May 17, 2008
Developing AG and USSC short lists
Last weekend I encouraged, through this post, "Developing a SCOTUS short list of district court judges." And all the comments were great (and I hope they will keep coming). Inspired by this new Legal Times article, headlined "What the Presidential Candidates Plan for DOJ," I thought it would be fun to develop short lists for positions as Attorney General and US Sentencing Commissioner.
I am hoping the new President will have lots of innovative and diverse thoughts and interests when picking an AG and filling vacant seats on the USSC. Perhaps readers can help the future President-elect develop innovative and diverse AG and USSC short lists.
May 16, 2008
Latest FSR issue focused on white-collar sentencing
I am pleased to report that, just in time for the start of the summer sentencing season, the latest issue of the Federal Sentencing Reporter focused on white-collar cases is now in print and also available here on-line. The issue is titled, simply enough, "White-Collar Sentencing."
FSR's publisher has kindly made the issue's terrific opening commentary by Mark Harris and Anna Kaminska, which is entitled "Defending the White-Collar Case at Sentencing," available for download for free here. The full contents of this latest FSR issue are listed below and can be ordered on-line here.)
- Mark D. Harris & Anna G. Kaminska, Defending the White-Collar Case at Sentencing
- Harry Sandick, Gall and Kimbrough and Their Relevance to Sentencing in White-Collar Cases
- Frank O. Bowman III, Sentencing High-Loss Corporate Insider Frauds After Booker
- Gabrielle S. Friedman, Kan M. Nawaday & Daniel M. Gitner, Challenging the Guidelines’ Loss Table
- Hector Gonzalez, Matthew D. Ingber & Scott A. Chesin, Is Booker a “Loss” for White-Collar Defendants?
- Peter J. Henning, Prior Good Works in the Age of Reasonableness
- Alexandra A.E. Shapiro & Nathan H. Seltzer, Measuring “Gain” Under the Insider Trading Sentencing Guideline Based on Culpability for the Deception
- Cheryl A. Krause & Luke A.E. Pazicky, An Un-Standard Condition: Restricting Internet Use as a Condition of Supervised Release
- Emily Barker, Brian Baxter, Alison Frankel & Nate Raymond, Progress Report: How the Justice Department’s Highest-Profile Corporate Fraud Cases Turned Out (reprinted from The American Lawyer)
- U.S. Sentencing Commission, 2007 Sourcebook of Federal Sentencing Statistics Tables
- Sentencing Memorandum in United States v. Thomas Coughlin, No. 06-20005 (W.D. Ark. Feb. 1, 2008)
Split Canadian high court issues major ruling on trying minors
As detailed in news reports here and here, "Canadian courts must treat juvenile killers more leniently than adults unless the government can show compelling reasons to give them adult sentences, the Supreme Court of Canada ruled on Friday." Here's more from this account of the Canadian ruling:
The high court said adolescents have "diminished moral culpability" and should not have to prove that they should be given youth sentences. In each instance, the onus will now be on prosecutors to make the case that adult sentences should be applied. "Young people are entitled to a presumption of diminished moral culpability," Justice Rosalie Abella wrote for the court's 5-4 majority decision. "Young people...are decidedly but differently accountable."
The case involved a 17-year-old, identified as D.B., who sought to pick a fight with 18-year-old Jonathan Romero outside a mall. Romero did not defend himself, but D.B. knocked him unconscious and Romero died of his injuries. The 17-year-old was convicted of manslaughter and given a youth sentence of 30 months in a juvenile correctional facility plus six months' supervision. The prosecution had sought an adult sentence of five years' imprisonment....
Justice Marshall Rothstein, writing the dissent, disagreed that the section of the Youth Criminal Justice Act was unconstitutional, noting that under it young offenders still had the right to satisfy the court that adult sentences should not apply.
The full ruling in R. v. D.B., 2008 SCC 25 (Canada May 16, 2008) can be accessed here. A quick search does not turn up any reference to Supreme Court's 2005 Roper decision about juveniles being ineligibility for the death penalty in the United States. Nevertheless, it seems notable that the big juve ruling in the US is about the death penalty, whereas the big juve ruling in Canada involves a dispute over only a few years' imprisonment.
UPDATE: Howard Bashman collects major news coverage of R. v. D.B. here.
Ninth Circuit makes clear what it does not hold concerning cross-examination rights
The Ninth Circuit has an interesting decision today in US v. Perez, No. No. 07-10289 (9th Cir. May 16, 2008) (available here), concerning a defendant's "right to cross-examine the laboratory technician who tested a urine sample." Realizing that the case could be seen as a blockbuster, the panel is quick to provide this explanation of what it is not holding:
We caution that this is an unusual case with unusual facts and should not be taken out of context. We do not hold that a releasee always has a right to cross-examine the technician who tested a urine sample. This is not a case where other evidence was offered in support of revocation, such as illegal drugs discovered in the possession of the releasee. Nor is this a case where multiple urine samples each tested positive. Here, the urinalysis report was the critical piece of evidence presented in support of the charge that Perez tested positive for cocaine. Although urinalysis results may often be sufficiently reliable evidence that the opportunity for crossexamination is unnecessary for due process purposes, see United States v. Martin, 984 F.2d 308, 313-14 (9th Cir. 1993), here the report itself showed the sample had been adulterated. Given that the sample was uncontestably adulterated, the test results were in fact ineluctably unreliable.
Intriguing new paper on plea bargaining
I just noticed on SSRN this interesting looking new paper titled "Calling Your Bluff: How Prosecutors and Defense Attorneys Adapt Plea Bargaining Strategies to Increased Formalization." Here is the abstract:
This ethnographic work examines the inner workings of a highly formalized plea bargaining unit in a large urban prosecutor's office from the lawyers' point of view. Observations of forty two plea negotiations between prosecutors and defense attorneys along with both formal and informal interviews reveal how the legal actors adapt to institutional rules in the pursuit of the both efficiency and justice. In the face of ever increasing prosecutorial power, defense attorneys find ways to equalize the balance when cases don't fit the 'normal crimes' model. Examination of negotiating strategy and discourse give further insight into whether prosecutors and defense attorneys behave differently under highly rationalized systems of plea-bargaining compared with traditional models previously studied.
Another federal effort to sentence for an uncharged murder
This new Baltimore Sun article spotlights another case in which federal prosecutors are looking to use the guidelines relevant conduct rules to obtain a higher federal sentence based on a murder charge that was never formally brought against the defendant:
A federal jury decided last year that Gary "Fat Boy" Williams Jr. was a drug dealer. But when his sentencing hearing resumes today in a Baltimore court room, he will face accusations that he was involved in the shooting death of an informant though he has never been charged with murder.
Federal prosecutors are mounting what is essentially a trial within a trial in hopes of winning a stiffer sentence. Federal sentencing law allows a judge to consider alleged crimes that have been refuted at trial or which a defendant has never been charged with, a provision that critics say flouts the constitutional protections of the trial-by-jury system. "It's a practice that is obviously ripe for abuse," said Jonathan Turley, a law professor at George Washington University. "The prosecutors can use this technique to punish someone for a murder that they're not willing to formally charge and prosecute, and the result is that the defendant receives the penalty but none of the due process protections."
Williams' lawyer, Christine Needleman, said, "It's supposed to be a sentencing for my client's first [federal] drug conviction. ... Instead, they're trying to tack on a murder that can't be proven to send him to prison for life without parole, without any of the procedures."
Rod J. Rosenstein, the U.S. attorney for Maryland, said Williams is accused of ordering the killing of a 35-year-old Harford County woman in February 2006 to obstruct the drug investigation, making it "relevant conduct" to the drug dealing. Prosecutors must prove his involvement by only a "preponderance of evidence." In a criminal trial, a defendant must be proven guilty "beyond a reasonable doubt," a higher threshold.
Sentencing guidelines call for Williams, 28, of Abingdon, to receive 14 to 17 years on the drug charges, but the murder accusations could stretch it to life. "The issue today is that he has been convicted, and we have an obligation to bring to the judge's attention all the relevant conduct," Rosenstein said. "You don't want a judge to flip a coin. You want a defendant who murdered a witness getting a sentence in the high end."
Related posts on uncharged murder sentencing enhancements:
- Sentenced for an uncharged murder
- Sentenced for three uncharged murders
- Punished (twice?!?) for an uncharged murder in federal court
- Seventh Circuit upholds upward departure based on uncharged (and unproven?) crimes
- Seventh Circuit affirms 10-year sentence increase for uncharged murder
- Eighth Circuit affirms another lengthy sentence for an uncharged murder
- Eleventh Circuit approves sentences based on hearsay evidence of uncharged murders
UPDATE: This Baltimore Sun article, headlined "Drug dealer gets life in prison: Judge says evidence shows that Harford man caused death of DEA informant," details the sentencing outcome in this case
May 15, 2008
Yet another federal sentence prompting Second Amendment questions
I continue to see new Second Amendment questions in federal cases in light of Justice Kennedy's suggestion during the Heller oral argument that the Second Amendment may protect the right of homeowners to have a gun in their house for self-protection. Consider, for example, a curious (and troublesome) new ruling from the Eighth Circuit in US v. Cole, No. 07-2593 (8th Cir. May 15, 2008) (available here).
The Eighth Circuit opinion is Cole is a bit opaque in affirming the sentences of a husband and wife convicted federal gun crimes. Here is what is clear: "Robert Cole and Linda Gilbert, husband and wife, were convicted of possessing an unregistered firearm, [and] Mr. Cole was also convicted of being a felon and a drug user in possession of firearms." And here is the especially telling Second Amendment angle: "Ms. Gilbert possessed all three weapons [in the couple's bedroom and she] told the police that she had [them] to protect her family in light of the unsolved murder of her son." It does not seem that this claim of gun possession for personal protection was even disputed --- though, of course, the federal government did not have to contest this claim of gun possession for personal protection in the home in order to get both husband and wife convicted of federal gun crimes.
Notably, though affirming their sentences over various sentencing objections, the Eighth Circuit never expressly states what sentences were given to Mr. Cole and Ms. Gilbert for their gun possession in this case. I have a feeling that both husband and wife got substantial prison terms, which heighten my Second Amendment worries in this kind of case.
Some related posts on other notable federal gun cases:
- Hunting, pardons and a Second Amendment claim?
- SCOTUS takes new gun case ... is this a Heller tea leaf?
A month after Baze, has anything really changed?
Two articles this morning about on-going lethal injection litigation confirm my sense that the Supreme Court's Baze decision has done remarkably little to alter the legal fights over execution protocols or broader debates over the death penalty.
This article from the Washington Post discusses a Fourth Circuit oral argument concerning Virginia's lethal injection process, and it shows lawyers and judges are still talking about whether a one-drug protocol ought to replace the current three-drug approach. Similarly, this article from the News Journal discusses a federal district judge's plans to conduct essentially a full bench trial in order to examine the particulars of Delaware's lethal injection protocol.
Of course, last month's Baze decision upholding Kentucky's use of a three-drug execution protocol did finally enable states to resume plans for executions, and Georgia even managed to carry out a lethal injection last week. But, even though some predicted a major rush of executions after Baze, this list of pending executions dates suggests it is unlikely that there will be more than the modern "usual" pattern of around 5 to 7 executions each month (and nearly all the executions are likely still to be concentrated in southern states).
Thus, it seems that all Baze really achieved was a brief national hiatus in executions and a new focal point for legal arguments in lethal injection litigation: state prosecutors will assert that their state's protocol and history is just like Kentucky's; defense attorneys will assert that the evidence shows otherwise. Looking back a month after the Baze ruling, it is hard to see how the Supreme Court's decision to take up lethal injection protocols really advanced the capital ball much at all.
Some related posts:
A notable new clinic at the University of Chicago Law School
The Mandel Legal Aid Clinic is proud to announce the creation of a new clinical opportunity, the Federal Criminal Justice Project (FCJP). FCJP will be led by Director Alison Siegler, formerly an attorney with the Federal Defender Program and instructor of Federal Sentencing course here at the Law School.
The primary mission of the FCJP is to zealously represent indigent defendants charged with federal crimes while giving students a unique opportunity to practice in the U.S. District Court for the Northern District of Illinois. The FCJP will represent clients from arrest through trial/plea bargaining and sentencing and will also represent clients on appeal.... In addition to representing individual clients the FCJP will serve as an information clearinghouse and resource for Chicago-area federal criminal defense lawyers and will work to address larger systematic problems with the federal criminal justice process....
The Federal Criminal Justice Program marks the second new clinical project this year, and joins the Exoneration Project as part of an ever expanding number of clinical opportunities offered to our students. The FCJP will launch in the Fall Quarter.
I am not sure if the FCJP is the first clinic to focus exclusively on indigent defendants in the federal system, but I do not know of any other law school clinic that formally aspires to "serve as an information clearinghouse and resource" for federal defense lawyers or that seeks "to address larger systematic problems with the federal criminal justice process."
I am hopeful that the FCJP will develop web-based materials as part of its mission. The training web page created by the federal Office of Defender Services has many terrific federal defense resources, but it is sometimes dated and more can always be done during this (never-ending?) rapid period of extraordinary federal criminal justice evolution.
New piece on federal prosecutorial discretion
One of many reasons I do not get too concerned about the exercise of broad federal judicial sentencing discretion is because I have long believed (or perhaps I should say long feared) that federal prosecutorial discretion is always much greater and much less transparent than judicial discretion. With this perspective, I am looking forward to reading this new piece from Ellen Podgor, titled "Department of Justice Guidelines: Balancing 'Discretionary Justice'." Here is the abstract:
Prosecutors are afforded enormous discretion in a multitude of decisions. Internal guidelines of the Department of Justice (DOJ) assist federal prosecutors in making the decisions that fall within their discretionary realm. Although these guidelines are policy statements and not legislative rules, they offer an element of consistency to the decision-making process, provide education for newcomers to the department, and can serve as a restraint on prosecutorial discretion.
Prosecutors do not always adhere to these internal guidelines. This article studies ways to achieve better compliance. It examines remedies that achieve a balance between continuing the practice of having guidelines and yet also having meaningful policies that are adhered to by department employees.
May 14, 2008
Two notable (and very different) departures for top lawyers
This afternoon brings these two notable (and very different) lawyer departure stories:
Though both stories are big news for a host of reasons, I think there are significant sentencing angles worth considering. How the SG's office approaches federal sentencing law for the rest of 2008 could have a significant impact on the work of the Supreme Court and lower circuit courts in a still-uncertain post-Gall universe. And how a new Ohio AG approaches state capital punishment issues could have a significant impact on national death penalty debates (in a swing state that will surely gets lots of attention from the fall).
Though I doubt few others will obsess about the impact of these distinct departures on sentencing issues, SL&P readers are urged to make all sorts of wild predictions (and suggest replacements) in the comments.
Exactly when and how will SCOTUS confront sex offender residency restrictions?
It is clear based on lots of lower court litigation that the constitutionality of sex offender residency restrictions will come before the US Supreme Court sooner or later. It is thus interesting to speculate exactly when and how these issues will get to the High Court.
New posts at other blogs reporting on recent constitutional rulings from state courts in Indiana and Ohio highlight the possibility that these issues will get to the Justices through the state court system. However, some recent notable federal district rulings about various sex offender issues suggest federal sex offender cases could get to the Court first, especially if we start seeing some major circuit action on these matters.
Notably, the constitutional issues presented in different cases often vary: frequently ex post facto punishment claims are pressed by former offenders subject to new residency restrictions, but various due process and takings claims have also found some traction in some settings. And, though not always central to the legal issues, the background and specific crimes of a sex offender complaining about residency restrictions can always have an impact on judicial and public reactions to various types of constitutional claims.
Does anyone know of any especially potent residency restrictions cases in the pipeline that might be presented to the Supreem Court in the near future?
Some related posts on litigation over sex offender residency restrictions:
- Major Human Rights Watch report about sex offender sanctions
- Does the efficacy of sex offenders residency restrictions impact their constitutionality?
Tenth Circuit finds reasonable giving the guidelines "considerable weight"
Providing an account of what the Supreme Court's Booker progeny means for district courts, the Tenth Circuit yesterday in US v. Zamora-Solorzano, No. 07-3205 (10th Cir. May 13, 2008) (available here) affirms a within-guideline sentence after the district court indicated it had given the guidelines "considerable weight." Here is a key passage from the ruling in Zamora-Solorzano:
To begin, Rita simply held that “the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.” Rita, 127 S. Ct. at 2465 (emphasis added). Similarly, we have explained that a district court is not required to give heightened consideration to the Guidelines as a matter of course. See United States v. Smart, 518 F.3d 800, 808 (10th Cir. 2008). On the other hand, “gravitational pull [towards a Guidelines sentence at the district court level] that reduces sentencing disparity — so long as it does not rise to the level of mandate — is neither unconstitutional nor undesirable.” United States v. Angel-Guzman, 506 F.3d 1007, 1014 (10th Cir. 2007) (emphasis added). Thus, neither Rita nor our case law suggests that a district court is precluded from, in its individualized judgment, attributing considerable weight to a Guidelines sentence in a given case.
Sentencing of Army reservist for gun crime causing a stir
As regular readers know, the Heller case and related Second Amendment issues has me keeping a close eye on gun crime sentencing cases of note. This new article from the Milwaukee Journal Sentinel, headlined "Automatic gun transfer nets prison sentence," spotlights a defendant sentenced yesterday in a case that has already drawn significant media attention. Here are excerpts:
A Wisconsin man whose federal conviction for illegally transferring a machine gun drew national attention on CNN and the Internet was sentenced Tuesday to 30 months in prison. David R. Olofson, 36, of Berlin, who remains a member of the Army Reserve until his felony conviction becomes official, was convicted by a jury in January.
Olofson, whose case has been reported several times on Lou Dobbs' show on CNN, faced up to 10 years in prison, Federal sentencing guidelines called for 27 to 33 months. U.S. District Judge Charles Clevert said Olofson knew or should have known the gun in question fired automatically. "This was a man who has considerable knowledge of weapons, considerable knowledge of machine guns," Clevert said. "Mr. Olofson, in this court's view, has shown he was ignoring the law."
Assistant U.S. Attorney Gregory Haanstad noted that Olofson had two previous gun-related convictions, including carrying a concealed weapon with his children trick-or-treating. He also noted that Olofson was reprimanded for corrupting Army computers and perhaps providing militia groups access to sensitive information.
Olofson's attorney, Brian Fahl, who had asked for probation, promised a swift appeal with help from the National Rifle Association. He argued that Olofson's rifle malfunctioned because of the way it was manufactured. Fahl said the case is being watched nationally because some believe it allows for criminal charges whenever a weapon accidentally fires more than once. "If you have a multiple firing, it looks like you can be prosecuted," Fahl said....
Prosecutors argued it is a straightforward case of someone knowing a gun fired automatically and giving it to someone else. In July 2006, Olofson lent an Olympic Arms AR-15 rifle to Robert Kiernicki, who took it to a shooting range in Berlin, according to court documents. Kiernicki was responding to an ad posted by Olofson to sell an AR-15.
AR-15s are semiautomatic rifles that fire a bullet each time the trigger is pulled. Federal law classifies a weapon that fires more than one bullet with a single trigger pull as a machine gun. People can legally own fully automatic, military-type M-16 rifles, but they must have a federal license and cannot transfer it to someone else.
Once again, I cannot help but assert that this kind of federal criminal prosecution and lengthy federal sentence for a highly technical gun possession crime seems to undermine robust Second Amendment rights. I know some (many? most?) believe that a pro-gun holding in Heller won't impact federal gun prosecutions, but cases like this suggest again to me that we can and should expect lots of post-Heller Second Amendment litigation in federal criminal gun prosecutions.
Some related posts on other notable federal gun cases:
- Hunting, pardons and a Second Amendment claim?
- SCOTUS takes new gun case ... is this a Heller tea leaf?
May 13, 2008
Intriguing little SORNA sentence reversal from the Fifth Circuit
In US v. Sanchez, No. 07-30578 (5th Cir. May 13, 2008) (available here), the Fifth Circuit says a lot of really interesting things in a really notable setting in a really short opinion. Here are the starting and closing part of the opinion, which perhaps highlight why Sanchez is a must-read for sentencing fans:
Darrell Sanchez challenges the district court’s imposition of a 60-month sentence for failing to register pursuant to the Sex Offender Registration and Notification Act (“SORNA”).
Sanchez pleaded guilty to failing to register pursuant to SORNA, in violation of 18 U.S.C. § 2250. At sentencing, Sanchez and the Government agreed that “the guidelines associated with the crimes are 2X5.1 and 2X5.2 because there are no other applicable guidelines, specific to this crime.” The district court noted that this was the only case it had ever encountered in which there was no applicable guideline, and determined that, in the absence of an applicable guideline range, it had to sentence Sanchez utilizing the factors set forth in 18 U.S.C. § 3553. The district court noted that the statutory maximum for a violation of §2250 was 10 years of imprisonment. Then, indicating that it had considered the factors set forth in § 3553(a), the district court sentenced Sanchez to a 60-month term of imprisonment and to a five-year term of supervised release.
However, unbeknownst to the district court or the parties, prior to Sanchez’s sentencing on June 11, 2007, the Sentencing Commission had promulgated and submitted to Congress a proposed guideline for violations of § 2250. After Sanchez’s sentencing, the proposed guideline was approved by Congress and now appears in the 2007 Guidelines Manual as § 2A3.5. It is undisputed that Sanchez’s sentencing range under the proposed guideline, now § 2A3.5, would be significantly less than the 60 month sentence imposed by the district court.....
Finally, we must emphasize the narrowness of our holding. We hold only that, where, at the time of sentencing there is no guideline in effect for the particular offense of conviction, and the Sentencing Commission has promulgated a proposed guideline applicable to the offense of conviction, the district court’s failure to consider the proposed guideline when sentencing the defendant may result in reversible plain error.
Interesting report of back-room capital clemency dealings with Canada
A helpful reader pointed me to this very interesting press story involving the death penalty and our neighbors to the north. Here are a few snippets:
Montana's governor told a top Canadian consular official last year that he was willing to consider commuting the death sentence of Alberta-born killer Ronald Smith — the only Canadian on death row in the U.S. — and transfer him to a Canadian prison if Canada would guarantee he'd be kept behind bars for at least five years.
The revelation is contained in briefing notes prepared in November for Justice Minister Rob Nicholson and released on Friday after an Access to Information request by Canwest News Service. The Nicholson backgrounder is the strongest indication yet that Canada's efforts to win clemency for Smith were long-standing, resolute and progressing well until the Conservative government abruptly called off the push by its U.S.-based diplomats to fight for Smith's life.
That decision — revealed in an Oct. 31 e-mail to Canwest News Service that stated Canada would no longer be seeking clemency for Canadians facing execution in "democratic" countries — sparked an uproar in the House of Commons, prompting accusations from the three opposition parties and human rights advocates that the Conservative government was signalling a new, sympathetic stance toward capital punishment.
Some Canadian bloggers are apparently upset that weakened Canadian opposition to the death penalty led to this back-room clemency deal falling through. I am more troubled to hear that a state governor seriously considered a back-room clemency deal along these terms for a brutal double-killer that Montanta's state prosecutors and judges and juries thought should be executed for his crimes. (The press article notes that Smith "brutally executed two Blackfeet Indian men — Thomas Running Rabbit and Harvey Mad Man — during a drunken road trip to Montana in 1982.")
New(?) Eleventh Circuit ruling affirms two above-guideline sentences
As now reported by the local press and in the blogosphere, the Eleventh Circuit in US v. Williams, No. 07-12526 (11th Cir. Mar. 20, 2008) (available here), has "upheld the conviction and eight-year prison sentence of a former Coca-Cola Co. secretary found guilty of conspiring to steal trade secrets from the world's biggest beverage company." Ellen Podgor's post summarizes sentencing highlights from Williams:
Williams received [an above guidelines] 96-month sentence, in sharp contrast to a sentence given to an individual who plead guilty and received a 24-month sentence. The 11th Circuit held that giving enormous weight to one factor — in this case the seriousness of the offense — does not mean the sentence is unreasonable.
One interesting curiosity from this opinion is that it is dated March 20, but was only released this week. There must be an interesting story as to why this high-profile ruling languished behind a virtual Eleventh Circuit file cabinet somewhere, but Howard Bashman is surely more qualified than me to figure out this appealing mystery.
A potent SCOTUS tag-team on the rule of lenity
This post at SCOTUSblog reporting on the filing of two new amicus briefs in support of cert in a rule of lenity case had me recalling some famed pro-wrestling tag teams. Here are the details: "[T]wo cert.-stage amicus briefs were filed [in support of the defendants in Kay v. US, No. 07-1281]: this one on behalf of the U.S. Chamber of Commerce, and this one on behalf of the National Association of Criminal Defense Lawyers."
As this prior SCOTUSblog post details, Kay raises these two notable issues in the context of a federal criminal prosecution under the Foreign Corrupt Practices Act:
First, is the omission of an element of an offense structural error or instead subject to harmless error review?...
Second, what degree of statutory ambiguity triggers the rule of lenity, and when will legislative history suffice to avoid application of lenity?
With the gruesome twosome of the Chamber of Commerce and the NACDL fighting for the defendants here, the feds may be in some serious trouble if the Justices decide that this case should be resolved through a SCOTUS cage match.
Some more crazy sentencing stories
In addition to the angry coach case, here are some more local sentencing stories that have to be read to be believed:
- From the AP here, "Man jailed when daughter fails to get diploma"
- From the Detroit News here, "Jurist regrets telling offender to kill himself"
Here is the first line from the second story: "A magistrate who told a repeat underage drinker that he should slit his wrists or jump to his death is having second thoughts about her comments from the bench."
More than six years in federal prison for (not quite) bearing arms
Here is an interesting sentencing case for those who claim to be strong supporters of gun rights, as reported in this Baltimore Sun article:
Aaron McCown, a youth football coach embraced by his team despite a criminal past, was sentenced yesterday to 6 1/2 years in prison for using a loaded pistol to intimidate a referee.
Like many others, U.S. District Judge Deborah K. Chasanow seemed to consider McCown an enigma: a man with a lengthy record — including heroin dealing and assault — who earned a community service award from the Johns Hopkins University five years ago for volunteering to help coach the Old Town Gators, a Pop Warner team in East Baltimore, each fall.
"This, I think, is your last chance," the judge told McCown. "You need to figure out what prompted you to do all this back in September 2007 when otherwise you were doing the right things."
Prosecutors portrayed McCown, 32, as a failed role model who betrayed the faith his players had in him. "This is somebody with a history of aggressive behavior who is bringing a gun to a football field at a youth game," Assistant U.S. Attorney Michele W. Sartori told the judge....
McCown was an assistant coach on one of six Gators teams — the youngest is for 5- to 7-year-olds, the oldest for youths up to age 15 — that played the White Oak Warriors in Montgomery County on Sept. 22. A referee ended the game early after the team's fans and coaches complained about the officiating. A police report said an enraged McCown told a referee, "I have something for your [expletive]" before running to a pickup truck to grab a bag containing a gun. According to the plea agreement, McCown "walked back onto the field toward the referee while holding the bag containing the weapon." No shots were fired.
Prosecutors asked Chasanow to sentence McCown to seven-and a quarter years, the high end of sentencing guidelines. McCown was originally accused of possessing a firearm as a convicted felon, a charge that could have sent him to prison for more than 20 years. He pleaded guilty in March to a lesser charge of knowingly receiving an explosive, a .45-caliber pistol that authorities said contained four rounds of ammunition....
The judge's sentence was between the recommendations of the prosecution and the defense. His voice quivering, McCown, his hair in dreadlocks and wearing jeans and a black T-shirt, rose before the judge's sentence and acknowledged the emotional harm — and the good — that he had done to the players. "In some ways I built up the community, and in some ways I destroyed a community," said McCown, who turned 32 on Sunday....
Many on his team and in his neighborhood continue to support him. About 70 letters, notes and signatures were delivered to the judge on his behalf. McCown coached in an East Baltimore neighborhood where community leaders say male role models are lacking. Most of the Gators come from single-parent homes. "His players looked upon him as a friend, not just their coach," said a letter to the judge from Andre'a Miles, a family friend. "Mr. McCown made himself available to his players or anyone else who needed help or just needed someone to talk to."...
McCown told the judge he understood that he might not be permitted to coach again in Baltimore, but he said he hopes to work with youths when released. "What I tried to do was help my kids learn from the mistakes I made," he said.
So McCown will now spend most of his 30s in federal prison because he committed the "crime" of walking toward someone with a gun inside a bag. Does this really seems just? Is a sentencing term of 6.5 years necessary as a punishment for this crime of (not quite) bearing arms? Is this sentencing term consistent with the principles of American society, which professes a commitment to individual liberty and a Second Amendment right to keep and bear arms?
UPDATE: The more I think about this case, the more I wonder what libertarians like presidential candidate Bob Barr thinks about this kind of exercise of extreme power by the federal government. And speaking of extreme government power, it is important to appreciate the impact of the Armed Career Criminal Act (ACCA) in this context.
Based on the newspaper report, it seems Aaron McCown could have — arguably should have — faced a mandatory 15 years of federal imprisonment based on ACCA. But the the federal prosecutor here apparently was comfortable "nullifying" this congressional mandatory sentencing statute and allowed McCown to plea down to lesser charges (which McCown sensibly accepted to avoid a mandatory term that would have kept him in federal prison until he was nearly 50).
For those who favor strong enforcement of severe gun laws, this case may justify criticism directed toward federal prosecutors for pushing a plea that nullifies ACCA in this case. For those who favor strong enforcement of individual rights, this case highlights that the federal government can use extreme federal sentencing provisions to undermine not only gun rights, but also trial rights and liberty rights.
Some related Second Amendment posts:
- Another good test case for real fans of the Second Amendment
- Hunting, pardons and a Second Amendment claim?
- SCOTUS takes new gun case ... is this a Heller tea leaf?
- More thoughts about the scope of Second Amendment rights
Georgia spending more than a billion dollars on its prisons
As detailed in this interesting local article, the state of Georgia is continuing to spend more than a billion taxpayer dollars on its prison system every year. Here are the particulars:
The $21 billion budget currently awaiting Gov. Sonny Perdue's signature devotes $1.2 billion to the state's prison system. If signed as is, 2009 will mark the third consecutive year taxpayers have footed a billion-dollar bill to fund the Georgia Department of Corrections, now the fifth-largest prison system in the nation with nearly 60,000 inmates and more than 140,000 probationers.
One in 15 Georgians is under correctional supervision, be it prison, parole or probation, which is far higher than the national average of one in 35, according to the Department of Corrections. And prison costs in the state show few signs of slowing, observers say, increasing the likelihood that prisons will soon face increasing competition for state funding alongside education, transportation and social services.
The Georgia Budget and Policy Institute predicts offenders sentenced between now and 2015 may add about $10.8 billion in capital and operating costs to the prison system's budget in that time. That would push the prison budget past the $9.8 million the state currently spends on education. While the rising costs have forced new approaches to the way the state punishes and rehabilitates inmates, corrections officials face the task of juggling the financial effects of longer sentences with the graying of the prison population, both of which push expenditures higher.
The situation is tricky for taxpayers. Like many people, Bobby Parker, 71, of Augusta wants stiffer penalties for criminals. But he said he is already taxed too much for a system he believes is too lenient. The state's 27 percent recidivism rate is evidence of that, he said. "A lot going on in this world nowadays -- our justice system has allowed," Parker said. Parker said prisoners should work off their debt to society, rather than fill prisons. "I think they ought to be put on a chain gang and work it off," Parker said.
The advent of mandatory minimum sentences, an accompanying "two strikes and you're out" policy and more stringent parole guidelines enacted since the mid-1990s have created a surge in the state's prison population, with more convicts being put behind bars and remaining there longer. The effect is that for every 18,000 prisoners headed out of prison each year, 20,000 take their place, Czachowski said. The population behind bars is forecast to continue that trend in coming years, he said.
Increases in the number of inmates puts direct pressure on the cost of housing them. State prisons have expanded capacity by more than 150 percent since 1990, according to the Department of Corrections.
One factor behind the mounting costs, and perhaps one of the greatest challenges in the future, is that baby boomers commit crimes, too. Inmates age 50 and above -- the threshold for counting older prisoners -- numbered less than 600 in 1979. By 2007 their ranks had ballooned just shy of 6,500, according to the department. Each year since has seen an increase in the number of inmates 50 or older.
The swelling population of older inmates has helped drive up the amount spent on health care, to which all inmates have a constitutional right. From 1997 to 2007 prison health care costs soared 160 percent to $180 million, according to a Georgia Budget and Policy Institute analysis. The prison system considers inmates above 50 part of its geriatric population because their past lifestyles generally cause them to show the same physical aging signs of someone 60.
I had a feeling that the baby boomers were somehow responsible for all these crime and punishment problems.
May 12, 2008
SCOTUS does a little spring crim law cleaning
As detailed over at SCOTUSblog, the Supreme Court was back in action today issuing one little opinion about jury selection procedures and an order list that included one cert grant in a capital habeas case and some Gall GVRs. This AP story provides background on the new cert grant, and SCOTUSblog has the cert papers linked here.
Though all this SCOTUS action is involves crim law, it still feels as though the Justices are still mostly clearing away docket debris in anticipation for the big rulings to come in this Term's more high-profile cases.
Recent related post:
Judge Young's latest take on modern federal sentencing dynamics
Last week, US District Judge William Young of the District of Massachusetts issued another interesting (and lengthy) opinion about the modern state of federal sentencing in United States v. West, No. 06-10281 (D. Mass. May 7, 2008) (available here). Judge Young's sentencing work always merits attention, and West does not disappoint. There is too much ground covered in West to allow a simple summary, but here is a starting paragraph to provide a flavor of what follows:
Here, the derivation of the particular sentence imposed is fairly straight forward. Nevertheless, as the consequences of disparagement and delay evident in this case so well demonstrate two particularly unfortunate and persistent artifacts of that now thoroughly discredited oxymoron — mandatory guidelines — a decent respect for sentencing consistency requires that I frankly admit my own complicity in such unfortunate persistence and explain how my institutional approach to criminal sentencing has evolved.
What will the new libertarian presidential candidate say about mass incarceration and the drug war?
CNN is reporting here that former Republican Representative Bob Barr "formally jumped into the White House race Monday as a candidate for the Libertarian Party's presidential nomination." Here's more:
Barr, the onetime darling of conservatives who led the impeachment fight against former President Bill Clinton, said he is running because voters want a choice beyond the two political parties. "They believe that America has more and better to offer than what the current political situation is serving up to us," he said Monday at the National Press Club in Washington. "The reason for that is very simple, they believe in America as I believe in America. We believe in an America that is not and should not be and should never be driven by fear as current policies on behalf of both parties are in this country."
I consider mass incarceration and the drug war to be two great examples of policies embraced by both parties which are "driven by fear," and I sincerely believe that "America has more and better to offer" on these fronts. Notably, this Atlantic.com post notes that Barr's campaign slogan is "Liberty for America." This slogan could certainly foreshadow opposition to mass incarceration and the drug war in modern America.
Disappointingly, what appears to be Barr's official website has very little discussion of criminal justice issues. However, these quotes from this "Issues" page on the website hint that Barr might now be the presidential candidate most likely to complain about extreme government power in the criminal justice system:
"The nation’s founders drafted the Constitution to sharply limit the federal government’s powers. The horrors perpetrated by the many collectivist tyrannies of the 20th Century demonstrate that the danger of government, any government, violating individual liberty is greater today than when America was founded."...
"The sustained government attack on the sanctity of the rights of the individual, including their right to be secure in their privacy and property, has created a moral and Constitutional crisis. America’s elected officials at all levels must renew their respect for the law and work to protect the rights of individuals."...
"Finally, an increasingly intrusive Nanny State is watching over our nation, meddling in the lives of its citizens. New measures, often rushed through legislatures and regulatory agencies with little consideration or thought, seek to control ever more aspects of people's lives.... It is time to again trust individuals to make their own decisions. At the core of libertarianism is a trust in and respect for the personal choices of every individual. All Americans should be free to decide what is best for themselves and their families."
Some related general posts on Campaign 2008:
How many have sought off death row using Atkins?
Thanks to How Appealing I saw this intriguing article in the Cleveland Plain Dealer headlined, "Six felons ruled retarded are spared execution." Here are snippets:
Six men are likely to die in prison, but not at the hands of an executioner. They were removed from Ohio's death row because they are mentally retarded and judges ruled they qualified under a 2002 U.S. Supreme Court ruling that it is cruel and unusual punishment to execute retarded inmates....
Five other men on death row say they are mentally retarded, including James Were, 51, who was sentenced to death for killing guard Robert Vallandingham in the 1993 Lucasville prison riot. The Ohio Supreme Court heard Were's arguments in February....
It is not known how many death row inmates nationwide have filed claims....
The DPIC's page on mental retardation does not have any statistics concerning the number of inmate bringing or succeeding with Atkins claims. I would guess that hundreds of defendants have brought claims based on Atkins, but I would also guess that only some of those claimants have made it off the row. I wonder if anyone is trying to track these matters: it would make a very interesting case-study in the practical implementation of a notable constitutional holding concerning the administration of capital punishment.
Examining the efficacy of sex offender residency restriction
A helpful reader pointed me to this new research article, titled "Does Residential Proximity Matter? A Geographic Analysis of Sex Offense Recidivism," appearing in the April 2008 issue of Criminal Justice and Behavior. Here is the abstract:
In an effort to reduce sex offense recidivism, local and state governments have recently passed legislation prohibiting sex offenders from living within a certain distance (500 to 2,500 feet) of child congregation locations such as schools, parks, and daycare centers. Examining the potential deterrent effects of a residency restrictions law in Minnesota, this study analyzed the offense patterns of every sex offender released from Minnesota correctional facilities between 1990 and 2002 who was reincarcerated for a new sex offense prior to 2006. Given that not one of the 224 sex offenses would have likely been prevented by residency restrictions, the findings from this study provide little support for the notion that such restrictions would significantly reduce sexual recidivism.
May 11, 2008
Will pro-gun commentators assail politicians who dis the Second Amendment rights of former felons?
In the wake of pro-gun talk on the campaign trail, commentators are noting the new eagerness of Democratic candidates to embrace the Second Amendment. For example, John McCormack has this Weekly Standard piece titled "We're All Gun Nuts Now: The Democrats sidle up to the Second Amendment," and David Kopel has this Townhall piece titled "Gun Owners For Hillary?".
Both commentators are justifiably suspect about the Democrats candidates true views on the Second Amendment: McCormick notes that "both contenders for the Democratic presidential nomination [are] evading the gun control issue [before the Supreme Court in Heller] as if it were sniper fire"; Kopel asserts that "Senator Clinton no more deserves gun-owner votes than Lord Voldemort deserves the Muggle vote." Both McCormack and Kopel rightly note that the Democratic candidates have not seriously spoken or voted in support of individual gun rights until the Heller case and modern politics made the Second Amendment a hot constitutional provision.
But as I have noted in prior posts, Second Amendment debates and politics could change dramatically if (when?) the Supreme Court rules in Heller that the Second Amendment protects an individual right to keep and bear arms, especially if (when?) sympathetic nonviolent ex-cons challenge broad federal laws prohibiting all felons (and domestic violence misdemeanants) from any and all gun ownership. I suspect and fear that even consistently pro-gun politicians will dis efforts by felons to assert Second Amendment rights.
I wonder if McCormick and Kopel and other commentators will then take these politicians to task for not having the courage of their pro-gun convictions when the persons asserting gun rights are not quite as politically popular.
Some related Second Amendment posts:
- Another good test case for real fans of the Second Amendment
- Hunting, pardons and a Second Amendment claim?
- SCOTUS takes new gun case ... is this a Heller tea leaf?
- More thoughts about the scope of Second Amendment rights
- Thoughtful analysis of the realities of Second Amendment litigation
Developing a SCOTUS short list of district court judges
With this Newsweek essay, headlined "The 2008 Bench Press: The most important decision a president ever makes? It's choosing a Supreme Court nominee," Anna Quindlen reminds us that it is not too early to start obsessing over who might be on the presidential candidates' SCOTUS short list. Though I have (and others have) blogged this topic before, my recent great experience at the Sixth Circuit Judicial Conference reminded me how many federal district judges would make great Justice material.
In this post from 2005 during the last round of nomination debates, I argued that the Supreme Court could really benefit from having a Justice with trial court experience. Remarkably, it has been nearly half a century since the Supreme Court has even a single Justice with experience as a federal district court judge, and I think the Justices' confusing work in various arenas (especially sentencing) reflects a lack of practical district court wisdom.
With all these thoughts in mind, I hope readers might use the comments to suggest great federal district judges for the next Supreme Court vacancy. On this day of honoring moms, perhaps female district judges should be placed at the top of the list. More generally, all shrewd SCOTUS watchers know that various matters of personal demographics — age, race, gender, religion, geography — may be of considerable concern to those selecting the next nominee to the Supreme Court.
Some related SCOTUS short-list posts:
- Insider myopia and the diverse benefits of a short bench
- Does SCOTUS need a trial judge?
- Great insights on SCOTUS and criminal justice
- Brave New Justice and sentencing issues
- Will the next SCOTUS nominee have any criminal law background?
A prison celebration of Mothers' Day
This AP article, headlined "Nursery programs allow imprisoned moms, newborns to bond," is fitting for the day. Here is an excerpt:
New York has had prison nurseries for more than a century; Washington, Ohio, California and Nebraska started ones in recent years, and West Virginia is preparing to launch one, too. The programs come at a time when the nation’s female inmate population is rising.
The Bureau of Justice Statistics shows the number of women in prisons and jails jumped from more than 163,000 in 2000 to nearly 210,000 in mid-2006, fueled largely by an increase in drug convictions that carry mandatory sentences. Many of those inmates are mothers who experts say benefit from staying with their children, even if it’s behind bars.
The Ohio Reformatory for Women in Marysville, whose nursery program Indiana modeled, has seen 14 of its 128 participants re-offend, an 11 percent recidivism rate compared with the institution’s rate among all inmates of about 30 percent, spokeswoman Elizabeth Wright said. New York also has seen a dropoff, said Linda Foglia, spokeswoman for that state’s Department of Correctional Services.
Indiana hopes for similar results with its program, funded through a $122,000 grant from the U.S. Department of Health and Human Services. The Wee Ones Nursery at the 136-year-old Women’s Prison is open to up to 10 imprisoned mothers who are the legal guardians of their children, have never been convicted of violent crimes, and have less than 18 months left on their sentences.
The nursery staff includes a pediatrician and a nurse. Inmates who serve as nannies must have nonviolent offenses and reading levels of eighth grade or higher; they also must complete a parenting class. The mothers receive courses on postpartum care, child development, shaken baby syndrome and other topics. “We hope that we’ll continue to make the family the unit that it should be and strengthen those that are going back out into the community,” prison Superintendent Zettie Cotton said.