May 20, 2008
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.