September 27, 2008
Heller and the Second Amendment stir up controversy
The AP has this new piece noting that some notable judicial conservatives are assailing Justice Scalia's activism in the Heller Second Amendment case. Here are snippets from the article:
The judges, J. Harvie Wilkinson of the 4th U.S. Circuit Court of Appeals in Richmond, Va., and Richard Posner of the 7th U.S. Circuit Court of Appeals in Chicago, take Scalia to task for engaging in the same sort of judicial activism he regularly disdains....
Wilkinson said elected officials are in a better position to determine gun laws than the courts. He compared the gun case to Roe v. Wade, the abortion rights decision that conservatives consider among the court's worst....
Posner, writing in The New Republic last month, said of Scalia's work in Heller: "The decision ... is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology."
Though I do not think too much of the label "judicial activist," it does seem to be a reasonable description of Justice Scalia's work in Heller. But this is one reason why I like the Heller outcome. As Damon Root rightly asserts in this essay at Reason, "the courts have been at their historic best when rejecting the will of the majority and acting in defense of individual rights."
September 26, 2008
"The Confessional Penalty"
The title of this post is the title of this paper I just noticed on SSRN. The paper, by two professors at Tel Aviv University, is another interesting suggestion to use sentencing rules to deal with non-sentencing concerns (like the recently implemented thoughtful proposal to use sentence reductions to deal with prosecutorial misconduct). Here is part of the the abstract for "The Confessional Penalty":
Many attempts have been made to deal with confession-based wrongful convictions. Examples include the Miranda rules or the requirements for varying degrees and types of corroborating evidence. To date, all the rules and proposals share a common characteristic: They all attempt to correct the evidentiary fallacies associated with out-of-court confessions by evidentiary means, whether admissibility oriented or weight oriented.
In the article we argue that none of the proposed mechanisms is likely to solve the problem. The root of the problem lies in the fact that the entire criminal justice system is currently organized around confessions. Law enforcement officers focus on obtaining confessions and the prosecution uses it as its evidentiary centerpiece. Further restricting admissibility or requiring a higher degree of corroboration will not change this trend. Moreover, the confessional lure is too strong to resist. Like the Sirens' Song, the confession casts a spell on all those subjected to it and, no matter how strong a corroboration we require, we will eventually fall back on the confession.
We propose an entirely different solution to the tendency to over-use confessions, one that utilizes penal means to change the incentive structure within the criminal justice system. We propose to incorporate into the sentencing guidelines a mandatory reduction of the criminal sanction whenever an out-of-court confession is introduced into evidence by the prosecution. In other words, our proposal is to elevate the cost of using out-of court confessions, as compared to other types of evidence. The article will demonstrate how placing such a "sentencing price tag" on the use of out-of-court confessions will correct the current bias in favor of using this evidence and induce law enforcement officials to seek extrinsic evidence, thus turning confessions into a residual evidentiary devise. The article will also show that the proposed regime will improve the court's ability to distinguish between true and false confessions. After discussing the proposed model's normative appeal, the article will proceed to deal with possible criticisms which can be leveled against it, whether retributive, utilitarian or expressive.
Justice Alito jumping out of the cert pool!!
Though it won't garner as much attention as a big ruling, Adam Liptak reports here some huge news coming from the Supreme Court: Justice Samuel Alito is getting out of the cert pool. Here's more from Liptak's story in today's New York Times:
For almost 20 years, eight of the nine justices on the Supreme Court have assigned their law clerks to a shared legal labor pool that streamlines the work of reviewing incoming cases. Only Justice John Paul Stevens has declined to participate. He relies on his own clerks to help cull perhaps 80 worthy cases from the thousands of appeals, called petitions for certiorari, that reach the court each year. The justices who participate in the arrangement, known around the court as the “cert. pool,” receive a common “pool memo” on each case from a single clerk....
Justice Alito has said nothing publicly about his decision to exit the pool. His move was confirmed by Kathleen Arberg, the court’s public information officer.
Students of the court say there are costs and benefits to relying on pool memos, which are prepared by smart but relatively inexperienced law clerks. “The benefit is efficiency,” said David R. Stras, a law professor at the University of Minnesota who has studied the subject.... But the pool system “does put enormous influence and power in a single clerk,” Professor Stras said, adding, “I’m quite sure there are cases that fall through the cracks.”
Some argue that having several sets of eyes review each petition — the pool clerk, along with clerks from the chambers of Justice Stevens and now Justice Alito — may serve as a valuable check. The pool system, though, has the virtue of ensuring that at least one clerk will give each petition a careful look, which might not be possible were each justice’s clerks to review every petition....
Critics of the cert. pool say it has led to homogenization and a lack of candor, a consequence of writing for an audience broader than only the clerk’s own justice. But the pool memorandums are often only a starting point, with each justice’s own clerks sometimes reviewing, highlighting and annotating the more important ones....
Justice Alito’s move reverses a trend lasting decades. The pool had grown steadily since it was conceived in the early 1970s at the suggestion of Justice Powell, who prized efficiency. At first, five justices participated. “In true Washington, D.C., fashion,” Kenneth W. Starr wrote of the cert. pool in the Minnesota Law Review in 2006, “this modest government program has grown significantly and now possesses great power.”...
The justices decided 67 cases last term, about half the number in an average year two decades ago. But Justice Alito has said the rise of the pool and the size of the docket are unrelated. “I don’t think the cert. pool is responsible,” he told Tony Mauro of Legal Times last year. “There are plenty of cases where the clerks recommend a grant, and we deny, and plenty where they recommend we deny, and we grant.”
Justice Alito joined the court in 2006 and is its most junior member. “Alito is starting to feel more comfortable and willing to rethink the way he does things,” said Richard J. Lazarus, a law professor at Georgetown. Professor Lazarus said he welcomed the justice’s move, partly because it suggests that the court should reconsider how it decides which cases to hear. “It’s the court’s most vulnerable point,” Professor Lazarus said of the decision to hear or turn down a petition.
Regular readers may know that I have long been concerned about how the cert pool may negatively impact how the Justices set their docket, especially in criminal cases (see prior posting below). Kudos to Justice Alito for being the first Justice in decade to have the courage to get out of the pool. I find it especially interesting, and perhaps not coincidental, that the Justice will the greatest background and experience in criminal law is the one who has decided he wants to climb out of the pool.
Some related posts:
- Roberts, the cert pool, and sentencing jurisprudence
- New Justices content with their dip in the pool
- Why is the cert pool so beloved?
- More on the SCOTUS deadly, but still shrinking, docket
- Solving the SCOTUS docket mystery
- Additional SCOTUS docket dissection
- Looking ahead to SCOTUS docket dynamics
- My (already dated) musings on the SCOTUS criminal docket (with a link to my recent article on the SCOTUS docket)
September 25, 2008
Say hallelujah for new faith-based prison scholarship
I have been amazed and disappointed by how little scholarly attention has been given to the faith-based prison movement. Thus, I say hallelujah for this new piece from Lynn Branham appearing on SSRN. (Music fans can listen to Jeff Buckley or Tracy Chapman if they'd like a melodious hallelujah.) The article is titled "'The Devil is in the Details': A Continued Dissection of the Constitutionality of Faith-Based Prison Units," and here is the abstract:
Faith-based prison units can afford prisoners who choose to be housed in them the concentrated and sustained spiritual nourishment that they believe they need to grow spiritually or in other ways. But critics claim that these units abridge the Establishment Clause. This Article debunks two of the arguments most frequently asserted against the constitutionality of faith-based units. The first is that prisoners cannot exercise a "true private choice" in the "inherently coercive" environment of a prison to live in such a unit. But court decisions confirm that confinement does not abnegate the voluntariness of other decisions made by prisoners, such as whether to make inculpatory admissions as a precondition to being admitted into a prison treatment program. It is also noteworthy that the government's employment of prison chaplains is constitutional. To conclude that a prisoner can exercise a "true private choice" to receive religious services from a prison chaplain but cannot exercise such a choice when deciding whether to live in a faith-based unit betrays what Justice Scalia lamented is a "trendy disdain for deep religious conviction." The Article also refutes the argument that faith-based units reflect governmental favoritism towards religion barred by the Establishment Clause. Even if the units did not further such secular goals as the reduction of recidivism, the units can be a legitimate means of relieving or diminishing burdens the government itself has imposed on inmates' ability to grow spiritually while they are incarcerated.
Some related posts on faith-based prison programs:
- Is faith the best thing to happen to prisons since ... the faithful started prisons?
- Interesting Ohio report on correctional faith-based initiatives
- Another report tentatively praising faith-based prisons
- The virtues of faith-based prisons
- Interesting examination of faith-based prison movement
- A thoughtful, but disappointing, attack on a faith-based prison program
- Religion, sentencing and corrections
- Having faith in prisons
- How the media can do better: ask the candidates tough crime and punishment questions
New Sentencing Project report on felon disenfranchisement
I was pleased to learn through a helpful e-mail that the a new report from The Sentencing Project discussing felon disenfranchisement reform over the past decade. The report, titled "Expanding the Vote: State Felony Disenfranchisement Reform, 1997-2008," is available at this link.
This page at the website of The Sentencing Project provides a summary of the report's findings. Here are excerpts from that summary:
Since 1997, 19 states have amended felony disenfranchisement policies in an effort to reduce their restrictiveness and expand voter eligibility, according to a report released today by The Sentencing Project. The report, Expanding the Vote: State Felony Disenfranchisement Reform, 1997-2008, documents a reform movement over the past eleven years that has resulted in more than 760,000 citizens having regained their right to vote. The report's release coincides with the introduction of new legislation in Congress to secure federal voting rights for nonincarcerated citizens.
The report finds:
- Nine states either repealed or amended lifetime disenfranchisement laws.
- Two states expanded voting rights to persons under community supervision (probation and parole).
- Five states eased the restoration process for persons seeking to have their right to vote restored after completing sentence.
- Three states improved data and information sharing....
Despite these reforms, an estimated 5 million people will continue to be ineligible to vote in November's Presidential election, including nearly 4 million who reside in the 35 states that still prohibit some combination of persons on probation, parole, and/or people who have completed their sentence from voting.
Second Circuit talks through federal crime of failure to pay child support
As some experts in federal criminal law may know, it is a federal crime to willfully fail to pay child support. Though I suspect that this crime is frequently committed, I also suspect that it is only rarely prosecuted in federal court. Whatever the prosecutorial particulars, one such federal prosecution has produced an interesting ruling today from the Second Circuit in US v. Kerley, No. 08-1818 (2d Cir. Sept. 25, 2008) (available here). Here is the first paragraph from the Kerley opinion:
This appeal arises from a conviction of two counts of willful failure to pay a child support obligation in violation of 18 U.S.C. § 228(a)(3). A jury found defendantappellant Clifford Kerley guilty of failing to make support payments for his twin daughters in accordance with a court order. The issues on appeal are whether (1) the district court erroneously precluded his good faith defense, (2) the second count was multiplicitous, and (3) the district court incorrectly applied the United States Sentencing Guidelines (“Guidelines”). Several questions of first impression are presented, including (1) whether violation of a single child support order which covers two children gives rise to one ortwo violations of 18 U.S.C. § 228; (2) in what circumstances the child victim of a failure to pay child support is a “vulnerable victim” for the purpose of an enhancement under U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 3A1.1(b)(1) (2006); and (3) whether the “loss amount” of a failure to pay child support includes all arrears or only the amount the defendant could have paid out of his income. For the following reasons, we affirm the conviction on the first count, we vacate the conviction on the second count, and we remand for resentencing.
Six-year-old suggests dad's shaming sentence
UPI reports here on another interesting shaming sentence from a local state court:
A Kalamazoo County, Mich., judge has ordered a man convicted of theft to wear the words "Daddy, don't steal" for seven months.
Kalamazoo County Circuit Judge Pamela Lightvoet handed down the sentence after Daniel Lee Cleland, 27, told the judge his 6-year-old son had recently told him: "Daddy, stop stealing," the Kalamazoo Gazette reported Wednesday. Lightvoet said Cleland must wear the words written or taped to his arm or hand for the next seven months in lieu of a jail sentence for the same time span. "You very easily could have been sent off to jail for seven months," Lightvoet said. "I don't want to see you back here unless you're visiting."
Cleland, who was also sentenced to four years of probation and ordered to earn his general-education degree, told the judge before sentencing that he had an addiction to heroin and was working to clean up his life for himself and his family.
This shaming sentence makes a lot of sense to me, but I suppose those who oppose shaming sentences perhaps believe society would be better served by forcing Cleland to serve seven months in jail.
Some recent posts on shaming sentences:
- A proper case for shaming?
- What punishments really undermine human dignity?
- Shaming punishments and communitarianism
- New article on shaming sanctions
- More shame, shame on you
- The state of shaming punishments (with lots of links)
Baaaaaaad Michigan sex offender registry law?
Thanks to posts at How Appealing and The Volokh Conspiracy, I see that the Michigan courts are struggling to determine if a man convicted of having sex with a sheep will have to register as a sex offender once he is released from prison.
According to this intermediate appellate ruling, he won't, but perhaps the prosecutors will appeal this important issue to the state Supreme Court. One would hope that, at the very least, this defendant can ultimately be prohibited from living within 1000 feet of a farm or any location that lamb chops regularly congregate.
September 24, 2008
Louisiana files final Kennedy rehearing petition brief
As detailed here at SCOTUSblog, Louisiana today filed its final brief before the Supreme Court decides whether to rehear the Kennedy child rape case. This last brief is available at this link, and here is part of Lyle Denniston's summary:
The new brief went to considerable lengths to try to persuade the Court that the fact that an existing federal law on death penalty for child rape was only a military law, binding in that sector alone, should not make a difference in judging whether it contributes to a “national consensus” in favor of the penalty....
The brief, taking note of the fact that the Court, in judging other crimes and their eligibility for the death penalty, had cited foreign law for guidance, argued that “the failure to consider domestic military law would a fortiori call into question any reliance on the laws and practices of foreign jurisdictions.”
Louisiana also sought to inject a bit of politics into its argument that there is a building consensus in favor of the death sentence for child rape. It included in its appendices statements from presidential candidates John McCain and Barack Obama criticizing the ruling in Kennedy v. Louisiana. Also included was a July 10 letter, written to members of the Court, by 85 members of Congress urging the Court to reconsider the decision because of the omission of the military law on the subject.
I continue to predict that the Supreme Court will ultimately deal with all these issues through an amended opinion that adds discussion of military law, but does not change the sum or substance of the Kennedy ruling. But, then again, who knows what mischief might lie in the hearts of Justices in Kennedy.
Some related posts the Kennedy ruling and a possible rehearing:
New FAMM report and poll data on reforming mandatory minimums
This press release discussing a new report and interesting polling data from the folks at Families Against Mandatory Minimums provides interesting sentencing grist for the political mill. Here are excerpts from the press release:
A new poll released today by Families Against Mandatory Minimums (FAMM) shows widespread support for ending mandatory minimum sentences for nonviolent offenses and that Americans will vote for candidates who feel the same way....
“Politicians have voted for mandatory minimum sentences so they could appear ‘tough on crime’ to their constituents. They insist that their voters support these laws, but it’s just not true,” says Julie Stewart, president and founder of FAMM. “Republicans and Democrats support change and that should encourage members of Congress to reach across the aisle next year and work together to reform mandatory minimums. Mandatory sentencing reform is not a partisan issue, but an issue about fairness and justice that transcends party lines.”...
The poll bolsters the findings of FAMM’s comprehensive new report, Correcting Course: Lessons from the 1970 Repeal of Mandatory Minimums, which describes how Congress repealed mandatory minimum sentences for drug offenses in 1970 — and had no trouble getting reelected.
“Our report and poll show that lawmakers can vote to reform mandatory minimums for nonviolent offenses and live to tell the story. Republicans and Democrats alike don’t want these laws. They don’t work, they cost taxpayers a fortune, and people believe Courts can sentence better than Congress can. Another repeal of mandatory drug sentences isn’t just doable, it’s doable right now,” says Molly Gill, author of Correcting Course.
Both the Correcting Course report and the poll result are worth checking out in full. Here are links from the FAMM website:
Busy day in the Ninth Circuit
The Ninth Circuit today issued these three opinion of note for sentencing fans (though technically one of the cases involves only a non-sentencing constitutional issue):
- US v. Gomez-Leon, No. 05-50138 (9th Cir. Sept. 24, 2008) (available here) (discussing at great length what qualifies as a "crime of violence" to make guideline enhancement applicable)
- US v. Vega, No. 07-50245 (9th Cir. Sept. 24, 2008) (available here) (rejecting challenges to conditions of supervised release (including one that prohibited any alcohol for three years!))
- US v. McCalla, No. 07-50245 (9th Cir. Sept. 24, 2008) (available here) (rejecting Commerce Clause challenge to federal prosecution based on "locally produced" child porn).
Proof nobody can be trusted in the criminal justice system
Joseph Stalin supposedly said, "I trust no one, not even myself." Though few should consider Stalin a great giver of advice, this local Ohio story highlights why a "trust no one" mantra is applicable in some modern criminal justice systems. The story is headlined "Former Pickaway corrections officer sent to prison for stealing from inmates," and here are the basics:
A former corrections officer was sentenced this morning to three years in prison for stealing about $18,000 from prisoners' accounts at the Pickaway County jail. Karen S. Brown, 46, of Circleville, pleaded guilty to theft in office and repaid the stolen money prior to being sentenced by Common Pleas Court Judge P. Randall Knece.
Brown, who faced a maximum of five years in prison, also was banned from public employment for life. A long-time deputy until she was fired, Brown was in charge of handling cash taken from prisoners when they were booked and depositing the money into a trust account. She altered bank-deposit slips and stole some of the cash.
District Court embraces a sentencing approach to dealing with prosecutorial misconduct (and highlights the impact of effective scholarship)
I am pleased to report on a fascinating district court opinion issued today, US v. Dicus, No. CR 07-32-MWB (N.D. Iowa Sept. 24, 2008) (available for download below). Among the fascinating facets of the Dicus opinion is its incorporation of the insights of a new piece of scholarship (recently discussed here) by Professor Sonja Starr titled "Sentence Reduction as a Remedy for Prosecutorial Misconduct." Here is how the Dicus opinion starts and ends:
At a sentencing hearing on September 9, 2008, I announced that I was reducing the defendant’s sentence from the high end to the low end of his advisory guidelines range as a sanction for the prosecution’s serious breach of the defendant’s plea agreement. I would otherwise have sentenced the defendant at the top of his guidelines range based on his sales of marijuana to minors, which was a factor not reflected in his advisory guidelines range. However, the Chief Judge of our district had already found the prosecution’s breach of the plea agreement to be prosecutorial misconduct, and I imposed the sentence reduction, at the defendant’s request, as the appropriate sanction for such serious misconduct. I now enter this memorandum opinion and order to memorialize more fully my rationale for granting a sentence reduction as a targeted remedy for serious and recidivist prosecutorial misconduct....
In this case, I find that a reduction in the defendant’s sentence, albeit one to the low end of his advisory guidelines range, when I would otherwise have sentenced him to the high end, is the appropriate remedy for the prosecution’s serious violation of the defendant’s plea agreement. Such a remedy provides both deterrence for the prosecution’s misconduct and an incentive to defendants to raise such misconduct. Such a remedy also serves the “interests of justice” and shows “appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty.” Santobello, 404 U.S. at 262-63. Finally, the reduced sentence in this case still serves the purposes of sentencing, upon consideration of the pertinent § 3553(a) factors, in that it is sufficient, but no greater than necessary, to achieve all of the appropriate sentencing purposes.
September 23, 2008
The title of this post is the title of this terrific new paper by Michael O'Hear available via SSRN. Here is the abstract:
Despite the Supreme Court's 2005 decision in United States v. Booker, which enhanced the power of district court judges to sentence defendants below the range prescribed by the federal sentencing guidelines, the great majority of federal sentences continue to follow the guidelines' recommendations. As defendants have challenged these practices, one commonly litigated issue has been the question of whether district court judges are obligated to explain themselves when they reject a defendant's argument for a below-guidelines sentence. In the immediate aftermath of Booker, a handful of federal circuits adopted such an explanation requirement. Since 2005, however, the tide has turned, and the initial pro-explanation holdings have been undermined by later decisions. Against this backdrop, the present Article provides the first systematic account of the rise and fall of the explanation requirement for federal sentences, attributing the fall to the courts' framing of the issue as a generic judicial process question. The courts have not recognized important justifications for the explanation requirement that are specific to the federal sentencing context. For instance, the requirement likely helps to diminish the effect of subtle cognitive biases that result in district court judges giving too much weight to the federal sentencing guidelines relative to other statutory and constitutional considerations. Additionally, the requirement is supported by research on the psychological effects of procedural justice, which suggests that defendants who are treated fairly at sentencing will have more respect for law and legal authorities than defendants who are treated unfairly. In light of these and other sentencing-specific concerns, the Article concludes with a call for reconsideration of the recent decisions that have sapped the explanation requirement of its vitality.
Supreme Court stays planned Georgia execution of Troy Davis
As detailed here at SCOTUSblog, Tuesday afternoon the "Supreme Court blocked the scheduled execution Tuesday evening in Georgia of Troy Anthony Davis, giving itself time to consider his appeal challenging his conviction for the murder of an off-duty police officer in Savannah. This article from the Atlanta Journal-Constitution provides some of the dramatic personal back-story in this closely-watched case:
Davis’ family and supporters, who for years have pressed for a new trial on claims Davis is innocent, broke into tears and song when they learned the high court had at least temporarily postponed the execution. “I’ve been praying for this moment forever,” said Davis’s sister and most outspoken proponent, Martina Correia. Davis’ mother, Virginia Davis, said God had answered their prayers.
Just a few hours earlier, the mother and sister had given Davis what they thought could be their final good-byes at the Georgia Diagnostic and Classification Prison in Jackson. Davis, 39, sits on death row for the Aug. 19, 1989, killing of Savannah Police Officer Mark Allen MacPhail. He was scheduled to be executed at 7 p.m.
Annelie Reaves, MacPhail’s sister, said the victim’s family was furious but would wait for the execution to be rescheduled. “It should have happened today,” she said, “but justice will be served.” At least two members of MacPhail’s family were to witness the execution, and they will return when the execution is rescheduled, Reaves said. In response to Davis’ hope that the real killer will be found, the officer’s family and friends all laughed. “He knows who the killer is,” Reaves said of Davis.
Extended ABAJ article about sex offender registries
The September issue of the ABA Journal includes this interesting article, headlined "Crime Registries Under Fire: Adam Walsh Act mandates sex offender lists, but some say it's unconstitutional." Here are excerpts from the start of the piece:
Their names are sadly familiar: Jacob Wetterling, Megan Kanka, Jessica Lunsford, Adam Walsh. They were children who fell victim to predators, and over the years their names have been given to a succession of statutes requiring convicted sex offenders to register in their home states.
The laws incrementally strengthened those requirements, beginning in 1994 when Congress passed the Jacob Wetterling Act, which promoted the adoption of state registration. In 1996, Megan’s Law conditioned federal funding for state law enforcement on the creation of such programs. Two years ago, Congress passed the Adam Walsh Child Protection and Safety Act, named for the son of John Walsh, whose advocacy for victims’ rights and crime prevention helped lead to the formation of the National Center for Missing and Exploited Children....
Included in the Walsh Act is the Sex Offender Registration and Notification Act, which establishes a national sex offender registry and creates three classifications of sex offenders. The most serious group is required to register within three days after moving to a new state or face up to 10 years’ imprisonment. The law also makes it mandatory for states to maintain an online registry accessible to the public....
Most federal courts — spurning critics who contend that Congress exceeded its authority by encroaching on state and local control — have upheld SORNA. But at least two courts this year have sided with the critics and invalidated some or all of the registry law. In both rulings, the courts referred back to a line of U.S. Supreme Court cases from the 1990s that limited the federal government’s reach into state law. Meanwhile, a third federal court temporarily halted the new law until it had a chance to hear arguments on the issue.
More is at stake than just the sex offender registries, observers say. Americans have become accustomed to national crime registries, and courts could throw them into doubt. “Not surprisingly, given our increasing sense of informational entitlement and disdain for criminal offenders, we are seeing registration and notification laws spread to other subgroups, such as domestic abusers,” says Florida State University law professor Wayne A. Logan, author of the forthcoming book Knowledge as Power: A History of Criminal Registration Laws in America.
Also up for grabs is the future of the U.S. Supreme Court’s line of federalism cases, a darling of the court under former Chief Justice William H. Rehnquist. The court trimmed back its press for state rights toward the end of Rehnquist’s tenure — he died in 2005. However, under his successor, John G. Roberts Jr., the court could get its chance to renew those federalism issues, this time with high-profile sex offender registration and notification laws.
Ninth Circuit covers new guideline issues in identity theft case
A (partially split) Ninth Circuit panel today covers a lot of notable guidelines ground in the identity theft context in US v. Phan, No. 06-30469 (9th Cir. Sept 23, 2008) (available here). Here is the first paragraph of the majority opinion in Phan:
This case illustrates the dangers of an identity theft scheme whereby many persons and financial institutions are impacted when criminals steal identities. Lam Thanh Pham (“Pham”) appeals the 78-month sentence and $1 million restitution order imposed on him after he pled guilty to one count of bank fraud in violation of 18 U.S.C. § 1344. Pham and five other individuals were indicted on forty-four counts of bank fraud in connection with a massive identity theft scheme that compromised the bank accounts of ninety-five people held by fourteen different financial institutions and resulted in more than $1.6 million in loss. Pham’s guilty plea followed. Pham contends that it was error for the district court to apply a four-level enhancement to his sentence for a property crime involving fifty or more victims where the shortfalls in the accounts of the ninety-five individuals whose identities were stolen were fully reimbursed by their banks. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we vacate Pham’s sentence and remand for resentencing on an open record.
Interesting Second Circuit ruling on supervised release conditions
Another sad child porn downloading case has led to another interesting federal sentencing ruling today in US v. MacMillen, 07-3377 (2d Cir. Sept 23, 2008) (available here). Here is the first paragraph of the ruling in MacMillen:
Defendant-appellant Christopher J. MacMillen appeals from a judgment of the United States District Court for the Western District of New York (Siragusa, J.) sentencing him to 78 months’ imprisonment and a lifetime term of supervised release following his plea of guilty to one count of possessing child pornography in violation of 18 U.S.C. § 2252A(1)(a)(5)(B). Specifically, MacMillen challenges two special conditions of supervised release imposed by the district court: (1) that he not frequent areas where children are likely to congregate; and (2) that the Probation Office be permitted to address third-party risks with the defendant’s employers. For the reasons that follow, we affirm the judgment of the district court.
Pennsylvania on verge of notable sentencing reforms
Nonviolent offenders could spend less time in prison if they complete educational programs and demonstrate good behavior, under legislation before Gov. Ed Rendell.
Proponents say the measures represent the biggest sentencing reforms in Pennsylvania since violent-crime rates started building in the 1980s, leading to a flurry of tougher mandatory minimum prison terms and longer sentences. Supporters say the new measures should lower the risk of repeat offenses and help curb a 25-year trend of higher inmate populations and prison construction....
Most state law-enforcement groups have supported the package. State Attorney General Tom Corbett opposes the legislation. He said Monday that the bills water down Pennsylvania's tradition of being a "truth-in-sentencing" state.
But state House Speaker Dennis O'Brien, R-Philadelphia, Beard, and other supporters noted that all of the breaks envisioned in the new bills require the consent of local prosecutors and judges. "This represents a new approach to criminal justice for offenders convicted of nonviolent crimes," O'Brien said. "It will make the public safer, ensure that offenders receive services essential to break the cycle of crime ... and ensure that crime victims are treated fairly."
In the AP story, AG Corbett has this notable quote: "'I am going to take a look at what the crime rate is when that goes into effect, and I want to see what it looks like five years from now,' said Corbett, a Republican currently seeking re-election." I think this is a great suggestion, though an ideal analysis ought to include regional and national crime rate data during this same period. In other words, as AG Corbett suggests, these pending PA reforms might create a great natural experiment on the sentencing law-crime rate links.
September 22, 2008
Georgia appears poised to execute Troy Davis despite innocence concerns
As detailed in this AP story and this local piece from the Atlanta Journal Constitution, it appears that the state of Georgia is prepare to execute Troy Davis tomorrow despite concerns about his possible innocence. I have not follow this case too closely, but the AJC account provides the basics:
Troy Anthony Davis now sits where he was little more than a year ago, hours away from being put to death by lethal injection.
In July 2007, the state Board of Pardons and Paroles stepped in and stayed Davis’ execution less than 24 hours before it was to be carried out. But on Monday, the board rejected pleas to reconsider its recent decision to deny clemency on grounds there is too much doubt as to whether Davis shot and killed a Savannah police officer.
Davis’ last hope to avoid his 7 p.m. Tuesday execution now appears to rest with the U.S. Supreme Court, where his lawyers have also asked for a stay of execution. Davis, 39, sits on death row for the Aug. 19, 1989, murder of Officer Mark Allen MacPhail. But since Davis’ 1991 trial, seven key prosecution witnesses have recanted their testimony.
His claims of innocence has drawn international attention, with Pope Benedict XVI and former President Jimmy Carter asking for Davis’ death sentence to be commuted to life in prison without parole.
UPDATE: Late last night I received this simple and poignant e-mail message from a stranger: "Please try to stop this execution. This man is probably innocent." In light of some of the comments below, I wonder if similar e-mails are being sent to President George Bush or to the four prominent persons who are now criss-crossing the country while running for national office.
What will (or should) SCOTUS do on the Kennedy rehearing petition?
Among lots of good new stuff at StandDown Texas Project is this interesting op-ed from Peter Verniero, who served as a New Jersey Supreme Court justice and state attorney general, on the Kennedy child rape case. The piece is headlined "To maintain its integrity, the court must own up," and here is how it starts and ends:
There is something almost sacrosanct about recitations of law contained in decisions of the U.S. Supreme Court. Lower-court judges, attorneys, law professors and everyday citizens depend on those statements in myriad ways even when disagreeing with the court's conclusions. If for no other reason than that, the court should reconsider and correct an opinion it filed at the end of its last term, Kennedy vs. Louisiana....
[H]ow one feels about the death penalty is irrelevant to whether the high court should reconsider its Louisiana decision. At stake is not a policy debate but the reputation of the judiciary. If court decisions are to retain legitimacy in a free society, they must be based on accurate readings of the law. From that perspective, unless or until it is corrected, the Louisiana opinion will suffer under a cloud of doubt.... Whether the court ultimately reverses its decision will depend on the court's evaluation of a correct survey of the law. Until that happens, we will be left wondering whether its divided Louisiana ruling is entitled to respect based on an accurate review of the law or merely because the court decreed it to be so.
It is unclear whether the author of this op-ed would be content if the Justices just amend the Kennedy opinion by adding a footnote discussing the (lack of) impact of military law on the analysis. I suspect that the adding of such a footnote through an amended opinion is all that the Supreme Court will ultimately do in response to Louisiana's rehearing position. And perhaps this is all the Court should do, since the flaw of the decision does not rest in its failure to discuss military child rape law, but rather in five Justices' clear desire to use constitutional doctrine to block any expansion of the death penalty in American states.
In short, as I have explained in prior posts noted below, I consider the Kennedy decision to be misguided as a matter of constitutional law and policy. But, unless someone in the Kennedy majority is prepared to reconsider more fundamental aspect of this recent ruling, I doubt that the military law kerfuffle should (or will) change the outcome.
So, dear readers, after I have here reiterated my Kennedy views and predictions, what do you think SCOTUS will (or should) do in response to Louisiana's rehearing position?
Some related posts the Kennedy ruling and a possible rehearing:
Deep thoughts on virtue and punishment
Anyone interested in deep and different views in the never-ending punishment theory debate ought to check out this new paper on SSRN. The paper by Ekow Yankah is titled "Virtue's Domain," and here is the abstract:
If at the end of your life you were told you had fulfilled all your moral duties, you would be proud. If you were told you only fulfilled your moral duties, you would be less proud. We all aim to do more than fulfill our duties. We wish to have been more generous than obligatory, more patient, more wise... in short, we wish to be virtuous.
This insight, that there is more to moral well-being than either our moral duties or good consequences, is central to modern virtue ethics. In its important neo-Aristotelian strain, virtue ethics advocates that success in life is also determined by living an ethically rich life, showing sound practical reasoning and exhibiting the human virtues.
Virtue ethics is also importantly influencing jurisprudence. Understanding the role virtue plays in law reveals the way in which our criminal punishment regimes are based on a view of poor underlying character. When these insights are embedded in law, however, things go horribly awry. Because virtue theories premise blame, in part, on a failing of character within the offender, they alter our view of the offender and create a permanent criminal caste. With our compassion blunted, our ugliest prejudices flourish and we fail to notice that our criminal law has become a powerful tool of racial and class suppression. Equally disturbing, even the most sophisticated character theories cannot be reconciled with our commitment to liberalism, particularly with the central place of autonomy within liberalism.
This article argues that only by returning to Kantian and Hegelian Act theories of punishment can we dissolve the view of offenders as permanently tainted and stay true to our liberal commitments.
Evidence that judges will follow sensible sentencing guidelines
Though I do not know all the particulars of the state sentencing guidelines in Pennsylvania, I do know that this local story highlights that sentencing judges will generally follow sentencing guidelines that provide sensible sentencing advice. The story is headlined "Study: Judges usually comply," and here are excerpts:
Judges in Montgomery County appear to be conforming to state sentencing guidelines and rarely sentence convicted criminals above or below those guidelines, according to a recent study.
Of the 5,537 county sentences reviewed by the Pennsylvania Commission on Sentencing in 2007, 95 percent were within the guidelines recommended by state legislators. Only 5 percent of the sentences doled out to criminals by county judges in 2007 were outside the guidelines, either above or below state recommendations.
District Attorney Risa Vetri Ferman believes the statistics reflect that the guidelines are accomplishing their purpose in the county. "It shows that our judges take sentencing very seriously and they scrupulously follow the law," Ferman said. "The lion's share of the cases fall into the standard range of the sentencing guidelines because that's where they belong."...
Statewide, overall conformity to the guidelines was high during 2007. About 91 percent of the 97,360 sentences imposed by judges in all 67 counties during 2007 were within the recommended guidelines.
September 21, 2008
Does money have no place in any life/death debate?
Do readers think a respectable newspaper would boldly assert in an editorial that money has no place in the health care debate? Or in the debate over the war in Iraq? I certainly would view such assertions to be misguided, which is why I find foolish this local editorial, headlined "Our view: Money has no place in death penalty debate." Here are excerpts:
Since capital punishment was re-instated in Indiana in 1977, 94 men and women have been sentenced to death. Of those, 19 convicted murderers have been executed. Five more committed suicide, died of natural causes or were killed by other prisoners. Others saw their sentences commuted through the appeals process. Fourteen more await their punishment on Death Row, every facet of each and every case weighed heavily prior to sentencing.
The same diligence must be given in the upcoming Jay County trials of five men and women accused of luring Shawn Buckner to a house where he was brutally beaten before being stabbed in a rural cornfield and later buried in a shallow grave near Dunkirk.
Jay County Prosecutor Robert Clamme said earlier this week -- just eight days after the crime -- that he did not believe he would seek the death penalty. Clamme declined to discuss his reasoning, but local prosecutors point toward the significant cost involved in death penalty cases as the most likely answer.
There are plenty of legitimate arguments both in favor of and against capital punishment that get at the real heart of the issue, that frankly, makes the cost issue ridiculous by comparison. We're talking about the taking of a human life, not whether or not to purchase a new courthouse. To bring money into the equation only adds to the argument that capital punishment is unjust....
Surely, this was not what legislators intended when the death penalty was re-instated, or what the family of Shawn Buckner deserves. Whether the county in which he lived and died is fiscally sound shouldn't play into the punishment the courts decide his attackers deserve.
Jay County is just a dot on the map in greater Indiana, but the issue has state-wide ramifications. And as fortunate as East Central Indiana is with a low murder rate, surely this won't be the only time the issue is called into question, especially as property tax freezes deplete local resources.
It's time for discussion on a state-wide level, with a state-wide solution. Buckner was just one victim, but his life was sacred. His death shouldn't be diminished by finances.
I find ridiculous anyone who advocates a state-wide public policy position to claim that cost is an entirely inappropriate consideration in a debate. Put simply, it costs millions of dollars for a state to weigh heavily "every facet of each and every case," and thus the death penalty is always going to be an expensive enterprise. Unless and until taxpayers promise never to complain about tax increases, I find it badly misguided and quite dangerous to assert that cost issues are off the table in a debate over capital punishment.
Some related posts:
"The Candidates and the Court"
The title of this post is the headline of this editorial today in the New York Times. Here are snippets:
Among the many issues voters need to consider in this campaign is this vital fact: The next president is likely to appoint several Supreme Court justices. Those choices will determine the future of the law, and of some of Americans’ most cherished rights.
John McCain and Barack Obama have made it clear that they would pick very different kinds of justices. The results could be particularly dramatic under Mr. McCain, who is likely to complete President Bush’s campaign to make the court an aggressive right-wing force....
Mr. McCain has promised the right wing of the Republican Party that he would put only archconservatives on the Supreme Court. Even moderate conservatives like Anthony Kennedy, the court’s current swing justice, would not have a chance....
Mr. Obama has put distance between himself and legal liberals on issues like the death penalty for child rapists and the constitutionality of gun control. As president, Mr. Obama would probably be more inclined to appoint centrist liberals, like Justice Stephen Breyer, than all-out liberals, like William Brennan or Thurgood Marshall.
Though I fully agree more that the 2008 election is very important for the future of the Supreme Court, the spin is in with this Times editorial. As constitutional lawyers know, Justice Breyer has typically voted like Justices Brennan and Marshall on the death penalty. And, I like to think a true "legal liberal" committed to individual rights would have voted with the purportedly "conservative" Second Amendment decision in Heller. And, of course, these labels lack any real content when we look at rulings like Blakely and Booker and Rita and Kimbrough.
Of course, I do not really expect the New York Times editorial page to be as legally accurate as it is politically astute. And the editorial certainly does set out the kinds of SCOTUS political talking points we may see if these issues ever become the focal point of serious discussion on the campaign trail.
UPDATE: Orin Kerr has this interesting new post at Volokh responding to the NY Times piece asking "Would Obama Nominate A Breyer or a Brennan?".