July 29, 2008
Eighth Circuit Affirms A Sentence of Probation For A Major Crack Dealer
The Eighth Circuit recently issued a decision (available here) holding that a significant downward variance was appropriate for a defendant who pleaded guilty to distributing 102 grams of crack cocaine. The defendant’s serious health conditions, along with extraordinary post-arrest rehabilitation, were apparently sufficient reasons to grant him a three-year term of probation in the form of home detention, rather than a sentence within a guidelines range of 60 months in accordance with the statutory maximum. Here is a snippet of the Court’s decision:
The district court sentenced the defendant on March 22, 2007 to a three year term of probation to be “served” at the City of Faith facility in Little Rock, Arkansas. The court ordered that the defendant could leave that facility for employment, to participate in church activities and to attend family events such as birthday parties. However, after his placement at the City of Faith commenced, that placement was terminated by City of Faith due to its inability to handle the defendant’s medical needs. On September 18, 2007, the district court modified the defendant’s probation conditions, pending the outcome of this appeal. The court placed him on home detention, allowing leave for medical care, mental health appointments, to meet with his attorney, and to attend church.
The record reveals that the defendant was 56 years old at the time of sentencing. He had undergone multiple heart surgeries in 2005 and 2006. In 2007 he received graft bypass surgery in his lower right leg. The defendant suffers from severe coronary artery disease, severe peripheral vascular disease, asthma, and other serious conditions. A letter submitted by his physician opines that defendant's life expectancy is from ten to twenty years less than the average African American male.
The sentencing record also shows that the defendant was taking eleven prescription drugs and multiple forms of eye drops. He has been diagnosed in the past with post-traumatic stress disorder, anxiety and depression. The defendant weighs 310 pounds. He suffers from sleep apnea, high blood pressure, gout, diabetes, a nerve root disease, asthma and bronchitis. His addiction to pain medication contributed to the criminal activity alleged in the indictment.
As highlighted in a post here and in a recent issue of the Federal Sentencing Reporter summarized here, the Supreme Court’s decision in Gall paved a similar way for former Wal-Mart executive Thomas Coughlin, who was sentenced to 5 years of probation and 27 months of home detention with an electronic monitoring device based in large part on his health. While some may find such extensive health departures to be controversial, the Eighth Circuit’s case is proof that departures on these grounds are available to all, regardless of the type of offense, as they should be.
President Bush OKs Military Execution
As detailed in this NY Times article, President Bush recently made history by approving the first execution by the military in nearly 50 years:
As commander in chief, the president has the final authority to approve capital punishment under the Uniform Code of Military Justice, and he did so on Monday morning in the case of Pvt. Ronald A. Gray, convicted by court-martial for two killings and an attempted murder at Fort Bragg, N.C., the White House said in a statement.
Although the Supreme Court upheld the constitutionality of the death penalty in the military in 1996, no one has been executed since President Ronald Reagan reinstated capital punishment in 1984 for military crimes.
The last military execution was ordered by President Dwight D. Eisenhower in 1957, although it was not carried out by hanging until 1961. President John F. Kennedy was the last president to face the question, in 1962, but commuted the sentence to life in prison.
* * *
Mr. Bush, a supporter of the death penalty, approved the sentence after Private Gray’s case wound its way through the Army’s legal bureaucracy and the military’s courts of appeal. The secretary of the Army sought Mr. Bush’s final approval.
There are six people on the military’s death row at Fort Leavenworth, Kan. but Private Gray was the first whose sentence went to the president. Unlike in the civilian courts, where the president can overturn or commute a sentence, in the military system, he is required effectively to approve it.
It can still be appealed, which the White House suggested was all but certain, meaning an execution is not expected to occur soon, possibly not during Mr. Bush’s remaining months in office.
The article does not explain why it has taken nearly 20 years for the case to work its way through the military justice system—even longer than the average civilian death penalty case—or how much additional process may still follow. Readers are invited to share their knowledge in this area.
Will the Supreme Court Rehear Kennedy v. Louisiana?
As discussed by SCOTUSblog here, the DOJ on Monday asked the Supreme Court to rehear the case of Kennedy v. Louisiana, in which the Court struck down Louisiana's law permitting the death penalty for child rape. As discussed in a prior post found here, the Court's ruling failed to take account of a federal law in the military justice system authorizing the death penalty in that instance. The DOJ's request comes one week after Louisiana also requested the Court to rehear the case.
Proskauer Rose is guest blogging while Doug is on vacation. Posts by individual authors are signed by each author. Posts that result from a collaborative effort are signed by "Guest bloggers." Please direct all questions and comments to us at this address until Doug returns.
July 28, 2008
Defendants Receive A (Short-Lived?) Benefit From A "Judicial Gaffe"
After Francis Lawrence and his co-defendants successfully filed motions to reduce their sentences under the retroactive sentencing guideline reductions for crack cocaine offenses, the district court—apparently inadvertently—included language in the sentencing orders that converted each sentence into “time served.” Within a few weeks after realizing its error, the court modified the orders to correct the language. The defendants appealed, challenging the court’s authority to substantively modify their sentences outside of the seven-day window permitted by Federal Rule of Criminal Procedure 35.
A Seventh Circuit panel now vacates the amended sentence, ruling that because the error was not “clerical” under Rule 36 (which would otherwise allow unlimited time to correct clerical errors), the Judge could not amend the order past the deadline. But while victory for the defense is sweet, it also may be temporary. The Court, in a thoughtful decision available below, practically invites the government to file an appeal from the original, mistaken sentence:
The government has 30 days after the entry of the order being appealed to file a notice of appeal with the district court. Fed. R. App. P. 4(b)(1)(B). Here, the government’s time to file a notice of appeal had not yet expired, when, on March 26, the district court sua sponte entered new orders. At that point, the government had no reason to appeal the original orders because the orders had been superseded by sentences that presumably no longer fit within the appealable conditions specified by § 3742(b). . . . Now that the sentences of Nos. 08-1856, 08-1857, 08-1858, and 08-1862 13 March 4, 6, and 13 are at issue again, it would not seem to run afoul of the cross-appeal rule or undermine the interests of fair notice and finality to permit the government to file notices of appeal within the remainders of the 30-day time periods that had not expired as of March 26. If the government chooses to appeal, the district court should consider whether the defendants should be detained pending the appeals pursuant to 18 U.S.C. § 3143(c). Any such appeals should be returned to this panel as successive appeals under Operating Procedure 6(b).
Is this judicial time well spent, or an example of being slave to good procedure?
Fifth Circuit Mostly Affirms in Controversial Border Agents Case
As previewed in this post, a Fifth Circuit panel today decided the appeals of U.S. Border Patrol agents Ignacio Ramos and Jose Alonso Compean, who were sentenced to prison terms of 11 and 12 years, respectively, for shooting an illegal alien drug smuggler. While the Court's ruling (found here) vacates the agents’ convictions on five counts relating to obstruction of justice, it leaves untouched their mandatory 10-year terms for using a gun in relation to the commission of a crime of violence. The Court's roadmap is excerpted here:
On appeal, we will address some of the errors, legal and evidentiary, alleged to have been committed by the trial court. Many arguments are made by the agents. We will address their primary arguments and we will find merit in some. Accordingly, we will reverse and vacate the convictions on some counts and vacate the sentences on those counts. However, this may not be of much moment to Ramos and Compean because we leave the major conviction with the major sentence—18 U.S.C. § 924(c)—untouched.
In this prefatory statement we should note that the rather lengthy sentences imposed on the defendants—eleven years and a day and twelve years respectively—result primarily from their convictions under § 924(c). Why? Because Congress directed a mandatory minimum sentence of ten years for all defendants convicted under this statute, i.e., using a gun in relation to the commission of a crime of violence. The underlying crime of violence with which the defendants were charged is assault within the special territorial jurisdiction of the United States. Once the defendants were charged by the government and convicted by the jury under this statute, the district court had no discretion but to impose at least a ten-year sentence. Thus, the sentences in this case reflect the mandatory ten years for violation of § 924(c), and one year and a day and two years, respectively, for the remaining several convictions.
The defendants were convicted for assault, discharge of a weapon in the commission of a crime of violence, tampering with an official proceeding, and deprivation of civil rights. We AFFIRM all convictions except those for tampering with an official proceeding, which we VACATE. We REMAND for resentencing.
With the Court unable to budge on these lengthy mandatory minimums, perhaps we can expect this case to join the backlog of pardon petitions now pending before President Bush. There is nothing quite like bipartisan support to spur much needed sentencing reform.
Practitioner’s Notes: Caught Between a Rock and a Hard Place
In a recent post found here, it was noted: “It has long been the practice at sentencing that prosecutors stress the awfulness of the offense and defense attorneys stress the not-so-awfulness of the offender.” But what is the defense attorney to do when her client pleads guilty, perhaps even cooperates, and the PSR gets the “awfulness” of the offense wrong? I’m not talking about simple, black and white errors, but when things are shaded in a way that makes your client seem materially worse than is justified.
Probation Officers, whose fields of expertise generally lie elsewhere, frequently rely on others to prepare the PSR’s offense conduct section. This is a particular problem when complex financial crimes are involved. Usually, it’s the prosecutors who draft the offense conduct. Hardly an independent source, but often, sadly, the most reliable from the Probation Officer’s perspective. Often, the offense conduct is based at least in part on unsworn and unconfronted statements of (other) cooperators, who have an incentive to paint your client in the worst possible light. The worst I’ve seen was a PSR that copied as its offense conduct, verbatim, the victim-bank’s investigation report, which was prepared in anticipation of the civil fraud lawsuit the bank intended to file against the defendant. So a thirty-page offense conduct section comes out in the draft PSR and, all of a sudden, your client orchestrated everything, was the mastermind of every sneaky scheme in the book, recruited – nay, forced – subordinates into the conspiracy, and so on. What do you do? Do you challenge the PSR or ignore it?
Neither solution seems perfect. Taking on the PSR is fraught with danger. Assuming you cannot convince the Probation Officer to revise the report, you end up spending the sentencing hearing, or at least a substantial portion of it, focusing the Judge’s attention on exactly the facts on which you do not want her attention focused. Humanizing your client is one of the most important, if not the most important, responsibilities of a defense attorney at sentencing. A pitched battle over the exact nature of your client’s wrongdoing hardly achieves that goal. You also risk getting the prosecutor’s back up. Plus, even if you did want to take on the PSR, how? Again, the question generally arises in a plea scenario, where there is no trial record. Attorney proffers aren’t effective. Calling other witnesses, even if the Judge would give you such latitude, invites a he-said-she-said debate that may not lead to any answers. Calling your client to the stand risks several potential disasters. Will he stand up to cross-examination? Will he lose credit for acceptance of responsibility? Or, simply, will he be viewed unfavorably by the Judge for any of a host of reasons?
On the other hand, ignoring the devastating description of your client seems an equally poor choice. You may convince the Judge that your client is deserving of sympathy – he has terrible family circumstances, is a leader of his community, gave to charity, donated a kidney to save a stranger’s life, and spends Saturday afternoons helping little old ladies cross the street – but it is unlikely to do much good. All the Judge hears is “blah, blah, blah” because she’s read the PSR, which lays out how he masterminded this terribly corrupt scheme, involving thousands of corrupt acts over years and years.
I suppose the answer in part depends on the Judge. Is this the type of Judge who will review the PSR carefully, and be so focused on the offense conduct that your sympathetic arguments will fall on deaf ears, or is the Judge someone who will care more about what type of person the defendant is? Changing the system so that the PSR isn’t written by the plaintiffs’ class action lawyers or other biased, self-interested parties also seems like a worthwhile goal. But in the meantime, it still strikes me as being caught between a rock and a hard place.
Is Booker Heading to Minnesota?
This interesting article discusses the plight of Minnesota judges forced to sentence within a strict state guidelines regime. Sound familiar? Here are some excerpts describing the system and its shortcomings:
The system is split into 11 levels. The lowest levels are for the least severe crimes -- making threats or assaulting a police horse, for example. The highest levels are for the most severe crimes, such as murder. The system also takes into account a criminal’s history. Each time a criminal is convicted of a crime, he is assigned points.
Judges plot a criminal’s point score with the crime level to find the appropriate sentence. The grid provides judges a fixed range for jail time.
* * *
Judges can depart from the grid, but a separate jury trial must be held to find sufficient aggravating factors or the defendant must agree to let the judge depart. Once a departure has been made, the judge must then file a report to the commission detailing reasons for departure. Judges say departures are increasingly rare, partly because the jury trials they require are cumbersome and partly because of budget cuts to the state judiciary. Judges departed from the guidelines in no more than 15 percent of cases between 1981 and 2006, according to the commission.
The complaints in Minnesota that the grid does not properly account for variations within the same classes of crimes are similar to those heard in the federal system before Booker. If Minnesota's response to Blakely was to require a jury trial before a judge could depart from the grid, do these complaints suggest that even that system is too inflexible? Will Minnesota's sentencing experiment survive, or is it proof that Booker's remedy really was a good alternative?
Great Britain Embarks On U.S.-Styled Reforms
Looks like some interesting developments in sentencing law are underway across the pond. Rumor has it that Harriet Harman, the Commons Leader in Great Britain, will propose striating the country's homicide laws to enable prosecutors to charge defendants with varying degrees of either murder or manslaughter. Here is an outline of the proposed reforms:
Instead of only being able to charge defendants with either murder or manslaughter, prosecuting authorities may be able to choose from a wider range of options.
These would include first-degree murder, where the offender intends to kill; second-degree murder, where the offender intends to cause serious harm but causes death; and manslaughter, for cases involving negligence or the intention to cause some but not serious harm, which result in death.
Scores of killers who are now charged with manslaughter would no longer be able to escape a murder charge. The new plans also signal the end of the mandatory life sentence for all murderers, a regime that dates back to the abolition of the death penalty more than 40 years ago.
Under the changes, while first-degree murder would carry a mandatory life sentence, judges in cases of second-degree murder would have the discretion to impose a fixed-term sentence.
"The aim is to be tougher but also give prosecutors more flexibility over charging and courts more flexibility over sentencing," a government source said.
The new category of second-degree murder would, for example, be likely to catch terrorists who planted a bomb or poisoned supermarket food but gave a warning in which they said they did not intend to kill. Currently they could only be convicted of manslaughter.
An Urban Bias in Massachusetts' Drug-Free Zone Law?
As detailed in this press release, FAMM reports that Massachusetts' drug-free zone law may be leading to increased punishment for minorities and the poor who reside in urban areas. The law in question currently imposes a two-year mandatory minimum sentence for offenders convicted of certain drug crimes within 1,000 feet of school property. FAMM suggests that in densely populated urban areas, where schools and people are packed closely together, the law effectively transforms the entire urban area into a drug-free zone, and punishes drug offenses occurring in urban areas more harshly than the same offenses occurring in suburban areas. Here is a relevant excerpt:
Families Against Mandatory Minimums (FAMM), a national, nonpartisan organization working for fair and proportional sentencing laws, says that Massachusetts is not alone in confronting problems caused by mandatory minimum drug and drug-free zone laws. "This report provides yet more evidence of the unintended -- yet very harmful -- consequences of well-meaning but counter-productive legislation. Massachusetts' joint Judiciary Committee understands the issue, as it recently filed House Bill 5004, which would reduce the size of school zones and eliminate the mandatory minimum sentence for first time offenders. We strongly support these Committee proposals, which would protect public safety while ensuring fair and proportionate sentences," said Barbara J. Dougan, director of the Massachusetts FAMM project. "Reform of drug and drug-free zone laws could save the state millions in corrections costs and reduce the human and fiscal waste of mandatory minimum drug sentences," said Dougan. "FAMM welcomes the opportunity to work with the Patrick Administration and legislators to this end."
Massachusetts' drug-free zone laws require a two-year mandatory minimum sentence for those convicted of distributing or possessing with intent to sell drugs within 1,000 feet of school property, or 100 feet of parks or playgrounds. The report shows that 1,000 foot zones are so large that most drug activity within them has nothing to do with children. When an entire urban area becomes a drug-free zone, the law has no deterrent effect. Instead, it punishes drug offenses occurring in urban areas more harshly than the same crimes committed in rural or suburban communities.
"The report illustrates the shameful racial disparities that result from drug-free zone laws. People of color are hit hardest. Urban residents are five times more likely to be subject to these laws. According to the Massachusetts Sentencing Commission, a staggering 81 percent of those convicted of zone violations were African-American or Latino," said Dougan.
We are thrilled to be guest blogging at Sentencing Law & Policy during Doug Berman's great two-week vacation and voyage out to sea. We are criminal defense attorneys at the firm of Proskauer Rose. We share a special interest in the world of sentencing, both as defense lawyers and as commentators. We are also great fans of the criminal law blogosphere, which unites academics, practitioners, politicians, jurists, and others interested in the field of criminal law and policy and encourages them to share their insight and experience.
Our hope as guest bloggers is to help narrow the gap between the law and policy of sentencing on the one hand, and the community of practicing attorneys on the other. In this role, we will continue to deliver the latest sentencing news, as well as provide some perspective into sentencing from the viewpoint of practitioners. As part of this effort, we plan to host a column dedicated to exploring the views from the field, with the hope of sparking meaningful debate among our fellow practitioners. This blog relies on your loyal readership and thoughtful comments. Please send any suggestions to Mark, Matt, Anna, or Jenn at the e-mail addresses listed below. We look forward to hearing your thoughts on the many important sentencing issues to come.
Mark D. Harris (email@example.com)
Matthew S. Queler (firstname.lastname@example.org)
Anna G. Kaminska (email@example.com)
Jennifer O'Brien (firstname.lastname@example.org)
The views expressed in this blog are those of the authors alone and do not necessarily reflect the views of Proskauer Rose LLP.
July 27, 2008
2008 Holiday road....
I am about to make like Clark Griswold and head out on the road (and on the sea) for a few weeks. I expect (should I say fear?) that I will not have an ability to be consistently on-line and bloggy during my sojourn. Though I surely won't be able to stay away from the computer the whole time, I may just try to go cold-turkey on blogging in this space for my two weeks away.
Joyfully, I can report that a terrific group of lawyers from Proskauer Rose (with whom I worked pro bono on this amicus brief in the Sixth Circuit en banc case involving acquitted conduct) have agreed to keep this blog warm while I am away. Proskauer partner Mark Harris had the good sense to urge me to take a blogging hiatus while on the road, and he sensibly suggested that a group of sentencing practitioners could provide a valuable perspective on the usual sentencing subjects and suspects while I am away.
I believe the Proskauer team will start their guest blogging tomorrow, and I am already looking forward to seeing how they make use of this space.
"Should juries know the likely sentence when deciding guilt?"
The title of this post is the title of this interesting BlueOregon post authored by Oregon state representative Chip Shields. The post begins with a review of the remarkable Rodriguez mandatory sentencing case (previously blogged here and here) still working its way through the Oregon state courts. But it ends with Rep. Shields setting out this legislative history and some provocative questions:
I trust juries, so in 2005, Sens. Carter, Gordly and I introduced HB 2986, which gives jurors information on the likely sentence the courts will impose upon a finding of guilt. It died for lack of a hearing in the then Republican-led Oregon House.
I've been thinking of reintroducing that bill, so I checked in with one well-respected constitutional scholar on the issue. I haven't gotten his okay to use his name yet, but he wrote back:
As a general proposition, I believe that all human beings should be as fully informed as possible about the consequences of all of their actions before they undertake those actions. Before you put your hand on that hot stove, you should understand that you might get burned. Before you jump into the Clackamas River at High Rocks, you should understand that you might drown in a whirlpool. Before you get on TriMet without a ticket, you should be aware of the penalty if you get caught. And before a jury decides to do X or Y or Z, its members should understand the results that could flow from that decision.
We all want as much information as possible about the consequences of our actions; why shouldn't we give a jury as much information as possible about the consequences of theirs?
So what do you think? Should [defendants have juries know] they would be sentenced to [long prison terms if convicted]? Or is justice best served by keeping that information from them and having juries only decide guilt or innocence?
Related posts on the Rodriguez case:
New federal bill seeking to restore some felons' gun rights
Because I expect continued litigation and uncertainty about felon gun rights in the wake of Heller, I am very pleased to discover this new press release indicating that at least one member of Congress is eager to address these matters head-on through new legislation (with the backing of the National Rifle Association). The press release comes from the office of US Congressman Bart Stupak from Michigan, and here are excerpts:
U.S. Congressman Bart Stupak (D-Menominee) has introduced legislation to restore the gun rights of individuals convicted of minor, non-violent crimes. H.R. 6622, the Second Amendment Restoration Act, ensures states have the discretion to restore individuals’ gun rights after conviction of minor crimes. The National Rifle Association (NRA) endorsed the legislation this week.
“The Second Amendment provides for the right to bear arms and individuals should not forfeit that right due to convictions for minor crimes,” Stupak said. “I appreciate the support of the NRA as I attempt to clarify that individuals convicted of minor crimes decades ago should not be subject to lifetime bans on gun ownership.”...
The issue was brought to Stupak’s attention by a constituent who, now in his mid-50s, was convicted in 1971 of entering a non-occupied building. He was 18 at the time and the building was a deer camp. He completed his probation in 1972. In 2003, he applied to the county gun board to have his right to own a firearm restored. But because the 1971 crime he was convicted of was a minor, non-violent crime, he is still denied the right to own a handgun under Michigan law and therefore no gun rights can be afforded to him.
The NRA's letter of support for the Second Amendment Restoration Act is available at this link. The NRA letter includes these notable sentences: "To be absolutely clear, the NRA believes it is both constitutional and appropriate to disarm convicted felons. However, we also believe that no person should lose the right to arms due to convictions for minor, non-violent crimes, especially those that occurred many years in the past."
This effort to restore some felon gun rights and the endorsement of the NRA strikes me as quite notable and important. Moreover, because these matters will be subject to lots of constitutional litigation in the wake of Heller, Congressman Stupak should be lauded for trying to get out in front of these issues through legislation. I hope other members of Congress will see the good sense of a bill like this in the wake of Heller.
Some related post-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
- An argument against — and for!— felon gun rights
The capital punishment company we keep
As various US states get back into the execution business in recent months, this new CNN article about executions in another nation provides a reminder of some of the capital punishment company we keep:
Twenty-nine people convicted of various crimes, ranging from murder to being a public nuisance while drunk, were hanged in Iran, state TV said. Iran's semi-official Fars News Agency reported earlier that 30 people would be put to death. It was not immediately clear if the last person's life was spared.
The Iranian judiciary's statement said that all 30 were convicted of various crimes, which included: murder, murder in commission of a crime, disturbing public safety and security, being a public nuisance while drunk and being involved in illegal relationships -- relationships between men and women who are not married to each other. Kidnapping and using weapons while committing a crime were also among the charges.
The statement also said that 20 of the convicts were convicted of drug and alcohol dealing, armed robbery and smuggling arms. The judiciary statement said that the convicts had their cases tried by the highest judicial authorities and were found guilty of the charges brought against them. The verdicts were final with their sentences carried out on Sunday.
The judiciary said the hangings should serve as a warning to those who are contemplating committing such crimes, the agency reported.... According to Amnesty International, Iran executed 317 people last year, second only to China's 470.
Interestingly, the last few paragraphs from the CNN report includes a description of Iran's latest anti-crime campaign that sounds quite similar to press releases we regularly see from American law enforcement officials (excepty for the adultry part):
Iran's government launched a campaign March 20 to increase public security and bring the crime rate down. Police cracked down on alleged drug dealers, whom they called criminal gang members, and alleged habitual criminals who use guns in the commission of their crime. Alleged weapons smugglers and people who break social and religious laws, including adulterers, were also targets.