February 8, 2007
Considering faith-based corrections programming
Friday afternoon I am off to London.... London, Ohio, that is, to participate in this terrific seminar sponsored by the Ohio Department of Rehabilitation and Correction on "Faith Based Programming, Reentry and Recidivism." As regular readers know, I am quite intrigued and even encouraged by the faith-based prison movement, and I will be explaining why I believe Establishment Clause issues should not unduly impede sensible efforts to do effective faith-based programming in prisons.
Some related posts:
- Interesting Ohio report on correctional faith-based initiatives
- The virtues of faith-based prisons
- Interesting examination of faith-based prison movement
- A thoughtful, but disappointing, attack on a faith-based prison program
- Religion, sentencing and corrections
- Sentencing and Religion
- Having faith in prisons
UPDATE: As this article notes, the major litigation from Iowa concerning the faith-based prison program operated by Prison Fellowship through a contract with InnerChange Freedom Initiative Inc. is coming up for oral argument in the Eighth Circuit next week. Interestingly, retired Supreme Court Justice Sandra Day O'Connor is on the panel slated to hear the arguments.
An initial victory in Faulks
As detailed in this post, last month I helped a team of sharp young lawyers develop and file this cert petition in US v. Faulks. (The case concerns the procedures for revoking supervised release and presents Blakely issues in an extraordinary factual setting). As shown here, though the SG waived its right of response, the Supreme Court has now ordered the government to respond to the Faulks petition.
Folks with greater knowledge of SCOTUS practices tell me that this certainly does not mean that the petition will receive a grant, but it is a good sign suggesting the Justices saw something worth giving a closer look. The SG's brief in opposition (BIO) is now due on March 9, and I am very much looking forward to seeing what the BIO says.
A cost reallocation approach to DP abolition
A House committee voted Wednesday to abolish the death penalty and use the savings from prosecuting and defending death penalty cases to look at old unsolved cases after witnesses said they wanted police to catch the people who killed their loved ones. Rep. Paul Weissmann, D-Louisville, said the money spent defending and prosecuting death penalty cases could be better used to resolve 1,200 unsolved murders since 1970.
Weissmann, a Democrat from Louisville, said the state could save about $2 million a year that is spent prosecuting and defending death penalty cases. He said only one person has been executed in Colorado since 1967. "To me, that's a terrible bang for the buck," Weissmann said.
The House Judiciary Committee approved the measure on a 7-4 vote and sent it to the House Appropriations Committee.
An amazing cartoon on modern prison realities
With never-ending thanks to Howard Bashman for this tip, I highly encourage everyone interested in modern sentencing dynamics to check out "Thanks For Toughin'," an animated cartoon comically addressing current sentencing and prison realities.
Sixth Circuit affirms significant below-guideline sentence
Though unpublished (for reasons that are not clear), the Sixth Circuit has a major ruling today affirming a below-guideline sentence against a government appeal in US v. Fuson, No. 05-3782 (6th Cir. Feb. 8, 2007) (available here). In addition to encouraging everyone to check out this opinion, I also hope someone might move to have this potentially important ruling published.
UPDATE: A commentor asserts that the specific panel and outcome in Fuson "might well prompt a call for en banc review [but] the chances of such review are much less ... in the case of an unpublished opinion, which does not bind future three-judge panels."
Revving up for Claiborne and Rita: more resources
I have noted before that the briefs Claiborne and Rita are helpfully assembled by the NYCDL on this page. But, as we rev up for the oral arguments on February 20, everyone should also know about the amazing resources and materials assembled by Office of Defender Services at this webpage.
As detailed at this link, the ODS not only has assembled all the briefs, but it has also collected or created various supporting documents helpful to anyone watching Claiborne and Rita closely. Of particular interest in light of prior posts here and here, National Sentencing Resource Counsel Amy Baron-Evans has produced this interesting description of the amicus brief filed by Senators Kennedy, Hatch and Feinstein on behalf of the government discussing crack cocaine sentencing. The site also has additional coverage of "Data on post-Booker Sentencing and Appellate Review."
Posts in this series:
- Revving up for Claiborne and Rita: a series and background
- Revving up for Claiborne: a crack(ed) safety-valve sentence
Something for everyone around the blogosphere
There is a lot of good reading around the blogosphere no matter what your interest:
- For evidence-based sentencing fans, Corrections Sentencing has lots of goodies, including this post discussing a notable general study of recidivism from Alaska.
- For white-collar crime fans, White Collar Crime Prof is going strong on various front and has this interesting analysis asking "Is Libby Backpedaling?".
- For death penalty fans, Ohio Death Penalty Information has a number of notable new entries, including this helpful review of developments in North Carolina.
UPDATE: At my DP class blog, I am seeking to generate more discussion of on thequestion of Improvement versus abolition.
Aging gracefully ... in prison?
The Observer News has this interesting article entitled "Retiring To A Florida Prison," which discusses the greying of Florida's prison population. Here's a taste:
Retiring and growing old in the Sunshine State is a dream for many thousands of people across the country and the world. Florida is, as often described, a Mecca for retirees. But from the viewpoint of the Florida Department of Corrections that dream may well be considered a nightmare.
According to statistics, the FDOC is being hit with a double whammy: An aging prison population coupled with a dramatic increase in the admission of elderly prisoners. In the end, that is a trend that will cost everyone in the state.
On one side of the coin is an aging prison population. New and tougher sentencing guidelines and "three strikes you're out" laws have meant that more prisoners will remain incarcerated for long periods, if not for life.... In 1996, there were 3,715 prisoners age 50 and up that accounted for 5.8 percent of the population incarcerated in Florida prisons. By 2006, that number had ballooned to 11,178 prisoners making up 12.6% of the population....
And it's not just that prisoners are staying longer and growing older in jail. On the other side of the coin is a dramatic increase in new prisoners fueled by an apparent rise in violent and sexually related crimes committed by the elderly. In 1996, the Florida Department of Corrections admitted 803 new inmates over the age of 50. In 2006, there were more than 2,600 new inmates over 50. Again, those numbers represent a more than three-fold increase over the past decade....
For the FDOC, the trend presents challenges in caring for an increasingly elderly prison population. Florida is among a number of states that have created special units to house elderly inmates. The units were created primarily to help reduce the increased medical costs associated with elderly prisoners through consolidation of the population. Elderly prisoners, like many elderly people, suffer from cancer, diabetes, heart disease and other maladies to a greater degree than that of younger people. In Florida prisons, diabetes, hypertension and emphysema are three chronic problems for prisoners over the age of 50. As a result, the health care costs for those prisoners are higher than those of younger prisoners.
Some related posts:
The latest on the border agents case
A federal report released Wednesday on the shooting of a suspected drug smuggler by Border Patrol agents concurs with prosecutors that the men committed obstruction of justice by failing to report the shooting, destroying evidence and lying to investigators.... The U.S. Department of Homeland Security report on the investigation was drafted in 2006 after Ignacio Ramos and Jose Alonso Compean were convicted and each was sentenced to more than a decade in federal prison. The 77-page report was made public Wednesday and offered few if any new details on the case....
A spokeswoman for U.S. Rep. Dana Rohrabacher, R-Calif., said the report only bolsters the congressman's support of the agents. "The OIG report has just emboldened our position because there is nothing in there that indicates these agents were not justified in shooting this individual," said Tara Setmayer. "This finally sheds some light on what these agents were thinking."...
"So far it looks to me like Agents Ramos and Compean may not have followed proper procedure following the shooting, which at most should have resulted in their suspension from the force, but not criminal procedure," Rep. John Culberson, D-Houston, said in a statement issued Wednesday afternoon. Sen. Diane Feinstein, D-Calif., also asked Senate Judiciary Chairman Patrick Leahy, D-Vt., to pursue a Senate probe of the prosecution and sentencing.
I am pleased to see Senate Democrats taking interest in this case, which I consider to be an important example of the problems inherent in mandatory minimum sentencing. As I have explained in prior posts (set out below), whether or not one believes the border agents should have been prosecuted, it is difficult to justify the extremely long sentences they received:
California Supreme Court to start Cunningham clean-up
Thanks to Jonathan Soglin, I know that the California Supreme Court has now jumped into post-Cunningham action. Here's the report I received from Jonathan:
Today the Supreme Court granted review in five cases presenting Cunningham issues. The precise issues to be briefed are not specified. All five cases have the same briefing schedule: opening brief on the merits due Feb. 28 (3 weeks from today), answering brief due within 21 days of filing of the opening brief and the reply brief due within 7 days of filing of the answering brief. No date is set yet for oral argument. The cases are:
February 7, 2007
NYT piece on lethal injection
Sundays sure comes early this time of year: thanks to How Appealing, I see you can now already get this article from the coming Sunday's New York Times Magazine entitled, "The Needle and the Damage Done: Lethal injections are often botched and sometimes painful; Doctors don't want to administer them; Is it time to kill this form of execution?" It is an interesting read.
More fine and fun Booker work from Judge Posner
For the second time this week, Judge Posner expounds on post-Booker sentencing and provides a lot of ideas to chew on. Today's work comes in US v. Spano, No. 06-1562 (7th Cir. Feb. 7, 2007) (available here), and here is one of a number of notable flourishes:
Departures were an essential safety hatch in the pre-Booker world because the guidelines were mandatory then, so that every sentence (except statutory maximum and minimum sentences) had to be fitted into the guidelines scheme. With the guidelines advisory, the departure safety hatch, constrained as it was by the requirement that departures be consistent with the structure of the guidelines, e.g., United States v. Castro-Juarez, 425 F.3d 430, 434 (7th Cir. 2005), is a superfluous way station en route to application of the more capacious statutory sentencing factors. In short, "after Booker, which rendered the Guidelines advisory, departures have become obsolete." United States v. Blue, 453 F.3d 948, 952 (7th Cir. 2006).
UPDATE: Judge Posner in Spano make an interesting point when discussing why departure analysis is inappropriate after Booker: he says traditional departure criteria "deflect the sentencing judge from consideration of the statutory sentencing factors." I am not sure this is necessarily true in all cases, but it does describe some circuit court behavior after Booker when variances are sometimes criticized and reversed based on the guidelines' discussion of departure issues.
Revving up for Claiborne: a crack(ed) safety-valve sentence
Though the briefs in Claiborne and Rita discuss federal sentencing guideline generalities at length, these cases are ultimately about the sentencing fortunes and fates of two men: Mario Claiborne and Victor Rita. It will be interesting to see if the Justices at oral argument (and in the opinions) focus on the specifics of Mario and Victor or instead talk mostly about guideline generalities. (History provides no clear guide: the Justices focused on facts in Koon, but relatively little in Booker.)
The specifics of both cases are quite interesting and nuanced. I will discuss Victor Rita's case — which has many parallels to the on-going trial of Lewis Libby — in a future post. This post presents a quick account of some interesting Mario Claiborne specifics.
1. The impact of harsh crack guidelines. Mario Claiborne pleaded guilty to two minor crack offenses, and his sentence of 15 months would not have been below the guidelines had he been dealing with powder cocaine. But, because of the crack guidelines — which the US Sentencing Commission has itself repeatedly called unfairly harsh — the applicable guidelines range advised a sentence of at least 3 years. The district court, likely influenced by the USSC's analysis that the crack guidelines are too harsh for low-level offenders, decided to sentence below the guideline, but the Eighth Circuit declared that choice unreasonable. But is it really unreasonable for a district court not to follow crack guidelines that everyone recognizes are unreasonable in some cases?
2. The impact of the safety valve. One reason the government may have appealed and the Eighth Circuit reversed is because Mario Claiborne got a lot of credit for pleading guilty and for being a minor offender. Though federal guidelines have many factors that drive sentences up, Claiborne benefited from two provisions that drive sentences down: a reduction for accepting responsibility and for fitting within the so-called "safety-valve" criteria allowing a sentence below applicable mandatory minimums. Though many federal defendants (such as Victor Rita) can rightly complain that the guidelines do not give credit their mitigating circumstances, Mario Claiborne cannot make that charge.
3. The impact of post-sentencing realities. As first noted here, Mario Claiborne has served his original 15-month prison sentence and has bee free from federal custody since May 1, 2006. Assuming Mario has been a good egg since his release, is there a strong reason he should now be resentenced and given a longer prison term? Of course, Mario's actions since he was first sentenced nearly two years ago are not formally relevant to whether the district judge sentenced him unreasonably in March 2005. But, if he has been super Mario this year and has thus shown the wisdom of the sentencing break he got from harsh crack guidelines, the Justices may not be especially eager to declare that break unreasonable.
Posts in this series:
Expanding the (dormant) death penalty
USA Today has this article noting that "at least a half-dozen states are considering broadening the death penalty, countering a national trend toward scaling back its use." Here's more:
Lawmakers have proposed legislation that would increase the range of crimes eligible for execution. In Texas and Tennessee, for example, legislators want to include certain child molesters who did not murder their victims... Virginia is considering bills that would make accomplices to murder, as well as killers of judges and court witnesses, eligible for the death penalty.
Of course, serious students of the death penalty realize that proposals to expand the death penalty are all about symbolic politics, not serious policy-making. Tennessee, for example, has executed only two murders in the last 30 years, and the constitutionality of the death penalty for child molesters is uncertain. Nevertheless, these realities do not diminish the power of pro-death-penalty rhetoric for legislators.
UPDATE: Crime & Consequences has this extended post stressing that different state proposals to expand the death penalty "vary widely in their merit." I do not disagree with this statement, but I would add that at a time when Texas seems to be the only state in the Union seriously committed to carrying out death sentences, efforts in other states to expand who is eligible for the (now almost dormant) ultimate punishment is almost a perverse (and expensive) game of bait-and-switch.
The state of state criminal justice legislation
Thanks to Thinking About Corrections, I see that The National Conference of State Legislatures has published this interesting report providing a "summary of selected, significant state criminal justice, juvenile justice, victim rights and related legislation in 2006." Here is its first paragraph:
State crime legislation in 2006 prominently included mandatory minimum sentencing laws for sex offenders who victimize children, as well as new policies to restrict and watch them in the community. State actions last year also continued to expand DNA databases, including for certain misdemeanor convictions and arrestees. Other laws addressed innocence, refined policy for drug offenses, and facilitated successful reentry of offenders from prison to communities.
Notable Second Circuit Booker developments
The Second Circuit Sentencing Blog has a number of notable recent posts on ... notable Second Circuit sentencing developments. I found these two posts especially interesting:
- The post Second Circuit Approves Co-Defendant Disparity As A Basis For A Non-Guidelines Sentence . . . Sort Of thoughtfully discusses the Second Circuit's work in United States v. Wills, No. 06-0115 (2d Cir. Feb. 5, 2007) (available here), which is yet another appellate reversal of a below-guideline sentence upon appeal by the government.
- The post More on Castillo And The 100:1 Crack/Powder Ratio thoughtfully details that, after the Second Circuit's reversal of Judge Robert Sweet's below-guideline sentence based on the conclusion that he "unilaterally the 100:1 ratio on policy grounds" in US v. Castillo, Judge Sweet at resentencing imposed the same 87-month sentence on purportedly different grounds.
I heart the Pew Charitable Trusts
For anyone who truly loves sentencing and corrections data, be sure to mark you calender for this Valentine's Day event sponsored by the Public Safety Performance Project of The Pew Charitable Trusts. As explained here, on Wednesday, February 14, at 9:30am, the Public Safety Performance Project of The Pew Charitable Trusts "will release a new national and state-by-state forecast of America's prison population over the next five years, identify the critical challenges facing states, and highlight innovative approaches some states are taking to protect public safety and control corrections spending." Helpfully, in conjunction with the release of the report, The Pew Charitable Trusts "will host a panel of leading experts who will discuss effective sentencing and corrections practices that are data-driven and fiscally sound."
February 6, 2007
Two interesting reads at FindLaw
Both of today's new FindLaw columns are worth a read from SCOTUS and sentencing fans:
- Sherry Colb has this essay entitled "Texas Man Receives A Life Sentence for the Murder of his Unborn Twins: When Feticide is a Capital Crime."
- Ethan Leib has this essay entitled "PBS's 'The Supreme Court': A Conventional View of the Cathedral."
Why is the cert pool so beloved?
Tony Mauro has this great new piece at law.com entitled "Alito Recaps First Year on High Court." Among other ground covered is Justice Alito's new affinity for the cert pool and his belief that the Court's docket woes have nothing to do with the pool:
Alito, like many other Court-watchers, has a hard time explaining why the Court is taking and deciding so few cases....
There is one theory about the shrinking docket that Alito rejects completely. Some, including Justice John Paul Stevens, have linked the decrease in the docket to the increased influence law clerks have in screening incoming cases because of the so-called cert pool. With eight of the nine justices — all but Stevens — pooling their clerks for the scrutiny of incoming cases, one clerk ends up summarizing each petition for eight justices. Since clerks are risk-averse by nature, under this theory they have a greater incentive to recommend against granting review, rather than risk urging the Court to take a case that could turn out to be flawed or poorly presented. Over time, the theory goes, this dynamic has resulted in the Court granting review in fewer cases.
"I don't think the cert pool is responsible," Alito says flatly. The clerks make recommendations about what to do with each case, he explains, but the justices decide. "There are plenty of cases where the clerks recommend a grant, and we deny, and plenty where they recommend we deny, and we grant." The pool memos written by individual clerks, Alito says, "convey a way of identifying good candidates for us taking a closer look."
On the overall subject of the clerk pool, Alito has set aside earlier concerns about whether it gave clerks too much power, and now says "my intention is to stay in it. I'm pretty pleased with it." He adds, "It's not perfect, but with the number of petitions we get, it is very valuable." The Court last term received 8,521 petitions, 80 percent of which were on the unpaid docket, filed by prisoners and other indigent parties. Some petitions are easy to identify as cases that should be rejected, and others are clear grants, Alito says. "But when you have a petition that says there is a conflict between these three circuits and four other circuits over this point, someone has to read all those opinions." That is where the cert pool has proven its worth, Alito says.
Justice Alito's final comment is both telling and disappointing, since it highlights that what really makes the pool "very valuable" in his eyes is that it saves the Justices a lot of time. Now, I am all for SCOTUS efficiencies, but shouldn't Justice Alito and the new Chief more rigorously question the costs and benefits of the time-savings and other aspects of the cert pool?
Notably, the growth of the cert pool has not only paralleled the shrinking of the docket, but also the proliferation of long fractured opinions. Perhaps if the Justices spent more time personally reading cert petitions and lower court rulings (and not just summaries from one clerk in the pool), they might directly discover areas of the law in need of extra attention and also might better appreciate the mess they sometimes make by issuing fractured rulings.
Some related posts:
- My effort to help with the SCOTUS docket problem (with cert. petition link)
- Solving the SCOTUS docket mystery
- Additional SCOTUS docket dissection
- Time to take some more Blakely and Booker cases....
- New Justices content with their dip in the pool
- Roberts, the cert pool, and sentencing jurisprudence
Revving up for Claiborne and Rita: a series and background
Two weeks from today, the Supreme Court will hear oral arguments in Claiborne and Rita, two cases that will explore what Booker really means for federal sentencing. (The briefs Claiborne and Rita are helpfully assembled by the NYCDL on this page). Because these cases have so many dimensions, I have decided to start this series of "revving up" posts to better unpack all the interconnected elements in these cases.
In this first post I want to highlight some important potential distinctions (and similarities) in Claiborne and Rita. Though much of the amicus briefing addresses both cases in one brief, there are notable factual and legal distinctions in the cases the Supreme Court has taken up:
1. The facts and fact-finding: Mario Claiborne pleaded guilty to two relatively minor drug offense and admitted to all the facts the district court considered at his sentencing; Victor Rita went to trial and the district court considered a number of disputed facts at his sentencing. Therefore, for those most concerned about Sixth Amendment issues, Rita would appear to be the case to watch.
2. Offenses and offenders: Mario Claiborne's offenses involved crack offenses that Congress and the Sentencing Commission has treated very harshly; Victor Rita's offenses involve misstatements to a grand jury that seem very minor compared to the usual federal offender. Both defendants lack any significant criminal history and seem to have positive personal attributes, though Victor Rita's background is particular notable given his long and honorable military service.
3. Proceedings below: Mario Claiborne received a below-guideline sentence of 15 months in prison in the district court, but the Eighth Circuit reversed this sentence as unreasonably low on the government's appeal; Victor Rita received a within-guideline sentence of 33 months in prison in the district court, and the Fourth Circuit affirmed this sentence as reasonable. The circuit rulings are similar in their post-Booker emphasis on the guidelines, but dissimilar in their respect for district court post-Booker discretion.
In future posts, I will explore some of the constitutional and non-constitutional issues raised in these cases and also speculate about how particular Justices might view these cases. In the meantime, I encourage reader to send me any "revving up" thoughts for possible posting. I am eager in this series to present perspectives other than just my own on Claiborne and Rita.
Politics and Folsom prison blues in California
Unsurprisingly, as detailed in this article, political posturing has quickly become a focal point of sentencing and corrections reform debate in California:
Legislative Republicans accused Democrats on Monday of delaying action on prison construction in the hope that the federal courts will engage in "a complete takeover" of California's correctional system. In a press conference outside Folsom State Prison, GOP members said they will fight for Gov. Arnold Schwarzenegger's bid to add tens of thousands of new beds to the state and local correctional systems as the best way to solve the prisons' overcrowding emergency.
They said they would oppose any sentencing commission proposal that looks to them like it would result in early releases. They also decried court-ordered spending on prison health care as an "unaccountable" intrusion into legislative spending prerogatives.
Would Johnny Cash be proud of this remake of Folsom Prison Blues?
Some recent related posts:
AFDA federal sentencing audio webcast today
Self-promoting reminder: As noted here, my first AFDA audio webcast is scheduled for this morning (Feb. 6) at 12noon EST. The plan for this webcast is to provide an "informal, 60-minute discussion covering key developments in federal sentencing." The AFDA only charges a nominal fee for participating is made available free to all federal court personnel, federal public defenders, and full-time law professors and students.
PM UPDATE: Though there was a mid-session technical glitch, I enjoyed the opportunity to use the AFDA's audio webcast to prattle on about Booker, Cunningham and Claiborne and Rita through a different medium. If any readers listened in, I hope they wll provide feedback in the comments to this post. Thanks.
February 5, 2007
How is Florida's lethal injection commission doing?
As noted here, two months ago, after a troublesome lethal injection execution, then-Florida Governor Jeb Bush issued Executive Order 06-260 (available here), which imposed a moratorium on executions in Florida and created a state Commission on Administration of Lethal Injection. The Commission is charged with reviewing the method in which lethal injection protocols are administered; this AP report discusses some of the testimony presented to the group in a hearing today in Florida.
Notably, Executive Order 06-260 provides that the Commission "shall submit its preliminary report of findings and recommendations to the Governor no later than February 1, 2007, and its final report of findings and recommendations by March 1, 2007." To my knowledge, however, the Commission only had its first meeting on January 29, and it has not yet submitted any sort of report.
Is anyone following the work of this Commission closely? Is the Commission likely to help Florida develop a sound execution protocol, or will its work ultimately end up as just one more piece of evidence in an inevitable habeas fight over whatever new procedures Florida might adopt?
UPDATE: A reader sent me this helpful comment, "The Florida Commission's preliminary report has been delayed until Feb 15, but the final report is still due on Mar 1." In addition, StandDown Texas Project now has this extended post covering "Florida LI Panel at Work & Reverberations."
Judge Posner's reasonable work on acquitted conduct sentencing
Providing a nice counter-point to what I considered troublesome work last week in Boyd (discussed here and here and here), Judge Posner today in US v. Horne, No. 05-4049 (7th Cir. Feb. 5, 2007) (available here) has an effective and nuanced discussion of the use of acquitted conduct enhancements in federal sentencing after Booker. Though Judge Posner blesses an increase based on acquitted conduct, he appropriately highlights the discretion that district judges have in this context (cites omitted):
This is not a case in which a jury convicts a defendant of one very minor crime and acquits him of the serious crimes with which he was charged, and the judge then bases the sentence almost entirely on those crimes.... A judge might reasonably conclude that a sentence based almost entirely on evidence that satisfied only the normal civil standard of proof would be unlikely to promote respect for the law or provide just punishment for the offense of conviction. That would be a judgment for the sentencing judge to make and we would uphold it so long as it was reasonable in the circumstances.
Some recent posts on acquitted conduct:
Mark your SCOTUS calenders
Sentencing fans may be intrigued to hear that, as detailed here at SCOTUSblog, April afternoons will be the exciting times for notable Supreme Court oral arguments. Specifically, the afternoon of Tuesday April 17 brings Uttecht v. Brown ("federal court authority to overturn state judge's removal of a juror in a murder trial"), and the afternoon of Wednesday April 18 brings Panetti v. Quarterman ("constitutionality of executing a death row inmate who has a delusion about why he is being executed").
Major Third Circuit ruling on sentencing burdens
I am about to run into a faculty workshop, but two readers sent me advanced word that the Third Circuit has released its major en banc ruling on sentencing burdens of proof in Grier. Here's the early report I received on the 145-page (!) opinion:
The Grier vote is 9-2 affirming: for sentencing enhancements, including for a "separate offense," preponderance of evidence is sufficient. I think you may find Judge Ambro's concurrence in the judgment and Judge McKee's dissent especially thoughtful.... The Court en banc backed off the panel majority's overruling US v. Kikumura (fn. 8)....
Here is how the opinion in Grier (which
I cannot yet find on can now be found at this link on the Third Circuit's website) begins:
The Supreme Court held in United States v. Booker, 543 U.S. 220 (2005), that facts relevant to the advisory United States Sentencing Guidelines need not be submitted to a jury. We now confirm that these facts likewise do not require proof beyond a reasonable doubt.
CJ Roberts and sentencing law: fixing Eighth Amendment jurisprudence?
As explained here, Jeff Rosen's extraordinary article in the Atlantic Monthly has me thinking hard about what CJ Roberts' eagerness for greater consensus could mean for sentencing law. This post ponders whether CJ Roberts, in his quest for consensus, might be interested getting the Court to clean up its Eighth Amendment jurisprudence in non-capital cases.
During his confirmation hearings in Fall 2005, then-Judge Roberts in his written Q&As after his confirmation hearings noted that the application of the Eighth Amendment "has been a source of deep disagreement on the Court." This is true not only for the Court's death penalty jurisprudence, but it also describes the significant divisions and doctrinal uncertainty SCOTUS has produced through non-capital Eighth Amendment rulings in cases like Ewing and Harmelin and Solem and Rummel. In all these cases, a fractured Court has asserted that the Eighth Amendment places a proportionality limit on non-capital sentences, but then has set forth opaque doctrines that do very little to help lower courts figure out how to understand and apply this constitutional limit.
Significantly, a new case, Arizona v. Berger, soon coming up for cert review presents CJ Roberts and other Justices with an interesting opportunity to work on the Court's Eighth Amendment jurisprudence. Last year, in Berger, the Arizona Supreme Court rejected a former Phoenix high school teacher's claim that his 200-year prison sentence for possessing child pornography was cruel and unusual in violation of the Eighth Amendment (basics here, commentary here and here).
By any common-sense definition, the sentence in Berger seems both cruel and unusual. I believe this sentence is the longest (by many multiples) ever imposed for a first conviction of possessing child pornography, and the sentence is longer (by many multiples) than what most producers of child pornography and child rapists receive. If the Eighth Amendment truly does include an enforceable proportionality limit in non-capital cases, the sentence in Berger seems to present issues meriting review. Berger thus also provides an interesting opportunity for CJ Roberts to pursue his quest for consensus in the context of the Eighth Amendment.
Prior posts in this series:
- CJ Roberts and sentencing law: a series
- CJ Roberts and sentencing law: the virtues (and vices?) of consensus
- CJ Roberts and sentencing law: his Cunningham work
The need for sex offender nuance
Thoughtful critics of draconian sex offender restrictions stress that broad residency restrictions often harmfully fail to distinguish truly dangerous repeat ex-offenders from minor offenders. For this reason, I a quite intrigued by this post at Sex Offender Issues reporting on a new sex offender bill: HR-291 — Safe NOW Act of 2007. The bill purports to "establish a National Sex Offender Risk Classification Task Force to create guidelines for the establishment of a risk-based sex offender classification system for use in sex offender registries."
I do not know anything more about this bill, but it would seem to be the type of legislation that anyone interested in evidence-based sentencing — or concerned about the extremes of our modern sex offender panic — ought to support.
Should we care about geographical sentencing disparity?
Sentencing disparities due to race and class surely should rankle a society committed to concepts of equality. But what should a society committed to concepts of federalism think about sentencing disparities due to geography? This great new article in the New York Times by Adam Liptak, entitled "Geography and the Machinery of Death," raises a fascinating twist on this intriguing issue. Here is how the piece begins:
The death penalty, Justice Potter Stewart wrote in 1972, can be cruel and unusual in the way that being struck by lightning is cruel and unusual. But the apt metaphor for the death row inmate named Patrick D. Murphy is not meteorological. It is geographical. And geological.
First of all, Mr. Murphy committed a murder in Oklahoma, which is one of a handful of states enthusiastically committed to the death penalty. Oklahoma and five other states accounted for 45 of the 53 executions in the United States last year. Even within Oklahoma, though, the question of whether Mr. Murphy lives or dies may turn on precisely where the killing took place and on who owned the land underneath.
February 4, 2007
Will the USSC have more data for Claiborne and Rita?
It's been two months since the US Sentencing Commission released any additional post-Booker data and now nearly a year since USSC has produced any new type of Booker data. As I noted here a few months ago, to my knowledge, the USSC has never publicly disclosed post-Booker data on dynamic issues such as defendants' fates after post-Booker remands and outcomes in white-collar cases and post-Booker appeal rates/outcomes.
Notably, many of the briefs in Claiborne and Rita (helpfully assembled by the NYCDL on this page) assemble and discuss post-Booker appeal data. Interestingly, the USSC's brief in Claiborne and Rita only has a brief mention of post-Booker data; this discussion is focused on the fact that "the rate at which sentencing judges impose a sentence either within the Guidelines range or below the Guidelines range pursuant to a government-sponsored departure in circuits that apply a presumption of reasonableness (87.5 percent) is quite close to the rate (83.9 percent) in circuits that apply no presumption." USSC Brief at 16.
I wonder if the USSC will have any additional public data releases in the run up to the Claiborne and Rita arguments (which are to be on February 20) or while SCOTUS is working on its opinions in Claiborne and Rita. I hope so.
The LWOP whopper in New Jersey
This Newark Star-Ledger piece spotlights a reality I discussed here last month: the New Jersey Death Penalty Commission, by coupling its call to abolish the death penalty with an expansion of life without parole (LWOP), is actually calling for a major increase in sentences. As the article explains:
When a state commission recommended last month that New Jersey abolish the death penalty in favor of life imprisonment without parole, some lawmakers called it the latest example of going soft on crime. But a Star-Ledger analysis of trials since August 1982, when capital punishment was reinstated, shows scores of murderers would have been punished more harshly under the life-without-parole bill proposed by the Death Penalty Study Commission.
The high costs of high incarceration in Mississippi
Today's Jackson Clarion Ledger has two pieces lamenting the high costs of Mississippi's high incarceration rate. One piece, authored by Marc Mauer and Ron Welch, has these highlights:
Mississippi is spending $292 million a year to operate [a] vastly expanded penal system. While prisons clearly represent one aspect of the state's approach to public safety, there is much reason to believe that the state could adopt policies to slow the growth of the prison system while also enhancing crime control....
The growing cost of incarceration not only represents a burden to state taxpayers, but diverts resources from other vital state services. Over the past decade alone, corrections costs have increased by well over $100 million a year. These are funds that are consequently not available for education, health care, or drug treatment. Not only would such investments strengthen our families and communities, but they would also yield dividends in public safety....
For far too long, we have relied on crime policies that sounded "tough," but didn't deliver. It's now time to get smart on crime by investing in programs and policies that improve outcomes for both victims and offenders. By doing so, we will be using prison space — and tax dollars — in a much wiser manner.
An editorial, titled "Prisons: Stop punishing state's taxpayers," follows-up by stressing economic realities:
With 21,724 people currently in prison in the state ... Mississippi is spending $292 million a year to warehouse [an] ever-expanding group of prisoners.... Only 3,022 of Mississippi's prison inmates are violent offenders. Providing "three hots and a cot" for 22,000 state prisoners is draining needed state tax dollars from public education and public health care. Warehousing non-violent offenders isn't working.
Some recent related posts:
A high-profile example of the importance of post-sentencing behavior
Though not an issue often explored in caselaw (except sometimes at resentencings), how a defendant acts after sentencing can often have a significant impact on his eventual fate. This New York Times article provides a high-profile case-in-point:
It was a startling gesture: The convicted killer of two detectives, sentenced to die by jurors who had found him remorseless, stuck out his tongue. In that fleeting moment the condemned man, Ronell Wilson, 24, may have set a marker on his case for years to come, complicating appeals for a new trial or clemency.
Using this example, perhaps I should start work on a book entitled "All You Really Need to Know (About Capital Punishment) You Learned in Kindergarten." Chapter 2 would be "Don't stick out your tongue." (Chapter 1, of course, would be "You get in big trouble when you hurt people.")