January 22, 2008
Prisoner rights meet abortion rights
I often tell my students that one of the many joys of obsessing over sentencing and corrections is that every other area of law finds its way to this arena. Thus, fittingly, on the 35th anniversary of Roe v. Wade, the Eighth Circuit today in Roe v. Crawford (available here) strikes down a Missouri rule essentially prohibiting elective abortions for female prisoners. Here is how the opinion starts:
The Missouri Department of Corrections (MDC) instituted a policy of prohibiting transportation for elective, non-therapeutic abortions (MDC policy). Plaintiff Jane Roe (Roe) requested transportation for an elective abortion, and was denied. The district court granted Roe’s request for emergency preliminary injunctive relief, and ordered the MDC to provide Roe with transportation outside of the MDC facility (referred to by the parties as an “outcount”). Roe amended her complaint and sought injunctive relief on behalf of a class consisting of all women in the custody of the MDC who seek elective, non-therapeutic abortions. The district court certified the class (Plaintiffs). Both parties moved for summary judgment, which the district court granted in favor of the Plaintiffs. The district court reasoned the MDC policy is unreasonable under the Fourteenth Amendment using the four-part test established by Turner v. Safley, 482 U.S. 78, 89-91 (1987) for reviewing the reasonableness of prison regulations impacting constitutional rights. The district court also found the Plaintiffs’ Eighth Amendment rights were violated, determining that the desire for an elective abortion constitutes a serious medical need to which the MDC officials were deliberately indifferent. On appeal, the MDC contests both findings. Although we conclude the district court erred in its Eighth Amendment analysis, and on one aspect of the Turner analysis, we affirm the ultimate judgment.
Media coverage of Padilla sentencing
Ms. Padilla called the government’s case “insane” and said she was not surprised by Judge Cooke’s decision to department from federal sentencing guidelines and give her son more lenient sentence.
I think "department" is supposed to be "depart" in this news account. Moreover, based on the media coverage, it actually is not clear whether Judge Cooke technically "departed" or "varied" from the 30-life guideline range in order to impose a sentence of 208 months.
Intriguingly, this Miami Herald piece reports that "Federal prosecutors said they would appeal the judge's decision on sentencing for the defendants." As I suggested in this prior post, Gall and Kimbrough plainly make it harder for the government to prevailing on a claim that the sentence here is unreasonable. But the Justice Department may think the message sent by appealing is more important than whether it ultimately prevails in the Eleventh Circuit.
Today's notable SCOTUS work includes some more GVRs
Though there is little for newspaper headlines, true law geeks ought to be intrigued by the Supreme Court's work this morning. First, in today's Order List (available here), the Court hands down another batch of GVRs based on Gall and Kimbrough (and even has one based on Rtia).
Second, the Justices issued an interesting statutory interpretation decision in Ali v. Federal Bureau of Prisons, No. 06-9130 (available here). Notably, Ali is a 5-4 decision, but Justice Kennedy is not the swing vote. Rather, Justice Ginsburg joined the majority opinion penned by Justice Thomas, and Justice Kennedy authored the chief dissent. But my favorite snippet in Ali comes from Justice Breyer's dissent, where he explains:
The word "any" is of no help because all speakers (including writers and legislators) who use general words such as "all," "any," "never," and "none" normally rely upon context to indicate the limits of time and place within which they intend those words to do their linguistic work. And with the possible exception of the assertion of a universal truth, say by a mathematician, scientist, philosopher, or theologian, such limits almost always exist. When I call out to my wife, "There isn't any butter," I do not mean, "There isn't any butter in town." The context makes clear to her that I am talking about the contents of our refrigerator.
Isn't the SG just too smart about the criminal justice fall-out from broad Second Amendment rights?
This Wall Street Journal editorial, titled "Misfire at Justice," continues the bashing of the Bush Administration's amicus brief in the Heller Second Amendment case. Here are excerpts:
The Second Amendment's right to bear arms has rarely been considered by the Supreme Court, but this year the Court is hearing a case that could become a Constitutional landmark. So it is nothing short of astonishing, and dispiriting, that the Bush Justice Department has now weighed in with an amicus brief that is far too clever by half....
The D.C. Circuit's opinion in Heller is forceful, clearly reasoned and Constitutionally sound. By supporting that decision and urging the Supreme Court to validate it, the Bush Administration had the opportunity to help the Court see its way to a historic judgment. Instead, it has pulled a legal Katrina, ineptly declining even to take a clear view of whether Mr. Heller's rights had been violated. It dodges that call by recommending that the case be remanded back to the lower courts for reconsideration.
The SG's blundering brief only increases the odds of another inscrutable High Court split decision, with Justice Kennedy standing alone in the middle with his balancing scales, and the lower courts left free to disregard or reinterpret what could have been a landmark case. Is anybody still awake at the White House?
As I have suggested in prior posts, the problem is not a slumbering Administration that is "too clever by half," but rather a Justice Department that may be far too alert concerning the potential criminal justice fall-out from a broad Second Amendment ruling in Heller. The "legal Katrina" may not be the SG's brief in Heller, but rather the 2255 petitions from federal prisoners and other challenges to severe federal gun sentences that could flood lower courts if the Supreme Court issues a broad Second Amendment ruling.
As detailed in the latest USSG statistics, over 8,000 offenders were sentenced to an average of over six years' imprisonment for federal firearm offenses in just the last fiscal year, and thousands of other offenders got severe sentence enhancements for firearm possession in a drug offense. Though a broad Second Amendment ruling may not ultimately help any of the tens of thousands of offenders serving time for federal gun offenses, such a ruling certainly would inspire and motivate lots of defense lawyers to bring Second Amendment challenges to extreme federal punishments often imposed on defendants simply for keeping arms in a safe manner.
As the crack retroactivity debate highlighted, DOJ often fears lots of litigation as much as it fears losing the occasional case. It is easy for pundits to say the SG should not be worried about the Second Amendment extending too far to help felons and others now subject to extreme federal firearm punishment, but I think (indeed, hope) the SG's fear of lots of Second Amendment litigation is well founded.
Some recent related posts:
More crack retroactivity action (and related questions)
Over at the Second Circuit Sentencing Blog, Harlan Protess reports here on another New York district court opinion gearing up for crack retroactivity, this time from Judge Sifton in the EDNY. The opinion in US v. Wood, No. CR-88-0723 (CPS), 2008 WL 163694 (EDNY Jan. 15, 2008), seeks a response from the government today, and I hope to post any notable brief that comes my way. Here is how Harlan reacts to what's going on in his legal backyard:
This is the second in a now growing trickle of retroactivity motions, and the second time an offender likely will be eligible for immediate release upon the effective date of retroactivity. Motions of this sort raise a whole host of questions. From the public's perspective, will the naysayers and politicians who opposed retroactivity use individuals like Wood as poster-boys for the release of convicted felons onto the streets? Will that cause any public backlash? From the prosecutor's perspective, will U.S. Attorneys Offices nationwide be clogged with motions like that filed by Wood that will require responses from individuals who likely were not involved in the original cases? Will they be able to find the files from cases years ago? Can they handle the volume?
While Harlan is focused on these case-specific concerns, I am curious how some of the system-wide actors are gearing up for crack retroactivity March madness. Has the Justice Department issued internal guidance to local US Attorneys concerning how to respond to these issues? Has the US Sentencing Commission prepared any new materials to help courts and litigants? The USSC website does not seem to have any new crack retroactivity materials, though I have heard reports of USSC involvement in (public?) seminars intended to help lawyers better understand what's going on.
(As noted before, the folks at the Office of Defender Services has made available this impressive and important 23-page memorandum that seeks to provide "a comprehensive analysis of issues that may arise in the retroactive application of the crack cocaine guideline amendments." But this memo, dated Jan. 2, is now already a bit dated and provides only on perspective on implementing crack retroactivity.)
Some recent related posts:
Any Padilla sentencing predictions?... UPDATE: 17+ years'
As detailed in this AP story, Jose Padilla may finally get sentenced today in federal court. Here are the basics:
The accusations that he plotted to set off a radioactive "dirty bomb" are long gone, but Jose Padilla was still convicted last summer of conspiring to support Islamic extremists around the world. Now a federal judge who sat through a three-month trial and seven-day sentencing hearing was set to decide Tuesday the fate of the 37-year-old U.S. citizen and two co-defendants. U.S. District Judge Marcia Cooke, appointed by President Bush, has wide discretion in determining how much time the three men will spend behind bars.
And this effective article from the Christian Science Monitor places the Padilla sentencing in a broader context. Here is how this piece starts:
Prosecutors in Miami are asking a federal judge to endorse a broad reading of a murder conspiracy statute and material support law to send convicted Al Qaeda recruit Jose Padilla to prison for the rest of his life. If US District Judge Marcia Cooke agrees with the US Justice Department, the severe sentence won't be for any violent act carried out or planned by Mr. Padilla. Instead, he will be punished for what prosecutors say were his dangerous intentions — intentions to conduct unspecified future terrorist operations.
The case raises a potential landmark legal question. Can a suspected future terrorist receive the same harsh punishment meted out against actual terrorists who were personally involved in planning or carrying out genuine bombings, assassinations, and kidnappings?
UPDATE: As detailed in this AP story, Jose Padilla "was sentenced Tuesday to 17 years and four months on terrorism conspiracy charges." The article indicates that Judge Cooke "said she was giving Padilla some credit — over the objections of federal prosecutors — for his lengthy military detention at a Navy brig in South Carolina":
She agreed with defense lawyers that Padilla was subjected to "harsh conditions" and "extreme environmental stresses" while there. "I do find that the conditions were so harsh for Mr. Padilla ... they warrant consideration in the sentencing in this case," the judge said.
David Oscar Markus here has this astute comment: "It will be interesting to see whether the government appeals the sentences after Gall and Kimbrough, the recent Supreme Court cases which give district courts very wide latitude in sentencing."
January 21, 2008
Sixth Circuit jurists struggling smartly with sentencing review
The Sixth Circuit deserved a rest during this long weekend. On Friday, the Sixth Circuit capped a busy sentencing week with another split sentencing ruling in US v. Grossman, No. 06-2310 (6th Cir. Jan. 18, 2008) (available here). In Grossman, the majority affirms a below-guideline sentence with Judge Sutton offering these insights about post-Gall sentencing realities:
Perhaps most importantly, Gall shows that the sentencing process involves an exercise in judgment, not a mathematical proof....
The government questions the reasons offered by the sentencing judge for lowering the sentence — namely, that he seemed to think that some of the enhancements bordered on double counting and that he categorically disagreed with some of the enhancements. To the extent the court viewed the guidelines as duplicative, that by itself would not justify a downward variance. But the defendant did not argue that the enhancements amount to impermissible double counting, and the record contains no evidence that they do. That is presumably why the court said that the enhancements “almost repeat one another” in this case, JA 27 (emphasis added), which speaks not to a problem of double counting but to a perception that the guidelines sentence is higher than this conduct deserves — a concern that Booker aptly allows a court to consider in applying advisory guidelines.
Writing in dissent, Judge Boggs says he "agree[s] completely with Judge Sutton’s analysis of the Gall and Kimbrough cases," but he is concerned that the district court's statements reveal a "clearly improper calculation" of the Guidelines which the majority improperly allows to be rescued simply by a "statement of reasons that could justify a variance."
Some other recent Sixth Circuit action:
- Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues
- Great Sixth Circuit dissent laments “guidelinitis”
- Sixth Circuit continues taking reasonableness review seriously
- More notable Sixth Circuit reasonableness work
Reacting to sentencing on the front page: It's the economy, stupid?!?!
I am in Cleveland for a long weekend, and the front page of today's Cleveland Plain Dealer proves once again that so much of crime and sentencing comes back to economic issues. Consider first this effective article about Ohio's struggles with implementing federal Adam Walsh Act:
The three weeks since Ohio rushed to implement tougher sex offender registration laws have been filled with confusion, lawsuits and concern that the provisions may do more harm than good.
Ohio is one of the first states to pass legislation to comply with the Adam Walsh Child Protection and Safety Act, a set of federal laws that stiffens registration requirements for convicted sex offenders. The act mandates that all states uniformly register sex offenders and place them into a national registry by 2009. It was billed as a way to prevent people who commit sex crimes from slipping through the cracks and committing other offenses. Being on the forefront of the movement has landed Ohio courts in the middle of constitutional arguments over retroactively classifying some offenders — often with harsher penalties — without a court hearing. It also has put a strain on sheriff's offices, who could see a 60 percent increase in their workload as they scramble — with no extra money for personnel — to register thousands of new sex offenders who now have to check in every 90 days....
Ohio Attorney General Marc Dann campaigned on the promise that he would implement the act. And its implementation put the state in line to receive an increase of up to 10 percent in federal grants used to fight crime, said Erin Rosen, a senior assistant in the office. But opponents say the act will cost taxpayers far more to put into practice and defend in court. It is an assertion Dann's office did not dispute.
Now consider this distinct article about how fraudsters have played a major role in the foreclosure crisis:
A hot real estate market fueled by loose lending over the last decade opened doors to just about anyone who wanted to own a home. But the open doors also let in lots of criminals.
Armies of unscrupulous mortgage brokers linked up with shady appraisers and loan officers. Together, they doctored papers to inflate home values, forged signatures on mortgage applications and lied about buyers' incomes and abilities to pay. Their criminal work brought them big fees, and left behind thousands of empty, foreclosed homes in neighborhoods — rich and poor — across the nation.
Today, law enforcement agencies on the federal, state and local levels are trying to crack one of the biggest white-collar capers in U.S. history: the heist of billions of dollars in the value of America's homes.
So, while folks at the federal and state and local levels have been focused (one might say obsessed) on regulating the movements of sex offenders, other criminals have been wrecking havoc with our economic system and the entire nation is paying the price.
Oh, the places sentencing can take you!
Though I can only do a very pale imitation of the masterpiece, the New York Times puts me in a Seussical mood with this terrific profile of my co-author and friend who is now Dean Nora Demleitner. So here goes:
Congratulations!Today is your day!You’re off to great places!You’re off and away!
__So, pack your sentencing ideasand get ready to leave.The reforms that are neededI’m sure you will achieve.
I stress these themes because the NYT piece not only highlights Nora's sentencing expertise, but also highlights that this expertise helped forge her connection to her old boss, Justice Alito:
She made her way to the Hofstra Law School faculty in 2001, and on Jan. 1, Ms. Demleitner, 41, became the law school’s youngest dean ever and the first woman to fill the dean’s chair since the school was founded in 1970. She had served as interim dean since March, and her appointment concluded a national search that took almost a year.
Alan N. Resnick, one of six members of the law school faculty on the 13-member search committee, said Ms. Demleitner “has energized the school.” Hofstra and Touro are Long Island’s only law schools. “We were looking for someone who was not only highly regarded in the law school world, but someone who has vision,” he said. “We found a dean who sees where the future of legal education is going and who will help Hofstra retain and grow its excellent faculty.”
The search committee was not the only one impressed by Ms. Demleitner. Justice Alito, for whom she served as a clerk in 1992 and ’93, said he was, too. “She had a wonderful academic record and came highly recommended to me by people at Yale Law School,” Justice Alito said in a telephone interview. “I was immediately impressed by her poise and intelligence.”
Ms. Demleitner was particularly eager to clerk for Justice Alito because they shared an interest in sentencing. She later became a managing editor for the Federal Sentencing Reporter, a journal that explores sentencing law.
This seems like a particularly fitting day to spotlight Nora's breaking of barriers at Hofstra given that, as noted here, Martin Luther King was awarded doctor of law degrees from Hofstra University in 1965.
Reflecting on race and criminal justice realities to honor MLK's legacy
To honor MLK's legacy, I encourage everyone to take 15 minutes to watch all of Dr. King's amazing "I Have a Dream" speech (available here). Notably, in this post on MLK day two years ago, I asked whether criminal justice reform should be the new civil rights movement and made this observation:
From my sentencing-centric perspective, reflecting on a day honoring Martin Luther King leads me to the view that Dr. King, were he still alive, would be focused on criminal justice reforms. So many aspects of the criminal justice system — from racial profiling to jury selection, from drug sentencing to the administration of the death penalty — highlight that our system is not color-blind (or at least not color-neutral). And, because of felon disenfranchisement and other collateral consequences, the enduring impact of a racially skewed criminal justice system cannot be overstated.
Listening to the speech with a concentrated criminal justice focus is an interesting exercise — especially when one reflects on Dr. King's emphasis on freedom and the massive number of people of color subject to criminal justice control in the United States.
With this context, I also recommend reviewing this recent congressional testimony of Dr. Bruce Western, Director of the Inequality and Social Policy Program at Harvard University, which includes this distressing data:
The fraction of the population in state and Federal prison has increased in every single year for the last 34 years. The rate of imprisonment today is now five times higher than in 1972.... Today's novel rates of incarceration are most remarkable for their concentration among young African American men with little schooling.... Young black men are now more likely to go to prison than to graduate college with a four-year degree, or to serve in the military. These extraordinary rates of incarceration are new. We need only go back twenty years to find a time when the penal system was not pervasive in the lives of young African American men.
In the period of mass incarceration, blacks have remained 7 to 8 times more likely to be incarcerated than whites. The large black-white disparity in incarceration is unmatched by most other social indicators. Racial disparities in unemployment (2 to 1), nonmarital childbearing (3 to 1), infant mortality (2 to 1), and wealth (1 to 5) are all significantly lower than the 7 to 1 black-white ratio in incarceration rates.
January 20, 2008
Concerns about concerns about the recognition of serious gun rights
Today's Washington Post has this interesting article headlined "Administration Rankles Some With Stance in Handgun Case." Here are snippets:
The Bush administration's position in the case before the Supreme Court on the constitutionality of the District of Columbia's ban on handguns has created an unexpected and serious backlash in conservative circles, disappointing gun enthusiasts and creating implications for the presidential campaign....
Rep. Eric Cantor (Va.), the Republicans' chief deputy whip, called the brief "just outrageous," and Republican presidential candidate and former senator Fred D. Thompson (Tenn.) accused the Justice Department of "overlawyering" the issue. David B. Kopel, an associate policy analyst at the libertarian Cato Institute, said that President Bush was elected in part because of the passion of gun rights activists and that "the citizen activists would never have spent all those hours volunteering for a candidate whose position on the constitutionality of a handgun ban was 'maybe.' "
Though this article does not focus specifically on felon-in-possession laws or the severe sentence enhancements that federal law has for certain gun offenses, it does highlight the special challenges facing the Bush Administration when it endorses "the proposition that the Second Amendment provides for an individual right for gun ownership." As I have explained in prior posts, if the Supreme Court in the Heller case shows a serious concern with a serious individual right to gun ownership, there can and likely will be significant subsequent litigation over many types of federal gun crime sentences in lower courts.
Some recent related posts:
Assailing the US record on juve sentencing
Today's San Francisco Chronicle has this commentary, headlined "U.S. among harshest for sentencing children." Here is how it begins:
To many in the United States, the country of Somalia conjures up images of a primitive Third World country. So it may come as a surprise to learn that Somalia and the United States share an unfortunate commonality - they are the only countries in the world that refuse to sign the U.N. Convention on the Rights of the Child because of its ban on sentencing children to die in prison.
Under the U.N. covenant, sentencing children, even those who commit serious crimes, to permanent imprisonment is considered inhumane and inconsistent with civilized society and thus rejected by the rest of the world. According to Amnesty International and Human Rights Watch, there are now about a dozen people outside the United States and Somalia who were sentenced to permanent imprisonment as children: South Africa has four, Tanzania has one, and Israel has seven. In contrast, the United States has 2,270 children serving such a sentence, including 227 in California.
Some recent related posts on juve life sentences: