September 6, 2008
Report that USSC is working on incarceration alternatives
In the Wall Street Journal, Gary Fields has this effective piece discussing what the US Sentencing Commission might have in the works. Here are lengthy excerpts:
The panel that sets sentencing guidelines for federal courts plans to focus on developing alternatives to incarceration, setting up a possible clash with the Justice Department.
Exactly what the U.S. Sentencing Commission might recommend isn't clear. Possible models include bodies such as drug courts, which place offenders in treatment instead of prison. The panel's intention, which it mentioned in a filing in the Federal Register, could provide an impetus for cash-strapped states to follow suit. Justice Department spokeswoman Laura Sweeney said the department is hopeful about the use of monitoring technologies and other strategies, but "we do not believe the use of alternatives should be expanded without further rigorous research showing their effectiveness in promoting public safety."...
This summer, the commission hosted a two-day symposium on alternatives to prison. "We're going to be looking at what might fit at the starting point, before somebody is sent to prison," said District Court Judge Ricardo Hinojosa, who is chairman of the commission. Mr. Hinojosa said the commission will likely proceed cautiously, with considerations of public safety being paramount. Advocates for the idea say the panel's planned consideration is a significant step....
Popular options discussed at the commission's symposium included drug courts now found in every state, which are used to divert drug offenders into treatment programs, community service and restitution centers. These centers allow low-risk offenders to live in residential settings while working to pay their fines and restitution, plus their room and board.
Nationally, the political climate may be receptive to such a change. There has been little discussion of crime on the campaign trail, a place where candidates once vied to appear tougher than their opponents. Recent congressional hearings have focused on the economic and social costs of the nation's drug policies and juvenile-detention system. That's a far cry from just three years ago, when at least one bill was introduced that would have beefed up mandatory minimum penalties for drug crimes.
Some related posts:
- What does the future hold for the US Sentencing Commission?
- USSC proposes latest priorities and requests public comments
- Acquitting and downloading some additional USSC priorities
- Developing AG and USSC short lists
- New developments or data from the USSC?
September 5, 2008
Major Eleventh Circuit ruling on reach of crack retroactivity
The Eleventh Circuit today in US v. Moore, No. 08-11230 (11th Cir. Sept. 5, 2008) (available here), has the first major circuit ruling about the reach of the retroactive crack guidelines. Here is how the decision starts:
In this consolidated appeal, Gary Moore, Ralph Edward Wester, Theodora Lawton, Clarence Collins, and Keith Maurice McFadden (“defendants”) appeal separate district court decisions denying their motions for reduced sentences under 18 U.S.C. § 3582(c)(2). The defendants’ motions were all based on Amendment 706 to the Sentencing Guidelines, which, together with Amendment 713, retroactively reduced the base offense levels applicable to crack cocaine offenses. The district courts denied their motions on the ground that, because the defendants were sentenced as career offenders under U.S.S.G. § 4B1.1, Amendment 706 did not have the effect of lowering their applicable guideline ranges. We affirm.
September 5, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (4) | TrackBack
Effective NYU Center letter on USSC priorities
I noted in this recent post the launch of New York University School of Law's Center on the Administration of Criminal Law, and now I am pleased to spotlight this letter that the Center sent to the US Sentencing Commission proposing the forecasting of the fiscal costs, and the racial and ethnic impact of, pending federal criminal legislation to be a key Commission priority. Here is how this letter begins:
The Center proposes that among the top priorities for the next amendment cycle, the Commission include two key issues that are currently absent from the Commission’s agenda.
First, given the rising costs of incarceration and the increasingly limited available federal prison space, the Commission should forecast the fiscal costs of any provision affecting sentencing in pending criminal legislation prior to congressional enactment and should similarly forecast the costs of any proposed Commission amendment to the Guidelines before those amendments go into effect. This proposal will allow Congress to have valuable information about the costs of proposed legislation during its deliberations so that it can assess whether the legislation will make the most efficient use of federal resources in combating crime.
Second, given the racial and ethnic imbalance among the large federal prison population and the concerns this has raised in communities across the country, the Commission should also implement a program where it forecasts the racial and ethnic impact of any provision affecting sentencing in pending criminal legislation prior to congressional enactment and should likewise forecast the racial and ethnic impact of any proposed Commission amendment to the Guidelines. As with cost forecasting, this information would be enormously valuable to legislators as they consider what policies are the most appropriate for fighting crime and maintaining citizen confidence in the equal treatment of the law. Both of these recommendations are based on the successful experience in the States with similar forecasts. The federal government – with the Commission’s assistance – should examine these state practices with an eye toward adopting a version of them at the federal level.
Third Circuit reasonably reviews rules for reasonableness review
The Third Circuit's decision Thursday in US v. Sevilla, No. 07-1105 (3d Cir. Sept. 4, 2008) (available here), explains the circuit's standards for reviewing a sentence for procedural reasonableness. Here is how the opinion starts:
Where, as here, a convicted criminal defendant presents to the District Court a colorable argument for a lower sentence under 18 U.S.C. § 3553(a), and the District Court fails to address that argument, must the defendant then object in order to preserve the argument for appeal? We conclude that, under our precedent, he need not. Accordingly, we review the District Court’s omissions in this case not for plain error, but to determine whether the Court properly exercised its discretion by giving meaningful consideration to the relevant factors.
Applying this standard, we find insufficient evidence for us to discern whether the District Court meaningfully considered two of Appellant Eduardo Sevilla’s arguments for a lower sentence. We thus vacate Sevilla’s sentence and remand for resentencing.
Detroit mayor cops a plea (but not a great deal?)
As detailed in this local story, headlined "Kilpatrick pleads guilty and resigns: Mayor to go to jail, pay $1M fine under felony deal," the extended drama and saga of Detroit's mayor ended in a plea deal:
After six turbulent years and six months of criminal charges, after the destruction of careers and the squandering of more than $10 million in city funds, Kwame Kilpatrick's career as mayor is over. Detroit's charismatic and controversial mayor pleaded guilty to two felonies and no contest to another Thursday, marking an end to a scandal that had engulfed his administration and paralyzed the city he serves....
As part of a deal to settle 10 felony charges against him, Kilpatrick will leave office and repay the city $1 million. He has pleaded guilty to two counts of obstruction of justice and no contest to one charge he assaulted a law enforcement officer. He will give up his law license. He cannot run for office for five years.
Kilpatrick will be sentenced Oct. 28 and report directly to jail, where he'll stay for at least 100 days of his 120-day sentence. He'll be behind bars over Christmas and will be released no sooner than Jan. 27, 2009.
Interestingly, as detailed in this companion piece headlined "Work of Kilpatrick's defense team questioned after deal --- Experts: Mayor may not have fared much worse in trial," not everyone thinks the mayor made a good deal:
The sentence Kwame Kilpatrick will receive next month is close to what he might have gotten had he gone to trial and been convicted, according to experts and one of his former lawyers. The deal left some wondering what Kilpatrick got from the pricey defense team he assembled.
September 4, 2008
Second Circuit affirms sentence increased over 16 years based on acquitted conduct
Though obscured by other issues (including mob-related facts) and a complicated discussion of the conspiracy guidelines, it appears that the Second Circuit's decision today in US v. Yannotti, No. 06-5571 (2d Cir. Sept. 4, 2008) (available here), is another case in which a circuit has found reasonable a large sentence increase based on acquitted conduct. Here are key details from the opinion (set forth here a bit out of sequence for clarity):
The Probation Officer calculated his Guidelines range as 37-46 months’ imprisonment and recommended a sentence of 41 months....
The district court sentenced Yannotti in November 2006 and concluded that conduct which the jury had not found proven by the government should, nevertheless, be considered in calculating his applicable Guidelines range.... Based on this finding, the court calculated Yannotti’s offense level at 36 and his Criminal History Category at Level II, resulting in a Guidelines range of 210 to 262 months. It then sentenced him to the statutory maximum of 240 months’ imprisonment, noting that Yannotti had been a long-time associate of the Gambino Family and had engaged in extensive illegal and violent conduct in furtherance of that enterprise.
We have consistently emphasized that a district court may consider all information adduced during trial, including acquitted conduct, when sentencing a defendant....
The district court was in the unique position to consider the credibility of the witnesses and to conclude, as it did, that two of the government’s witnesses had been particularly credible in their testimony about Yannotti’s participation in the Sliwa kidnaping. The court appropriately considered the Guidelines and the factors specified under 18 U.S.C. § 3553(a) and sentenced Yannotti within the Guidelines range. We conclude that Yannotti’s sentence was both procedurally and substantively reasonable.
The start of a sex offender sunglasses jurisprudence
Thanks to How Appealing, I saw this fascinating article from the New Jersey Law Journal headlined "Judge Spooked by Sex Offender's Donning of Sunglasses Is Dressed Down on Appeal." Here is the start of the NJLJ article (which includes a link to the opinion):
A New Jersey judge's apparent obsession with a sex offender's wearing of sunglasses in court is ground for a new hearing on whether his involuntary civil commitment should continue, a state appellate court ruled on Wednesday.
The Essex County judge's repeated insistence that the man remove his glasses despite his and a doctor's assertions that they were a medical necessity puts her fairness into question, the panel said in In re Civil Commitment of S.B.M., A-2384-07.
I wonder if Corey Hart should be called as an expert witness in the next big sunglasses case.
Another sentencing for Jack Abramoff
Jack Abramoff, the once high-flying lobbyist who pleaded guilty to a scheme to corrupt Congress, asked a federal judge for mercy on Wednesday, saying he was “not a bad man” although he acknowledged he “did many bad things.” In a letter sent to Judge Ellen S. Huvelle, the day before she was to sentence him in a Washington courtroom, Mr. Abramoff wrote: “So much that happens in Washington stretches the envelope, skirts the spirit of the law and lives in the loopholes. But even by those standards, I blundered farther than even those excesses would allow.”
He said he had contemplated his behavior during the nearly two years he had already served in prison for an unrelated case involving fraud connected to cruise ships in Florida.
Prosecutors have already asked Judge Huvelle to pare years off the jail term recommended in federal sentencing guidelines, citing Mr. Abramoff’s cooperation in wide-ranging investigations that have resulted in the convictions of one congressman, several Congressional aides and some executive branch officials. Although he could face up to 11 years in the Congressional corruption case, prosecutors have recommended a sentence of about half that.
On this topic, I received yesterday this notable e-mail from a reader seeking more details about what Abramoff's cooperation has netted:
So the Justice Department and "Prosecutors" want to shave off time Jack Abramoff's prison time because he cooperated with the FBI and helped to send several "powerful men" to prison. I can't find anywhere or anyone who knows who these so-called powerful men" that were sent to prison because of Abramoff's wonderful deed.....
Who are the ones sent to prison because of Abramoff? We as citizens should know who they are?... Do you know who the names of these men were? I want to know. Who do I write to get this sacred information from if you don't know?
I have looked everywhere and there is absolutely nothing on these powerful men that were sent to prison because of Abramoff's help with the FBI...Now, I believe it is an American Citizen's right to know the whole story on Abramoff, and who he sent to prison if he is possibly going to have time shaved off...It stinks! Who are these men Abramoff sent to prison? There should be some empty seats in Congress for sure, so who are they? What wonderful deeds did Abramoff do to get his time shortened?
UPDATE: As detailed in this Washington Post story, Abrahmoff got four years this time around.
September 3, 2008
"Ohio mom spared death penalty for microwaving baby"
The title of this post comes from this AP account of a notable result in a high-profile capital case in my home state. Remember folks, before anyone proposes any crazy microwave-control legislation as a result of this case, microwaves do not kill people, people kill people.
Some information about Governor Palin's criminal justice record
Over at TalkLeft, Jeralyn has this long and details post headlined "Palin , Prisoners and the Alaska Prison System." Here is one snippet:
Joe Schmidt heads up the Alaska Department of Corrections in her administration. The previous Governor, Frank Murkowski, cut off almost all funds for treatment in prison, including for sex offenders, obviously a terrible idea. Instead he decided to focus on post-release monitoring. The ACLU sued on behalf of three sex offenders.
Joe Schmidt admitted that cutting off treatment programs (which a court had ordered for sex-offenders) was the wrong approach. Gov. Palin tried to restore some funds for treatment programs in her budget this year. The legislature refused her funding request for sex offender treatment in prisons.
I am glad to learn that Gov. Palin supported providing some treatment programs for sex offenders, and I hope to hear more good news about her on the Alaska criminal justice front.
Some recent related posts:
The remaining circuit split over due process burden-of-proof requirements
The Eighth Circuit decision today in US v. Garth, No. 07-2330 (8th Cir. Sept. 3, 2008) (available here), highlights in this footnote that there is still a split within the circuit over whether, even after Booker made the guidelines advisory, due process requires certain sentencing facts to be proven by a standard of proof higher than merely a preponderance of the evidence:
The Third and Seventh Circuits have held that by rendering the Guidelines advisory, the [Supreme] Court has remedied any due process violation that occurs when sentencing facts found by a preponderance of the evidence are used to calculate an advisory Guidelines’ range that causes an extreme increase in the length of the defendant’s sentence. United States v. Fisher, 502 F.3d 293, 308 (3d Cir. 2007); United States v. Reuter, 463 F.3d 792, 793 (7th Cir. 2006). We appear to have summarily dismissed the argument that the tail can no longer wag the dog now that the the Guidelines are advisory. United States v. Archuleta, 412 F.3d 1003, 1007 (8th Cir. 2005) (“Nothing in Booker changes the interpretation of McMillan in our post-Apprendi cases.”). The Ninth Circuit agrees with our post-Booker conclusion and continues to apply a several factor test to determine whether sentencing facts had an “extremely disproportionate” effect on a sentence. United States v. Staten, 466 F.3d 708, 720 (9th Cir. 2006).
September 2, 2008
NYU's new Center on the Administration of Criminal Law
I am very pleased to note the launch of New York University School of Law's Center on the Administration of Criminal Law, which describes its mission in its website this way: "The Center on the Administration of Criminal Law is an apolitical advocacy organization and think-tank dedicated to the promotion of good government practices in criminal matters." Here is more from the website:
The Center analyzes important issues of criminal law, particularly focusing on prosecutorial power and discretion. It pursues this mission in three main arenas: academia, litigation, and public policy debates. The academic component researches criminal justice practices at all levels of government, produces scholarship on criminal justice issues, and hosts symposia and conferences to address significant topics in criminal law and procedure. The litigation component uses the Center’s research and experience with criminal justice practices to assist in important criminal justice matters, particularly in cases in which exercises of prosecutorial discretion create significant legal issues. The public policy component applies the Center’s criminal justice expertise to improve the dialogue on criminal justice matters with elected and appointed public officials and with the media.
I am very excited about the work that this new Center is getting involved in, and I hope to post more soon about at least one of its first efforts.
Did the Supreme Court's work in Baze matter at all?
The DPIC has this recent item discussing the details of the 20 executions in months since the Supreme Court "resolved" the constitutionality of lethal injection protocols through its decision in Baze v. Rees. When I look at the data, I find it remarkable not only that we have returned to four or five executions each month all in traditional death penalty states, but also that we have not seen any post-Baze increase in executions even though the Baze case led to a halt of all executions for over six months.
It seems that, even when the Supreme Court stirs up the pot, the modern dynamics and pacing of execution realities are hard to disrupt significantly.
Some related recent posts:
- A month after Baze, has anything really changed?
- Three months after Baze, has anything really changed?
- Do special procedures help preserve the US death penalty?
- Three more uneventful(?) lethal injections, including one with a political spin
- Waiting and waiting and waiting on the row
The law blogosphere continues to grow...
with the appearance of the Marquette University Law School faculty blog. I will be following this blog regularly, in part because I expect Professor Michael O’Hear to post with some regularity on federal criminal justice matters. In fact, he already has this post on the recent Carter case, titled "A Galling Case in the Seventh Circuit," which ends with these potent insights:
Those who practice criminal law in the federal courts will find much to interest them in Carter (for instance, the discussion of the use of comparative statistics in litigating sentences) but what strikes me most deeply about the case is the way it illustrates the crazy disproportionality of the federal criminal justice system. We live in a odd world when two years in prison is regarded as an extraordinary act of mercy for a first-time, nonviolent offender whose crime was largely technical in nature. It is odder still to realize that the sentencing guidelines called for more than seven years in this case–especially considering that the average sentence for violent felonies in this country is only about six years (which also happens to be about what Mr. Carter–the real crook in the story–received). Why the Department of Justice felt it would be a good use of taxpayer resources to appeal Carter’s sentence (and, if successful, to imprison her for seven years) is a mystery–this seems to me a case of carrying an attractive abstract principle (sentences should be imposed in a uniform, objective manner) to absurd lengths.
Those interested in law professor blogging also will want to check out this post, titled "Teaching, Scholarship, Service … and Blogging? Decanal Encouragement of Law Faculty Blogging."
The many notable stories in federal criminal caseload statistics
For those who enjoy lies, damn lies and statistics, this relatively new official court data detailing the federal criminal caseload over various years makes for very interesting reading.
For example, the data show that the number federal bank robbery prosecutions declined nearly 15% in the last year, while there was more than a 20% incread in the number of federal traffic offense. (I am not referring to drug trafficking, but actual traffic offenses, many of which must take place on Indian reservations or other federal lands). Also notable, in my view, is that the number of federal firearm prosecutions have dropped about 15% from 2004 to 2007.
Perhaps the biggest story in the numbers, especially in light of the tough sentencing issues that keep arising, is the increased number of prosecutions for "Sexually Explicit Material" over the last four years. According to this official data run, in 2003 there were "only" 687 such cases filed in the federal courts in 2003. By 2007, this number jumped to 1544, an increase of nearly 250%!
Some recent related posts:
- Acquitting and downloading some additional USSC priorities
- What does the future hold for the US Sentencing Commission?
- USSC proposes latest priorities and requests public comments
Delaware Supreme Court finds violation of Sixth Amendment speedy sentencing right
Thanks to this local article, I discovered the interesting work of the Delaware Supreme Court last week in Harris v. State, No. 125, 2008 (Del Aug. 28, 2008) (available here). Here is the start of the newspaper account of the state high court ruling:
The Delaware Supreme Court overturned the sentence of a man who pleaded guilty to sexual assault because a lower court violated his right to a speedy trial, taking six and a half years to sentence him. "We continue to assume that the Sixth Amendment to the United States Constitution requires a speedy sentencing and find that the sentencing delay in this case violated [Clinton H.] Harris's rights under that Amendment," Supreme Court Justice Henry duPont Ridgely said in the 12-page opinion issued last week.
According to court records, Harris was arrested on Sept. 16, 1999, on charges of second-degree rape and discharging a firearm from a dwelling. Harris pleaded guilty to first-degree unlawful sexual contact Jan. 3, 2001.
Here is the actual start of the Harris opinion:
Defendant-Appellant Clinton N. Harris appeals his conviction and sentence for a crime to which he pled guilty on January 3, 2001, for which he was not sentenced until February 8, 2008. Harris argues that his motion to dismiss the indictment should have been granted because the delay in sentencing violated his right to a speedy trial and due process.... In denying his motion to dismiss, the Superior Court characterized this case as one which “fell through the cracks.” We continue to assume that the Sixth Amendment to the United States Constitution requires a speedy sentencing and find that the sentencing delay in this case violated Harris’s rights under that Amendment.
September 1, 2008
"Respect and Resistance in Punishment Theory"
This title of this post is the title of this intriguing new article available via SSRN. The piece comes from the always interesting Professor Alice Ristoph, and here is the abstract:
Is it coherent to speak of a right to resist justified punishment? Thomas Hobbes thought so. This essay seeks first to (re)introduce Hobbes as a punishment theorist, and second to use Hobbes to examine what it means to respect the criminal even as we punish him. Hobbes is almost entirely neglected by scholars of criminal law, whose theoretical inquiries focus on liberal, rights-based accounts of retribution (often exemplified by Immanuel Kant) and claims of deterrence or other consequentialist benefits (elucidated, for example, by Jeremy Bentham). Writing before Kant or Bentham, Hobbes offered a fascinating account of punishment that will strike contemporary lawyers as both familiar and perplexing. Hobbes justified punishment within a legal system that adheres to due process, notice, and other principles of the rule of law, but he also insisted that no one consents to be punished, that punishment is an act of violence, and most surprisingly, that the condemned person has a right to resist punishment. In exploring the apparent contradictions in these claims, we find an account of punishment arguably more honest, more egalitarian, and more uniformly respectful than the accounts offered by mainstream retributivist and consequentialist theorists.
Gay marriage debate in California goes to prison
I often tell my students that important public policy issues always have a criminal justice angle. This AP article, headlined "Calif. Ponders Gay Marriage For Inmates: State's Corrections Department Drafting Guidelines To Conform To New Marriage Laws," proves that even debates over gay marriage are heading to prison:
Now that same-sex couples can get married in California, state prison officials are trying to figure out what that means for gay inmates.
No prisoners so far have sought to arrange weddings with same-sex partners since the state Supreme Court granted same-sex couples the right to wed as of mid-June, according to Michele Kane, spokeswoman for the California Department of Corrections and Rehabilitation. Nonetheless, department lawyers are drafting guidelines to bring the state's 33 adult prisons into compliance with the court's ruling that same-sex couples must be treated the same as opposite-sex couples under the California Constitution, Kane said.
What they have determined so far is that would mean allowing gay inmates to marry someone on the outside, but not a fellow prisoner — the same rules that apply to straight inmates, according to Kane. "They will have the same marriage rights as other inmates — they will be able to marry non-inmates, but barred from marrying other inmates in prison," she said.
Jail time in Alaska if you text and drive
This local story from Alaska, headlined "Texting drivers now face jail time: Typing on road is as penalized as first DUI," highlights how states are getting serious in trying to deal with distracted driving. Here are a few details:
Drivers will have to take their thumbs off their phones and put them back on the steering wheel while cruising down Alaska roads starting today when a ban on text messaging while driving begins. Drivers are still able to read messages on their phones, BlackBerry's and iPhones, but it is a crime to write messages. The new law also says Alaska drivers are prohibited from watching video while driving.
Alaska joins four other states in barring the latest driver-distraction phenomenon. Like Alaska's seat belt law, it is considered a primary offense, so an officer could pull a driver over if he thinks the driver is punching away on an electronic device. But unlike other traffic violations, like the seat belt law, which could result in a fine and points off a license, driving while texting could land a driver in jail.
Texting behind the wheel is a misdemeanor punishable by a fine of up to $5,000 and one year in jail. It is the same first-time offense punishment as driving under the influence -- although DUIs have minimum sentencing requirements and the texting law does not.