July 15, 2008
Notable new commentaries on law and justice
I may be off-line most of the day, but readers can reflect on these two new intriguing commentaries from law.com while I am away:
Should those on death row have personalized Web pages?
This Los Angeles Times article, headlined "Reaching out from death row," covers the interesing issue of the correspondence and web presence of prisoners on Califorinia's death row. Here are snippets:
Prisoners are barred from direct computer access that officials say could allow them to threaten witnesses or orchestrate crimes. Thanks to supporters and commercial services, however, many of the state's 673 condemned inmates now have pen-pal postings and personalized Web pages with their writings, artwork and photos of themselves -- often accompanied by declarations of innocence and pleas for friendship and funds.
Although some inmates utilize sites in the U.S., the nonprofit Canadian Coalition Against the Death Penalty has created Web pages or pen-pal ads for more than 100 California death row inmates. The site, unlike some others, is free. Prisoners' mail privileges "make it virtually impossible to stop stuff from going out . . ." said Lt. Eric Messick, litigation coordinator at San Quentin. "That is how things get posted."
Since the mid-1990s, when a condemned inmate's column called "Deadman Talkin' " appeared online, use of the Internet by prisoners has proliferated in California and elsewhere. While civil libertarians applaud the development as the exercise of free speech by isolated people, victims' rights activists decry it as an unnecessary affront to the loved ones of those whose suffering led society to lock up these prisoners.
July 14, 2008
More on status quo bias in federal sentencing realities
The Denver University Law Review last year allowed me to contribute quick thoughts about the Supreme Court's work in Rita v. United States its special speedy issue on Rita. My contribution, entitled "Rita, Reasoned Sentencing, and Resistance to Change" and available at this link, emphasized the status quo biases we often see in efforts to reform sentencing structures and procedures. Now I see a new piece here on SSRN developing some similar themes in the wake of Gall and Kimbrough.
This new piece is titled "The More Things Change: A Psychological Case Against Allowing the Federal Sentencing Guidelines to Stay the Same in Light of Gall, Kimbrough, and New Understandings of Reasonableness Review." Here is the abstract:
This Article uses an analysis of the psychology of decision-making to argue that it is time to rethink the proper role of the Sentencing Guidelines. Psychology teaches that guidelines have an anchoring influence on an individual's decision-making capabilities. While this anchoring effect may be harmless when the Guidelines ranges truly reflect sentencing purposes, the same is not true when the Guidelines themselves are the product of bad sentencing policy. In Kimbrough, by allowing district courts to impose a sentence that results from the court's disagreement with the crack/powder cocaine disparity found in the Guidelines, the Court has acknowledged that the Guidelines ranges do not always reflect a sound adherence to the purposes of sentencing. In both Gall and Kimbrough, however, the Supreme Court continues to require district courts to calculate the proper Guidelines range and to consider that range before deciding on a reasonable sentence for a defendant. Circuit courts, then, must review a sentence for both procedural and substantive reasonableness. In light of the psychological anchoring aspects of the Guidelines, the procedural and substantive components of reasonableness review that are set forth in Gall and Kimbrough are at odds when placed within a system that requires potentially faulty Guidelines ranges to be calculated in order for a sentence to be deemed reasonable. This Article explores that tension and ultimately suggests that the Supreme Court do away with the requirement to calculate the Guidelines, and that Congress or the Supreme Court proscribe a new, truly advisory role for the Federal Sentencing Guidelines to play.
Split Ninth Circuit panel affirms below-guideline probation sentence as reasonable
Federal defense practitioners on the West Coast will be pleased to see the Ninth Circuit's latest reasonableness ruling today in US v. Whitehead, No. 05-50458 (9th Cir. July 14, 2008) (available here). Here is how the short per curiam opinion starts:
Thomas Michael Whitehead sold over $1 million worth of counterfeit “access cards” that allowed his customers to access DirecTV’s digital satellite feed without paying for it. The jury convicted him of breaking various federal laws, including the Digital Millennium Copyright Act, which forbids the sale of devices that are designed to “circumvent[ ] a technological measure” that protects copyrighted works. 17 U.S.C. § 1201(a)(2)(A). The district court calculated a Guidelines range of 41 to 51 months, but imposed a more lenient sentence of probation, community service and restitution.
The government appeals, arguing that this below- Guidelines sentence was unreasonable, and Whitehead crossappeals, claiming that the indictment and jury instructions omitted an element of the crime. Neither party disputes the district court’s Guidelines calculation. We deferred submission pending our en banc decision in United States v. Carty, 520 F.3d 984 (9th Cir. 2008), and now affirm.
Judge Bybee dissents in a lengthy opinion that starts this way:
Thomas Whitehead will do no jail time for pirating a million dollars worth of “access cards” and selling them on the internet to persons who used them to steal satellite television service from DirectTV. The advisory Guidelines, after taking into account Whitehead’s personal circumstances, called for a sentence of 41-51 months. Whitehead walked with probation, restitution, and community service.
This was not an exercise of discretion so much as an abdication of responsibility. Our substantive review of sentences may be limited after Gall, but being deferential does not mean turning a blind eye to an injustice. I respectfully dissent.
A deadly legislative deal in the works in NC
This local article from North Carolina, headlined "N.C. bias bill adds to death penalty debate: The push to enable a race-based defense may also bring a move to resume executions," spotlights the strange deals that can be made in death penalty debates. Here are the basics:
Anti-death penalty forces are pushing the legislature in its final days to pass a law that would allow murder defendants facing death to challenge prosecutors' decisions as racially biased. But to get that, death penalty foes may have to accept a move to start executions, which have been stalled for more than a year.
The House has already passed a bill that would allow murder defendants to use statistical evidence that race was a significant factor in prosecutors seeking the death penalty or in juries imposing it. The state NAACP president is prodding senators to approve the measure.
If Senate Democrats move forward with it, Republicans see a chance to get something they've been fighting for — a provision that may allow the state to resume executions. Executions have been stalled for more than a year, partly because the Department of Correction cannot find doctors who will take part in them, as the law requires.
Not surprisingly, partisans on various sides of these issues are not pleased with the possible deal in the works:
The Rev. William Barber, state NAACP president, doesn't want the two issues combined. “It should stand alone,” he said of the racial bias bill. “This is about death, and this is about people dying simply because of their race.”
The N.C. Conference of District Attorneys doesn't want statistics to play a role in death penalty cases. “The DAs really think it's an inappropriate element to put into the death penalty process,” said Peg Dorer, conference director. The measure would open the way for “statisticians to come in and testify and manipulate statistics,” Dorer said.
Another acquitted conduct sentencing affirmed
The Eighth Circuit today in US v. Canania, No. 07-1078 (8th Cir. July 14, 2008) (available here), affirms another long federal sentence than includes acquitted conduct enhancements. That fact alone does not make Canania especially notable, but the concurrence added by Judge Bright makes the ruling blogworthy. Here is how that concurrence begins:
Bound by Supreme Court and Circuit precedent, I reluctantly concur with my colleagues in affirming Canania’s and Robinson’s convictions and sentences. I write separately to express my strongly held view that the consideration of “acquitted conduct” to enhance a defendant’s sentence is unconstitutional.
Some related posts on acquitted conduct sentencing enhancements:
Seeking help covering USSC alternatives to incarceration symposium
Because of other work commitments, I am unable to attend the United States Sentencing Commission's two-day symposium on alternatives to incarceration which starts this morning in DC (details here and here). The official agenda looks amazing, and the topics covered should be of interest to lots folks both inside and outside the Beltway.
I have on good authority that the USSC will be posting written testimony from the event, and I am hopeful there will be some mainstream media coverage in the days ahead. But I would also be grateful for any reports from the event either through comments to this post or via e-mail.
Some recent related posts:
- US Sentencing Commission symposium on incarceration alternatives
- USSC press release about alternatives symposium
- Wash Post urges stop to "warehousing nonviolent offenders"
- Two potent commentaries assailing mass incarceration
- Potent pieces on prison nation from the Boston Review
- Why is Senator Jim Webb the only national figure focused on the prison economy?
Examining parole law and policy for killers in California
The Los Angeles Times yesterday had this interesting piece on parole law and policy in California. Here is how the article begins:
Sandra Davis Lawrence is grateful for the simple things she can do now, like pick up her grandniece from school. And she is anxious to make up for lost time, to find a career and start earning money again.
Lawrence spent 24 years in state prison for murdering her lover's wife with a gun and a potato peeler while in a jealous rage. A model inmate, she received a second chance at freedom last summer when a court ordered her released. Since then, she has reunited with family in Los Angeles and tried to re-integrate into society at age 61....
But Lawrence may have to return to prison instead, if Gov. Arnold Schwarzenegger can convince the California Supreme Court that she remains a threat to public safety. That she has had no problems with the law in a year of freedom is irrelevant, the governor's office said; she should not have been let out.
The court is poised in coming weeks to seal Lawrence's fate, along with that of nine other convicted murderers seeking freedom. The justices are expected to answer some difficult questions: When should a killer be set free? What are the limits, if any, on the governor's power to decide? Are such factors as an inmate's prison record and age ever more significant than a horrendous crime committed decades ago?
July 13, 2008
Media coverage of Second Amendment effort to dismiss felon-in-possession charges
Last week I posted here a copy of a notable motion to dismiss a federal criminal indictment for felon in possession based on Heller and the Second Amendment. Today the Pittsburgh Post-Gazette has this story on the motion. Here are snippets from the story, which notes that a hearing on the motion has been scheduled for later this month:
A Washington County man charged in federal court with being a felon in possession of a handgun has filed a motion asking that the charges be dismissed based on a recent Supreme Court decision. James F. Barton Jr. argues that the court's opinion lifting the ban on handguns in Washington, D.C. — and the assertion that the possession of guns in the home is an individual right — must be applied to all people.
Senior U.S. District Judge Alan N. Bloch has scheduled a July 31 hearing on the matter....
"Despite having a conviction history, Barton still has a right to free speech. He still has the right to exercise whatever religion he wants to," Mr. [Barton's lawyer] wrote. "Our Supreme Court has not even come close to saying that, once you are convicted of a federally defined felony, you can not assert a Fourth Amendment right. Heller holds that 'all Americans' have an 'individual right to use arms for self-defense.' This right is non existent, however, to Barton because a statute of Congress eliminates his ability to protect himself and his family through the possession and use of firearms in his home."...
Mr. Barton, 48, was convicted in 1995 of receiving stolen property — which was a firearm — and possession of a controlled substance with intent to deliver in Washington County. In May 2007, investigators searching his home found 15 firearms — seven pistols, three shotguns and five rifles -- as well as ammunition. Mr. [Barton's lawyer] concedes that his client may not be the most sympathetic defendant to use as a test subject, but his argument remains the same. "I firmly believe your home is your castle, and you should be allowed to defend yourself if an intruder comes in to do harm to you or your family," he said. "I think the key dividing line is the home. What you do in your home is far different from what you do in public."...
In the Western District of Pennsylvania, the number of felon-in-possession charges have gone from 19 in 2003 to 90 in 2007. US Attorney Mary Beth Buchanan said the people in this district who are charged with being a felon in possession are those who have significant and recent criminal histories. Though she said the federal law prohibiting felons from possessing firearms doesn't differentiate between offenders, significant and recent criminal histories are just two of the criteria her office uses when meeting with local and state law enforcement to see if a case should be prosecuted federally. "We've charged offenders with recent convictions or past convictions of a very serious and violent nature," she said.
Though I suppose I should be am pleased to learn that the US Attorney for the Western District of Pennsylvania does not seek to make a federal case out of any and every instance of felon in possession, her apparent concession that she does not bring federal prosecutions in every provable felin-in-possession case raises distinct concerns about disparate enforcement patterns in this broad (and potentially unconstitutional) law. It is as if the federal government is saying that persons with old, not-too-serious felonies are, though prosecutorial grace, allowed to keep exercising their constitutional gun rights, but more recent or serious felons are out of luck. Yeah, I think I see that in the text of the Second Amendment when I squint real hard.
Some related posts (written both pre- and post-Heller):
- More thoughts about the scope of Second Amendment rights
- Justice Scalia sells out felon gun rights, but on what basis exactly?
- The post-Heller litigation headaches (and judicial cut-backs) have begun
The international dogs that did not bark in Kennedy
As we await word on whether Governor Bobby Jindal will keep his word and ensure Louisiana seeks rehearing in the Kennedy child rape case (discussed here), a notable omission in the majority opinion dawned on me. As everyone surely will recall, when the Supreme Court struck down the death penalty for juve offender in Roper, Justice Kennedy's opinion for the Court devoted numerous pages to international laws and views. In sharp contrast, the Kennedy opinion says nary a word about international laws and views concerning the death penalty for non-homicide offenses.
This international omission is especially notable given that the Roper opinion suggested that at least some consideration of international laws and views is essential to modern Eighth Amendment analysis: "at least from the time of the Court's decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of 'cruel and unusual punishments.'" Roper, slip op. at 21. But in Kennedy, the exact same group of five Justices that comprised the Roper majority did not even once mention the laws of other countries or international authorities.
Of course, the lack of international discussion in Kennedy can be easily explained: the majority opinion in Kennedy did not reference international laws and views because they would undercut the Court's declaration that only intentional homicides can be death-eligible crimes. Indeed, according to this Amnesty International April 2008 review, few countries limit the application of the death penalty in the way that Kennedy now constitutionally commands. (According to AI, China applies the death penalty to 68 crimes, and Iran and Egypt recently executed persons for the crime of adultery. India, Malaysia, Singapore are just a few of the other countries in which non-homicide crimes other than treason are death-eligible.)
Consequently, it seems that, after Kennedy, we need to refine our understanding of the Supreme Court's the Eighth Amendment's jurisprudence: apparently "the laws of other countries and to international authorities [are] instructive" when interpreting the Eighth Amendment if and only when these laws and authorities support the result that the Court is trying to justify. Got it?
Some related recent posts:
Reflections on the politics of SCOTUS and personhood of its members
As one might expect, Linda Greenhouse's latest (and last?) New York Times column covering the Supreme Court is lovely and moving and insightful. And, as we look ahead to a new occupant in the White House (who might have a chance to appoint more Justices than any President since FDR), I found two passages from the piece especially significant. These two passages highlight the importance and impact of politics and personhood.
Concerning politics, consider these astute observations from (soon to be Professor) Greenhouse:
Watching the back-and-forth between a state legislature and the Supreme Court of the United States had given me a real sense of the court as an active participant in the ceaseless American dialogue about constitutional values and priorities, not a remote oracle....
The court can only do so much. It can lead, but the country does not necessarily follow.
In fact, it is most often the Supreme Court that is the follower. It ratifies or consolidates change rather than propelling it, although in the midst of heated debate over a major case, it can often appear otherwise. Without delving into the vast political science and legal academic literature on this point, I’m simply offering my empirical observation that the court lives in constant dialogue with other institutions, formal and informal, and that when it strays too far outside the existing political or social consensus, the result is a palpable tension both inside and outside the court.
I consider these observations exactly right, and they help explain why the Supreme Court's work on many punishment and sentencing issues has been so dynamic and unpredictable and controversial in recent years. In some ways, a group of Justices want to lead (see Blakely) a country not ready to follow, in other ways the Court is still sorting through developing political or social consensus about modern sentencing realities (see Booker et al. and the Court's capital jurisprudence.)
Concerning personhood, consider these more personal recollections from Professor Greenhouse:
The court I began covering in 1978 was populated by men who were, for the most part, older than my father. Thurgood Marshall, William J. Brennan Jr. and Byron R. White were historic figures. Harry A. Blackmun had only a few years earlier been propelled from obscurity when he wrote the court’s 7-to-2 majority opinion in Roe v. Wade. Nine new justices joined the court during my time there. Of the original group, only John Paul Stevens remains. Three members of the court are younger than I am.
Amid all that change, nothing touched me as much as the arrival in September 1981 of Sandra Day O’Connor. I had never heard her name before President Ronald Reagan nominated her that summer to succeed Potter Stewart. Although I covered her confirmation hearing, she remained to me basically a blank slate. That didn’t matter. The first time I looked up from the press section and saw a woman sitting on the bench, I was thrilled in a way I would never have predicted. Her presence invaded my subconscious. I had recurring dreams about her. In one, she asked me my opinion on a pending case (something no justice ever did in real life). But mostly, she just had walk-on roles in ordinary nighttime dramas, her presence signifying what it meant to me to know that there was no longer a position in the legal profession that a woman could not aspire to.
These comments and other passages in this great piece reinforce the importance and value of a distinctive focus on personhood and personal background when it comes to Supreme Court appointments. As I have suggested in prior posts urging a broader perspective on SCOTUS short lists, there is a symbolic importance and long-term impact in appointing Justices whom even savvy court-watchers have never previously considered. I hope that lots of people who've never before seen a Justice like themselves have an opportunity to have a new member of the Court invade their subconscious and signify "that there [is] no longer a position in the legal profession that a [certain type of person] could not aspire to."
Some related posts:
Two potent commentaries assailing mass incarceration
Two local Michigan papers have these two new potent commentaries assailing mass incarceration:
- From the Oakland Press here, "State prisons too expensive, ineffective at reform"
- From the Detroit Free Press here, "Get-tough policies cause more crime, deny inmates a future"
The start of the second piece sets out some data that reinforce my view that these topics ought to be much more prominent in year's election season:
U.S. taxpayers spend at least $60 billion a year on a growing body of state and federal prisons, county jails and local lockups. With jail and prison populations that have increased nearly eightfold over the past 35 years, the United States has become the world's leading jailer.
More than one in every 100 U.S. adults is locked up -- and 5 million more are on probation or parole. At any given time, one in 32 adults is under the supervision of the criminal justice system.
Tough-on-crime policies, not increases in crime, are mostly responsible. Mandatory drug sentences, three-strike and so-called truth-in-sentencing laws, as well as high recidivism rates, have created our Incarceration Nation. Even so, violent crime rates are higher than when the nation's prison building boom started more than three decades ago.
It's time to reverse failed sentencing policies, restore certain social and legal rights for ex-felons, and slow the revolving doors of the penal system with better re-entry, education and training programs. Fully funding the Second Chance Act, which provides money for state and federal re-entry programs, would keep more ex-inmates out of prison.
Criminal justice reforms are critical to the health of the nation's cities, and they must become part of the next president's urban agenda. Most of the more than 600,000 people a year leaving U.S. prisons and jails return to disadvantaged urban neighborhoods. They go home poorly educated, lacking job skills, and socially and legally disabled by felony records.
Going to prison has become a norm in certain big-city neighborhoods, even a rite of passage. While mass incarceration has aimed to reduce crime, it has actually increased it by breaking up social networks and removing financial and emotional support from families and communities. Nearly half of the 2.3 million adults locked up are African Americans, who make up less than 13% of the U.S. population. A stunning one in nine black males between the ages of 20-34 is behind bars.
Felony convictions, whether or not they carried prison sentences, attach lifetime penalities to tens of millions of Americans. Roughly 1.8 million people in Michigan, for example, have criminal records, or nearly one in four adults. Most are felony offenders, with all that entails for future prospects. These staggering statistics hold true for the nation as a whole, with more than 55 million people with criminal records.
"Resuscitating Proportionality in Noncapital Criminal Sentencing"
The title of this post is the title of this piece by Donna Lee just appearing here on SSRN. Here's the abstract:
Although the Eighth Amendment guarantees proportionality in noncapital criminal sentencing, federal and state courts have struggled when deciding individual cases, and the Supreme Court has failed to articulate legal rules that could promote the development of a coherent jurisprudence. Working within the governing law and building on the work already done by scholars who have focused on this problem, I propose three principles: transparency, limited deference, and a "felt sense of justice," that could guide the process of proportionality review and contribute to defining a retributivist touchstone for proportionality judgments. Focusing on the required threshold inquiry, I also outline an analytical framework for examining offense gravity and sentence severity, and determining gross disproportionality. My proposal identifies four analytical factors for assessing offense gravity: harm, culpability, violence, and magnitude; and two for evaluating sentence severity: the offender's "real sentence," and likely age and life opportunities upon release from prison.