July 9, 2008
USSC press release about alternatives symposium
As first noted here, next week the United States Sentencing Commission is conducting a two-day symposium on alternatives to incarceration. The USSC now has posted this official press release announcing the event, which it describes this way:
The United States Sentencing Commission will host a Symposium on Crime and Punishment in the United States: Alternatives to Incarceration on July 14-15, 2008, at the Hyatt Regency on Capitol Hill in Washington, D.C. The symposium will focus on various sentencing options available within the federal and state systems, including the use of sentencing alternatives in combination with and/or in lieu of imprisonment.
Presenters at the symposium include federal and state judges, congressional staff, professors of law and the social sciences, corrections and alternative sentencing practitioners and specialists, federal and state prosecutors and defense attorneys, prisons officials, and others involved in criminal justice. Approximately 250 individuals representing the federal and state criminal justice communities, academia, and public interest groups have been invited to attend. Topics to be examined include –
- drug courts and treatment options for certain offenders;
- alternative sentencing options in the federal and state systems;
- restorative justice-based programs;
- prison programs resulting in reduced sentences;
- the Second Chance Act and re-entry issues; and
- collateral consequences of convictions.
July 8, 2008
A potent attack on the post-Booker world
Thanks to this post at C&C, I see that frequent commentor Bill Otis has a new article on federal sentencing appearing in the latest volume of Engage, the journal of the Federalist Society's practice groups. This new article, which is titled "From Apprendi to Booker to Gall and Kimbrough: The Supreme Court Blunders its Way Back to Luck-of-the-Draw Sentencing," can be accessed here. The piece is highly critical of the Supreme Court's work in Booker and its progeny, and here are snippets from the end of the piece:
[W]e now have something worse, and less honest, than the pre-SRA regime of standardless sentencing. We have standardless sentencing pretending to have standards. The shrewdly opaque message to the public is that we still have sentencing guidelines, only that they are more “flexible” than before. Sentencing Commissioners continue to draw hefty salaries to write guidelines (that can be ignored at will). Probation officers continue to calculate ranges on worksheets (that may count for something or may not). District judges go through the window dressing rehearsed for them in Gall and Kimbrough (assured by those decisions that if the litany is elaborate enough, it need not be given any weight). A person employing impolite language might call this a charade.
Because the hollowed-out guidelines are still twitching in the land of the un-dead, further depredations to the rule of law, and the proper role of the judicial branch, are sure to follow....
The road from Apprendi to Booker to Gall and Kimbrough is strewn with damage that has been all but ignored — damage to future public safety, to uniformity and honesty in sentencing, and to the proper authority of Congress. In the 1980s, there was a bipartisan consensus strong enough to make federal sentencing conform for the first time to the rule of law. Whether such a consensus exits today is an open question. But the first step toward building one is to understand, as it was understood twenty-five years ago, how urgently it is needed.
The post-Heller litigation headaches (and judicial cut-backs) have begun
I am pleased to see that Eugene Volokh is tracking some early post-Heller rulings in lower courts, and he has this post spotlighting what appears to be the first ruling, Johnson v. United States, No. 1:07CV155, 2008 U.S. Dist. LEXIS 51148 (E.D. Mo. July 2, 2008), expressly rejecting a challenge to the federal felon-in-possession criminal prohibition.
I am even more pleased to see that a number of commentors to Volokh's post recognize that the the ruling in Johnson is a bit too quick to rely on Heller dicta to rebuff the notion that broad felon-in-possession laws may be constitutionally problematic after Heller. (On this front, I am pleased to see Glenn Reynolds here at Instapundit asserting his view that any felon who gets his "right to vote restored, ... should also get [his] right to own a gun back.") Though the pro se defendant in Johnson is not the "ideal felon" to persue this issues, I am hopeful and somewhat optimistic that some good test cases will emerge in the weeks and months ahead.
Beyond the felon-in-possession issue, it is telling (though not really surprising) that all of the rulings noted by Eugene so far have rejected Second Amendment claims based on Heller. As I have suggested in lots of prior posts, I expect that we will be seeing lots and lots of plausible post-Heller Second Amendment claims brought by all sorts of litigants, and lots and lots of (less plausible?) rejections of these claims by lower courts.
Some related posts (authored after Heller was decided):
Some related posts (authored before Heller was decided):
- More thoughts about the scope of Second Amendment rights
- Get ready for a Second Amendment rumble, defense attorneys
UPDATE: I just noticed that Grits has this strong post adviocating restoring felon's gun rights, titled "Free speech, voting, other rights reinstated for ex-felons; after Heller, why not gun ownership?". Here is how the post concludes:
Bad guys who want to hurt somebody don't abide by gun laws, anyway, so these statutes [prohibiting ex-cons from gun possession] by definition only influence the behavior of the law abiding. Why not make restoration of gun rights simultaneous with the restoration of other constitutional rights when an offender's sentence is complete? Wouldn't treating restoration of felon gun rights more like restoration of voting and other substantive rights be in keeping the with Supreme Court ruling in Heller?
Examining the intersection of victim's rights and juve justice
I just saw this interesting looking piece on SSRN that combines two topics of interest to most sentencing fans. The piece by Kristin Henning is titled, "What's Wrong with Victims' Rights in Juvenile Court?: Retributive v. Rehabilitative Systems of Justice," and here is the abstract:
While scholars have written extensively about the victim's rights movement in capital and criminal cases, there has been very little discussion about the intersection of victim's rights and the juvenile justice system. Statutes that allow victims to attend juvenile hearings and present oral and written impact statements have shifted the juvenile court's priorities and altered the way judges think about young offenders. While judges were once primarily concerned with the best interests of the delinquent child, victim's rights legislation now requires juvenile courts to balance the rehabilitative needs of the child with other competing interests such as accountability to the victim and restoration of communities impacted by crime.
In this article, I contend that victim impact statements move the juvenile court too far away from its original mission and ignore the child's often diminished culpability in delinquent behavior. I also argue that victim impact statements delivered in the highly charged environment of the courtroom are unlikely to achieve the satisfaction and catharsis victims seek after crime. To better serve the needs of the victim and the offender, I propose that victim impact statements be excluded from the juvenile disposition hearing and incorporated into the child's long-term treatment plan. Interactive victim awareness programs, such as victim-offender mediation and victim impact panels that take place after disposition, allow victims to express pain and fear to the offender, foster greater empathy and remorse from the child, and encourage forgiveness and reconciliation by the victim. Delaying victim impact statements until after the child's disposition also preserves the child's due process rights at sentencing and allows the court to focus on the child's need for rehabilitation.
A new web pitch for Webb: (ex officio) US Sentencing Commissioner
I was disappointed to learn that Senator Jim Webb, the only national political figure who has shown a real commitment to questioning the efficacy of modern mass incarceration, has taken himself out of the VP sweepstakes. So, I must now morph my web pitch for Webb as VP into a web pitch for Webb to become a member of the US Sentencing Commission.
Notably, many state sentencing commissions formally or informally include members of the state legislature, and research by Rachel Barkow and others suggests that the most successful commissions are those with active involvement by legislators. Though the US Sentencing Commission is technically located in the judicial branch, I do not think there are strong
constitutional or practical reasons why Senator Webb (or another elected politician) could not serve on the Commission (though perhaps there is a provision in federal law precluding this kind of dual service).
Notably, the members of the US Sentencing Commission have to be divided in their party affiliation and so Senator Webb would be a sound and plausible pick no matter who takes the White House this fall.
Some related posts:
- Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
- Great TNR coverage of JEC hearing on mass incarceration
- A web pitch for a Webb VP pick
UPDATE: Helpful commentors have noted that the Constitution would seem to get in the way of Senator Webb wearing two hats, so maybe he should just get an honorary or ex officio appointment to the USSC.
Deconstructing the federal relevant conduct guidelines
As first noted here, the federal defenders are hard at work on an important post-Gall/Kimbrough project entitled "Deconstructing the Guidelines." The first paper in the series addressed the child porn guidelines (discussed here); the second paper examined the career offender guidelines (discussed here). The latest extraordinary paper in this extraordinary series is titled "Deconstructing the Relevant Conduct Guideline: Challenging the Use of Uncharged and Acquitted Offenses in Sentencing," and it is available at this link. Here are excerpts from start of this paper:
Under certain portions of the “relevant conduct” guideline and its commentary, judges are required to calculate the guideline range based not only on the crime of conviction, but on separate crimes, comprised of their own elements, of which the defendant was acquitted, with which the defendant was never charged, or which were dismissed. The Commission advises judges to find these separate crimes by a preponderance of the “information,” without regard to its admissibility under the rules of evidence, if there is sufficient indicia of reliability to support its “probable accuracy.” The guideline range is then increased by the same number of months or years as if the defendant had been charged by indictment and convicted by a jury on proof beyond a reasonable doubt, limited only by the statutory maximum for the offense of conviction. These provisions were a radical departure from past practice in the federal courts and national experience in the states, were not authorized by Congress, and were adopted without empirical support. They have been subject to enduring criticism and calls for reform since their inception, to no avail....
Part I of this paper recounts the history of the guideline provisions requiring district courts to calculate the guideline range based on uncharged, dismissed and acquitted crimes. It demonstrates that these provisions were not authorized by the SRA or reviewed by Congress, and were adopted without empirical testing or support. Part II demonstrates that these provisions were not based on past practice, have not been revised in light of feedback or research, have failed to achieve their untested theoretical goals, and instead transfer sentencing power to prosecutors, create hidden and unwarranted disparities, and promote disrespect for the law. Part III discusses open constitutional challenges to these provisions.
Bad ref sentencing raising some good legal issues
As detailed in this New York Times article, the upcoming sentencing of former NBA ref Tim Donaghy is raising an important set iof legal issues surrounding credit for cooperation. Here are details from the Times piece:
Federal prosecutors are opposing efforts by Tim Donaghy, the disgraced former N.B.A. referee, to have a retired F.B.I. agent testify about Donaghy’s cooperation with the government.
Donaghy’s lawyer, John Lauro, issued a subpoena last week for the former agent, Philip Scala. Lauro argued that Scala would provide critical information that could affect Donaghy’s sentencing, which is scheduled for Monday in United States Federal Court in Brooklyn.
Donaghy has admitted to providing inside information to gamblers and to helping them pick games. He could face up to 25 years in prison, but under federal sentencing guidelines, the term will probably fall in the 33-month range....
In a letter filed on Friday, the prosecutors said there was no legal basis for Donaghy to subpoena a former government agent. They contended that the court already had sufficient information, provided by both sides, attesting to Donaghy’s cooperation in the case. And they wrote that Scala had indicated to them “that he has nothing more to add” on the subject....
The prosecutors’ stance on Scala prompted a harsh response from Lauro, who, in a letter filed Sunday, accused them of trying to deny the court “complete information about Mr. Donaghy’s extensive cooperation.” Donaghy has said there was broad misconduct by other referees and by N.B.A. executives, accusing them of manipulating the outcome of games. But none of those allegations have resulted in criminal charges, which has become a point of contention between Lauro and the prosecutors.
In Sunday’s letter, Lauro went a step further, accusing the prosecutors of attempting “to keep this cooperation hidden from” the judge. Lauro also said that the information Donaghy provided “could have led to additional prosecutions” and concluded that “something is not quite right with the conduct of this case.”
Some related posts:
Hofstra Law Review issue on capital mitigation
Thanks to this post at CDW, I see that the Hofstra Law Review has this entire new issue examining the ABA’s "Supplementary Guidelines for the Mitigation Function of Defense Teams In Death Penalty Cases." Though the copious pieces will be of greatest interest to death penalty obsessives, an article with a focus on victim's might have some broader lessons for other types of cases. The piece is titled "Understanding Defense-Initiated Victim Outreach And Why It Is Essential In Defending A Capital Client" and can be accessed at this link.
July 7, 2008
First Circuit finds stat max sentence (substantively?) unreasonable
At the end of a very long opinion covering lots of different criminal justice issues, the First Circuit today in US v. Ofray-Campos, No. 05-1461 (1st Cir. July 7, 2008) (available here), reverses on defendant's above-guideline sentence as unreasonable. Here is how the panel concludes its sentencing analysis:
In sum, the district court’s description of López- Soto’s conduct, while justifying an upward variance, was not sufficiently compelling to support a statutory sentence of more than double the maximum of the applicable guidelines range. There was ample room for a variance above the guidelines and below the statutory maximum to accomplish the trial judge’s stated purposes in sentencing López-Soto. Although “we emphasize that we do not reject the sentence imposed below solely because of the magnitude of its deviation from the guideline-recommended range,” Zapete-Garcia, 447 F.3d at 61, the statutory maximum forty-year (480-month) sentence simply does not stem from a plausible explanation, does not constitute a defensible result, and therefore cannot survive our review for reasonableness. See Jimenez-Beltre, 440 F.3d at 519. Accordingly, without expressing any opinion on what sentence should be imposed on remand, we vacate López-Soto’s sentence and remand for re-sentencing consistent with this opinion.
I think it is fair to say that the panel found that the stat max sentence was substantively unreasonable under the circumstances, though one might also conclude that the reversal here was (also?) for procedural unreasonableness because the district court did not sufficiently explain or justify the sentence imposed. However characterized, this ruling shows again that reasonableness review after Gall is not an empty exercise and can sometimes benefit defendants.
First Circuit upholds DNA collection from non-violent felons on probation
Thanks to AL&P, I see that the First Circuit has reversed a district court ruling that found Fourth Amendment problems with DNA collection from non-violent felons on probation . Here is the first paragraph from US v. Soto, No. 07-1245 (1st Cir. July 7, 2008) (available here):
In this consolidated appeal, the government challenges the district court's conclusion that requiring DNA collection from non-violent felons who are sentenced to probation violates the Fourth Amendment. In light of our decision in United States v. Weikert, 504 F.3d 1 (1st Cir. 2007), which was issued seven months after the district court's ruling, that conclusion cannot stand. Although the district court correctly concluded that a "totality of the circumstances" balancing test must be used to analyze the constitutionality of the DNA collection program, the court's application of that balancing test is inconsistent with our analysis in Weikert. Accordingly, we reverse.
From the prison news business desk...
here are two interesting stories about prison law and economics:
- From the Houston Chronicle here, "Critics: Prison labor hurts free-world jobs -- Program allows companies to employ inmates, operate for less with subsidies"
- From the NC News & Observer here, "Prison shuts the book on novelist: Inmate author's sales violate policy."
Examining the political dimensions of mass incarceration
Though not available for free on-line, this piece by political scientist Marie Gottschalk seems especially timely as we move into the later phases of a major election year. The piece is titled "Hiding in Plain Sight: American Politics and the Carceral State," and here is the abstract:
Over the past three decades, the United States has built a carceral state that is unprecedented among Western countries and in US history. The emergence and consolidation of the US carceral state are a major milestone in American political development. The explosive growth of the prison population and the retributive turn in US penal policy are well documented. But the political causes and consequences of this massive expansion are not well understood. This is starting to change. During the past decade or so, scholars in criminology, sociology, and law, recently joined by a few political scientists, have produced outstanding works on the connection between politics and the origins of the carceral state. Recently, the wider political consequences and analytical implications of the carceral state are a new and expanding area of interest. The carceral state has grown so huge that it has begun to transform fundamental democratic institutions, from free and fair elections to an accurate and representative census. The findings of scholars of the carceral state prompt us to rethink claims about issues in the study of American politics that may seem far afield from criminal justice, including voter turnout and the “vanishing voter,” the achievements of the US model of neoliberal economic development in the 1990s, and the triumph of the modern Republican Party in national politics. Scholarship on the carceral state also raises other important issues about power and resistance for marginalized and stigmatized groups.
Some recent related posts:
More coverage of prosecutors using capital discretion differently
This effective local article from Missouri, headlined "Prosecutors use discretion differently in death sentencing," tells a story that is familiar to anyone who follows closely the modern administration of capital punishment. The piece does a particularly effective job highlighting factors that can lead to (and justify?) different prosecutors taking different approaches to the death penalty. Here are snippets from the piece:
The city and county are two adjacent jurisdictions served by long-serving Democrats who apply the same state laws and court precedents but use their discretion differently. And that difference fits a national pattern: Urban prosecutors are less likely than their suburban or rural counterparts to go after the ultimate punishment....
[Observers] say those decisions are guided in part by the will of the constituents. Urban jurors, more likely to have negative experiences with the justice system, may be more reluctant to deliver a death sentence. Families of urban victims may be less likely to want it. And the complexity of a capital trial may tax limited resources in a busy urban prosecutor's office....
Prosecutors struggle to overcome concerns of bias, especially in urban areas where jurors come from a large minority population, said Michael D. Rushford, president of the Criminal Justice League Foundation, a victims' rights advocacy group in Sacramento, Calif. "It's a big-city problem; a lot of jurors believe these guys are being pulled off the street and prosecuted," he said.
Moreover, building a solid case can be difficult in an urban setting, where there may be rampant distrust of law enforcement and greater fear by witnesses of retaliation, Rushford said. Not all murder victims' survivors want a death sentence. Michelle Stanze, [a slain] officer's widow, said she supported a plea agreement to avoid a trial....
Then comes the cost of pressing a death penalty case, which typically is more complex. "I've got to believe in some places that money becomes a problem," Rushford said. "If it's going to clean out the budget, there may be some pressure not to go for the death sentence."
July 6, 2008
A (silly?) Kennedy technicality: can prosecutors still pursue capital child rape charges?
Unless the Supreme Court reconsiders its Kennedy ruling (which seems doubtful, despite good cause), it is now unconstitutional (and thus surely unjust) for a state to seek to execute a defendant for the crime of child rape. But here is a (silly?) technical question in the wake of Kennedy: is it clearly unconstitutional and/or unjust for a state prosecutor to pursue a capital charge against a terrible child rapist?
Of course, this question only arises in the handful of states that statutorily authorize capital child rape. But the question may not be merely an academic's fanciful concern for a few reasons:
1. As the Kennedy opinion indicates, there may be 100 pending capital rape cases in Louisiana (and perhaps a few in some other states). Does the Kennedy opinion require re-indictments in all these cases, or might a prosecutor opt to continue with these cases under existing state capital law? One justification for continuing with capital prosecutions could be a genuine hope that an evolving national consensus (or a constitutional amendment) might eventually make execution of terrible child rapists permissible.
2. Even if a state prosecutor believes a rapist can and never will be executed for a terrible child rape, he or she might still want to seek a death sentence for symbolic or emotional reasons. Perhaps the victim is eager for the rapist to be condemned to death even if everyone knows the sentence will never be carried out. Or perhaps a prosecutor believes that securing a death sentence for child rape might facilitate later securing a death sentence against the same defendant for some other capital crime scheduled to be prosecuted at a later time or in another jurisdiction.
3. And what is a prosecutor concludes that still pursuing capital charges for a terrible child rape makes it easier under state law to secure an life sentence (or to secure a plea agreement to avoid the costs and harms of a trial)? Indeed, one could even imagine a defense-oriented spin to these issues: perhaps a capital indictment enables a child rape defendant to get extra resources for his defense and/or a death sentence might enable a child rape defendant to be housed under special prison conditions that are preferable to being in the general prison population.
Of course, whether permitted or not, it seems highly unlikely that many (or any) state prosecutors will want to expend time and energy seeking death sentences that likely can never be carried out. (Then again, prosecutors in California and other states that rarely execute still continue pursuing capital charges even though they must know that a death sentence against any particular murderer is unlikely ever to be carried out.) But I still find it intriguing, and maybe not totally academic, to think about whether Kennedy precludes only certain types of executions or more broadly preculdes certain types of indictments and prosecutions.
Some related recent posts:
US Sentencing Commission symposium on incarceration alternatives
I am excited and encouraged to report that the United States Sentencing Commission is conducting a two-day symposium on alternatives to incarceration later this month. Here is the announcement from the USSC's offical webpage:
The United Sates Sentencing Commission will host a Symposium on Crime and Punishment: Alternatives to Incarceration on July 14-15, 2008 at the Hyatt Regency Washington on Capitol Hill. The list of symposium presenters includes federal judges, key congressional staff, professors of law and the social sciences, corrections and alternative sentencing practitioners and specialists, federal prosecutors and public defenders, and prison officials. The preliminary agenda may be accessed here. For more information about the symposium, contact the Office of Legislative and Public Affairs at 202/502-4597.
Unfortunately, other commitments will likely keep me from attending this terrific and important event. But I hope to be able to blog about the event (perhaps with the help of on-the-scene correspondents) even though I will not be able to participate in person.
A Mississippi pitch for drug courts and getting smarter on crime and punishment
Writing here in the Clarion-Ledger, a state judge (and former state senator) makes a strong pitch for drug courts in Mississippi. Here is part of the pitch:
Lt. Gov. Phil Bryant, while serving as state auditor, released a report from his office which concluded, in part, that the drug court systems are "an effective community-based strategy to reduce drug use and crime, generate cost savings at the local and state level and allow statewide exchange of information between Circuit Court districts."
That report estimated that Mississippi could save about $5.4 million dollars annually based upon merely 500 participants going into a statewide drug court system instead of being housed in the state Department of Corrections. By the way, that was not a typographical error. That was $5.4 million dollars that the taxpayers would save based upon the estimate. There are currently more than 1,700 participants actually in the drug court program statewide. You do the math. Drug court works.
Building on this drug court commentary, the paper's editorial board makes a broader pitch for getting smarter about crime and punishment. Here are some snippets from the interesting editorial:
Gov. Haley Barbour signed a bill into law earlier this year to restore common sense to sentencing in the criminal courts — making some 7,000 inmates eligible for parole by relaxing sentencing guidelines. Senate Bill 2136 relaxed the state's so-called 85-percent rule, passed in an ill-advised moment in 1994 when the Legislature took the federal government's "get tough on crime" challenge and raised it.
The so-called "Truth in Sentencing" law was the result of a nationwide push for tougher sentencing, and Mississippi lawmakers responded. This newspaper supported the law. Famous last words: It seemed like a good idea at the time.
Unfortunately, Mississippi overreacted, and the law worked too well. Congress had told states to pass tougher laws to continue receiving federal funds for prisons. While the federal mandate was for violent criminals, Mississippi made it for all offenders. Mississippi has been on a prison-building binge ever since, trying to keep up with the ever-increasing number of those incarcerated: mostly drug-related or nonviolent....
It makes sense — and dollars and cents — to shift "tough" on crime to smart on crime. Drug courts must increasingly become part of the solution to prison crowding and ineffective drug treatment in this state.
An age-old (and costly) problem with long prison terms
This new article coming from California, headlined "Aging inmates add to prison strain in Calif.," spotlights the long-term and costly consequences of long-term prison sentences. Here is how the article starts:
Louis Rodriguez, a lifelong thief, is costing California taxpayers a lot of money. And so are others like him, aging criminals locked away for life or extended sentences who require expensive, ongoing medical treatment.
The state's expanding prison population and the increasing average age of its inmates appear to be key factors behind one of the most contentious issues facing California lawmakers. They are at odds over whether to approve $7 billion to build medical units for a prison health care system that has been ruled unconstitutional.
Some related posts: