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March 8, 2008

More criticism of sex offender residency restrictions

Providing another interesting perspective on sex offender residency restrictions is this new piece on SSRN from Asmara Johnson, titled "In the Zone: Sex Offenders and the Ten Percent Solutions." Here is the abstract:

This Article challenges prevailing judicial orthodoxy that many sex offender residency restrictions are constitutional under the federal Ex Post Facto Clause.  The paper applies the analytical framework in Smith v. Doe, the Court's most recent case involving sex offender legislation.  It also forges a new way of thinking about these regimes as land-use policies that "negatively" zone individuals out of the urban cores. The paper proposes an innovative "positive" zoning scheme, the Sex Offender Containment Zone, that zones high-risk convicted sex offenders back into the city and that is effective, humane, and constitutional.

At first glance, sex offender residency restrictions appear plausible because they ostensibly place a convicted sex offender's residence out of reach of children. However, these regimes address less than 10% of the very real problem of child sex abuse, as over 90% of this abuse is committed by a family member or acquaintance of the child.  On the other hand, many schemes effectively banish almost 100% of convicted sex offenders to society's literal and psychic margins, condemning many low-risk offenders who pose minimal recidivist risk to a lifetime of isolation and breeding optimal conditions for high-risk offenders to re-offend. The practical implications of this policy choice, therefore, are dangerous and real, lulling the public into a veritable false sense of security.

Some related posts:

March 8, 2008 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Shaming a child and the wisdom(?) of parental punishment

Photo_servlet As detailed in this local Florida story, headlined "Teen Forced To Carry 'I Am Stupid' Sign After Speeding Ticket," a mother recently made headlines by imposing a shaming punishment on her reckless son.  Here are the basic details:

Adam Clark was pulled over going 107 mph in a 55-mph zone; neither the police nor his mother were pleased.  Adam's mother, Heidi Wisniewski, not only took his car away, but also made him a sign to show outside of his school every morning and every afternoon.

He was forced to hold a sign reading, "I was stupid. I drove over 100 mph and got caught. Thank God!  I could have killed me and my friends."  Adam said he got some strange looks and laughs from classmates at Orlando's Merritt Island High School, but said he accepts his punishment. Despite the humiliation, he said he isn't mad at his mother....

Wisniewski said her son would be in front of the school before and after school for a month, and added that she didn't think the punishment is over the line.  "I love my son very much," she said.  "I think more parents need to be tougher on their children."...

Adam said the punishment worked. "I've learned my lesson," Adam said.

As a fan of shaming punishments, I am quite pleased to hear about a mother willing to impose a (quite effective) type of punishment that the criminal justice system is often unwilling to impose.

Of course, I know that many (like Dan Markel) are adamantly opposed to shaming punishments.  I wonder if Dan or others consider the mother in this story to be unfit because she imposed a severe shaming punishment.  Or do those who oppose state-sponsored shaming punishments believe that parents can justifiably use these punishment even though the state should not?  If this is the view of anti-shaming advocates, are they fundamentally asserting that the state should never consider taking on a parental-type role in the operation of a criminal justice system?

Cross-posted at PrawfsBlawg

March 8, 2008 in Criminal Sentences Alternatives | Permalink | Comments (8) | TrackBack

March 7, 2008

Another strong editorial on mass incarceration

The Newark Star-Ledger has this editorial expressing concerns with the practicalities and politics of modern mass incarceration.  Here is how it starts:

For the first time in history, more than one in every 100 adults in the nation is in jail or prison, giving the U.S. the grim distinction of leading the world in incarcerating its people.

Alarming is the only way to describe the numbers. At the start of 2008, a record-breaking 2.31 million U.S. residents were behind bars.  No other nation — not China, not Iran, not Russia — has so many prisoners either in sheer numbers or per capita.  Even as the crime rate has gone down, the prison population has gone up.

Though the number of offenders decreased slightly last year in New Jersey, the state stands out because it leads the nation in locking up nonviolent drug offenders.  Most frightening about these numbers is the failure of politicians to seriously consider the wisdom of mandatory sentencing laws and other policies that have got ten New Jersey and so many other states into this fix.  Reflexively, politicians support legislation because they want to be tough on crime even if the result is sending a lot of people to prison who should not be there.

Gov. Jon Corzine, who claims to be sensitive to these issues, nevertheless has signed more bills imposing mandatory sentences in two years than any governor be fore in such a short period.

Some recent related posts:

March 7, 2008 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Might the ugly Clinton pardons start getting some campaign traction?

As I have noted previously, P.S. Ruckman over at Pardon Power is doing a great job keeping track of how the Bill Clinton's ugly clemency record could be a big issue in Senator Clinton's presidential campaign.  Here are some notable recent posts on this topic:

The first post linked above discusses this new USA Today article, headlined "Archivists block release of Clinton papers."  Here are excerpts from this lengthy article:

Federal archivists at the Clinton Presidential Library are blocking the release of hundreds of pages of White House papers on pardons that the former president approved, including clemency for fugitive commodities trader Marc Rich.  The archivists' decision, based on guidance provided by Bill Clinton that restricts the disclosure of advice he received from aides, prevents public scrutiny of documents that would shed light on how he decided which pardons to approve from among hundreds of requests....

The decision to withhold the records could provide fodder for critics who say that the former president and his wife, Sen. Hillary Rodham Clinton, now seeking the Democratic presidential nomination, have been unwilling to fully release documents to public scrutiny.  Officials with the presidential campaign of Sen. Barack Obama, D-Ill., criticized Hillary Clinton this week for not doing more to see that records from her husband's administration are made public....

In January 2006, USA TODAY requested documents about the pardons under the Freedom of Information Act (FOIA). The library made 4,000 pages available this week. However, 1,500 pages were either partially redacted or withheld entirely, including 300 pages covering internal White House communications on pardon decisions, such as memos to and from the president, and reports on which pardon requests the Justice Department opposed....

Former president Clinton issued 140 pardons on his last day in office, including several to controversial figures, such as commodities trader Rich, then a fugitive on tax evasion charges. Rich's ex-wife, Denise, contributed $2,000 in 1999 to Hillary Clinton's Senate campaign; $5,000 to a related political action committee; and $450,000 to a fund set up to build the Clinton library.

The president also pardoned two men who each paid Sen. Clinton's brother, Hugh Rodham, about $200,000 to lobby the White House for pardons — one for a drug conviction and one for mail fraud and perjury convictions, according to a 2002 report by the House committee on government reform.

March 7, 2008 in Clemency and Pardons | Permalink | Comments (5) | TrackBack

A killer conference at Fordham

Staring this morning is this conference in New York on lethal injection sponsored by the Fordham Urban Law Journal.  I have the honor to be monitoring a panel on saturday morning, and here is a preview of topics to be covered:

The symposium will address a broad range of issues concerning lethal injection. Some of these issues include: The purpose of punishment and whether lethal injection adequately serves that purpose; the role of doctors in executions; the relationship between state laws governing the euthanasia of animals and the current lethal injection protocols in those states; the role of the Eighth Amendment in addressing these issues; the impact of the recent lethal injection litigation on lawyers, judges, media and the public, and the impact of the litigation on the death penalty debate as a whole.

One of the conference participants is Ty Alper, who has this effective new piece in the Harvard Law and Policy Review titled "What Do Lawyers Know About Lethal Injection?".  It concludes this way:

Putting the state’s litigators in charge of a process to address the constitutional infirmities of that state’s lethal injection procedures is not a recipe for good public policy. Nor does it allow for an appropriate level of public scrutiny of what should be a fully transparent process.

March 7, 2008 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

March 6, 2008

Are sex offender registries effective?

A new paper available here via SSRN asks "Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?".  The piece is authored by J.J. Prescott and Jonah Rockoff, and here is their abstract:

In recent decades, sex offenders have been the targets of some of the most far-reaching and novel crime legislation in the U.S. Two key innovations have been registration and notification laws which, respectively, require that convicted sex offenders provide valid contact information to law enforcement authorities, and that information on sex offenders be made public.  Using detailed information on the timing and scope of changes in state law, we study how registration and notification affect the frequency of sex offenses and the incidence of offenses across victims, and check for any change in police response to reported crimes.

We find evidence that registration reduces the frequency of sex offenses by providing law enforcement with information on local sex offenders. As we predict from a simple model of criminal behavior, this decrease in crime is concentrated among local victims (e.g., friends, acquaintances, neighbors), while there is little evidence of a decrease in crimes against strangers. We also find evidence that community notification deters crime, but in a way unanticipated by legislators. Our results correspond with a model in which community notification deters first-time sex offenses, but increases recidivism by registered offenders due to a change in the relative utility of legal and illegal behavior. This finding is consistent with work by criminologists suggesting that notification may increase recidivism by imposing social and financial costs on registered sex offenders and making non-criminal activity relatively less attractive. We regard this latter finding as potentially important, given that the purpose of community notification is to reduce recidivism.

March 6, 2008 | Permalink | Comments (6) | TrackBack

"One nation, behind bars"

Bilde The Detroit Free Press has this potent editorial with this same title as this post.  Here are excerpts:

The U.S. prison population, the world's largest, has grown nearly eightfold over the past 35 years and now costs taxpayers at least $60 billion a year.  An eye-popping report released last week by the Pew Center on the States found that, for the first time, more than one in every 100 American adults is in jail or prison. And that figure doesn't count the hundreds of thousands of people who are on probation and parole.

What is the goal here?  Is there a smarter way to get there?  What are we as a society getting in return for all this money?  What is this massive and growing penal system accomplishing?  Before the nation hits two in 100 behind bars, which seems inevitable, it's time for a national debate on corrections and criminal justice policies that will lead to a more rational, humane and cost-effective system.

The nation has gotten far too little for its enormous investment in locking people up. Violent crime rates are higher than they were more than three decades ago, when tough-on-crime policies, including mandatory sentencing laws, created a prison-building boom.  States can no longer afford to divert so many resources from education, health care and other pressing needs....

Nor can the nation ignore the human costs of mass incarceration.  Nearly half of the 2.3 million adults locked up are African Americans, who make up less than 13% of the U.S. population.  A stunning one in nine black males between the ages of 20-34 is behind bars....

Unacceptably high incarceration rates tear at the nation's social fabric and take public money from education, health care, transportation and other vital needs.  Nor have they significantly reduced crime. It's time to re-examine the policies that have made us the incarceration nation.

Regular readers know that I have been regularly calling upon the Presidential candidates and the media to get started on "a national debate on corrections and criminal justice policies that will lead to a more rational, humane and cost-effective system." 

Needless to say, I am not surprised that Hillary Clinton has not started a healthy crime-and-punishment dialogue given that she and her husband have both played a major role in the modern Democratic Party's apparent affinity for an irrational, inhumane and ineffective set of corrections and criminal justice policies.  But I am still hoping that supposed maverick John McCain or claimed change agent Barack Obama will start using their bully pulpits to help shake this country out of its very harmful incarceration addiction.  Or maybe they, too, are taking to Incarcerex.

March 6, 2008 in Scope of Imprisonment | Permalink | Comments (6) | TrackBack

Let the sunshine in ... to SCOTUS and all other federal courts

I am extraordinarily pleased to see this news that today the "Senate Judiciary Committee today passed out a bill that would allow TV coverage of all federal courts."  Here's more from Lawrence Hurley's interesting report:

The committee has approved similar bills on several occasions in recent years but the legislation, known as the Sunshine in the Courtroom Act, has never been close to becoming law.

Sen. Ben Cardin, D-Md., (pictured) narrowly failed in his attempt to exempt district courts.  His amendment failed on a 9-9 tie. 

Cardin had argued that while there is a need to show the inner workings of the appellate process, especially the Supreme Court, trials in district court are more problematic.  That's because the media would not cover trials from gavel to gavel, he said.

But the bill's sponsors fought back, noting that the latest version of the legislation allows trial judges to exclude the cameras in certain instances, such as to protect witnesses and minors.  Sen. John Cornyn, D-Texas, added that coverage of trials would help the American people understand that trials are a lot more complex - and less entertaining - than legal TV dramas make them appear.  "I think it's important for them to see what happens," Cornyn said of the public.

A House version of the bill has already been approved by the judiciary committee.

Readers will not be surprised to learn that I think it is especially important to see what happens in district courts at sentencings.  Indeed, I think all law professors should lobby hard in favor of this Act in order to have a terrific corpus of teaching materials in the form of courtroom video.  I might even be able to develop a sentencing-only version of YouTube.

March 6, 2008 in Who Sentences? | Permalink | Comments (5) | TrackBack

Exposing the (racist?) hypocrisy of Clintonian speeches without solutions

I am pleased to see this new piece at the Huffington Post, titled "Hillary, Bill and Obama on Crack," is trying to bring the Clintons to account for their disappointing and very telling pandering on federal sentencing issues.  Here are the basics: 

While Bill Clinton is apologizing for not having done more to reduce the disparity in sentencing for crack and powder cocaine that is in part responsible for putting one in nine young black men in prison, his wife opposes even the most modest attempt to fix the problem.

Hillary Clinton has come out against making retroactive the small change in sentencing guidelines that allows some people convicted under the overly harsh crack laws to have their sentences reviewed by a judge, and if they are found eligible, given early release.  Most blacks affected will still serve more than a decade in prison for a nonviolent crime for which whites often escape incarceration entirely — but nevermind. Hillary has bought into fears that this means a sudden massive release of an army of Willie Hortons....

As her husband did before her, when it comes time to make a choice between something that can be used as a political tool against her or doing the right thing and explaining the complexity, Hillary chooses expedience.

It's great to hear that Bill regrets sacrificing the lives of IV drug users and their sexual partners and children to his fear of being demagogued on needle exchange and now to learn that he opposes his own policies on drug sentencing.  But it sounds like Hillary will be saying the same things only after she leaves office if she wins it — when it means absolutely nothing.

Some related prior posts of mine on race, sentencing and the 2008 campaign:

ON CLINTONIAN PANDERING

ON RACE, CRIME AND THE 2008 CAMPAIGN

March 6, 2008 in Campaign 2008 and sentencing issues | Permalink | Comments (15) | TrackBack

The costs of the death penalty in Maryland

Thanks to this post at How Appealing, I see that the Baltimore Sun has this notable article headlined "Death penalty costs Md. more than life term."  Here are excerpts:

The death penalty has cost Maryland taxpayers at least $186 million more in prosecuting and defending capital murder cases over two decades than would have been spent without the threat of execution, according to a study to be released today. In addition, because most death sentences in Maryland are overturned and eventually reduced to life without parole, state residents are often saddled with the high cost of a capital case and the bill for housing a convicted killer for life, the study found.

Paid for by the Baltimore-based Abell Foundation and prepared by the Urban Institute, a national, nonpartisan research organization in Washington, the study estimates that the cost of reaching a single death sentence costs the state an average of $3 million, which is $1.9 million more than a non-death penalty case costs, even after factoring in the long-term costs of incarcerating convicted killers not sentenced to death.

The report - the first to analyze the cost of capital punishment in Maryland - arrives as state lawmakers prepare to again debate repealing the death penalty. A hearing is scheduled for today in Annapolis on a Senate bill that would eliminate capital punishment as a sentencing option. A similar House bill is scheduled to be heard next week. "This is a compelling argument against the death penalty - the enormous costs to the state's taxpayers," said Rick Abbruzzese, a spokesman for Gov. Martin O'Malley, a death penalty opponent who focused on the financial costs of capital punishment when he testified last year in support of repeal. The bill was defeated by one vote in a Senate committee last year.

The top prosecutor in Baltimore County - which accounts for more capital cases than any other jurisdiction in the state - assailed the study's conclusions and its use of attorneys' salaries to calculate the cost of the death penalty in Maryland. "That is a completely worthless number, because we don't go out and hire new lawyers to try these cases," Baltimore County State's Attorney Scott D. Shellenberger said. "They get assigned to my most experienced lawyers, who will work as many hours as it takes to put the case on, and don't get any more money."

Some related posts:

March 6, 2008 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

This morning's crack sentencing coverage

Another day and another set of newspaper articles and commentaries on crack retroactivity.  Here's a sample:

March 6, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

March 5, 2008

A new note on sex offender residency restrictions

Thanks to this post at CO, I see a new note on sex offender residency restrictions from the Northwestern University Law Review.  This piece — Sarah E. Agudo, Irregular Passion: The Unconstitutionality and Inefficacy of Sex Offender Residency Laws, 102 Nw. U. L. Rev. 307 (2008) (available here) — has these passages in its introduction:

Sex offenders are among the most hated members of our society.... In recent years, laws protecting society from these offenders have grown increasingly broad; the restrictions have become more severe and applicable to more people.  Residency laws, which dictate where sex offenders can live upon release from prison or while on parole, exemplify this trend.  Twenty-two states in the United States currently have some form of residency law that restricts where sex offenders can live. For example, many states prohibit sex offenders from living within 1000–2500 feet of schools, bus stops, or daycare centers....

It is likely that these recent expansions of sex offender legislation and the ensuing litigation over their constitutionality will prompt a Supreme Court decision establishing the limit on states’ control over their released offenders.

Research on the effectiveness of residency laws is scarce.  However, a few studies suggest that residency restrictions have no impact on sex offense recidivism.... Protecting the public from sex offenders is unquestionably important, but states should not sacrifice civil liberties in favor of unproven methods of control. Reasonable and constitutionally acceptable residency laws may well exist.

The aim of this Comment is not to call for the abolition of all residency laws, but rather to promote a cogent dialogue regarding the upper bounds of their effectiveness and constitutionality in order to provide a framework for future legislation. Although, in many areas of law, democratic processes can adequately safeguard those bounds, the public outrage against sex offenders threatens to chill the usual political protections and justifies careful judicial oversight.

Some related posts:

March 5, 2008 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Eighth Circuit affirms large above-guideline sentence

The Eighth Circuit today in US v. Austad, No. 07-1376 (8th Cir. Mar. 5, 2008) (available here), affirms an above-guideline sentence with heavy reliance on Gall.  Here is the start and end:

Christopher Austad (Austad) pled guilty to mailing threatening communications in violation of 18 U.S.C. § 876(c).  After calculating a sentencing Guidelines range of 37 to 46 months imprisonment, the district court sentenced Austad to 84 months imprisonment.  Austad appeals, arguing the sentence is unreasonable, and that the district court failed to consider Austad’s history and circumstances. We affirm....

As the Supreme Court reminds us [in Gall], “[t]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case.  The judge sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record.” id. (citation omitted).  Given these considerations, we cannot say the district court abused its discretion in sentencing Austad.  Even if Austad’s sentence were considered “unusually harsh,” the district court explained the sentence with “sufficient justifications.”  See id. at 594.

March 5, 2008 in Gall reasonableness case | Permalink | Comments (1) | TrackBack

Early reports on crack retroactivity implementation

This new Washington Post article — headlined "Government Starts Cutting Sentences Of Crack Inmates: Bureau of Prisons Processes 400 Orders" — provides news from the front lines in the implementation of the new crack guidelines.  Here are the basics:

The federal government said yesterday that it has received hundreds of court orders reducing the prison sentences of crack cocaine offenders in the two days since new sentencing guidelines took effect. A spokeswoman for the Federal Bureau of Prisons could not say how many prisoners have already been released under the U.S. Sentencing Commission's new guidelines, but the bureau has processed about 400 orders modifying prison terms nationwide.

In addition, the New York Sun has this new piece, headlined "Judges Grant Release Of 3 City Crack Offenders." 

On a slightly different but related front, The Huffington Post has this new commentary titled "Clinton's Crack Cocaine Apology: Too Little Too Late?".

UPDATE:  Here are some more local stories about crack retroactivity implementation:

March 5, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (8) | TrackBack

Tenth Circuit splits over reasonableness of below-guideline sentence

In a lengthy decision, a split Tenth Circuit panel upheld the reasonableness of a below-guideline sentence in a sex offense case in US v. Smart, No. 06-6120 (10th Cir. Mar. 4, 2008)(available here).  Here is how the majority opinion starts:

Christopher Wayne Smart was convicted of inducing a minor to engage in sexually explicit conduct for the purpose of producing videotapes depicting such conduct in violation of 18 U.S.C. § 2251(a). Exercising its discretion under United States v. Booker, 543 U.S. 220 (2005), Smart’s sentencing court concluded that his United States Sentencing Guidelines (“Guidelines”) range of 168 to 210 months’ imprisonment overstated the seriousness of his offense, and varied downward, imposing a sentence of 120 months’ imprisonment. The government appeals.

We review this exercise of district court sentencing discretion under the recent Supreme Court holdings in Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), which substantially invalidate the rigorous form of review our circuit announced in United States v. Garcia-Lara, 499 F.3d 1133 (10th Cir. 2007). Applying a deferential abuse of discretion standard, we AFFIRM.

The extended dissent by Judge Hartz begins by asserting that "the majority opinion has mischaracterized the government’s arguments in this case and has misconceived the meanings of substantive and procedural error."

March 5, 2008 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

March 4, 2008

After 220 years, should the Second Amendment stay minimalist?

Larry Tribe has this op-ed today about the Heller Second Amendment case in the Wall Street Journal, headlined "Sanity and the Second Amendment: Individuals have a right to bear arms -- but not any arms, anywhere."  I found the closing sentiments of the piece a bit curious:

Chief Justice John Roberts, ever since his days as a judge on the court of appeals, has virtually defined judicial modesty by opining that if it is not necessary for the court to decide an issue, then it is necessary for the court not to decide that issue.  For this reason, and for the further reason that the scholarship on the reach of the Second Amendment and its implementation is still in its infancy, the court should take the smallest feasible step in resolving the case before it. 

Issuing a narrow decision would disappoint partisans on both sides and leave many questions unresolved. But to do anything else would ill-suit a court that flies the flag of judicial restraint.

First, though Chief Justice Roberts has talked about "judicial modesty," my sense is that most court-watchers think he has not really pursued a "modest" judicial philosophy during his first few Terms on the Court.  Is Tribe now validating the notion that the new Chief is in fact a paragon of "judicial modesty"?

Second, is "the scholarship on the reach of the Second Amendment and its implementation" really "still in its infancy"?  If Tribe was discussing the Third Amendment, I would agree.  But Second Amendment scholarship has been pretty robust in modern times, and this scholarship is certainly a lot more advanced than scholarship about the reach and implementation of the Fifth, Sixth and Eighth Amendments at sentencing. 

Third, is it really a good idea to "leave many questions unresolved" in Heller?  Such an approach likely achieves nothing except lots and lots of lower-court litigation and political grand-standing about gun rights.  Is this really what we should hope the Supreme Court "achieves" through its ruling in Heller?

Fourth, do current court-watchers seriously think that the Roberts Court "flies the flag of judicial restraint"?  Perhaps Tribe and others are hoping that the Roberts Court will run this flag up its flagpole, but I do not think too many of the current Justices have shown a real affinity for pledging allegiance to that flag.

Some related recent Second Amendment posts:

March 4, 2008 in Second Amendment issues | Permalink | Comments (7) | TrackBack

A must-read on the politics of sentencing on a big election day

Just before I head out to vote, I got an e-mail from Stephanos Bibas with this message: "Max Schanzenbach, Emerson Tiller, and I have just completed and submitted for publication the enclosed essay, entitled Policing Politics at Sentencing.  We hope you'll post it to your blog and welcome comments."  Not only will I happily post the essay below, but here is the abstract for ready reader consumption:

ABSTRACT: In the recent Booker, Rita, and Gall cases, the Supreme Court continued to loosen federal sentencing law without exploring the implications of broader trial-court sentencing discretion. Drawing on our previous work in positive political theory, this essay argues that binding sentencing guidelines are necessary to constrain trial-court discretion and permit meaningful appellate review.  The Court has taken too rosy a view of trial-court sentencing discretion, undervaluing appellate review as a check on policy and ideological variations. Moreover, its case law discourages the transparency needed for appellate review and public scrutiny. Finally, this essay considers what guideline sentencing ought to look like if we could build it from scratch.

Download policing_politics_at_sentencing.doc

For a host of reasons, I suspect I may not agree with much of this piece, largely because I fear that the authors may have a far too rosy a view of "appellate review as a check on policy and ideological variations" in the actual operation of the federal sentencing system.  Since the authors have requested comments, I'll here provide a quick two-point take on the basis for my concerns:

1.  Well before Booker, much of the variation in sentencing outcomes resulted from the failure of appellate review to serve as a check on policy and ideological variations.  Congress was forced to enact the Feeney Amendment largely because the (1) federal prosecutors and (2) federal circuits had taken such widely divergent views concerning the application and limits of departure authority when the guidelines were still mandatory.

2.  If appellate review is so obviously a positive good to achieve the sentencing reform goals that Congress seeks and that justice demands, the frequent uses of appeal waivers in plea agreements by the Department of Justice — both before and after Booker — would be extremely suspect and should not be so consistently approved by the very appellate courts that this article champions.  As detailed in this post from 2005, Nancy J. King and Michael O'Neill did some ground-breaking empirical work on appeal waivers in a piece entitled "Appeal Waivers and the Future of Sentencing Policy."  They found that discretionary and disparate use of appeal waivers by prosecutors, and not greater district court discretion, might be the root of many federal sentencing problems.  Disconcertingly, from a quick scan, I do not see any mention of appeal waivers or the King & O'Neill research in this new essay.

I hope to comment further after I read closely more than just the essay's abstract.  In the meantime, I hope others might comment on the piece while I go wait in line in the rain to vote.

March 4, 2008 in Recommended reading | Permalink | Comments (8) | TrackBack

Two important (but unpublished!?!) defendant wins in the Eighth Circuit

I am not sure what bother me more: the fact that federal defendants rarely prevail in sentencing appeals or the fact that when they do some circuit seem eager to suggest these rulings are inconsequential by deciding they should be "unpublished."  Two rulings from the Eighth Circuit today, as reported on its official opinion page, get more worked up on this topic today.  Here are the unofficial summaries:

US v. McDonald, No. 05-1617 (8th Cir. Mar. 4, 2008) (available here):

[UNPUBLISHED] [Per Curiam - Before Bye, Beam and Gruender, Circuit Judges]:  On remand from the Supreme Court for reconsideration under Gall v. U.S.  Under the more deferential abuse-of- discretion review outlined in Gall, the district court did not abuse its discretion in sentencing defendant to 132 months, and the sentence is affirmed.

US v. Weston, No. 07-1048 (8th Cir. Mar. 4, 2008) (available here):

[UNPUBLISHED] [Per Curiam - Before Bye, Smith and Benton, Circuit Judges]: District court erred in applying the presumption of reasonableness; this error is now plain, and the record shows a reasonable probability that defendant would have received a lesser sentence but for the error; case remanded for resentencing.

March 4, 2008 in Gall reasonableness case | Permalink | Comments (1) | TrackBack

Q: "Hey, lawyer, you've just figured out crack retroactivity, now what are ya going to do?"

A: "I'm going to DisneyWorld! ... But only after I attend this terrific the Seventeenth Annual National Seminar on the Federal Sentencing Guidelines, co-sponsored by the US Sentencing Commission and the Federal Bar Association, which is scheduled for May 21-23 in Walt Disney World, Orlando, Florida!"

All the particulars of this exciting event are set out in this event brochure, which highlights that the Seminar presents an opportunity to commune with the entire sentencing commission, many staff, key judges, prosecutors, professors and others still trying to sort through post-Booker realities.  As detailed in the brochure, this Seminar brings together many folks who are really in-the-know about federal sentencing law and practice.  (I have the honor to be part of a great panel on "Guideline Departures & Variances Outside the Range under § 3553(a)," though I expect I will learn more than I know to share about this still-challenging post-Booker topic.)

March 4, 2008 | Permalink | Comments (1) | TrackBack

UK looking at a market-incentive approach to prison and prisoner reform

This new article from the Guardian reviews a fascinating set of UK developments that ought to intrigue any and all would-be US criminal justice reforms.  The piece is headlined "Tories plan bonuses for prison governors who cut reoffending," and here are excerpts:

A ground-breaking "payment by results" scheme will turn most prisons into self-governing bodies that will win cash rewards — including bonuses for governors — if they cut reoffending rates among former inmates, David Cameron pledged yesterday.

In a shake-up of criminal justice policy, a future Conservative government would allow prisons to hire private companies or voluntary groups to steer inmates away from a return to crime — or risk a reduction in funds.  Successful prisons, which prevent former inmates from reoffending for two years after their release, would be paid a "premium tariff payment" — a sum equivalent to the amount the state spends on processing an offender through the criminal justice system again.  Prisons that failed to meet their targets would be denied the extra payments and would have to rely on the "basic tariff" paid to house each inmate.

Nick Herbert, the shadow justice secretary, said the system would cut reconviction rates by 20% and cost the taxpayer nothing because it would redirect £259m that would be spent on future offenders into the new programmes.  The radical changes are the most eye-catching element of what Cameron dubbed a "rehabilitation revolution" to cut the high levels of reoffending.  Sixty-five per cent of offenders are reconvicted within two years of being released from prison, helping to create what Cameron called the "crisis" in the prison system in England and Wales which has seen the prison population recently hit a record 82,180....

A 111-page Tory document on prisons said: "For the first time all institutions in the system — prisons, the probation service, public, private and voluntary agencies — will have one clear incentive: to stop individuals reoffending once they have left prison.  If they are successful they will be able to earn money. If they are not, they will still receive payments to cover their costs."  [Cameron] said: "For too long, Labour have refused to build the prison places that are needed.  And for too long, they have allowed prisons simply to warehouse criminals rather than reforming them.  The result is our chronic rate of reoffending."

This related article, headlined "Prisoners should make reparations to victims, says Cameron," includes some additional details on David Cameron's proposals: "The Conservative leader said that getting prisoners to make reparations to their victims would help to ensure that prisons were places where offenders could be rehabilitated."

The "Policy Green Paper" that lays out all these ideas goes by the catchy name "Prisons with a Purpose" and can be accessed here.

March 4, 2008 in Sentencing around the world | Permalink | Comments (2) | TrackBack