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.