March 15, 2008
Yet another insightful ivory tower view of modern sentencing realities
The stack of important academic reading for Blakely and Booker fans gets even longer with this new piece now on SSRN authored by Professors Stephanos Bibas and Susan Klein. This article is simply titled "The Sixth Amendment and Criminal Sentencing," and here is the abstract:
This symposium essay explores the impact of Rita, Gall, and Kimbrough on state and federal sentencing and plea bargaining systems. The Court continues to try to explain how the Sixth Amendment jury trial right limits legislative and judicial control of criminal sentencing. Equally importantly, the opposing sides in this debate have begun to form a stable consensus. These decisions inject more uncertainty in the process and free trial judges to counterbalance prosecutors. Thus, we predict, these decisions will move the balance of plea bargaining power back toward criminal defendants.
Ninth Circuit (unpublished) reversal for procedural unreasonableness
Citing procedural error, a federal appeals panel has overturned the controversial sentence U.S. District Judge Manuel Real imposed on an admitted con man who bilked scores of people out of millions of dollars by offering investments in a sham TV series about the Department of Homeland Security.... Joseph Medawar, who was sentenced in December 2006 to serve a year and a day in prison, could face more time in custody.
Medawar, a onetime Hollywood producer, avoided trial by pleading guilty to income tax evasion and conspiracy to commit mail fraud. Federal prosecutors sought a sentence of 57 months; even Medawar's trial attorney requested 33 months. But when Medawar, 46, appeared for sentencing, the judge imposed his own, much shorter term. Though Medawar was also ordered to pay $2.6 million in restitution and to perform 3,000 hours of community service, his prison sentence outraged victims of the fraud.
Ruling this week on an appeal filed by the U.S. attorney's office in Los Angeles, the 9th Circuit panel concluded that Real erred by not calculating Medawar's term under federal sentencing guidelines and by failing to consider other sentencing factors established under federal law. Moreover, the panel said, Real did not provide a "significant justification" for imposing a sentence far below the range of 57 to 71 months set under the guidelines.
March 14, 2008
"The Political Economies of Criminal Justice"
The title of this post is the title of this interesting looking article on SSRN. Here is the abstract:
Long understood as a specialized branch of law applicable to unambiguously harmful transgressions, criminal law has become instead a mechanism for routine social regulation. As Jonathan Simon puts it in a recent book on the subject, politicians increasingly govern through crime, by framing social policy choices as criminal justice problems. Such choices, in turn, engender expansive criminal jurisdiction, powerful enforcement bureaucracies, and ever more capacious concerns about crime-control.
This essay makes three arguments in response to the idea that society is governed through crime. First, it explains why Simon's description of the crime-governance nexus yields important contributions to our understanding of law in its social context. These include a rich historical account of the connection between crime control and the power of the American nation-state, along with the idea (which I term contagious framing) that certain approaches to governance problems are capable of spreading across time, space, and subject-matter. Second, it analyzes the range of different political dynamics affecting criminal justice — including some beyond the scope of Simon's project — and considers their effects. Though aspects of the "governing through crime" phenomenon unquestionably yield troubling results, the multiple dynamics driving criminal justice complicate its evaluation. Criminal enforcement engenders a punitive and encarceral machinery of staggering scope, but also fosters organizations with distinctive capacities to engage in social regulation. The institutional realities identified with governing through crime — including the prominent role of prosecutors and attorneys general, the use of expansive criminal statutes to manage risks, and social programs justified on the basis of crime prevention — draw political support from multiple sources, not all problematic. This mixture of causes and results makes it harder to generalize about the crime-governance nexus, but provides a more descriptively convincing account of criminal law's role. Third, because the crime-governance connection has distinct manifestations and origins, reshaping it to achieve more defensible social goals is a subtle enterprise. Sensible changes in criminal justice could almost certainly yield an acceptable social equilibrium less dependent on incarceration. That society, however, will likely feature a continuing nexus between crime and governance powerfully rooted in the nature of the modern nation-state.
Great public radio series on prisoner reentry
In a week in which the Second Chance Act finally became a reality (details here and here), it is my pleasure to note a great public radio series on prisoner reentry. Here is the e-mail I received discussing the series:
I’m writing to let you know about a series we did here at Southern California Public Radio/KPCC this week on prison reentry, including a ton of great Web extras like photos, bonus Web audio, and links to additional web resources, as well as audio and transcripts of all the stories. Here are links to the whole series:
An interest in public interest at my alma mater
I am about to get on a plane for a quick trip to Boston to attend part of this Harvard Law School event, "A Celebration of Public Interest." As might be expected, there is a decidedly elite skew to the event (e.g., there are very few criminal lawyers speaking). Nevertheless, both the public interest lawyer and law professor in me thought this event was worth checking out.
UPDATE: An interesting day was concluded with an amazing speech by Bryan Stevenson (HLS '85), who may now be at the very top of my SCOTUS short list.
Louisiana's brief in Kennedy arguing for capital child rape
Thanks to Sex Crimes, I now see that Louisiana's merits brief in the Kennedy SCOTUS capital child rape is now available at this link. Here are excerpts from the brief's "summary of argument":
The death penalty is not cruel and unusual punishment for the rape of a child. It is evident that societal awareness of the prevalence of child sexual abuse has increased tremendously in the last few decades. Moreover, public outrage over the sexual violation of immature young children by predatory adults is extremely great due to the recognition that these offenders target and harm the most vulnerable members of our society.
While this Court in Coker found that the death penalty was excessive for the rape of an adult woman, it has not found the death penalty to be excessive for all non-homicide crimes, or for all rapes. Objective indicia reflect that there is currently a significant trend to provide the death penalty as punishment for at least some rapes where the victim is a child. Seven states have legislation providing the death penalty for child rape, and of those States, only Florida’s statute has been invalidated by its state supreme court. Three other states are presently considering legislation which would authorize the death penalty as punishment for the rape of a child committed under certain circumstances. Additionally relevant to a determination of societal consensus with regard to authorizing the death penalty for this non-homicide offense, are the fifteen capital jurisdictions (including the federal government) that authorize the death penalty for a variety of non-homicide offenses, and the recent widespread enactment of “Megan’s Laws,” which require sex offenders to register and provide notification to the community. Juries have returned death sentences in two of the five cases in Louisiana in which it is known that the issue was submitted to a jury. In other states, the laws are so recently enacted that the fact that no one has yet been capitally convicted in those states does not demonstrate that juries are unwilling to impose the death penalty for the rape of a child. Therefore, objective indicia confirm that a current trend strongly supports imposition of the death penalty for this exceedingly grave offense. The State respectfully submits that legislative consideration of this issue should not be prematurely foreclosed.
Some related posts on the Kennedy case and capital child rape legislation:
Brennan Lecture on a topic that the Justice surely would have cared about
As documented at this official site, Justice Michael Wolff focused on sentencing issues at NYU when giving the 14th Annual Justice Brennan Lecture on State Courts and Social Justice last month. Justice Wolff, who sits on the Missouri Supreme Court and is the Chairman of the state's Sentencing Advisory Commission, titled his lecture "Evidence-Based Judicial Discretion: Promoting Public Safety through State Sentencing Reform." Here is how his lecture began:
Americans put more people behind bars per capita than any country in the western world. But this rate of incarceration is not necessarily helping to reduce crime. In fact, when we put the wrong people in prison, we make them — and the problem of crime — worse. As we come to realize this, hopefully a new way of thinking about sentencing will emerge that will focus on sentencing outcomes as a way to ensure that public safety is a top national priority.
Sentencing is a complex topic that needs to be approached with humility, an open mind and common sense. I believe we have the analytical tools available to help create a system that minimizes recidivism and maximizes public safety.
March 13, 2008
Criminal mistakes in analysis of Heller hysteria
With the Supreme Court's oral argument in the Second Amendment Heller case now only a few days away, the lawyer talk about the case is heating up. Of particular note is this new column from Robert Novak suggesting that the Bush Administration is unsupportive of SG Paul Clement position in Heller. That column has, in turn, produced additional analysis over at SCOTUSblog and at Volokh.
Sadly, as is all too common in all the buzz to date over Heller and the Second Amendment, none of the analysis considers the criminal justice litigation that the Justice Department justifiably fears if the Supreme Court were to recognize a robust individual right to keep and bear arms. As I have suggested in a number of prior posts, a major pro-gun-rights ruling in Heller could mean a new (and viable?) constitutional claim raised in every felon-in-possession prosecution and also could mean additional challenges to gun-possession-based sentencing enhancements.
I believe that fear of defense litigation in federal gun prosecutions best explains why the SG has taken such a tepid position in Heller. It is also why I really, really, really hope the Justices ask counsel in Heller whether severe felon-in-possession criminal laws could be upheld if the Second Amendment is to be understood to secure an enforceable individual "right of the people to keep and bear Arms."
Some related recent Second Amendment posts:
Notable Kimbrough remand from the Eleventh Circuit
Anyone trying to track the aftermath of the Supreme Court's ruling in Kimbrough will want to give a close look to the Eleventh Circuit's work today in US v. Stratton, No. 06-10080 (11th Cir. Mar. 13, 2008) (available here). Here are excerpts:
[W]e reconsider our previous opinion to the extent it rejected Stratton’s claim that the crack/powder sentencing disparity may be a factor in determining a reasonable sentence.... [We do so in part because] this is a case where the district court rejected Stratton’s claim that the court had authority to consider the crack/powder disparity as a sentencing factor and a basis for a sentence reduction. And this is not a case where the district court indicated that it would enter the same sentence even if the court had authority to consider the crack/powder disparity as a sentencing factor....
Therefore, we remand this case to the district court for the limited purpose of resentencing Stratton in light of Kimbrough. We do not suggest on remand that the district court must impose any particular sentence or that the district court is not free to impose the same sentence after considering the § 3553(a) factors. Furthermore, as this is a limited remand to permit the district court to reconsider the § 3553(a) factors in light of the Supreme Court’s holding in Kimbrough, Stratton may not re-argue other issues already decided or necessarily decided during his two prior sentencings that either were affirmed on direct appeal or could have been, but were not, raised by him during his direct appeals.... However, the district court may, if it wishes to do so, combine this resentencing proceeding on remand with any additional proceeding the district court may determine is appropriate in light of the retroactive application of Amendment 706 to the crack-cocaine guidelines effective March 3, 2008.
Good news for criminal defense lawyers who want to run for office?
In this post a few weeks ago, I linked to this Newsday article providing a long account of Senator Clinton's work as a criminal defense attorney three decades ago. The Newsday article seemed to be written to provide talking points against HRC because of her work on behalf of an accused rapist: it stressed that "a 27-year-old Hillary Rodham, acting as a court-appointed attorney, attacked the credibility of a 12-year-old girl in mounting an aggressive defense for an indigent client accused of rape in Arkansas." Interestingly, though, this story did not end up having any legs in the heated 2008 campaign; I cannot even recall seeing any legal blogosphere discussion of this article.
But now I see this notable new article from the American Lawyer, which asks "Is Clinton's Corporate Law Background Hurting Her Candidacy?". Here are snippets from this very interesting article:
An inarguable fact — and lawyers love inarguable facts! — is that Hillary Clinton spent the longest stretch of her professional life working in a corporate law firm. From 1977 to 1992 she worked as a lawyer in the firm of Rose, Nash, Williamson, Carroll, Clay & Giroir (renamed Rose Law Firm in 1980) in Little Rock, Ark. She devotes a single sentence to these years on her campaign Web site: "She continued her legal career as a partner in a law firm." (And this, in a section called "Mother and Advocate.")...
The ability to argue all sides of an issue is a hallmark of the lawyerly mind. Hillary's ability to assert moral residency on different ideological sides of an issue showed itself soon after she joined the Rose firm....
Neither Hillary Clinton nor the average corporate law partner is likely to make anyone's blood jump or heart sing. When you are in trouble, however — real trouble — it may be that the person you want to see isn't the guy who wows you with his wit and charisma, but someone who has really done her homework, pored over all the boring details, and then gone back over them again, just for fun. It's pretty clear that the country is in real trouble. Bridges are falling down; the stock market is all over the place; and let's not even bring up Iraq or Sudan. This might or might not be the right time to look past Hillary Clinton's cool, corporate, bill-by-the-hour sensibility, her lawyerly inclination to avoid risk and run everything past the pollsters, to smile and keep a stiff upper lip because appearance and propriety matter more than most things — and certainly more than impropriety.
So, all you wanna-be lawyer-pols out there, it seems your political future could be hurt more by time in a corporate law firm than from time practicing criminal defense.
Cross-posted at PrawfsBlawg (under a different post title).
March 12, 2008
More on the passage of the Second Chance Act
Over in this post at a WSJ blog, Gary Fields reports on the passage of the Second Chance Act:
After three years of procedural and legislative delays, a prisoner re-entry bill first introduced in 2005 has cleared the Senate and is heading to the president’s desk.... The Second Chance Act passed Tuesday evening, and is now expected to be signed by President Bush. The measure provides about $180 million a year in 2009 and 2010 for prisoner re-entry services to curb a recidivism rate that has held steady at about 66%, meaning that two-thirds of all inmates released annually from state and federal prisons re-offend or violate the conditions of their release within three years and are locked back up.
Close to 700,000 people a year are released from prisons, according to Justice Department statistics. The recidivism rate is one of the reasons the nation’s prison population has grown to more than 2.2 million from 501,886 in 1980. As a result, corrections costs are among the fastest growing expenditures for states. Annual criminal-justice expenditures for police, prisons, probation and courts have risen to more than $200 billion from $36 billion in 1982.
The bill provides more than $360 million in 2009 and 2010 to help prisoners return to society....
One of the chief architects of the bill, Illinois Democrat, Rep. Danny Davis, said he hopes the bill, beyond the money, triggers a discussion at the state and local levels about incarceration and alternatives to imprisonment. “We add this up and the impact will be far greater than just the amount of money that gets appropriated. We know it’s not a panacea,” he said. “It’s not close to any kind of panacea but our hope is this becomes a sort of trigger for a great deal of additional action.”
The bill’s passage comes at a time when states are grappling with rising costs and looking for ways to reduce prison construction. States like Kansas and Texas have all undertaken programs that emphasize drug treatment and cutting the recidivism rates as a way to save hundreds of millions of dollars in the coming years.
The event brought a number of press releases from the likes of American Prison Consultants and FAMM and the NAACP and Representative Stephanie Tubbs Jones and Senator Sam Brownback. How is that for an eclectic and diverse mix of excited folks. And I bet Eiot Spitzer is now glad to hear this passed, too.
Media continues to cover juve lifers ... will reforms follow?
The Christian Science Monitor has this new article, headlined "States reconsider life behind bars for youth; With nearly 2,400 inmates sentenced to life as juveniles, the U.S. is the only nation imposing the mandate on children." Here are excerpts:
Here in Illinois, proposed legislation would give 103 people – most convicted of unusually brutal crimes – a chance at parole hearings, while outlawing the sentence for future young perpetrators. The proposal has victims' families up in arms, angry that killers they had been told were in prison for life might be given a shot at release and that they'd need to regularly attend hearings in the future, reliving old traumas, to try to ensure that these criminals remain behind bars.
Advocates of legislation, meanwhile, both in Illinois and elsewhere, note that the US is the only country in the world with anyone – nearly 2,400 across the nation – serving such a severe sentence for a crime committed as a juvenile. They criticize the fact that the sentence is often mandatory, part of a system devoid of leniency for a teenager's lack of judgment, or hope that youth can be reformed....
The current legislation in Illinois is unlikely to go anywhere, with its key sponsor backing away last week and saying more time is needed to dialogue with victims. Reform advocates hope to have new legislation introduced in the near future. Colorado outlawed juvenile life without parole in 2006, and legislation is pending in Michigan, Florida, Nebraska, and California, while a few other states are experiencing grass-roots efforts.
Some activists against the sentence say they hope they can work with victims' families to take their concerns into account even as they do away with the sentence. In Michigan, where a set of bills is before both the Senate and the House, activists have had some success building dialogue with victims, says Deborah LaBelle, a human rights attorney based in Ann Arbor and director of the ACLU's Juvenile Life Without Parole Initiative.
"We need to allow both voices to be heard," says Ms. LaBelle. But she feels strongly that the sentence is inappropriate for youth. "As every parent knows and as every social scientist understands, this is a time of ill-thought-out, impulsive lack of judgment, problematic years… To throw them away and say you're irredeemable as a child is a disturbing social concept."
Gov Spitzer resigns, though plea deal uncertain
CNN has this updated story on NY Gov. Eliot Spitzer's resignation today. Here is a passage from the story that should interest criminal justice fans:
Spitzer's lawyers were in discussions Wednesday with the U.S. attorney's office in New York, trying to negotiate a plea deal to avoid prosecution, a source with knowledge of the discussions said. However, U.S. Attorney Michael Garcia in New York issued a statement saying, "There is no agreement between this office and Gov. Eliot Spitzer relating to his resignation or any other matter."
Second Chance Act (finally!!) passed by Congress
I am pleased to report that, late last night, the Senate approved the Second Chance Act, a long-stalled piece of legislation that should provide significant resources for much-needed reentry services. This press release from the Council of State Governments provides more details:
The Council of State Governments Justice Center lauds the members of the U.S. Senate for their passage [Tuesday] of the Second Chance Act of 2007. This landmark bill, introduced by Senators Joseph Biden (D-DE), Sam Brownback (R-KS), Patrick Leahy (D-VT) and Arlen Specter (R-PA), provides critical resources designed to reduce recidivism and increase public safety. The legislation passed the Senate by unanimous consent and now proceeds to the President’s desk for signature....
The Second Chance Act includes key elements of President Bush’s Prisoner Reentry Initiative, announced in the 2004 State of the Union address, which provides for community and faith-based organizations to deliver mentoring and transitional services. The bill will also help connect people released from prison and jail to mental health and substance abuse treatment, expand job training and placement services, and facilitate transitional housing and case management services....
According to the U.S. Department of Justice, Bureau of Justice Statistics, an estimated 95 percent of all state prisoners will be released—with half of these individuals expected to return to prison within three years for the commission of a new crime or violation of their conditions of release. This cycle of recidivism not only compromises public safety, but also increases taxpayer spending. A February 2007 report from The Pew Charitable Trusts stated that if federal, state, and local policies and practices do not change, taxpayers are expected to pay as much as $27.5 billion on prisons alone from 2007 to 2011 on top of current corrections spending.
“The Second Chance Act will provide an opportunity for realistic rehabilitation for the more than 650,000 inmates who return to their communities each year,” said Senator Specter. “The bill’s focus on education, job training, and substance abuse treatment is essential to decreasing the nationwide recidivism rate of 66 percent.”
Some related posts discussing the Second Chance Act:
March 11, 2008
Yet another potent analysis of Booker's structural impact
A new piece now on SSRN creates a troika of must-reads about post-Booker sentencing realities (together with the works recently noted by Dan Richman and Michael Simons). This new piece comes from Kate Stith and is titled "The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion." Here is the abstract:
Early analyses of the federal Sentencing Guidelines focused on the transfer of sentencing authority from judges to the Sentencing Commission; more recent analyses have noted the transfer of discretion from judges to prosecutors. Of equal significance are two other power struggles: between local federal prosecutors and officials in the Department of Justice, and between Congress and the Supreme Court. In its 2005 decision in United States v. Booker, and its recent decisions elaborating Booker, the Supreme Court made a high-stakes move that boldly asserted significant responsibility and authority in sentencing judges, local prosecutors, and the Supreme Court itself.
Although it was not the goal either of sentencing reformers, the actual result of the Guidelines regime that took effect in late 1987 was to transfer sentencing authority not to the United States Sentencing Commission, but to federal prosecutors and — particularly in recent years — to the Department of Justice in Washington. Congress' 2003 decision, in reaction to sentencing data that appeared to reveal that sentencing judges were willfully ignoring the Guidelines in a growing proportion of cases, to enact the Feeney Amendment represented a direct challenge to every level of the federal judiciary, to the Sentencing Commission, and to line-prosecutors. By design, this legislation, Feeney simultaneously empowered Congress' partner in the endeavor, the Justice Department in Washington.
Booker (as well as Booker's immediate predecessor, Blakely v. Washington, and Booker's progeny handed down in 2007) can be understood as a collective decision by the Supreme Court — which for more than a decade had been loathe to intervene or even seriously analyze constitutional and other issues raised by the Guidelines — that it was constitutionally and institutionally obliged to act in order to undo the Feeney Amendment, to constrain the leverage that inheres in prosecutors in a mandatory sentencing regime, and to counteract the centralizing impulse of the Department of Justice. By introducing the opportunity for judges openly to exercise judgment independent of the Guidelines, Booker and its progeny not only allow judges to provide a counterweight to prosecutorial leverage over defendants, but may also counteract the constraints that the Justice Department moved to impose (in the wake of the Feeney Amendment) on line-prosecutors. Once again, sentencing is primarily a local event. After Booker, the Department in Washington may be calling signals, but the decision-makers on the playing field — prosecutors and their judges — need not hear the calls or abide by them.
Should being a good tipper get Spitzer a sentencing break?
The blogosphere is buzzing about all thing Spitzer, with TalkLeft providing the latest news and Sex Crimes providing a great round-up of commentary. This ABC News story has an array of notable information and comment:
A 22-year-old escort found on another call-girl Web site claimed to ABC News in a phone interview that Gov. Eliot Spitzer had been one of her customers two years ago when he was New York attorney general and that he was a nice guy who tipped well....
Federal investigators say there is no evidence Spitzer used state money or campaign funds to pay the prostitutes, but that the way he moved an estimated $40,000 through various accounts violated federal money laundering laws. "These are serious laws and laws that given the amount of money involved here could mean a prison term of 10 to 18 months," Sean O'Shea, a former federal prosecutor specializing in financial crimes, said.
A prison term is one of the issues holding up the governor's resignation as well as whether or not he pleads guilty to criminal charges.
I wonder if being a good tipper would be considered a valid mitigating sentencing factor under 3553(a). Probably so in the Second Circuit, but maybe not if the feds figure out a way to charge him in the Fourth Circuit.
Meanwhile Harlan Protass looks at criminal justice realities a bit more seriously here at Slate, in a piece tiled "How To Prosecute Eliot Spitzer."
Research and data on prostitution, punishment and shaming sanctions
This NPR segment, titled "The Legality of Prostitution," got me wondering about research on prostitution and punishment. The NPR piece referenced this interesting recent paper, titled "An Empirical Analysis of Street-Level Prostitution," which is authored by Steven Levitt and Sudhir Alladi Venkatesh. The paper is focused on just the economics of prostitution in Chicago, and it has lots of interesting findings. This passage especially caught my eye:
We estimate that prostitutes are officially arrested only once per 450 tricks, with johns arrested even less frequently. Punishment conditional on arrest is limited — roughly 1 in 10 prostitute arrests leads to a prison sentence, with a mean sentence length of 1.2 years among that group. For many johns, perhaps the greatest risk is the stigma that comes with having a mug shot posted on the Chicago Police Department web page. There is a surprisingly high prevalence of police officers demanding sex from prostitutes in return for avoiding arrest. For prostitutes who do not work with pimps (and thus are working the streets), roughly three percent of all their tricks are freebies given to police.
For those interested in a very different type of perspective on the oldest profession, I also found this interesting website titled "Prostitution Research & Education." The website has a strong anti-prostitution message, and it includes this page which states:
In order to understand prostitution, it is necessary to understand:
- lethal gender inequality
- incest and other childhood sexual assault
- poverty and homelessness
- the ways in which racism and colonialism are inextricably connected with sexism in prostitution
- domestic violence, including rape
- post-traumatic stress disorder, depression, mood and dissociative disorders as consequences of prostitution
- drug and alcohol addiction
- the fact that prostitution is a global business which involves interstate and inter-country trafficking as a necessary part of its profitable operation
- in non-dominant states — the ways in which economic development programs erode traditional ways of living
- the need for culturally-relevant treatment
- the ways in which diverse cultures normalize and promote prostitution
- stripping, exotic dancing, nude dancing, table dancing, phone sex, trafficking, child and adult pornography, lap dancing, massage brothels, and peep shows as prostitution
Colorado moving forward with capital child rape bill
I see from this Denver Post story that the Colorado senate is moving forward with a bill to make child rape a capital offense. Here are excepts from the article:
Colorado could put child rapists to death under a bill that won a Senate committee's approval Monday and would put the state on par with just five others that allow the execution of such sex offenders. Prosecutors could try for the death penalty in cases in which rape victims are 12 or younger, where DNA evidence is present and where the perpetrator has been previously convicted of a sex offense against a child....
Colorado public defenders, who oppose the bill, originally estimated that it would make about 260 people a year eligible for the death penalty. It was unclear what an amendment, which limits the bill to repeat offenders, would do to that estimate.
In Louisiana, the one state that has sentenced child rapists to death, prosecutors have made capital cases of only two out of 180 eligible cases. Constitutional challenges immediately followed the first of those two sentences, and the U.S. Supreme Court is expected to rule by June whether death is cruel and unusual punishment for felons who have not taken a life.
Colorado joins Alabama, Missouri and Mississippi in seeking death for child rapists this year. Montana, Oklahoma and South Carolina have passed similar laws since 2006, and Louisiana and Texas both approved such legislation in the mid-1990s, said Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center.
One of the many strange ironies of the Supreme Court's doctrines in this area is that the constitutionality of Colorado's proposed capital child rape law may depend upon whether Colorado (and Alabama and Missouri and Mississippi and other states) formally enact a capital child rape law. If a significant number of states were to make child rape a capital offense over the next few months, the Supreme Court in the Kennedy case from Louisiana would almost have to conclude that "evolving standards of decency" show that society does not regard capital child rape as a cruel and unusual punishment.
Some related posts on the Kennedy case and capital child rape legislation:
Reversing a hot Pepper in the Eighth Circuit
The Eighth Circuit today handed down an opinion in US v. Pepper, No. 06-2453 (8th Cir. Mar. 11, 2008) (available here), which highlights the enduring struggle of post-Booker appellate review of sentencing. Here is how the case starts:
In United States v. Pepper, 412 F.3d 995, 999 (8th Cir. 2005) (Pepper I), we held the district court erred by granting a 75% downward departure for Jason Pepper’s (Pepper) substantial assistance and imposing a sentence of 24 months imprisonment, because the district court erroneously based the extent of the departure on matters unrelated to Pepper’s assistance. On remand, the district court granted a 40% downward departure (five offense levels) for substantial assistance, followed by a 59% downward variance (eight offense levels), and again imposed a sentence of 24 months imprisonment. The government appealed. We reversed and remanded the case for resentencing by a different judge, pursuant to our authority under 28 U.S.C. § 2106. United States v. Pepper, 486 F.3d 408, 413 (8th Cir. 2007) (Pepper II). Pepper appealed. The Supreme Court vacated our judgment and remanded the case to us for further consideration in light of Gall v. United States, 522 U.S. ___ (2007). Having carefully considered Gall’s impact on Pepper’s case, we again reverse the sentence of the district court and remand for resentencing by a different judge.
Should Prez Bush (or would a Prez Clinton) consider a pardon for Gov Spitzer?
Over at Pardon Power, P.S. Ruckman already has this entertaining post talking about Governor Eliot Spitzer and clemency issues. Here is a snippet:
Should Gov. Spitzer be convicted (of anything), he stands a much-better-than-average chance of also benefiting from a presidential pardon — the irony being that, as governor, he has been notoriously stingy with the clemency power. Well, actually, there is another, even greater irony: Spitzer is on record as supporting a presidential pardon for long-since deceased boxing legend Jack Johnson, who was also convicted for ... violating the Mann Act! Kinda has that feel of Bill Clinton pardoning all of those individuals for lying under oath and making false statements to government agents, doesn't it?
Why might Spitzer be pardoned? Because 1) former governors in legal trouble have a pretty darn good record for such and 2) it appears likely to many that the next president will be a fellow Democrat. Spitzer is, after all, one of those ever-so-popular "Superdelegates." Either way, he will probably not be treated in the manner suggested by one South Carolina Senator who, back in the day, recommended that Diggs and Caminetti be "shot like dogs." So, it may be one more addition for our Presidential Pardon "Watch List".
Still more local coverage of crack sentence reductions
Continuing the regular drumbeat of local reporting on reduced crack sentences, here are stories from Vermont and West Virgina:
I assume that the US Sentencing Commission and the Department of Justice are trying to keep track of reduced crack sentences, but I am not sure either will report their data publicly anytime soon. I wonder if anyone else is trying to keep a head-count of exactly how many offenders have secured early release under the new crack rules.
March 11, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (3) | TrackBack
Culture, democracy and vengeance in modern American justice
I just received a notice about this new book from Cambridge University Press authored by Kenneth Aladjem and titled "The Culture of Vengeance and the Fate of American Justice." Here is the publisher's teaser for the book:
America is driven by vengeance in Terry Aladjem’s provocative account — a reactive, public anger that is a threat to democratic justice itself. From the return of the death penalty to the wars on terror and in Iraq, Americans demand retribution and moral certainty; they assert the “rights of victims” and make pronouncements against “evil.” Yet for Aladjem this dangerously authoritarian turn has its origins in the tradition of liberal justice itself — in theories of punishment that justify inflicting pain and in the punitive practices that result. Exploring vengeance as the defining problem of our time, Aladjem returns to the theories of Locke, Hegel and Mill. He engages the ancient Greeks, Nietzsche, Paine and Foucault to challenge liberal assumptions about punishment. He interrogates American law, capital punishment and images of justice in the media. He envisions a democratic justice that is better able to contain its vengeance.
I wonder if Aladjem has to resort to water-boarding when he was "interrogating" American law, capital punishment and images of justice in the media.
March 10, 2008
On the topic of high-profile federal prostitution investigations...
a reader suggested that I check out this article from this weekend's Rocky Mountain News. Here are the tawdry details:
Chief federal Judge Edward W. Nottingham, who admitted to indiscretions at a downtown topless club, also may have been a client of a high- priced escort service, according to a television news report. The U.S. Court of Appeals for the 10th Circuit is investigating Nottingham for judicial misconduct, according to 9News.
The judge allegedly was a customer of Denver Players, also known as Denver Sugar, which operated out of a four-bedroom home in the Commerce Park neighborhood and was raided and closed by Internal Revenue Service agents and Denver police in January, 9News reported.
Nottingham was the judge in the insider-trading trial of former Qwest CEO Joseph Nacchio....
Federal and local authorities spent more than a year investigating Denver Players at 1675 Fillmore St., according to federal affidavits that were unsealed last month. A man identified as a chauffeur told 9News that he was responsible for driving prostitutes to meet their clients, including Nottingham.
Should and will NY Governor Elliot Spitzer be prosecuted by the feds?
Breaking crime news from the New York Times: New York Governor "Eliot Spitzer has been caught on a federal wiretap arranging to meet with a high-priced prostitute at a Washington hotel last month, according to a person briefed on the federal investigation." Here is more:
The wiretap recording, made during an investigation of a prostitution ring called Emperors Club VIP, captured a man identified as Client 9 on a telephone call confirming plans to have a woman travel from New York to Washington, where he had reserved a room. The person briefed on the case identified Mr. Spitzer as Client 9....
The man described as Client 9 in court papers arranged to meet with a prostitute who was part of the ring, Emperors Club VIP, on the night of Feb. 13. Mr. Spitzer traveled to Washington that evening, according to a person told of his travel arrangements. The affidavit says that Client 9 met with the woman in hotel room 871 but does not identify the hotel. Mr. Spitzer stayed at the Mayflower Hotel in Washington on Feb. 13, according to a source who was told of his travel arrangements....
Federal prosecutors rarely charge clients in prostitution cases, which are generally seen as state crimes. But the Mann Act, passed by Congress in 1910 to address prostitution, human trafficking and what was viewed at the time as immorality in general, makes it a crime to transport someone between states for the purpose of prostitution. The four defendants charged in the case unsealed last week were all charged with that crime, along with several others.
Anyone know what the standard guideline range might be for violations of the Mann Act?
UPDATE: TalkLeft has this post with more details on the federal criminal case in which all this news broke and Jeralyn notes that it is clear from this 55-page indictment "that Customer #9 was a repeat customer and that he intended to use them again in the future."
New York Times editorial on "Prison Nation"
Joining the chorus of papers commenting on the recent Pew Center report, "One in 100: Behind Bars in America 2008" (discussed here), today the New York Times has this editorial titled "Prison Nation." Here are excerpts:
After three decades of explosive growth, the nation’s prison population has reached some grim milestones: More than 1 in 100 American adults are behind bars. One in nine black men, ages 20 to 34, are serving time, as are 1 in 36 adult Hispanic men.
Nationwide, the prison population hovers at almost 1.6 million, which surpasses all other countries for which there are reliable figures. The 50 states last year spent about $44 billion in tax dollars on corrections, up from nearly $11 billion in 1987. Vermont, Connecticut, Delaware, Michigan and Oregon devote as much money or more to corrections as they do to higher education.
These statistics, contained in a new report from the Pew Center on the States, point to a terrible waste of money and lives. They underscore the urgent challenge facing the federal government and cash-strapped states to reduce their overreliance on incarceration without sacrificing public safety. The key, as some states are learning, is getting smarter about distinguishing between violent criminals and dangerous repeat offenders, who need a prison cell, and low-risk offenders, who can be handled with effective community supervision, electronic monitoring and mandatory drug treatment programs, combined in some cases with shorter sentences.
Persuading public officials to adopt a more rational, cost-effective approach to prison policy is a daunting prospect, however, not least because building and running jailhouses has become a major industry.... A rising number of states are broadening their criminal sanctions with new options for low-risk offenders that are a lot cheaper than incarceration but still protect the public and hold offenders accountable.... These are signs that the country may finally be waking up to the fiscal and moral costs of bulging prisons.
Though hitting a lot of important points, I was a bit diappointed that this editorial fails to assail the presidential candidates (and member of the media) for ignoring these issues during the 2008 campaign. Though there indeed are "signs that the country may finally be waking up to the fiscal and moral costs of bulging prisons," it is long overdue that prominent national politicians take more of a leadership role in trying to educate voters as to the "terrible waste of money and lives" that mass incarceration can involve.
Some recent related posts:
Might crime and punishment finally start drawing the attention of the candidates and the media?
After tomorrow's Mississippi primary, there will be no votes cast in the presidential races for six weeks. This rest period should give the candidates and the media a chance to focus on important issues facing the national that have so far gotten little attention during the crazy cross-country sprint that we've seen since Iowa voters got the primary season started a little over nine weeks ago. Of course, I am hoping that crime and punishment issues come to the forefront during this valuable quietus.
Notably, the states garnering the most media attention right now — Florida, Michigan and Pennsylvania —all have some important state criminal justice issues worthy of the candidate's and the media's time and attention: Florida continues to struggle with significant felon disenfranchisement problems; Michigan is one of a few states now spending more money on its prison system than on higher education; Pennsylvania has one of the nation's largest death rows, but it has not executed anyone in nearly a decade.
Some posts on crime and punishment and the 2008 campaign
- Will sentencing issues surface in the Clinton-Obama battle for black votes?
- Race, class and criminal justice in campaign 2008
- Politics and the war on drugs
- Should criminal justice reform be the new civil rights movement?
- Interesting new op-ed on crack sentencing and clemency
- Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?
Looking at the real stories of the death penalty in NYC
This morning's New York Times has this fascinating piece, headlined "Aversion to Death Penalty, but No Lack of Cases," exploring capital prosecutions in New York by federal authorities. Here are excerpts:
In the 20 years since the federal death penalty statute was revived, no federal juries have been more reluctant to sentence federal defendants to death than those in New York. According to records compiled by the Federal Death Penalty Resource Counsel Project, which coordinates the defense of capital punishment cases, federal prosecutors in New York State have asked juries to impose death sentences 19 times since 1988. In only one case did a jury rule for execution. Nationwide, federal prosecutors win death penalties about one-third of the time, according to the group’s statistics.
But despite this track record, the cases have not stopped coming: In Brooklyn alone, there are six more capital cases on the docket this year, including those of a reputed Mafioso and of two men charged with killing Guyanese immigrants to collect their life insurance policies. The first of these trials — of Gilberto Caraballo, a Brooklyn drug dealer convicted last month of murdering two rivals — will enter its so-called penalty phase on Monday.
Federal judges in New York have gone so far as to call some death penalty cases a waste of time and money. Last week, Judge Jack B. Weinstein of Federal District Court in Brooklyn told prosecutors that their chances of obtaining a death sentence against a drug dealer charged with dismembering two rivals were “virtually nil” and issued an order in which he said he was waiting for the Justice Department to reconsider whether to pursue an execution.
Officials in the federal prosecutors’ offices in Brooklyn and Manhattan, as well as the Department of Justice in Washington, declined to comment on their record in death penalty cases.
Lawyers and other experts in the field say that a variety of reasons underpin New York’s status as a tough sell in death penalty cases. They say that there is a fundamental liberal slant to juries in the state, and that New York has some of the best death penalty defense lawyers in the country. They also say many victims in New York capital cases are unsavory characters: drug dealers, mobsters or members of street gangs — not the sort of people whose killers are likely to be punished with death.
“New York has the worst batting average in the country,” said Kevin McNally, a defense lawyer in Kentucky and the director of the Federal Death Penalty Resource Counsel Project. Federal juries in Connecticut and New Jersey have never ruled for death since 1988, but only three cases have gone before juries in those two states.
March 9, 2008
Another insightful prosecutorial perspective on modern federal sentencing
I noted here a new article by Dan Richman focused on the story of federal prosecutors in the wake of Booker. I now see on SSRN is this fascinating new piece by Michael Simons in the same vein. This article is titled "Prosecutors as Punishment Theorists: Seeking Sentencing Justice," and here is the abstract:
Federal criminal law in the last 100 years has seen three distinct sentencing eras. Most surveys of these three sentencing eras have focused on the changing power of the judge: from unfettered discretion before the Sentencing Guidelines, to severely restricted discretion under the mandatory guidelines, to our current system of guided discretion under United States v. Booker. This article, however, focuses on the role of the prosecutor, which has changed dramatically over time. In the era of individualized sentencing, prosecutors typically either abdicated sentencing responsibility or made non-binding recommendations based on individualization principles. There was little reason for prosecutors to become more involved, given the breadth of judicial discretion and the absence of appellate review. During the mandatory guidelines era, prosecutors became much more active at sentencing, advocating for particular guidelines ranges and appealing sentences that departed from those ranges. Our current system of advisory guidelines combines elements of the first two eras. Prosecutors must still compute and advocate for particular guidelines calculations, but now they must also argue - both at sentencing and on appeal - that the sentences they recommend are reasonable. Put differently, prosecutors now must justify the sentences they seek by reference to the traditional principles of punishment.
This article examines prosecutors' new role as punishment theorists. In particular, the article argues that by forcing prosecutors to justify their sentences, Booker has caused an unintended, but potentially important, shift in prosecutorial engagement with sentencing justice. The article then examines whether this new engagement with sentencing justice can improve other aspects of prosecutorial discretion. In particular, the article argues that the principles of sentencing justice being developed by federal courts in the wake of Booker can inform not just prosecutorial sentencing arguments, but also prosecutorial charging decisions. In the end, the article proposes a solution the persistent challenge of mandatory minimum sentences: prosecutors should use Booker's reasonableness standard in determining whether to file charges that will result in a mandatory sentence above the advisory guidelines range.
Fostering self-help in tracking sex offenders
The New York Times has this interesting article about sex offender tracking, headlined "Woman With a Mission: Keeping Tabs on Sex Offenders." Here are excerpts:
For the past decade, Ms. [Laura] Ahearn has been painstakingly compiling such information about sex offenders and distributing it — first by hand, then by e-mail — to their neighbors, including updates like a new car or new scar. Last week, her nonprofit advocacy group, Parents for Megan’s Law and the Crime Victims’ Center, received a $593,000 federal grant to take the project national, using the sharp new mapping program that enables such a computerized tour.
“Probably safer than giving it in person,” said Ms. Ahearn, 44, a tough-talking smoker and workaholic who started the group as a grass-roots crusade with several volunteers and now has 25 part- and full-time employees and a million-dollar annual budget. “Sex offenders may be good at what they do, but all of us are getting better at what we do.”
Senator Charles E. Schumer and Representatives Timothy H. Bishop, Pete King and Carolyn McCarthy all joined Ms. Ahearn in her inconspicuous office in a strip mall here to announce the federal grant. The group plans to use the money to compile sex offender data from all 50 states into maps on a revamped version of parentsformeganslaw.com, its Web site, scheduled to make its debut on May 1; to create a national e-mail notification program to alert people about offenders in their ZIP code; and to establish a toll-free number that Ms. Ahearn says will be the first national Megan’s Law help line.
Critics call Ms. Ahearn’s zealous pursuit of sex offenders counterproductive and unconstitutional, and contend that overexposure can deter the offenders from checking in with the authorities. “Mapping out sex offenders makes them greater social lepers than they already are,” said Seth Muraskin, executive director of the Suffolk County chapter of the New York Civil Liberties Union. “You’re fostering punishment, not rehabilitation, and you’re leaving them very vulnerable to mob justice. You’re basically challenging vigilantes to come to their doors.”...
Ms. Ahearn, a mother of two, was studying to become a social worker when New York State enacted Megan’s Law in 1995, and she found that it was difficult, despite the new disclosure requirements, to get the names and addresses of local sex offenders from the authorities. So she began pressuring politicians and the police, all the while compiling her own local registry and posting it online, complete with offenders’ addresses and graphic details about their crimes.
Interesting capital news from China
China's top court has rejected 15 percent of death sentences handed by lower courts, citing poor evidence and procedural errors under new rules, but a top judge said the death penalty will remain in place for a long time.
China keeps secret the number of prisoners it executes, but international human rights observers have no doubt it judicially kills more than any other country -- with estimates of executions somewhere between 1,000 and 12,000 a year in recent times.