April 5, 2008
A web pitch for a Webb VP pick
The folks at Politico have this new piece about possible VP picks for the Democratic nominee, and I cannot help but add my two cents: I strongly favor Senator Jim Webb as the VP choice for the Dems. Let me explain as a matter of political strategy and policy substance:
Political Strategy: As detailed in his official and wikipedia bios, Senator Webb was born in Missouri and elected to the Senate from Virginia. If the Democrats can carry both these swing states, they have a huge advantage getting to 270. In addition, Senator Webb has an extraordinary resume, both in terms of military and (outside-the-Beltway) achievements, which should draw support from all sorts of people from all parts of the country. For example, during the Reagan years, Webb became the "first Naval Academy graduate in history to serve in the military and then become Secretary of the Navy." In addition, Webb "has authored eight books, including six best-selling novels, and has worked extensively as a screenwriter and producer in Hollywood." In addition, Webb "taught literature at the Naval Academy as their first visiting writer, has traveled worldwide as a journalist, and earned an Emmy Award from the National Academy of Television Arts and Sciences for his PBS coverage of the U.S. Marines in Beirut."
Policy Substance: To my knowledge, Senator Webb is the only prominent national politician who has held a congressional hearing directly addressing the problems of mass incarceration (details here and here and here). In addition, I believe Senator Webb is an avid supporter of individual gun rights, which is sure to become a campaign issue once the Supreme Court decides Heller. I am not deeply familiar with Webb's other policy positions, but his insightful concern about mass incarceration suggests to me that he is a thoughtful observer of national policy problems.
Listing a con for Senator Webb, the Politico piece says "Blunt and unpredictable, he might be a reluctant campaigner." With a nation clearly tired of politics as usual, I view "blunt and unpredictable" as a pro rather than a con. And I think Webb's military resume and anti-Iraq-war stance should make him the ideal person to attack Senator McCain on all sorts of policy issues.
Cross-posted at PrawfsBlawg
Judge Weinstein's magnum opus on jury rights
As noted in this recent post, famed EDNY Judge Jack Weinstein this week found a creative, questionable and headline-making way to avoid the application of a mandatory minimum federal sentence in a child porn case. Judge Weinstein's full opinion in US v. Polizzi, No. No. 06-CR-22 (EDNY April 1, 2008) is available here, and it runs a total of 288(!) pages (though the last 50 are detailed appendices). Here is how this amazing work of judicial exposition concludes:
A. Constitutionality of Statute
Defendant’s motion to declare the statute unconstitutional as written, charged, and applied is denied because of ruling authority. See Part III.A, supra. Upon appeal, constitutionality and the language of the statute should be reconsidered for the reasons stated in Part III.A, supra. The issue of unconstitutionality applies to both the receiving and possessing counts. Id. If the statute is ruled unconstitutional, the case should be dismissed.
B. New Trial as to Counts One Through Twelve
For the reasons stated in Part IV, supra - - failure to exercise the court’s discretion to notify the jury of the mandatory minimum sentence - - the verdict is set aside on Counts One through Twelve, charging receiving child pornography. A new trial on those counts is granted, unless the statute as to those counts in declared unconstitutional on appeal.
"Keep Track of Crack Facts"
The title of this post it the title of this terrific web memo published by The Heritage Foundation. Here is the start of a must-read:
Earlier this year, Attorney General Michael Mukasey predicted that if Congress allowed new guidelines granting retroactive application of lower prison sentences to go into effect on March 3, up to "1,600 convicted crack dealers, many of them violent gang members, will be eligible for immediate release," with 3,800 eligible within the first year. Proponents of retroactivity accused the Attorney General of trying to scare the public into thinking the new law would be a "get-out-of-jail-free card" for all crack convicts, including career criminals. They cited Sentencing Commission projections that fewer prisoners—almost none of them repeat offenders—would be eligible for immediate early release.
The actual statistics may prove everyone wrong. As of April 2, the Federal Bureau of Prisons (BOP) had received 3,107 judicial orders for early release of crack convicts. Every workday since March 3, 135 felons, on average, have received sentence reductions from federal judges under the new guidelines.
So who is getting out of jail early? Are they first-time and nonviolent offenders, whom the Attorney General and others argued should be the sole beneficiaries of retroactivity? Are federal judges protecting public safety, as predicted by proponents of blanket retroactivity, and keeping violent and career criminals locked up? Have any of those just released committed new drug-related offenses—or other violent crimes—and been re-charged by state or federal authorities? Will any of the predictions prove correct?
No one knows the answers to these and other important questions, because no one is keeping track of the statistics. But dramatic changes in public policy, such as these new sentencing guidelines, need to be evaluated and studied to inform future policymaking, and any such study must be based on facts. To inform future Sentencing Commission proceedings, deliberation by Congress, and the public debate, the Department of Justice should collect and regularly publish facts on the effect of the retroactivity provision, particularly as regards prison releases and recidivism. Further, Congress should require the department to provide these regular reports to the appropriate congressional committees to ensure that reporting does not lapse after a change in Administration or departmental priorities.
April 5, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack
April 4, 2008
Another doozy dissent from Judge Merritt as Sixth Circuit affirms a long guideline sentence
A long day at the end of a long week kept me from noting earlier that the Sixth Circuit has issued another notable split sentencing opinion in United States v. Jeross, No. 06-2257 (6th Cir. Apr. 4, 2008) (available here), with Judge Merritt providing another spirited dissent about the modern state of modern sentencing. Though I suspect Judge Merritt sometimes feels like he is tilting at windmills, I will close the work week by setting out the first two paragraphs of his dissent in Jeross so he knows that at least someone is paying attention:
This is another drug case in which our system of criminal law has imprisoned for many years two more lives and torn up two more families by grossly excessive sentences imposed in the “War on Drugs.” There are many reasons that our federal system of punishment has turned in this direction, not the least of which is the advent during the last 20 years of our irrational set of sentencing guidelines that judges apply by rote on a daily basis. We are constantly adding new prisoners like these defendants with long periods of incarceration to the more than two million men and women now incarcerated in the hundreds of prisons and jails around the country.
These sentencing guidelines hold that mitigating factors like family ties, mental illness, education, and the likelihood of rehabilitation are simply “not relevant” in the sentencing process. Judges’ minds are closed down and sentences ratcheted up by applying convoluted conversion formulas like the one just recited in the majority opinion. The recent Blakely-Booker-Cunningham line of Supreme Court cases has given judges an opportunity to rid the system of some of the worst aspects of guidelinism, but we judges soldier on by applying the old mandatory system as though nothing of significance had happened. The cost to the taxpayers and in human lives has become enormous and shows no signs of change.
Costs grind New Mexico's capital punishment system to a halt
A helpful reader pointed me to this intriguing news from the Death Penalty Information Center's website:
In a potentially far reaching ruling, a trial judge in New Mexico has barred the state from seeking the death penalty because the legislature has failed to provide adequate funding for defense representation. The state's Attorney General, Gary King, agreed that the capital prosecution cannot go forward. After finding that funding for the defense was insufficient and raised constitutional problems, King wrote, "The state now confesses the motion to dismiss filed herein and cannot in good faith under these circumstances oppose the dismissal of the death penalty in these cases." State District Judge Neil Candelaria took the death penalty off the table for Reis Lopez and Robert Young, two inmates accused of killing a prison guard, because no money was appropriated for death penalty indigent defense during New Mexico’s 2008 Legislative Session, despite a unanimous warning from the state Supreme Court. The legislative session ended in February....
The court's ruling and the agreement by the Attorney General may mean that no further death penalty prosecutions can proceed in New Mexico without legislative action.
As lock-em-up costs mount, states considering letting-em-out
This AP article highlights state sentencing stories that have been percolating as prison populations grow and budget numbers shrink:
Lawmakers from California to Kentucky are trying to save money with a drastic and potentially dangerous budget-cutting proposal: releasing tens of thousands of convicts from prison, including drug addicts, thieves and even violent criminals.
Officials acknowledge that the idea carries risks, but they say they have no choice because of huge budget gaps brought on by the slumping economy. "If we don't find a way to better manage the population at the state prison, we will be forced to spend money to expand the state's prison system - money we don't have," said Jeff Neal, a spokesman for Rhode Island Gov. Don Carcieri.
At least eight states are considering freeing inmates or sending some convicts to rehabilitation programs instead of prison, according to an Associated Press analysis of legislative proposals.
Regular readers know I have been on this state sentencing story for quite some time, and here are links to some recent blog coverage of states' struggles with the various costs of large prison populations:
- see also this post, "Costs cause states to pursue prison alternatives"
Attacking a not-so-hefty white-collar sentence
Writing for Bloomberg.com, commentator Ann Woolner assails the below-guideline sentence recently given to a high-profile white-collar defendant. Her sharp commentary, which is titled "Thieving Wal-Mart Boss Does Time at Banquet Table," begins this way:
Here is a little story about a big man who embezzled hundreds of thousands of dollars from his employer, cheated the U.S. Treasury and will serve not a day in jail for it. If Thomas Coughlin, Wal-Mart's former No. 2 executive, has learned anything from his encounter with the law, it is how to manipulate the justice system.
For one thing, because of poor health he gets to stay home and avoid even the most accommodating of white-collar prison camps, as those un-jails are dubbed. Then there is his notion of community service. Less imaginative felons wind up collecting highway trash. Coughlin goes to a party.
It's true. Coughlin persuaded his probation officer to let him count as community service the hours he spent last month schmoozing with old hunting buddies at a banquet for the National Wild Turkey Federation, local chapter. Well, why not? The event raised money for the nonprofit, conservation group, according to the Arkansas Democrat-Gazette, which first reported Coughlin's big night out. So what if the federation promotes killing wild turkeys while working to conserve them?
Coughlin got to count not only his time at the banquet, but time spent attending planning meetings and rounding up auction items. No spooning out soup to the homeless for this millionaire. The sheer pleasure of being out of the house and among the 350 banquet-goers was itself a bonus. Except for approved forays, he and his ankle bracelet are spending his 27-month sentence within 10 feet of his house, which sits on a 2,000-acre ranch near Centerton, Arkansas.
April 3, 2008
Sex offender wants judge to allow him to watch baseball
This AP story out of Indianapolis provides a fitting way to celebrate the first full week of regular season MLB games:
A convicted sex offender banned by a city ordinance from entering parks has asked a judge for permission to watch his son play baseball at a Little League complex.
Eric Dowdell, 34, said he will seek an exemption from the ban based on his completion of counseling, probation and other requirements set by the ordinance for an exemption. A hearing on the request has been scheduled for April 11 in Jeffersonville City Court.
Dowdell said kids need to be protected from offenders. But he said there should be a distinction between someone like him, who made a mistake years ago and has been a good parent, and someone who might harm children. Dowdell was convicted of sexual battery in 1996, according to the Indiana Sheriff's Registry of Sex Offenders, and was no longer required to register as an offender after 2006.
Dowdell lives in Clarksville and his 11-year-old son plays in the Little League there, but the games will be played in the Jeffersonville complex this year because the Clarksville site is undergoing a renovation....
Larry Wilder, the lawyer who drafted the Jeffersonville ordinance, has said repeatedly that he believes the ban is constitutional. Wilder says "going into a park in Jeffersonville is not a fundamental right."
Geez, it is just like a sex offender to ask some activist judge to let him get some kinky fun watching little boys run around in a local park. Next thing you know, these sex offenders will start asking judges to let them eat apple pie and drive a Chevy. Why can't a local government just force those they do not like to live in the shadows forever?!?I? Of course, if all judges would just act like umpires the way the Chief Justice of the United States urges, we would not have all these crazy activist-judge problems (unless sex offenders started signing up themselves to be umpires or judges).
House hearing on restitution reform
Folks like me who take a liking to crime victim compensation and non-imprisonment punishments may want to check out this afternoon's House hearing before the Subcommittee on Crime, Terrorism, and Homeland Security on "Legislative Proposals before the 110th Congress to Amend Federal Restitution Laws." As detailed at this official website (where there is a webcast link), this all-star cast will be testifying starting at 2pm today:
- Senator Byron L. Dorgan
- Professor Jonathan Turley
- Andrew Weissmann, Esq.
- David B. Smith, Esq.
- Professor Paul G. Cassell
Feds agree to probation for tax cheat billionaire!?!?!
After seeing this story at Forbes, headlined "U.S. Agrees Guilty Billionaire Shouldn't Go to Jail," I may have to rethink my assumption that federal prosecutors never are willing to go soft on any white-collar criminals. Here are the details:
[T]he sentencing of billionaire Orange County real estate developer Igor M. Olenicoff, scheduled to take place in a federal court in California April 14, might not make for good scared-straight headlines. In a new court filing, government prosecutors agree that Olenicoff, who pleaded guilty in December to one felony count of filing a false 2002 U.S. individual income tax return, should get off on probation.
In his plea agreement, Olenicoff, 65, admitted he lied on his 1998 through 2004 tax returns when he answered "no" to a question asking if he had ownership or authority over any financial accounts in foreign countries. In fact, he had accounts in the Bahamas, Switzerland, Liechtenstein and Britain. As part of the plea deal, Olenicoff paid $52 million in back federal taxes, interest and civil fraud penalties and agreed to bring all the money in his foreign accounts (believed to total in the hundreds of millions) back to the U.S.
Forbes estimates the self-made, Russian-born Olenicoff, who came to the U.S. at age 15, is now worth $1.6 billion. While the false-tax-return charge is punishable by up to three years in jail, Olenicoff's deal with prosecutors, together with federal sentencing guidelines, made it unlikely he would get more than six months. Then last month, a U.S. probation officer filed a pre-sentencing report recommending Olenicoff get off with just one year of probation and a $3,500 criminal fine. While that report is not a public document, prosecutors' response to it is.
In a filing this week, prosecutors said they didn't object to probation, but urged that the probation last three years--to ensure Olenicoff's "future compliance with Internal Revenue laws. " The prosecutors noted that while Olenicoff has fully complied with the terms of his plea deal, his "use of off-shore bank accounts and the transferring of assets to these accounts dates back to at least 1992."
Edward M. Robbins Jr., Olenicoff's attorney, said the prosecutors' position makes it "highly unlikely" that the judge will sentence Olenicoff to any prison time, although he still might order home detention. But Robbins, a former federal tax prosecutor who is now a partner with Hochman, Salkin, Rettig, Toscher & Perez, in Beverly Hills, rejected any suggestion that Olenicoff is getting off lightly and insisted the felony conviction alone would indeed have a strong deterrent effect.
I think what irks me about this story is the idea that a defendant apparently worth $1.6 billion is going to only face a fine of a few thousand dollar. Especially if he is to avoid all prison time, how about a fine of, say, .1% of his worth. Even letting this fellow keep 99.9% of his fortune could still produce a more fitting fine of $1.6 million. Also, how about some community service requiring him to help low and middle income tax payers set up lawful tax shelters?
Great press coverage of crack retroactivity at one month
Richard Schmitt has this effective piece in today's Los Angeles Times documenting that, a month after the new federal crack guidelines became retroactive, many defendants have not gotten sentence reductions. The article is headlined, "Freedom eludes many crack inmates: Though new rules have reduced sentences for some, others remain behind bars because of bureaucratic delays and Justice Department opposition." Here are excerpts:
New federal sentencing guidelines designed to end the racially tinged disparity between prison sentences for powder and crack cocaine dealers went into effect a month ago, and so far more than 3,000 inmates have had their prison terms reduced. Dozens have been released, including at least 15 in California, but many others who should have been released have not. Attorneys involved in the process blame bureaucratic delays as well as opposition from the Justice Department.
In North Carolina, which has the country's fifth largest population of crack offenders eligible for early release, four inmates have been freed out of some three dozen who lawyers say should have been released, in some cases, years ago. The delays appear to be due in part to a procedural bottleneck: Federal judges there did not approve a plan for processing requests for sentence reductions until five days before the new rules were to go into effect. Courts in parts of Texas and south Florida also appear to be lagging....
As of Tuesday, the federal Bureau of Prisons said it had received 3,077 signed orders from judges modifying the sentences of prisoners nationwide. The prisons bureau won't say how many have actually been released; even after the reductions, some inmates will still have much time to serve.
In Dallas, one judge has refused to allow federal defenders to represent crack offenders in his court, saying they have no right to counsel at this stage of the proceedings. That has left hundreds of inmates having to file jailhouse petitions to gain their freedom.
After that ruling, the federal public defender in Dallas, Richard Anderson, sent out a mass mailing to several hundred eligible inmates to help them prepare their cases. Many of the inmates' applications are incomplete or have errors. The complexities of federal sentencing law have caused added confusion. "The playing field isn't very level," Anderson said. Some judges have recently begun to reconsider the approach and are more readily appointing lawyers for inmates, he said.
The delays stand in sharp contrast to the experience in other regions of the country where the new rules have unleashed an outpouring of federal clemency. The process seems to be working best in jurisdictions where prosecutors, judges and probation officers were working weeks and in some cases months in advance of the effective date to mitigate delays....
Among California crack offenders gaining early releases was a Fresno woman, Stacey Candler, 34, who was sentenced to 15 years in prison in 1996 after police caught up with her live-in boyfriend, a crack dealer. Also released was Vernon Watts, 37, of Sacramento, whose 22-year-sentence was shaved by about four years. "I have been waiting for this for a long time," Watts said in an interview after his release....
Though I often criticize the traditional media for their coverage of sentencing issues, this LA Times article and other similar press reports from local papers have been extraordinarily valuable in providing a picture of how crack retroactivity is working — and not working — in different parts of the country. I am hopeful (but not especially optimistic) that the US Sentencing Commission will soon provide some comprehensive data and analysis of how crack retroactivity is going. I would guess that the USSC is working hard on this issue, but that we will not see any public data and analysis for some time.
April 3, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack
Fast-track fast talk from the Fifth Circuit
The Fifth Circuit this week discussed fast-track programs and their impact on non-fast-track defendants at some length in US v. Rodriguez, No. 07-10535 (5th Cir. Apr. 1, 2008) (available here). Here is one notable passage from the opinion:
Rodriguez asserts that Rita v. United States, 127 S. Ct. 2456 (2007) and Kimbrough v. United States, 128 S.Ct 558 (2007), undermine the line of cases that concluded that Booker, which made the Guidelines purely advisory, did not give sentencing courts the discretion to impose a non-Guidelines sentence based on disagreement with Congressional and Sentencing Commission policies such as allowing some districts to have fast-track programs while others do not. For the reasons set forth in United States v. Gomez-Herrera, No. 07-10153, decided this day, we reject this argument. Rita and Kimbrough allow a district court to impose a non-Guideline sentence based on disagreement with Guideline policy that results in a sentence greater [and presumably less] than necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a). Any sentencing disparity resulting from the implementation of fast track programs in some but not all sentencing jurisdictions results from Congressional, not Guideline, policy. Accordingly, the sentencing disparity is not “unwarranted” within the meaning of 18 U.S.C. § 3553(a)(6).
Aside from the merits of the Rodriguez ruling, I am wondering if the Fifth Circuit was getting into the April Fool's spirit here because I now cannot seem to find the referenced decision in United States v. Gomez-Herrera, No. 07-10153. The reference above suggests that fast-track issues are discussion more fully in this other Fifth Circuit ruling, but as of this writing I cannot find the ruling anywhere on the Fifth Circuit website. Perhaps fast-track gremlins made fast work of the decision.
April 2, 2008
Judge Weinstein makes notable headlines with notable jury-based ruling
Famed EDNY Judge Jack Weinstein has found a creative, questionable and headline-making way to avoid the application of a mandatory minimum federal sentence in a child porn case. Here are the headlines:
- From the New York Post here, "Judge's Bizarre Ruling Aids Perv"
- From the New York Daily News here, "Father convicted of downloading child porn not given jail time"
Here is the start of the Post article:
In a decision that turns hundreds of years of legal precedent on its head, a judge ruled yesterday that juries should be made aware of "harsh mandatory minimum" sentencing rules in certain cases. Maverick Brooklyn federal Judge Jack Weinstein issued the ruling in a child-porn case over which he presided - chastising himself for not telling the jury that the defendant faced a minimum five-year sentence before it found him guilty.
The drastic ruling says juries should be told what sentences certain criminals face, especially if the prison terms are particularly long. It attempts to reverse the long-standing rule that jurors not be given sentencing information so they can decide guilt or innocence, without letting the potential punishment color their thinking.
"The judge has gone out on a limb here," said a law-enforcement source. "There's clear case law that says the jury should not be informed about mandatory minimums."
Ohio litigation over state crack/powder sentencing disparity
The debate over crack/powder cocaine sentencing disparity is usually all about federal sentencing, but this local article spotlights a state-level litigation over these issues in Ohio. Here is the start of an interesting article:
The debate over the penalties for possessing crack cocaine versus those for the powder version of the drug is being argued in Summit County. An Akron attorney has filed court papers on behalf of 10 area defendants contending the harsher state penalties for crack cocaine are unconstitutional and racially based.
Attorney Jana DeLoach said she also has filed similar motions on behalf of defendants in Cuyahoga, Lucas, Richland and Stark counties. In some cases, DeLoach said she has filed the motions at no fee to the defendants.
DeLoach contends that the differences in Ohio law between the two forms of cocaine have resulted in longer prison terms for blacks, who are more likely to possess crack cocaine, and lesser terms for whites, who might possess powder cocaine.
She cited statistics showing that 85 percent of crack cocaine convictions involve blacks. ''I believe the disparity in sentencing between crack and powder cocaine is based on race and it needs to stop. There is no rational basis at this point to continue treating these offenses differently,'' she said. Prosecutors say they intend to fight the motions.
This debate is going on elsewhere. State senators last year passed a bill to bring the penalties in line. Currently in Ohio, it takes 25 to 100 grams of powder cocaine to reach the third-degree felony penalty for possessing five to 10 grams of crack cocaine.
The Senate's solution was to raise the penalties for powder cocaine and put it in line with crack cocaine laws. The bill has not been passed in the Ohio House. Opponents of the Senate proposal contend the changes will only bring more inmates to Ohio's already crowded prisons.
Interesting (quasi-sentencing?) rulings from the Ninth Circuit
Thanks to fellow bloggers, I see that the Ninth Circuit has released two interesting opinions today in cases that may interest sentencing fans even though that are not technically about sentencing:
- From How Appealing here: "Unanimous three-judge Ninth Circuit panel recognizes a state convict's limited due process right of access to the evidence, used to convict him of sexual assault, for purposes of post-conviction DNA testing."
- From AL&P here: "CA9: Judicial Immunity for Governor’s parole override."
Will there be any sentencing talk in the Skilling Fifth Circuit argument?
As detailed in a bunch of news stories linked at How Appealing, the Fifth Circuit today will oral argument today in former Enron Corp. CEO Jeffrey Skilling's appeal. Though the focal point of the news coverage and the briefing are on challenges to his convictions, I am hopeful that a bit of sentencing talk comes up during the appeal. After all, I think Skilling has a pretty good argument based on 3553(a)(6) that his sentence is unreasonably long given that co-conspirators Andrew Fastow and Richard Causey got much lower sentences.
UPDATE: I see that Jeralyn at TalkLeft has this effective post on the Skilling appeal which ends with this analysis:
The judges hearing the appeal will be 5th Circuit Judge Jerry Smith, 5th Circuit Judge Edward Prado and U.S. District Judge Alia Ludlum of Del Rio. Smith was one of the judges on the panel that overturned the convictions of Kevin Howard, the former finance chief for Enron's broadband division. I'm a big fan of Judge Prado (he was an early vocal opponent of mandatory minimum sentences.)
As for Skilling, I think 24 years is way too harsh a sentence for any non-violent criminal. Especially when other culpable defendants get 6 years because they cooperated and told the Government's truth. I hope he wins his appeal.
Lethal injection complaints going to the dogs
Sherry Colb has this essay online at FindLaw, titled "Lethal Injection and Animal Euthanasia: A Fair Comparison?". Here are excerpts:
One argument that surfaces repeatedly in debates about lethal injection revolves around a comparison with the practice of euthanizing pets. Opponents of the three-drug cocktail have claimed that one of the chemicals used was deemed inhumane by the American Veterinary Medical Association (AVMA) in connection with euthanizing animals....
Some opponents of lethal injection ... have argued that euthanasia protocols demonstrate a shocking reality — namely, that animals are treated more humanely than human beings undergoing lethal injection. Those who take this view express outrage at the prospect of veterinarians exercising greater care in guarding against the suffering of mere dogs and cats than our society exercises in protecting the human beings in our custody. Clearly, the argument goes, we have our priorities badly distorted if we are placing the needs of animals over those of human beings. But is that a fair characterization of the facts? ...
Despite the important distinctions to be drawn between pets and condemned murders and between pets and animals generally, the humane approach to euthanizing pets may nonetheless be instructive to the Supreme Court as it considers execution by lethal injection....
Ultimately, then, the humane euthanasia of suffering pets teaches us that we can do better by our death row population, even if we are not yet prepared to abolish capital punishment. At the same time, it should teach us that we can do far better by the domesticated animals on whom we blithely and unnecessarily inflict suffering and death in the cause of satisfying our appetite for flesh. The planned death of a beloved pet helps show us just how far we have to travel to make the truly humane treatment of animals a reality.
April 1, 2008
Fourth Circuit demands consideration of acquitted conduct (in an unpublished order)
Though I wish the ruling was just an April Fool's joke, I fear the a Fourth Circuit opinion today in US v. Ibanga, No. 06-4738 (4th Cir. Apr. 1, 2008) (available here), is all too real. In Ibanga, the Fourth Circuit in an unpublished per curiam decision holds that a sentencing court "committed significant procedural error, ... by categorically excluding acquitted conduct from the information that it could consider in the sentencing process." In other words, Ibanga essentially holds that a district court must consider acquitted conduct at sentencing even after Blakely and Booker.
Regular readers may recall the terrific district court opinion in Ibanga (discussed here), in which District Judge Walter Kelley thoughtfully explained why he thought that acquitted conduct should no longer be used at sentencing now that Booker mandates that the provisions of 18 U.S.C. § 3553(a) guide sentencing decision-making. Because Judge Kelley wrote such a thoughtful opinion that focused on the text and precise instructions of 3553(a), I had hoped the Fourth Circuit would uphold the decision as a sound exercise of post-Booker discretion. Instead, the Fourth Circuit, without showing enough courage to deliver a full published and signed opinion, just smacked the case back to Judge Kelley with a cursory opinion that starts this way:
This appeal by the government arises out of a drug trafficking and money laundering prosecution of a group of individuals that included Michael Ibanga. The jury convicted Ibanga of conspiracy to launder money and acquitted him of the drug trafficking charges. Nonetheless, the district court found at sentencing that the government had proven by a preponderance of the evidence that Ibanga had trafficked in 124.03 grams of methamphetamine (meth). Although acquitted conduct proven by a preponderance of the evidence may be taken into account in sentencing, the district court sentenced Ibanga to a prison term that did not reflect any drug trafficking. The government appeals Ibanga’s sentence, arguing that the district court contravened 18 U.S.C. § 3661 by categorically refusing to consider acquitted conduct -- Ibanga’s drug trafficking found by the court -- in determining his sentence. Because it appears that the district court applied a standard that would categorically exclude consideration of acquitted conduct in every case, we vacate Ibanga’s sentence and remand for resentencing.
Because I think the Fourth Circuit mis-read's Judge Kelley's work AND because this case clearly justifies a lot more attention and analysis than the per curiam panel opinion provides, I hope that Ibanga will seek en banc review and cert if necessary.
It is bad enough that circuits are always finding reasonable a district court's discretionary decision to enhance greatly a sentence based on acquitted conduct; it is really disheartening that the Fourth Circuit in Ibanga now finds unreasonable a district court's discretionary decision not to enhance greatly a sentence based on acquitted conduct. Am I just crazy to believe that the rich discussion of the importance of jury findings in Blakely and Booker should have some resonance in modern federal sentencing?
Virginia Gov announces (quasi-)moratorium on executions until Baze
Because the Supreme Court has already created a de facto moratoirum on executions nationwide (which has now gone on more than six months), I am not sure this new moratorium story from Virginia is really big news. Nevertheless, the details seem worth a mention:
Virginia Gov. Timothy M. Kaine (D) announced today a moratorium on executions until the U.S. Supreme Court decides whether lethal injection amounts to cruel and unusual punishment.
Kaine delayed the scheduled April 8 execution of Edward Nathaniel Bell, who killed a police officer in Winchester in 1999, until at least July. Along with that decision, Kaine said future scheduled executions will also be put on hold until after the Supreme Court makes its ruling in the case Baze v. Rees. "Stays in the final hours before an execution can take an emotional and physical toll on those who must prepare for the execution," Kaine said in explaining his decision.
Kaine's move is largely symbolic because the Supreme Court hasn't allowed an execution to move forward since it took up the Baze v. Rees case in September. The case centers on challenges from two death row inmates in Kentucky. The justices could rule by July. Bell's execution date now is set for July 24.
New JPI report on the impact of jails on local communities
The Justice Policy Institute released today this report, titled "Jailing Communities: The Impact of Jail Expansion and Effective Public Safety Strategies," that looks at the realities of local jails and the negative impact that jail expansion has on counties and communities. Here is a summary of the report I received via e-mail:
Communities are bearing the cost of a massive explosion in the jail population which has nearly doubled in less than two decades, according to a new report released today by the Justice Policy Institute (JPI). The research found that jails are now warehousing more people -- who have not been found guilty of any crime -- for longer periods of time than ever before. Jails are filled with people with drug addictions, the homeless and people charged with immigration offenses. The report concludes that jails have become the “new asylums,” with six out of 10 people in jail living with a mental illness. In 2004, local governments spent a staggering $97 billion on criminal justice, including police, the courts and jails. Over $19 billion of county money went to financing jails alone. By way of comparison, during the same time period, local governments spent just $8.7 billion on libraries and $28 billion on higher education.
LA Times coverage of SCOTUS acquitted conduct dodge
I noted in this post that Supreme Court yesterday denied cert in the Hurn acquitted conduct case and in a few other acquitted conduct cases. Providing a useful follow-up, SCOTUS reporter David Savage has this new piece in the Los Angeles Times headlined "Judges can still punish acquitted defendants." Here is how the article starts:
The Supreme Court declined Monday to reconsider a legal rule that might surprise most Americans: Judges can punish defendants for certain crimes even after a jury has acquitted them of those charges.
In recent years, the justices have described the right to jury trial as one of the bedrock principles of American law. At the same time, they have been unwilling to say that a jury's not-guilty verdict on some charges means the defendant cannot be punished. Instead, the court has said judges may take into account "acquitted conduct" when they decide on a prison term.
The case of Mark Hurn of Madison, Wis., provides a stark example of the rule. Hurn was given an additional 15 years in prison for possessing crack cocaine, even though a jury acquitted him of the charge. He was convicted of having powder cocaine in his house, a charge that would warrant between two and three years in prison under federal sentencing guidelines. But he was sentenced to nearly 18 years in prison, as though he had been convicted on both counts. "This was an extraordinary increase," said Elizabeth Perkins, a lawyer in Madison who filed his appeal. "Allowing a sentencing judge to disregard the verdict of the jury is very disappointing."
As regular readers know, this is an issue I find very interesting and important. And I remain hopeful that the Sixth Circuit, which will take on these issues soon in the en banc case White, will issue an interesting and important decision that may finally force the Justices to connect its Blakely rhetoric to federal sentencing realities.
Some related posts on acquitted conduct enhancements after Booker:
You make the call: what is a just and effective sentence for Sister Barbara Markey?
Since most judges likely have no experience sentencing nuns, I hope readers will use the comments to help out the Nebraska judge who will soon have to sentence Sister Barbara Markey. Here is the AP story providing the background:
A Roman Catholic nun accused of stealing from the Omaha Archdiocese and gambling much of the money away has pleaded guilty to theft. An attorney says Sister Barbara Markey pleaded Monday to theft of more than $1,500. Defense attorney J. William Gallup says she also agreed to pay $125,000 in restitution.
Markey faces up to 20 years in prison when she is sentenced in July.
Markey is an internationally known speaker. She was fired in 2006 as director of the archdiocese's family life office after an audit found irregularities. The audit found that Markey spent $307,545 for her own use or without documentation. Prosecutors say Markey used the money to cover gambling forays, gifts and trips.
Regular readers will not be surprised to hear that I do not think a long prison term makes much sense for Sister Barbara Markey. But I am still thinking about what would make sense. Suggestions, dear readers?
April 1, 2008 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (6) | TrackBack
FAMM suggests sentencing questions for the candidates
I just noticed that Families Against Mandatory Minimums has this new newsletter focused on the ways in which the "next president of the United States will have the power to influence sentencing policy for the next four to eight years." Among many interesting facets of the newsletter is a small section that suggests these "sample questions for candidates":
If your loved one is a first-time offender: Since my loved one (son, wife, etc.) — a first-time, nonviolent drug offender — began serving __ years for a (drug conspiracy, selling marijuana, etc.), I have learned about our lengthy mandatory minimum drug sentences. Do you support repealing mandatory sentences in favor of a structure that allows courts to consider the facts of the case and choose an appropriate sentence, and why?
If you are a concerned citizen:
- It costs at least $22,000 a year to incarcerate a nonviolent drug offender, and five, 10 and 20-year mandatory sentences are commonplace. What more cost-effective ways of protecting public safety do you support?
- Mandatory sentences are under intense scrutiny for being overly harsh, racially biased and ineffective at reducing demand for drugs. What do you plan to do to ensure fair and proportionate sentences for all defendants?
- Would you support repealing mandatory sentences in favor of a structure that allows courts to consider the facts of the case and choose an appropriate sentence?
Around the blogosphere
Lots of interesting new posts covering some sentencing-related issues can be found at:
March 31, 2008
James Wilson questions whether society gets as much from universities as it does from prisons
Thanks to this great post at Grits, I saw this notable op-ed in the Los Angeles Times by James Q. Wilson, headlined "Do the time, lower the crime." Scott does a great job in his post highlighting "a few of the overstatements and obfuscations" in Wilson's criticisms of study by the Pew Center on the States regarding America's high incarceration rate.
Rather than jump on the criticism bandwagon, let me quote a few notable paragraphs from the long Wilson op-ed that highlight there is both good and bad in Wilson's observations about the Pew research:
You cannot make an argument about the cost of prisons without taking into account the benefit of prisons. The Pew report makes no effort to do this. Instead, it argues that spending on prisons may be crowding out spending on education. For instance, tax dollars spent on higher education in the U.S. have increased much more slowly than those spent on corrections. The report does not ask whether the slower growth may be in part because of the sharp increase in private support for public universities, much less whether society gets as much from universities as it does from prisons.
But Pew rightly points to problems in the nation's imprisonment policy and in what it does (or, typically, doesn't do) to prevent crime in the first place. Take California. It has failed to manage well the health -- especially the mental health -- problems of many of its inmates. Federal judges are in the process of imposing tough new rules to rectify the problem. Nor has the state found good ways to integrate former inmates back into society. Instead, parole officers routinely send people back to prison if they misbehave -- and sometimes the return orders are for minor violations.
California does not handle drug offenders wisely either. Just how big this problem is remains uncertain because some inmates involved in serious crimes plead out to drug offenses to avoid tougher prison sentences. For serious drug users who have not committed a major crime, the goal should be to get them into a community treatment program and keep the offenders there.
Native Americans and the criminal justice system
This new webpage at DPIC, which is titled "Native Americans and the Death Penalty," includes these interesting (and depressing) statistics about some broader criminal justice realities:
The American native crime victimization rate is twice that of non-Indians. National crime victimization surveys reveal that whites perpetrate 57% of the violent crimes committed against American Indians. 80% of sexual assaults against Native Americans are perpetrated by whites.
The incarceration rate of Native Americans is 19% higher than the national rate. The U.S. Commission on Civil Rights attributes this higher rate to differential treatment by the criminal justice system, lack of access to adequate counsel and racial profiling. Law enforcement agents arrest American Indians and Alaskan Natives at twice the rate of the greater U.S. population for violent and property crimes. On average, American Indians receive longer sentences than non-Indians for crimes. They also tend to serve longer time in prison for their sentences than non-Native Americans.
Is that a sex offender GPS device on your pants or are you just glad to see me?
Pardon the randy post title, but I could not resist a bit of levity when reporting an interesting aspect of today's Sixth Circuit denial of en banc rehearing in Doe v. Bredesen. As detailed here, a Sixth Circuit panel last November split in Doe v. Bredesen, No. 06-6393 (6th Cir. Nov. 16, 2007) (available here) when rejecting a challenge to the application of Tennessee's new GPS sex-offender tracking rules. Judge Keith dissented from that panel ruling and today he has five other Sixth Circuit judges joining his dissent from the denial of en banc review. Here are snippets from the dissent (with cites omitted):
This case presents a rare “question of exceptional importance” for which en banc review is appropriate.... The Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act (the “Surveillance Act”), imposes retroactively a requirement that all convicted sex offenders not only register with the Tennessee sexual offender registry, but also wear a relatively large device (a global positioning system, “G.P.S.”) at all times....
[G]iven the large size of the G.P.S. device, the Surveillance Act violates Appellant Doe’s constitutional rights under the Ex Post Facto Clause. The box measures 6 inches by 3.25 inches by 1.75 inches. Doe v. Bredesen, 507 F.3d 998, 1005 (6th Cir. 2007). The box must be worn outside any coat or outer garment, making it plainly visible to onlookers. Id. at 1002. In essence, this box is a modern day “scarlet letter,” branding sex offenders with a marker of their crime for all to see.
I believe that the retroactive application of the Surveillance Act constitutes an Ex Post Facto Clause violation because (1) as a catalyst for public ridicule, it is a form of shaming, humiliation, and banishment, which are well-recognized historical forms of punishment; (2) it promotes the traditional aims of punishment; and (3) it is excessive in forcing Doe to broadcast his sex offender status not only to those who choose to inquire, but also to the general public....
Whether or not other members of this court agree with my dissent, this issue is important enough to merit review by the full court. We must be careful, in our rush to condemn one of the most despicable crimes in our society, not to undermine the freedom and constitutional rights that make our nation great. I dissent.
Some related posts on sex offender GPS tracking:
No big opinions, but some notable news from today's SCOTUS order list
As detailed over at SCOTUSblog, the Supreme Court Justices kicked off their two-week spring break with the release of one uneventful opinion. Still no ruling in the Baze lethal injection case, even though the SCOTUS-produced execution moratorium has now extended over 6 months and has, if some modern deterrence literature is accurate, potentially cost many innocent lives.
Also, as detailed here at SCOTUSwiki, we are still awaiting rulings in three notable criminal justice cases that were argued way back in 2007: Santos argued October 3; Williams, argued October 30, and the GTMO cases, argued December 5. I suspect this is a sign that long and/or deeply divided opinions are in the work in all these criminal cases (including Baze). I believe April 15 is the next likely day for the release of merits opinions (though perhaps we will have to wait until all the Justices get their taxes done we get any more major opinions).
Despite the opinion anti-climax today, there is some significant sentencing news to be found in today's SCOTUS order list:
First, some notable oral argument developments. The Court granted argument time motions to the SG in the Irizarry federal sentencing case to be argued April 15, and to Texas et al. in the Kennedy capital child rape case to be argued April 16. These ruling confirm my sense that these two arguments will both be very interesting and dynamic.
Second, some notable cert developments. The Court denied cert in my Hurn acquitted conduct case and, I believe, in a few other acquitted conduct cases. I was hoping to get at least a Gall/Kimbrough GVR in these cases, but no such luck. The Court did not act, however, on the Pittman juve sentencing case out of South Carolina. Perhaps this shows that a Justice or two thinks the Pittman case (discussed here and here and here) may be worth a closer look.
Ninth Circuit continues to expound on federal sentencing circa 2008
As noted in this post, the Ninth Circuit last Monday finally issued its en banc rulings in Carty and Zavala to expound upon its view of post-Booker federal sentencing law and practice. To close the week, the Ninth Circuit applied its newly-described wisdom in US v. Crawford, No. 06-30205 (9th Cir. Mar. 28, 2008) (available here). This post at the Ninth Circuit Blog provides an astute take on the post-Booker path being taken out west. Here is part of the analysis by Steven Sklar:
Chief Judge Alex Kozinski loses, but wins; the defense wins, but loses. Over two years after oral argument, an en banc panel of the Ninth Circuit declines to adopt a (formal) appellate presumption of reasonableness for an in-guideline sentence. United States v. Carty, __ F.3d __, 2008 WL (9th Cir. Mar. 24, 2008) (en banc), decision available here. Great news -- except that 595 months (49 1/2 years) of guideline sentences are affirmed despite the new rule....
Judge Rymer authors; Chief Judge Kozinski writes an unfortunately accurate concurrence ... [as he] crows that the majority effectively adopts a presumption of guideline reasonableness, because the opinion’s appellate review (and acceptance) of the two (remarkably high) sentences given to Zavala and Carty is so casual, and so deferential, that the Court essentially assumes that the pair of guideline sentences are “reasonable.”...
Judge Rymer’s concise, bullet-point distillations of the Supreme Court’s sentencing morass are clear and well-written; they will be the Ninth’s hornbook for post-Booker sentencing practice.... Judge Rymer also teaches us how to salt an appellate record (to the extent still possible). Want to force your district judge into actually wrestling with your arguments, on the record? Then raise “a specific, non-frivolous argument tethered to a relevant § 3553(a) factor in support of a requested sentence.” Faced with such arguments, the sentencing judge “should normally explain why he accepts or rejects the party’s position.” On the subject of salting, here’s a list of procedural errors that the Ninth targets for its first pass on appellate review:
- failure to calculate, or incorrect calculation, of the guideline range;
- treating the Guidelines as mandatory instead of advisory;
- failure to consider the § 3553(a) factors;
- choosing a sentence based on clearly erroneous facts; and
- failure to adequately explain the sentence selected, including any deviation from the Guidelines range.
Florida showcases felon franchise challenges
Writing in today's Wall Street Journal, Gary Fields has this strong piece headlined "Felons' Voting Requests Pile Up: Florida's Process To Restore Suffrage Illustrates Haze." Here are excerpts:
Republican Gov. Charlie Crist went against his party a year ago and made it easier for felons to regain their voting rights. The process has been slow, however -- stirring controversy in a state expected to be closely fought in this fall's elections. Florida's clemency board has restored voting rights to nearly 75,000 residents. But nearly 96,000 requests are pending, according to information through March 20. Activists say there might be an additional 400,000 people who have been rejected without explanation, making it impossible for them to be reinstated.
The fate of these votes is especially sensitive in Florida, where George W. Bush claimed the presidency by a mere 537 votes in 2000. But similar tensions are playing out across the country, with 5.3 million U.S. citizens unable to vote because of felony convictions -- including four million people who are no longer in prison, according to the Brennan Center for Justice at the New York University School of Law....
Restoring the rights of all five million felons who can't vote is complicated by this patchwork system, said University of Florida political scientist Richard Scher, who noted, "There is no uniformity."...
In Florida, churches are hosting rights-restoration sessions. The Florida Rights Restoration Coalition, a group of 40 organizations, is planning a daylong rally for April 1 in Tallahassee. The state's clemency board is trying to reach out to as many people as possible to tell them of the changes....
The change in Florida was controversial from the start. Mr. Crist's initial proposal was opposed by two Republicans who were members of the executive clemency board, Attorney General Bill McCollum and Secretary of Agriculture Charles Bronson. Mr. Crist revamped the idea, limiting the scope to nonviolent offenders, and Mr. Bronson signed on. To qualify, those felons must have completed their prison term, probation and parole, if applicable, and made any payments the court orders, including child support....
Roger Clegg, president and general counsel of the Center for Equal Opportunity, a conservative legal advocacy group, said the old system could have been improved, but the new system goes too far. Each case should be reviewed, he said. "To assume someone has turned over a new leaf because they've walked out of prison doesn't make sense."
March 30, 2008
Thoughtful analysis of Gall
The Daily Report legal newspaper has this effective piece on Gall by Steven Sadow headlined "Gall offers options at trial: Fewer defendants will plead, as judges can depart from guidelines more often." Here is an excerpt:
Sentencing has finally moved from the hands of the prosecutors and the harshness of the Federal Sentencing Guidelines back to the discretion of the district court judges. The federal sentencing menu options have changed, and white-collar criminal defendants can, and should, consider retaining veteran trial lawyers. Attorneys who fit this mold have real experience defending criminal cases in the courtroom, will not be dissuaded to go to trial when the facts and legal issues demand it and will not settle out of fear of a presumed harsher guideline sentence.