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June 7, 2008

Will Our Courts game include sentencing (and have a Wii version)?

Princess_peach As detailed in this Reuters article, the first woman to serve on the US Supreme Court has now "unveiled a videogame project ... to teach children how courts work, saying she wanted to counter partisan criticism that judges are 'godless' activists."  Here are more details:

Sandra Day O'Connor, 78, who served as U.S. Supreme Court justice from 1981 until her retirement in 2006, said she never imagined she would be asked to address a conference about digital gaming.  She said she got involved with developing the project called "Our Courts" out of concern over public ignorance about the judiciary and partisan attacks on what should be an independent institution....

She said the only way to preserve an independent judiciary was through public education, which she said was failing to produce citizens with enough knowledge about the three branches of U.S. government -- legislative, executive and judicial.  The Our Courts project will have two parts, O'Connor said. The first is on online interactive civics program designed to be used by children from 7th to 9th grades either to supplement existing courses or as a distinct unit in the curriculum....

She said the web site at http://www.ourcourts.org/ should have some initial material by this September and be fully operational with interactive elements a year later.

The second part of the project will be for young people to use in their free time, O'Connor said, noting that studies showed children spend around 40 hours a week using media, including computers, television, videogames or music. "If we can capture just a little bit of that time to get them thinking about government and civic engagement rather than playing shoot-'em-up video games, that's a huge step in the right direction," she said.

The Our Courts website already has a lot of useful links, and I am very excited that Justice O'Connor see the opportunity and the value of innovative ways to share her wisdom and ensure the judiciary gets the respect it deserved.  I look forward to watching this project develop (and will hope lots of sentencing content appears on-line, despite Justice O'Connor vocal opposition to the modern Apprendi-Blakely jurisprudence).  Over at TalkLeft, T Chris has this fitting reaction to this news:

After kids learn how to steal cars by playing Grand Theft Auto IV, they can learn what happens after a car theft arrest by playing Our Courts.

June 7, 2008 in On blogging | Permalink | Comments (4) | TrackBack

A terror-filled debate over substantive reasonableness

As detailed at How Appealing and in this AP article headlined "Court orders new sentence for al-Qaida member," the Fourth Circuit on late Friday afternoon "rejected a 30-year prison term and ordered a new sentencing hearing for Ahmed Omar Abu Ali [based on prosecutors' claim] that the judge improperly deviated from federal sentencing guidelines that called for life in prison."

The final 20 pages of the majority opinion in US v. Ali, No. 06-4334 (4th Cir. June 6, 2008) (available here), as well as the entire 20-page partial dissent by Judge Motz, is focused on the substantive reasonableness of the district court's sentencing decision.  All these pages make for a very interesting reading, and spotlight the essential challenges (and perhaps the inevitable disagreements) over substantive reasonableness review in the wake of Gall and Kimbrough.

June 7, 2008 in Booker in the Circuits | Permalink | Comments (16) | TrackBack

South Carolina conducts uneventful execution

As detailed in this brief AP story, "South Carolina man convicted of killing three social workers more than a decade ago has been executed after he asked to drop his appeals.  David Mark Hill was pronounced dead at 6:17 p.m. Friday in the state's death chamber in Columbia."  This local story provides a few more details:

Three people were murdered by David Mark Hill, back in September 1996. Three family members came Friday to witness the execution of the man who took their loved ones away. Hill's last request was to them...it was for forgiveness....

Friday, three members of the victims' families watched as a cocktail of lethal drugs was inserted into David Mark Hill's arm. Family members chose not to share their feelings, but other witnesses told the story:  Meg Kinnard, witness: "He had his eyes closed, he did not look over at us, or make any kind of gestures to any of us behind the glass."

It was his request to be put to death...12 years ago, his victims were shot to death.  Friday, Hill fell asleep...forever.  Kinnard: "No real reaction from anyone in the chamber, from the families, or anyone else."  Mike Gellatly, witness: "As dignified, I guess, as you would hope a situation like this would be."

June 7, 2008 in Death Penalty Reforms | Permalink | Comments (4) | TrackBack

A notable approach to drug sentencing in Argentina

It appears that reefer madness may be taking over in Argentina, according to this article in today's Washington Post.  The piece is headlined "In Argentine Drug Courts, A Shocker at Sentencing," and here are excerpts:

After getting caught with contraband like ecstasy tablets and marijuana, a few young Argentines have been asked by judges recently to pay an unexpected price for breaking the nation's drug laws: None at all.

That's because separate federal tribunals here have ruled that a law penalizing the personal use of drugs is unconstitutional. Two offenders have been let off the hook in Buenos Aires. And this week another group of judges echoed the ruling after considering the case of a young man arrested with marijuana.  "Criminalization will only apply in cases where the possession of narcotics for personal consumption represents a danger for the public health of others," the judges announced....

Some high-level government officials say the current laws only penalize the victims of drug abuse -- the addicts who need treatment -- and take the focus off the true criminals, namely the traffickers. While a legislative panel works to propose a rewrite of the drug laws with that idea in mind, the judges have chosen not to wait for a new law to be passed.

Those judges, of course, are now the targets of praise and condemnation from social critics who interpret the ruling as either an example of modern enlightenment or an invitation for things to get out of control.

June 7, 2008 in Sentencing around the world | Permalink | Comments (4) | TrackBack

June 6, 2008

New Judge Gertner opinion asserts extended prison term would reduce public safety

It is fitting to follow news of a new record high US incarceration population with an interesting new opinion from federal District Judge Nancy Gertner, which contends that  an extended prison term may reduce public safety in some cases.   These thoughts are developed in US v. Haynes , No. 06cr10328-NG (D. Mass. June 3, 2008) (available for download below), and here is part of the introduction of the opinion:   

At the time of sentencing, Haynes had already served approximately thirteen months in pretrial detention, longer than the sentence he served for the 1998 conviction.  The recommended sentence under the United States Sentencing Guidelines Manual, 33-41 months, was driven exclusively by the quantity of drugs for which he was responsible (on those two occasions in May 2006), the location of the sales, and his criminal history (Criminal History Category II). The government argued that the lower end of the Guidelines, 33 months, was entirely appropriate, not just because the Guidelines recommended it, but because "public safety," one of the factors in 18 U.S.C. § 3553(a), demanded it.

I found otherwise. While public safety certainly calls for the incapacitation of some, there is another side to the equation, which, after United States v. Booker, 543 U.S. 220 (2005), may finally be given the serious consideration it deserves.  The facts presented by Haynes’ case force the Court to confront the inescapable fact that disadvantaged communities like Bromley-Heath are injured both by crime and by the subsequent mass incarceration of their young men.  See Donald Braman, Criminal Law and the Pursuit of Equality, 84 Tex. L. Rev. 2097, 2114-17 (2006). Compare Randall Kennedy, Race, Crime, and the Law 373-76 (1997), with Todd R. Clear, Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neighborhoods Worse (2007).  Courts may no longer ignore the possibility that the mass incarceration of nonviolent drug offenders has disrupted families and communities and undermined their ability to self-regulate, without necessarily deterring the next generation of young men from committing the same crimes.

Haynes is an individual for whom continued incarceration beyond thirteen months makes no sense. Indeed, here, public safety seems to require the opposite of the government’s request; it requires that Haynes be permitted to return to his children so that they do not repeat his errors. Thus, I sentenced Haynes to time served: the thirteen months he had already served in pretrial detention plus a carefully considered supervised release program.

Download HaynesSentMem.pdf

June 6, 2008 in Booker in district courts | Permalink | Comments (13) | TrackBack

New "official" record high in US incarceration population

As detailed in this ABC News report, prison nation continues to grow: "The Justice Department has released a new report showing the nation's prison and jail population reached a record 2.3 million people last year."  As regular readers know, the "United States leads the industrialized world in incarceration [with a] rate of incarceration (762 per 100,000) [that] is five to eight times that of other highly developed countries, according to The Sentencing Project, a criminal justice think tank."

The official press release from BJS provides this explanation of what the latest official data shows:

The growth in the number of prisoners under state or federal jurisdiction slowed during the first six months of 2007, the Justice Department’s Bureau of Justice Statistics (BJS) reported today. The number of prisoners rose 1.6 percent, which was lower than the 2.0 percent growth during the same period in 2006. In absolute numbers, prisoners under the legal jurisdiction of state or federal correctional authorities — some of whom were housed in local jails — increased by 24,919 prisoners to reach 1,595,037 prisoners....

During the 12 months that ended June 2007, the nation’s prison and jail custody populations increased by 46,887 inmates (up 2.1 percent) to reach 2,299,116 inmates.  Two-thirds of the nation’s custody population was in a state or federal prison (1,518,535), and the other one-third was held in local jails (780,581).  At midyear 2007, there were an estimated 762 persons per 100,000 U.S. residents in prison or jail, up from 684 at yearend 2000....

Black males comprised 35.5 percent of all inmates held in custody in the nation’s prison and jails at midyear 2007.  About 4.6 percent of all black males in the general population were in prison or jail, compared to 1.7 percent of Hispanic males and 0.7 percent of white males.

Imagine if elected official and media pundits were focused as much on the rising US prison population as they are focused on rising price of oil.  But, perhaps I expect too much from elected officials and the media when I hope they can be as concerned about human liberty in America as they are concerned about the cost of crude.

For the full data reports, check out these links: Prison Inmates at Midyear 2007 and Jail Inmates at Midyear 2007.

June 6, 2008 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Hoping for a presidential town hall on crime and punishment

I view John McCain's proposed weekly town hall debates as a fantastic idea, and one that ought to help ensure that some crime and punishment issues get discussed during the campaign.  Indeed, I am hoping that somehow one of the town halls will be focused specifically on crime and punishment issues (and perhaps include Libertarian candidate Bob Barr, who says he wants in).

In a number of prior posts (e.g., here and here), I have highlighted a variety of questions that should be presented to the candidates.  I am not sure how to make sure these question come up in a town hall setting, but here are a few more very simple ones that merit answers (and could be very revealing):

Some related posts on Campaign 2008:

June 6, 2008 in Campaign 2008 and sentencing issues | Permalink | Comments (3) | TrackBack

Could asking judge to officiate defendant's wedding be a sneaky sentencing ploy?

I have reported before on cases in which a defendant has gotten married at the same time he is sentenced (see here and here), but this new article from the Washington Post puts a new spin on this kind of tale.  Apparently the prosecution is objecting to what it fears is a sentencing ploy:

A former State Department officer has a proposal for U.S. District Judge Gerald Bruce Lee: Before the judge sentences him on child pornography charges, he wants Lee to perform his wedding ceremony. Lee is considering the highly unusual request, under which Gons Gutierrez Nachman, 42, would tie the knot with his 21-year-old Brazilian fiancee in the same Alexandria federal courtroom where he admitted having sex with three underage girls while posted overseas.

Prosecutors are not forever holding their peace. "The government objects," they wrote the judge Wednesday. "The defendant's request, in the government's view, attempts to shift the focus away from the very serious criminal offenses for which he will be sentenced."...

Legal ethicists said the judge should have strenuously objected. "It would show very poor judgment for the court to perform this ceremony or even to entertain the possibility," said Stephen Gillers, a law professor at New York University. "He should have shot this down as soon as they asked.  He's not there to perform weddings; he's there to send a man to jail." "I suspect that in 232 years of American history," Gillers added, "it's never happened that a judge has performed a marriage ceremony for a defendant awaiting sentencing in a serious felony case in his own court."

I suppose we now know that Professor Gillers is not a regular reader of this blog: just a few months ago I spotlighted here a story headlined "First the Wedding, Then Years in Prison."  That post even included this amazing picture in case Professor Gillers is concerned about the possibility of bloggers creating revisionist American history.

UPDATE:  In the comments, Professor Gillers reports that he was misquoted by the Wash Post: "I said 'federal judge,' but the 'federal' got dropped.  I continue to suspect that what I actually said is true."  As one who has been frequently misquoted local media, I fully understand his plight and I now feel bad that I made fun of this mis-quote. 

I am not sure that I would share Professor Gillers' confidence that this is a completely unprecedented request, and I would love for a federal judicial historian to perhaps help us find out.  That said, I do think that the nature of the crime, as well as the fact that the bride is half the age of the defendant, makes Professor Gillers' ethical instincts here spot on.

June 6, 2008 in Procedure and Proof at Sentencing | Permalink | Comments (70) | TrackBack

June 5, 2008

Shortest probation term ever?

This AP story, which is interesting for various reasons, may set a record for the shortest probation term ever served.  Here are the particulars:

At one point this year, Patricia Vincent faced up to 20 years in prison for hiring a company to chop down trees on national forest land next to her home to improve her view of Lake Tahoe.  Instead, she ended up serving about 4 minutes of probation.  "This case is unique, no matter how you cut it," Assistant U.S. Attorney Ron Rachow said at Wednesday's sentencing hearing.

In fairness, Vincent, 57, of Incline Village, also performed more than 80 hours of community service and paid $100,000 in restitution as part of a deal in which she pleaded guilty to a misdemeanor charge of unlawfully cutting trees on U.S. land.

The short probation period was a legal technicality resulting from the fact that she had already paid the restitution and completed the community service by the time she arrived in federal court for sentencing in Reno.  The plea deal dictated that upon completion of those requirements, the probation would be suspended.

June 5, 2008 in Criminal Sentences Alternatives | Permalink | Comments (0) | TrackBack

The Federal Sentencing Guidelines are dead, long live the federal sentencing guidelines!

I just received these medical notices from the Sentencing Inquirer (a little-known, long-dormant publication from the Kane estate):

OBITUARY:  After an extended illness, the rigid Federal Sentencing Guidelines were taken off life-support on June 4, 2008 by the First Circuit and Fifth Circuit.  Astute diagnosis revealed a Sixth Amendment illness in 2000, and the Guidelines appeared doomed when taking a turn for the worse in summer 2004.  Radical reconstructive surgery in early 2005 by an active-liberty doctor (who had previously help birth the Guidelines), along with extensive nursing by federal circuit courts, enabled the rigid Guidelines to have nearly three more years of life.  But near-fatal blows suffered in late 2007 put the Guidelines on life support, and decisions by courts that had previously been energetic nursemaids prompted this official death notice.

The rigid Guidelines were born in 1987 long after progressive reformers urged their conception, led by the advocacy of sentencing godfather Marvin Frankel.  Though Democratic Senator Ted Kennedy spent a decade trying to give life to a new federal sentencing system, the rigid Guidelines only became possible when various Republican Senators agreed to tough-on-crime insemination in 1984.  A long painful pregnancy within the US Sentencing Commission resulted in the Guidelines emerging in 1987; they arrived much larger and tougher than had been anticipated by many interested observers. 

Soon after the rigid Guidelines were born, federal district judges diagnosed a set of potentially fatal structural constitutional ailments.  A team of eight pragmatic supreme doctors were able to resolve these structural problems in early 1989, and the rigid Guidelines we cleared to play outside with lawyers, probation officers and judges.

The rigid Guidelines had an exciting but difficult childhood, in part because many judicial playmates did not enjoy the elaborate word and math games that the Guidelines always wanted to play.  Fortunately for the rigid Guidelines, probation officers and the Justice Department and Congress and circuit courts were thoughtful and energetic guardians.  These guardians, along with the US Sentencing Commission, made sure district judges played nice with the rigid Guidelines; they also helped the Guidelines grow bigger and stronger and more rigid through the 1990s.

In 1996, the Supreme Court encouraged judges and the rigid Guidelines to play nice together.  But the Justice Department and Congress in 2003 ordered judges to stop playing some of their favorite games with the Guidelines.  This stern order may have aggravated the Sixth Amendment illness diagnosed in 2000 and perhaps indirectly sped the ultimate demise of the rigid Guidelines.

The rigid Guidelines leave behind many friends (and enemies), as well as its stepmother 3553(a).  Encouragingly, doctors have managed to rescue a new sentencing entity that had been growing within the rigid Guidelines since 2005. In lieu of flowers, the stepmother urges lawyers to contribute thoughtful sentencing research and analysis to help this new sentencing entity grow and prosper.

BIRTH ANNOUNCEMENT:  Born from the life force of the dying rigid Federal Sentencing Guidelines, a new flexible federal sentencing guidelines took a major step toward living on its own through a ruling by the First Circuit on June 4, 2008.  Conceived in a controversial severance laboratory as doctors tried to preserve life in her father in 2005, the flexible guidelines were subject to some neglect as circuit court nurses and prosecutors utilized an array of creative techniques to try to keep her father alive.  But in late 2007, a team of doctors finally clarified that nurses should focus their energies on the teachings of 3553(a); these doctors helped ensure that flexible guidelines could be fully loved and nurtured, and the full product of such nuturing started to show itself by mid 2008.

The health and future of the flexible guidelines will depend greatly upon whether she is well-fed by 3553(a) with the help of guardians providing sound sentencing research and effective common-law analysis.  In addition, the political forces which produced and shaped her father's development (and also engendered her many crazy mandatory minimum uncles) may prompt Congress and the Justice Department to seek ways to convince her to act more like her rigid father as she develops.

June 5, 2008 in Booker and Fanfan Commentary | Permalink | Comments (4) | TrackBack

Alleged 9/11 mastermind requests the death penalty in GTMO arraignment

As detailed in this Reuters story, the "accused al Qaeda mastermind of the Sept. 11 attacks stood in a U.S. military court on Thursday, sang a chant of praise to Allah and said he would welcome the death penalty."  Here are more details:

"This is what I wish, to be martyred," Pakistani captive Khalid Sheikh Mohammed, the highest-ranking al Qaeda operative in U.S. custody, told the Guantanamo war crimes court.  He and four accused co-conspirators appeared in court at the Guantanamo Bay U.S. naval base in Cuba for the first time on charges that could result in their execution.

As the judge questioned him about whether he was satisfied with the U.S. military lawyer appointed to defend him, Mohammed stood and began to sing in Arabic, cheerfully pausing to translate his own words into English.  "My shield is Allah most high," he said, adding that his religion forbade him from accepting a lawyer from the United States and that he wanted to act as his own attorney.

He criticized the United States for fighting in Afghanistan and Iraq, waging what he called "a crusader war," and enacting illegal laws, including those authorizing same-sex marriages.  The judge, Marine Col. Ralph Kohlmann, tried to persuade Mohammed to accept an attorney, telling him, "It's a bad idea for you to represent yourself."

Mohammed looked old and portly and wore a long, bushy gray beard and big black military-issue glasses. He wore a neat white tunic and turban, in stark contrast to the saggy white undershirt he wore in photographs taken after his capture during a raid in Pakistan in March 2003.

Mohammed and co-defendants Ali Abdul Aziz Ali, Ramzi Binalshibh, Mustafa Ahmed al-Hawsawi and Walid bin Attash are charged with committing terrorism and conspiring with al Qaeda to murder civilians in the attacks that launched the Bush administration's global war on terrorism.  They also face 2,973 counts of murder, one for each person killed in 2001 when hijacked passenger planes slammed into the World Trade Center, the Pentagon and a Pennsylvania field.

Some related posts:

June 5, 2008 in Death Penalty Reforms | Permalink | Comments (39) | TrackBack

Fifth Circuit opinion affirming probation sentence shows Gall's impact

The Fifth Circuit's opinion in US v. Rowan, No. 05-30536 (5th Cir. June 4, 2008) (available here), though very brief, shows the impact of Gall on how circuits are doing reasonableness review of federal sentences.   Here is an effective report on the ruling from a helpful reader:

The defendant pled guilty to possession of child pornography.  His Guideline range was 46-57 months. He received five years' supervised release.  The Fifth Circuit panel had previously held in Rowan that his sentence was substantively unreasonable based on an earlier Fifth Circuit case that held that 5 years probation for child pornography was too short.  Rowan was then remanded in light of Gall. On remand, this court, in a very short opinion, affirmed.  When two conservative judges (Garza and Jolly) can affirm a sentence of supervised released for child pornography (a crime a lot of conservatives feel is basically akin to child rape), I think that's a pretty good example of how Gall has changed things. Indeed, I think what is so remarkable about the opinion is the little analysis the court provided.  This wasn't even a close case, apparently.  Compare this case with United States v. Duhon, 440 F.3d 711 (5th Cir. 2006), where this court heavily scrutinized a probationary sentence for a child pornographer pre-Gall.  Note that Judge Garza was on the panel in Duhon and wrote the opinion in the Rowan case.

June 5, 2008 in Booker in the Circuits | Permalink | Comments (15) | TrackBack

Georgia conducts its second post-Baze lethal injection (with a hiccup)

As detailed in this AP report, a "man who claimed his attorney was a racist who put up a flimsy defense was executed Wednesday for murdering two people, Georgia's second execution within a month."  Here are more details:

Curtis Osborne, 37, was executed at 9:05 p.m. at the state prison in Jackson.... Osborne's execution was delayed for about two hours because the U.S. Supreme Court was considering his final appeal and then prison officials could not find a vein. While the lethal cocktail of drugs was administered, Osborne's eyes opened at one point and he took a deep breath.  His eyes then closed again.

Osborne, who is black, was sentenced to death for the August 1990 fatal shootings of Linda Lisa Seaborne and Arthur Jones.  The two were found shot to death in a car by the side of a dirt road in Spalding County, which is about 35 miles south of Atlanta....

Osborne's case attracted the attention of former president Jimmy Carter and former U.S. Attorney General Griffin Bell, who both urged state officials to commute the death sentence to life without parole. Norman Fletcher, the ex-chief justice of the Georgia Supreme Court, showed up in person Monday to ask for leniency. It was the first time he had made such an appearance, but he said he was drawn in by the "extraordinary nature" of the case.

More details about the case and the execution are available from the Atlanta Journal-Constitution.

June 5, 2008 in Death Penalty Reforms | Permalink | Comments (16) | TrackBack

June 4, 2008

First Circuit blesses a variance based on fast-track disparity

Thanks to this post at AL&P, I see that while I was hanging with the Sixth Circuit today, the First Circuit issued a very significant post-Gall/Kimbrough decision in US v. Rodriguez, No. 06-2656 (1st Cir. June 4, 2008) (available here).  In Rodriguez, the First Circuit abrogates an earlier ruling in which a  panel had "held that sentencing disparity attributable to the selective inauguration of so-called 'fast-track' programs for the processing of immigration crimes could not form the basis for a variant sentence."

In other words, based on the Kimbrough ruling, the First Circuit now says a district court has authority (but not an obligation) to vary based on concerns about fast-track disparity.  Here is a lengthy chunk of the First Circuit important work in Rodriguez:

Several considerations lead us to conclude that, when viewed through the prism of Kimbrough, the appellant's argument has merit.  Although Kimbrough involved the crack/powder ratio, its approach plainly has wider implications arguably affecting a number of our earlier cases, including but not limited to, how we have treated disparities arising out of the selective institution of fast-track programs. As to those programs — other cases not now before us are better left for another day — the analogy is compelling. 

Like the crack/powder ratio, fast-track departure authority has been both blessed by Congress and openly criticized by the Sentencing Commission. See United States Sentencing Commission, Report to the Congress: Downward Departures from the Federal Sentencing Guidelines 66-67 (2003) (criticizing fast-track programs for creating a "type of geographical disparity"). Like the crack/powder ratio, the fast-track departure scheme does not "exemplify the [Sentencing] Commission's exercise of its characteristic institutional role." Kimbrough, 128 S. Ct. at 575.  In other words, the Commission has "not take[n] account of empirical data and national experience" in formulating them.  Id. (citations omitted). Thus, guidelines and policy statements embodying these judgments deserve less deference than the sentencing guidelines normally attract. See id.

Given this pedigree, a sentence that is partially the product of a fast-track departure might or might not "reflect a rough approximation of sentences that might achieve § 3553(a)'s objectives." Rita v. United States, 127 S. Ct. 2456, 2465 (2007).  If raised, the sentencing court will have to answer this question in a particular case.  And where that answer is favorable to the defendant, a variant sentence premised on perceived inequities attributable to the availability elsewhere of fast-track departures would, given the Supreme Court's new gloss, seem to be entitled to deference "even in a mine-run case." Kimbrough, 128 S. Ct. at 575.

Beyond these parallels between the crack/powder ratio and the authorization for the selective institution of fast-track programs, emergent case law signals that, under an advisory guideline regime, sentencing has become a steadily more open-ended enterprise. See, e.g., Gall, 128 S. Ct. at 597 (discussing a sentencing court's superior coign of vantage "to find facts and judge their import under § 3553(a)"). Recent decisions of this court have noted this reality. See, e.g., Martin, 520 F.3d at 92; United States v. Vega-Santiago, 519 F.3d 1, 4 (1st Cir. 2008) (en banc).

Building on the foundation laid in United States v. Booker, 543 U.S. 220 (2005), Kimbrough lends a new flexibility to the scope of the district courts' sentencing authority and, in the bargain, removes a formidable obstacle to the consideration of matters such as fast-track disparity.  We refer specifically to the Kimbrough Court's enlargement of a sentencing court's capacity to factor into the sentencing calculus its policy disagreements with the guidelines. Kimbrough, 128 S. Ct. at 570.  This makes plain that a sentencing court can deviate from the guidelines based on general policy considerations. Id.

I am certain the government won't be pleased with this outcome and will seek en banc review.  Especially in light of the Rodriguez panel, I somewhat doubt the First Circuit will be eager to take this matter en banc, and it will then be interesting to see if a cert petition from the government would follow.  The Rodriguez notes its conflict with a recent Fifth Circuit ruling, and this thoughtful decision in Rodriguez might itself prompt a lot more debate of these issues in other district and circuit courts.

June 4, 2008 in Booker in the Circuits | Permalink | Comments (4) | TrackBack

Two CNN stories highlight varieties of sex offenders

Though neither of these new stories now up on CNN are specifically about sentencing, they both spotlight the critical (and widely underappreciated) reality that the label sex offender can cover a wide array of unexpected characters:

June 4, 2008 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Interesting piece on sentencing history (and theory)

After spending the day dealing with some frustrating realities of current federal sentencing, this historical paper appearing on SSRN is just the kind of change of pace my sentencing brain needs.  The piece is titled "Rehabilitating Durkheim: Social Solidarity and Rehabilitation in Eastern State Penitentiary, 1829-1850" and here is the abstract:

Durkheim famously postulated that crime tears at the moral fabric of society and that punishment was the means by which society strengthened its solidarity: by condemning the criminal and his criminal act, society reminds itself that there is still great consensus surrounding the values it holds dear, those values which it has enshrined in the criminal law. However, the more a society advanced, he argued, the less intense its punishments would become, and the more its punishments would become based solely on the privations of certain rights.  But Durkheim did not speak to purposes of punishment (e.g., rehabilitation, incapacitation, deterrence) except retribution.

This study describes the relationship between penal rehabilitation and Durkheim's concept of social solidarity by examining the writings of certain Pennsylvanians who were involved in the creation and maintenance of the Eastern State Penitentiary between 1829 and 1850. Specifically, it seeks to answer two questions: (1) How does rehabilitation affect (strengthen, weaken, or not affect) social solidarity? and (2) What circumstances lead a society to choose rehabilitation over other methods or purposes of punishment?  This study argues that penal rehabilitation strengthens social solidarity through its negative and positive expressive statements and results in solidarity-generating and solidarity-enhancing effects.  This study also offers a framework for what conditions lead a society to choose rehabilitation, conditions that lead a society to be optimistic instead of pessimistic.  It closes with suggestions for future work in this area.

June 4, 2008 in Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

The friendly themes to be stressed in Sixth Circuit acquitted conduct case

As noted here, I am off to the Sixth Circuit to present an amicus perspective on acquitted conduct enhancements.  (As previously detailed here, late last year the Sixth Circuit ordered en banc review in US v. White, and this afternoon is the scheduled argument. As noted before, together with a terrific group of lawyers from Proskauer Rose working pro bono, I helped put together an amicus brief (discussed here) making mostly statutory arguments about guideline enhancements based on acquitted conduct. 

At oral argument I plan to expand a bit on these points.  More generally, I plan emphasize not just statutory issue, but also structural and practical problems that flow, in my view, from treating acquitted conduct just like convicted conduct under the guidelines.  Later tonight, I hope to be able to report on what happens.

UPDATE:  Though I was surprised a bit that only three members of the en banc court were vocal during oral argument, these three effectively mapped out through their questions the three major possibilities for the post-Booker consideration of acquitted conduct enhancement:

June 4, 2008 in Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Reflections on reflections on emotions and the death penalty

As detailed in this post, Stephanos Bibas and I have a new commentary (now available here at SSRN) titled "Engaging Capital Emotions."  In addition to comments here from usual SL&P suspects, Corey Yung at Sex Crimes provides these intriguing (and kind) reactions to our commentary.  Here are excerpts:

I've just finished reading the draft and I highly recommend checking it out.  My initial thoughts are the emotion/rational divide basically mirrors (or is the same as) the retribution/deterrence divide. Since retribution is often explained not in its arcane philosophical terms, but instead in terms of payback, it fits neatly with emotions. Someone being punished fulfills an emotional need that is basically retribution. Deterrence theories, on the other hand, are, with regularity, theoretically and empirically grounded. Deterrence arguments fit the "rational" label.

I strongly agree with B&B that emotions are unavoidable in discussions of criminal sentencing. I think this is particularly the case when sex offenders are involved. I'm less convinced concerning the normative argument that emotions serve a net positive role in sentencing debates.  As my previous responses to Berman's posts about Kennedy illustrate, I'm tentatively a deterrence-oriented scholar concerning sentencing policy. If a law doesn't serve a net utilitarian/deterrence function, it should not be adopted. Retribution is too abstract and sometimes counter-productive (from a utilitarian perspective) to fully inform policy.  So, in the Kennedy case, I think the normative argument for emotion assumes that retribution should be the controlling theory.  Perhaps deterrence factors in the background, but emotion should be the lodestar for debate. While I think descriptively, this claim is probably true, I disagree with B&B that emotion should be central.  To do so risks the negative utilitarian consequences that I and others have articulated in response to the Louisiana capital rape statute (which Berman has, to his credit, argued against in other forums).

In my view, connecting the emotion/rational divide to the retribution/deterrence divide is insightful, but incomplete.  I personally think there is and should be some rationality in retribution and also that there is and must be some emotion in deterrence. 

Moreover, to go a bit meta, I often notice a lot of emotion in the way in which supposedly "rational" scholars examine and debate deterrence in the context of the death penalty.  In the Kennedy context, I am yet to see a truly sober and meticulous analysis of whether capital child rape could be reasonably expected to serve utilitarian interests.  Rather, in many critiques of capital child rape, we get what seem to me to be emotion-driven and highly-questionable assertions that there will be negative consequences from allowing child rape to be a death-eligible crime.

To go even more meta, I think Corey's points strike to the core of what I consider one of the hardest conceptual challenges of utilitarian theory that arises in a lot of punishment settings: it is a legitimate good with a place in the utilitarian calculus if people feel good about making others feel bad?  I sense that some (many?) citizens feel good emotionally knowing that society will threaten to sentence some child rapists to death.  Most utilitarians (myself included) have never quite been sure about whether and how these feelings ought to enter into a utilitarian calculus.

June 4, 2008 in Death Penalty Reforms, Kennedy child rape case, Purposes of Punishment and Sentencing | Permalink | Comments (7) | TrackBack

A telling example of a victim prompting a lighter sentence

I have often asserted that allowing victims to have a say at sentencing might sometimes prompt a more away from harsh imprisonment terms.  And this story from Tennessee showcases this reality:

A man guilty of vehicular homicide will not spend any time in prison following an unusual act of forgiveness in open court. “I do forgive you,” Jana Bice tearfully told Jeremiah Mann, the person who killed her father when his SUV struck Dwight Brooks’ car in March 2004 in Chattanooga. “My father was a wonderful man,” Ms. Bice continued during Mr. Mann’s sentencing hearing Monday. “But I think (Mr. Mann) is remorseful. I don’t think my dad would want him to sit in prison.”

Mr. Mann, 28, instead received a 10-year suspended sentence with the stipulation that he spend the next 30 weekends at the Silverdale Detention Center. He also will lose his driver’s license for three years, is not allowed to drink alcohol and can never refuse a breath-alcohol test. “Make sure you do all of those things,” Hamilton County Judge Rebecca Stern cautioned the defendant. “You’re looking at a long sentence if you don’t.”

Mr. Mann could have been sent to prison for eight to 12 years had Judge Stern chosen to impose her own sentence rather than consider Ms. Bice’s suggestion in court that “he deserves a chance” to get his life together. The testimony prompted Judge Stern to allow the prosecution and defense to hammer out their own sentencing guidelines. “We’ll try to come up with something that works for everybody,” Judge Stern said.

Mr. Mann, who said he always has sought to make amends for his actions, later stood outside the courtroom hugging the victim’s family members. “It’s an amazing day,” he said. Mr. Mann’s mother, Nellie Mann, thanked the Bice family for giving her son a second chance.

Assistant District Attorney Jay Woods said he, too, believes Mr. Mann’s remorse is sincere. “That’s something I don’t see very often,” Mr. Woods said.

Some related posts:

June 4, 2008 in Victims' Rights At Sentencing | Permalink | Comments (3) | TrackBack

New crack guidelines means Willie Mays Aikens gets to go home

514x00144_9aikensfile3standaloneprod As detailed in this article from the Kansas City Star, "former Royals standout Willie Mays Aikens is scheduled to be released from federal prison today, and he could be at a Kansas City halfway house as early as this evening."  Here are more details from the article (which has more than a few legal errors):

Aikens, prisoner 01732-031 at the federal correctional institution in Jesup, Ga., was sentenced to more than 20 years for crack cocaine distribution, bribery and gun charges under mandatory sentencing guidelines in 1994....

Three months ago, Congress approved new guidelines and made them retroactive — making Aikens one of about 20,000 inmates eligible for early release. Laine Cardarella, a federal public defender, presented Aikens’ case in federal court last month and argued successfully to end his prison sentence with time served.

104x00116_9aikens_file2standalonepro Aikens, 53, said he has lost 80 pounds in prison, and is close to his playing weight of 220 pounds. “There’s no doubt I’m in better health,” he said. “I’m in a better frame of mind. I have a spiritual life now that I didn’t have before. I just look forward to being able to get out of prison and go out with those things and be able to live my life like I’m supposed to live it.”

Aikens is scheduled to undergo counseling and spend 90 to 120 days at the halfway house in Kansas City before his full release. After that, he’s expected to return to his hometown of Seneca, S.C., to be with friends and family....

In March 1994, Aikens was arrested at his Kansas City home and charged with selling crack cocaine to an undercover police officer. He was later indicted on four counts of selling crack and was sentenced in December to the maximum sentence of 15 years, eight months. The judge also imposed a consecutive five-year term because Aikens allegedly had a loaded gun in the room where he sold the crack.

While in federal prison in Atlanta, Aikens wrote President Clinton for a pardon, but that request was never answered. Aikens has indicated he would like to find a job in baseball when he’s fully free, and would be willing to do speaking engagements, coaching, scouting, “whatever position that they have open for me and what they want me to do.” 

June 4, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack