January 15, 2008
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"