September 13, 2008
Federal defenders provide (lengthy) suggestions to USSC
As detailed in this agenda, it appears that the US Sentencing Commission will vote on its priorities for the coming amendment season this coming Thursday. But I cannot help but wonder if this timeline gives member of the USSC enough time to take in the federal defenders' long letter of suggested priorities for the Commission. This letter runs 70 pages, and here is an early paragraph that sets forth some of the defenders' views and themes:
The new advisory system is a healthy one. Sentencing is more transparent, sentences are more fair and effective, and the Commission receives the robust feedback it needs to revise the guidelines. The advisory system also tends to expose even more clearly the flaws of mandatory minimum penalties. To the extent it has introduced greater uncertainty, as the Department of Justice notes with some disappointment in its letter of August 26, 2008, it is true that the parties are no longer precluded from demonstrating, or the courts from finding, that the guideline sentence is greater than necessary, or insufficient, to satisfy legitimate sentencing purposes. While this has undoubtedly lessened prosecutorial power over sentencing, the Defenders, as well as most neutral observers, believe that the new system is an obvious improvement. And while the Commission may be concerned that the rate of within-guideline sentences has decreased somewhat and may be uncomfortable with the increased criticism of some of the guidelines (many of which the Commission itself has found to be excessive and to create unwarranted disparities), it seems apparent that the way to reduce the rate of below-guideline sentences and to ensure the Commission's ongoing role in guiding federal sentencing policy is to revise the guidelines in response to feedback from the courts, data and research, that is, to provide advice that makes sense and that the courts want to follow.
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
- New developments or data from the USSC?
- Effective NYU Center letter on USSC priorities
- FAMM suggests priorities for USSC
Problems with GPS tracking in Connecticut
I have long be interested in GPS tracking schemes as a seemingly more effective and economical means for monitoring certain offenders than just keeping them locked up indefinitely. But local stories from Connecticut here and here and here spotlight a serious potential problem with GPS tracking.
Here are the basic details as reported in one article:
The state withdrew charges on Friday that serial rapist David M. Pollitt had violated his probation by wandering from his sister's home, calling into question the reliability of the GPS system the state uses to track some 300 sex offenders living throughout Connecticut.
Pollitt, 55, who was released from prison last year after serving 24 years for several vicious rapes, was charged with violation of probation after the state's GPS contractor notified Pollitt's probation officer that Pollitt had wandered away from his sister's home in Southbury for about 15 minutes on Sept. 3.
On Friday, the state withdrew the charge after the GPS contractor notified the probation department that the system was not working properly during the time in question.
And here is the aftermath from another:
Hours after a prosecutor dropped violation of probation charges against convicted serial rapist David Pollitt that were based on a faulty GPS reading, judicial officials said they'd investigate the reliability of the monitoring system for which the state pays a contractor nearly $1 million a year....
Thomas J. Ullman, Connecticut Criminal Defense Lawyers Association president, cited "numerous cases ... where the electronic monitoring devices have been mistaken."
On Friday, the co-chairmen of the state legislature's judiciary committee, Sen. Andrew J. McDonald and Rep. Michael Lawlor, said the GPS system "has reportedly been malfunctioning for what appears to be an extended period of time." Blumenthal called for an investigation into the GPS system that Pro Tech provides as a subcontractor to California-based G4S Justice Services Inc., which has a $950,000-a-year contract with the judicial branch for electronic monitoring of probationers and parolees. "There is simply no excuse for this malfunction," he said.
[Governor] Rell released a statement saying, "This incident raises a number of troubling questions: Is the GPS system we are using reliable? Can we be sure this will not happen again?"
Some related posts on GPS tracking:
- The inevitability of GPS tracking and cost-saving technocorrections
- Are microchip implants for offenders inevitable?
- UK getting serious about GPS through microchip implants
- A sober (and caffeinated) look at GPS tracking realities
- Are we willing to pay the costs of (effective?) technocorrections like GPS tracking?
- The devil's in the details of GPS tracking of sex offenders
- New article examining incapacitation innovations
- Another reason to believe GPS technocorrections are inevitable
September 12, 2008
"Travis judge tells woman to stop having kids"
The title of this post is the title of this alternative sentencing story out of Texas. Here are some of the basic details:
A judge in Travis County has ordered a woman to stop having children as a condition of her probation in her case of injury to a child by omission, an extraordinary measure that legal experts say could be unconstitutional.
The order was for Felicia Salazar, 20, who admitted to failing to provide protection and medical care to her then-19-month-old daughter last year. The girl suffered broken bones and other injuries when she was beaten by her father, Roberto Alvarado, 25, who was sentenced to 15 years in prison. Alvarado and Salazar relinquished their parental rights, and the child, who has recovered, was placed in foster care.
On Sept. 5, state District Judge Charlie Baird sentenced Salazar, who had no criminal history, to 10 years of probation after she reached a plea bargain with prosecutors. In Texas, judges set conditions of probation. In addition to requiring Salazar to perform 100 hours of community service and to undergo a mental health assessment and setting other typical conditions, Baird told Salazar not to have any more children.
In an interview Wednesday, Baird said Texas law gives judges the discretion to set any conditions of probation deemed reasonable. He also said that neither Salazar nor her lawyer, Kent Anschutz, objected. "When you look her background, the circumstances of this case," he said, "a reasonable condition of her probation was that she not conceive or bear any children."...
The article goes on to nicely review the constitutional questions that this condition of probation presents, with the help of a few law professors:
The requirement that Salazar not conceive or bear any children is "probably not constitutional," said Douglas Laycock, a University of Michigan constitutional law professor. Laycock, a former professor and associate dean for research at the University of Texas School of Law, said in an e-mail that the courts have recognized a fundamental right of people to make their own decisions about becoming parents. "The state rarely tries to stop people from becoming parents, so there has not been much occasion to litigate that," he said. "But undoubtedly there is a constitutional right to have children ... and I doubt that one conviction for injury to a child is enough to forfeit that right."
John Schmolesky, a criminal law professor at St. Mary's University School of Law in San Antonio, said conditions of probation must serve to protect the public or rehabilitate the defendant. "This one might logically have a connection to protecting the public," he said of Baird's order. "Obviously if she neglected her kid, if she doesn't have any more, she can't neglect them." But, Schmolesky said, "if I were a betting man, I would say that an appellate court would strike that one down."
Baird noted that by putting Salazar on probation, he sentenced her to 10 years in prison and suspended that sentence. "If I put her in prison for 10 years, she could not conceive or bear children," he said. "I don't know how this is unreasonable for probation."
Laycock, the Michigan law professor, said that in a past Wisconsin case, a father of nine who was convicted of intentionally failing to pay child support was ordered to have no more children as a condition of probation. The Supreme Court of Wisconsin upheld that condition. "So there's room for argument here," Laycock said. "But I would think that if she challenges this order, it will be struck down. "On the other hand, if she got probation instead of jail, she may be happy with this and not want to challenge it."
Eleventh Circuit faults district judge for failing to explain denial of crack reduction motion
A helpful reader altered me to a decision from the Eleventh Circuit which, though unpublished, is a significant story in the on-going effort to implement retroactively the new federal crack guidelines. In US v. Johnson, No. 08-11415 (11th Cir. Sept. 12, 2008) (available here), the panel vacates and remands for further consideration when the district court failed to explain its denial of a sentence reduction. Here is how the opinion starts and ends:
Sean Johnson, a federal prisoner convicted of a crack cocaine offense, appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence based on an amendment to the Sentencing Guidelines that lowered the base offense levels applicable to crack cocaine. The Government did not file a response to Johnson’s motion in the district court, and the district court’s order denying Johnson’s motion stated that it had “carefully reviewed said Motion and the entire court file” and was “otherwise fully advised in the premises.” The district court did not otherwise explain its ruling. Johnson asserts the district court abused its discretion because the basis for the denial cannot be clearly discerned, thus, effective appellate review is not possible....
The district court’s order denying Johnson’s motion stated that it had “carefully reviewed said Motion and the entire court file” and was “otherwise fully advised in the premises.” The district court did not otherwise explain its ruling. Accordingly, the record does not demonstrate the district court took the pertinent factors into account in denying Johnson’s motion. Accordingly, we vacate the district court’s order denying Johnson’s motion for reduction of sentence and remand for further consideration and explanation.
September 12, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack
Posts of interest around the blogosphere
Here are a few items of interest from blogs of interest for sentencing fans:
- From Grits for Breakfast here, "Governing through Crime"
- From Pardon Power here, "When 'Getting Tough' Means 'Getting Torpid'"
- From TalkLeft here, "John McCain's Record on Drugs"
September 11, 2008
Libertarian Bob Barr speaks out against federal "war on drugs"
Providing exactly the politicial tonic to the usual tough-on-crime bromides, Libertarian Patry Presidential candidate Bob Barr has this new commentary at the Huffington posty speaking out against the federal war on drugs. Here are extended excerpts from today's must-read:
As both a U.S. Attorney and Member of Congress, I defended drug prohibition. But it has become increasingly clear to me, after much study, that our current strategy has not worked and will not work. The other candidates for president prefer not to address this issue, but ignoring the failure of existing policy exhibits both a poverty of thought and an absence of political courage. The federal government must turn the decision on drug policy back to the states and the citizens themselves.
My change in perspective might shock some people, but leadership requires a willingness to assess evidence and recognize when a strategy is not working. We are paying far too high a price for today's failed policy to continue it simply because it has always been done that way....
Whether we like it or not, tens of millions of Americans have used and will continue to use drugs. Yet in 2005 we spent more than $12 billion on federal drug enforcement efforts. Another $30 billion went to incarcerate non-violent drug offenders....
We simply must bring our system back into balance. First, the federal government should get out of the "drug war" and allow states to determine their own drug policies. Rather than continuing to arrest and imprison people for offenses that do not directly harm other people, we should focus federal law enforcement on crimes involving serious fraud or violence, with identifiable victims. Even then, only where there is a clear and specific federal interest, should the federal government be involved....
I also would review my presidential pardon and commutation powers as a possible means to reduce the number of people in federal prison for non-violent drug offenses. We can no longer afford the human and economic costs of imprisoning so many thousands of people for drug possession. This is the most destructive impact of drug prohibition....
None of this means that I believe drug use to be harmless, or appropriate for minors. For that reason I would encourage people and institutions throughout America, from churches to social agencies to sports leagues, to work together to address drug abuse. One of our nation's greatest strengths is the willingness of people to organize outside of government to solve human problems.
But treating what is, at base, a moral, spiritual, and health problem as a matter of federal criminal law has solved nothing. The next president must put politics aside and take a long, hard look at the failure of the federal war on drugs. We must reestablish the primacy of individual choice and state's rights in deciding these issues. This always has been the greatest strength of America, and should be again.
Wow! Great stuff on a topic that should be a much bigger part of the national political conversation. Kudos to Bob Barr for this potent commentary. I am now hoping Barr gets to participate in some way in some of the Presidential debates.
Some related posts:
- What will the new libertarian presidential candidate say about mass incarceration and the drug war?
- "Real commander needed for the war on drugs"
- Will any Prez candidate promise to get us out of a failed war ... on drugs?
2008 Supplement for Sentencing Law and Policy casebook now available
As a new school year gets underway, I am proud to be able to share a new supplement providing additional materials to accompany the Sentencing Law and Policy casebook. You can download the new 2008 summer supplement below.
This 2008 supplement includes edited versions of Kimbrough and Gall, as well as lots of notes covering various major sentencing developments from the past year. My co-authors and I hope adopters of our text and others find this new supplement useful, and we welcome comments and suggestions.
Two new must-reads from SSRN
Two of my favorite profs have new pieces on SSRN. Here are the titles, links and abstracts:
- Prosecutorial Shaming by Adam M. Gershowitz:
This Article explores the unfortunately large number of instances in which appellate courts reverse convictions for serious prosecutorial misconduct but do not identify the names of the prosecutors who committed the misconduct. Because judges are reluctant to publicly shame prosecutors whose cases are reversed, this Article advocates that a neutral set of third parties undertake the responsibility of publicly identifying prosecutors who commit serious misconduct. The naming of prosecutors will shame bad actors, provide a valuable pedagogical lesson for junior prosecutors, and signal to trial judges that certain prosecutors must be monitored more closely to avoid future misconduct.
- Guidelines Simplification: Still an Urgent Priority Post-Booker by Michael M. O'Hear
This Essay argues that Federal Sentencing Guidelines would benefit from substantial restructuring and simplification. Although the status of the Guidelines has recently changed from mandatory to merely advisory, the Guidelines remain a highly influential part of the federal sentencing process, and their reform remains an urgent priority. Simplified guidelines, as proposed in 2006 by a working group of sentencing experts, would provide fairer sentences, better accommodate new procedural safeguards, and insulate the Guidelines from counterproductive tinkering by the political branches. This Essay appears as part of a forthcoming issue of the Federal Sentencing Reporter (Vol. 20, No. 5) containing advice on sentencing policy for the new President and Congress.
Federal judge finds constitutional problems with new Nevada sex offender laws
As detailed in this AP report and this ACLU of Nevada press release, a federal judge in Nevada on Thursday issued an injunction to preclude some enforcement of new sex offender laws. Here are details from the AP story:
U.S. District Judge James Mahan said the laws, as applied to 12 sex offenders represented by the American Civil Liberties Union of Nevada, are unconstitutional. Mahan declined to rule on whether the new laws, which change the way Nevada classifies sex offenders, may be applied to those convicted of sex offenses in the future.
The ACLU of Nevada said the new laws, AB579 and SB471, drastically altered the way in which Nevada deals with sex offenders.... Many rehabilitated, low-risk offenders would have retroactively become high-risk offenders "subject to widespread community notification, which in turn would have meant that they and their families faced social ostracism, losing their jobs, and even possible vigilante violence," the ACLU said. "Judge Mahan's ruling makes very clear that the Constitution applies to everybody," ACLU attorney Maggie McLetchie said. "What this case is really about is a limit on the powers of government."
Deputy Attorney General Binu Palal, who had argued for the retroactive application of the laws, said after Mahan's decision that the state respected the ruling, adding, "We will review our options after we see the order."
The federal judge's decision follows the Nevada Supreme Court's recent decision not to rule on the constitutionality of AB579, which states that teenage sex offenders can be punished as adults. The state high court dismissed appeals of Clark County prosecutors who argued in 21 cases that the youths, who were 14 years old and older and had committed sexual acts, had to register as sex offenders. Prosecutors appealed after Clark County Family Court Judge William Voy held that part of the 2007 law was invalid. He said there was no rational basis for setting the age at 14....
The 2007 Legislature patterned AB579, after the 2006 federal Adam Walsh Act that included many teenage sex offenders age 14 and older with adults in requirements for sex offender registration and community notification. The federal law, named for a six-year-old who was abducted from a Florida shopping mall in 1981 and later found slain, cut off certain grant funds to states unless they included in their registries juveniles who committed sex offenses when they were as young as 14.
The AP story suggests that the Nevada law found constitutionally problematic was passed in direct response to the federal Adam Walsh Act. As a result, this ruling by Judge Mahan could have significant national implications and could become a lot more than just be a local story.
FAMM suggests priorities for USSC
Families Against Mandatory Minimums has posted on its website a letter sent to the U.S. Sentencing Commission earlier this week, which provides comments concerning the USSC's 2009 proposed priorities. Unsurprisingly, this FAMM letter urges mandatory minimum sentencing reform, crack cocaine sentencing reform and alternatives to incarceration. And, encouragingly, toward the end of its letter, FAMM also promotes two ideas/issues that are of great interest to me: "we encourage the Commission to expand the safety valve provided for in 18 USC 3553(f) and reform the relevant conduct standard to prohibit the consideration during sentencing of conduct of which the offender was acquitted."
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
- New developments or data from the USSC?
- Effective NYU Center letter on USSC priorities
A fitting read for a sad anniversary
I would surely recommend this new piece on SSRN for reading on any day. But, particularly on a day in which we are remembering the reason we started the "global war on terror," this piece seems especially timely. The piece by James Forman Jr. is titled, "Exporting Harshness: How the War on Crime Has Made the War on Terror Possible," and here is the abstract:
This Essay responds to a consensus that has formed among many opponents of the Bush administration's prosecution of the war on terror. The consensus narrative goes like this: America has a long-standing commitment to human rights and due process, reflected in its domestic criminal justice system's expansive protections. Since September 11, 2001, President Bush, Vice President Cheney, former Defense Secretary Rumsfeld, and their allies have dishonored this tradition.
It is too simple, I suggest, to assert that the Bush administration remade our justice system and betrayed American values. This Essay explores the ways in which our approach to the war on terror is an extension — sometimes a grotesque one — of what we do in the name of fighting the war on crime. By pursuing certain punitive policies domestically, I suggest, we have become desensitized to the harsh treatment of criminals. Revelations of abuse, therefore, are less likely to move us. In part for this reason, despite the mounting evidence regarding secret memos, inhumane prison conditions, coercive interrogations, and interference with defense lawyers, the Bush administration's approach to the war on terror remains largely unchecked and unchanged.
I pursue this thesis by focusing on five specific areas in which our domestic criminal system has influenced how we fight the war on terror: 1) the scope of our prison complex, 2) prison conditions and prisoner abuse, 3) our harsh treatment of juveniles, 4) attacks on judicial authority, and 5) undermining the role of defense counsel. I conclude by suggesting that the very metaphor of war — whether on crime, drugs or terror — helps explain our enthusiasm for harsh tactics.
Important and impressive Fifth Circuit ruling concerning crack retroactivity
A helpful reader alerted me to an important and impressive opinion concerning crack retroactivity issues from the Fifth Circuit, US v. Robinson, No. 08-10424 (5th Cir. Sept. 10, 2008) (available here). Here is the reader's effective summary:
This opinion is by the Fifth Circuit regarding the right to an attorney in a crack retroactive amendment hearing. The defendant had been sentenced for a crack offense over a decade ago and applied for a reduction of his sentence under the retroactive amendment. In doing so, he also requested an attorney to represent him. The government responded with a complex, 25-page sentencing memorandum. The government contended, among other things, that the defendant was not entitled to an attorney and that he should receive no greater than a five-month reduction -- he could have received up to a 40-month reduction. The next day, the district court issued a short order granting the defendant a five-month sentence reduction. The defendant then appealed and again asked for an attorney. The sole question before this panel was whether the defendant should be appointed counsel to represent him on appeal. The court answers that question in the affirmative. In reaching that result, the court covers a lot of interesting ground.
September 11, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack
September 10, 2008
Is Governor Palin is a real fan of jury nullification and pot decriminalization?
Writing here in Reason, Radley Balko has a very interesting take on Governor Sarah Palin. The piece is titled, "A Decent Pick: Libertarians could do worse than Sarah Palin," and here are snippets:
Palin was also one of just three governors in the country to issue a proclamation in support of "Jurors' Rights" day, an event sponsored by the Fully Informed Jury Association, which encourages the doctrine of jury nullification. Nullification is an idea abhorred by tough-on-crime conservatives.
Palin also comes from a state whose constitution has one of the strongest privacy provisions in the country. Alaska's traditional reverence for privacy and personal autonomy is reflected in a number of issues that would likely be at odds with the national Republican Party — or at least the Bush administration — including a rejection of the Real ID Act, and the de facto decriminalization of marijuana.
Some recent related posts:
Notable (though failed) attempt to attack prosecutorial discretion in Seventh Circuit
The Seventh Circuit has an extended discussion of prosecutorial discretion in the course of reject an interesting constitutional claim brought by a federal defendant in US v. Moore, No. 07-3770 (7th Cir. Sept. 10, 2008) (available here). Here is how the case starts:
Raymell Moore pled guilty to federal drug charges and was sentenced to a statutory mandatory minimum term of 10 years’ imprisonment. On appeal, he raises a “class of one” equal protection challenge to his sentence. He contends that he was similarly situated to a group of defendants charged in a statecourt drug conspiracy case and that the imposition of the statutory mandatory minimum sentence was irrational in light of its non-application to the state-court defendants.
Ninth Circuit discusses lots of sentencing issues
Though not full of groundbreaking stuff, the Ninth Circuit's lengthy decision today in US v. Waknine, No. 06-50521 (9th Cir. Sept. 10, 2008) (available here), covers lots of important modern sentencing issues. Here is how the opinion starts:
Hai Waknine appeals his sentence of 121 months of imprisonment and $646,000 in restitution payments imposed by the district court after he pleaded guilty to one count of racketeer influenced and corrupt organizations (“RICO”) conspiracy, in violation of 18 U.S.C. § 1962(d), for laundering proceeds by embezzling from the Tel Aviv Trade Bank and brokering loans through extortion. He argues that (1) the government violated the plea agreement by not orally recommending at the sentencing hearing a 108-month prison term pursuant to the plea agreement, (2) the district court violated Rule 32 of the Federal Rules of Criminal Procedure by not giving the government an opportunity to speak at the sentencing hearing, (3) the district court committed procedural error by not considering the 18 U.S.C. § 3553(a) factors before imposing his sentence, and (4) the district court erred in its restitution calculation. Waknine also asks us to remand this case to a different district judge. We have jurisdiction under 28 U.S.C. § 1291. We conclude that there was plain error in the sentencing, and we therefore vacate the sentence, and remand with instructions for the district court properly to calculate the United States Sentencing Guidelines range, to discuss the 18 U.S.C. § 3553(a) factors in rendering sentence, and to comply with Rule 32 of the Federal Rules of Criminal Procedure by permitting each party to be heard before announcing the sentence. We also vacate the district court’s restitution order, and remand for recalculation and explanation of restitution payments. Finally, we reject Waknine’s request for a new sentencing judge.
Smart editorial about being smart on crime
The Detroit Free Press on Tuesday ran this effective editorial, headlined "Public wants smarter, less costly criminal justice policies." Here are a few highlights:
For decades, politicians have believed that sounding tough on crime was their ticket to getting elected. Such beliefs, along with a few high-profile crimes, have generally driven prison policies over the last three decades and fueled an enormous expansion of Michigan's prison system with little, if any, improvements in public safety.
But a new poll of Michigan voters, commissioned by Detroit Renaissance, on restructuring the state budget could help change that. It shows wide support for criminal justice reforms that would lead to fewer people in prison and less money spent on corrections....
Michigan taxpayers are finally coming to understand that they are getting too little in return for that enormous investment. The Detroit Renaissance poll found that corrections was the top choice of four areas that voters were asked to consider for major reform with cost-saving potential. The others were Medicaid, state employee health care benefits, and public school teachers' health care benefits.
Two of the top six ideas supported by voters were finding alternatives to prison for nonviolent offenders and releasing some nonviolent offenders before parole. In addition, nearly half of those polled supported reducing the length of mandatory sentences....
Michigan -- for no good reason -- incarcerates at a rate 47% higher than the other seven Great Lakes states, costing taxpayers here an added $500 million a year. That's unconscionable and unrealistic in a state with pressing education, health care, job training, transportation and other needs. Politicians should now know that it's safe to be smart on crime as well as tough.
The poll being referenced in the article is discussed and can be accessed at this site.
September 9, 2008
District judge rejects plea deal calling for only probation for billionaire
As detailed in this Los Angeles Times article, headlined "Judge rejects plea deal for Broadcom co-founder Henry Samueli," a federal district judge yesterday refused to accept the government's suggestion that a term of probation was sufficient in a high-profile white-collar case. Here are details from the LATimes article:
Suggesting that Broadcom Corp. co-founder Henry Samueli deserves to go to prison, a federal judge Monday rejected a deal with prosecutors that would have given the Orange County billionaire probation for lying to regulators about his role in an alleged $2.2-billion stock-option scam.
The government's allegations against Samueli, "if true, warrant a significant prison sentence," U.S. District Judge Cormac J. Carney wrote in an order delivered to Samueli, his attorneys and prosecutors at a hearing in Carney's Santa Ana courtroom. Under the terms of the plea agreement, Carney could only accept or reject the recommended sentence, not modify it.
The judge took aim in particular at an unusual provision in the plea accord calling for Samueli to pay $12 million to the government. The maximum fine under the charge to which Samueli agreed to plead guilty is only $250,000. "The court cannot accept a plea agreement that gives the impression that justice is for sale," Carney wrote. Accepting the agreement, he added, would "erode the public's trust in the fundamental fairness of our justice system."
Judge Carney wrote a thoughtful and detailed 22-page opinion explaining his decision, which can be accessed at this link. Fascinating stuff.
A sentencing approach to dealing with prosecutorial misconduct
Professor Sonja Starr has posted this interesting and provocative paper on SSRN. The piece is titled "Sentence Reduction as a Remedy for Prosecutorial Misconduct," and here is the abstract:
Current remedies for prosecutorial misconduct, such as reversal of conviction or dismissal of charges, are rarely granted by courts and thus do not deter prosecutors effectively. Further, such all-or-nothing remedial schemes are often problematic from corrective and expressive perspectives, especially when misconduct has not affected the trial verdict. When granted, such remedies produce windfalls to guilty defendants and provoke public resentment, undermining their expressive value in condemning misconduct. To avoid such windfalls, courts must refuse to grant any remedy at all, either refusing to recognize violations or deeming them harmless. This often leaves significant non-conviction-related harms unremedied and egregious prosecutorial misconduct uncondemned.
This Article accordingly proposes adding sentence reduction to current all-or-nothing remedial schemes, arguing that this would provide courts with an intermediate remedy that they would be more willing to grant. It argues that several prosecutorial incentives combine to make sentence reduction an effective deterrent. Moreover, because sentence reduction could be tailored to the magnitude of the violation, it could resolve the windfall dilemma and serve as an effective corrective and expressive remedy.
September 8, 2008
Is SCOTUS really thinking about rehearing Kennedy child rape case?
As detailed in this post at SCOTUSblog by Lyle Denniston, the Supreme Court today has asked for some more briefing concerning the motion for rehearing in the Kennedy child rape case. Here are details from that posts:
The Supreme Court on Monday called for new legal briefs on possible rehearing — and, maybe, revision — of its ruling striking down the death penalty for the crime of child rape. In an order in Kennedy v. Louisiana (found here), the Court sought briefs from lawyers for both sides in the case, as well as from the federal government. The new briefing in 07-343 is to be completed by Sept. 24 — in advance of the Court’s first Conference of the new Term, on Monday, Sept. 29.
The briefs are to discuss two issues, according to the order: first, whether to grant rehearing of the June 25 decision, and second, what action — if any — the Court should take if it does reopen the case. Here is the way the Court phrased its inquiries: “whether rehearing should be granted” and “the merits of the issue raised in the petition for rehearing” filed by the state of Louisiana on July 21....
In Monday’s order, the Justices sought a supplemental brief of up to 4,500 words from attorneys for Patrick Kennedy, the death-row inmate at the center of the case, with that brief due on Sept. 17. The U.S. Solicitor General’s office is to file a brief of up to 2,500 words, due at the same time, on the federal government’s views. The state of Louisiana is to file a brief of up to 4,500 words, dealing not only with its plea for rehearing, but also “the merits of the issue raised in the petition for rehearing.” That final brief is due Sept. 24.
I presume that, even with this order, amicus briefs are still not permitted in support (or opposition) to the rehearing petition. Still, this is an interesting and exciting development, and I am very much looking forward to seeing what these supplemental briefs look like (and what else gets said about the case in the media and in the blogosphere).
Some related recent posts on a possible Kennedy rehearing:
UPDATE: The Washington Post reports on this new development in this artice.
Another sad federal child porn sentence
In prior posts I have noted the challenges judges ae facing with sentencings in child porn downloading cases. In a recent Seventh Circuit decision, US v. Allday, No. 07-2698 (7th Cir. Sept. 5, 2008) (available here), a panel affirms a district court's decision to deal with these challenges by giving a within-guideline sentence. The start of the opinion provides these factual basics:
A devoted and by all accounts loving father and grandfather, Gilbert Allday is hardly a man one would expect to find sentenced to eight years in federal prison for receiving child pornography. Expectations aside, in January 2004 Allday began looking at pornographic web sites while surfing the Internet. From there, Allday began visiting web sites depicting minor children engaged in sexual acts. By August 2005, Allday had amassed some 541 still images and 82 movie files depicting minors engaged in sexually explicit conduct.
Allday pleaded guilty without the benefit of a plea agreement to violating 18 U.S.C. § 2252(a)(2), which prohibits the knowing receipt of any image of a minor engaging in sexual conduct that has been transported in interstate commerce and “the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct.” That statute carries a five-year mandatory minimum term of imprisonment. 18 U.S.C. § 2252(b)(2). Before sentencing, Allday submitted a sentencing memorandum in which he argued that he should be sentenced to the five-year mandatory minimum. He emphasized the fact that he was 64 years old and suffering from a number of health problems, including sleep apnea that required nightly monitoring with a machine, a heart condition, and diabetes. He also argued that his stablework history (41 years as a Union laborer), military service, and first-time offender status all militated in favor of a five-year sentence. Finally, he submitted a number of letters from his step-children and grandchildren, all attesting to the fact that he was a loving and supportive father and grandfather. The district court instead sentenced Allday to 97 months imprisonment, the bottom of the undisputed 97 to 121-month Guideline range.
Upon first reading of these facts, I wondered why the district court believed a five-year prison term was not sufficient to serve the 3553(a)(2) purposes of punishment and why the defendant did not consider appealing the substantive reasonableness of this decision. A notable footnote at the end of the Seventh Circuit opinion indicated that the defendant only challenged the sentence's procedural reasonableness, and the panel makes clear that it had "no occasion to consider the separate issue of whether his 97-month sentence is in fact reasonable." I cannot help but this that this footnote hints that the circuit might have been prepared to question the substantive reasonableness of Allday's sentence had he raised the issue.
Upon second reading of these facts, I also wondered why the defendant pleaded guilty without the benefit of a plea agreement. In lots of similar downloading cases, there is often a plea agreement in place and prosecutors are even sometimes willing to forgo a plea to those charges that require a 5-year mandatory prison term. I can only speculate that, for whatever reason, the prosecutors in this case decided this particular ill, elderly veteran needed to be kept away from society for as long as possible for the way he misused his computer.
Some related child porn sentencing posts:
"Real commander needed for the war on drugs"
The title of this post is the title of this effective column in the Seattle Times by Neal Pierce. Here are a few excerpts:
Will America's ill-starred "war on drugs" and its expanding prison culture make it into the presidential campaign? Standard wisdom says "no way."
We may have the world's highest rate of incarceration — with only 5 percent of global population, 25 percent of prisoners worldwide. We may be throwing hundreds of thousands of nonviolent drug offenders, many barely of age, behind bars — one reason a stunning one out of every 100 Americans is now imprisoned. We may have created a huge "prison-industrial complex" of prison builders, contractors and swollen criminal justice bureaucracies.
Federal, state and local outlays for law enforcement and incarceration are costing, according to a Senate committee estimate, a stunning $200 billion annually, siphoning off funds from enterprises that actually build our future: universities, schools, health, infrastructure....
A serious set of problems, a shadow over our national future? No doubt. But do our politicians talk much about alternatives? No way — they typically find it too risky to be attacked as "soft on crime."...
Talk about a serious national issue on which we could use some presidential leadership — not dictating precise answers, but moving us to debate alternatives. It's been 20 years since drugs and prisons have even been mentioned in the televised presidential debates. Maybe not just Obama but McCain too could surprise us with some fresh ideas and promise of leadership as president. But we probably won't hear this unless reporters press the issue.
Some related posts:
"Jail and Jesus"
The title of this post is the title of this terrific column in USA Today by Tom Krattenmaker, which begins with a question that ought to be asked of everyone running for national office who makes much of their faith:
The Bible is heavy on redemption, and the plight of prisoners is a recurring theme in the New Testament. With 1 in 100 American adults incarcerated, are Christians doing enough to address the root causes of this prison explosion?
Here are some more snippets from today's must read:
"Jesus for President!" So proclaims a progressive Christian movement aiming to tweak the national conscience. Recent trend lines in the country suggest an even more provocative tagline for our consideration: "Jesus for Parole." That's right. Jesus is imprisoned — at least in the view of an increasingly vocal set of Christians spurred into action by some deeply troubling truths about America and our bursting-at-the-seams prison system.
The concern seems as well placed as it is challenging. The United States has crossed, for the first time, a dismal threshold: One out of every 100 American adults is in prison, according to the Pew Center on the States. Five states have reached the point where they are spending as much or more on corrections than they do on higher education systems. To place it all in perspective, consider that America has approximately 5% of the world population but about 25% of the world's prison population.
The fact that violent crime, according to the Justice Department, has dropped over the same three decades of surging prison-population growth poses a complex tangle: Is less crime the product of get-tough enforcement and sentencing, or are we just incarcerating more low-level offenders who don't need to be in prison? Probably some of both. But whatever the case, the situation is enough to chew on the conscience of any follower of a religion that emphasizes compassion and redemption. Multitudes of Americans are languishing in prison — and it's all suggestive of something deeper afflicting the soul of the nation....
Andrew Skotnicki is a former Catholic priest and ex-prison chaplain with a challenging proposition for the nation's religious believers: Those 2 million men and women in America's prisons? They're Jesus, he says.
Skotnicki, author of the book Criminal Justice and the Catholic Church, is not suggesting that convicts are all misunderstood angels who should be let loose. He sees great value in penitence — the process of transgressors' removal from society followed by reflection, reform and acceptance back into the community. But our prison system falls appallingly short of that ideal, he believes.... "The Scripture's pretty clear," Skotnicki says. "There's a real affinity for the imprisoned. God hears the cries of the imprisoned throughout the Scriptures. Whether the prisoners in question are in Guantanamo or Abu Ghraib, whether they're mass murderers, sex offenders — whoever — Jesus says that when you visit a prisoner, 'you visit me.' "...
Is the world's No. 1 "Christian nation" ready to acknowledge the humanity of prisoners and follow the courses of action that might logically follow — including work on those aspects of "the system" that have contributed to America becoming the world leader in incarcerations? If not, count on prison ministry remaining a very active front. Because the nation's believers are going to have a lot of Jesuses to visit behind those prison gates.
September 7, 2008
Talk of alternatives out west
I am in the middle of a western swing: I had the honor of talking about sentencing at the Tenth Circuit conference this past Friday in Colorado Springs, and now I am in Tucson to participate in this great event on "New Media and the Courts" at the Rehnquist Center. Hotel connectivity has allowed me to keep up with the sentencing news, and I was intrigued to see these two items from the west with incarceration alternatives as a unifying theme:
- From Nevada, here is a local editorial headlined "Overcrowded prisons: State Legislature should consider alternative sentencing for nonviolent offenders."
- From California, here is an article on an upcoming high-profile sentencing headlined "Samueli's Attorneys Suggest Fines, Probation For Billionaire"
I am not sure either piece will help me sound smart at the new media symposium this week, but I kind of think continued blogging is a must to justify my participation in the event.
Important (though incomplete) op-ed on mass incarceration and mercy
Professor Carol Steiker has this interesting column in the Sunday Washington Post, headlined "Passing the Buck on Mercy." The piece begins by discussing the debate over the sentencing of long-time fugitive Susan LeFevre (background here), and then turns to making broader points about mass incarceration and mercy. Here are some excerpts:
Sitting in her cell in Plymouth, Mich., LeFevre is one of 2 million Americans behind bars. Many of them, like LeFevre, are nonviolent drug offenders. The staggering number of American prisoners has made the United States the world's leading incarcerator; this nation locks up a greater number of offenders for longer periods than any other nation. In 1960, approximately 330,000 people were behind bars in the United States. Today the number is 2.3 million. Moreover, largely because of the "war on drugs," the increase in women's incarceration in recent years has far outstripped the increase in men's, devastating many families and communities.
How did we scale the soaring peaks of mass incarceration? The decline of mercy has played a leading role. With the noble intent of bringing rationality and order to what had often been a chaotic and even discriminatory system of criminal justice, reformers at every stage of the justice system have sought to limit the power of discretionary actors to say no to punitive policies.
Consider: Police departments have instituted mandatory arrest and "zero tolerance" policies that have swept up many low-level offenders. Prosecutors' offices have given instructions, such as those issued by a series of Republican attorneys general, to charge only the most serious provable offenses, no matter what the circumstances. Juries have convicted defendants on charges without any inkling of the sentencing consequences. The ability of sentencing judges to respond to cases on their individual merits has been sharply curtailed or destroyed by sentencing guidelines and mandatory minimum sentences. And the granting of executive clemency has radically declined, not just in the Bush administration but also in governors' offices around the country....
An exit strategy from this upward spiral of incarceration lies in revitalizing the exercise of mercy. Yes, mercy carries the risk of arbitrariness and discrimination. Soccer moms such as LeFevre may seem to be more appealing defendants than many others who have committed nonviolent crimes. But mass incarceration has had an enormous impact on poor and minority communities. Only by reconsidering individual cases and questioning the necessity and desirability of punishment can we turn back from the prison state that we have become.
Our Founding Fathers understood the importance of checks and balances, but no one is checking or balancing the decisions that are causing our prisons to overflow. By reinvigorating the veto power of actors all along the justice system, we may save individuals from unnecessarily destroyed lives. We may save money in these economically trying times. But most important, we may save ourselves -- by preserving the value of mercy.
The remarkable LeFevre provides an effective setting for considering the place of mercy in our criminal justice system. But I think mercy and other concepts can only be an effective theme for reforming punitive laws and policies if effectively linked to American values. Professor Steiker does this a bit in her final paragraph, but the link between checks and balances and acts of mercy feels a bit strained.
Of course, what the Framers were clearly trying to promote and safeguard through check and balances was the "blessings of liberty" (to use words from the Constitution's preamble) through the creation of a government that would help secure citizen's rights to "life, liberty, and the pursuit of happiness" (to use words from the Declaration of Independence's preamble). In may view, the problem with mass incarceration and punitive policy lies not so much in the diminished value of mercy, but more fundamentally to the diminished commitment to human liberty within the United States.
But what is really missing in Professor Steiker's discussion is a failure to call national politicians to account for mass incarceration and continued acceptance of expensive punitive policies. Especially with this piece appearing in the Washington Post, I would have like a few sentences noting and criticizing the failure of either presidential candidate to address these issues. Indeed, linking this political point to the Framers' concerns, I keep hoping someone would ask the candidates whether they think the Framers would be proud to know that the United States is now the world's leader in incarceration rates.
Some related posts:
- How the media can do better: ask the candidates tough crime and punishment questions
- "Why Are So Many Americans in Prison?"