August 16, 2008
Effective review of implementation of crack retroactivity
This local article, headlined "Virginia leads in crack sentence reductions," provides a terrific review of some of the latest realities in the retroactive application of the new federal crack guidelines. Here are some excerpts from the article:
Virginia leads the nation in the number of prisoners who've had sentences reduced under new federal sentencing guidelines for crack cocaine, U.S. Sentencing Commission numbers show.
Federal judges in Virginia have lowered the sentences of at least 825 prisoners since the new rules took effect March 3 — with the average prisoner getting more than two years cut from a sentence, according to a recent report from the commission. Judges have granted sentence reductions to 65 percent of the 1,271 federal prisoners in Virginia whose applications were acted upon by July 22. The numbers don't show how many have been released from prison....
Eastern Virginia — where crack-cocaine arrests were numerous throughout the 1990s, particularly with an anti-gun initiative called Project Exile and other efforts — is the nationwide region most affected by the new guidelines.... The change applies only to crack convictions in federal courts, not state courts. Under Virginia's sentencing guidelines, crack offenses are treated equally with those for powdered cocaine.
Each case, typically filed by a defense attorney or the defendant, is looked at by prosecutors before judges make a ruling on a reduction. Before the new guidelines took effect, there was a concern that the crack-sentencing reductions would take too much time from prosecutors' other cases. That was a big reason the Bush administration opposed applying the new guidelines retroactively to people in prison.
But Deanna Warren, a spokeswoman with the U.S. attorney's Norfolk office, said it hadn't been a problem. The work is divvied out to prosecutors on a rotating basis. Judges, too, she said, have efficiently pushed cases through. "I think our system has worked," she said. "It's been very smooth, once we got the system down. The court has done a great job. Everybody has done their fair share."...
The average successful applicant in the Eastern District has seen prison time reduced by 29 months, or nearly 2 1/2 years. That's a 18 percent cut from the average 13-year sentence.
So it seems that the "sky-will-fall" chicken-little-type concerns, which were expressed by AG Mukasey and other DOJ folks in an effort to prevent the new crack guidelines from being retroactive, were overblown. I am not surprised, and I am pleased to see prosecutors now admitting that they have been able to do better backward-looking justice without being too concerned with how much time retroactive justice is taking away from future prosecutions.
Some recent related posts:
August 16, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (7) | TrackBack
A close look at death in the First State
A new article now up here at SSRN, which looks closely at one state's death penalty, looks like useful weekend reading. The article is titled "The Death Penalty in Delaware: An Empirical Study," and here is the abstract:
This article reports the findings of the first phase of a three phase empirical study of the death penalty in Delaware. In phase 1, we examined only cases in which the defendant was sentenced to death. While our findings are preliminary, there appear to be, as numerous other studies have found in other jurisdictions, race of victim effects. Seventy percent of the death sentences were imposed in white victim cases, even though the majority of the murder victims are black. Additionally, Delaware has one of the highest death sentencing rates in the country. This high rate appears to be the result of a change in the Delaware death sentencing scheme from jury to judge sentencing. When that change was implemented, the number of death sentences rose dramatically. Our preliminary findings also reveal a geographic effect. Two thirds of the death sentences were imposed in New Castle County, 29% were imposed in Kent County and only 5% of the death sentences resulted from murders which occurred in Sussex County. Finally, in analyzing the outcomes of the cases in which the defendant was sentenced to death on appeal, we found an overall error rate of 44%.
August 15, 2008
Judge Colloton calls upon Congress to address the post-Gall world
In a concurrence to an Eighth Circuit reasonableness opinion in US v. Shy, No. 06-4011 (8th Cir. Aug 15, 2008) (available here), Circuit Judge Steven Colloton expresses concerns about sentencing disparity in the post-Booker world and urges Congress to do something about it. Here are some key passages from the concurrence:
The reason that the [below-guideline probation sentence at issue] must be affirmed is that in the aftermath of Booker, and especially Gall, the courts of appeals have only a modest role in reviewing the substantive reasonableness of sentences imposed above the statutory minimum sentence....
That the appellate court reasonably believes that a greater sentence was appropriate — i.e., that a longer term of imprisonment was necessary to satisfy the purposes of § 3553(a)(2) — is insufficient reason to reverse the district court. And with respect to “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” 18 U.S.C. § 3553(a)(6), which was thought by many after Booker to justify a more rigorous appellate review of sentences that varied substantially from the advisory guideline range, the Court indicated that because the sentencing judge in Gall merely “correctly calculated and carefully reviewed the Guidelines range, he necessarily gave significant weight and consideration to the need to avoid unwarranted disparities.” 128 S. Ct. at 599.
Within this framework, there is little room for a court of appeals to say that one judge was unreasonable to impose a sentence substantially above or below the guideline range while another was reasonable to sentence within the guidelines, or vice-versa. As it was before the Sentencing Reform Act of 1984, sentencing judges have a great deal of discretion to sentence within the wide boundaries of the statutory range of authorized penalties. There is some degree of appellate review for substantive reasonableness that did not exist prior to the Act, and appellate courts are permitted to “take into account . . . the extent of any variance from the Guidelines range,” id. at 597, but this appellate review is quite different from that conducted under the mandatory guidelines system envisioned by Congress or even from the “proportionality review” applied to variances from the guidelines by courts of appeals in the period between Booker and Gall. The reality is that a defendant’s ultimate sentence now depends substantially on the personal sentencing philosophy of his or her sentencing judge.
It is for Congress and the Executive to decide whether the system resulting from Booker and Gall constitutes good or bad sentencing policy. As the policymaking branches assess recent developments, however, we should not through our opinions create the illusion that it is only an “extraordinary” case, where a sentencing judge gives “persuasive reasons,” in which a court of appeals must uphold a sentence that is substantially above or below the advisory guideline range. A defendant just like Burton may receive a sentence of 37 months’ imprisonment or she may receive a sentence of probation, depending on the discretionary (and, no doubt, good faith) judgment of individual sentencing judges — judges who may occupy chambers in the same judicial circuit, the same district or even the same building. Whether that sort of disparity is tolerable in the federal criminal justice system, or whether there is need for legislative reform consistent with the Sixth Amendment, see, e.g., Gall, 128 S. Ct. at 603 (Souter, J., concurring), is a matter for serious deliberation.
Capital punishment news and notes
In addition to lots of new posts of note at Capital Defense Weekly and StandDown Texas Project, Howard Bashman got a chance here, just before heading out on a deserved vacation, to report on this Fifth Circuit ruling that denies habeas relief to Texas death row inmate complaining that jurors improperly considered passages from the Bible during the sentencing phase of their deliberations.
As noted in prior posts linked below the issue of Bible-influenced capital sentencing comes up a fair amount and it may only be a matter of time before the Supreme Court takes up a case like this new one from the Fifth Circuit.
Some related prior posts:
Notable Second Circuit ACCA ruling
The Second Circuit today has an interesting ruling about the application of the Armed Career Criminal Act in US v. Darden, No. 06-4567 (2d Cir. Aug 15, 2008) (available here). Here is how the decision starts:
These four appeals, heard in tandem and consolidated for disposition, raise the same legal question: whether a prior conviction for a New York drug offense can serve as a predicate “serious drug offense” under the Armed Career Criminal Act (“ACCA”) where New York’s Rockefeller drug laws prescribed a maximum sentence of at least ten years for the offense at the time it was committed, but where New York non-retroactively amended the Rockefeller drug laws, prior to the federal sentencing in these cases, to reduce the maximum sentence for the same offense conduct to less than ten years. We conclude that, under the plain terms of the ACCA, we must look to the current sentencing laws of the state to determine whether the drug offense is “serious.” We further conclude that under current New York law, the maximum sentence prescribed for these offenses is less than ten years.
Important new white-collar opinion justifying below-guideline sentence
As effectively covered in posts from at New York Federal Criminal Practice and White Collar Crime Prof Blog, District Judge Frederic Block issued an important new sentencing opinion in the white-collar case of US v. Parris, No. 05-CR-636 (EDNY Aug. 14, 2008) (available for downloading below). The opinion is a must-read defies easy summarization, but this starting paragraph provides the basics:
I have sentenced Lennox and Lester Parris today to a term of incarceration of 60 months in the face of an advisory guidelines range of 360 to life. This case represents another example where the guidelines in a securities-fraud prosecution “have so run amok that they are patently absurd on their face,” United States v. Adelson, 441 F. Supp. 2d 506, 515 (S.D.N.Y. 2006), due to the “kind of ‘piling-on’ of points for which the guidelines have frequently been criticized.” Id. at 510.
August 14, 2008
District Court rejects Second Amendment claim from misdemeanant
Thanks to this post at The Volokh Conspiracy, I see that this week has brought another example of a federal district court working hard to make sure that the constitutional right recognized by the Supreme Court in Heller is categorically unavailable to another group of individuals. The decision this time comes in US v. Booker, No. CR-08-19-B-W (D. Maine Aug. 11, 2008) (available here). Here are the fundamentals of a short opinion that merits a full read:
After the Supreme Court's decision in District of Columbia v. Heller, the Court concludes that the law prohibiting persons who have been convicted of a misdemeanor crime of domestic violence survives Second Amendment scrutiny...
Based on the absence of a meaningful distinction between felons and persons convicted of crimes of domestic violence as predictors of firearm violence, the critical nature of the governmental interest, and the definitional tailoring of the statute, the Court concludes that persons who have been convicted of a misdemeanor crime of domestic violence must be added to the list of “felons and the mentally ill” against whom the “longstanding prohibitions on the possession of firearms” survive Second Amendment scrutiny. Heller, 128 S. Ct. at 2816-17.
Perhaps I should be grateful that a defendant with the surname Booker is not creating important new law. But I am more troubled that this case readily concludes that some misdemeanants are to be added to the list of individuals to be completely denied access to a right supposedly guaranteed to "the people."
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
Sex offender reformation ... for a politician
This new AP story, headlined "Crusading ex-Pa. lawmaker takes in sex offenders," has many interesting elements. Here is an excerpt:
A former tough-on-crime Pennsylvania lawmaker has adopted a new and unpopular cause, taking into his home three sex offenders who couldn't find a place to live — a stand that has angered neighbors, drawn pickets and touched off a zoning dispute.
As cities across the nation pass ever-tighter laws to keep out people convicted of sex crimes, Tom Armstrong said he is drawing on his religious belief in forgiveness and sheltering the three men until he can open a halfway house for sex offenders. "I think that our system is trying to treat everybody under a particular brand and it doesn't work," he said. "And because of that we're creating housing problems, we're creating employment problems, we're creating community problems, and it's needless and it's not warranted."...
A Republican, Armstrong served 12 years in the Legislature before he was defeated in a primary in 2002. He was known for taking conservative positions on abortion, taxes and crime but also for his role in later years supporting prisoner rights. Over the past two decades, he also took in homeless veterans, and more recently he has been a mentor to ex-cons.
The 49-year-old insurance agent said his compassion for people he says are being treated as modern-day lepers stems in part from personal experience: Eleven years ago, he said, his brother was convicted of exposing himself to girls and was jailed. "My evolution in this whole process, if it's meant to create positive change, then great, I'm all for that," he said.
It is common for politicians to become compassionate about these issues only after their own families or friends have been impacted by the severity of the modern criminal justice system. Too bad that so many people in power need to have personal bad experiences before becoming compassionate (and sensible) about the need and importance of having society playing a productive role helping former offenders get their lives back in order once released from custody.
Circuits continue to remand Kimbrough-impacted crack cases
While district courts are sorting through issues surrounding retroactive application of the Sentencing Commission reduced crack sentencing guidelines (background here), the circuit courts continue to sorting through crack sentencing cases impacted by the Supreme Court's decision in Kimbrough. Coincidentally, two circuits have published rulings today that order remands for resentencing based on Kimbrough:
- From the Second Circuit, US v. Keller, No. 07-3330 (2d Cir. Aug. 14, 2008) (available here)
- From the Eighth Circuit, US v. Davis, No. 07-3650 (8th Cir. Aug. 14, 2008) (available here)
The Seventh Circuit also deals with these issues today in US v. Clanton, No. 07-1773 (7th Cir. Aug. 14, 2008) (available here), but it only remands two of the three cases considered in a consolidated appeal. Then again, as all Meat Loaf fans know, two out of three ain't bad.
Any lawyer with a crack sentence appeal, in these circuits or in others, will want to check out all these rulings.
NYTimes editorial makes pitch for juve courts
Highlighting what is often really a sentencing issue, the New York Times recently published this editorial headlined, "The Case for Juvenile Courts." Here are excerpts:
This country made a terrible mistake when it began routinely trying youthful offenders as adults. This get-tough approach was supposed to deter crime. But a growing number of government-financed studies have shown that minors prosecuted as adults commit more crimes — and are more likely to become career criminals — than ones processed through juvenile courts.
The value of specialized courts for young people is underscored in a new report from the Justice Department’s Office of Juvenile Justice and Delinquency Prevention. After evaluating the available research, it concludes that transferring juveniles for trial and sentencing to an adult criminal court has increased recidivism, especially among violent offenders, and has led many young people to a permanent life of crime....
Nearly every state now has laws that encourage prosecutors to try minors as adults. The recent studies of this approach should lead legislatures to abandon these counterproductive policies.
The report referenced here is titled "Juvenile Transfer Laws: An Effective Deterrent to Delinquency?" and is available at this link. Here is a summary paragraph from that report:
Several studies have found higher recidivism rates for juveniles convicted in criminal court than for similar offenders adjudicated in juvenile courts. The research is less clear, however, in regard to whether transfer laws deter potential juvenile offenders.
Do victims care more about the sentencing process or sentencing results?
I always find interesting the debate over victims' rights at sentencing, and this local story from Illinois highlights that some crime victims may care a lot more about speaking out than about sentencing outcomes:
As the court proceedings against former police officer Jeff Pelo ended Tuesday, the women he was convicted of assaulting and stalking had the last word in statements expressing the impact the crimes have had on their lives. But victims expressed frustration with the limitations placed on their remarks during Tuesday’s sentencing hearing in which Pelo received 440 years in prison.
A woman who was stalked for more than a year criticized Pelo’s defense lawyer, Michael Rosenblat, for asking that portions of victims’ statement be removed. “I am so outraged Pelo and his lawyer chose to rob the victims of our opportunity to say our peace in court that I decided to make my statement public. I refuse to let him silence me,” said Jonelle Galuska, the stalking victim.
All but one of the victims in the Pelo case have asked the news media to use their names....
Associate Judge Robert Freitag explained in his ruling Tuesday that victim impact statements should contain information about how the offense has affected the victim. Remarks about how the community was victimized by Pelo and opinions on sentencing laws were among the things Freitag barred from the hearing.
Some related posts:
- Pondering a victim's role in sentencing
- More on victims at sentencing
- SCJC symposium on "The Victim in Criminal Justice"
- FSR Issue 19.1: Victims and Sentencing I: Victim Impact Evidence, the Crime Victims' Rights Act and Kenna
- FSR Issue 19.2: Victims and Sentencing II: Beyond the CVRA
August 13, 2008
New data on racial disparity in Nevada sentencing
Blacks get more prison time than whites, and women receive lighter sentences than men, according to a university study of the state’s court system released Tuesday.
The Grant Sawyer Center for Justice Studies at the University of Nevada, Reno, which examined 10,000 felony convictions in Nevada in 2007, found blacks received “significantly higher” minimum and maximum sentences than white defendants. The study also found that blacks got significantly higher minimum and maximum sentences for drug trafficking than white or Asian defendants, as well as significantly higher minimum and maximum sentences for drunken driving.
Blacks also received higher minimum sentences than whites for grand larceny and conspiracy and higher maximum sentences than whites for grand larceny, conspiracy and burglary....
Matthew C. Leone, who headed the center’s study, said it was a preliminary one that must “be viewed with caution” because the figures don’t take into account the criminal history of the defendants. “I’m not going to bet the farm on it,” he told members of the state’s Advisory Commission on the Administration of Justice during a briefing.
James Austin, a consultant to the commission, said comparisons between sentencing patterns for blacks and whites needed further study. Hispanics, he said, were not singled out and were included with the whites in the sentencing study.
The study found other disparities, including that 18 percent of women convicted of a felony ended up in prison, compared with 37 percent of men. Men, the study found, received significantly higher minimum and maximum sentences overall.
A set of slide detailing some of the research findings are available at this link.
Does Gall preclude calling any sentencing factor "inappropriate"?
The Sixth Circuit's ruling yesterday to reverse a below-guideline sentence as unreasonable in US v. Davis, No. 05-3784 (6th Cir. Aug. 12, 2008) based on reliance on an "inappropriate sentencing factor" has generated some especially interesting and thoughtful comments. Of particular note, the defendant's attorney has a comment questioning whether the rationale adopted by the Davis court is inconsistent with the Supreme Court's work in Gall:
I am Mr. Davis' attorney, and I'm a longtime fan of this blog. As I consider a petition for rehearing (for a number of reasons) as well as another cert. petition, I'd appreciate any serious thoughts about the existence of "inappropriate sentencing factors." DEJ writes that there is "almost" no such thing. I'm curious what s/he and others think about this -- are there impermissible factors (or facts) that may not be examined at sentencing? If so, specifically, what are they? Race? Gender? Religion? What else? What cases establish them and explain their role post-Gall?
At first blush, this [Davis] opinion looks to me like a semantic way to get around Gall's heightened standard of appellate review ("We disagree with the sentence that you, the district court, imposed, but we can't say that you abused your discretion after Gall so we're going to say that you looked at something that was 'impermissible' even if that fact is entirely relevant to many 'permissible' factors under 3553.")....
Because these issues go right to the heart of what federal sentencing review now means and requires, I thought this fresh post might foster a focused blog discussion on whether it is inappropriate for circuit courts to establish "inappropriate sentencing factors" as part of reasonableness review after Gall and Kimbrough.
Readings on prison reform history
I often get many new and unexpected insights whenever I read legal history concerning sentencing and corrections. Thus, I am looking forward to finding the time to read this piece now appearing on SSRN, titled "Redemption to Reform: The Intellectual Origins of the Prison Reform Movement." Here is the abstract:
In the late Nineteenth Century, major shifts within the criminal justice system and within society at large led to the transformation of the concept of rehabilitation from a religious and spiritual process ("redemptive rehabilitation") to a medicalized and rationalized process ("reformative rehabilitation"). This paper illustrates that shift through the lens of the process leading to the formation of the first American system of parole at the first adult reformatory prison, Elmira Reformatory.
Thoughtful opinion focused on bad health as the basis for a below-guideline sentence
A helpful reader sent me a copy of a lengthy and interesting sentencing opinion issued yesterday in US v. Rausch, No. No. 07-cr-00497 (D. Colo. Aug. 12, 2008) (available for download below). The opinion is focused mostly on using severe health problems as the basis for giving a below guideline sentence, but has lots of other post-Booker goodies. Here are a few snippets from a section of the opinion addressing punishment theory:
The retributivist approach, advocated by the prosecution in this case stresses guilt and dessert, looking back to the crime to justify punishment and denying or ignoring that the consequences of punishment have any relevance to its justification. On the other side of the coin, the utilitarian approach taken by defense counsel insists that punishment is justified only if it has beneficent consequences that outweigh the intrinsic evil of inflicting suffering on another human being.
Lord Justice Denning, the great English jurist, has called punishment “the emphatic denunciation by the community of a crime.” In his view, and I see great value in it, punishment reinforces the community’s respect for its legal and moral standards. The restraint on this principle, however, is that punishment is only justifiable when it is deserved. Rausch has admitted guilt and the proof is evident and overwhelming. Even so, the utilitarian assertion is that every human being should be treated with at least a minimum of respect as a source of rights and expectations and not merely as an instrument for promotion of the social order.
While the practice of punishment has been extant throughout the history of human culture, so, too, has been its cautionary curtailment....
In The Letters of Abelard and Heloise, 159 (Michael Clanchy ed., Betty Radice, trans., Penguin Classics 2004), one finds the following: “[F]or there is a well-known saying, ‘The law was not made for the sick.’” (Letter from Abelard to Heloise discussing caring for the sick and giving them all that they require). Further, in Dostoyevsky’s The House of the Dead and Poor Folk, 180 Constance Garnett, trans., (Barns and Noble Classics 2004), we read: “It is useless to punish a sick man.” Id. (explaining the absurd practice of imprisoning sick men and making them wear shackles).
Some notable capital headlines
Here are a few notable death penalty headlines atop stories that are worth checking out:
- From the AP here, "Expert says capital punishment dying out in Asia"
- From the Rocky Mountain News here, "Colorado juries leery of death penalty"
- From the New York Sun here, "Federal Judge Wants Fewer Capital Cases"
August 12, 2008
Ninth Circuit affirms above-guideline sentence with Kimbrough twist
In a long and intricate opinion covering lots of issues, the Ninth Circuit today affirmed an above-guideline sentence in US v. Tankersly, No. 07-30334 (9th Cir. 2008) (available here). Here are snippets from the start of the opinion:
Kendall Tankersley appeals a 41-month sentence imposed following her guilty plea to a three-count Information charging her with conspiracy to commit arson and destruction of an energy facility...
We must decide whether a sentence outside the applicable advisory guidelines range is per se unreasonable when it is based on the district court’s efforts to achieve sentencing parity between defendants who engaged in similar conduct: with some targeting government property and who were properly subject to the terrorism enhancement, and others targeting only private property who were not. We hold that such a sentence is not per se unreasonable. We also conclude that the district court did not clearly err by declining to apply a fourlevel downward adjustment for a minimal role in the offense. See U.S.S.G. § 3B1.2(a). In light of the district court’s proper application of the statutory factors set forth in 18 U.S.C. § 3553(a), we hold that Tankersley’s 41-month sentence is reasonable.
Sixth Circuit finds below-guideline sentence unreasonable for "inappropriate" factor
The Sixth Circuit this morning reverses a below-guideline sentence as unreasonable in US v. Davis, No. 05-3784 (6th Cir. Aug. 12, 2008) (available here), based on reliance on an "inappropriate sentencing factor." Here is how the Davis opinion starts:
A jury convicted William Davis of two counts of bank fraud, after which the district court calculated a sentencing-guidelines range of 30 to 37 months. The court imposed a sentence of one day in prison because, among other reasons, Davis was 70 years old at the time of sentencing and because he had committed the underlying crimes 14 years earlier. We reverse because the second explanation for the court’s sentence represents an inappropriate sentencing factor on this record.
New article looking at post-Booker sentencing appeals
Though I have just barely begun my post-vacation catch-up reading, this new piece appearing on SSRN is going to the top of the reading pile. The piece by Carissa Byrne Hessick and F. Andrew Hessick III, which covers one of my favorite (and one of the most important) post-Booker issues of debate, is titled simply "Appellate Review of Sentencing Decisions." Here is the abstract:
In Booker v. United States, the Supreme Court granted district courts broad discretion in imposing sentences in an effort to create a sentencing scheme complying with the Sixth Amendment. At the same time, however, to achieve the sentencing uniformity intended by Congress, the Court authorized circuit courts to review sentences for reasonableness. These two objectives — requiring district courts discretion and cabining that discretion through reasonableness review — are in tension with each other. This Article argues that, in an effort to satisfy these conflicting goals, the Court has in subsequent cases sacrificed the central functions of appellate review, error correction and law making. It has undermined the error correction function by permitting appellate courts to presume that within-Guidelines sentences are reasonable, and it has impaired the lawmaking function by directing appellate courts to defer to district courts' sentencing policy determinations. Moreover, the Court's failure to describe how to balance these two conflicting objectives, or even to acknowledge the conflict, has resulted in confusion in the circuit courts.
Updates on post-Heller Second Amendment litigation
As regular readers will recall, I predicted lots and lots of lower court litigation driven by federal criminal defendants in the wake of the Supreme Court's Heller Second Amendment ruling. Eugene Volokh has been doing an effective job keeping up with much of this litigation, and here are a few of his more recent posts discussing various lower court Second Amendment rulings:
In his review of all this litigation, Eugene rightly notes in nearly all post-Heller cases, lower courts have rejected (often with sloppy reasoning) efforts by criminal defendants to apply Heller and the Second Amendment in a way that would help gun owners. I continue to be disappointed, but not at all surprised, that lower courts have proven so eager and able to give short shrift to the Heller ruling when criminal defendants are asserting Second Amendment rights.
Interestingly, Orin Kerr has this new notable post also over at The Volokh Conspiracy, titled "Justice Kennedy, Heller, and the Future of the Second Amendment," in which he reports that at the recent Ninth Circuit judicial conference "Justice Kennedy appears to suggest ... he will take a living constitutionalist approach to the Second Amendment that may point to more gun rights under the Second Amendment than an originalist approach would provide." If Justice Kennedy is serious about taking Heller and the Second Amendment seriously, criminal defendants should keep pressing their claims at least until the Supreme Court has a chance to speak to the many issues left unresolved in 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
"You can't handle the truth" ... about prison overcrowding
This AP article from Oklahoma, headlined "Speaker denies requests for prison studies," makes me think of the great scene from "A Few Good Men" in which Jack Nicholson's character famously rebukes an effort by Tom Crusie's character to get at the truth. Here are snippets from the article:
With an annual budget approaching half a billion dollars and a population of more than 25,000 inmates, some lawmakers want to take a closer look at the state's prison system. But all six of the interim studies lawmakers requested to examine the issue were denied by House Speaker Chris Benge. Such studies, held between sessions of the Legislature, generally involve expert presentations and help lawmakers craft legislation. Some studies approved this year include the possibility of banning cell phones while driving and another on preserving nuclear families....
"Overcrowding is serious in that they've made longer prison sentences but not supported it financially," said Sgt. Randy Lopez, a guard at the Oklahoma State Penitentiary in McAlester. "If you're going to lock everybody up for everything, you've got to pay for it." With staffing shortages leading to many prison guards working two or three double shifts each week, the situation is a ticking time bomb, Lopez said.
August 11, 2008
"Cruel and Unequal Punishment"
The title of this post is the title of this new piece on SSRN from Nita Farahany. Here is the interesting abstract:
This article argues Atkins and its progeny of categorical exemptions to the death penalty create and new and as of yet undiscovered interaction between the Eighth and the Fourteenth Amendment of the U.S. Constitution. The United States Supreme Court, the legal academy and commentators have failed to consider the relationship between the Cruel and Unusual Punishments Clause and the Equal Protection Clause that the Court's new Eighth Amendment jurisprudence demands. This article puts forth a new synthesis of these two clauses, and demonstrates how the Court's new Eighth Amendment jurisprudence has remarkable Fourteenth Amendment implications. To see the point in practice, one need only consider two criminal defendants: the first was mentally retarded from birth; the second suffered a traumatic brain injury at the age of 22; and both have identical cognitive, behavioral, and adaptive impairments. Under state statutes cited approvingly in Atkins and others enacted since, the first defendant cannot be executed, but the second one can. This seems wrong on its face, but to understand why, it is necessary to explore the interaction of the Eighth and Fourteenth Amendments. The doctrinal shift in Atkins has profoundly altered that interaction, and a new synthesis is required.
Part I analyzes the Supreme Court's Eighth Amendment proportionality analysis from its inception in punishment-to-crime cases through its more recent punishment-to-culpability cases,revealing the abandonment of critical elements of earlier proportionality analysis in its new punishment-to-culpability cases. Part II reviews the legislative enactments promulgated and sustained in response to Atkins, and demonstrates a dual failure in Atkins, which paved the pathway for a new Eighth and Fourteenth Amendment interaction. Part III demonstrates, by example, medical conditions with nearly identical clinical manifestations as the medically defined category mentally retarded, but that are excluded from legal definitions of mental retardation adopted pursuant to Atkins. The striking similarity between the conditions discussed in Part III and the medically defined category mentally retarded make plain the arbitrariness of an Eighth Amendment fundamental right that turns on categorical exemptions. Finally, Part IV explains how the legislative schemes at issue violate the Equal Protection Clause of the Fourteenth Amendment, and how categorical exemptions to the Eighth Amendment create this new interaction.
New policy paper on reducing recidivism
Today a kind reader sent me this link to a new policy paper from The Progressive Policy Institute, titled "Stop Revolving-Door Justice: How Corrections Systems Can Reduce Recidivism." Here is part of the start of the paper:
While criminals are locked up, the system does too little to prepare them to be reintegrated into their communities as productive, law-abiding citizens. And it fails to effectively supervise people on probation and parole, even though their propensity to commit more crimes is well known.
The escalating crime rate among discharged prisoners also highlights a basic defect in conservatives’ reflexively punitive approach to law enforcement. Their disdain for prisoner rehabilitation guarantees that most offenders will simply be dumped back into the communities they came from, without the skills, tools and incentives they need to change their lives. In their zeal to punish the wicked, many conservatives have lost sight of public safety.
Progressives should not shy from tough sentences for cold-blooded predators and drug profiteers, even if that means high incarceration rates. At the same time, however, they should insist that the U.S. corrections system be tasked with preventing crime as well as punishing it after the fact. In practice, this means that everyone involved in corrections — wardens, sheriffs, parole officers, and probation supervisors — must be held responsible for reducing recidivism rates.
USSC proposes latest priorities and requests public comments
The US Sentencing Commission on its website has now posted here its "Federal Register Notice of proposed priorities and request for public comment." The USSC's homepage explains that as "part of its statutory authority and responsibility to analyze sentencing issues, including operation of the federal sentencing guidelines, ... the Commission is seeking comment on possible priority policy issues for the amendment cycle ending May 1, 2009." The USSC's notice says that "public comment should be received on or before September 8, 2008."
The notice also lists an intriguing set of "tentative priorities," which include:
- "a study of statutory mandatory minimum penalties";
- "consideration of alternatives to incarceration";
- a "multi-year study of the definition of 'crime of violence' used in both statutes and guidelines"
I hope readers will use the comments to get the public comments that the USSC seeks off to a running start.
Catching up with some notable headlines
I am a bit overwhelmed trying to catch up with various sentencing stories after being off-line most of the last two weeks. For example, all these headlines from recent news stories caught my eye:
- From the Atlanta Journal Constitution here, "Man used jail phone to plan more mortgage fraud"
- From the Chronicle of Higher Education here, "Congress Bans Pell Grants for Sex Offenders"
- From the Erie Times-News here, "Drug dealer earns reduced sentence for rehabilitation"
- From the Los Angeles Times here, "State pays millions for contract psychologists to keep up with Jessica's Law"
- From the Rutland Herald here, "Prosecutors oppose long mandatory sentences"
- From the Salt Lake Tribune here, "Sentencing Commission seeks options for prosecuting teens who trade nude photos over cell phones"
- From the Schenectady Gazette here, "Judge stiffening gun crime sentences"
- From the Toronto Star here, "Pentagon rejected 10-year sentence for bin Laden aide"
What were the biggest (or most blogworthy) sentencing stories while I was away?
Though I was only on-line a few times while away, thanks to terrific guest bloggers I was able to keep up with major sentencing developments by reading my own blog. The story that was most dynamic and dramatic during my time away was the debate (and legal appeals) concerning Texas's (ultimately successful) efforts to execute Jose Medellin (basics here and here). But the story I find most interesting is the surprising decision by a military commission to sentence Salim Hamdan, the Yemeni national who was Osama Bin Laden’s driver, to only 66 months following his conviction on charges of providing support to terrorism.
The fact that Hamdan received such a relatively short sentence — which is years shorter than the average sentence given to crack defendants in federal courts — provides an outcome-specific irony to all the legal and political wrangling over military tribunals. In addition, the fact that Hamdan was sentenced by a jury, rather than by a judge (as per standard military justice procedure), puts an interesting twist on the years of post-Blakely debate concerning Sixth Amendment jury trial rights.
Though the guest-bloggers did a great job covering so many sentencing stories, I am sure some notable sentencing tid-bits have slipped below the radar. Readers are encourage to use the comments or e-mail to spotlight stories from recent weeks that merit more attention.
August 10, 2008
I'm back, behind and grateful...
for the extraordinary effort and the outstanding work of the guest bloggers. The reviews appear to be positive, at least based on these comments. And, because my whole family enjoyed my time away from the computer, I am pretty confident that I will arrange for a return visit by these guests (and perhaps others) before long.
Because I have e-piles of of e-mail to get through (and also a new school year's class only a week away), blogging thus may be a bit light the next few days. But I am already looking forward to reviewing (and adding comments) on some of the big doings while I was away.