April 1, 2008
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.