January 26, 2008
AG Mukasey talking (seriously?) about pushing legislation to undo crack retroactivity
The end of this New York Times article provides more details on Attorney General Michael Mukasey's position on crack retroactivity:
Mr. Mukasey also revealed [in a Friday news conference] that the department was considering whether legislation should be introduced in Congress to block or modify a federal sentencing commission’s decision to reduce prison sentences for crack cocaine dealers. “We need to see what the prospect is for getting legislation and on what terms,” said Mr. Mukasey, who has criticized the commission’s move since it could result in the early release of potentially violent criminals.
This effective Los Angeles Times piece provides more background on this issue and highlights that crack retroactivity reductions have already become a reality for a few offenders in Oregon:
Atty. Gen. Michael B. Mukasey told reporters Friday that the Justice Department may attempt to derail new sentencing guidelines that are expected to allow the early release of thousands of convicted drug offenders. But that train already appears to be leaving the station. In a surprising development, federal judges in Portland, Ore., have truncated the prison sentences of five defendants convicted of crack cocaine offenses, getting a jump on controversial guidelines that are scheduled to go into effect in March. The reduced sentences, including two ordered up in the last week, are believed to be the first in a nationwide program that could ultimately cut federal prison time for more than 19,500 convicts. One of the defendants has been released from prison, and the remaining four are in different stages of the process, said Steve Wax, the federal public defender in Oregon....
The attorney general has been unusually outspoken about the possible effect of the reduced crack cocaine sentences.... "Many of those [defendants eligible for release] were involved in violence, and can be expected to continue after they get out," he told reporters. He added that he was especially concerned that inmates released unexpectedly early would not receive the normal job training and drug treatment offered to offenders before their release. "None of that will have happened, or a lot of it will not have happened, by the time some of these folks get out," he said. "And that's a cause of anxiety."
Wax, the public defender in Portland, said the system there appeared to be handling the cases with care, reflecting the close cooperation of local judges, prosecutors, probation officers and public defenders. Two of the five prisoners granted sentence reductions, he said, were sent to halfway houses to serve some of their probationary time before their release into the community. One defendant is being deported; another was transferred from federal to state custody to face other charges. He said the inmate who was released was originally sentenced to 18 months in prison for distributing a small amount of crack.
I was not aware of these interesting Oregon developments, and I hope to blog more about them if/when I get additional information. Meanwhile, it seems clear to me that AG Mukasey is not seriously interested in a legislative fight over this issue right now: it's unlikely, despite Senator Hillary Clinton's misguided opposition to crack retroactivity (details here and here), that a bill rejecting the new guidelines' retroactivity could secure passage in a Democratic Congress anytime soon.
I suspect AG Mukasey is now being "unusually outspoken" primarily to influence federal district judges as they consider motions for crack sentencing modifications. As the AG knows, no defendant will get a reduced sentence without judicial approval. During the post-Booker period, tough talk by DOJ has led judges to be particularly cautious about lenient sentences that might become "tough-on-crime" political talking points. I suspect that the AG and main Justice hope that tough talk about going to Congress might make it easier for local federal prosecutors to oppose sentence reductions in individual cases.
Some related posts on the practicalities and politics of crack retroactivity:
Interesting new FSG resource
A helpful reader sent me this e-mail alerting me to this notable and interesting web resource:
It can handle most of the Chapter Two guidelines, and things like grouping and criminal history, but does not yet support Chapter Five departures. It also pays no attention to statutory maximums. Obviously, no lawyer should ever rely on this (or any other) tool without going through a guideline calculation by hand, but it is still useful for some things.
Please check it out at http://www.sentencing.us/ and feel free to let others know about it.
Because I do not regularly run guideline calculations, I cannot effectively test the efficacy of this resource. But the idea is great, and I hope others who do often calculate guideline ranges with check out this site and report on its virtues (or possible vices).
In addition to thanking the creator of this site, I cannot help but wonder why this kind of resource is not provided directly by the US Sentencing Commission on its website.
January 25, 2008
A chilling alternative sentence
A kind reader sent me this news story discussing a notable altnerative sentence from a court known for creative sentencing. Here are the highlights:
Nathen Smith sagged in a chair in the Lake County Sheriff's Office lobby, his jacket zipped tight and hands jammed in pockets to fight off his shivering. Seven hours into a 24-hour stint as one of the homeless, Smith was already tired, cold and a little hungry. But he had braced himself for a night of making this chair his home. "It's not that bad," he said. "But I'd hate to have to do this every day, especially in this weather. It's too cold to do it in this."
Smith, 28, of Painesville is the latest to receive a creative sentence that Painesville Municipal Court Judge Michael Cicconetti has made his trademark. As punishment for stealing one of the Salvation Army's iconic collection kettles shortly before Christmas, Smith was given the choice of the standard sentence of 90 days in jail or spending the next 24 hours as a homeless man.
When Smith chose the latter option, Cicconetti made him empty his pockets and turn over all his money and credit cards. Court officers strapped a Global Positioning System device to his ankle to monitor his whereabouts. And he was sent out onto the streets of Painesville with no advice or guidance. "He was like everyone else who finds themselves out on the street," Cicconetti said. "I didn't want him to have any money on him. I want him to learn. It's not going to hurt to be a little cold."
Weather forecasts predicted 10-degree temperatures with wind chill as low as minus 5. He was banned from going home or staying with friends. The GPS system tracked his movements and a printout will be given to the judge when he returns at 11am to serve just three days in jail and learn what community service he must do.
Panel splits in today's circuit sentencing stories
The end of a busy week brings two notable split decisions on sentencing issues from panels of the Sixth and Ninth Circuits:
- In US v. Madden, No. 05-4304 (6th Cir. Jan. 25, 2008) (available here), we get Judge Gilman delivering an opinion joined by Judge Siler, with Judge Moore dissenting on a sentencing issue.
- In US v. Cherer, No. 06-10642 (9th Cir. Jan. 25, 2008) (available here), we get Judge Trager (a NY District Judge sitting by designation) delivering an opinion joined by Judge McKeown, with Judge Noonan dissenting on a sentencing issue.
Cherer seem to be the more consequential of the opinions, in part because it has the first extended Ninth Circuit discussion of Gall. Also, because of the split and the presence of a district judge on the panel, I would guess Cherer has some en banc potential.
A capital reality check from Oregon
A helpful reader alerted me to this very strong article about the state of the death penalty in Oregon from the Willamette Week. Here are some passages from a lengthy piece that's worth a full read:
Oregon’s machinery of death is clearly in place. But since the U.S. Supreme Court allowed states to resume executions in 1976, Oregon has killed only [execution volunteers Harry Charles] Moore and Douglas Wright, who was executed in 1996 for killing three homeless men in a remote area of Wasco County. Contrast that record with that of Texas, a state that has offed 405 convicted criminals since 1982, making it the No. 1 state for executions.
Oregon’s execution chamber has stood empty for 3,900-plus days—since before Harry Potter became a household name. Meanwhile, 35 men sit alone this week in their cells on Oregon’s death row. The longest-serving inmate, a murderous prison escapee named Michael McDonnell, was sentenced to death 23 years ago. Yet his case, like all the others, remains on appeal.
There are no executions scheduled. “We have a situation in Oregon where nobody but a volunteer gets executed,” says Norm Frink, the Multnomah County senior deputy district attorney who oversees murder prosecutions in the county. That’s because we live in one of 10 states that have capital punishment but have executed fewer than three people since 1976. Experts say Oregon’s next involuntary execution will probably take place around 2012 at the earliest....
Whether you’re for or against capital punishment, you should be outraged by what’s happening. To please the tough-on-crime crowd, we keep the death penalty. But to appease progressives, or to assuage our own conscience, nobody actually gets killed. “Clearly, in terms of quick justice, it’s a system that’s not working,” says Judge Michael McShane, who presides over capital murder trials in Multnomah County Circuit Court.
Yet for the most part, this shameful situation stays hidden. Death row is tucked away on the third floor of a building deep inside the Oregon State Penitentiary. The rarely used execution chamber is behind locked doors in the same prison. And no executions means no front-page headlines. “A lot of people aren’t even aware that we have a death penalty here,” says Rachel Hardesty, a Portland State University criminal justice professor who has spent a decade studying capital punishment in Oregon....
Oregon remains stuck with a backward system in which the state has the power to kill criminals yet refuses to do so—offending just about everyone who cares about the issue either way. Irene James supports the death penalty but calls Oregon’s system “senseless.” A 78-year-old retired schoolteacher from Tualatin, she has endured 113 days in court since her 26-year-old daughter was murdered in 1987, watching serial killer Dayton Leroy Rogers get re-sentenced twice on appeals. And his case remains years from being resolved. Authorities dubbed Rogers the “Molalla Forest Killer” during the 1980s for torturing James’ daughter Maureen and at least seven other women to death—occasionally sawing off their feet before killing them to satisfy a fetish, then scattering their bodies in the woods of Clackamas County. “It’s not easy,” James says of the endless court appearances. “I’m really resentful about the way it works. I’m resentful, because he keeps coming back.”...
Even though we don’t execute people, Frink considers capital punishment a valuable tool for prosecutors. The threat of death, he says, leads defendants to enter plea deals for life without parole or life with a minimum of 30 years—the two other penalties, besides death, that Oregon allows for aggravated murder.
Fiscal watchdogs, however, say death penalty cases waste millions each year in public-safety money. Common sense says it’s cheaper to kill someone than keep him in prison for life. But since Oregon keeps convicts on death row for decades—essentially paying for a life sentence anyway—we spend millions on attorney fees moving their cases through a rigorous first trial and long appeals process that are unique to death penalty cases.
January 24, 2008
OSJCL Amici launches with four district judges on Gall and Kimbrough
I am very proud to announce that this week the Ohio State Journal of Criminal Law has "officially launched" a new scholarly project: an on-line companion website that will publish commentaries from practitioners on cutting-edge criminal law. As explained here, OSJCL Amici: Views from the Field, in aspires to "help bridge divide between the academy and the practicing community by creating a venue for leading practitioners to engage with academics, students, the public, and others in the criminal law field."
The official launch includes publication of original commentaries by four district judges discussing federal sentencing after last month's Gall and Kimbrough rulings:
- Judge Richard Kopf of the District of Nebraska takes a Letterman-esque “Top Ten” view of the sentencing world as interpreted by Supreme Court decisions.
- Judge Gerard Lynch of the Southern District of New York emphasizes the “guideline” nature of the Sentencing Guidelines.
- Judge Lynn Adelman and law clerk Jon Deitrich of the Eastern District of Wisconsin, ask us to “curb our enthusiasm” for the twin decisions, which—they argue—do not go quite far enough.
- Judge Nancy Gertner of the District of Massachusetts identifies both the apparent blessings and the less-obvious dangers of the Court’s holdings.
Future on-line commentaries will come from practicing lawyers as well as judges, and we expect to cover a diverse range of topics at OSJCL Amici. A lot of effort has gone into creating a distinctive on-line companion to OSJCL; I hope many folks (especially legal practitioners) will check out the first offering of essays and will share feedback on both the substance and style of this new endeavor.
AG Mukasey makes ugly cracks about crack retroactivity when announcing new crime initiative
As detailed in this official DOJ statement, in "a speech before the U.S. Conference of Mayors, Attorney General Michael B. Mukasey today announced the President is seeking $200 million in funding for a new Violent Crime Reduction Partnership Initiative for Fiscal Year 2009."
I am very pleased to hear that the Administration is going to focus crime-fighting energies and monies on violent crimes. However, I was very troubled to see from this Reuters report that AG Mukasey could not resist taking a silly swipe at the US Sentencing Commission's crack retroactivity decision. Here's are excerpts from the Reuters article:
A pending early release of hundreds of crack-cocaine dealers whose sentences have been judged unfairly harsh threatens to cause more crime in U.S. cities, Attorney General Michael Mukasey warned on Thursday. But some mayors said Mukasey was exaggerating the threat and described the real problem as a lack of federal assistance for programs aimed at helping ex-convicts return to society.
Mukasey told the U.S. Conference of Mayors about 1,600 convicted criminals — "many of them violent gang members" — may be released as early as March under a decision by the U.S. agency that sets sentencing guidelines for federal crimes. "A sudden influx of criminals from federal prison into your communities could lead to a surge in new victims with a tragic but predictable result," Mukasey said.
But Kevin Burns, the mayor of North Miami, Florida, said Mukasey seemed to be "striking fear" and it was most likely that only non-violent offenders would be released early. "I think it was possibly overstating it a bit," Burns told Reuters after the speech....
Some mayors said they agreed with reducing cocaine sentence disparities but shared concerns over early releases. The biggest problem is a lack of programs to help ex-convicts, Bridgeport, Connecticut, Mayor Bill Finch said. "A lot of these people feel like society has thrown them on the trash heap," he told Reuters. "The more we get tough on crime, the more we fill these prisons up, the more we create a balloon at the end that becomes the cities' problem."
Mukasey acknowledged a need for education, job training, drug treatment and housing to help ex-offenders, but said these may be unavailable for the early-release crack prisoners. "We need time to develop all of that and roll it out, time that blanket retroactivity might not allow us," he said.
It is a telling and disappointing reality that city mayors better understand and talk more responsibly about federal sentencing realities than does the Attorney General. The USSC's new crack rules are carefully structured to avoid early release of offenders likely to endanger public safety and they do not amount to "blanket retroactivity." Moreover, the USSC has been seriously discussing — with a DOJ official a part of the discussion — crack reform for more than a year and the serious prospect of some early releases has been well-known since at least May 2007. If DOJ would get serious about real solutions instead of scaring folks about unreal problems, perhaps it would have the time that AG Mukasey says he needs.
UPDATE: Friday's Los Angeles Times has this effective article about AG Mukasey's crack comments, including lots of appropriate and critical analysis of the AG's assertions:
The bleak assessment offered by Mukasey was challenged by inmate advocacy groups, public defenders, judges and even some of the big-city mayors listening to his remarks. "In the grand sweep of the nation's criminal justice system, the release of this minuscule number of prisoners will not affect crime rates. It will, however, significantly improve the perceived fairness of our federal criminal justice system," said Paul Cassell, a professor at the University of Utah law school.
Cassell -- a former federal judge who led a policymaking arm of the federal courts that supported the sentence reductions -- noted that no prisoner would be released under the program unless a judge decided the inmate was no longer a threat to the community. "All of these prisoners were going to be released in the future," Cassell said, "so the retroactivity provision simply provides a slight acceleration of their release date."
The number eligible, equal to about 10% of the federal prison population, amounts to the most sweeping act of federal clemency in history. But it is a small fraction of the inmates released from state and federal prisons every year. "About 700,000 people are coming out of prison this year, many of whom were convicted of a violent offense. So now the change means we'll have 701,600 instead. Seems like he's kind of missing the point," said Marc Mauer, executive director of the Sentencing Project, an inmate advocacy group in Washington. Mauer said that the criticism "is really an insult to the judges."
Mukasey himself was a federal judge for 18 years before retiring in 2006.
"I think [Mukasey] is wrong," said Michael Nachmanoff, the federal public defender for much of Virginia. "First, the number of people getting out in March may be much lower, and second, probation and the courts are more than capable of supervising these individuals."
Can doctors block all US lethal injections (and indirectly abolish the death penalty)?
This new editorial authored by three physicians in the New England Journal of Medicine suggests a (clever?) game-plan for doctors playing a role in abolishing the death penalty. Here is the key passage of the editorial (with my emphasis):
We are concerned that, regardless of its decision in Baze v. Rees, the Court may include language in its opinion that will turn again to the medical profession to legitimize a form of lethal injection that, meeting an appropriate constitutional standard, will not be considered "cruel and unusual punishment." On the surface, lethal injection is a deceptively simple procedure, but its practical application has been fraught with numerous technical difficulties. Without the involvement of physicians and other medical professionals with special training in the use of anesthetic drugs and related agents, it is unlikely that lethal injection will ever meet a constitutional standard of decency. But do we as a society want the nation's physicians to do this? We believe not.
Physicians and other health care providers should not be involved in capital punishment, even in an advisory capacity. A profession dedicated to healing the sick has no place in the process of execution. On January 7 in oral arguments in Baze v. Rees, the justices asked many important and thoughtful questions about a potential role for physicians and other health care professionals in executions. In their fuller examination of Baze v. Rees, the justices should not presume that the medical profession will be available to assist in the taking of human lives. We believe that, like the anesthesiologists in the Morales case, all responsible members of the medical profession, when asked to assist in a state-ordered execution, will remember the Hippocratic Oath and refuse to participate. The future of capital punishment in the United States will be up to the justices, but the involvement of physicians in executions will be up to the medical profession.
Anyone who did okay on the LSAT should readily be able to see how the pieces of this argument add up: (1) it is "unlikely" lethal injection "will ever" be constitutional "without the involvement of physicians and other medical professionals with special training," and (2) "physicians and other health care providers should not be involved in capital punishment, even in an advisory capacity," so therefore (3) it is unlikely there will ever be a constitutional lethal injection.
Why do I have a feeling these doctors also would view firing squads and all other execution methods as involving a "deceptively simple procedure" that is really "fraught with numerous technical difficulties"? Of course, I did not got to med school, so perhaps I can't really understand what this is all about.
Some related posts on doctors and executions:
- Readings on lethal injection protocols and the role of doctors in executions
- Are botched executions inevitable?
Sex offenders and the city states: the AWA's many (trivial?) pursuits
Both Sex Crimes and Sex Offender Issues have posts spotlighting what a mess the new federal Adam Walsh Child Protection and Safety Act is starting to make in the states. This strong article from Stateline.org, headlined "Will states say 'no' to Adam Walsh Act?" provides this essential background:
Facing a 2009 deadline to comply with a controversial federal law intended to crack down on sex offenders, states are nearing a crossroads. They either must fall in line with the statute or ignore it and absorb the penalty — a 10-percent cut to their share of funds in a congressional grant program used to fight crime.
With most state legislatures reconvening this month, debate is likely to resume soon over the federal Adam Walsh Child Protection and Safety Act, which President Bush signed in 2006.... For months, however, state legislators across the country have criticized the law as a “one-size-fits-all approach” that does not give states enough time, money or flexibility to make the changes sought by the federal government....
[S]tate lawmakers are questioning whether it makes sense to comply with the act by its 2009 deadline, if at all, said Donna Lyons, a criminal justice analyst with the National Conference of State Legislatures (NCSL), an alliance representing the nation’s state legislators. The organization recently released a policy statement — approved unanimously by more than 7,000 state lawmakers — seeking congressional amendments to revise the act....
States use Byrne grants to pay for drug task forces, anti-gang units, police overtime and other law enforcement activities. But funding for the grant program itself was slashed by 67 percent — from $520 million last fiscal year to $170 million this year — in a $555 billion appropriations bill signed by Bush last month. That deep cut has figured into state lawmakers’ thinking as they compare the costs of complying with the Adam Walsh Act with the costs of not complying, said Susan Parnas Frederick, senior committee director of NCSL's Law and Criminal Justice Committee in Washington. “What’s 10 percent of nothing, anyway? Maybe we’ll just do what we’re doing, lose the 10 percent and not have to deal with all this garbage,” Frederick said.
At least six states — Delaware, Florida, Louisiana, Mississippi, Nevada and Ohio — last year revised sex-offender laws in an effort to comply with the act. The Justice Department rejected Louisiana’s efforts as not enough, and has yet to rule on the other states’ laws, many of which went into effect Jan. 1.
Meanwhile, while some state legislatures try to figure out if the Adam Walsh Act sex offender game is worth the Byrne grant candle, state judges having to deal with new state legislation are already up in arms. Consider this report from a Cleveland Plain Dealer article today:
Summit County judges will join their counterparts in at least four other Ohio counties in refusing to enforce provisions of the state's new, tougher sex-offender registration law. The eight judges of Summit's general trial division will act this week to either issue a stay to block all of the affected cases from moving forward or issue a preliminary injunction in each case they hear. At issue are a host of potential contradictions and constitutional questions arising from the state legislature's attempt to comply with the federal Adam Walsh Child Protection and Safety Act....
There have been 80 challenges to the law filed in the past week in Summit County.... In Cuyahoga County, about 300 sex offenders have filed civil suits challenging their re-reclassification...
[Summit County Common Pleas Judge Elinore Marsh] Stormer said the problem is compounded because the legislature moved quickly, without consulting the sheriffs, prosecutors, judges and other state and county officials who would have to implement the new law. "While the intent was to retain federal grant money underwriting many criminal justice programs, we have no idea how much it's going to cost to administer the new program, and to address the legal challenges," Stormer said.
Explaining more fully my concern about the Eleventh Circuit's work in Ramirez
A number of commentors are concerned about my quick critique of the Eleventh Circuit work in US v. Ramirez, No. 07-13060 (11th Cir. Jan. 23, 2008) (available here). Ramirez affirms an above-guideline sentence by relying heavily on Gall.
One (unnamed) commentor assails me for a a lack of "objectivity" because I critique this affirmance of an above-guideline sentence but often praise affirmances of below-guidelines sentences. This commentor encourages me to "Show some balance, or at least the illusion of balance!" Up for justified challenge, let me explain in more "objective" detail the range of concerns I have with the Ramirez decision.
First, as a matter of questionable procedure, why is this Ramirez ruling issued as an unpublished decision without the defendant getting an opportunity for oral argument? As written, the Ramirez ruling implies that Gall overrules at least three prior (post-Booker) Eleventh Circuit published opinions. If this is what Ramirez means, shouldn't this opinion have been published?
Second, as a matter of sloppy style, the Ramirez opinion devotes more than five full pages to reciting (applicable?) post-Booker precedents, but has only a few sentences discussing the case facts. Here, in toto, is what the opinion informs the reader about the facts of the case under review:
Luis Ramirez [was convicted of] larceny of personal property, in violation of 18 U.S.C. §§ 661 and 2. Ramirez’s guideline range was 8-12 months, but the district court sentenced him to the statutory maximum of 60 months imprisonment. Ramirez argues on appeal that the district court ... overemphasi[zed] his criminal history, [and] failed to consider the $1,000 loss amount, and ... nullified the two-level decrease he received for acceptance of responsibility.
So, all we know from the Ramirez opinion is that a defendant with an long criminal history stole $1000 of personal property and received the statutory maximum sentence after accepting responsibility. We don't know what his true guideline range was because, as the USSC sentencing table shows, there is no guideline range of 8-12 months. The actually range must have been either 8-14 months or 6-12 months (and I am guessing the latter).
Third, as a matter of suspect substance, the Ramirez opinion notes that, in a recent Valdes ruling, 500 F.3d 1291 (11th Cir. 2007), the Eleventh Circuit "vacated Valdes’s sentence and remanded to the district court because it was unclear whether the court was departing upwardly under U.S.S.G. § 4A1.3 or whether the court was applying a variance based on the 18 U.S.C. § 3553(a) factors, and, therefore, the record was 'insufficient to permit the affirmance of the sentence.'" Valdes seems to be exactly on point to justify a remand here. However, without explaining whether Valdes has been overruled by Gall or is distinguishable, the Ramirez opinion affirms simply because "the district court properly calculated the advisory guideline range, considered the relevant § 3553(a) factors, articulated its reasons in open court, considered Ramirez’s arguments, and had a reasoned basis for its decision."
Finally, as a matter of dubious doctrine, the Ramirez opinion cites Rita, but that SCOTUS ruling makes clear that circuit courts must do more than police just the procedural reasonableness of sentencing decision-making. Though Justice Scalia advocated review only of procedural reasonableness in his concurrence, the Rita majority made very clear that substantive reasonableness review was important:
In sentencing, as in other areas, district judges at times make mistakes that are substantive. At times, they will impose sentences that are unreasonable. Circuit courts exist to correct such mistakes when they occur.
Despite all these problems with the Ramirez opinion, I am still not prepared to call the outcome wrong until I know more about the underlying facts. But all the points above raise a lot of red flags. That's why in my original post I stated that I have a "concern" about the "troubling" Ramirez ruling because the "panel seems to essentially abdicate its responsibility to assess the substantive reasonableness of a stat-max sentence when the defendant had viable arguments that his sentence was far greater than necessary in light of all the 3553(a) consideration."
As for my "objectivity" and "balance," I do not think I have ever hidden my view (bias?) that many federal prison sentences for non-violent crimes seem too long in light of Congressional purposes. At least seven SCOTUS Justices seemed to ratify that view through the rulings in Gall and Kimbrough. Meanwhile, I have also indicated my view (bias?) that many federal and state sentences for violent crimes seem too short. Because Ramirez apparently involves a non-violent crime, I am especially curious about what facts justified a stat max sentence, and I really wish the Eleventh Circuit had done a more effective job assessing and explaining why that state max sentence was substantively reasonable.
Race, class and criminal justice in campaign 2008
This new article from the Los Angeles Times, headlined "Obama turns his attention to race issue," suggests that Barack Obama's new focus on racial issues has taken a criminal justice turn. Here are snippets from the article:
Barack Obama was down to his shirt-sleeves under the hot gym lights at South Carolina State University, exhorting students at this historically black college that America can and must be transformed. "We cannot treat our poor with disregard," he thundered Tuesday, cataloging America's racial ills, starting with the aftermath of Hurricane Katrina. "We can't leave New Orleans in a mess and then expect to be a model for this world."
Here at the site of the Orangeburg Massacre -- where three students were killed and 27 injured by law enforcement agents during civil rights-era demonstrations to integrate a nearby bowling alley -- Obama decried a criminal-justice system fraught with inequity. "I don't want Scooter Libby justice for some and Jena justice for other folks," he said, contrasting the white Republican ex-lobbyist with the black youths in Louisiana....
He answered a question about federal drug-sentencing guidelines without saying the word "black," though activists have long complained that stiffer sentences are meted out to blacks who smoke crack than whites who snort cocaine.
Even though I believe race is a huge factor in our criminal justice system and even though I am not a political strategist, I think Obama is making a huge strategic mistake focusing on criminal justices when wanting to take about race. I believe Obama could (and should) talk forcefully about criminal justice issues primarily in terms of class, not race.
Obama could (and should) talk not about "Libby justice," but rather about "Rich justice," which could and should be a sly reference to Bill Clinton's ugly pardon of Marc Rich. Obama could (and should) highlight that upper-middle-class drug dealers are treated as heroes in TV shows, while poor drug dealers are often subject to harsh mandatory minimum sentences. Obama could (and should) highlight that college graduates are far less likely to commit crimes than high-school dropouts and thus investing resources in education for the disadvantaged is likely the most cost-effective way to fight crime. Obama could (and should) highlight that much of the money society need for broader health care coverage is now being spent incarcerating low-level non-violent offenders. Obama could (and should) highlight that our criminal justice system generally protects individuals with lots of money (and even perhaps mention OJ Simpson in this discussion), but generally fails to protect those who a less economically advantaged. Obama could (and should) highlight that California's budget crisis is so severe (and will require cuts in important services to the law abiding) in part because it has perhaps the most dysfunctional criminal justice system in the nation.
Sentencing word to the wise: watch your pre-sentencing words
Thanks to this CNN piece, here is a classic sentencing example of the old "watch what you say" lesson:
A judge sentenced a woman to nearly the maximum prison term for negligent homicide after hearing a recorded jail conversation in which she made light of the bicyclist she killed.
Melissa Arrington, 27, was convicted two months ago of negligent homicide and two counts of aggravated DUI in connection with the December 2006 death of Paul L'Ecuyer. She could have gotten as few as four years behind bars, but Superior Court Judge Michael Cruikshank sentenced her Tuesday to 10½ years -- one year shy of the maximum. Cruikshank said he found a telephone conversation between Arrington and an unknown male friend, a week after L'Ecuyer was killed, to be "breathtaking in its inhumanity."
During the conversation, the man told Arrington that an acquaintance believed she should get a medal and a parade because she had "taken out" a "tree hugger, a bicyclist, a Frenchman and a gay guy all in one shot." Arrington laughed. When the man said he knew it was a terrible thing to say, she responded, "No, it's not."
Two troubling rulings from the circuits
Wednesday brought a number of notable circuit sentencing ruling in addition to the previously noted decisions from the Third Circuit and from the Sixth Circuit. The two that really grabbed my attention (and concern) are decisions from the Fifth and Eleventh Circuits:
- In US v. Newson, No. 06-41115 (5th Cir. Jan. 22, 2008) (available here), the Fifth Circuit approves prosecutors' decision to refuse to move for an additional point of acceptance-of-responsibility credit under the guidelines simply because the defendant refused to agree to waive his right to appeal as part of a plea agreement. Though I have long been troubled by appeal waivers in general, the Fifth Circuit's formal approval of this particular technique for securing such waivers is especially disconcerting.
- In US v. Ramirez, No. 07-13060 (11th Cir. Jan. 23, 2008) (available here), the Eleventh Circuit approves of a 60-month statutory maximum sentence in a case where the guidelines recommended a sentence of only 8-12 months. Citing Gall and Rita extensively, the panel affirms with a cursory analysis suggesting that sound procedures employed by the district court made reasonable this high sentence. In so doing, however, the panel seems to essentially abdicate its responsibility to assess the substantive reasonableness of a stat-max sentence when the defendant had viable arguments that his sentence was far greater than necessary in light of all the 3553(a) consideration. Though Justice Scalia argued against any substantive reasonableness review in Rita, the majority of the Justice have clearly held that some sentence can and should be deemed substantive unreasonable even if and when the procedures used by the district court were sound.
UPDATE: In response to some of the commentors, I have done this extended new post explaining more fully my conerns with the Ramirez ruling.
Interesting "rule of lenity" arguments in new SCOTUS brief
As noted here at SCOTUSblog, the petitioner in Burgess v. United States, No. 06-11429 — a case concerning the application of a 20-year mandatory minimum sentence imposed under 21 U.S.C. § 841(b)(1)(A) — filed this merits brief earlier this week. Though the main statutory interpretation issue in Burgess is quite technical, the brief is quite interesting (and was authored by a veritable SCOTUS dream team). Of particular interest is the brief's fairly extended discussion of the "rule of lenity" and its application in this case. Here is a summary of these points from the brief's "summary of the argument" section:
A criminal statute subject to two plausible constructions, one harsher than the other, must be resolved in favor of lenity. Congress has legislated against the backdrop of the rule of lenity for generations, aware that when it intends to make previously innocent conduct criminal, or increase the penalty for previously illegal conduct, it must make that intention plain. Strict application of the rule of lenity is especially appropriate in the context of mandatory minimum sentencing, which alters the traditional allocation of sentencing authority among the branches and where a mistaken interpretation can result in particularly severe consequences that may be, as a practical matter, difficult for Congress to correct. On the other hand, there is every reason to believe that Congress stands at the ready to revise an unduly lenient construction, as the history of this sentencing provision illustrates.
January 23, 2008
Third Circuit strikes down part of Pennsylvania's sex offender notification statute
Thanks to this post at DotD, I see that divided panel of the Third Circuit in Doe v. Pennsylvania Board of Probation, No. 05-4200 (3d Cir. Jan. 23, 2008) (available here), has struck down part of Pennsylvania's sex offender notification statute because its "disparate treatment of out-of-state offenders violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution."
A brief scan of the opinions in Doe suggests that Con Law folks ought to be interested in this ruling. For example, consider this final footnote from the majority's opinion:
An undercurrent to our dissenting colleague’s argument is that under rational basis review, the government always wins. That, quite simply, cannot be so. In fact, were that the case, our review of issues under this standard would be equivalent to no review at all. A necessary corollary to and implication of rationality as a test is that there will be situations where proffered reasons are not rational. That precise situation is graphically presented here. Put simply, every reason proffered by the Commonwealth for its disparate treatment of Doe in this case is meritless, and hence irrational. No reason the Commonwealth offers for disparate treatment can be considered “rational” because each is contrary to the promises it made to the other signatories when it signed-on to the Compact. Indeed, in the several instances, the stated purposes of the Interstate Compact itself contradict what the Commonwealth claims are its reasons for the disparate treatment it gives to in-state and out-of-state offenders.
More evidence some are afraid to change lethal injection protocols
Thanks to this post at C&C, I see that The Tennessean has this notable article in which Governor Phil Bredesen's explains his resistance to changing the state's lethal injection protocol from the three-drug method to a one-drug method often touted by those objecting to the three-drug method. Here are snippets from the piece:
Gov. Phil Bredesen said proposals to introduce a one-drug lethal injection method to navigate around the hazy legal future of Tennessee's three-drug procedure would delay rather than expedite executions. Bredesen told The Associated Press in a recent interview that he "would disagree violently" with those who argue that the state could immediately use a single heavy dose of barbiturates for executions. "Just remember that among the strongest proponents of the one-drug protocol are people who are adamantly opposed to the death penalty," said Bredesen, a Democrat who supports the death penalty and has signed the papers to execute three prisoners during his administration....
"The answer is obvious, that when you change protocols to something new you're going to have 10 years of litigation," the governor said. "We're not going to execute anybody for 10 years in this country while all this new uncharted territory of what a one-drug protocol is and what problems it may or may not have get adjudicated."...
While some Tennessee lawmakers and death penalty advocates were pushing for the state to go ahead with a one-drug protocol to continue with executions, most are waiting to see what the nation's high court will decide. "The practical and prudent approach is to wait for that decision," said state Sen. Doug Jackson, co-chairman of a legislative committee studying the state's death penalty. "Experts have testified that a single-drug protocol would be equally effective and at the same time would be less complicated and have a much lower potential of causing a horrific death," the Dickson Democrat said.
Some related posts:
Distinguishing enhancements based on dismissed conduct and acquitted conduct
Providing another great read, the Sixth Circuit today continued its busy sentencing ways with an interesting ruling in US v. Conway, No. 06-4083 (6th Cir. Jan. 23, 2008) (available here). Of particular note in Conway is this extended discussion of the distinction between sentencing enhancements based on dismissed conduct and based on acquitted conduct:
[Rejecting other defense claims] leaves a less conventional theory — that the Sixth Amendment prohibits courts from enhancing sentences based on charged, but dismissed, conduct. Noting that our court recently granted en banc review in United States v. White, 503 F.3d 487 (6th Cir. 2007), reh’g en banc granted, op. withdrawn, 2007 U.S. App. LEXIS 28902 (6th Cir. Nov. 30, 2007), which will consider whether the Sixth Amendment allows sentencing courts to rely on acquitted conduct in enhancing a sentence, see United States v. Watts, 519 U.S. 148 (1997), Conway maintains that a judge’s reliance on dismissed conduct presents a constitutional issue of equal magnitude. We do not agree. In contrast to the defendant in White, Conway has not been acquitted of anything. He thus has no jury verdict to point to as evidence that the conduct underlying the dismissed counts could not be — or should not be — relied upon by a judge at sentencing. For that reason alone, sentencing based on dismissed conduct stands on far firmer ground than sentencing based on acquitted conduct.
But there is a broader problem with this argument. The central premise of most plea agreements is that they waive the defendant’s Sixth Amendment right to a jury trial, not that they vindicate it. Consistent with that premise, the plea agreement in this case makes it clear that the sentencing judge will determine what Conway’s sentence will be and will determine whether he possessed the shotgun. It notes that Conway “is aware that, in light of United States v. Booker, 125 S.Ct. 738 (2005), the United States Sentencing Guidelines are advisory” and that Conway “is aware that the Court has jurisdiction and authority to impose any sentence within the statutory maximum” for the offense to which he pleaded guilty. It then notes that Conway “is contesting that he had any ownership or possession of said firearm,” leaving no doubt that one of the issues that the court would have to decide was whether Conway possessed the shotgun. In contrast to the defendant who vindicates his Sixth Amendment right to a jury trial by contesting the indictment, by putting the government to its proof and by obtaining an acquittal, a defendant who enters a plea agreement like this one waives any constitutional right to a jury determination of guilt or sentencing facts — so long as the ultimate sentence falls within the statutory range.
New report on the state of sentencing in 2007
The Sentencing Project, as detailed here, has just released a new report titled "The State of Sentencing, 2007: Developments in Policy and Practice." This 30-page report is available at this link, and here is how The Sentencing Project describes some of highlights here:
Today's report, The State of Sentencing, 2007: Developments in Policy and Practice, highlights a number of important state criminal justice policy developments that occurred during 2007. These include:
- Nine states created oversight committees to examine sentencing laws, prison overcrowding, indigent defense, and/or reentry services;
- Seven states amended parole policies and enhanced reentry preparation; Four states eased policies that treat juveniles as adults;
- Three states relaxed sexual offense laws related to consensual acts conducted by teenagers; and
- Two states reformed mandatory sentencing enhancements.
Nevada and California implemented some of the most significant criminal justice reforms in 2007....
The advances highlighted in The State of Sentencing, 2007 reflect a pattern in state criminal justice policy that emphasizes effective public safety measures that control government expenditures. These developments continue a promising trend of "smart on crime" initiatives. Between 2004 and 2006, 22 states enacted sentencing reforms targeted at reducing the prison population. Today's report concludes with several recommendations for enhanced reforms:
- Repeal mandatory minimum sentences;
- Implement policies to reduce parole revocations to prison;
- Invest in reentry and oversight of the criminal justice system; and
- Expand options to reduce the amount of time served in prison.
Intriguing new paper thinking about what we think about punishment
This interesting looking paper, titled "Rethinking Retributivist Thought Experiments: An Abolitionist Critique," recently showed up on SSRN. Here is the abstract:
Retributivist arguments often employ thought experiments meant to elicit various responses from us — materials with which, it is hoped, compelling arguments for punishment can be constructed. Many think that these experiments help make a prima facie case for punishment, that they highlight reasons that speak unequivocally, if not decisively, in punishment's favor. Retributivist use of these experiments has gone insufficiently challenged. I plan to turn the tables on the retributivist. These experiments do not highlight reasons for punishment. In fact, examination of these experiments and arguments that have employed them can help emphasize the strength of Abolitionism, the view that punishment is unjustified. I will show how these experiments have been and can be mishandled and what insights can be taken from them once we identify the errors that have plagued their use. Retributivist arguments employing these experiments suffer from a variety of problems. They rely on dubious and ambiguous claims about the nature and content of the responses elicited by the experiments, misconstrue the moral import of some of the responses, and insufficiently question mistaken assumptions that influence the responses.
January 22, 2008
Seeking reports from the "crack amendment retroactivity summit"
I mentioned in this post that I had heard reports of USSC involvement in seminars intended to help lawyers better understand what's going on with implementing the new crack guidelines retroactively. Thanks to a helpful reader, I have now learned about a multi-day "Crack Amendment Retroactivity Summit" taking place in Saint Louis starting tomorrow. The event is noted at this website, where one can find this draft agenda.
Disappointingly, I do not see any mention of this "Summit" on the US Sentencing Commission's official website, even though the draft agenda indicates that USSC staff members are playing an integral role in this event. Moreover, the event website has this somewhat ominous note in bold type:
Please note: This Summit is limited only to Government Officials, such as Federal Judges and their Court Clerks, U.S. Attorneys and Assistants, Federal Defenders, U.S. Probation Officers, Bureau of Prisons staff, Sentencing Commission officials, Department of Justice personnel, U.S. Court Clerks or designees, and U.S. Marshals. Proper identification will be required for registration at the hotel and attendance at the sessions.
Despite the fact that I and all other non-government officials are shut out for this summit for some reason, I am hopeful that the select group allowed to get up to speed on crack retroactivity in Saint Louis might share some of their learning (and materials) from this summit ASAP.