July 26, 2008
Three more uneventful(?) lethal injections, including one with a political spin
As detailed in this DPIC list, Mississippi and Texas and Virginia all completed executions over the last few days, and I have not seen any reported problems with the lethal injection protocols used in these executions. Perhaps all the Baze litigation has helped motivate state official to make extra sure that the lethal injection process is conducted in as carefully as possible. I cannot recall reports of any serious problems with any of the 15 executions that have now taken place over the last three months since the Baze de facto moratorium was lifted after the Supreme Court's ruling.
Though technologically uneventful, this local report from Mississippi highlights that its execution had an interesting political spin as a result of the condemn's last words:
Before he died Wednesday evening, death row inmate Dale Leo Bishop apologized to his victim's family, thanked America and urged people to vote for Democratic presidential candidate Barack Obama. "For those who oppose the death penalty and want to see it end, our best bet is to vote for Barack Obama because his supporters have been working behind the scenes to end this practice," Bishop said....
A Lee County jury convicted Bishop in 2000 of participating in the murder of Marcus Gentry, who was beaten to death in December 1998 with a claw hammer. His body was found along a logging road near Saltillo. Bishop did not deliver the fatal blows. He became only the eighth person put to death who did not directly kill his victim among the more than 1,100 executed since the U.S. Supreme Court reinstated the death penalty in 1976 -- not including contract killings.
Bishop's final words were: "God bless America. It has been great living here. That's all." Bishop called Gentry's beating death on Dec. 10, 1998, a "senseless and needless act." Earlier in the day, Bishop described the fatal beating as "a fight that had gone too far," state Corrections Commissioner Chris Epps said....
Bishop, who was mentally ill, asked a judge for the death penalty after he was convicted.... The other man convicted of Gentry's murder, Jessie Johnson, who was tried separately, is serving a life sentence. Protesters have used the disparity in the two sentences to illustrate the injustice they say is inherent in the death penalty. Under Mississippi law, an accessory before the fact can be convicted of the same crime someone else commits.
I doubt the Obama campaign will be eager to embrace the endorsement of a mentally ill, now-executed defendant. Nevertheless, the fact that Bishop coupled his political advocacy with a set of patriotic last words ("God bless America. It has been great living here.") provides yet another example of intriguing realities that attend the final moments before a state imposes the ultimate punishment.
Are we headed toward virtual sentencing proceedings?
Because I am always interested in the intersection of sentencing and technology, I found notable this local story headlined "Sentencing in steroid case is first by videoconference." Here are excerpts:
The sentencing Thursday in federal court was typical in every way except one. While the judge and the attorneys were in a courtroom in Scranton, the defendant was 900 miles away in Minneapolis. In what is believed to be a first for the William J. Nealon Federal Building & U.S. Courthouse, a woman arrested as a result of an illegal steroid investigation was sentenced by videoconference.
U.S. District Judge Thomas I. Vanaskie sentenced Cathy Jones, 43, to two years’ probation for her guilty plea earlier this year to aiding and abetting possession of anabolic steroids. Judges at the courthouse have accepted guilty pleas by videoconference, but there had never been a sentencing, Judge Vanaskie said afterward....
Judge Vanaskie said he was pleased the dignity of the proceeding was maintained. He was also surprised that the video link did not lessen the emotional impact when Ms. Jones addressed the court, sobbing as she told the judge, “I’m just trying to start a new life.”
“I was worried about that — that it was too sterile,” Judge Vanaskie said. “But I didn’t have that impression today.” The judge said while such proceedings may become more common, they will not become the norm. He cited the unique circumstances of Ms. Jones’ case — she pleaded guilty to a misdemeanor, and the sentencing guidelines indicated a probationary sentence. If she had been facing imprisonment, he probably would not have agreed to the videoconference, he said....
Ms. Jones, who was living in Somerset, Texas, at the time of her arrest, has since separated from her husband and moved to Minnesota to be closer to her family. She asked to be sentenced by videoconference, saying traveling to Scranton would be a hardship because of her limited means.
I am pretty sure that videoconference sentencings have previously taken place when the defendant has requested the use of technology to avoid the costs and hassles of travel to a distant courthouse. And once the technology is put in place and participants get accustom to the process, I suspect sentencing by videoconference could become common because if it proves to be a significant cost-saver for underfunded court systems.
July 25, 2008
Judge Gertner assails quantity-based drug guidelines
District Judge Nancy Gertner has a new opinion which takes on and takes down the notion that drug quantities provide a sound basis for sentencing levels. Here are parts of the start of Judge Gertner's work in US v. Cabrera, No. 06cr10343-NG (D. Mass. July 25, 2008) (available for download below):
Oscar Cabrera ("Cabrera") was, at most, a delivery man caught in a government sting. He hardly fits the profile of a major drug dealer. He was told -- apparently at the last minute -- to pick up the drugs that undercover government agents had brought from Texas. At the time of the deal, he was homeless, living out of his car; he had little or no idea about what was going on in the drug deal; he had no role in negotiating it, no money with him at the time of the sting, and was not remotely capable of investing in this drug transaction, or for that matter, any other. The real purchasers did not trust him with much, and surely not the drug money. He was to receive perhaps $250 to $500 (the amount was never set) for drugs valued far, far more than that. He had no prior criminal record. The agents had no idea who he was prior to his arrest. The real purchasers got away. Cabrera was caught -- quite literally -- holding the bag.
The statute under which Cabrera was prosecuted, and the Federal Sentencing Guidelines, focus largely on the quantity of drugs the defendant had, minimizing the significance of other relevant -- and important -- questions, like the defendant's real role in the offense or his background.... If I were to follow the Guidelines and sentence Cabrera solely on the basis of the drugs government agents brought with them, the result would be a classic case of false uniformity. False uniformity occurs when we treat equally individuals who are not remotely equal because we permit a single consideration, like drug quantity, to mask other important factors. Drug quantity under the Guidelines treats as similar the drug dealers who stood to gain a substantial profit, here the purchasers who escaped, and the deliveryman, Cabrera, who received little more than piecework wages.
Interesting ruling on prosecutors' filing cooperation motions
Thanks to this post at AL&P, I saw that the First Circuit yesterday issued an interesting ruling in US v. Mulero-Algarin, No. 07-1701 (1st Cir. July 24, 2008) (available here), concerning federal defendant's getting cooperation credit and motions from the government. Here is how the opinion starts:
A criminal defendant who, after he is sentenced, elects to cooperate with the government in the prosecution of others may in certain circumstances receive a reduced sentence. See Fed. R. Crim. P. 35(b). Within wide limits, however, the government holds the key that can unlock the door to such leniency. This appeal implicates the extent of the government's discretion in deciding when to withhold the use of that key. Concluding, as we do, that the district court acted appropriately both in refusing to compel the government to file a Rule 35(b) motion and in declining to allow either discovery or an evidentiary hearing, we affirm its ruling.
Bad NBA ref may have pulled a tough judge
As detailed in this New York Times article, headlined "Two Punishments Suggest Stiff Penalty for Donaghy," early sentencings in the NBA betting case suggest that the crooked ref is not going to get a pass:
Two co-defendants of the disgraced N.B.A. referee Tim Donaghy were sentenced Thursday, and legal experts said their sentences indicated that Donaghy was likely to face a stiff punishment when he appears in court Tuesday.
In federal court in Brooklyn, United States District Judge Carol Amon sentenced one of Donaghy’s co-defendants, Thomas Martino, to 12 months and a day in prison. Federal sentencing guidelines suggested that he should have received 8 to 14 months. The other co-defendant, James Battista, was sentenced to 15 months. The guidelines suggested he should have received 10 to 16 months.
The guidelines in Donaghy’s case suggest a prison sentence of roughly 27 to 33 months.
When Donaghy pleaded guilty last August, he admitted to providing inside information to his co-defendants and to placing bets on games he officiated. On Thursday, Amon highlighted how the crimes had compromised basketball games. “No single person is more important to the game than the referee,” she said. “If his interest is compromised in any way, the entire sport is compromised.”....
Donaghy’s situation is slightly different from his co-defendants’. Donaghy was the only defendant who cooperated with the federal authorities, although the government has played down his cooperation.
At a hearing July 9, federal prosecutors said that many of the allegations made by Donaghy proved to be unsubstantiated. Amon said at the time that the information Donaghy had provided had not necessarily turned out to be strong enough to help the government.
Some related posts:
Horrible ending to one spam sentencing story
I have been having some fun while following the federal sentencings of various "spam kings." But, as detailed in this Denver Post article, the latest development after one spammer escaped from a low security federal prison is no laughing matter:
Just four days after escaping a federal minimum-security work camp, "Spam King" Eddie Davidson shot his wife and child and wounded a teen-age girl before turning the gun on himself.
Sheriff's deputies responded to a report of gunfire in the small plains town of Bennett at about 11:15 a.m. today and found Davidson, 29-year-old Amy Lee Ann Hill and their 3-year-old daughter shot to death.
Davidson's most recent spam business, Power Promoters, was based in Bennett....
Media and prosecutors have dubbed Davidson "The Spam King" for years for his prolific anonymous e-mails selling a raft of products. Davidson had pleaded guilty to tax evasion and falsifying information about the sender of e-mail pitches for low-cost, high risk stocks. He was sentenced in April to 21 months in federal prison camp in Florence and reported to begin his sentence in late May.
Assistant U.S. Attorney Tim Neff said Davidson had become a "consultant" to the FBI investigating other spammers.
This story is a very sad. The fact that Davidson escaped and snapped while serving as a "consultant" to the FBI has me wondering if the government was aware of any warning signs that this guy might go postal.
July 24, 2008
Interesting California opinion about right of allocution at sentencing
A criminal defendant's right to address the judge before sentencing and plead for mercy without being cross-examined, a right traced back to 17th century England, doesn't exist in California, the state Supreme Court ruled today.
In a case from San Mateo County, the justices ruled unanimously that a defendant who is about to be sentenced must be treated like any other witness — testifying under oath and subject to cross-examination by the prosecutor — when asking for leniency.
Here is the start of the unanimous opinion in People v. Evans:
California law requires that in a criminal case a trial court must, before imposing sentence, ask the defendant whether there is “any legal cause to show why judgment should not be pronounced against him.” (Pen. Code, § 1200.) This inquiry is called the “allocution.” At issue is whether, in response to the allocution, the defendant has the right to make an unsworn personal statement in mitigation of punishment. Here, the Court of Appeal held that a criminal defendant has no such right, expressly disagreeing with In re Shannon B. (1994) 22 Cal.App.4th 1235 (Shannon B.), in which a different Court of Appeal reached a contrary conclusion. We conclude that California law gives a defendant the right to make a personal statement in mitigation of punishment but only while under oath and subject to cross-examination by the prosecutor.
Dyslexic doc involved in lethal injection in Arizona
As first discussed here two years ago, a federal judge ordered Missouri's machinery of death to come to a halt in 2006 based in part on evidence that the doctor involved in lethal injections readily admitted that he is dyslexic and had thus could have problems carrying out the execution protocol. Then, as discussed here, last year there was a report indicating that this same doctor was a part of the federal government's execution team. Now, The Arizona Republic has this new story indicating that the doctor was involved in a 2007 execution in Arizona. Here is how the story begins:
A Missouri surgeon who was banned by a federal judge from taking part in capital executions by lethal injection in his home state apparently participated in Arizona's most recent execution.
Dr. Alan Doerhoff is believed to have taken part in the May 22, 2007, execution of Robert Comer, 11 months after Doerhoff's Missouri lethal-injection procedure was ruled unconstitutional and eight months after the physician was prohibited from further executions in Missouri because of questions about his standards and competence.
Doerhoff's signature appears below the flat line of an electrocardiogram tape that recorded Comer's last heartbeats, suggesting that Doerhoff at least monitored the murderer's condition in his final moments.
The doctor's techniques appear to have influenced new Arizona procedures for execution by lethal injection, specifically a practice of administering the killing chemicals through a catheter in the groin instead of through an arm. It's a method that some critics say is too complex and contributes to higher risks of error that could lead to undue suffering.
According to a prominent medical expert on lethal injection, that practice occurs only in the Missouri and federal protocols, which Doerhoff is believed to have influenced or devised. He is known to have participated in executions for those jurisdictions.
The Arizona Department of Corrections at first denied having any association with Doerhoff, a Jefferson City, Mo., resident. When told that The Republic had his signature from Comer's electrocardiogram, Corrections officials cited state statutes that protect the identity of Arizona executioners.
Some related posts:
- Readings on lethal injection protocols and the role of doctors in executions
- Are botched executions inevitable?
Around the blogosphere
Sentencing fans will find a lot worth reading in all the new stuff recently posted at:
Major California report urges doing away with juve prisons
The Little Hoover Commission recently released a major report with recommendations for improving juvenile justice in California. The report, titled "Juvenile Justice Reform: Realigning Responsibilities," can be accessed here. This official press release, which provides an effective summary of the report, begins this way:
The Little Hoover Commission on Monday urged the governor and the Legislature to lay the groundwork for the creation of county-run, state-funded, regional rehabilitative facilities for high-risk, high-need juvenile offenders and for the eventual elimination of state juvenile justice operations.
In its report, Juvenile Justice Reform: Realigning Responsibilities, the Commission recommends streamlining and consolidating the state’s juvenile justice operations into an Office of Juvenile Justice. The new office should be outside the Department of Corrections and Rehabilitation and would combine the activities of the chief deputy secretary of juvenile justice as well as juvenile justice grants administration and oversight now done by the Corrections Standards Authority.
Media coverage of this report has been focused on the call to eliminate juve prisons:
- From the AP here, "Report Says California Should End Juvenile Prisons"
- From the Sacramento Bee here, "So Long Juvenile Prisons"
Waiting and waiting and waiting on the row
This morning's USA Today has this piece about the continuing delays between the imposition of death sentences and executions. Here are excerpts:
The time prisoners spend on death row has nearly doubled during the past two decades. Legal experts predict it will rise further as states review execution procedures and prisoners pursue lengthy appeals.
Waits rose from seven years in 1986 to 12 years in 2006, the latest Justice Department statistics show. In all five states with the most prisoners on death row — California, Florida, Texas, Pennsylvania and Alabama — offenders spend more time in prison than they did four years ago, a USA TODAY survey of state records through 2007 found.
In California, wait times average nearly 20 years, a state commission report in June says. It costs about $90,000 more per year to house a death row inmate than other inmates.
In April, the U.S. Supreme Court upheld Kentucky's lethal injection method, ending an informal halt to executions nationwide for seven months. Of the 10 states with the most prisoners on death row, five launched their own reviews of lethal injection procedures in the past two years. Those resulted in suspensions or delays in executions.
Still more sentencing nunsense
A few weeks ago I noted here a local Nebraska story about an ailing elderly nun getting a tough sentence for stealing more than $250,000 to support her gambling habit. As noted in this new piece, headlined "Omaha Nun Says Priest Interfered With Sentencing," the criminal justice liturgy in this case continues:
The Omaha nun sentenced 3-5 years for embezzling money from the Catholic Church now claims the priest of the judge who sentenced her influenced her sentence. 73-year-old Barbara Markey was sentenced two weeks ago for stealing $250,000 from the Archdiocese.
Markey's attorney tells KPTM FOX 42 News that he has filed to withdraw her guilty plea, and is asking for the court to reconsider her sentence. Her attorney also claims that the judge who sentenced Markey was influenced by his own priest, who he says wrote a letter asking for a harsher sentence.
Another report from the USSC alternatives symposium
While awaiting official reports or materials from the US Sentencing Commission about its recent symposium on alternatives to incarceration, I am able to reprint a report on some particulars from the event that I received via e-mail:
At a Sentencing Commission symposium in Washington on Tuesday, BOP Director Harley Lappin stated there would be no wholesale move to increase halfway house time to more than six months despite the new statutory authority allowing them to do so. His reasoning was that "studies" show that for most inmates more than six months in a halfway house is counterproductive. He also stated that it was cheaper to house inmates in minimum and low-security prisons than it is in halfway houses.... Nevertheless, Lappin said that inmates would be considered for halfway house placement of more than six months on a "case-by-case basis."
During the conference, it was estimated that only about 650 BOP inmates presently qualify for early release under the provisions of the Second Chance Act (i.e. inmates at least 65, never convicted of a crime of violence or a sex offense, and having served ten years or 75% of their sentence). This is 0.003% of the 201,000 federal inmates. The pilot program is to begin on October 1 and appears it will not be limited to just one institution.
At a the same symposium, Beth Weinman, BOP's RDAP Coordinator, said that the average sentence reduction for inmates successfully completing the TDAP program is now 7.64 months. She attributed this to the large numbers of inmates eligible for the program and the lack of money to expand the program. She estimates that 40% of the inmates in BOP custody have a diagnosable substance abuse problem and that there is an RDAP waiting list of 7,000 inmates.
Ms. Weinman also said that the BOP is working on a program statement to define exactly what documentation suffices to complement the Bureau's own diagnosis of an inmate's substance abuse problem. Typically, the presentence report or documentation from a treatment provider is acceptable proof, but what else might be varies from institution to institution.
Some related recent posts:
- US Sentencing Commission symposium on incarceration alternatives
- USSC press release about alternatives symposium
- A blog report on USSC alternatives symposium
- What does the future hold for the US Sentencing Commission?
July 23, 2008
No wonder the spam keeps coming...
given that this local news item reports "'Spam King' escapes from federal prison in Florence." Here are more details:
The man known as "The Spam King" walked away from a minimum-security federal prison Sunday in Florence and was last seen in Lakewood. Edward "Eddie" Davidson, 35, was sentenced in April to serve 21 months in prison for his role in sending hundreds of thousands of unsolicited fraudulent e-mails touting certain penny stocks as excellent investments....
He'd been in the Florence facility for about a month and a half when he escaped. According to Lakewood police Tuesday, Davidson apparently escaped when his wife came to visit him Sunday in Florence. "He jumped in the car with his wife," said Will Cochenour of the Lakewood police Tuesday. "When they were leaving, he forced her in the car, brought them home and left after a change in clothing. He's still at large."...
U.S. Marshals are leading the search for Davidson, with the FBI, IRS and the Rocky Mountain Safe Streets Task Force assisting. A warrant for Davidson was issued shortly after his escape.
Between 2002 and 2005, Davidson's Power Promoters spamming network promoted watches, perfumes and other products, U.S. Attorney Troy Eid said. Then he started concentrating on a Texas company's penny stock.
My own theory is that Eddie Davidson is headed west in the hope of tracking down Robert Alan Soloway, who appears to have "stolen" the title of "Spam King" as detailed in prior posts here and here on Soloway's federal sentencing. Soloway got more than twice the time that Davidson got, so I think Soloway has come by the title honestly. Nevertheless, I am hoping that Vince McMahon gets wind of this potential feud and arrange a cyber-cage match to settle who the real Spam King is.
Counting to five in the Kennedy rehearing debate
The Kennedy rehearing petition is a very interesting read (basics here), especially if one keeps in mind the likelihood — or should I say unlikelihood — that five Justices will vote for rehearing. Here are a few completely uninformed speculations about the challenges I think Louisiana faces in getting another bite at the Kennedy apple.
First, I think it is unlikely that Justice Stevens or the other three more liberal Justices will be eager to take up this case again. Justice Stevens has expressed his view that he now thinks the death penalty is unconstitutional in all cases, and I surmise that Justices Breyer, Ginsburg and Souter may all be moving in that direction.
Second, though I think Justice Kennedy may be concerned and embarrassed about having his name on a prominent opinion that involves a notable mistake, I am not sure he will want to return a spotlight on these matters. Notably, circuit courts frequently make amendments, without having reargument, to important opinions when petitions for rehearing spotlight flaws. I do not know if the Supreme Court ever has or ever would take this approach, but it might be Justice Kennedy's preference.
Third, I am not sure any of the dissenters in Kennedy really want to return to this battle. They may know that the outcome is unlikely to change, and the Chief and/or other might be disinclined to have a lot of child rape sound and fury signifying nothing. Of course, if the Chief or others think the integrity of the Court is at issue, they may urge and vote for rehearing nonetheless.
Again, these are all rank speculations, and I'd be interested to hear others' views and thoughts.
July 22, 2008
Another prominent call for sex offender GPS tracking
As detailed in this local article, a state official in Pennslyvania is making a prominent call for GPS tracking of sex offenders:
State Auditor General Jack Wagner, state Sen. Jane Orie and other officials are urging the Legislature to require convicted sex offenders to wear ankle bracelets containing "global positioning system" technology for five years after being released from jail.
Mr. Wagner, a former state senator from Beechview, released a report today saying that in June, the state had "lost track of 923, or nearly 10 percent, of the state's approximately 9,800 registered sex offenders."
Some related posts on GPS tracking:
- The inevitability of GPS tracking and cost-saving technocorrections
- Are microchip implants for offenders inevitable?
- UK getting serious about GPS through microchip implants
- 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
"'Spam King' gets nearly four years in prison"
U.S. District Judge Marsha Pechman ended the reign of the so-called "Spam King," who earned his title by sending out millions of unwanted e-mails, by sentencing the Seattle man to nearly fours years in prison Tuesday....
[Assistant U.S. Attorney Kathryn] Warma and fellow Assistant U.S. Attorney Richard Cohen had asked Pechman to send Soloway away for nine years. But another defense attorney, Richard Troberman, wanted a sentence of two years at the federal prison camp in Sheridan, Ore., and a fine of under $100,000.
Pechman first heard from Soloway, then chose a middle ground.
What does the future hold for the US Sentencing Commission?
I just learned today that the Senate Judiciary Committee, at a hearing scheduled for tomorrow will be considering the executive nomination of "William B. Carr, Jr., to be Member of the United States Sentencing Commission." It is my understanding that Mr. Carr has been nominated to replace Commission John Steer, who apparently has already official resigned from the USSC after distinguished service for more than two decades with the judicial agency. (Disappointingly, I cannot find any official announcement of Commissioner Steer's retirement, but this list of Commissioners dated June 2008 does not have his name listed.)
News of this notable transition on the USSC has me wondering again what's on tap for the Commission. The agency continue to do a great job with data runs, as evidenced by its recent posting of July 2008 data on post-Gall/Kimbrough sentencing and on crack retroactivity motions. Also, the USSC just completed last week a terrific symposium on Alternatives to Incarceration (though I am still awaiting some on-line posting of testimony or other reports on the event ). But, though surely very busy while dealing with the fall-out from recent SCOTUS rulings and its recent crack actions, the USSC has been pretty quiet about what it may be planning for the future.
Of course, with a new administration on the horizon and crime and sentencing issues always fraught with political overtones and under-currents, perhaps less is more from the USSC these days. Still, a sentencing nerd like me cannot help but speculate about what's up and what's upcoming at the US Sentencing Commission.
An argument against — and for!— felon gun rights
Today's New York Post has this interesting commentary headlined "GUN RIGHTS FOR FELONS?". The piece starts with an originalist argument against felons having Second Amendment rights after Heller, but then concludes by asserting that some felons should have Second Amendment rights after Heller:
The amendment guarantees a "right of the people to keep and bear arms" — and the Founding Fathers did not think "the people" included criminals. Under the law as they knew it, felons were "civilly dead": They had no legal rights whatever. All their property (including guns) was forfeit. (Moreover, they were subject to execution — which made their rights irrelevant.)
In all societies recognizing a right to arms, that right was limited to "the virtuous citizenry." In this, as in much else, our Founders looked back to the ancient Greek and Roman republics. There, every free man was armed so as to be prepared both to defend his family against criminals and to man the city walls in immediate response to the tocsin's warning of approaching enemies. Thus did each good citizen commit himself to the fulfillment of both his private and his public responsibilities.
In sum, the constitutional right to arms simply does not extend to people convicted of serious criminal offenses. By "serious," I refer to the early common law — under which felonies were real wrongs like rape, robbery and murder.
Unfortunately, modern legislatures have added a host of trivial felonies. For instance, in California an 18-year-old girl who has oral sex with her 17-year-old boyfriend has committed a felony. The courts should rule that conviction of such a trivial felony can't deprive such a "felon" of her right to arms.
But the fact remains that people who have been convicted of serious criminal offenses have thereby lost their rights under the Second Amendment. They are subject to our laws against felons possessing firearms.
Because I am not a Second Amendment or even a constitutional historian, I cannot directly address the originalist argument made here for categorically depriving all those convicted of "serious criminal offenses" of their Second Amendment rights. But I can attest to the fact that lots of seemingly less serious criminal offenses — such as the crimes federal crimes committed by Scooter Libby and Martha Stewart and 'Lil Kim and Marion Jones and a host of state crimes — under current law make a person a felon completely prohibited under federal law from ever possessing a gun for self defense in the home. It seems that the author of the Post commentary would support arguments that those convicted of whatever felonies are not "serious" ought to still be able to exercise Second Amendment rights.
Some related Heller posts:
- Might the ACLU be a strong supporter of all persons' gun rights?
- The post-Heller litigation headaches (and judicial cut-backs) have begun
- Another review of felon efforts to assert Second Amendment rights
Third Circuit finds Child Online Protection Act facially unconstitutional
The Third Circuit has been giving the Constitution a work out recently. Late last week, as detailed here, it found unconstitutional a federal law prohibiting distribution of images of animal creulty, and today it finds that the Child Online Protection Act facially violates the First and Fifth Amendments. Today's unanimous panel ruling in ACLU v. Atty Gen USA, No. 07-2539 (3d Cir. July 22, 2008) (available here), starts this way:
This matter comes on before this Court on an appeal from an order of the District Court entered March 22, 2007, finding that the Child Online Protection Act (“COPA”), 47 U.S.C. § 231, facially violates the First and Fifth Amendments of the Constitution and permanently enjoining the Attorney General from enforcing COPA. The Government challenges the District Court’s conclusions that: (1) COPA is not narrowly tailored to advance the Government’s compelling interest in protecting children from harmful material on the World Wide Web (“Web”); (2) there are less restrictive, equally effective alternatives to COPA; and (3) COPA is impermissibly overbroad and vague. We will affirm
Split Sixth Circuit finds below-guideline sentence substantively unreasonable
In a long opinion that thoughtfully seeks to unpack the standards for substantive reasonableness review, a split Sixth Circuit panel in US v. Funk, No. 05-3708 (6th Cir. July 22, 2008) (available here), reverse a sentence well below the guidelines as substantively unreasonable. There is a lot of Funky spunk in both the majority opinion's effort to make sense of reasonableness review and also in Chief Judge Boggs' brief dissent. These portions of the dissent effectively spotlight why substantive reasonableness review is so challenging:
This case represents essentially a judgment call under the rather unclear standard of “reasonableness” that we have been given by the Supreme Court in the wake of Rita, Kimbrough, and Gall. Although I recognize that it is a close question, I am persuaded by the emphasis on the discretion of district courts in the recent Supreme Court cases that the sentence here should be affirmed....
In logic, I find it difficult to express a way in which a judge can adequately say that a sentence is “too much” or “too little” in any form of words. As I read the trial transcript, the district judge obviously knew the characteristics of the defendant before him, considered the advice of the guidelines, and decided to reject it, invoking the language of § 3553(a) as to the factors that he considered.
While a more extensive, fact-laden, or lyrical exegesis might have been possible or preferable, what I take from the record is that the judge did consider thoughtfully the facts of this case and did enough that he did not abuse his discretion.
Of course, Judge Batchelder (who authored the majority opinion in Funk) obviously disagreed. interestingly, a district judge sitting by designation, Chief Judge Bell of the WD of Michigan, cast the deciding vote. Given this split, this case might have the potential for en banc review, although the case has already been kicking around the courts for more than three years.
A private technocorrections development to watch for sex offenders
This local article discusses a notable new technology that school are using to try to prevent sex offenders from getting into schools:
The device scans a visitor's driver's license to quickly let school personnel know if the visitor is on the national sex offender list. It also snaps a picture. Those who pass the screening get a sticker to wear bearing their name and photo, as well as the date and time they arrived.
Schools also may program LobbyGuard to notify them of parents or others who aren't supposed to have contact with certain children. When a noncustodial dad who wasn't permitted to pick up his children entered Cross Creek last spring, LobbyGuard immediately sent an e-mail to office personnel and to Principal Joe Nieuwkoop's phone and computer.
Officials discreetly denied him access, said Jeff Reinke, director of information technology services for National Heritage Academies, which manages Cross Creek and 54 other charter schools nationwide. NHA has installed LobbyGuard in all its schools, Reinke said. While the system is popular on the East Coast, NHA schools are the only ones in Michigan using it....
LobbyGuard machines retail for $10,000, but schools can buy them for $6,000 each, according to the LobbyGuard Web site. NHA refused to say how much it paid for its 55 machines. LobbyGuard, based in Raleigh, N.C., is a division of Pitney Bowes, a company that helps organizations manage technology. Schools are its biggest client, but the "visitor management system" also in being used in the lobbies of corporate offices, hospitals and government buildings, said LobbyGuard President Kevin Allen.
The machines can be programmed to allow visitors without a driver's license to type in their name and birth date for an ID badge. They also can skip the sex-offender check if a business doesn't deem it necessary. Also, LobbyGuard doesn't check for felony convictions because there is no national database for the information and because some states put a limit on the type of background check that can be done on someone who is simply visiting a public building, Allen said.
Federal prosecutors seeking tough sentence for political corruption
The latest development in the sentencing of a former Newark major is reported in this local article, headlined "Tough sentence sought for Sharpe James." Here are some details:
Federal prosecutors Monday urged a federal judge to put former Newark Mayor Sharpe James behind bars for up to nearly two decades, saying a harsh sentence would help break a "culture of corruption" in New Jersey. The request was made in a new court filing last night in which prosecutors ripped into James for seeking leniency from U.S. District Judge William Martini before his sentencing on corruption charges next week.
A light sentence would "lead many in the public to conclude that the special treatment accorded to Sharpe James when he was a powerful public official continues to be his privilege now -- when he stands before the court as a convicted felon who disgraced his public office and lied to the public," they wrote....
Last week, James' defense attorneys pleaded with the judge for leniency, writing in court papers that any significant prison term would unfairly amount to a "lifelong sentence" for the 72-year-old Democrat. They urged Martini to consider James' age, his family obligations and years of military and public service....
In their court filing yesterday, Assistant U.S. Attorneys Judith Germano, Phillip Kwon and Perry Primavera, said the defendants were seeking "special and favored" treatment from the judge. They wrote the defense arguments were based on "a perverse theory that helping, with one hand, to improve Newark somehow bestowed upon them the right with the other hand to pilfer Newark's land."
Related post on the upcoming sentencing of Sharpe James:
Prison overcrowding problems in the UK
As detailed by these various news reports, folks across the pond are having American-style prison overcrowding problem:
- Prison overcrowding 'down to lack of proper resources'
- Prisoners 'sleeping in toilets'
- Criminal justice reforms a 'significant contributor' to prison overcrowding, say MPs
Here is how the final article in this trio of article begins:
Prison reform has been hastily implemented, underfunded and has left record numbers behind bars, MPs said in a scathing report published today. The Commons justice committee found Labour's flagship criminal justice reforms had been a "significant contributor" to prison overcrowding. "We urge the government to address sentencing policy in a more considered and systematic way and to reconsider the merits of this trend," the cross-party committee of MPs said.
The Criminal Justice Act 2003 was the centrepiece of government plans for delivering clear, consistent sentencing. But MPs said the act had "fallen short of its aims". The committee blamed a desire to appear tough on crime and a failure to inject sufficient resources into community punishments for a rise in short jail terms, which they said could lead to increased reoffending.
Gee, this sure sounds like a familiar story.
July 21, 2008
Louisiana seeks rehearing in Kennedy child rape case (with some notable lawyers helping out)
As detailed in this SCOTUSblog post, "Louisiana on Monday asked the Supreme Court to reconsider its ruling a month ago striking down the death penalty for the crime of child rape." Here are more particulars:
The rehearing petition, citing an omission in the Court’s opinion of any mention of a federal law on that issue, was filed late Monday afternoon. The petition in Kennedy v. Louisiana (07-343) can be found here.
Noting that the Court “almost never grants petitions for rehearing,” the state’s filing said this was “the rare exception.” It cited an 1875 ruling (Ambler v. Whipple), saying that an omission “material to the decision of the case” makes “a strong appeal for reargument.”
The petition said that either the rehearing should be granted, or the Court should “first seek the views” of the U.S. Solicitor General. Earlier, after the discovery of the omitted statute from the Court’s opinion, the Solicitor General’s office said that, if a rehearing plea were filed, it would examine it and “consider what steps are appropriate.”
Under the Court’s rules, a rehearing petition is not subject to oral argument and will not be granted except by a majority of the Court “at the instance of a Justice who concurred in the judgment or decision.” The other side in a case is not allowed to file a response, unless the Court specifically asks it to do so. The Court’s rules add that, unless there are “extraordinary circumstances,” rehearing will not be granted unless a response is first requested.
I found particularly notable two of the names on the rehearing petition: Georgetown University Law Professors Viet Dinh and Neal Katyal. I think it is fair to describe Professor Dinh as a prominent conservative legal star and Professor Katyal as a prominent liberal legal star. I also found notable the final footnote in the rehearing petition, which indicates that the Supreme Court has granted post-ruling rehearing petitions in at least 22 prior cases.
I am pleased that Louisiana and Governor Jindal has now put the ball back into the Supremes' Court. I still suspect that the five Justices in the Kennedy majority won't want to open this case back up, but I am glad that they were directly asked.
Some related recent posts:
UPDATE: Adam Liptak has this effective New York Times article covering the filing.
A telling consequence of severe white-collar sentencing guidelines and the trial penalty
This intriguing new article available from law.com, headlined "Federal Judge Refuses to Accept Guilty Plea in Health Care Fraud Case," spotlights one of the many pernicious effects of severe white-collar sentencing guidelines and the extreme trial penalty that white-collar offenders routinely face if they contest their guilt. As the article explains, a white-collar defendant was prepared to plead guilty to an offense he many not have committed, surely because federal prosecutors told him he could face decades in prison if he went to trial and lost. Here are highlights from the start of the article:
After months of negotiations, Chi Yang agreed to plead guilty in connection with fraudulent sales made by his Dublin, Calif.-based biotech company. Even though he would admit to making a false statement, not fraud, Yang would still have to do prison time. He would also owe hundreds of thousands of dollars in fines and restitution.
Then the deal reached Oakland, Calif., federal Judge Saundra Armstrong. In what observers call a highly unusual move, Armstrong refused to accept Yang's plea. She raised questions last month about whether Yang actually committed all of the elements of the crime to which he agreed to plead. "It is not my practice to accept guilty pleas from people who are not guilty," Armstrong said, according to a transcript of the June 10 hearing.
Some recent related posts:
You know your
political state senate colleagues don't like you when...
they write a public letter to a federal judge asking that he impose a maximum sentencing at your upcoming sentencing. That is the news from New Jersey according to this post, headlined "GOP senators call for maximum sentencing for James." Here are the specifics:
A week before former Newark Mayor (and state senator) Sharpe James is scheduled to to be sentenced in federal court, five state senators are requesting the maximum sentencing. "We implore you," state senators Bill Baroni (R-Mercer), Jennifer Beck (R-Monmouth), Gerald Cardinale (R-Begen), Joe Kyrillos (R-Monmouth), and Kevin O'Toole (R-Essex), said in a co-authored letter sent this morning to U.S. District Judge William Martini....
According to the Star-Ledger, James's attorneys plan to meet with Martini on Wednesday to urge him to impose far less than a decade in prison on the 72-year old former mayor, who was convicted earlier this year on corruption charges.
"The fraud must stop," the senators wrote in their three-paragraph letter to the judge. "The greed must stop. The only way for integrity and trust in government to be restored is for the public to witness that public officials are not above the law and will pay the heaviest price for breaking the law and violating their public duties."
I wonder if these state senators have also written to President Bush to complain about his decision to commute the prison term given to Scooter Libby.
A related post on the upcoming sentencing of Sharpe James:
UPDATE: Post title changes in light of sensible comment.
Should all "true" first offenders now get a sentencing discount in light of Gall and Kimbrough?
In the olden days when the federal sentencing guidelines were mandatory, the Supreme Court in Koon indicated that a district court departing downward from Criminal History Category I would "abuse its discretion by considering [a first offender's] low likelihood of recidivism [because the Sentencing] Commission took that factor into account in formulating the criminal history category." But now, of course, the guidelines are merely advisory. And Kimbrough strongly suggests that courts can and should look to research reports by the Sentencing Commission when deciding whether and when and how to vary from the guidelines. And in May 2004, in this interesting report titled "Recidivism and the 'First Offender'," the Commission highlights empirical data showing very low recidivism rates for what I would call "true" first offenders:
The analysis [of empirical data on re-offending] delineates recidivism risk for offenders with minimal prior criminal history and shows that the risk is lowest for offenders with the least experience in the criminal justice system. Offenders with zero criminal history points have lower recidivism rates than offenders with one or more criminal history points. Even among offenders with zero criminal history points, offenders who have never been arrested have the lowest recidivism risk of all.
These issues came to mind as I read closely the Sixth Circuit thoughtful work last week in US v. Duane, No. 06-6536 (6th Cir. July 17, 2008) (available here). At the very end of Duane, the panel had this nuanced discussion of these issues in a post-Booker world:
[T]he district court did not respond to Duane’s first argument — that he deserved a more lenient sentence because he had zero criminal history points. This was not a particularly strong argument given that Duane’s criminal history category was taken into account in determining his Guidelines range. But the argument was not completely frivolous. Because Duane had zero points at age 57, he might plausibly argue that even category I — which applies when a defendant has zero or one criminal history point(s) — overstated his criminal history to some degree. Although the district court would have ideally addressed this argument, we can hardly say that this failure alone constituted error in this case. Given that the district court imposed a within-Guidelines sentence, addressed the factors it found relevant, and addressed the majority of Duane’s arguments, we conclude that the district court did not err.
Though the Duane court does not reverse a within-guideline sentence for failure to consider low likelihood of recidivism for a "true" first offender, the panel's carefully discussion of this issue suggests district courts now have an obligation to address expressly these issues whenever a true first offender defendant urges a below-guideline sentence by saying he is very unlikely to even commit a crime again.
Indeed, defendants and defense attorneys can (and perhaps should) stress the USSC's own research to assert that proper application of 3553(a) in the case of a "true" first offender now virtually demands a below-guideline sentence. The argument would be that the considerations set forth in 3553(a)(2)(C) and in 3553(a)(6) are only properly acknowledged if and when a "true" first offender gets a lower sentence than the advisory range suggested for all the other persons with some criminal past that are lumped into Criminal History Category I.
CNN coverage of San Quentin's Prison University Project
CNN has this upbeat story about education efforts in one of California's most famous prisons. Here are snippets:
Lt. Sam Robinson, a 27-year veteran of San Quentin, gave a tour of 27 vocational programs run by about 3,000 volunteers as part of the Prison University Project, a nonprofit education program that offers many black men an opportunity to earn an associate of arts degree. It helps give those eligible for parole the intellectual tools to compete in a vastly changing job market.
Advocates say that many black men imprisoned across America, particularly nonviolent drug-related offenders, have enormous potential to become productive, law-abiding members of society through higher education in prison.
University of California at Berkeley professor Rebecca Carter volunteers as a biology instructor at San Quentin. During her first semester, she was startled by what she discovered. "I've been teaching on the Cal campus and teaching at the prison at the same time, and they were significantly more engaged when I was in the prison," Carter told CNN's Soledad O'Brien. "Not always more in command with the subject matter but more engaged, doing the homework, asking questions because they were passionate about learning."
More evidence that it's the prison economy, stupid
This local article from North Carolina, headlined "Expanding prisons mean more jobs," highlights how mass incarceration trends get supported by what could be called prison-idustrial complex:
With the new state budget, lawmakers have approved more than $30 million over the past two years to expand the state prison in Scotland County, which opened just five years ago. The prison is one of six that state lawmakers have approved since 2001 to address a dire need for prison space, and they are already being expanded. When complete, the construction and expansions at all six facilities will have cost more than $700million and operating costs will top $100 million annually.
Projects like the one in Scotland have become a boon for rural, economically distressed counties. Prison jobs bring added payroll, boost housing markets and draw new retail customers to poor parts of the state....
[F]or towns like Laurinburg and Tabor City, where the last of the six newest prisons is being built, the prisons mean jobs and money for the local economy. Belinda Graves, president of the Tabor City Chamber of Commerce, said some residents at first were uneasy about a prison coming to town. “There was some concern, and there was excitement,” Graves said. “Some people had concerns about the possibility of escaped inmates, but those concerns have died down. Most people are excited about the jobs.”...
The spin-off benefits were seen in Scotland County even before the prison opened. The prison’s construction provided jobs, and some materials came from local suppliers. “We view that prison as a positive,” said J.D. Willis, chairman of the Scotland County Board of Commissioners, who lobbied for the prison in 2000 and 2001 before the site was chosen. “We had to hold a public hearing before it came here, and we had no negative comments whatsoever.”
The Scotland prison has a $16.9million annual payroll, Willis said, and almost 200 of the prison’s 410 jobs are filled by county residents. The others, who come from Robeson, Hoke, Bladen and other surrounding counties, dine and buy gas and other goods in Laurinburg.
Laurinburg Mayor Matthew Brock said Scotland County so badly needed a lift that the prison was not seen as a dirty industry, unlike a large landfill that was considered in the county until the plans were scrapped last year.... He said the prison has been a positive for the community. “I haven’t heard any negatives in terms of having the prison here,” Brock said. “A lot of the reason is unemployment is so high. People are obviously happy to have the opportunity for jobs.”
This article showcases how increases in incarceration rates provide something of a 21st century WPA, though I suppose the acronym now stands for Works Prison Admininstration.
July 20, 2008
Is LA Gov. Jindal about to flip-flop on capital child rape?
As reported here at SCOTUSblog, tomorrow "is the deadline to seek rehearing in Kennedy v. Louisiana (07-343), though there has been no indication the state of Louisiana will seek rehearing...." I will be very disappointed if Louisiana does not petition for rehearing, especially given that, as detailed here, Governor Bobby Jindal has stated in this official press release that the Supreme Court "got this case wrong, plain and simple" and that he "will do everything [he] can to see that this decision does not stand." I am hoping that Governor Jindal will stay true to his word and have his state at least ask the Justices for rehearing in Kennedy.
I am not sure that the Justices will or even should grant rehearing in Kennedy, but I am sure that there are lots of justifications for Louisiana filing a rehearing petition. The Washington Post stressed in an editorial discussed here why the error the Kennedy decision made about federal law alone justifies rehearing:
The Supreme Court's legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations. That's why we think the court needs to reopen this case -- even though we supported its decision.... [T]his is an opportunity for the court to show a little judicial humility. Before the court declares its final view on national opinion about the death penalty, it should accurately assess the view of the national legislature.
Moreover, as some commentary has highlighted, both major candidates for President disagreed with the Kennedy court's ruling, and recent poll data (discussed here at The Volokh Conspiracy) indicate that a significant majority of Americans support child rape being a death eligible crime. In other words, the assertion that there is a national consensus againt capital child rape looks much worse now than it did just last month.
Whether or not there is a reasonable chance that the Supreme Court grants rehearing and/or reconsiders the merits of its decision, I think it is very important for Governor Jindal to follow up his blustery court-bashing with an actual legal filing. As I have suggested in this prior post, it would be sad and telling if Gov. Jindal's comments were only intended to score anti-SCOTUS political points and he does not have enough conviction in his own assertions to bring his complaints directly to the Court. (Notably, Gov. Jindal's slogan on his official website is "I'm asking you to once again believe in Louisiana." I will never again believe in him if he does not have his state petition for rehearing in Kennedy.)
Some related recent posts:
Cross-posted at Prawfs
UPDATE: No flip-flops; as detailed here, Louisiana has now petitioned for rehearing in Kennedy.
Another review of felon efforts to assert Second Amendment rights
The AP has this new piece, headlined "Guns ruling spawns legal challenges by felons," examining one of my favorite post-Heller topics. Here are a few excerpts:
[C]riminal defense lawyers say the high court's decision means federal laws designed to keep guns out of the hands of people convicted of felonies and crimes of domestic violence are unconstitutional as long as the weapons are needed for self-defense.
So far, federal judges uniformly have agreed these restrictions are unchanged by the Supreme Court's landmark interpretation of the Second Amendment....
People on both sides of the gun control issue say they expect numerous attacks against local, state and federal laws based on the high court's 5-4 ruling that struck down the District of Columbia's ban on handguns. The opinion by Justice Antonin Scalia also suggested, however, that many gun control measures could remain in place....
At the Justice Department, spokesman Erik Ablin said the agency's lawyers "will continue to defend vigorously the constitutionality, under the Second Amendment, of all federal firearms laws and will respond to particular challenges in court."...
Eugene Volokh, a law professor at the University of California, Los Angeles, who has written about gun rights ... and some gun rights proponents said people convicted of crimes are less likely to succeed in their challenges. "Many felons may need self defense more than you and I, but the government has extra justification for limiting that right because they have proven themselves to be untrustworthy," Volokh said....
The Supreme Court has a case on its calendar for the fall that could indicate whether the justices are inclined to expand their ruling. In United States v. Hayes, the government is asking the court to reinstate a conviction for possession of a gun for someone previously convicted of a domestic violence crime.
As I have explained in many prior posts, I am troubled by Eugene Volokh's notion that the government may properly restrict the reach of enumerated constitutional rights on the theory that some class of persons are "untrustworthy." Should First Amendment rights to speech and assembly and worship be regularly restricted by government to those persons considered "untrustworthy," even in situations where certain persons may have a special need to be able to exercise a right even more than others?
Indeed, Eugene's quote reveals the true vision of Second Amendment rights (and other rights) that most seem to embrace: vigorous support and advocacy of rights for those individuals we like and trust, ready rejection of rights for those individuals we like and/or distrust. So much for equal rights for all.
Some related Heller posts:
- SCOTUS takes new gun case ... is this a Heller tea leaf? (pre-Heller post about Hayes)
- Might the ACLU be a strong supporter of all persons' gun rights?
- The post-Heller litigation headaches (and judicial cut-backs) have begun
- Firearm sentence enhancements, the nexus notion, and chilling effects
A bloggy plea to look closely at pleas
I am pleased to see a new member of the legal blogosphere focused on pleas. The new blog, The Plea Bargaining Blog, describes itself this way:
The Plea Bargaining Blog is dedicated to scholarship, articles and news regarding plea bargaining in criminal cases in the United States and around the world. On average, 95% of all criminal cases are resolved through plea bargains. As such, it is an integral part of the criminal justice system worthy of continuous examination and discussion. The purpose of this blog is to further our understanding of the plea bargaining machine and its role in the criminal justice system.