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: