May 24, 2008
More proof all hot political issues become federal sentencing matters
Two very different items in this news confirms what I love to tell my students: every hot political issue will in some way and at some time become a sentencing matter. Here is today's evidence:
1. The New York Times has this big story suggesting that the Bush Administration is now eager to make federal crimes out of immigration cases that had been previously dealt with civilly. Here is how the story starts:
In temporary courtrooms at a fairgrounds here, 270 illegal immigrants were sentenced this week to five months in prison for working at a meatpacking plant with false documents. The prosecutions, which ended Friday, signal a sharp escalation in the Bush administration’s crackdown on illegal workers, with prosecutors bringing tough federal criminal charges against most of the immigrants arrested in a May 12 raid.
Until now, unauthorized workers have generally been detained by immigration officials for civil violations and rapidly deported. The convicted immigrants were among 389 workers detained at the Agriprocessors Inc. plant in nearby Postville in a raid that federal officials called the largest criminal enforcement operation ever carried out by immigration authorities at a workplace.
Matt M. Dummermuth, the United States attorney for northern Iowa, who oversaw the prosecutions, called the operation an “astonishing success.” Claude Arnold, a special agent in charge of investigations for Immigration and Customs Enforcement, said it showed that federal officials were “committed to enforcing the nation’s immigration laws in the workplace to maintain the integrity of the immigration system.”
The unusually swift proceedings, in which 297 immigrants pleaded guilty and were sentenced in four days, were criticized by criminal defense lawyers, who warned of violations of due process. Twenty-seven immigrants received probation. The American Immigration Lawyers Association protested that the workers had been denied meetings with immigration lawyers and that their claims under immigration law had been swept aside in unusual and speedy plea agreements.
2. The Tuscaloosa News has this notable commentary noting the First Amendment issue being raised in a high-profile criminal appeal:
When former Gov. Don Siegelman called Thursday to get my email address so he could sent a copy of his 99-page appeal of his federal conviction on fraud charges, he said to pay close attention to the fifth argument his team of attorneys were making. It maintains that the court violated his First Amendment rights by increasing his sentence to more than seven years "based on out-of-court statements on matters of grave concern."
Essentially, what the former governor, who spent nine months in prison before being sprung by the 11th Circuit Court of Appeals on bond, says is that presiding and sentencing Federal Judge Mark Fuller punished him for speaking out against what he saw were injustices in his case and the political machinations surrounding it.
May 23, 2008
Seeking any and all reports from USSC conference
I am eager to hear reports of any kind from the Seventeenth National Annual Seminar on the Federal Sentencing Guidelines, which wrapped up today down in Florida. I was supposed to attend/participate in this always amazing event, but life got in the way of my plans. Consequently, I hope any readers who were able to attend might report on any notable moments from the event.
Notable Adam Walsh Act ruling from Eleventh Circuit
In a (per curiam) ruling discussing (and avoiding) various issues related to the Adam Walsh Act, the Eleventh Circuit today in US v. Madera, No. 07-12176 (11th Cir. May 23, 2008) (available here), reverses one of the first district court rulings concerning the federal crime of "failing to register as a sex offender in violation of 18 U.S.C. § 2250(a) and the Adam Walsh Child Protection and Safety Act of 2006." As highlighted in these passages, however, the ruling is quite narrow:
Because Madera’s indictment concerns his failure to register during the gap period between SORNA’s enactment and the Attorney General’s retroactivity determination, he cannot be prosecuted for violating SORNA during that time. Thus, his indictment is due to be dismissed, and the judgment of the district court is reversed.
Having decided the case on this basis, we need not reach the important constitutional questions raised in Madera’s appeal.
"Habeas Corpus and State Sentencing Reform: A Story of Unintended Consequences"
This title of this post is the title of this new piece from Professors Nancy King and Susan Sherry appearing on SSRN that looks like a must-read for the long weekend. Here is the abstract:
This Article tells the story of how fundamental shifts in state sentencing policy collided with fundamental shifts in federal habeas policy to produce a tangled and costly doctrinal wreck. The conventional assumption is that state prisoners seeking habeas relief allege constitutional errors in their state-court convictions and sentences. But almost twenty percent of federal habeas petitions filed by state prisoners do not challenge state-court judgments. They instead attack administrative actions by state prison officials or parole boards, actions taken long after the petitioner's conviction and sentencing. Challenges to these administrative decisions create serious problems for federal habeas law, which is designed to structure federal review of state-court judgments, and is ill suited for review of administrators' actions. Courts find themselves trying to squeeze square pegs into round holes, and the confusion is particularly intolerable given the stakes for prisoners, state prison systems, and federal courts. This Article is the first to identify this significant problem, to analyze its disparate and complicated causes, and to propose a simple and rational way for Congress to respond.
May 22, 2008
A last-minute (and unexpected?) capital commutation in Georgia
As detailed in this Reuters article, a "parole board in the state of Georgia spared a convicted killer from execution hours before he was due to die by lethal injection on Thursday and commuted his sentence to life in prison." Here are more details:
The Georgia Board of Pardons and Paroles made its decision less than three hours before Samuel David Crowe, 47, was to be executed, according to a spokeswoman for the state's prisons. "After careful and exhaustive consideration of the requests, the board voted to grant clemency. The board voted to commute the sentence to life without parole," the parole board said....
Crowe was not present at the parole board hearing in Atlanta. He had already eaten his last meal and was preparing to enter the execution chamber at the prison in Jackson, Georgia, Mallie McCord of the Georgia Department of Corrections said.
In March 1988, Crowe killed store manager Joseph Pala during a robbery at the lumber company in Douglas County, west of Atlanta. Crowe, who had previously worked at the store, shot Pala three times with a pistol, beat him with a crowbar and a pot of paint. Crowe pleaded guilty to armed robbery and murder and was sentenced to death the following year....
At Thursday's hearing, his lawyers presented a dossier of evidence attesting to his remorse and good behavior in jail, according to local media reports. The lawyers also said he was suffering from withdrawal symptoms from a cocaine addiction at the time of the crime.
I have not followed this case closely, so I do not know if this commutation is a complete surprise. Still, as this local article highlights, this is "only the third time since 1995 that the Pardons and Parole Board has commuted a death sentence."
Noting disparities in bail pending appeal, as Snipes gets bail
Ellen Podgor has this interesting list of notable convicted defendants in high-profile white-collar cases who were granted or denied bail pending appeal. As detailed in this short local story, Wesley Snipes is now to be added to the list of convicted defendants granted bail pending appeal.
Some related Wesley Snipes posts:
Lots of sentencing action in the circuits
A quick review of the circuit court websites reveals a whole lot of recent sentencing action: I see notable new rulings posted today coming from the First, Fifth, Sixth, Eighth and Eleventh Circuits. Perhaps the most notable of the bunch are the Eleventh Circuit's work protecting a defedant's allocution right in US v. Carruth, No. 07-12060 (11th Cir. May 22, 2008) (available here), and the Eighth Circuit's rejection of the attempt by a district court to impose alternative sentences in US v. Desantiago-Esquivel, No. 07-1170 (8th Cir. May 22, 2008) (available here).
As long-time readers may recall, I wondered about and questioned (as did others) the use/encouragement of "alternative sentences" during the post-Blakely period of constitutional uncertainty in the federal sentencing system. Against that backdrop, these statements coming from the Eighth Circuit in Desantiago-Esquivel are intriguing:
We do not read the Gall list of procedural impediments to be all inclusive. The procedure utilized in this case, imposing alternative sentences, also constitutes a significant error and requires reversal. Section 3551(b) states the types of authorized sentences and does not authorize alternative sentences. 18 U.S.C. § 3551(b). The district court is only authorized to impose “a term of imprisonment.” 18 U.S.C. § 3551(b)(3) (emphasis added). District courts imposed alternative sentences only after Blakely in the event that the Guidelines were found unconstitutional. See United States v. White, 439 F.3d 433, 434-35 (8th Cir. 2006) (discussing the district court’s imposition of alternate sentences). Further, the type of alternative sentences used in this case involves a change of fact — if Desantiago-Esquivel voluntarily stipulates to removal — that is wholly in Desantiago-Esquivel’s control, that occurs after sentencing, and that has significant legal consequence without any judicial oversight. This is distinct from the post-Blakely alternative sentences that were wholly dependent on changes in the law.
Since a significant procedural error occurred, we will not speculate as to what sentence the district court might have imposed if it imposed a single sentence on Desantiago-Esquivel. We leave it to the district court to impose what it considers to be a reasonable sentence in the first instance. To the extent either party believes the sentence to be unreasonable, we will consider the appeal issues at that time, taking into consideration the district court’s reasons for imposition of the sentence it imposes and the arguments of the parties.
When noting this case to me, a helpful reader rightly suggested that the Eighth Circuit's reversal here makes the creative federal sentence given yesterday to boy-band mogul Lou Pearlman (discussed here) look even more legally questionable.
Alabama looks to God squad to do its public safety job
This great post at The Faculty Lounge pointed me to this stunning local article about Alabama Governor's formal outreach to faith-based groups to help with prison reentry. The full article is a must-read, and here are just a few snippets:
Gov. Bob Riley on Tuesday asked the state's churches to shoulder the burden of caring for newly released inmates, saying the state lacks the flexibility and funds to help them successfully re-enter society.
Leaders from churches and charitable groups were asked to provide a wide range of services to former inmates, including employment assistance, housing, clothing, health care and cash. Riley said the state's churches can rise to the challenge just as they do in response to natural disasters such as hurricanes. "If we can motivate the faith-based community in the state the way we do during an emergency, then we can make a difference," Riley said to a group of about 500 people, mostly religious leaders.
Bill Johnson, director of the Alabama Department of Economic and Community Affairs, said the state releases 11,000 inmates a year and isn't capable of providing the services necessary to help them readjust. Even if the state had the funds, such programs aren't popular with taxpayers, he said. The state will provide no direct funds to the program, called the Community Partnership for Recovery and Re-entry, but will coordinate the efforts of the churches and other volunteer groups. "We're admitting we can't solve the problem," Johnson said.
At a meeting that vacillated between policy seminar and revival, state officials outlined their needs to religious leaders, who said they view the program as an opportunity to spread the word of God. Deborah Daniels, state director of the Prison Fellowship Ministry, drew a chorus of "amens" when she said faith is a necessary component of rehabilitation. "We allowed government to come in and take over what God's people are supposed to do," she said. "We talk about crime. But crime is sin. Apart from God, every child is troubled." Many in the audience came to their feet, some waving their arms and shouting affirmation....
Alex Luchenitser, senior attorney with Americans United for Separation of Church and State, said it's too soon to know whether the program will raise constitutional issues. But if the state government's involvement with the program ends with referring inmates to churches, then it likely would pass constitutional muster. "There's certainly nothing wrong with religious charities providing care for inmates and recently released inmates," he said.
Some related posts on faith-based prison programs:
- Is faith the best thing to happen to prisons since ... the faithful started prisons?
- Interesting Ohio report on correctional faith-based initiatives
- Another report tentatively praising faith-based prisons
- The virtues of faith-based prisons
- Interesting examination of faith-based prison movement
- A thoughtful, but disappointing, attack on a faith-based prison program
- Religion, sentencing and corrections
- Having faith in prisons
New study indicates success of state guideline systems
This AP story reports on a new study providing empirical praise for states moving to guideline sentencing systems (even voluntary ones). Here are snippets from the AP report:
State sentencing guidelines virtually erase discrimination in criminal punishments, regardless of how much judges are allowed to deviate from recommended prison terms, according to a study released Thursday.
The National Center for State Courts examined significantly different guidelines in three states: Virginia, where the guidelines are voluntary; Michigan, which offers some judicial discretion and Minnesota, which has the most mandatory system of the three. The study concluded that the guidelines in each of those states result in consistent sentences that generally are not influenced by race and economic status.
Wiping out racial discrimination was the major goal of a sentencing guidelines movement that began in the 1970s. "These findings stand in marked contrast to the inconsistent and discriminatory sentencing practices documented in all three states prior to the implementation of guidelines," the researchers wrote.
The study was released at a National Governors Association retreat on sentencing and prison issues in Jacksonville, Fla. At least 20 states and the District of Columbia use guidelines that consider the nature of the offense and the defendant's criminal history. Minnesota, Michigan and Virginia were studied because their guidelines allow varying degrees of judicial discretion.
"No matter what form the guidelines took, they seemed to eliminate any measurable discrimination," Michigan State University political science professor Charles W. Ostrom, one of the report's four authors, said in a telephone interview. He said that finding was particularly surprising in Virginia. "The voluntary nature of the Virginia guidelines do not preclude it from having real positive effects," Ostrom said. "We thought it would not compare favorably to Michigan and Minnesota."...
The study by the nonprofit, Williamsburg, Va.-based NCSC was funded by the National Institute of Justice, the research arm of the U.S. Department of Justice. The report was financed by the Pew Charitable Trust's Center on the States.
I cannot seem to find a copy of this report on the web anywhere, but I will post this important new research as soon as I can get my hands on it.
UPDATE: A helpful reader sent me this link to the NCSC report, which is titled "Assessing Consistency and Fairness in Sentencing: A Comparative Study in Three States." I see lots of interest in this document, which I hope to blog more about in the near future.
May 21, 2008
District court opinion takes apart career offender guideline
Providing a fitting complement to Judge Nancy Gertner's recent work on what "similarly situated" means under the guidelines (discussed here), Judge Lynn Adelman has a new opinion deconstructing the career offender rules in US v. Seib, No. 07-CR-215 (E.D. Wisc. May 16, 2008) (available for download below). In addition to covering lots of important post-Booker ground, Judge Adelman drops this telling footnote in Seib which speaks volumes about modern federal sentencing realities:
This case demonstrated how the complexity of the career offender guideline can flummox even the shrewdest lawyers and probation officers, with potentially dramatic consequences. Defendant faced a guideline sentence more than three times longer under the career offender provision. One wonders how many prisoners languish behind bars for years under an improper career offender designation.
Life and death realities as states press on with the death penalty
Lots of death penalty news and notes being well covered in the blogosphere:
- SCOTUSblog here reports that the Supreme Court has denied stay requests from the Mississippi defendant scheduled to be executed by tonight
- Grits for Breakfast here ruminates on why a jury yesterday rejected a death sentence for the person convicted of murdering on of Houston's finest police officers
- StandDown here provides updates on the state battle over lethal injection protocols in Ohio
And Capital Defense Weekly has effective additional coverage and links on these topics and others. Also, I notice that the CDW execution data suggests we could have as many as nine executions over the next four weeks.
UPDATE: The AP has the very latest news here:
Mississippi corrections officials say convicted murderer Earl Wesley Berry has been executed at the state penitentiary. Berry is the second U.S. inmate executed since the Supreme Court upheld Kentucky's lethal injection procedure in April. His appeals were denied by the high court and he was put to death by injection at 6:15 p.m. CDT Wednesday.
A Ohio judicial plea urging the Ohio legislature to fix post-Blakely mess
As detailed in this official press release and this local news report, a "134-year prison sentence for a man who tied up four people while ransacking their German Village-area homes does not violate the U.S. constitutional ban on cruel and unusual punishment, the Ohio Supreme Court ruled this morning." This ruling in State v. Hairston, No. 2008-Ohio-2338 (Ohio May 21, 2008) (available here), is hardly surprising nor especially notable but for some interesting dicta arising in a high-profile local case.
The first bit of notable dicta comes at the end of the majority opinion, where the court issues this general call for what might be called sentencing civility: "When imposing sentence, courts must be faithful to the law, not be swayed by public clamor, media attention, fear of criticism, or partisan interest, and be mindful of the obligation to treat litigants and lawyers with dignity and courtesy." Even more interesting is a call for legislative reform in the concurring opinion by Justice Lanzinger:
I write separately to urge the General Assembly to act to repair the damage done to Ohio’s criminal sentencing plan as a result of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, this court’s response to the United States Supreme Court decision in Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403....
Unfortunately, the majority’s affirmation of Hairston’s sentence can be interpreted as effectively legitimizing noncapital life sentences and extending them to situations where no one is killed or seriously injured. It is a rare victim who does not consider the crime committed by an offender to be undeserving of a maximum penalty. When a defendant is convicted of multiple offenses, the community may now expect maximum and consecutive prison terms as the default sentence. It will take a courageous judge not to “max and stack” every sentence in multiple-count cases....
If the concerns expressed over prison crowding are legitimate, and the General Assembly is considering legislation that allows for the diversion of more nonviolent offenders as well as greater clemency powers for the executive branch, see 2008 Sub.H.B. No. 130, it may also well consider rewriting the statutes to restore guidelines for imposing consecutive sentences. We are holding that a 134-year sentence is not cruel and unusual and does not violate the Eighth Amendment or Section 9, Article I of the Ohio Constitution. It is the General Assembly’s obligation to decide if such a sentence will become common.
Creative ('n suspect?) approach in notable white-collar case
This report from the Orlando Sentinel of a high-profile white collar sentencing is sure to stir some buzz:
Boy-band mogul Lou Pearlman was sentenced this morning to 25 years in federal prison for running a lengthy, systematic con that artificially inflated his net worth and cheated people out of $300 million.
During Pearlman's sentencing in U.S. District Court this morning, Senior U.S. District Judge G. Kendall Sharp offered Pearlman an incentive to pay back his investors: For every $1 million he puts back in investors' pockets, he gets one month off of his sentence. Since Pearlman's sentence is for 300 months, he can avoid prison altogether if he forks up the cash. "I'm most concerned for the investors, even more so than the institutions," Sharp said.
Pearlman, 53, was once the toast of Orlando. His financial empire once included popular musical acts the Backstreet Boys and 'N Sync; an airplane-charter business; and Church Street Station, an iconic piece of real estate in Orlando's downtown. The boy-band impresario admitted in a March plea hearing to running the scam. He pleaded guilty to two counts of conspiracy, one count of money laundering and one count of making a false claim in a bankruptcy during that hearing -- charges worth a maximum 25-year prison sentence.
I have lots and lots of thoughts about this, but I want to do more reading and reflecting on the case before opining. While I ruminate, comment away.
New sentencing opinion assails guideline conception of "similarly situated"
District Judge Nancy Gertner is in fine form with a new opinion in US v. Garrison, No. 07cr10142 (D. Mass. May 20, 2008) (available for download below). Though covering lots of important post-Booker ground, Judge Gertner takes particular aim at the sentencing guidelines concept of "similarly situated" as highlighted by this passage:
The Guidelines define "similarly situated" only with reference to the particular guideline categories. If a defendant had an offense level of 14 and a criminal history of I, the Guidelines assumed that you were similarly situated to other 14s and Is. But in this case -- and perhaps many others -- that is a false assumption. Similarly situated with respect to the Guideline categories does not necessarily mean similarly situated with respect to the defendant's actual role in the criminal endeavor or his real culpability. The individual supplying the drugs, for example, could have been a first offender, with a criminal history I, not because he had been crime-free all of his life but because he did not "do" street drug deals and thus rarely encountered government agents. And the reverse, an offender with a high criminal history score, could have been caught in this drug sweep even when his drug dealing was episodic, when he had tried to change the direction of his life.
The numbers -- the Guideline computation -- could mask real differences between offenders, in effect, a "false uniformity." Sandra Guerra Thompson, The Booker Project: The Future of Federal Sentencing, 43 Hous. L. Rev. 269, 275 n.25 (2006); Michael M. O'Hear, The Myth of Uniformity, 17 Fed. Sent'g Rep. 249 (2005). It is especially important, now that the Guidelines are advisory, that judges are charged with looking beyond the Guidelines categories and that they know what their colleagues have done in comparable cases. The new discretion will be influenced, as it should be, by the precedents of the court: a true common law of sentencing.
May 20, 2008
An Atkins claim and a lawyer's mistake before SCOTUS
As detailed in this new post at SCOTUSblog, a last-minute appeal to the Supreme Court in a Mississippi capital case presents an intriguing twist on some always nettlesome death penalty issues. Here is a snippet from Lyle Denniston's great post:
[T]he core issue [ Earl Wesley Berry of Mississippi] raises in both the new state case and the original habeas plea [concerns] the question of a death-row inmate’s right to a hearing — which Berry’s lawyers say he has never had in state court — on a claim of mental retardation. Because the Supreme Court has imposed a categorical bar on executing any mentally retarded inmate, the appeals argue, an inmate with credible evidence of that mental deficiency must have a chance to present it before being put to death.
Both the state Supreme Court and the Fifth Ciricuit have turned aside Berry’s most recent challenges because of “procedural defaults,” without examining his new evidence about retardation, and without exploring what caused those legal flaws. In both situations, Berry’s attorneys have told the Supreme Court, the problem was traceable to defense lawyers who used a statement of a political scientist, rather than a mental health professional, to try to make a case for retardation.
Some strange stuff in child porn prosecutions
This CNN report about today's events in the child porn trial of recording artist R. Kelly provides an amusing twist on a serious subject: before "the 25-minute sex tape at the heart of the R. Kelly child pornography case" was played in a "packed Chicago courtroom," the courtroom sketch artists "were warned that if they drew any depiction of the acts on the tape, they, too, could be charged with child pornography." As strange as that may sound, a more bizarre federal child porn case was decided today by the First Circuit in a ruling that led a renown blogger at AL&P to exclaim "Sweet Jesus on a Popsicle Stick!".
The First Circuit case producing this reaction is US v. Ortiz-Graulau, No. 06-1768 (1st Cir. May 20, 2008) (available here). In this remarkable case, the 38-year-old defendant "carried on a consensual sexual relationship with a fourteen-year-old female." But that what got him in trouble: the "age of consent in Puerto Rico was fourteen at the time." Rather, the defendant's mistake was to take a few dozen sexually explicit pictures with his (too) young girlfriend. Though the defendant apparently never tried to sell or distribute these pictures — he was reported by the film developer at his local Walgreens drugstore — the First Circuit affirms his conviction (requiring 15 years in federal prison) because he technically took illegal pictures of his legal relationship. Our federal tax dollars at work.
Latest USSC data perhaps suggesting Gall effect
Providing a great companion to its new crack retroactivity data (reported here), the US Sentencing Commission has some new post-Gall sentencing data now up on its website. The USSC's updated data report, which can be accessed here, is described this way:
May 2008 Preliminary Post-Kimbrough/Gall Data Report: A updated set of tables presenting preliminary data on fiscal year 2008 cases sentenced on or after December 10, 2008. The numbers are prepared using data received, coded, and edited by the Commission by May 8, 2008.
Notably, the new data show that under 60% of all post-Gall sentences are now falling within the guidelines, though this fact is mostly a product of prosecutors now requesting a below-range sentence in over 25% of all cases.
As regular readers know, there are many ways to interpret all this data and the overall stability of the federal sentencing system still is perhaps the most prominent story to be mined. Still, one could reasonably assert that Gall has further contributed to a slow but steady migration away from guideline ranges, even though prosecutors and defense attorneys are wise to counsel defendants that most sentences will still come within the guidelines recommended ranges.
A ruling that must be wrong if the Second Amendment is about the right of self-defense
The Third Circuit today in US v. Alston, No. 06-1559 (3d Cir. May 20, 2008) (available here), affirms a mandatory 15-year felon-in-possession conviction in yet another case that has to give serious pause to real fans of the Second Amendment. Here are the basics:
Alston admitted to possessing a firearm but he claimed it was necessary for self-defense. The uncontested facts [show] ... that in June 2001, he was robbed and shot five times at 45th and Sansom Streets in Philadelphia. After returning home from the hospital, Philadelphia police officers asked him to prosecute. On the basis of Alston’s identification, two men were arrested and tried. Alston testified against the men at the preliminary hearing and at trial, having received police assurances of protection. The two defendants were acquitted of all charges.
After the acquittal, various people told Alston “to watch [his] back because they heard [the defendants were] out looking for [him], to get revenge from [him] getting them arrested.” Nevertheless, Alston did not change his address and eventually returned to work after recovering from his injuries.
On the day he was arrested, September 30, 2002, around 4:45 p.m., Alston was transporting his daughter home on his mountain bike and rode past Louis Bentley, one of the acquitted suspects against whom he had testified. According to Alston: “I was riding past with my daughter but [Bentley] was talking to somebody and I heard him, he said he’s gonna get me, he said that’s the dude that got me arrested in 2001, he said he was gonna get me.” Alston immediately took his daughter home then secured a revolver from his mother’s house, in order, he said, to protect himself from Bentley. Alston left his mother’s house on his bicycle, carrying the gun and wearing a bulletproof vest. As noted, Alston was arrested around 10 p.m. that same night.
Under these undisputed circumstances, the Third Circuit affirms the district court's decision that Alston should not be allowed to argue the defense of justification when being prosecuted for felon-in-possession. Here is the heart of the panel's analysis:
To hold otherwise would immunize a convicted felon from prosecution for carrying a firearm solely based on a legitimate fear for life or limb. Someone in Alston’s circumstances must show more than a legitimate fear of life and limb, as possession of a firearm by a convicted felon in the hope of deterring an assault is unlawful. Congress has not allowed it, and courts have only allowed the defense where the immediacy and specificity of the threat is compelling, and other conditions are met.
It can be reasonably debated — and there is an interesting jurisprudential debate among the circuits — as to whether Congress intended to completely prevent all previously convicted persons from possessing a firearm when facing "a legitimate fear for life or limb." But, whatever Congress might intend, doesn't this prosecution trouble fans of an individual Second Amendment right?
I have often heard gun advocates claim that the Framers intended the Second Amendment to safeguard an individual natural right of self defense. If the Second Amendment is to be so understood, shouldn't Mr. Alston at the very least be able to argue his justification defense to a jury? (Indeed, had I been advising his lawyer, I would have advocated on these facts seeking jury nullification at trial rather than entering a conditional plea to a charge that carries a mandatory 15-year term.)
Whenever I post about my concern regarding the trampling of the gun rights of former felons, many commentors call reasonable the blanket federal ban on gun possession by anyone previously convicted of a felony. But can anyone really justify placing Mr. Alston in federal prison for 15 years simply because he carried a gun for self-defense for a short period when indisputbly facing "a legitimate fear for life or limb"?
Some recent related posts on potentially lively Second Amendment cases:
- More thoughts about the scope of Second Amendment rights
- Get ready for a Second Amendment rumble, defense attorneys
- Hunting, pardons and a Second Amendment claim?
Recalling the human realities of mass incarceration
A helpful reader sent me a link to this potent essay titled, "Society of the Incarcerated: Acknowledging the Voices of America's Ever-Increasing Prison Population." The lengthy piece is worth a full read; here are some excerpts:
Who talks about prisoners these days? Certainly not the US presidential candidates or most others up for election in 2008, unless it’s in tangential “get tough on crime” rhetoric. In the media, quality coverage such as Jeff Gerritt’s Pulitzer-nominated series on medical care in Michigan prisons, which appeared last year in The Detroit Free Press, is overshadowed by courtroom dramas and legal thrillers....
Authentic communication from and about prisoners exists, but it’s relegated to a niche market outside of most print and online news sources, of influential political blogs, of the catalogues of big publishers, and of the speeches of election year candidates. Presumably, its minimal share of attention is justified because decision makers think their audiences don’t care much about prisons and the people in them.
It’s an odd assumption in the face of the prison industrial complex’s monstrous growth. We incarcerate 500% more people today than we did thirty years ago. The United States is home to a mere five percent of the world’s total population, and 25 percent of the world’s incarcerated population: 2.3 million people, most of whom are incarcerated for nonviolent offenses. And that number doesn’t include those living under the thumb of the criminal justice system: probationers, parolees and those on tethers, the electronic monitoring devices worn by people on house arrest.
This makes the vacuum of nuanced coverage of prisons and prisoners in the media and by the candidates all the more baffling....
[The] 2.3 million men and women and children in prison are real people. While they are disproportionately people of color and poor — hardly the demographic given center stage in media and electoral campaigns — they are connected to other people in a thousand ways. We bear profound responsibility for the prison industrial complex we’ve built. We must notice. Human lives are at stake.
Some related posts on mass incarceration in the US:
Some recent posts on the failure of Campaign 2008 to discuss US incarceration realities:
- Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
- Stuntz nails (some) reasons why Democrats are perhaps most responsible for modern mass incarceration
- Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?
- What will the new libertarian presidential candidate say about mass incarceration and the drug war?
NBA on trial at bad ref's federal sentencing
This New York Times article about the defense submission in preparation for the sentencing of former ref Tim Donaghy suggests the NBA is being indirectly put on trial. Here are the details:
A lawyer for the former N.B.A. referee Tim Donaghy suggested in court papers Monday that games had been influenced by relationships among referees, coaches and players, and that other factors had “prevented games from being played on a level playing field.” The league immediately denounced the charges as unfounded.
According to documents filed by the lawyer, John Lauro, Donaghy provided law enforcement officials with information about N.B.A. matters outside of the government’s original investigation. That included information about the gambling activities of other referees and an instance in which confidential information was suspected of being passed from a referee to a coach.
Lauro filed a letter and several attachments as part of a sentencing memorandum, which is to be considered by United States District Judge Carol B. Amon. Donaghy, who pleaded guilty last August to two felony charges, is to be sentenced July 14. Donaghy could face up to 25 years in prison and a $500,000 fine for receiving payments for inside information on N.B.A. games, including some that he officiated. But he is expected to receive a much lighter sentence because he cooperated with the authorities.
In a footnote to the document, Lauro suggested that the N.B.A. might have “pressured” the United States attorney’s office “into shutting down this prosecution to avoid the disclosure of information unrelated to Tim’s conduct.”...
The N.B.A. dismissed all of Lauro’s charges without responding to specific statements. “The letter filed today on Mr. Donaghy’s behalf contains an assortment of lies, unfounded allegations and facts that have been previously acknowledged, such as the fact that certain N.B.A. referees engaged in casino gambling in violation of N.B.A. rules,” Joel Litvin, the N.B.A. president for league and basketball operations, said in a statement. “The letter is the desperate act of a convicted felon who is hoping to avoid prison time, and the only thing it proves is that Mr. Donaghy is no more trustworthy today than he was when he was breaking the law by betting on N.B.A. games.”
In his letter, Lauro wrote that Donaghy “provided substantial assistance” to the government and asked the judge to impose only probation. “We believe that Tim’s information will lead to future reforms that will change the way in which the N.B.A. conducts itself,” Lauro wrote....
Lauro pointed out that the other defendants in the case, Thomas Martino and James Battista, who did not cooperate with the authorities, were subject to sentences far less severe than that of Donaghy. The prosecutors, Lauro wrote, are “taking a unique approach — punish an early and truthful cooperator more severely than other defendants who acted contrary to the interests of the government.”
Will Willie Mays Aikens be freed as a result of the new crack guidelines?
New sentencing guidelines might earn Willie Mays Aikens an early release from prison. The former Seneca High and S.C. State baseball standout, who found fame and fortune with the Kansas City Royals before losing it all to drugs, could be ordered set free as soon as today.
His fate is in the hands of Laine Cardarella, a federal public defender who filed a stipulation and waiver agreement in Aikens’ name Monday in the Western District Court of Missouri. “We’re hoping he’ll be home soon,” Cardarella said.
In 1994, Aikens was sentenced to 20 years, eight months after being convicted on federal drug and firearms charges.... Since his conviction, those opposed to mandatory sentencing have considered Aikens’ situation a classic case of cruel and unusual punishment.
Before the guidelines were created, the amount of crack in Aikens’ possession (64 grams) would have amounted to a sentence of little more than two years with the possibility of parole. His appeals were denied, and two attempts at gaining a presidential pardon were declined by Bill Clinton and George W. Bush.
On March 3, new crack sentencing guidelines were approved by Congress and made retroactive, affecting Aikens’ sentence. Cardarella, who is filing similar paperwork for 360 people, said about 70 percent of her defendants have had their sentences reduced. Cardarella and Aikens’ lawyer Margaret Love believe he will be released because he has served nearly 14 years. Sentence reductions have ranged from 22 months to seven years.
May 20, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack
NY Times editorial on Second Chance Act
Through this new editorial, the New York Times brings some needed attention to the new federal Second Chance Act. Here are excerpts:
With prison costs soaring, many states are understandably desperate for ways to cut recidivism and increase the chances that newly released prisoners build viable lives. The Second Chance Act, signed into law by President Bush last month, would galvanize the re-entry effort, providing the states with money and guidance. Now Congress must appropriate the promised dollars.
Some states are already leading the way. In Illinois — where the inmate population has doubled since the late 1980s — Gov. Rod Blagojevich has begun a promising re-entry program that could become a national model. The comprehensive plan includes drug treatment, job training and placement and a variety of community-based initiatives designed to help newly released inmates forge successful postprison lives. Illinois is also revamping its parole system by hiring more parole officers and changing regulations so that parolees who commit lesser violations are dealt with in their community — with counseling, drug treatment or more vigilant monitoring — rather than being reflexively sent back to prison....
A fully funded Second Chance Act would help other states develop their own much-needed re-entry programs. The $330 million cost is a small price to pay to reduce prison populations and give more ex-offenders a better chance to make it on the outside.
Some recent related posts:
May 19, 2008
Updated USSC data on crack retroactivity
A set of tables presenting preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2). These cases involve retroactive application of the crack cocaine amendment to the sentencing guidelines (Amendment 706, as amended by Amendment 711) which became effective on November 1, 2007 and which was made retroactive effective March 3, 2008. The data represent cases received and coded by the Commission by May 13, 2008.
I notice once again, when looking through this data and hearing case-processing stories from different regions, that different districts are still taking different approaches to the order in which they address crack retroactivity cases. These different case-processing realities could produce short-term (but perhaps not long-term) differences in district data that may not really represent substantive differences in how crack retroactivity cases are being adjudicated in different regions.
Has Illinois figured out "smart on crime"?
Though perhaps this official press release from the desk of Illinois Governor Rod Blagojevich should be taken with a grain of salt, the reported news suggests that Illinois is doing strong work on the rentry front. Here are snippets from the press release:
Joined by law enforcement officials, community leaders, faith-based leaders and state officials, Governor Rod R. Blagojevich today announced that statewide reforms have led to historic reductions in crimes by former offenders and significant savings for taxpayers. An intensive effort launched by the Governor in fiscal year 2004 to provide incarcerated offenders and parolees with access to education, job training, substance abuse treatment and counseling has led to the lowest conviction rate among parolees in state history, a 23% reduction in arrests among the general parolee population, and a 40% reduction in repeat incarceration among parolees with substance abuse histories who graduated from the Sheridan Drug and Reentry Program. The drop in recidivism has saved the State an estimated $64 million in incarceration costs since 2004....
“Being tough on crime means being smart about fighting crime. The reality is that offenders who are sent to prison are most likely going to be back in our communities sooner or later. And when they return, if they don’t have the skills and support to lead clean and productive lives, they are most likely going to end up committing crimes again. The vicious cycle of recidivism weakens communities, destroys families and puts a huge burden on the State’s finances. That’s why back in 2004 we took launched an aggressive new approach to preparing offenders for reentry into their communities,” said Gov. Blagojevich.
Execution plans gearing up in various states
Though I am still not expecting a major rush of post-Baze executions, the news today from various states suggests that a number of death chambers are going to be a bit more active in the near future:
- From Florida via this story, "Crist wants Schwab execution on July 1"
- From Georgia via this story, "State lifts two men's stays of execution"
And, as detailed in this Washington Post article, the Supreme Court also today "allowed Virginia to set an execution date for a death row inmate challenging the state's method of lethal injection as painful and inhumane." That case is still pending in the Fourth Circuit, however.
If you want to feel good about the Williams ruling...
check out this stunning article by Jamie Satterfield writing in the Knoxville News about efforts to combat child porn producers. The article is titled, "Local, national and global efforts track sex offenders who prey on children," and it highlights how the Internet has changed the dimesions of this problem:
For as long as humans have existed, there have been those among us who view children, even babies, as objects of sexual desire.... But the advent of the Internet has, in the words of a veteran federal prosecutor, "exploded" the crime into a societal issue so huge that it requires a host of agencies and a litany of initiatives to combat.
"I think we're certainly more aggressive in prosecuting these cases, but there's no doubt in my mind the Internet has exploded this," Knoxville Assistant U.S. Attorney Charles Atchley said. "Before, it was very difficult to obtain. You had to visit a location that was selling the material. What the Internet has done is enable individuals in their own homes to go out and look for this material. Now they've got the whole world of it at their fingertips. It's just a terrible problem, a terrible problem."
After reading this article, it is hard not to cheer the Supreme Court's pro-prosecution ruling in Williams today.
Does Williams provide a tea leaf for Kennedy?
As detailed in this post at SCOTUSblog, the Supreme Court today upheld against a congressional child porn criminal provision against a First Amendment challenge:
[T]he Court — after years of repeatedly nullifying Congress’ efforts to stamp out child pornography on the Internet — finally upheld such a law, a 2003 statute that Congress shaped in a way that it hopes would spare it from the same fate as earlier attempts. In an opinion by Justice Antonin Scalia, the Court found that the 2003 law did not reach too far and that it was not vague in its scope. The decision came on a 7-2 vote in United States v. Williams (06-694).
Williams in an interesting read, and I could not help but wonder if this closing paragraph from the majority opinion provides some hint as to the Court's developing views about the capital child rape in the Kennedy case:
Child pornography harms and debases the most defenseless of our citizens. Both the State and Federal Governments have sought to suppress it for many years, only to find it proliferating through the new medium of the Internet. This Court held unconstitutional Congress’s previous attempt to meet this new threat, and Congress responded with a carefully crafted attempt to eliminate the First Amendment problems we identified. As far as the provision at issue in this case is concerned, that effort was successful.
On a busy criminal justice day, SCOTUS applies ACCA broadly in Rodriquez
Continuing its somewhat puzzling approach (and voting paterns) in ACCA cases, the Supreme Court today in United States v. Rodriquez, No. 06-1646 (available here) held that state recidivism enhancements can help trigger ACCA's long sentencing provisions. The vote was 6-3 with Justice Alito writing for the majority and Justice Souter writing a dissent joined by Justices Stevens and Ginsburg.
Based on a quick read, it seems that the Justice avoided some of the intricate constitutional and statutory issues lurking around Rodriquez, but I am going to need a lot more time to process the opinions along with all the other criminal justice work the Justices did today (as summarized here at SCOTUSblog).
I have started my analysis of the SCOTUS work with Rodriquez because it strikes me as the most practically consequential of the decisions handed down today. But readers are encouraged to help me and others chart a path through the Court's other work on child porn in Williams and explosive sentencing enhancements in Ressam.
UPDATE: Rodriquez is a very interesting read, and both the majority and dissent make strong points and cover a lot of intriguing ground. What I find most interesting is Justice Scalia's silence, especially since he tends to be one of the biggest fans of the rule of lenity in construing federal criminal statutes and he has been vocal in prior ACCA cases like Begay and James. I surmise that, other than the two Justices writing the main opinions in Rodriquez, none of the other Justices had the interest or energy to get deeply invested in this intricate little case. On both sides of the debatein Rodriquez, a feeling of "good enough for government work" comes through.
And, after reading this opinion against the backdrop of Anita Krishnakumar's recent ACCA exegises at CO here and here, I likely will not be the only one who keeps in mind the hazards of predicting the views of various Justices in modern federal criminal justice debates.
Is the NRA really ready for post-Heller litigation?
Writing here over at Pajamas Media, Glenn Harlan Reynolds has these interesting reflections on the recent NRA national convention:
I traveled to Louisville, Kentucky last week, for the National Rifle Association’s annual convention.... People seemed much happier, and more optimistic....
The conventional wisdom, shared by people on both pro- and anti-gun sides of the issue, is that the court will probably find that the Second Amendment protects some sort of individual right to own a gun, that the right is nonetheless subject to reasonable regulation, and that the District of Columbia’s near-total gun ban violates that right by being too extensive and intrusive to be “reasonable.” This will then leave to the lower courts, and future Supreme Courts, the question of what other regulations might be unreasonable.... Those decisions will likely stretch over a decade or more and — as I noted in my talk — a single Supreme Court decision doesn’t necessarily accomplish much on its own.
Follow-through is crucial, and the Supreme Court over the next decade is likely to feature more than one justice appointed by the next President. Clinton and Obama may try to sound reassuring about guns when they’re running for office, but it’s a safe bet that their Supreme Court nominees will be less friendly to Second Amendment rights than McCain’s.
So does this mean that the NRA crowd has gotten too complacent? Possibly.... On the other hand, in today’s environment, it’s also easy to see where the momentum is — and the Supreme Court is likely to go along or face serious blowback on its unenumerated rights jurisprudence.
Give credit where credit is due: For a civil rights group, especially a group dedicated to a civil right that has faced as much sustained attack from politicians and the media as gun rights have, to reach the the point where complacency is a risk is no small accomplishment. Perhaps the gun-rights activists, and the candidates, are merely responding to public sentiment. If so, the gun-rights community really is in the catbird seat. We’ll find out if that confidence is justified soon enough.
As regular readers know, I am very interested in what is going to happen after Heller, especially because I expect "lower courts, and future Supreme Courts" will be presented with hard questions about whether extreme federal criminal gun laws are "too extensive and intrusive" to be reasonable under an individual-rights view of the Second Amendment. I wonder if there was any discussion at the NRA convention about how this "civil rights group" will approach cases like Hayes and other cases in which persons with very minor criminal records are denied their civil gun rights.
Some related posts on post-Heller litigation possibilities:
- Hunting, pardons and a Second Amendment claim?
- More thoughts about the scope of Second Amendment rights
- Even the NRA, while urging Second Amendment strict scrutiny, thinks Martha Stewart and Lewis Libby have no gun rights
- Yet another federal sentence prompting Second Amendment questions
May 18, 2008
Troublesome disparity in state sentence for same crimes
This local story from Indiana, headlined "Parents cry foul about sentences: White co-defendant gets no prison time, biracial one gets 8 years," reports on a worrisome example of sentencing disparity. Here are the basics:
A wide gap in the punishments of two 19-year-olds who pleaded guilty to the same crime under similar circumstances has, in the minds of some residents, brought the specter of racial discrimination into a St. Joseph County courtroom.
David Opfer and Justin Brooks both pleaded guilty to one count of arson in connection with a fire at Park Jefferson Apartments in April 2007 that caused minimal damage but endangered the lives of residents there. Neither of them had a criminal background. On Wednesday, a judge placed Opfer, who is white, on probation, while a different judge had sentenced Brooks, who is biracial, to serve eight years in prison.
"I can come to no other conclusion," Brooks' father, John Brooks, told The Tribune by phone Friday from Maryland. "I don't like to play the race card, don't get me wrong," said John Brooks, who is black and retired from the U.S. Army. "But how can one get such a drastic difference in sentencings?"...
Indiana law gives judges flexibility in sentencing, and the plea agreement Opfer and Brooks signed with prosecutors gave the judges ample discretion in sentencing.
A new must-see in DC
This article in the Los Angeles Times reports on a new museum about to open on the other coast:
America's fascination with crime will take a new turn Friday -- opening day for the National Museum of Crime and Punishment.... This new museum seeks to downplay the fame given to criminals and spotlight law enforcement's investigative work....
A history of American crime leads visitors through the winding hallway with information on crime and punishment in several time periods. Visitors can place their head and arms in colonial stocks, participate in a Wild West shootout and flip through mug shots of infamous criminals.... Another gallery, an exhibit on the death penalty, holds scale models of a gas chamber, an electric chair and a guillotine.
This website makes this new museum look pretty interesting. But the museum's tag line needs some work: they have to be able to do better than "So Much Fun It's A Crime!".
Will an extreme sentence deter extreme spitting?
How Appealing noted this notable article from the Dallas Morning News, headlined "35-year sentence for HIV-positive spitter worries some." Here is how it starts:
Prosecutors convinced a Dallas County jury this week that HIV-positive saliva should be considered a deadly weapon. But the Centers for Disease Control and Prevention and countless doctors say no one has ever contracted the virus from spit. And that's why several AIDS advocacy groups and many individuals contend that the 35-year sentence Willie Campbell received Wednesday for spitting into the mouth and eye of a Dallas police officer was excessive.
Mr. Campbell was convicted of harassment of a public servant. Because of the jury's deadly weapon finding, he will have to serve half of his sentence before he's eligible for parole. The police officer, Dan Waller, has not contracted HIV.