March 25, 2008
Ninth Circuit issues long-awaited en banc opinion on post-Booker universe
Resolving a set of long-pending en banc cases concerning post-Booker realities, the Ninth Circuit in US v. Carty, No. 05-10200 (9th Cir. Mar. 24, 2008) (available here), has given its account on post-Booker sentencing. The Court's many notable bullet points provide something like a restatement of the post-Gall sentencing universe, which makes Carty a must-read for everyone involved in federal sentencing.
Is there growing public concern with sentencing and prison reform?
This new article, headined "Prison reform on public radar," suggests that the public is starting to take note of some sentencing and prison issues. I am not sure this is true, in part because the leading presidential candidates have so far largely avoided any serious discussion of crime and punishment issues.
That said, The Sentencing Project this week has produced an exciting new resource for sentencing fans who are also political junkies:
The Sentencing Project is pleased to publish a guide to the 2008 Presidential Candidates' Platforms on Criminal Justice. This guide provides information on a range of key criminal justice issues, including sentencing policy, reentry, death penalty, and felony disenfranchisement.
The Sentencing Project is a nonpartisan public policy organization that does not support or oppose the candidacy of any candidate for public office. This document is designed to make the public better aware of the candidates' positions on criminal justice policy, an issue that has received relatively little attention in the current political debate. Voters should learn all they can about the candidates on a range of issues and should not rely on any single source of information before making their decision.
A judge explains the problem with prosecutorial crack reduction resistance
A helpful reader sent me news of this recent ruling on a crack sentencing reduction motion, authored by Chief Judge James Jones of the Western District of Virginia, which includes this notable footnote:
This district is reported to have the fourth largest number of defendants who qualify for a reduction in sentence under the U.S. Sentencing Commission’s policy on retroactivity of the amended crack cocaine guidelines. Unfortunately, it appears that the United States Attorney for this district is objecting to reduction in every case, even those which provide for a reduction in sentence of only a few months. While the Department of Justice opposed the retroactivity of the amended guidelines, once the Sentencing Commission unanimously decided on retroactivity — a decision which Congress has not overruled — a per se objection to reduction does not serve the public interest. For example, the court is required to consider the public safety in determining whether to reduce a particular sentence, see U.S. Sentencing Guidelines Manual (“USSG”) § 1B1.10 cmt. n.1(B)(ii) (Mar. 3, 2008), and the government’s blanket objection in all cases does not assist the court in making that decision, and, in fact, hinders it.
March 25, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack
March 24, 2008
SCOTUS takes new gun case ... is this a Heller tea leaf?
I am sure regular readers are tired of me linking the Heller Second Amendment case to various sentencing issues, but a new Supreme Court cert. grant today is only going to fuel my gun fires. Here are the basics from this post at SCOTUSblog:
In the second grant Monday, the Court agreed to hear a Justice Department appeal in U.S. v. Hayes (07-608), urging it to clarify the federal law that makes it a crime to have a gun after being convicted of a misdemeanor crime of domestic violence. The specific issue is whether the federal ban at issue requires that the convicted individual and the victim in the underlying crime have a domestic relationship — that is, as a spouse, parent or guardian.
Though it appears that Hayes is only about a technical statutory issue, the case could end up being about a lot more if Heller declares that there is an enforceable individual right to keep a gun. Here are the key facts in Hayes from the Fourth Circuit opinion on which cert was sought by the Justice Department:
In 1994, [Randy Edward] Hayes pleaded guilty to a misdemeanor battery offense under West Virginia law, in the magistrate court of Marion County, West Virginia (the "1994 State Offense"). The victim of the 1994 State Offense was Hayes's then wife, Mary Ann (now Mary Carnes), with whom he lived and had a child. As a result of the 1994 State Offense, Hayes was sentenced to a year of probation.
Ten years later, on July 25, 2004, the authorities in Marion County were summoned to Hayes's home in response to a domestic violence 911 call. When police officers arrived at Hayes's home, he consented to a search thereof, and a Winchester rifle was discovered. Hayes was arrested and, on January 4, 2005, indicted in federal court on three charges of possessing firearms after having been convicted of an MCDV, in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2).
This fascinating little case should help everyone understand why Solicitor General Paul Clement is justifiably concerned about a broad pro-gun constitutional ruling in Heller. If the Second Amendment truly protects an individual right to domestic self protection, prosecuting Randy Edward Hayes for having a Winchester in his home seems very constitutionally troublesome. And, at the very least, if Heller says anything nice about the constitution and gun possession, the doctrine of constitutional doubt ought to impact how the statutory issue in Hayes plays out.
I wonder if the NRA will file a brief on behalf of Randy Edward Hayes in the Supreme Court. I wonder if VP Dick Cheney will sign a brief including members of Congress on behalf of Randy Edward Hayes in the Supreme Court. I wonder if any other bloggers will connect the dots between Heller and Hayes like I do. I wonder if everyone just thinks I'm just a gun-crazy, latte-sipping blogger.
Some recent related posts:
Major First Circuit ruling on post-Booker realities
Thanks to AL&P, you can read a full summary here of the First Circuit's important post-Booker work from last Friday in US v. Martin, No. 06-1983 (1st Cir. Mar. 21, 2008) (available here). Because I'm wrapped up with grading these days, I will have to be content just to quote Judge Selya's telling (and surprisingly readable) first paragraph from Martin:
In Gall v. United States, 128 S. Ct. 586 (2007), the Supreme Court shed considerable light on the scope and extent of a district court's discretion under the now-advisory federal sentencing guidelines. See id. at 598-602. This appeal represents our first full-fledged application of the teachings of Gall. At the same time, it also affords us an opportunity to discuss a relatively new phenomenon: the practice indulged in by some district courts, of filing post-judgment, post-appeal sentencing memoranda.
Big SCOTUS sentencing week, starting with Burgess argument
As detailed in SCOTUSblog posts here and here, an exciting sentencing week for the Justices gets off to a flying start with argument this morning in Burgess over the on what qualifies as a "felony drug offense" for federal sentencing purposes. Burgess provides the Supreme Court with a great setting to discuss the application of the "rule of lenity" in the interpretation of federal sentencing statutes (with sentencing guru Jeff Fisher arguing for the defendant). SCOTUSwiki has more on Burgess here (including links to briefs).
In addition to Burgess, this week also brings oral argument in Ressam concerning whether the federal law mandating 10 years in prison for carrying an explosive during the commission of a felony requires the explosives to be carried "in relation to" the underlying felony. I think sentencing guru AG Michael Mukasey is supposed to argue this matter for the government.
Further, new briefs will be filed this week in Irizarry, the post-Booker Rule 32(h) case. I will discuss this case more in future posts. And, we are due to get an order list this morning and will likely see some opinions handed down by the Justices later this week. I am hopeful that there will be some sentencing action in both the order list and in released opinions.
In short, SCOTUS sentencing fans should be sure to stay tuned to SL&P all week!
A notable perjury trial with sentencing advice for Bonds, Clemens and others
The San Francisco Chronicle has this interesting article about the start of a nother notable steroid-perjury trial in federal court. As detailed in this excerpt, the trial has a lot of impact on various sentencing issues:
Caught up in the BALCO steroids scandal, an elite athlete adamantly denies using banned drugs, then mounts an aggressive defense to a perjury indictment. It sounds like the case of former Giants slugger Barry Bonds, accused of lying under oath to the federal grand jury that investigated Burlingame's Bay Area Laboratory Co-Operative steroid ring in 2003.
Instead, starting today in federal court in San Francisco, a lesser-known American sports champion — Tammy Thomas, a onetime star of bicycle track racing — goes on trial, charged with perjury and obstruction of justice. Her case is of interest because it amounts to a dress rehearsal for the trial of Bonds, which may get under way later this year....
Whatever her defense, Thomas is taking a big gamble by refusing a plea bargain and going to trial, said New York criminal defense specialist Patrick Mullin, an expert on federal sentencing guidelines. Up to now, eight people indicted in connection with BALCO have pleaded guilty to reduced charges rather than go to trial. The longest sentence was six months, imposed on Olympic track superstar Marion Jones, who confessed to lying to federal agents about her use of banned drugs and about her participation in a check-fraud scheme.
But if Thomas goes to trial and is convicted of obstruction of justice and perjury, she could face 30 months in federal prison, Mullin said. Mullin said Thomas may have decided to gamble on a trial because she knows that if she pleaded guilty to lying under oath she might be legally barred from obtaining a license to practice law. "If she's going to law school, that would give you pause," he said.
More evidence localities love to hate sex offenders
This local story from California, headlined "Cities modify Jessica's Law even as court mulls validity," highlights that localities get a kick out of kicking sex offenders when they are down. Here are excerpts from the article:
As the state Supreme Court considers the validity of California's sex-offender statute, known as Jessica's Law, San Diego and other cities are passing tougher versions of it. Jessica's Law says registered sex offenders can't live within 2,000 feet of a school or park where children gather. This month, the San Diego City Council and Mayor Jerry Sanders approved an ordinance that adopts the residency restriction and adds another limitation.
Under the city ordinance, registered sex offenders can't be within 300 feet of an amusement center, arcade, day care facility, library, playground, park or school. The residency restriction applies to sex offenders convicted of crimes after the ordinance was signed, but the 300-foot rule covers all registered sex offenders. Similar measures have been approved in National City, La Mesa and Santee....
Versions of Jessica's Law — named after a young Florida girl who was raped and murdered by a convicted sex offender in 2005 — have been approved in 42 states. Since enforcement in California began, 607 sex offenders have declared themselves homeless — a fourfold increase, according to the state.
In San Diego, the number of registered transient sex offenders increased 40 percent, police said. The 1,886 registered sex offenders in the city are among the 3,931 in the county, including violent child molesters, people convicted as juveniles and individuals busted for indecent exposure.
March 23, 2008
A high-profile (and suspect?) sentencing computation "error"
As detailed in this Los Angeles Times piece, a high-profile California case now involves an interesting new back-end sentencing twist:
California authorities rearrested Sara Jane Olson at noon Saturday, just hours after she was prevented from flying home to Minnesota from Los Angeles, and said she must serve one more year in prison because they miscalculated her release date. The former member of the radical Symbionese Liberation Army had been paroled Monday from a California women's prison after serving about six years for her role in a 1975 plot to kill Los Angeles police officers by blowing up their patrol cars.
Officials from the California Department of Corrections and Rehabilitation said at a news conference that they had made a mistake in computing the amount of time Olson should serve in a separate case in which she pleaded guilty to second-degree murder for participating in a Sacramento-area bank robbery in which another SLA member killed a customer. "The department is sensitive to the impact that such an error has had on all involved in this case and sincerely regrets the mistake," Scott Kernan, the agency's chief deputy secretary of adult operations, said at a Saturday afternoon news conference. "The department has launched a full investigation."
Kernan called the case "extremely complicated, given the amount of changes to the sentencing laws that have occurred over the last 30 years." Olson should have been sentenced to 14 years, not 12, for the two crimes, Kernan said. He said state officials had failed to account for the bank robbery. The earliest possible release date for Olson now is March 17, 2009, he said. At that point, she will have served half of the 14-year term.
Like most California inmates, Olson has earned credit against her sentence for working while in prison. She served on a maintenance crew that swept and cleaned the main yard of the Central California Women's Facility in Chowchilla, according to prison officials....
When news organizations reported Olson's release Friday, law enforcement officials reacted with dismay and raised questions about whether she had been let out too early.... Corrections department officials acknowledged that they began an intensive review of their internal calculations of the sentence after getting questions from the Sacramento County district attorney's office and a local television reporter, but they denied that they had bowed to pressure....
Olson's attorney, Shawn Chapman Holley, said she was outraged by the rearrest and asserted that her client had been illegally arrested and is now being "illegally imprisoned."... Holley said she planned to file a writ of habeas corpus seeking Olson's release within the next few days. She scoffed at the suggestion that there had been "a computation error."
"We received an order from the state parole board more than a month ago informing us that she would be released on March 17," Holley said. She referred to a decision of the board, saying that on Oct. 12, 2007, the panel had notified a Los Angeles Superior Court judge that "it did not intend to impose" a one-year enhancement that had been challenged by Olson's attorneys. The decision went on to say that Olson's "earliest possible release date has been recalculated to March 17, 2008."
Noting that the decision had been made months ago, Holley said: "The idea that suddenly they discovered an error is untrue. What appears to be the truth is they are bowing to pressure from the Police Protective League or someone else."...
Santa Clara University law professor Gerald Uelmen said he found it "hard to imagine" that state officials made a calculation error. The executive director of the California Commission on the Fair Administration of Justice said he had never heard of an instance in which a prisoner was mistakenly released early.
Santa Clara University Law Professor Gerald Uelmen said the department's error is bewildering. "I can't imagine how they could have blown that one, in such a high-profile case," said Uelmen.
UC Berkeley law Professor Franklin Zimring said the error can be attributed to a sentencing system he called incoherent. "From the standpoint of keeping the streets safe, she was a candidate for Social Security when she showed up at the beginning of her term," Zimring said. "This apparatus is all extraordinarily arbitrary." However, he said she probably doesn't have legal grounds to challenge her increased sentence.
An interesting historical perspective on Second Amendment rights
As we await a ruling from the Supreme Court in the Heller Second Amendment case, I hope to showcase articles and commentary that provide a distinct perspective on the issues surrounding individual gun rights. A great example of such commentary is this Washington Post piece by Chuck Lane, headlined " To Keep and Bear Arms." Here is how this strong piece starts and ends:
Nearly 135 years ago, the United States experienced what may have been the worst one-day slaughter of blacks by whites in its history. On April 13, 1873, in the tiny village of Colfax, La., white paramilitaries attacked a lightly armed force of freedmen assembled in a local courthouse. By the time the Colfax Massacre was over, more than 60 African American men lay shot, burned or stabbed to death. Most were killed after they had surrendered.
Though it caused a national sensation in post-Civil War America, this horrible incident has been largely overlooked by historians. It deserves fresh study today not only to illuminate the human cost of Reconstruction's defeat but also to enrich our understanding of constitutional history. Some of the most relevant lessons relate to the issue at the heart of District of Columbia v. Heller, the case on the D.C. gun control law currently before the Supreme Court: whether the Constitution guarantees an individual right to keep and bear arms.
During oral arguments on Tuesday, the justices debated what the framers of the Second Amendment intended. The members of the court did not mention Reconstruction. Yet during this period, we the people gave the Union a second "founding" through constitutional amendments abolishing slavery, granting blacks citizenship and enabling them to vote. And, to clarify blacks' newly secured freedom, Congress wrote laws identifying the specific rights of individual U.S. citizens. One of these was the right to have guns.
Before the Civil War, gun ownership was a prerequisite not only of militia service but also of participation in sheriffs' posses and for personal defense. But it was a right for whites only. Southern states forbade slaves to own guns, lest they revolt. (Free blacks, in the North and South, could sometimes have guns under tight restrictions.) After the Civil War, the same Congress that made African Americans citizens through the 14th Amendment considered the antebellum experience and concluded that equal access to arms was a necessary attribute of blacks' new status....
In the D.C. gun case, the Supreme Court should find that local governments may enact reasonable and necessary restrictions on dangerous weapons. To be sure, if the justices also back an individual right to keep and bear arms, that will be harder for legislators to do. But as a matter of historical interpretation, the court would be correct.
Critically, Lane is a lot more than an armchair historian here: he has just completed this new book, titled "The Day Freedom Died: The Colfax Massacre, the Supreme Court and the Betrayal of Reconstruction."