Sentencing Law and Policy

A year-ending post with a pre-party reminder of the harms of drinking and driving

Inspired in part by this news report from CNN, headlined "Barkley 'disappointed' after DUI arrest," I will conclude my postings for 2008 with a year-end reminder about the harms of the crime of drinking and driving.  As regular readers know, I am often amazed and annoyed that even repeat drunk driving offenses rarely lead to severe punishments — especially given the extreme sentences often imposed on other "risk-regulation" crimes like felon-in-possession gun laws or failure-to-register sex offender laws.  The reason I am annoyed is principally because drinking and driving results in more avoidable deaths and other harms than most other crimes combined. 

Let's start with deaths.  As detailed in this official NTHSA report, about 13,000 Americans are killed each and every year in alcohol-impaired driving crashes.  In other words, on average, more than 35 people die in alcohol-impaired driving crashes every single day.  And, as this press release highlights, these deaths increase during the winter holidays.

Though statistics concerning physical injuries and non-fatal crashes are harder to find, MADD reports here that perhaps as many as half a million people are injured each year in crashes where police reported that alcohol was present and that roughly "three in every ten Americans will be involved in an alcohol-related crash at some time in their lives."

For those who want to focus on economic costs, MADD also provides this sobering accounting: "Alcohol-related crashes in the United States cost the public an estimated $114.3 billion in 2000, including $51.1 billion in monetary costs and an estimated $63.2 billion in quality of life losses. People other than the drinking driver paid $71.6 billion of the alcohol-related crash bill, which is 63 percent of the total cost of these crashes."  Or consider this recent report of a single repeat drunk driver who cost the Wisconsin taxpayers $365,000.

The good news is that drunk driving deaths have declined over the last few decades and more and more persons view drinking and driving to be a serious crime.  Also, though I frequently call for harsher sentences from repeat drunk drivers, I fully recognize that tougher punishments is not the sole or even best solution.  Indeed, I hope that technocorrections provide a new means to deal with this serious crime, and I was pleased to see this press report indicating that Illinois is going to be requiring "breath-alcohol ignition-interlock device installed" in the cars of DWI first offenders.  (Notably, as reported here, Washington state is trying out ignition locks for those with suspended licenses.  I believe Alaska has a new law with ignition locks, too.)

In other words, let's all be safe out there tonight as we ring in the new year!

Some related posts:

• Shouldn't we be much, much tougher with drunk drivers?
• Tougher (but still not tough enough?) on DUI
• Getting tougher on drunk driving
• Why do we worry so much more about sex offenders than drunk drivers?
• Technology versus toughness to combat drunk driving
• Undue leniency for drunk drivers?
• More discussion of leniency for drunk drivers
• More examples of undue leniency shown to repeat drunk drivers
• Is capital punishment for drunk driving morally required?

End-of-year reasonableness review blow-out in some circuits

I noted here yesterday that the circuit courts have been clearing their sentencing dockets as 2008 winds to a close.  Of particular note for federal sentencing fans is the significant number of significant reasonableness review rulings in just the last few days. 

Specifically, I have seen published opinions upholding sentences against various viable challenges by defendants from the Seventh, Eighth and Tenth Circuits.  Though I have not yet identified any truly ground-breaking aspects of any of these new rulings, sentencing practitioners in these circuits ought to be sure to start 2009 by reviewing all the end-of-year reasonableness work by these courts.  And I would be grateful to anyone who helps identify any aspects of these various rulings that seem especially important.

Around the blogosphere

I am noticing lots of good end-of-year reading on lots of good criminal justice topics around the blogosphere.  Here is a sample:

• From Crime & Consequences, "Spinning crime stats"
• From Grits for Breakfast, "Diversion programs worked, but who can measure how well?"
• From TalkLeft, "Illinois Ges Tougher DUI Law"
• From The Volokh Conspiracy, "Had Sex with a 14-Year-Old Who Lied About Her Age?"

• From White Collar Crime Prof Blog, "2008 White Collar Crime Awards"

And, of course, lots more stuff for clemency fans at Pardon Power.

Should any and all sex offenders be barred from ever practicing law?

The New York Law Journal has this effective report on an interesting split decision from a New York state appellate panel in the lawyer discipline case of Matter of Lever.  The NYLJ article headline provides the basics of the story: "Attorney Caught in Internet Sex Sting Suspended From Practice for 3 Years: Rare split N.Y. appellate court suspends former Kirkland & Ellis associate who admitted attempting to meet purported 13-year-old for sex."  Here are a more details:

In a rare 3-2 decision in a disciplinary matter, a five-judge panel of the New York Appellate Division, 1st Department, agreed that Steven J. Lever "brought shame to himself and to this State's Bar" by using the Internet "to prey on minors for purposes of sexual gratification." They also agreed his conduct required "a significant sanction." However, finding a dearth of New York precedent on point, the judges could not agree on the appropriate punishment.

The three-judge majority, looking at similar cases from other states, cited the "substantial and credible mitigation evidence" in confirming a hearing panel's recommended three-year suspension. "From the beginning, respondent has admitted responsibility for his actions and has taken 'uncommon' efforts to rehabilitate himself," the majority wrote in its per curiam opinion, Matter of Lever, M-1412. "After his arrest, he voluntarily entered sex offender treatment and all evidence in the record supports the therapist's opinions that such therapy appears to be working and that the likelihood of respondent repeating the misconduct was 'low.'"...

In a vehement dissent, Justices David B. Saxe and James M. Catterson argued for disbarment. Catterson wrote for the two. "Because I believe that a convicted and registered sex offender has forfeited the privilege of admission to the bar and the elevated status of the officer of the court, I must respectfully take the unusual step in a disciplinary proceeding and dissent," Catterson wrote. "I believe that any penalty short of disbarment would not comport with the standards to which a member of the bar should adhere. I do not believe that we can reconcile the status of registered sex offender with that of a member of the bar in good standing."

UPDATE:  On this story, Scott at Simple Justice has this post asking "Just How Much Moral Turpitude is Too Much?"

Two great new data reports from the US Sentencing Commission

I am pleased to discover and report that the US Sentencing Commission has used the holiday season to produce two lovely new (and very reader-friendly) documents about federal sentencing realities.  First came last week's release of "Overview of Federal Criminal Cases, Fiscal Year 2007," which is actually a more exciting document than the title might suggest.  Here is how the USSC describes this report:

This publication provides a broad overview of federal sentencing data for fiscal year 2007. Readers will find this publication to be a brief, easy-to-use reference on the types of criminal cases handled by the federal courts and the punishments imposed on the offenders convicted in those cases. This publication will be available in hard copy format in the coming weeks.

And this week has now brought another report, "Changing Face of Federal Criminal Sentencing: Seventeen Years of Growth in the Federal Sentencing Caseload."  Though perhaps only a true sentencing geek like me finds even this title exciting, here is how the USSC whets our appetite for this notable new document:

This publication provides an overview of the demographic make-up of federal offenders sentenced under the federal sentencing guidelines for fiscal years 1991 through 2007, examines trends in the types of federal offenses sentenced, and analyzes the demographic characteristics of offenders sentenced for the most common federal offenses during this time period.

I now know at least one data nerd who can make special plans for a rocking federal sentencing new year's eve bash.  (Maybe I should drop all my USSC data runs from my roof at the stroke of midnight to celebrate all the great information the USSC has published in 2008.  It truly has been a banner year for federal sentencing data junkies.)

Notable criminal justice echoes of the Madoff mess

The WSJ Law Blog reports hereon a notable Madoff mess echo that I had heard about from various persons working on criminal justice reform.  The post is titled "Madoff Scandal Threatens Country’s Criminal Justice Organizations," and here is the lead:

Earlier this month, the JEHT Foundation— a major financial supporter of the Innocence Project in Texas, among others — announced it would shut its doors in January because its prime donors invested with Madoff. JEHT, according to this Business Week article, is a six-year-old New York City-based philanthropy focused on juvenile and criminal justice, human rights, and election reform.

As detailed at this JEHT list of criminal justice grantees, many of the great organizations doing important sentencing-related work — like the Death Penalty Information Center and Families Against Mandatory Minimums and The Sentencing Project and the Vera Institute of Justice  — have received some funding from JEHT in recent years. 

UPDATE:  Speaking of Madoff and the criminal justice system, few federal sentencing fans will be surprised with the sentencing discussion in this Newsday article, headlined "If convicted, Bernard Madoff faces life in prison."  Here is how it starts:

Life in prison. That is the bleak prospect facing accused mega-Wall Street scammer Bernard Madoff, according to federal sentencing guidelines, if he is convicted of even a single charge of securities fraud in what is alleged to be the biggest Ponzi scheme in history.

With losses that may be running as high as $50 billion at Madoff's Manhattan-based securities business, the computation of his possible prison term in the event of a fraud conviction goes off the chart used by federal judges to compute sentences. If convicted, the only thing that could save Madoff, 70, from dying behind bars is if he were to cooperate with federal prosecutors and recover substantial sums of investor funds, legal experts said.

Ninth Circuit finds 28-year "failure to register" sentence unconstitutional

The last few weeks have hardly been a slow period for notable sentencing decisions from the federal circuit courts.  And today brings some intriguing rulings on federal sentencing or quasi-sentencing issues from the Fifth, Sixth, Seventh, Eighth, Tenth and DC Circuit.  But the Ninth Circuit has the most significant ruling of this big batch of opinions ringing out this rocking 2008 sentencing year in the habeas case of Gonzales v. Duncan, No. 06-56523 (9th Cir. Dec. 30, 2008) (available here). The first two paragraphs of reveal why this ruling is so notable:

Cecilio Gonzalez was convicted by a jury of failing to update his annual sex offender registration within five working days of his birthday, in violation of California Penal Code § 290(a)(1)(D). Because of his prior criminal convictions, he received a sentence of 28 years to life imprisonment under California's “Three Strikes” law.  On habeas review, we must decide whether his sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment and, if so, whether the contrary conclusion of the California Court of Appeal constituted an unreasonable application of clearly established federal law.

The California courts have characterized the state’s registration requirement as a regulatory offense, a “most technical violation” that “by itself, pose[s] no danger to society.”  People v. Cluff, 105 Cal. Rptr. 2d 80, 81, 86 (Cal. Ct. App. 2001).  In a case materially indistinguishable from this one, the California Court of Appeal concluded that a Three Strikes sentence of 25 years to life imprisonment for violating the registration requirement was “grossly disproportionate to the offense” and violated the Eighth Amendment.  People v. Carmony, 26 Cal. Rptr. 3d 365, 368-69 (Cal. Ct. App. 2005). Although our standard of review is more deferential, we too conclude that Gonzalez’s sentence is grossly disproportionate to his offense. We further conclude that the California Court of Appeal’s decision affirming Gonzalez’s sentence constitutes an unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1). We therefore reverse the district court’s denial of Gonzalez’s petition and remand with instructions to grant the petition for a writ of habeas corpus.

The fact that a federal circuit court has found a non-capital prison sentence unconstitutionally excessive is big new in itself.  Indeed, I cannot recall a federal circuit ruling to this effect in all the years I have been blogging.  Add in the fact that this is a state habeas case involving a sex offender and California's Three Strikes law, and the story gets that much richer. 

Now lets also notice the fact that the (notoriously liberal?) Ninth Circuit in this case was represented by a panel with two republican appointees and only on (senior) democratic appointee, while the state of California was represented by the (notoriously liberal?) state AG Jerry Brown.  And the author of the opinion was Judge Bybee, who is considered among the most conservative of the circuit appointees of outgoing President George Bush. 

This is fascinating stuff, as is what might come next.  I sincerely hope that California might seek cert, because such a petition coming from the state has a much greater likelihood of garnering a grant than the many petitions coming from defendants who lose Eighth Amendment challenges to long prison sentences in the circuit courts.

UPDATE:  The Los Angeles Times has this report on the Gonzales ruling, which has this non-information about the possible future of the case: "The state attorney general's office declined to comment on the ruling or say whether it would be appealed, said Christine Gasparac, press secretary for Atty. Gen. Jerry Brown."

Effective reporting on the decline of death in North Carolina

This local article, headlined "In N.C., death penalty gets rarer," provides a very effective accounting of the slow and steady decline of the death penalty in North Carolina.  Here are highlights of an article that should be a must-read for everyone who seriously follows the administration of capital punishment:

North Carolina will finish this year with just one defendant sentenced to death, a record low since the penalty was reinstated 31 years ago. The single capital murder conviction this year continues a downward trend fueled by better criminal defense lawyers and new laws that exclude the mentally challenged and make prosecution evidence more accessible.

In North Carolina, more people on death row have been exonerated this year -- two -- than were sentenced to death. A de facto death penalty moratorium in North Carolina -- as the courts, state officials and the medical profession debate the ethics of lethal injections -- has prevented anyone from being executed for the past two years.

This year, 13 juries could have chosen death for defendants. Only one in Forsyth County did. Last month, a jury there gave the death sentence to James Ray Little III for shooting a cab driver to death two years ago in Winston-Salem. There will be no more capital murder trials before Wednesday, the end of the year....

The numbers suggest that juries are less likely to impose the ultimate punishment. In 1996, there were 60 capital trials resulting in 34 death sentences in North Carolina. The decline in death sentences is a national trend, but North Carolina's is among the most pronounced, according to the Death Penalty Information Center in Washington, D.C....

Tom Horner, president of the N.C. Conference of District Attorneys, said the de facto moratorium might be influencing prosecutors' decisions to seek life without parole instead of the death penalty. Capital murder cases are much more expensive and time consuming, he said, because defendants are entitled to additional services that include more expert witnesses and test juries. "It's just a tremendously different beast than just trying someone non-capitally," said Horner, the district attorney for Alleghany, Ashe, Wilkes and Yadkin counties.

Some recent related posts:

• DPIC releases year-end report on state of death penalty in 2008
• The decline of death even in Texas!
• Notable second-term Presidential execution realities
• Busy pre-holiday weeks for executions
• As goes Maryland, so goes the nation on capital punishment?
• More evidence that the death penalty is dying a slow death on the front lines
• Any speculations on what this Election Day could mean for the death penalty?

Should the Delaware DOC consider the Monty Python "it's resting" defense?

This local story from Delaware, headlined "Lawsuit begins with end of parrot: Inmates' rights questioned after man not allowed to make call," was just made for blogging. As detailed below, the story has a serious side (even though it also demands spending time watching this classic comedy video):

The death of Freddy the parrot could be debated in federal courts. It also could raise questions about the right of the accused to get "one phone call" after being arrested.

Thomas Goodrich charges in a lawsuit he filed this month that he never got that call, causing his expensive and beloved blue and gold macaw to starve to death.  Goodrich alleges he was held on a misdemeanor warrant in Young Correctional Institution for 12 days, unable to get word out to anyone to help him post bail or get food to his pet parrots....

The lawsuit names Department of Correction Commissioner Carl Danberg and former Young warden Raphael Williams as defendants and asks for $250,000 in punitive damages from each.... Beyond the question of the deceased pet -- and echoes of Monty Python's dead parrot sketch -- legal experts said Goodrich's lawsuit raises a serious issue about the rights of an accused to secure his or her freedom, most commonly through a phone call....

In the suit, Goodrich slams prison officials for lacking compassion and being "irresponsible" when such "animal cruelty was taking place." In addition to damages, Goodrich also asks the court to force the department to "adopt a facility 'Mission Statement' " to treat all inmates fairly and prevent a similar situation in future.

Martin Mersereau, with the People for the Ethical Treatment of Animals, said if true, the situation was "absolutely appalling" and "horrific." Mersereau, who handles cruelty cases for PETA, said the group regularly goes after people for such neglect and said that kind of abuse "is a jailable offense" and prison officials should be held accountable.

Real headaches or just hiccups on nominee Holder's path to AG?

The Boston Globe has this long pieceon coming Senate confirmation issues surrounding President-elect Obama's nominees.  The piece is headlined "Holder's hearing might be rocky: GOP could grill Cabinet nominee," and here is how it starts:

With Barack Obama anxious to take office, the public eager for fresh leadership, and the economy demanding urgent attention, the Senate is likely to defer to the president-elect and swiftly approve his Cabinet nominees, congressional aides and political analysts say.

But there will be one prominent exception: The confirmation hearing for Eric Holder, Obama's pick for attorney general, promises to be bruising, with Republicans determined to explore Holder's role in controversial pardons under President Clinton, his views on gun rights, and his involvement in the case of Elian Gonzalez, the 6-year-old Cuban boy returned to his homeland by Clinton's Justice Department.

"You're probably only going to have one truly horrendous confirmation; that's always the case," said Stephen Hess of the Brookings Institution, who served on the White House staffs of presidents Eisenhower and Nixon. "In this case, it is clearly the attorney general-designate, Eric Holder."

Meanwhile, yesterday the Hartford Courant had this long article full of new information about Eric Holder's role in some controversial commutations granted by President Clinton in 1999 that have always struck me as more troublesome than even the Marc Rich pardon.  This piece is headlined "Clinton-Era Sentence Reductions Could Trip Holder's Confirmation," and here is a section that really caught my eye:

[Q]uestions about Holder's appointment have been building over his role as a former deputy attorney general in a number of controversial Clinton-era legal decisions. High on the list are the dramatic sentence reductions he recommended in 1999 for members of two groups responsible for a years-long terror campaign aimed at Puerto Rican independence....

A total of 16 radical Independentistas, either Macheteros or members of the affiliated Armed Forces of National Liberation, ultimately won sentence reductions or remissions of fines — although none of them had applied personally for clemency.

Together, the groups are linked to 130 bombings, several murders and as many as a dozen robberies. When President Bill Clinton issued the clemency, the FBI said the two groups were the driving force behind the violent wing of the Puerto Rican independence movement and represented one of the nation's foremost domestic terror threats....

Senate staffers said the Puerto Rico clemency is expected to be the subject of considerable questioning. A senior Justice official, while generally supportive of Holder, called the lesser-known Puerto Rico commutations "far more egregious" because they involved terror and appear to have deviated widely from federal regulations and past practices in clemency matters.

Interviews and a review of congressional records show that Holder's recommendation for clemency was at odds with a report by the Office of the Pardon Attorney. The pardon attorney issued a second report to Holder about two years later that took no position on clemency. Critics say the second report violated rules requiring the pardons attorney to recommend either for or against clemency.

Despite all the reasons to expect an interesting show during his confirmation hearings, I still think the smart money has to be on Holder being easily confirmed as the next Attorney General.  But, one can never fully predict how these matter will play out, especially when there is reason to suspect that folks with scores to settle with either the Clintons or the President-elect might view the Holder hearings as the best opportunity to vent.

Some prior posts on the Obama transition, the Holder pick and federal criminal justice issues:

• Headaches on the path to Holder's AG confirmation
• Lots of buzzing around Eric Holder as the next US Attorney General
• Any early federal sentencing thoughts on Eric Holder, the next U.S. Attorney General?
• Three late afternoon thoughts on the Holder pick: race, tough and tech
• President-Elect Obama officially names Eric Holder as his AG pick
• Pardons, politics, race and justice: why Holder should come out swinging
• Looking at control of federal prosecutors as we look toward a new administration
• How a new administration is likely to impact federal sentencing practice
• Interesting reflections on Obama appointees from drug policy reformers

Election season 2008 posts about Clinton commutations to Puerto Rican terrorists:

• When will the various Clinton clemency scandals become a campaign issue?
• Why aren't the terrorist pardons during the Clinton Administration garnering more attention from the MSM?

Senator Jim Webb continues his important campaign for serious sentencing and prison reforms

Regular readers know from prior posts that I am a huge fan of Senator Jim Webb's commitment to serious sentencing and prison reform.  As revealed by new this exciting article from today's Washington Post, headlined "Webb Sets His Sights On Prison Reform: Senator Proposes National Panel," my affinity for the good Senator remains well-justified.  Here are some details from the article:

This spring, Webb (D-Va.) plans to introduce legislation on a long-standing passion of his: reforming the U.S. prison system.  Jails teem with young black men who later struggle to rejoin society, he says. Drug addicts and the mentally ill take up cells that would be better used for violent criminals. And politicians have failed to address this costly problem for fear of being labeled "soft on crime."

It is a gamble for Webb, a fiery and cerebral Democrat from a staunchly law-and-order state. Virginia abolished parole in 1995, and it trails only Texas in the number of people it has executed. Moreover, as the country struggles with two wars overseas and an ailing economy, overflowing prisons are the last thing on many lawmakers' minds.

But Webb has never been one to rely on polls or political indicators to guide his way. He seems instead to charge ahead on projects that he has decided are worthy of his time, regardless of how they play -- or even whether they represent the priorities of the state he represents.

State Sen. Ken Cuccinelli II (R-Fairfax), who is running for attorney general, said the initiative sounds "out of line" with the desires of people in Virginia but not necessarily surprising for Webb. The senator, he said, "is more emotion than brain in terms of what leads his agenda."...

In speeches and in a book that devotes a chapter to prison issues, Webb describes a U.S. prison system that is deeply flawed in how it targets, punishes and releases those identified as criminals. With 2.3 million people behind bars, the United States has imprisoned a higher percentage of its population than any other nation, according to the Pew Center on the States and other groups. Although the United States has only 5 percent of the world's population, it has 25 percent of its prison population, Webb says.

A disproportionate number of those who are incarcerated are black, Webb notes. African Americans make up 13 percent of the population, but they comprise more than half of all prison inmates, compared with one-third two decades ago. Today, Webb says, a black man without a high school diploma has a 60 percent chance of going to prison.

Webb aims much of his criticism at enforcement efforts that he says too often target low-level drug offenders and parole violators, rather than those who perpetrate violence, such as gang members. He also blames policies that strip felons of citizenship rights and can hinder their chances of finding a job after release. He says he believes society can be made safer while making the system more humane and cost-effective.

That point of view has gained steam with members of both parties. Virginia Gov. Timothy M. Kaine (D) recently proposed earlier release for some prisoners convicted of nonviolent crimes as a cost-cutting measure.  But the movement is alarming to drug enforcement advocates. Tom Riley, spokesman for the Office of National Drug Policy Initiatives, said it has become an "urban myth" that the nation imprisons vast numbers of low-level drug offenders.

I have so many positive reactions to the news that Senator Webb remains eager to make a priority of sentencing and prison reform.  But I have so many negative reactions to how this Post article makes Senator Webb seem like an odd duck for having this priority.  For a nation supposedly committed to freedom and liberty, I think the odd ducks are those Americans not seriously concerned about the status of the US as the world's leader in incarceration.

Moreover, as regular readers of this blog know well, though too few federal lawmakers are concerned with overflowing prisons, due to an ailing economy and tight budgets nearly every state lawmaker is deeply concerned about how best to cut prison populations without hurting public safety.  I hope that Senator Webb's panel would start with a set of immediate action initiative to identify groups of prisoners who might be effectively released without a serious risk to public safety.

Some related posts about prison nation as a pressing problem: 

• My latest (academic?) musings about progressive punishment perspectives
• How many states are being forced by economic realities to consider releasing prisoners?
• Will we invest in classrooms or cells in these tough times?
• Making an economic case for cost-oriented sentencing and prison reforms
• It's the prison economy, stupid
• More evidence that it's the prison economy, stupid
• Still more evidence it's the prison economy, stupid
• Kentucky governments fighting in court over incarceration costs
• Important (though incomplete) op-ed on mass incarceration and mercy

Some related posts Senator Webb's great work and the failings of other national politicians:

• Why is Senator Jim Webb the only national figure focused on the prison economy?
• (Too) little coverage of JEC hearing on US drug policy
• Upcoming JEC hearing on costs of US drug policy
• Congressional hearing on mass incarceration
• More on the JEC hearing on mass incarceration
• Great TNR coverage of JEC hearing on mass incarceration
• A good question about prison nation ... dodged
• New FAMM report and poll data on reforming mandatory minimums
• "Real commander needed for the war on drugs"
• FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"

Intriguing little discussion of relevant conduct from Seventh Circuit

The federal courts are back in business today, and the Seventh Circuit has an intriguing little opinion today in US v. Alldredge, No. 08-2076 (7th Cir. Dec. 29, 2008) (available here).  Alldredge covers a lot of relevant conduct ground in a short space, and here is the tail end of the panel's notable discussion:

The choice between a chargeoffense approach and a real-offense approach was made by the Sentencing Commission rather than Congress; §3553(a) is agnostic on this question. Kimbrough v. United States, 128 S. Ct. 558 (2007), holds that a district judge may disagree with the Sentencing Commission (after first being sure to understand what the Commission has recommended), as long as the court observes all applicable statutes. Perhaps the process of reconsideration on remand will lead to the same sentence; whether it does is a question for the district judge rather than the court of appeals.

Kentucky legislature struggling with correction costs and sentencing reforms

This local story, headlined "Changes sought in Ky. penal code: Major reforms not on session agenda," provides an interesting window on one state's struggles with correction costs and sentencing reforms.  Here are a few excerpts:

In a short, 30-day session and with a gaping budget hole to fill, the 2009 General Assembly is not expected to take up comprehensive corrections reform, despite a surging inmate population.

Earlier this month Justice Cabinet Secretary J. Michael Brown submitted to Gov. Steve Beshear 11 proposed reforms, most of which are relatively small changes to the penal code.  But in light of the state's budget problems, "comprehensive (corrections) reform is delayed," said Rep. Robin Webb, D-Grayson....

With a burgeoning corrections budget and a fast-growing prison population, criminal justice officials have been clamoring for the first sweeping reform since the penal code was established in the 1970s. The state's prisons house about 21,000 inmates, a figure that is projected to reach 31,000 within a decade. The growth rate is the fastest in the nation, according to a recent report by the Pew Center on the States....

Despite the budget crisis, Brown said the state must be careful not to make program cuts that could increase the recidivism rate and instead should try to find funding for initiatives that could lower the rate.  Officials estimate that roughly 30 percent of all inmates re-offend within two years of being released from prison. "How do we put programs in place that are going to make it more likely, rather than less likely, the individual is going to succeed on the outside?" Brown said.

Effective reporting on White acquitted conduct ruling from Sixth Circuit

An nice AP article — which here is headlined "Case with local tie could go to Supreme Court" and here is headlined "Split appeals court upholds bank robbery sentence" — provides an effective review of the Sixth Circuit's work in the White acquitted conduct en banc case (basics here).  Here are some excerpts:

A federal appeals court has upheld a 22-year prison sentence for a convicted bank robber, determining there was enough evidence for nearly tripling the original sentence based on two other charges he was acquitted of in connection with the 2003 crime....

The court's decision in White's case is the latest in the ongoing battle over how federal judges deal with the federal sentencing guidelines and U.S. Supreme Court rulings over what those guidelines mean....

"Hopefully, there's another chapter to be written in this case," said Mark Harris, a New York-based attorney who filed a friend-of-the-court brief on White's behalf. Harris said the current sentencing law "violates our internal sense of right and wrong" when it comes to the law. "It just doesn't seem to consistent with fair play," Harris said. "The basic idea here is you can be acquitted of a crime, but still sentenced as if you committed it."...

The practice of using unproven charges to enhance a sentence is barred by nearly every state, but is permissible in federal courts.... "It's quite frequent that this happens," Harris said. "It's not always as dramatic as it is in this case. It's kind of shocking."

White's attorney, Kevin Schad of Ohio, said the case will be appealed to the U.S. Supreme Court. "I believe Americans would be shocked to hear that an acquittal means nothing in the federal system," Schad said....

Harris said the case likely won't end with the 6th Circuit's opinion. "The U.S. Supreme Court is going to have to address this, possibly even with this case," Harris said. But, unless or until it does, White will stay in the Forrest City Federal Correctional Institute in Forrest City, Ark. He's eligible for release in 2021, when he'll be 60-years-old.

I suspect I may help with an amicus in support of cert in this case, and I am hopeful that lots of others will also try to get the Supreme Court to take up an acquitted conduct case sooner rather than later.

Some related posts about the White case and acquitted conduct sentencing enhancements:

• Sixth Circuit finally issue en banc opinion on acquitted conduct enhancements
• Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues
• Extended examination of ugliness of acquitted conduct enhancement
• Strong commentary on acquitted conduct sentencing
• DC Circuit affirms (but questions fairness of) acquitted conduct enhancement
• Sincere questions about acquitted conduct sentencing
• Should (and must?) a federal judge show respect for all of jury's work at sentencing?

Still more blogosphere buzzing about the Presidential pardon polka

Because the story has so many intriguing dimensions, bloggers continue to buzz about Pressident Bush's decision to grant, and then seek to retract, a pardon for Brooklyn real estate developer Isaac Robert Toussie.  Here is just a sample of the continuing buzz:

• From Balkinization here, "I unbeg your pardon — I never promised you, said the man in the Rose Garden "
• From Concurring Opinions here and here, "More on the President's Attempt to Revoke the Toussie Pardon" and "Toussie's Pardon *Was* Signed, Sealed, Delivered, and Probably Accepted"
• From Talking Points Memo here, "Bush's Constitutionally Dubious Pardon Shuffle"

Of course, P.S. Ruckman is all over all these issues and more at Pardon Power.  But I have not yet seen Ruckman or others speculate about whether this latest pardon polka will further diminish the chances that President Bush will do something courageous and compassionate with his clemency power on his way out the White House door. 

I am hoping for — but not expecting in any way — a significant batch of commutations for persons who have been overpunished by the federal sentencing system under this President's watch.  This recent Fox News story properly that President Bush, who came into power claiming to be a compassionate conservative, "is particularly stingy when it comes to commutations of prison terms."  Specifically, he has only granted nine commutation (one of which includes Scooter Libby), despite the fact that he has "received more than 8,000 such requests since taking office" and the fact that there are now over 202,000 persons whose liberty is controlled by federal prison authorities.  I hope that the Border Agents, Weldon Angelos (whom I represent), and many other overpunished federal defendants do not have their clemency prospects unduly diminished by latest pardon mess.

"Laws to Track Sex Offenders Encouraging Homelessness"

The title of this post is the title of this notable article in today's Washington Post.  Here are snippets from an effective piece:

Strict new laws aimed at keeping track of sex offenders after they leave prison appear to be having the opposite effect, encouraging homelessness in a population believed more likely to re-offend if cast into the streets without structure or family support, say prosecutors, police, parole officials and experts on managing sex offenders.

The issue is starkest in California, where the number of sex crime parolees registering as transient has jumped more than 800 percent since Proposition 83 was passed in November 2006. The "Jessica's Law" initiative imposed strict residency rules and called for all offenders to wear Global Positioning System bracelets for the rest of their lives....

"The public definitely was sold a bill of goods on this one," said Detective Diane Webb, supervisor of the Los Angeles Police Department unit that tracks 5,000 sex offenders in Los Angeles County. "Unfortunately, it bodes well for politicians to support it because the public does have this false sense of security that this is somehow protecting them when it's not."...

Similar complications face 31 other states that have passed residency restrictions. Georgia's Supreme Court last year struck down its law on the grounds that the 1,000-foot restriction violated property rights; the succeeding measure also faces a court challenge.  Homeless offenders in Miami huddled nightly under a bridge after being kicked off a vacant lot neighboring a center for abused children.  [The Miami sex offender shanty is what is pictured in this post's photo.] 

In Iowa, the number of sex offenders whose whereabouts were unknown doubled after passage of residence restrictions. "I don't think anybody has found any evidence that they contribute to safety," said Corwin Ritchie, head of the Iowa County Attorneys Association. "The main defenders are people who are just basing it on emotion, not good public policy.  I think most legislators have figured that out in their hearts."...

The state lawmaker who championed Proposition 83 said he was not bothered by homelessness resulting from the initiative because every transient offender is supposed to be wearing an ankle bracelet.  "We knew the consequence from the very beginning; that's why we included GPS as well as residency requirements," said state Sen. George Runner, a Republican who represents an L.A. exurb.

Should we be worried or hopeful about the Obama Administration and the drug war?

A couple of new commentaries about the incoming Obama Administration and marijuana policies can give those interested in this aspect of the drug war either new hopes or new fears.  First, over at Esquire, John Richardson has this piece headlined "Why Obama Really Might Decriminalize Marijuana."  But, Jacob Sollum at Reason has this response that explains why he fears that the most anyone should expect is "A Blue-Ribbon Panel, If We're Lucky."

Ever the moderate and sentencing fanatic, I think (or at least hope) that the Obama Administration will see the virtues of a sensible casualty assessment and than a slow and steady troop withdrawal in this area of the drug war.  I believe that a sober cost/benefit analysis of modern marijuana policy would lead to the conclusion that we right now spend too much taxpayer money in order to punish unequally a small percentage of those folks involved in distribution and use of a drug that few consider very serious.  If the Obama Administration is seriously committed to reviewing all federal programs to assess their efficacy, the federal investment to the pot portion of the drug war ought to be reduced in the years to come.

Some related posts:

• Interesting reflections on Obama appointees from drug policy reformers
• President-Elect Obama officially names Eric Holder as his AG pick
• Will any Prez candidate promise to get us out of a failed war ... on drugs?
• "Real commander needed for the war on drugs"
• "America's Forgotten War"
• Politics and the war on drugs
• Are we on the verge of a new changed era concerning federal sentencing law and policy?
• "Smart on Crime: Recommendations for the Next Administration and Congress"
• A dollars and sense criticism of Senator Obama's crime-fighting plans
• Senator Biden, crime and punishment
• FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"

Any thoughts on the top sentencing stories of the year?

This time of year always lends itself to end-of-year reflections, and I have started reflecting on some of the biggest sentencing stories.  I would welcome reader input on what should be deemed the biggest sentencing stories of 2008. 

Lethal injection litigation, prison overcrowding problems, post-Gall/Kimbroughcircuit rulings, crack retroactivity issues, clemency craziness, and election year debates and developments can all make a case for being the top sentencing story of the year.  And, if I am forgetting others, I trust helpful readers will make sure nothing big gets overlooked.

"A Father, a Son, and a Short-Lived Presidential Pardon"

The title of this post is the title of this New York Times article with the latest news on the latest presidential pardon snafu.  Here is the most notable section for those really interested in trying to figure out what the heck is going on and what is going wrong on the clemency:

The White House said Thursday that when Mr. Bush granted Isaac Toussie, 37, a pardon earlier this week, the president and his advisers were unaware that the elder Mr. Toussie had recently donated $30,800 to Republicans. Mr. Bush took the extraordinary step of rescinding the pardon on Wednesday after reports about the political contributions.

The White House spokeswoman, Dana M. Perino, said in an e-mail message Thursday that the administration never sought information on political donations in considering pardon applications. “This would be inappropriate on many levels,” Ms. Perino said. “Given that no one advising the president knew of the donation by Toussie’s father, and because of the possibility of an appearance of impropriety, the counsel to the president withdrew his recommendation.”

While the younger Mr. Toussie has said nothing publicly since the revelation of the donations on Tuesday, his supporters say he deserved a pardon because he was contrite about his misdeeds and had made significant charitable contributions before and after his convictions. Both of these factors are believed to have been factors in Mr. Bush’s original decision to grant the pardon. “There was a long list of charitable donations and work he had done since his sentence,” Ms. Perino said.

Officials said Fred F. Fielding, the White House counsel, was unaware in reviewing the petition that Mr. Toussie’s father had recently donated $28,500 to the Republican National Committee and $2,300 to the presidential campaign of Senator John McCain of Arizona. People involved in the pardon process say it has become more common in recent months for those seeking clemency to go directly to the White House, as Mr. Toussie’s lawyer, Bradford Berenson, did, rather than go through the Justice Department.

Mr. Bush’s revoking of the pardon was so unusual that some legal experts questioned whether he had the authority to reverse the pardon, one of 19 the White House announced Tuesday. But the Justice Department said it believed that the original pardon announcement was not binding and could be revoked because Mr. Toussie had not received formal notification of the president’s action. Mr. Toussie’s lawyers hope he might still be granted a pardon once the Justice Department completes a formal review.

In this effective post at the White Collar Crime Prof Blog, Ellen Podgor asks these astute questions as a follow up:

• If they hadn't asked about political contributions previously, and had no knowledge of the political contribution at the time of granting this one, then why rescind this pardon? Do you rescind something just because it looks bad?
• It sounds like the father made the contributions and not the son.  Do you rescind a pardon because of acts of a parent?  And should all people and their families who might be interested in obtaining a pardon need to beware of their contributions and not make any political contributions because it may result in a rescinded pardon if someone finds out about the contributions after the fact?

And, not surprisingly, PS Ruckman at Pardon Power keeps up his effective blogging on all these doings with new posts here and here, titled "Toussie Jammup: Sorry, I Just Don't Believe It" and "Can a President Revoke a Pardon He Has Granted?".

Who bears the costs when a prison goes digital?

Especially since I am planning a trip to my local electronics store this afternoon, I could not resist posting this little article I saw thanks to How Appealing.  The report is headlined, "R.I. state prison gears up for the switch to digital on 1,500 TVs," and here is how it starts:

Ask Corrections Director A.T. Wall about the importance of televisions in keeping prisons peaceful and he will paraphrase an old saying: “Idleness is the devil’s workshop.” “An idle inmate can pose a security risk,” Wall says. “We want to keep them occupied, and the opportunity to watch television is one way we do it.”

Which is why the Department of Corrections is spending $175,000 between now and Feb. 17 to rewire the Adult Correctional Institutions and make sure the screens of 1,500 inmate televisions don’t all revert to white static when the nation’s broadcasters switch from analog to digital signals.

And that is only one step. The inmates themselves will have to either come up with $69 for a converter box to use on their existing television or buy a new 13-inch television from the prison commissary for $160 (with the see-through plastic back, of course).

While some prisons around the country have subsidized the cost for inmates to stay connected, Wall said “with the state’s current fiscal climate I’m not willing to use taxpayer money to purchase converter boxes for the inmate population.” Neither is Massachusetts. “No taxpayer funds are being used for inmates’ televisions,” said Diane Wiffin, a spokeswoman for the Massachusetts Department of Corrections.