June 4, 2008
Victim input and restorative justice in sentencing Down Under
This new story from Australia, headlined "Victims to get say in sentencing," reports on an interest program being implemented in a country which has a long history with sentencing. Here are the details:
New South Wales Attorney-General John Hatzistergos says the roll-out of a new program will give more victims of crime a say in how offenders are sentenced. Under the program, magistrates can order offenders to sit down with their victim, a facilitator and police to discuss the impact of their crime and come up with an intervention plan. The plan can include forcing the offender to apologise to their victim, pay compensation or perform community work.
Mr Hatzistergos says magistrates will consider the intervention plan when sentencing offenders. He says trials show the program is successful. "The evaluation that has been undertaken by the Bureau of Crime Statistics found high levels of support for the program amongst participants, particularly victims," he said. "The majority of victims who took part in the program believed it was fair to them and almost all the offenders agreed it would encourage them to obey the law in the future."
I wonder if we could encourage some state-side AGs to draw some information and wisdom from this innovative sentencing scheme on the other side of the globe.
Texas not yet able to get back in execution business
As detailed in this Houston Chronicle article, headlined "Killer's execution delayed; Texas lethal injection was to resume, but Harris County inmate gets new stay," Texas executions are still being stalled by lethal injection concerns. Here are the basics:
Condemned double-murderer Derrick Juan Sonnier received a reprieve about two hours before he was to walk into Texas' death house Tuesday, the second time he has escaped execution. The Texas Court of Criminal Appeals granted a stay of execution after the Texas Defender Service, a watchdog capital punishment group, filed two last-minute appeals in the 40-year-old man's case.
Sonnier was sentenced to die for the 1991 stabbing deaths of Melody Flowers, 27, and her 2-year-old son Patrick...
In its appeals, the Texas Defender Service argued that the state made changes May 30 to its lethal injection protocol that have not been reviewed by any court. Its second appeal argues that the lethal injection protocol violates Eighth Amendment protections against cruel and unusual punishment, an issue raised in two other cases pending before the state court.
Attorney David Dow, of the defender service, said the Texas court's stay was an appropriate move given that it has not yet ruled on the lethal injection process. The prison system, he added, must also provide more details about the procedure it follows to carry out capital punishment.
Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice, said the system's protocol has not changed. Prison officials, she said, made changes to internal written procedures in light of the Supreme Court's ruling, but the procedure remains the same. Among the additions made, she said, the prison system spelled out the amount of training executioners receive. "We clarified in writing what we were already doing," Lyons said. "The protocol remains the same."
June 3, 2008
Must-reads (again) on the post-Booker world in Yale Law Journal
Though I have blogged about both these great pieces when they first appeared on SSRN, a helpful reader pointed out the fact that the May 2008 issue of the Yale Law Journal is now online here with the final published versions of two must-reads for federal sentencing fans:
- Federal Sentencing in 2007: The Supreme Court Holds—The Center Doesn't by Daniel Richman
Poetic sentencing justice
A long drive this afternoon allowed me the opportunity to hear this poetic sentencing story, which is exactly the kind of feature story one expects to hear on NPR. Here is the summary:
In December, more than two dozen teenagers were arrested for breaking into and vandalizing the one-time summer residence of Robert Frost. Their punishment? Attend a class about the American poet. Novelist and Middlebury College professor Jay Parini, who taught the class, talks with Robert Siegel.
DC Circuit splits on reasonableness review
Though I'm on the road, the sentencing news never stops. Fortunately, How Appealing has this report on the interesting doings from the DC Circuit today:
"In my judgment, the majority opinion illustrates the magnetic pull that the Guidelines still occasionally exert over appellate courts in cases involving sentences outside the Guidelines range." So writes Circuit Judge Brett M. Kavanaugh, dissenting from a decision that a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued today. Circuit Judge Janice Rogers Brown wrote the majority opinion, in which Circuit Judge Douglas H. Ginsburg joined.
UPDATE: Both thoughtful opinions in In re Sealed Case, No. 076-3132 (DC Cir. June 3, 2008) (available here) merit a close read. And these closing statement from the majority emphasize procedural points that I think are very important as the post-Booker world continues to evolve:
The absence of a statement of reasons is prejudicial in itself because it precludes appellate review of the substantive reasonableness of the sentence, United States v. Lewis, 424 F.3d 239, 247 (2d Cir. 2005), thus “seriously affect[ing] the fairness, integrity, or public reputation of judicial proceedings,” United States v. Williams, 488 F.3d 1004, 1008 (D.C. Cir. 2007). A district judge “must adequately explain the chosen sentence . . . to promote the perception of fair sentencing.” Gall, 128 S. Ct. at 597. It is important not only for the defendant but also for “the public to learn why the defendant received a particular sentence.” Lewis, 424 F.3d at 247. Arbitrary decisionmaking undermines “understanding of, trust in, and respect for the court and its proceedings.” Id. We assume Appellant’s sentence of eighteen months was not randomly selected, but the absence of any explanation makes it seem so. Thus, a failure to comply with § 3553(c) causes grave institutional harm, as well as simultaneously depriving the defendant of the benefit of our review. This failure is therefore plain error.
Hoping to acquit myself well in big Sixth Circuit argument on acquitted conduct
As previously detailed here, late last year the Sixth Circuit ordered en banc review in US v. White, a case involving the status of acquitted conduct guideline enhancements in the wake of Booker. 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. And the Sixth Circuit kindly granted us time at the en banc oral argument scheduled for tomorrow.
Though I argued as an amicus before a Sixth Circuit panel last year, I have never argued before an en banc circuit court. And, of course, this case raises an issue that I have worked on a lot (and blogged about a lot) both pre- and post-Booker. Though I am gearing up for what should be an amazing proceeding, I would welcome in the comments or via e-mail any and all advice for arguing to en banc courts or arguing on this acquitted conduct issue.
June 2, 2008
Significant Third Circuit ruling in federal child porn case
Through a long opinion in US v. Miller, No. 06-5187 (3d Cir. June 2, 2008) (available here), the Third Circuit reaches some significant conclusions in a federal child porn prosecution. Here is how the opinion starts:
Pursuant to a jury trial in the District Court for the Middle District of Pennsylvania, Donald R. Miller was found guilty of (1) receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2), (2) possessing the same images of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), and (3) marijuana possession, in violation of 21 U.S.C. § 844(a). Miller was sentenced to concurrent terms of 46 months’ imprisonment on the two child pornography counts and a concurrent term of 12 months’ imprisonment on the marijuana count. In calculating the applicable sentencing range under the Sentencing Guidelines, the District Court found that Miller, in the course of his testimony at trial, had committed perjury, and accordingly applied a two-level sentencing enhancement for obstruction of justice, pursuant to U.S.S.G. § 3C1.1 (2003). On appeal, Miller argues (1) that there was not sufficient evidence to support his conviction for receiving child pornography, (2) the Constitution’s double jeopardy clause barred entry of separate convictions for receiving and possessing the same images of child pornography, and (3) the record does not support the District Court’s finding that Miller committed perjury.
We conclude that Miller’s conviction for receiving child pornography was supported by substantial evidence. However, we further hold that (a) the double jeopardy clause barred convictions for both receiving and possessing the same images of child pornography, and (b) the entry of guilty verdicts on both of these counts was plain error. We also hold that Miller’s testimony regarding his collection of adult pornography was neither willfully false nor material, as those terms are to be understood in the context of perjury, and thus did not support a sentencing enhancement. Accordingly, we will vacate the District Court’s judgment and remand this case for re-sentencing consistent with this opinion.
Mel Weiss gets 30-month prison sentence
As detailed in this Bloomberg news report,"Mel Weiss, co-founder of securities law firm Milberg LLP, was sentenced to 2 1/2 years in prison for illegally paying clients to file shareholder suits that prosecutors said earned $251 million in lawyer fees." The WSJ Law Blog is all over the story with these two new posts:
UPDATE: Weiss's lawyer released this press statement following the sentencing:
While any sentence of imprisonment for a great man like Mr Weiss is sad to contemplate, we are grateful that Judge Walter reduced the sentence to 30 months from the 33 months called for in the Plea Agreement. The Court clearly recognized that despite his criminal conduct, Mr Weiss earned some measure of compassion by his lifetime of charitable and humanitarian work.
Notable new research on prison-crime connection
A helpful readers pointed me to this new article, titled Specifying the Relationship Between Crime and Prisons," which appear in the June 2008 issue of the Journal of Quantitative Criminology. Here is the abstract:
There is no scholarly consensus as to the proper functional form of the crime equation, particularly with regard to one critical, explanatory variable — prison population. The critical questions are whether crime and prison rates must be differenced, whether they are cointegrated, and whether they are simultaneously determined — whether crime and prison cause one another. To determine the proper specification, different researchers have applied unit-root, cointegration, and Granger tests to very similar data sets and obtained very different results. This has led to very different specifications and predictably different implications for public policy. These differences are more likely to be due to the methods used, rather than to real differences among the data sets. When the best available methods are used to identify the proper specification for a panel of U.S. states, results are fairly clear. Crime rates and prison populations are close to unit-root; crime and prison are not cointegrated; crime clearly affects subsequent prison populations. Thus the best specification of the crime equation must rely on differenced data and instrumental variables. Alternative specifications run a substantial risk of spurious results.
Because I do not even fully understand the abstract, this paper my be of greatest interest to those who do empirical research in this area. Still, I think there are a few broader insights to be gleaned even for the data-challenged among us.
Two defense wins on federal money laudering issues
Though not focused on sentencing issues, a notable set of rulings and voting patterns today emerged from the Supreme Court in two money laundering cases. Here is are the basics and links thanks to early posts at SCOTUSblog:
[The Supreme Court] ruled that mere concealment of money during a transport is not enough to support a conviction for money-laundering. And, in another money-laundering case, the Court ruled that the crime of using the proceeds of illegal activity applies only to the profits involved, not the total amount of money.
Today’s opinion in United States v. Santos (06-1005) is now available here. Justice Scalia announced the judgment of the Court and delivered an opinion in which Justices Souter and Ginsburg joined, and in which Justice Thomas mostly joined. Justice Stevens concurred in the judgment. Justice Alito filed a dissenting opinion in which Chief Justice Roberts and Justices Kennedy and Breyer joined. Justice Breyer also filed a dissenting opinion.
That Justices Scalia and Thomas were key votes for the defendant in Santos proves yet again that their commitment to legal and structural principles trump any anti-defendant instincts that some pundits assume they have. As I have suggested before, anyone inclinded to make quick or broad assertions about jurisprudential and political trends in the Roberts Court needs to take a close look at all the unpredictable stuff going on throughout the Court's criminal docket.
UPDATE: Marty Lederman has this interesting post, titled "The Santos Resolution (?)," discussing why the Santos decision took so long and whose votes may have been in play.
Long feature on crack sentencing reform
The Washington Post magazine had this long cover story, headlined "Cracking Open," reviewing one man's notable experience with the ups and downs of federal crack sentencing terms. The article's subheading captures its themes: "Michael Short knows he was wrong to sell crack cocaine, but he questions whether he needed 15 years in prison to learn his lesson. Now some of the politicians who helped put him there are wondering, too."
June 2, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack
June 1, 2008
Some sober reflections on emotions and the death penalty
Inspired in part by the Kennedy capital child rape case and other notable recent death penalty debate, Stephanos Bibas and I put together a new commentary (now available here at SSRN) titled "Engaging Capital Emotions." Here is the abstract:
The Supreme Court, in Kennedy v. Louisiana, is about to decide whether the Eighth Amendment forbids capital punishment for child rape. Commentators are aghast, viewing this as a vengeful recrudescence of emotion clouding sober, rational criminal justice policy. To their minds, emotion is distracting. To ours, however, emotion is central to understand the death penalty. Descriptively, emotions help to explain many features of our death-penalty jurisprudence. Normatively, emotions are central to why we punish, and denying or squelching them risks prompting vigilantism and other unhealthy outlets for this normal human reaction. The emotional case for the death penalty for child rape may be even stronger than for adult murders, contrary to what newspaper editorials are suggesting. Finally, we suggest ways in which death-penalty abolitionists can stop pooh-poohing emotions' role and instead fight the death penalty on emotional terrain, particularly by harnessing the language of mercy and human fallibility.
Will Weiss pay a high sentencing price on Monday?
As detailed in recent items from Reuters and from the National Law Journal, famed plaintiffs lawyer Mel Weiss is scheduled to be sentenced Monday in Los Angeles. Here is a preview from the Reuters piece:
Class-action legend Melvyn Weiss can expect a rough ride on Monday when he is sentenced by a judge who handed down the maximum penalty to Weiss's former partner for his role in a kickbacks scheme involving their former law firm.
The 72-year-old Weiss, who built a multibillion-dollar shareholder litigation empire around a law firm now known as Milberg LLP, pleaded guilty to a racketeering charge in March. He has asked U.S. District Judge John Walter to sentence him to no more than two years in prison, citing his age and his contributions to shareholder litigation.
Prosecutors recommended that Weiss serve 33 months in prison, according to sentencing memos filed on May 23. A plea agreement calls for Weiss to serve 18 months to 33 months in prison and pay $10 million in fines and forfeited gains.
In February, Walter sentenced Weiss's protege and former partner, William Lerach, to the maximum prison sentence allowed under his plea agreement and criticized prosecutors for proposing a sentence that he considered too lenient.
The Wall Street Journal Law Blog has had lots of coverage of pre-sentencing filings in the Weiss case, as detailed in this interesting set of posts:
A government waste attack on over-incarceration
I am pleased to see this local editorial emphasizing government waste when assailing excessive incarceration of non-violent drug offenders. Here are excerpts from the editorial:
Stop government waste. That's what state taxpayers are clamoring for, right? Cut out the padded pensions, lavish trips, no-show jobs. But all the money spent in those time-worn examples of "waste" pales in comparison to the millions and millions of dollars state taxpayers are spending to lock up nonviolent drug offenders who unwittingly found themselves within 1,000 feet of a school, or who are first-time offenders better served by drug treatment or other alternatives to jail.
The Drug Policy Alliance released a study last week finding the state spends $331 million per year jailing nonviolent drug offenders, or more than the entire corrections budgets for 16 states. More than one-third of the state's prison population was convicted of drug possession or low-level distribution offenses - at a yearly cost, per prisoner, of $46,880....
The report pointed out that not only is money being wasted, but lives. Serving a jail sentence reduces someone's earning ability by up to 40 percent, the study found. Lives often spiral downward after prison. Society, as well as the individual, suffers.
Politicians in the past refused to budge on rolling back these tougher drug laws. They feared looking soft on crime — even if their stubbornness flew in the face of common sense and fairness. Perhaps in the context of hard budget choices and tapped-out taxpayers, politicians finally see this issue as one of economics as well as justice....
At a time when the state is being forced to cut money for otherwise-worthy programs, it is inconceivable that it is spending $46,880 a year to lock up people whose lives could be infinitely more productive — and society better served — with a cheaper and better alternative. That, folks, is government waste.
Some recent related posts:
Sunday (not-so) funnies concerning the death penalty
I saw a number of interesting stories in the Sunday papers around the nation dealing with various death penalty issues. Here are headlines and links:
- From Alaska, "Death-penalty decision delays trial"
- From Mississippi, "Death penalty: 2008 'banner' year?"
- From West Virginia, "A year later, no sentence in federal death penalty case"