January 19, 2008
Fascinating (and first?) crack retroactivity opinion from SDNY
Thanks to this post from Harlan Protass at the Second Circuit Sentencing Blog, it appears that SDNY District Judge Gerard Lynch earlier this week became the first judge to issue an opinion report revisiting a crack sentence based on Kimbrough and the new retroactive crack guidelines. Here are snippets of Harlan's effective write-up of the ruling (which goes by United States v. Polanco, No. 02 cr. 442-02 (GEL), 2008 WL 144825 (S.D.N.Y. Jan. 15, 2008)):
While the proposed new sentence will not go into effect until the date of retroactivity, Judge Lynch has already said what he intends the new sentence to be: 70 instead of 87 months. He based it on three findings: (1) the Supreme Court's finding that the Guidelines are no longer mandatory but are only advisory; (2) the Supreme Court's finding that a "sentencing court may take into account its view that the penalties for crack are excessive in relation to those for other similar drugs"; and (3) the Sentencing Commission new and retroactively applied crack guidelines.
The opinion in Polanco seems to have been issued sua sponte, and it ends with these interesting sentiments and instructions:
The Sentencing Commission has purported to limit the sentencing court's authority to reduce a sentence, emphasizing that, in its view, the reduction authorized by § 3582(c)(2) and the Commission's policy statement "do not constitute a full resentencing of the defendant," and prohibiting a reduction to a sentence "that is less than the minimum of the amended guideline range." The effectiveness of these limitations is yet to be tested; it would be, to say no more, ironic if the relief available to a defendant who received a sentence that is now recognized to have been unconstitutional because imposed under mandatory guidelines based on non-jury fact findings and unwise because the guideline under which he was sentenced was excessively severe, can be limited by a still-mandatory guideline.
It is not likely, however, that the complex legal issues theoretically presented by the Commission's effort to extend limited relief to inmates in Polanco's situation will be tested in his case. The Commission has notified this Court that Polanco remains incarcerated, and that if his sentence is reduced as authorized by § 3582(c)(2) and the amendment to the crack guidelines, he may well be eligible for release within a matter of weeks following the March 3, 2008, effective date of the retroactivity policy. If this is so, there would be little need to explore the legality of any relief beyond that expressly authorized by the Commission's policy statement; the only question is whether the Court should grant the relief thus authorized.
Although the Court's authority to reduce Polanco's sentence does not become effective until March 3, 2008, it is not too soon for the Court to prepare to exercise that authority if appropriate, given that the sentencing transcript suggests that Polanco is a likely candidate for such a reduction, and that according to the Sentencing Commission's estimate, reduction of Polanco's sentence to 70 months might result in an expected release date of March 17, 2008. Despite Polanco's apparent eligibility for the maximum authorized reduction, it would not be appropriate for the Court to reduce a defendant's term of imprisonment sua sponte without giving the Government an opportunity to address the issue. Perhaps events since Polanco's sentencing, including but not limited to actions while incarcerated that might show him to be dangerous and not rehabilitated, or information not presented to the Court at sentencing, will indicate that a reduction in sentence would not be appropriate. Similarly, Polanco himself should have the opportunity to rebut any argument made by the Government, or to submit any information of his own supporting a reduction in his sentence.
Accordingly, the Court hereby serves notice of its intention to reduce defendant Polanco's term of imprisonment to 70 months on March 3, 2008, unless good cause not to do so is shown by the Government before that time, and it is hereby ORDERED that the Government submit any opposition to such a reduction on or before February 11, 2008. Polanco may submit a response to any Government submission on or before February 25, 2008. In view of the potential urgency of the situation, these deadlines will not be extended.
It will be especially interesting to see if the Government submits any opposition and what its filing, if there is one, will say about broader retroactivity issues. Whatever the government might say, Judge Lynch's work here confirm my sense that some serious crack March Madness is in the works for the federal courts.
January 19, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack
Long weekend reading from SSRN
Two new pieces on SSRN are worthy of a long look over a long weekend. Here are the links and the starts of the abstracts:
- The Lost Meaning of the Jury Trial Right by Laura I. Appleman
ABSTRACT: The time has come to reevaluate the origins and historical meaning of the criminal jury trial right. The Supreme Court's most recent sentencing reforms have reaffirmed the role of the jury trial right in criminal justice, relying on the jury's historical and constitutional origins as reasons why juries must determine all aspects of punishment. Based on these reforms and the Court's underlying jurisprudence, it may be time to share the criminal jury trial right with the people, restoring some of its lost connotations. Doing so will ensure not only a proper fidelity to both the Constitution and the common law, but also a more engaged and effective use of criminal punishment in sentencing....
- Ordinal Proportionality in Punishment: A Case against Capital Punishment for Child Rape Under the Eighth Amendment by Issa Kohler-Hausmann
ABSTRACT: This article argues that various theories of justice in punishment adhere to a principle of ordinal proportionality — relative grading of penalties in measure to the relative severity of the crimes for which they are imposed. Ordinal proportionality is a demand of both deterrence and retributive theories of justice; in addition it is a tenet well entrenched in the Supreme Court's current Eighth Amendment jurisprudence. Under this principle the state cannot subject the crime of child rape to capital punishment because even a crime as horrendous as rape is not on par with murder in terms of harm and blameworthiness.
Feds get another conviction in steriod investigations
As detailed in this New York Times article, "Dana Stubblefield, a former defensive lineman in the NFL, pleaded guilty in federal court here Friday to charges that he made false statements to a federal agent about his use of performance-enhancing drugs." According to the article, here's the latest head-count in the federal prosecutions:
Stubblefield’s plea is the latest victory for the United States attorney’s office since the investigation into Balco began. Six other people have pleaded guilty, including the Balco founder, Victor Conte, and none of the cases has gone to trial. Barry Bonds, baseball’s career home run leader, and the former cyclist Tammi Thomas have pleaded not guilty.
As I mentioned in this recent post about the Marion Jones sentencing, I remain troubled that the highest profile athletes to be prosecuted in federal court for lying about steroid use have all been African-Americans (Barry Bonds, Marion Jones and now Stubblefield). Of course, Roger Clemens and other prominent white athletes are getting caught up in all the steroid ugliness, but these folks have not yet been subject to federal prosecution. Though I am not making direct or even indirect allegations of biased prosecutorial practices, I do consider the pattern of outcomes to be worthy of commentary and critical reflection.
UPDATE: Over at TalkLeft here, T. Chris adds these comments:
Since President Bush doesn't believe that lying to federal investigators or grand jurors really deserves punishment (at least in the case of his friend and fellow rascal Scooter Libby), do you suppose he'll commute the sentences of Pro Bowl defensive lineman Dana Stubblefield or Olympic medalist sprinter Marion Jones? Oh, and to all the disgruntled Republicans who complained that nobody gets charged or convicted or punished for what Scooter Libby did -- tell that to Stubblefield and Jones.
Of course, there is an important distinction between Scooter Libby and Stubblefield and Jones: the later two ultimately admitted to their crimes, whereas Libby never has and was found guilty by a jury after forcing a special prosecutor to go through a high-profile (and high-cost) trial. But, unlike those without connections, Libby did not end up paying a trial penalty.
January 18, 2008
Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues
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 that we just sent off to the Sixth Circuit which seeks to make a number of refined statutory arguments about guideline enhancements based on acquitted conduct. The full brief can be downloaded below, and this is how it starts:
Sentencing range enhancements based on facts alleged in charges of which a defendant has been acquitted (“acquitted conduct”) have long been among the most controversial features of the Federal Sentencing Guidelines, in part because acquitted conduct enhancements effectively nullify the jury’s determination in a criminal case. In United States v. Watts, 519 U.S. 148 (1997), the Supreme Court addressed this issue in a limited way when it held that consideration of acquitted conduct at sentencing does not violate the Double Jeopardy Clause. But now that more recent Supreme Court rulings have stressed the constitutional importance of jury determinations in the sentencing enterprise, the constitutionality of acquitted conduct enhancements under the Fifth and Sixth Amendments is questionable. The supplemental brief for appellant Mr. White argues in detail that acquitted conduct enhancements violate the Constitution.
In addition to any constitutional infirmities, acquitted conduct enhancements raise distinct statutory concerns. United States v. Booker, 543 U.S. 220 (2005), and its progeny stress that, because the Guidelines are now advisory, the directions that Congress set forth in the Sentencing Reform Act (SRA), and particularly the text of 18 U.S.C. § 3553(a), provide the ultimate instructions for sentencing decision-making by district and appellate courts. Acquitted conduct enhancements in some cases — especially when they significantly affect the applicable Guideline range and the ultimate sentence imposed — may disserve the statutory purposes of sentencing that Congress enumerated in 18 U.S.C. § 3553(a) and sought to vindicate in the SRA.
In this case, where Mr. White’s Guideline range was more than doubled on the basis of acquitted conduct, the District Court did not adequately examine whether the sentence complied with the SRA and, in particular, the statutory purposes of sentencing. Instead, the court reflexively treated acquitted conduct in the same way as convicted conduct without properly considering whether the enhancement would promote respect for the law and provide just punishment for the convicted offense. The sentence should, therefore, be vacated and remanded.
Atkins (yes, of Atkins fame) gets off of death row
The Washington Post has this article providing a notable "where are they now" update on the legal status of the defendant whose case before the Supreme Court led to the categorical exclusion of those with mental retardation from being subject to the death penalty. Here are the details:
More than five years after his case made legal history with a U.S. Supreme Court ban on executions of the mentally retarded, Daryl Atkins was spared his own long-held place on Virginia's death row when a judge commuted his sentence to life in prison Thursday.
The reprieve came for reasons that few would have guessed during the ever twisting, nearly 12-year course of the case, which had focused largely on Atkins's mental limitations. Instead, it came because of a Hampton lawyer's allegation of evidence suppression by prosecutors as they prepared for Atkins's murder trial in 1998. "The court finds that had he [Atkins's attorney] been given the evidence, the outcome might have been different," Judge Prentis Smiley Jr. of York County-Poquoson Circuit Court said after ruling that prosecutors had committed a violation by not fully disclosing the evidence.
"Lohan to Work in Morgue As Punishment"
From the truth-is-stranger-than-fiction department comes this AP story carrying the same headline as this post. Here are more specifics:
Lindsay Lohan is about to see dead people. The 21-year-old actress will soon be working at a morgue as part of her punishment for misdemeanor drunken driving, her attorney, Blair Berk, told a judge Thursday.
She has also spent two months in rehabilitation and has done some community service, Berk said at a hearing on her progress toward fulfilling the terms of her plea bargain. Her two four-hour days at the morgue are part of a court-ordered program to show drivers the real-life consequences of drinking and driving. She must also spend two days working in a hospital emergency room.
After a long week, I cannot think of a good joke to go with this story. Perhaps readers with more energy can lighten the morbid mood in the comments.
Murderers, Mexico and the media
The AP has this intriguing new piece about extradition policy and capital punishment headlined "Fleeing to Mexico Thwarts Death Penalty." Here are excerpts:
A methamphetamine dealer who gunned down a deputy during a traffic stop in Southern California. A man in Arizona who killed his ex-girlfriend's parents and brother and snatched his children. A man who suffocated his baby daughter and left her body in a toolbag on an expressway overpass near Chicago.
Ordinarily, these would be death penalty cases. But these men fled to Mexico, thereby escaping the possibility of execution. The reason: Mexico refuses to send anyone back to the United States unless the U.S. gives assurances it won't seek the death penalty — a 30-year-old policy that rankles some American prosecutors and enrages victims' families.
"We find it extremely disturbing that the Mexican government would dictate to us, in Arizona, how we would enforce our laws at the same time they are complaining about our immigration laws," said Barnett Lotstein, special assistant to the prosecutor in Maricopa County, Ariz., which includes Phoenix. "Even in the most egregious cases, the Mexican authorities say, 'No way,' and that's not justice. That's an interference of Mexican authorities in our judicial process in Arizona."
It may be about to happen again: A Marine accused of murdering a pregnant comrade in North Carolina and burning her remains in his backyard is believed to have fled to Mexico. Prosecutors said they have not decided whether to seek the death penalty. But if the Marine is captured in Mexico, capital punishment will be off the table.
Fugitives trying to escape the long arm of the law have been making a run for the border ever since frontier days, a practice romanticized in countless Hollywood Westerns. Mexico routinely returns fugitives to the U.S. to face justice. But under a 1978 treaty with the U.S., Mexico, which has no death penalty, will not extradite anyone facing possible execution. To get their hands on a fugitive, U.S. prosecutors must agree to seek no more than life in prison.
Other countries, including France and Canada, also demand such "death assurances." But the problem is more common with Mexico, since it is often a quick drive from the crime scene for a large portion of the United States. "If you can get to Mexico — if you have the means — it's a way of escaping the death penalty," said Issac Unah, a University of North Carolina political science professor.
The Justice Department said death assurances from foreign countries are fairly common, but it had no immediate numbers. State Department officials said Mexico extradited 73 suspects to the U.S. in 2007. Most were wanted on drug or murder charges. Lolita Parkinson, a spokeswoman for the Mexican Consulate in Houston, said Mexico opposes capital punishment on human rights grounds and has a particular obligation to protect the rights of people of Mexican descent who face prosecution in the U.S....
Last March, Teri March, the widow of a Los Angeles County sheriff's deputy who was killed during a traffic stop in 2002, lashed out at Mexico's justice system as Jorge Arroyo Garcia was sentenced to life in prison in California after hiding out in Mexico. "Garcia hid and hid behind a system that was very broken," she said.
The merits of this article are really interesting, but so is the tone and particulars of some of the quoted particulars. Specifically, I was struck by how this same kind of article, with the same kind of reactions from victims and some prosecutors, might have been run under the headline "Pleaing to Lesser Charges Thwarts Death Penalty" or "Fleeing to Courts Thwarts Death Penalty."
Consider, for example, the horrible murders committed by the Green River Killer Gary Ridgway or the Unabomber Ted Kaczynski or notorious torture/killer Charles Ng. These murderers and many, many others (especially in the Western part of the US) have "thwarted" the death penalty either though plea deals or through extended appeals to state and federal courts. Like Jorge Arroyo Garcia, these murderers are serving actual or functional life sentences, and I suspect some of the family members of their victims would contend that they have "hid and hid behind a system that was very broken."
Will mom have an impact in Padilla's sentencing?
This local article discusses the testimony of a very interested participant in the sentencing proceeding of Jose Padilla. Here are excerpts:
Jose Padilla's mother told a federal judge Thursday he is "not a monster" despite convictions on terrorism conspiracy and pleaded for mercy instead of the life prison sentence sought by prosecutors.
Padilla's lawyer also asked U.S. District Judge Marcia Cooke to consider the harsh, isolated conditions under which Padilla was held during 3 1/2 years in military custody as an enemy combatant.
Estela Lebron, who said she raised Padilla on her own, described him as a loving son who seemed to turn a corner in what had been a troubled life when he converted to Islam in the 1990s. Padilla was a gang member as a youth in Chicago and has a long criminal record. "My son is not a monster, and he's not dangerous to society," Lebron said in a brief statement. "I believe in justice, and I believe what they are doing to my son is an injustice."
The statement came on the sixth day of a sentencing hearing for Padilla, 37, and co-defendants Adham Amin Hassoun, 45, and 46-year-old Kifah Wael Jayyousi. They were convicted in August of being part of a support cell that provided money, supplies and recruits for al-Qaida and other Islamic extremist groups around the world. Sentencing guidelines call for prison terms of between 30 years and life, but Cooke has discretion to impose lesser sentences. The judge has not said when she will make her final decision, with the hearing set to continue Friday.
Here is a tough gendered question to ponder (and comment upon) over a long weekend: do you think the plea for mercy from Jose Padilla's mother is more (or less) likely to have an impact because the sentencing judge is a woman?
January 17, 2008
Fourth Circuit vacates above-guideline sentence because of notice problems
Though the Supreme Court now has a post-Booker notice issue on its docket with Irizarry (basics here), the Fourth Circuit apparently could not wait before vacating an above-guideline sentence today in US v. Fancher, No. 06-4913 (4th Cir. Jan. 17, 2008) (available here). Here is how the opinion starts:
Johnny Ray Fancher appeals the 480-month sentence imposed after he pleaded guilty to one count of receiving child pornography. We conclude that the district court did not provide sufficient notice that it was considering an above-Guidelines sentence, and we therefore vacate Fancher’s sentence and remand for re-sentencing.
Debating the policy arguments around capital child rape
The upcoming issue of the National Law Journal has this commentary by Vivian Berger, headlined "The Death Penalty — Unwise for Child Rape." Though the title of the piece suggests it concerns policy arguments, nearly the entire piece is focused on arguments in the Kennedy case surrounding the constitutionality of capital child rape. That said, the commentary ends with this paragraph:
Finally, even if constitutional — and despite the heinous nature of the crime — statutes like Louisiana's represent bad social policy. Child rape is generally committed by close family members or friends. By raising the stakes to life or death, such laws will likely augment the existing problem of underreporting. Moreover, protracted capital proceedings will worsen the youthful witness's trauma. For these reasons, even death penalty advocates should resist it in this context.
I have seen these arguments before, but I am eager to explore them with a bit more sophistication.
First, as for the underreporting claim, I share the instinct that making child rape a capital offense could augment the existing problem of underreporting. But do we know this is true? Isn't it possible that all the attention that the Kennedy case is bringing to the issue of child rape might actually lead to increased reporting of this terrible crime. Notably, this research article discussing the underreporting of violent crimes against juveniles urges authorities to take "steps to emphasize the criminal seriousness of such offenses." What emphasizes the seriousness of an offense more than making it potentially subject to the death penalty?
Second, as to the concern for "youthful witness's trauma," this assumes that most capital child rape charges will go to trial. But I suspect that the majority of capital child rape indictments, just like the majority of capital homicide indictments, will lead to a plea deal to a lesser charge and thereby avoid the need for protracted capital proceedings. As I have suggested in a number of prior posts (see here and here and here), the biggest impact of having the death penalty may be its impact on prosecutorial charging and plea bargaining practices.
I make these points not in an effort to make an affirmative case for capital child rape, but just to reiterate my concern that many policy arguments made against capital child rape tend to be based on supposition and assumptions, rather than on hard evidence.
Potent Eighth Circuit opinion affirming below-guideline probation sentence
Another Eighth Circuit decision today, this time in US v. Lehmann, No. 06-3597 (8th Cir. Jan. 17, 2008) (available here), highlights the import and impact of the Supreme Court's work in Gall. Lehmann affirms a below-guideline sentence of probation on a record that seems surely to have led to a reversal before Gall. Here are excerpts from the ruling (with some cites omitted):
It is undisputed that the district court correctly calculated the advisory sentencing guidelines range, which provided for a sentencing range of 37 to 46 months’ imprisonment before any departure or variance. Lehmann urged the district court to depart downward under § 5H1.6 of the advisory guidelines, or to vary from the advisory guidelines under 18 U.S.C. § 3553(a), based on her family ties and responsibilities....
The district court was persuaded by Lehmann’s evidence concerning the welfare of her son, and pronounced a sentence for the firearms charge of five years’ probation with six months of community confinement as a condition of probation....
The district court imposed a sentence of probation, and the government argues that the sentence is substantively unreasonable. Our precedents prior to Gall “routinely” rejected as unreasonable those variances that resulted in a sentence of probation when the guidelines recommend a term of imprisonment, in part because “probation is not merely a reduced sentence, but a different type of sentence altogether.” The Supreme Court in Gall, however, emphasized that “[o]ffenders on probation are subject to several standard conditions that substantially restrict their liberty,” 128 S. Ct. at 595, and affirmed a sentence of probation for a drug trafficker with an advisory guidelines range of 30 to 37 months’ imprisonment. The Court also indicated that a sentence of probation would be permissible for a drug trafficking offense with a guidelines range of 30-37 months’ imprisonment, if there were “compelling family circumstances where individuals [would] be very badly hurt in the defendant’s family if no one is available to take care of them.” Id. at 602 (internal quotation omitted).
The district court here imposed the standard conditions of probation, which Gall described as a “substantial restriction of freedom,” id. at 595, and added a special condition requiring Lehmann to serve six months in community confinement. In explaining its decision not to impose a term of imprisonment, the district court accepted expert testimony that sending Lehmann to prison would have a very negative effect on the emotional development of her young son, which is not materially different from the sort of “compelling family circumstances” that the Supreme Court indicated would justify probation for a drug trafficker with a similar advisory guidelines range. Id. at 602. Given the impermissibility of “proportionality” review, and the requisite deference due to the district court, we cannot conclude that the sentence imposed was substantively unreasonable in light of § 3553(a) and Gall.
Upcoming NYC conferences on lethal injection
Even though New York has not executed anyone in nearly 50 years (details here), and even though New York's modern death penalty statute was found constitutional nearly four years ago, New York City is the place to be if you want to learn all about the debates over lethal injection protocols in the next few months:
- Next week, as detailed here, Columbia Law School is having a half-day event, titled "The Supreme Court and the Legal, Medical, and Ethical Challenges to Execution by Lethal Injection."
- In early March, as detailed here, Fordham Law School is having a two-day event, titled simply "Lethal Injection."
I have the honor of participating in the Fordham event, where I likely will discuss some of the legal realist points I covered in this recent debate I had with Fordham Prof. Alison Nathan over the Baze case.
"Want to avoid Mr. Right Out of Jail?"
This little news story is the early front-runner for sentencing headline of the year. The full headline is, "Want to avoid Mr. Right Out of Jail?: California says background checks should be made simpler for daters," are here are the basics of the story:
Here's a new twist to the dating game — instant background checks. Asked out? Not so fast. Before saying yes or no, you could do a push-button check of domestic violence records under a new bill under consideration by California lawmakers. The measure is believed to be the first of its kind.
"Obviously, knowledge is power," said Assemblywoman Fiona Ma, D-San Francisco. "If you encounter someone who you think is a little bit creepy, you would have the ability to check."
Ma's proposal would require the state attorney general to create a searchable Web site to identify people convicted of one felony or two misdemeanor domestic violence crimes. The goal is to provide a resource similar to the state's existing Megan's Law Web site, which identifies sex offenders.
January 16, 2008
Backdating CEO gets 21 months
As detailed in this Bloomberg report, former Brocade Communications CEO "Gregory Reyes, the first CEO convicted by a jury for stock options manipulation, was sentenced to 21 months in prison and ordered to pay a $15 million fine." Here are more details:
The sentence today by U.S. District Judge Charles Breyer in San Francisco was less than the 24-to-30 month term he said was the maximum under law and the 33-month term prosecutors sought. The judge said he took into account Reyes's contributions to charity in giving the lesser sentence. The case was about "the failure of a CEO of a publicly traded company to honestly disclose financial information,'' Breyer said. "It is about lying to his company.''...
Reyes wept as he read a statement to Breyer apologizing for his conduct. "I'm sorry,'' he said. "There is much that I regret. If I could turn back the clock, I would. There are many things I would do differently.''
Reyes's lawyers asked for a sentence of no more than nine months in a halfway house followed by four months of home confinement with no restitution, according to court filings. They said a stiffer punishment was unwarranted because Reyes hadn't personally profited from backdated stock options, investors didn't suffer losses and his reputation and family have already been damaged by his legal battles.
During the hearing, Breyer said Reyes deserved more than the minimum sentence because he obstructed justice when he said in a declaration that he didn't backdate options. In sentencing Reyes to less than the maximum, the judge said he was struck by praise given Reyes in 400 letters submitted by his supporters. "Before this incident occurred, he acted in a way with respect to others, to help the less advantaged people,'' Breyer said.
In response to this press account, I cannot resist wondering whose idea was to have Reyes's statement talk about turning back the clock. Isn't that just what got him into trouble in the first place?
Eighth Circuit gets the message from SCOTUS
The Eighth Circuit today in US v. McGhee, No. 07-1064 (8th Cir. Jan. 16, 2008) (available here), affirms a below-guideline sentencing is a way that shows it understands the meaning and import of the Supreme Court's work in Gall and Kimbrough. Here's a snippet from the opinion (with cites omitted):
The government’s argument that the sentence is unreasonably lenient due to the absence of “extraordinary circumstances” fails in light of Gall.... Assuming the district court’s variance from the advisory guidelines range on the drug count could be characterized as “extraordinary,” we understand the Court’s opinion in Gall also to preclude a requirement of “extraordinary circumstances” to justify an “extraordinary variance,” for that was the only type of sentence outside the guidelines range to which this court had applied an “extraordinary circumstances” requirement. Applying the “deferential abuse-of-discretion standard” described in Gall, and abiding by Gall’s direction to refrain from “proportionality review,” we affirm the judgment of the district court.
More notable Sixth Circuit reasonableness work
The Sixth Circuit continues to churn out notable sentencing rulings at a steady clip, today bringing us US v. Moon, No. 06-5581 (6th Cir. Jan. 16, 2008) (available here) and US v. Sedore, No. 06-2259 (6th Cir. Jan. 16, 2008) (available here). Both are interesting reads, though for different reasons.
Moon is interesting primarily because of the facts: the defendant committed health care fraud by having "administered partial doses of chemotherapy medication while billing the insurance program for full doses." Needless to say, these facts produced some intriguing sentencing issues, though the panel unanimously affirms the reasonableness of the long within-guideline sentence given to the defendant.
Sedore has the same panel as Moon, but here there's dissension in the ranks: A district judge sitting by designation delivered the opinion of the court, while Judge Clay delivered a separate concurring opinion and Judge Merritt delivered a separate dissenting opinion. This passage from Judge Clay's concurrence provides a good overview of the issues that led to the splintered panel:
In his dissent, Judge Merritt suggests that this case is an example of what he calls “the problem of guidelineism or ‘guidelinitis.’” Merritt, J., dissenting at 10. While I fully appreciate Judge Merritt’s concern about the failure of many sentencing judges to engage an “individualized assessment based the facts presented,” Gall v. United States, 128 S. Ct. 586, 597 (2007), I do not find that the sentencing judge in this case was derelict in his duty to tailor Defendant’s sentence based upon all of the sentencing considerations found in 18 U.S.C. § 3553(a), and not just upon the advisory Guidelines range.
I also find Judge Merritt’s explanation of the ideal sentencing procedure to be inconsistent with the Supreme Court’s most recent sentencing pronouncements. Contrary to what Judge Merritt suggests, the Supreme Court in Gall did not direct district court judges to start only with the Guidelines base offense level and then make adjustments to that level based upon his or her own sentencing discretion. Merritt, J., dissenting at 12. Rather, the Supreme Court directed district judges to “begin all sentencing proceedings by correctly calculating the applicable Guidelines range” which would then serve as the “starting point and the initial benchmark” for sentencing. Gall, 128 S. Ct. at 596. This “applicable Guidelines range” includes not only the base offense level recommended by the Guidelines, but also any applicable adjustments to that level which the Sentencing Commission has recommended in the Guidelines. Thus, contrary to what Judge Merritt claims, post-Booker, sentencing judges must begin their sentencing deliberations by properly calculating the entire recommended Guidelines sentencing range, including any sentencing enhancements, not just the Guidelines-recommended base offense level. However, Judge Merritt is correct in emphasizing that after judges have determined this advisory Guidelines range, they must “then consider all of [the other] § 3553(a) factors” and “make an individualized assessment based on the facts presented.” Id. at 596-97. In this process, judges must use their discretion and should not unreflectively impose a within-Guidelines sentence. During this “individualized assessment” process, sentencing judges should not permit the Guidelines to be a strait-jacket which compel a particular sentence, but rather, as their name suggests, a helpful “guide” for crafting a sentence which is “sufficient but not greater than necessary to comply with the purposes” of sentencing set forth in § 3553(a).
A bit of historical perspective on execution methods
Providing an interesting perspective on the Supreme Court's consideration of execution methods in Baze, Jonathan Turley today has this notable op-ed in USA Today. Here is part of this piece that immediately caught my attention:
Pain has long been a surrogate issue for a deeper unease with death as a punishment. At one time, pain was part of the purpose of the moral execution. Early practitioners sought ever more gruesome and prolonged methods. Phalaris, the tyrant of Agrigentum (571 to 556 B.C.), used his infamous Brazen Bull, which was designed so that a man placed inside over a fire would roast while his moans were amplified through a series of tubes as soothing music for the tyrant. The Romans punished parricide (murder of a parent) by putting the condemned into a sack with a dog, a rooster, a viper and an ape — then throwing the sack into the water.
In the USA, executions were recorded almost immediately upon the landing of Europeans. In 1608, George Kendall was executed in Virginia for plotting against the Crown. By 1612, Virginia Gov. Sir Thomas Dale enacted the Divine, Moral and Martial Laws, which mandated the death penalty for virtually any conceivable crime, from trading with the Indians to killing chickens. Colonial executions included hanging, beheading, drowning, burning and breaking at the wheel (where a person was tied to a wagon wheel and his limbs were broken; then the shattered limbs wrapped around the wheel spokes). With the age of enlightenment, the idea of executing someone in a way to heighten suffering came into disrepute as states sought uniform methods of capital punishment.
I spotlight this passage not only to provide historical perspective on the modern debate over lethal injection protocols, but also to raise issues concerning the relationship between theoretical justifications for the death penalty and execution methods. It seems that the Romans and colonialists sensibly believed that, whether society's goal is to deter capital crimes or to achieve retributivist justice for, say, murder of a parent, an extreme execution method might better serve these goals than a painless one.
Examining race and gender in certain violent
In part because I am finding the interaction of racial and gender issues in the 2008 campaign to be fascinating, I read with interest this new piece available through SSRN titled "Blind Justice: Seeing Race and Gender in Cases of Violent Crime." Here is the abstract:
Racial disparities in the justice system, particularly as they relate to the death penalty, have received increasing scholarly and public-policy scrutiny recently. Comparatively little attention has been paid to the role of the defendant's sex in cases of violent crime, though research has been conducted on how the victim's sex affects court decisions. This article seeks to extend this line of inquiry by asking how women accused of killing their spouses or non-spousal intimate partners are treated by the judicial system. I present a theoretical framework that elucidates the impact of intersectionality and sexual stratification on structuring outcomes for women defendants in cases of violent crimes. To test implications derived from this framework, I utilize an original data set of homicide cases from Oakland County, Michigan, from 1986 to 1988. I find that female defendants were convicted more frequently than were male defendants, and that there is an interactive effect with race. Further, I find that the conviction rate was higher if the victim was an alleged batterer of the defendant. Finally, my data indicate that sentencing decisions have a clear racial aspect to them. I conclude with suggestions for future research.
Though the abstract suggests broad insights, the article's conclusion acknowledges that the data set used here is quite limited in time, location, numbers and focus. Indeed, as the author explains, one of the article's main contributions is focus particularly on the particular violent crime of "intimate partner killing" rather than on the broader category of "stranger homicide." (Of course, many homicides involve neither "intimate partners" or true "strangers," but that a concern for a different data coding conversation.)
Because of the narrow focus and numbers used in this data analysis, I am not sure how far the authori's findings can be extended. To the author's credit, she emphasizes at the end that the presented data "suffer from two linked limitations: small sample size and problems of generalizability."
Finally, to the extent this author and others are giving more attention to important intersectionality issues in the criminal justice context, I hope class concerns will be brought more fully and forcefully into the analysis. Though both race and gender can play large roles in the actual administration of justice in this country, I strongly believe that socioeconomic realities will often eclipse (and dynamically interact with) these other factors in profound ways.
Padilla subject to USSG terrorist enhancement
As highlighted in this effective Christian Science Monitor article from earlier this week, the guideline sentencing ranged faced by Jose Padilla and his co-defendants turns heavily on the potential application of a terrorism enhancement. And, as now reported in this AP article, yesterday "U.S. District Judge Marcia Cooke rejected defense arguments that there was little evidence linking Padilla, Adham Amin Hassoun and Kifah Wael Jayyousi to actual terrorist attacks or groups [and] found that enhanced terrorism penalties could be applied" under the guidelines. This Los Angeles Times article provides more details about all the guideline determinations made by Judge Cooke yesterday.
UPDATE: How Appealing collects additional Padilla sentencing media coverage here.
January 15, 2008
SCOTUS oral argument transcripts in ACCA cases
As previewed here, today the Supreme Court heard oral argument in US v. Rodriquez (06-1646) and Begay v. US (06-11543), two cases exploring whether certain prior state offenses should trigger the severe mandatory minimum sentencing terms Congress provided in the Armed Career Criminal Act (known as ACCA). The oral argument transcripts from these two cases are now available here and here.
I have now printed out these two transcripts and will take them home for evening consumption (along with my federal-judicial bucket o' brew).
UPDATE: Both transcripts make for interesting reads, and some deep conceptual and jurisprudential issues get covered in Rodriquez. As in other ACCA cases, it seems that Justice Scalia is most concerned about the governments efforts to give an unclear statute an unduly broad reading. Indeed, at the end of the Rodriquez, when the government asserts that a narrow reading of the statute could lead to "pernicious consequences," Justice Scalia responds: "It's good to put more people in jail? I mean, that isn't necessarily what we're after." Of course, this does seem to be what DOJ is usually after when it presses broad readings of ACCA.
Thoughtful analysis of the realities of Second Amendment litigation
Over at the Balkinization, Jack Balkin has this very effective post titled "Explaining The Bush Administration's Tepid Support For Gun Rights." The post does a great job explaining why the Bush Administration, as I noted here, is now taking something of a blunderbuss approach (pun intended) before the Supreme Court in Heller when suggesting limits on the reach of an individual-oriented Second Amendment right. Here is how the post concludes:
[O]nce the Supreme Court recognizes an individual right in Heller, the future of federal gun regulations will be in the hands of the federal courts. But because the federal judiciary tends to be composed of elites similar to those in the Republican establishment, one might predict that, at least in the short run, a Republican-controlled judiciary will not be significantly more radical in its conclusions than the Bush Justice Department is today. (And of course, Democratic appointees will probably be less so)....
Does this mean that Heller will be only a symbolic victory? Not at all. It means only that the public fight over gun rights will have entered a new phase, one in which both major political parties will have to readjust their rhetoric.
As we focus on these important Second Amendment litigation reality issues, I think it is especially important to consider who will be bringing Second Amendment claims after Heller. The Second Amendment might have some legs if the "pro-gun bar" (which I suppose I am a part of) can find some very sympathetic plaintiffs to bring strategic follow-up litigation after Heller — folks like Gary Don Holt who simply wants to be able to use a gun to go hunting 20 years after a minor pot conviction. But, if the Second Amendment is mostly brought up by defendants in criminal cases, I suspect the lower federal courts (regardless of their party affiliation) will devise a number of novel doctrines to limit the Second Amendment's reach.
Some recent related posts:
Quite a resentencing Day in the Second Circuit
The Second Circuit covers some notable and important procedural ground today in US v. Day, No. 05-4285 (2d Cir. Jan. 15, 2008) (available here). The per curiam Day opinion starts this way:
Christopher Campbell Day pled guilty to conspiring to distribute and possess with intent to distribute over one thousand kilograms of marijuana. He appeals from a memorandum and order of the United States District Court for the Eastern District of New York (Platt, J.) resentencing him, after a remand, to the same term of 180 months’ imprisonment. By resentencing Day without providing notice to Day or his counsel, the district judge violated Day’s right to be present at resentencing and his right to notice that the court intended to impose an adverse non-Guidelines sentence. In addition, by providing only a written sentencing explanation in the form of a memorandum and order, the district judge neglected 18 U.S.C. § 3553(c), which requires a sentencing judge to state “in open court” the reasons for imposing a particular sentence. Consequently, we vacate the sentence and remand the case for resentencing by a different judge. Reassignment is appropriate because the district judge may reasonably be expected to have substantial difficulty ignoring his previous views during a third sentencing proceeding. Moreover, resentencing without eliciting the views of the defendant or the prosecutor bespeaks a lack of receptivity to their views and arguments.
An intoxicating way to celebrate the Gall ruling
Long-time readers with great memories may recall an entertaining opinion written in right after Booker by US District Judge Richard Kopf. In this opinion, as detailed here, Judge Kopf promised to buy a beer for judicial colleagues who took a different view of Booker if Judge Kopf's view turned out to be wrong. As explained here, after the Supreme Court's ruling in Gall, Judge Kopf concluded not only that he owed his judicial colleagues a beer, but also that he owed me one, too.
Though I did not think Judge Kopf owed me anything, I was not about to refuse a beer from a federal judge. (According to a little known Czech legend, the deity Radegast, who is the god of mutuality and is said to have invented beer, ensures that a lawyer will have his motions denied for a full year after he refuses a beer from a judge.)
But, as I wondered how Judge Kopf might "pay up," never did I expect what arrived in my office today: a huge box shipped from from Bucket O' Brew. As the picture above reveals, Judge Kopf
selected the Northwest Bucket (see UPDATE) for my imbibing pleasure (and just in time for a long weekend with lots of great sports to watch). As the picture above shows, Judge Kopf sent me a total of six beers, which means I have an extra beer to share with almost every member of the Gall majority. (I have a feeling that Justice Souter is not much of a beer drinker, but that I might need to keep the fridge full for the likes of Justices Scalia and Ginsburg when they get together to party).
To reinforce what a great sense of humor Judge Kopf has, check out the shipping label that Judge Kopf engineered. If you click on the second picture here, you should be able to see that my last name is misspelled as "Beerman." To paraphrase one of my favorite philosophers, "Mmmmm, Beer-man."
UPDATE: I was pleased to discover, after getting home and unpacking my brew bucket, that Judge Kopf had in fact sent me the Party Barge. This smooth-sailing barge includes a full dozen beers, which means that I have a brewski for every member of the Court and even a few extra for Justices Alito (who perhaps can start to understand the hidden genius of both Booker opinions if he gets a little sloshed). I wonder what drinking games the Justices like to play at their parties.
Ninth Circuit issues (first?) Kimbrough circuit remand
Though perhaps other circuit have ruled similarly in other cases, the Ninth Circuit today in US v. Casteneda, No. 05-10372 (9th Cir. Jan. 15, 2008) (available here), issues a notable Kimbrough remand. Here is the key text of the ruling:
These statements [from the court at initial sentencing] demonstrate that the district court did not foresee the extension of its Booker discretion that would be announced two years later by the Supreme Court in Kimbrough. Thus, the district court did not feel free to consider whether “any unwarranted disparity created by the crack/ powder ratio” produced a sentence “ ‘greater than necessary’ to achieve § 3553(a)’s purposes.” Id. at 574-75.
We vacate the sentence and remand to the district court to reconsider the sentence in light of the Kimbrough decision and to determine whether the disparity between crack and powder cocaine produced a sentence “greater than necessary” under § 3553(a). As noted above, this issue comes before the panel as a Petition for Rehearing. We grant the Petition for Rehearing with respect to the foregoing issue....
Though I might dispute characterizing the Kimbrough ruling as "extension" of Booker, it is encouraging to see the Ninth Circuit correct its prior ruling here.
Debatable sentencing rulings at end of long white-collar affirmance
Yesterday the Third Circuit issued a very long opinion in US v. Jimenez, No. 05-4098 (3d Cir. Jan. 14, 2008) (available here), which affirms the convictions and sentences of five persons found guilty of mortgage fraud and bank fraud. A complicated sentencing discussion begins on page 40 of the opinion, and over the next 10+ pages the opinion covers a lot of ground in ways that strike me as questionable. The Jiminez panel indicates, inter alia, that defendants have a burden to dispute the government's prima facie showing on loss, that the potential use of the wrong guideline manual was harmless, and that acquitted conduct can readily be treated exactly the same as uncharged conduct.
Though the various rulings in Jimenez are not extreme, many seem quite debatable and likely would have been subject to more debate absent all the other issues that the Jimenez panel had to deal with here. Of particular note, I do not believe the Third Circuit has previously ruled after Blakely and Booker that acquitted conduct can and should readily be treated exactly the same as uncharged conduct, but Jimenez now seems to make this outcome the law of the circuit.
Could SCOTUS securities fraud ruling help white-collar defendants?
According to this post at SCOTUSblog, the Supreme Court this morning issued one opinion, ruling 5-3 in Stoneridge Investment Partners v. Scientific-Atlanta (06-43) "that fraud claims are not allowed against third parties that did not directly mislead investors but helped those who did."
Even though Stoneridge is a civil securities fraud case, I cannot help but wonder if the opinion (available here) might have any themes or language that could indirectly impact sentencing determinations (on issues like loss) in some criminal securities fraud cases. Of course, experts in this complicated arena are highly encouraged to chime in.
UPDATE: After a quick read of Stoneridge, I do not see much specific language that will warm a white-collar defense attorney's heart. However, the thematic concerns of federalism and over-regulation that find some expression of Justice Kennedy's opinion for the Court might be developed effectively in the right kind of federal sentencing proceeding.
Resource page on Kennedy and the opaqueness of child rape statistics
Over at his great blog Sex Crimes, Corey Yung now has this new resource page with on-line materials related to Kennedy v. Louisiana, the case to be heard by SCOTUS later this Term concerning the constitutionality of child rape as a capital offense. The page got me to thinking about whether there is any good empiricism on the number and type of child rape offenses in the US. A hasty on-line search led me to these less-than-perfect data sources:
- This BJS publication, titled "Child Rape Victims, 1992," which provides a data "on the ages of female rape victims" obtained from only 15 States based on reports to police in 1992.
- This article from the Juvenile Justice Bulletin, titled "Explanations for the Decline in Child Sexual Abuse Cases," which only discusses trends and does not focus only on rape.
- This fact sheet on child sexual assault from the Crimes Against Children Research Center.
I raise this data issue because the non-homicide crime which got Patrick Kennedy placed on death row ought to be placed in some broader context. As I have said this prior post, because the facts surrounding the Kennedy case do not seem extremely aggravating, I am troubled greatly by the fact that Kennedy is one of the very few persons sentenced to death for a non-homicide offense. This reality is even more troubling if, as I suspect, data reveal that there are ten of thousands of crimes each year similar to the one that got Patrick Kennedy sentenced to death.
Gun sale sentencing goes forward without "victim" input
As detailed in this Salt Lake Tribune article, the "man who sold Trolley Square gunman Sulejman Talovic one of the guns he used in his deadly Feb. 12 rampage was sentenced Monday to 15 months in prison." This sentencing is notable in part because it went forward without the involvement of persons who claimed to be victims of this crime and vigorously sought to participate. As the article explains:
Before imposing the term, U.S. District Judge Dale Kimball denied a request to delay the hearing by the parents of Vanessa Quinn, who was fatally shot with the .38-caliber Smith & Wesson that Hunter sold to Talovic. In a motion filed shortly before the sentencing, Sue and Ken Antrobus, of Cincinnati, asked Kimball to give them three weeks to try to overturn a ruling that their daughter is not considered a victim of the illegal sale. The two had requested the designation under the federal Crime Victims' Rights Act (CVRA). They hoped it would allow them, as their daughter's representatives, to ask the judge to impose a 99-month sentence.
Kimball said although the Antrobuses are victims of the shooting, they are not considered victims under the CVRA of the gun sale. That ruling was upheld Friday by a three-judge panel of the 10th U.S. Circuit Court of Appeals. Lawyers for the parents said Monday they will appeal to the full 10th Circuit and then to the U.S. Supreme Court if necessary to get the couple, who did not attend the sentencing, designated as victims. If they are successful, the Antrobuses could then petition for a new sentencing.
Their attorneys believe there is evidence that Talovic talked to Hunter about a bank robbery, which would have been a warning that the gun might be used in a violent crime. One of the lawyers, Paul Cassell, said the Antrobuses are disappointed Hunter got only 15 months behind bars, followed by 36 months of supervised release. "This is the man who sold the murder weapon that killed their daughter," said Cassell, who described Hunter's apology as "too little too late."
Notably, under normal SCOTUS timelines, it seems unlikely that the Antrobuses could obtain Supreme Court review and get a ruling before the defendant Hunter served his prison term. That is obviously why, as discussed here, Congress included a "rapid return" provision for circuit review under the CVRA. But there is no comparable provision requiring the Supreme Court to more quickly, even though the Justice might in their discretion give this type of CVRA appeal fast-track treatment. (After all, death row defendants often get fast-track treatment in their appeals. I would hope parents of a murder victim would get at least as much procedural attention from SCOTUS as most murderers get.)
Some recent related posts about this case:
January 14, 2008
Previewing Tuesday's ACCA cases in the Supreme Court
Tuesday morning the Supreme Court will hear argument in US v. Rodriquez (06-1646) and Begay v. US (06-11543), two cases exploring whether certain prior state offense should trigger the severe mandatory minimum sentencing terms Congress provided in the Armed Career Criminal Act (known as ACCA).
As detailed in this prior post, I wrote up a formal preview of these two ACCA cases for the ABA. In this preview, I noted that these cases, though technically raising pure issues of statutory interpretation, implicate a number of cross-cutting jurisprudential and policy considerations. For another take on these cases, previews are also available from SCOTUSwiki on Rodriquez here and Begay here.
New HRW report assailing juve LWOP in California
As detailed in this press statement, today a new report was released by Human Rights Watch calling upon the California legislature to "pass a law this month to end the sentencing of children to prison for life with no possibility of parole." The report is entitled "When I Die, They'll Send Me Home: Youth Sentenced to Life without Parole in California," and it can be accessed in various ways from this link. Here is the start of the report's summary:
Approximately 227 youth have been sentenced to die in California's prisons. They have not been sentenced to death: the death penalty was found unconstitutional for juveniles by the United States Supreme Court in 2005. Instead, these young people have been sentenced to prison for the rest of their lives, with no opportunity for parole and no chance for release. Their crimes were committed when they were teenagers, yet they will die in prison. Remarkably, many of the adults who were codefendants and took part in their crimes received lower sentences and will one day be released from prison.
In the United States at least 2,380 people are serving life without parole for crimes they committed when they were under the age of 18. In the rest of the world, just seven people are known to be serving this sentence for crimes committed when they were juveniles. Although ten other countries have laws permitting life without parole, in practice most do not use the sentence for those under age 18. International law prohibits the use of life without parole for those who are not yet 18 years old. The United States is in violation of those laws and out of step with the rest of the world.
Some recent related posts on juve life sentences:
Sixth Circuit continues taking reasonableness review seriously
For many reasons, including the fact that the case has been bouncing around the federal courts for more than 5 years, the Sixth Circuit might have been inclined to summarily approve the within-guideline sentence at issue in US v. Peters, No. 05-6101 (6th Cir. Jan. 14, 2008) (available here). Instead, in a brief published opinion, the Peters panel remands for another resentencing because "the District Court did not address the defendant's 'time-served' argument or the mitigating factors indicating that a 'time-served' sentence would satisfy the so-called 'parsimony provision' of 18 U.S.C. § 3553(a)." Peters thus serves as another reminder that district courts, at least in the Sixth Circuit, need to make sure they always show their sentencing work after Booker.
A fascinating prosecutorial critique of the steroid investigation
Writing at Slate, my colleague Frank Bowman has this fascinting piece headlined, "Foul Ball: How the Justice Department misplayed the steroids investigation." Here is how it begins:
Tomorrow, former Sen. George Mitchell will testify before a House committee about his investigation into performance-enhancing drugs in baseball. When they're done listening, members of Congress should ask some hard questions about the relationship between Mitchell's report and the Justice Department criminal investigation that gave him most of his information.
Make no mistake. As a former prosecutor, I am delighted that the DoJ unleashed the bloodhounds of the criminal justice system on drug cheats in baseball. Taken without a prescription, anabolic steroids and human growth hormone are every bit as illegal as cocaine, heroin, or marijuana. Simple equity suggests that the federal government should be just as ready to pursue jillionaire bat-wielding juicers and their suppliers as penniless crackheads and their dealers. More importantly, allowing obviously chemically enhanced cheaters to stand rich, idolized, and unchallenged at the pinnacle of professional athletics increases the likelihood that the legions of young people who long to be sports heroes will emulate their idols and wreck their bodies in the process.
That said, the Justice Department has mishandled the baseball steroid investigation in two important ways. First, the DoJ is prosecuting, or at least focusing on, the wrong people. The primary targets should be players, not suppliers. At the same time, the U.S. Department of Justice had no business feeding Mitchell, and through him the public, damaging information about players it lacks the evidence or the will to prosecute.
Lots more Gall and Kimbrough GVRs from SCOTUS
Continuing a story that started last week, today's new order list from the Supreme Court this morning includes a bunch of Gall and Kimbrough GVRs. This time, I count only 21 GVRs, but that takes the total to nearly 100 and I suspect a few more with come in the weeks ahead.
As I have said before, these GVRs are not that surprising given the rulings in Gall and Kimbrough, but how the circuit courts deal with all these cases they got wrong the first time will be interesting to watch. Relatedly, I hope readers will continue to spotlight in the comments any other notable cases appearing on — or missing from — these GVR lists.
UK getting serious about GPS through microchip implants
I have long thought that the idea (and success?) of GPS offender tracking would lead to proposals for microchip implants. Indeed, in this post last May, I asked "Are microchip implants for offenders inevitable?" Consequently, I am not surprised to see this news from the UK:
Amid concerns about the security of existing tagging systems and prison overcrowding, the Ministry of Justice is investigating the use of satellite and radio-wave technology to monitor criminals. But, instead of being contained in bracelets worn around the ankle, the tiny chips would be surgically inserted under the skin of offenders in the community.... The tags, labelled "spychips" by privacy campaigners, are already used around the world to keep track of dogs, cats, cattle and airport luggage, but there is no record of the technology being used to monitor offenders in the community....
The move is in line with a proposal from Ken Jones, the president of the Association of Chief Police Officers, that electronic chips should be surgically implanted into convicted paedophiles and sex offenders in order to track them more easily. Global Positioning System (GPS) technology is seen as the favoured method of monitoring such offenders to prevent them going near "forbidden" zones such as primary schools....
The Government has been forced to review sentencing policy amid serious overcrowding in the nation's jails, after the prison population soared from 60,000 in 1997 to 80,000 today....
More than 17,000 individuals, including criminals and suspects released on bail, are subject to electronic monitoring at any one time, under curfews requiring them to stay at home up to 12 hours a day. But official figures reveal that almost 2,000 offenders a year escape monitoring by tampering with ankle tags or tearing them off....
Harry Fletcher, assistant general secretary of the National Association of Probation Officers, said the proposal would not make his members' lives easier and would degrade their clients.... "This is the sort of daft idea that comes up from the department every now and then, but tagging people in the same way we tag our pets cannot be the way ahead."
Though many may recoil from the Brave New World feel of any proposed microchip tracking system, I think these technologies could and should be used for progressive sentencing reforms. I suspect many offenders at initial sentencing and when considered for parole would happily agree to microchip tracking over a longer term of incarceration. Moreover, the fact that "we tag our pets" this way is not clearly a sign it is inhumane; after all, as noted here, those objecting to lethal injection generally want the criminal justice system to adopt the protocols we use for our pets.
Some related posts on GPS tracking:
- Are microchip implants for offenders inevitable?
- A sober (and caffeinated) look at GPS tracking realities
- Are we willing to pay the costs of (effective?) technocorrections like GPS tracking?
- The devil's in the details of GPS tracking of sex offenders
- New article examining incapacitation innovations
January 13, 2008
Are Scooter Libby and Martha Stewart and millions of others not among the Constitution's "people"?
Here, in full, is the text of the Second Amendment: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." The meaning and application of this provision comes before the Supreme Court this year in the Heller case, and I think the case may result in a number of surprising outcomes. One such outcome that surprises me comes from the US government's brief filed late last week.
As detailed in this SCOTUSblog post, through the filing of this amicus brief, the "Bush Administration urged the Supreme Court Friday night to rule that the Second Amendment protects an individual right to have a gun for private use." Though this amicus brief is full of interesting points, I was taken aback by this assertion: "the Second Amendment, properly construed, ... does not provide any protections to certain individuals, such as convicted felons, who have never been understood to be within the Amendment’s coverage." In other words, it seems that the US government is arguing that "the people" referenced in the Second Amendment's text does not include any of the millions of Americans with a felony conviction.
Notably, the Bill of Rights uses the phrase "the people" in four other Amendments (the First, Fourth, Ninth and Tenth). I have never before heard a claim that all convicted felons are categorically denied the individual rights protected by all these Amendments. The Fourth Amendment, notably, speaks of the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Supreme Court has never suggested that individuals, once convicted of a felony, thereafter cannot assert Fourth Amendment rights. (The Supreme Court has held that searches of prisoners and paroles can be reasonable even without any individualized suspicion; but such rulings are a far cry from suggesting that all convicted felons are no longer among "the people" who have rights under the Fourth Amendment.)
I find notable and telling the US government's need to take such a blunderbuss approach (pun intended) when seeking to limit the reach of Second Amendment rights. The government's brief confirms my instinct that, if an individual-right genie emerges from Heller, it may prove quite hard to get Second Amendment rights back into the regulatory bottle.
Start spreading the prison closing news
The Spitzer administration announced on Friday a plan to close a medium-security prison and three minimum-security camps upstate, citing the declining crime and prison population across the state. Officials said the move would save taxpayers upward of $70 million in the next few years.
The closing of the four prisons — the medium-security Hudson Correctional Facility in Columbia County and the minimum-security camps Pharsalia in Chenango County, Gabriels in Franklin County and McGregor at Mount McGregor Correctional Facility in Saratoga County — will be felt in the counties where the prisons have provided steady, good-paying jobs.
“We are very concerned with his plan, especially in light of the governor’s push to release criminals out of prison early through the parole system,” said Mark Hansen, a spokesman for the Republican Senate majority. “We have some very serious questions about his plan. We want to see his justification for this.” Mr. Hansen said Mr. Spitzer’s announcement was particularly distressing to lawmakers whose districts are home to the centers and whose communities depend on prison employment.
Now, channeling my nerdy Weird Al, here goes:
Start spreading the news, they're leaving today
soon again to be a part of it — New York, New York
These pisoners shoes, they are longing to stray
Right back to the very heart of it — New York, New York
They're gonna wake up in a city with crime rates down
And think they're king of the hill — but few jobs in town
These prison town jobs, are melting away
They'll need a brand new job to work — in old New York
If they can do it there, they can do it anywhere
Other states should follow New York, New York.
I don't know what's more surprising and disturbing: (a) the fact that Gov. Spitzer opponents seem bother by declining crime and prison population across New York, or (b) that most other states throughout the nation cannot figure out ways to follow the great achievements that New Yok has found a way to achieve.
An effort to get politicians focused on needed sentencing reforms
Especially with so many states (as well as the feds) struggling with prison and sentencing reform issues, I keep waiting and hoping for the national political dialog to focus more on serious crime and punishment issues. Helpfully, I see that political folks working elsewhere are making serious efforts to push sentencing reform issues into the political agenda. Specifically, here's what I learned via e-mail from a helpful person affiliated with Washblog:
With the help of Justice Works! we've been focusing on [Washington's 3-strike law] on Washblog and making an effort to invite incarcerated people and their friends, supporters, and family members to comment. For example:
And here are more recent posts from Washblog that are specifically seeking to get this issue brought into a broader political dialogue.
- INTRODUCE THIS! Submitting Resolutions at WA's Presidential Caucuses (3-Strikes Reform)
- To Those Who Have Shown Notice to Cruel and Unconstitutional Laws in Washington State
As I have highlighted in a number of posts that can be found in this Campaign 2008 category index, crime and punishment issues already have played a little role in the presidential campaign, and I am happy to see others working on sentencing reform trying to get these issues on the nation's agenda.
Kentucky, like so many other states, struggling with prison overcrowding
Reporting on a story familiar in many states, this local article discusses some of the consequences of Kentucky's problems with prison overcrowding. The piece is headlined "Cramming in the inmates: With prisons full, many county jails are overflowing with felons," and here are excerpts:
Lincoln County's jail, like many in Kentucky, is packed beyond capacity. It has room for 72 prisoners. On a recent weekday, it held 101, about two dozen of them state inmates for whom there is no space in prisons....
Kentucky's 16 prisons are full. The Corrections Department has built only one in the last decade, even as its inmate population nearly doubled to 22,500 because of the war on drugs and tougher penalties for other crimes. The state's solution? Overcrowd the local jails....
If Kentucky's elected leaders continue to ignore the problem, the state soon will spend half a billion dollars a year to incarcerate a population equivalent to the city of Frankfort. The expense is crippling the state as well as the counties, who say they aren't sufficiently compensated. A few counties spend close to half their budgets on their jails....
Public safety also could be at risk. Jails and prisons aren't the same thing. Jails tend to have less space and money. For state inmates -- nearly all of whom will be released one day -- jails offer little of the rehabilitation available in prisons, such as drug and alcohol treatment and job training, or libraries, dining halls and exercise yards.
New Gov. Steve Beshear concedes that he doesn't have answers. Beshear spared the Corrections Department from the current round of state budget cuts, but it's unlikely to get additional money. "I'm not sure what to do at the moment," Beshear said. "Obviously, a great number of offenders who are in our jails and in our prisons right now are drug-related. ... We all know for a fact that if there is an answer to the drug problem, it's treatment and rehabilitation. But that costs money. And right now, we don't have any."...
Recent coverage of other states' struggles with prison populations:
- see also this post, "Costs cause states to pursue prison alternatives"