July 22, 2008
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.