October 10, 2008
Boston Globe noticing crime dogs not barking in 2008 campaign
With all due respect to McGruff the Crime Dog (who has his own blog), I have been intrigued, somewhat amazed and consistently disappointed by how quiet the 2008 election season has been on issues of crime and punishment. I am pleased to see that the Boston Globe, in this editorial headlined "Politically, crime doesn't pay," is also noticing that crime dogs are not barking this fall. And the editorial has some interesting theories why:
Despite an overall drop in crime rates over the past decade, fear of crime remains a daily concern for residents in many American cities. The candidates are giving short shrift to the issue by succumbing to their own fear of talking about crime.
Obama may be reluctant to draw attention to his hometown problems in Chicago, where murder and gun violence rates are up sharply. McCain may see no political upside of the crime issue, either. He alienated the gun lobby again by supporting the rollback of the insidious Tiahrt amendment, which restricts the ability of local law enforcement agencies to gain access to comprehensive federal gun tracing data as a means to identify rogue gun dealers....
Americans of all races are still waiting for a healthy debate on why black people are imprisoned at five times the rate of white people. Is it the breakdown of families, the failure of social and economic interventions, or racial bias on the part of police or prosecutors? This subject deserves at least as much attention from the candidates as they give to "diplomacy without preconditions."
Each candidate still has some explaining to do. Voters deserve to hear more about why McCain voted against bipartisan crime bills during the 1990s. And Obama's position on the constitutionality of citywide bans on handguns remains murky, at best. The candidates seem only too happy to duck discussions about crime. Neither, therefore, deserves commendation as an especially effective crime-fighter.
I concur that both Presidential candidates are happy to duck discussions about crime, but the media (both mainstream and non-traditional) are also responsible for failing to show any real interest or concern about these issues. Moreover, it has been more than 20 years since either political party has shown a real interest at the federal level in having a truly "healthy debate" about crime and punishment. Largely inconsequential distractions like the death penalty, the exact scope or federal judicial sentencing discretion, and US attorney firings make for great political theater and sound-bites, but it has been decades since persons in either the White House or Congress has shown a real interest in the hard work of figuring out how best to prevent and fight crime throughout the United States.
Some related posts:
- Hoping for a presidential town hall on crime and punishment
- Why is Senator Jim Webb the only national figure focused on the prison economy?
- FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"
- Is Senator McCain preparing to attack Senator Obama on crime issues?
A first sentencing echo from the economic meltdown?
This new article from Corporate Counsel may reveal a first sentencing echo from some of the ugly doings on Wall Street. The piece is headlined, "Former Gen Re Lawyer Could Face Life in Prison: Federal prosecutors want Robert Graham to be sentenced to 230 years in jail for his role in a sham insurance deal with AIG," and here are excerpts:
Robert Graham, a former senior lawyer at General Re Corp., faces life in prison for doing what his defense attorney calls a "few hours work" on a fraudulent deal. Prosecutors want to sentence Graham to a "substantial" term -- up to 230 years behind bars -- for his role in a sham insurance deal with American International Group Inc. The government also wants Graham, who is 60, to pay millions of dollars in fines and restitution.
In February a U.S. district court jury in Hartford convicted Graham -- Gen Re's former assistant general counsel -- and four other executives of multiple counts of securities fraud. At a Sept. 25 sentencing hearing before Judge Christopher Droney, prosecutors argued that Graham should face a stiff penalty because he abused a position of trust and used his special skills and knowledge as a lawyer to further the fraud. The government is also asking for similarly harsh prison terms for three of Graham's co-defendants -- Ronald Ferguson, Gen Re's former CEO; Elizabeth Monrad, the company's ex-CFO; and Christian Milton, the former vice president of reinsurance at AIG.
The government arrived at the severe prison terms by using a formula in the federal sentencing guidelines which provides for steeper penalties as the amount of loss and number of victims rises. Prosecutors argue that the defendants deserve heavy sentences because more than 250 AIG investors lost at least $544 million from the fake deal with Gen Re. The defendants have countered with an expert who maintains that there was zero loss and no victims....
Graham's attorney, Alan Vinegrad, a New York-based partner with Covington & Burling, wouldn't comment for this story. But in a September court filing, Vinegrad argued that his client is the "least culpable" of the defendants, and that prosecutors are overstating the seriousness of his misconduct. Graham didn't initiate the scheme, didn't have control over the amount of loss, and didn't personally benefit from it, according to Vinegrad. Even without jail, the conviction will "wreak havoc with the remainder of Graham's professional and economic life," Vinegrad says in his 71-page reply....
White-collar defense attorney Michael Cornacchia, who is not involved in the case, says harsh sentences are due to "post-Enron hysteria," which led to sentencing guidelines based on factors like the amount of loss and number of victims. The proposed sentence for Graham "sounds draconian to me," says Cornacchia, a former Assistant U.S. Attorney and senior litigation counsel in the business and securities fraud section of the U.S. Department of Justice. If you take a life, Cornacchia adds, a life sentence is appropriate. "This is serious conduct, but it's not taking a life. This is stealing money," he says of Graham's conviction....
Given AIG's recent collapse, Graham's timing is nothing if not lousy. Because of the sham deal, AIG's longtime CEO Hank Greenberg was forced to resign in 2005. Prosecutors said in court that Greenberg initiated the deal, though he was never charged. After AIG agreed to pay $1.6 billion to settle state and federal investigations into the fake deal, the company's stock plummeted. Now, amid the financial crisis, U.S. taxpayers have had to bail out AIG with $122.8 billion in loans while AIG execs are being grilled in congressional hearings.
Eighth Circuit closes week with two notable sentencing opinions
The Eighth Circuit issued two notable sentencing opinions today, and here are the unofficial summaries from the Circuit's website:
United States v. Spikes, No. 08-1489 (8th Cir. Oct. 10, 2008) (available here):
[Hansen, Author, with Riley and Melloy, Circuit Judges] Criminal case -- sentencing. Neither case law nor the guidelines permit the court to count a deferred prosecution with conditions that could lead to a dismissal prior to entry of a guilty plea as a criminal justice sentence for purposes of Guidelines Sec. 4A1.1(d), and the district court erred in imposing two criminal history points under the Guidelines; the court could not say that the error was harmless and the matter must be remanded for further proceedings.
United States v. Garate, No. 06-1667 (8th Cir. Oct. 10, 2008) (available here):
[Hansen, Author, with Murphy and Smith, Circuit Judges] Criminal case -- Sentencing. On remand from the United States Supreme Court for reconsideration under Gall. For the court's earlier opinion, see U.S. v. Garate, 482 F.3d 1013 (8th Cir. 2007), vacated, 128 S.Ct. 862 (2008). Thirty-month sentence was not substantively unreasonable as the court considered the relevant factors under 18 U.S.C. Sec. 3553(a) and gave detailed reasons for sentencing defendant below the advisory guidelines range.
Another defendant opts for a notable shaming sanction to avoid jail time
A helpful reader pointed me to this notable local story from Wisconsin, headlined "Man Chooses To Hold 'I Was Stupid' Sign Instead of Jail Time." Here are the details:
A judge gives a man a choice: Spend time in jail or hold a sign saying "I was stupid." Wednesday, he made that choice. He decided he'll hold the sign.
We talked to the judge known for his strange sentences. Judge Paul Lenz says over the years, he's handed out 20 or so similar sentences. But, he says for the most part, the criminals pass and choose to sit out their sentences rather than face public humiliation. They read "I was stupid," "I’m a thief," and "I stole from the families of the dead."
They're all options to reduce jail time. "It's something for them to think about," Lenz says. "Even if they don't choose to do it, they have to think about it because they have to think about whether they'll select the option. That means they'll think more about the consequences."
Shane McQuillan ... was found guilty of criminal damage to property after he rammed his car into the closed gate at Eau Claire's Waste Water Treatment Plant in March. McQuillan told an officer he had been drinking and was quote "just being stupid." Now, the 22 year old will hold a sign telling everyone "I was stupid".
The judge says he's also thinking about money when he assigns a sign. In tough budget times, he says keeping non-violent people out of jail makes sense. Then there's the humiliation. "It's a difficult thing to do if you think about it for yourself. It's basically a public acknowledgment that what you did was wrong and that's difficult for people to do," Judge Lenz says. "It's also for others who might think about doing that type of behavior to think about."
The judge says there are some guidelines to follow when it comes to a sentence. He says it has to relate to the offense. But, he says his sign options are voluntary and have never been appealed.
New ACS paper on racial disparities in the death penalty
A new issue brief from the American Constitution Society authored by Scott Phillips addresses disparities in the modern administration of capital punishment. The paper is titled, "Racial Disparities in Capital Punishment: Blind Justice Requires a Blindfold," and is available at this link. Here's the description from ACS:
In this Issue Brief, Professor Phillips describes research he conducted on race and capital punishment in Harris County, Texas. The author reports finding that the death penalty is more likely to be imposed against black defendants than white defendants, and death is more likely to be imposed on behalf of white victims than black victims. Professor Phillips explains that his research indicates that the racial disparities arise in the District Attorney’s decision to seek the death penalty, rather than with the jury. He suggests that because the Supreme Court is unlikely to overrule McCleskey v. Kemp in the near future and find that capital punishment is unconstitutional based on statistical evidence of racial disparities, other means for reducing racial disparities in the death penalty should be implemented. He proposes that prosecutors’ offices that want to institute genuine race-blind processes for deciding whether to seek the death penalty should consider "desocializing" the decision to seek the death penalty. Concrete steps that District Attorney’s offices can take to reduce the social information available to judicial actors in the capital litigation process, he suggests, include eliminating information that might insinuate the race of the victim or defendant — "racial markers" — from all documents considered in the District Attorney’s decision whether to seek the death penalty.
October 9, 2008
Making financial lemonade out of Lemoine
The Ninth Circuit today issued an interesting technical opinion about restitution to victims in US v. Lemoine, No. 06-50663 (9th Cir. Oct. 9, 2008) (available here). Here is how Lemoine gets started:
These consolidated appeals present the question of whether the Bureau of Prisons (BOP), the federal agency responsible for the incarceration of inmates, may require inmates who participate in the bureau’s Inmate Financial Responsibility Program (IFRP) to pay restitution to victims at a higher or faster rate than was specified by the sentencing court, without obtaining an order from the sentencing court directing or approving the larger payments. We conclude that the BOP may do so.
A case called Hope
During election season, I love watching old campaign commercials (wonderfully assembled here) and reading old political speeches. Candidate Bill Clinton's speech at the 1992 Democratic convention was titled "A Place Called Hope," and I could not resist riffing off that title for this post about US v. Hope, No. 07-60769 (5th Cir. Oct. 8, 2008) (available here). Here is how a case called Hope starts:
Defendant, Danny Hope, was apprehended following a high speed chase that ensued when a police officer attempted to pull him over for driving with a broken headlight. The officer recovered a .380 caliber Walther-brand pistol from under the passenger seat of Hope’s vehicle. The pistol was later identified as the same weapon Defendant had used to rob a convenience store the previous day.
Hope was convicted of two counts of being a felon in possession of a firearm. The first count covered the day Hope was apprehended; the second count covered the convenience store robbery the previous day. However, at trial the prosecution introduced no evidence that Hope ever relinquished constructive possession of the gun over the two-day period underlying the two separate counts. He was sentenced to 120 months for the first count and 15 months for the second count, with the sentences to run consecutively.
Hope contends that these sentences violate the Double Jeopardy Clause of the Constitution. The government agrees and requests the case be remanded to the district court for vacation of one of the counts of conviction and resentencing. We are not bound by the Government’s concession of error and give the issue independent review. Hope did not object at the sentencing hearing and is raising this issue for the first time on appeal. Our review, therefore, is for plain error, which requires an appellant to show (1) the existence of actual error, (2) that the error was plain, and (3) that it affects substantial rights.
One area in which bad times are good for business
Last week I asked in this post, "When will the latest economic crisis become a criminal justice story?". Today, the New York Law Journal is on this story with this new piece, headlined "Criminal Prosecutions Predicted to Surge Over Financial Crisis." Here is how the effective piece begins:
With public anger reaching a boiling point over plunging stock prices and Wall Street "greed," white-collar defense attorneys are preparing for an inevitable surge in criminal prosecutions.
Stanley S. Arkin, for one, said he expects that the anger, hysteria and economic dislocation fueled by "imprudent credit policies" will "inspire" indictments that would not have been brought in a "calmer and more dispassionate time." There is "an underlying popular sensibility in this country that someone has to pay for all the jobs lost and the savings extinguished," said Arkin, a partner at Arkin Kaplan Rice. "There's a lynching quality that arises in circumstances of extreme dislocation like this."
As I said before, this all suggests it may be an especially good time to "buy stock" in any law firm specializing in white-collar defense, and law students might want to sign-up ASAP for courses in White-Collar Crime and/or Federal Criminal Law and Sentencing.
In addition, all corporate attorneys with old business clients now fearing different kinds of legal problems ought to quickly study up on federal sentencing realities. As regular readers know well, the first executives to run to prosecutors and offer up information are likely the ones (and perhaps the only ones) who will escape severe consequences when indictments start rolling in.
October 8, 2008
Another interesting attack on retributivism
As noted in recent posts here and here, Adam Kolber's recent scholarly work seems designed to sow discontent with standard retributivist punishment justification. And, as documented by this revised paper appearing anew on SSRN, Professor Kolber apparently has a fellow traveler in Nathan Hanna. The paper is titled "Rethinking Retributivist Thought Experiments: An Abolitionist Critique," and 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.
Around the blogosphere
Lots of interesting new stuff for sentencing fans at these always interesting blogs:
Has there been a single pro-gun-rights rulings in lower courts since Heller?
Today I came across promotions for two new books that both appear to be celebrating the Supreme Court's Second Amendment ruling in Heller: The Heller Case: Gun Rights Affirmed and Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment. I then recalled this post yesterday from Eugene Volokh reporting on yet another lower court opinion rejecting an effort by an individual to assert gun rights based on Heller. Putting all this together, I am wondering if I am the only one that has noticed and been seriously troubled by the fact that there apparently has not yet been a single notable lower court ruling that protects gun rights in the wake of Heller.
As the title of this post suggests, it is possible that I have missed a pro-gun-rights Second Amendment ruling from a lower court in the four months since Heller came down. But all the lower court cases I have see have rejected Heller-based claims. Before I buy any books celebrating the supposedly landmark ruling in Heller, I would like to see some evidence that the case will have a real impact for litigants other than just for the plaintiffs in that one case.
Of course, Heller might affect legislative activities in various ways; I do not mean to assert or suggest that Heller's impact is only to be measured by lower court victories for individuals seeking to assert gun rights based on Heller. But, to date, I have not seen reason to be seriously hopeful that there will be any significant lower court victories for gun-right advocates based on Heller.
"Calculating Loss Under the Guidelines"
The title of this post is the title of this new article in the New York Law Journal by Robert Morvillo and Robert Anello. Here is how this effective piece starts and ends:
Prosecutors sometimes appear to vie for placement in the Guinness Book of World Records for the longest sentence in a white-collar case. They are aided by the amorphous concept of loss calculation under a sentencing guidelines structure that equates jail time with often-inflated assessments of loss caused by the crime.
In one recent case in Connecticut, the government argued for a finding of a $1.4 billion loss based on a fraudulent transaction that had no monetary impact on the earnings or revenues of the corporation in question.
In a securities law setting, loss calculation for public corporation cases can be complex, requiring the retention of experts and incorporating such abstruse concepts as leakage, corrective disclosure, event studies and efficient markets. Some courts have begun to recognize the complexity of loss calculation analyses and have attempted to temper their consequences....
Loss calculation often artificially inflates the guidelines to unrealistic proportions. Even as a starting point, a white-collar guideline calculation of life or greater (a sentence best left for murderers), although absurd, casts a heavy pall on the §3553(a) concepts which are more appropriate sentencing criteria.
October 7, 2008
Could tonight's town hall debate finally bring up crime and punishment issues?
I am consistently disappointed whenever I start hoping the Presidential candidates will talk seriously about crime and punishment issues. Nevertheless, my single-issue-blogger hope springs eternal, and perhaps the town hall setting for tonight's debate could help facilitate some discussion of the death penalty or the Second Amendment or mass incarceration or federal drug sentences. But I am not holding my breath.
Interestingly, as detailed in this AP report and this official press release, the International Association of Chiefs of Police was recently able to get both candidates to responded to six written questions on "crime, terrorism and homeland security." The Q&A can be accessed in this pdf from the October issue of Police Chief Magazine. Here is how the AP summarized the answers:
Obama promised to restore funding to the popular Community Oriented Policing Services, commonly called COPS, and Byrne Justice Assistance grants, which local departments use to hire officers. These grants have seen significant cuts since the beginning of the Bush administration. Obama also said he would put in place "innovative" youth crime prevention programs and prisoner re-entry programs....
Republican John McCain also supports prison re-entry programs. But he did not mention COPS or Byrne grants. Instead, he promised to "restore credibility" to the existing grant programs, get rid of earmarks and give funding to the communities that need it — a similar approach to what is being done in the current administration when distributing homeland security grants. McCain would also work to improve the economy and unemployment rate as a way to reduce crime.
Some related posts:
- Hoping for a presidential town hall on crime and punishment
- Why is Senator Jim Webb the only national figure focused on the prison economy?
- FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"
UPDATE: Yawn.... A series of rehashed points from stump speeches masquerading as a town hall discussion. Another disappointing discussion that did not cover any new ground. Oh well.
Another puzzling report on federal child porn sentence
Regular readers may get tired of my regular anecdotal reports on federal child porn sentencings, but I continue to struggle to figure out how different US Attorney offices are dealing with these sad cases. For example, consider the remarkable case from Virginia reported here, headlined "Former Marine gets 12 years for 650,000 child porn images." The press account indicates that the defendant had a history of sex with minors and a record-setting collection of child porn:
Assistant U.S. Attorney Melissa O'Boyle ... told U.S. District Judge Jerome B. Friedman that the 650,000 images included 325,000 still images and 325,000 video images, but that the number was conservative. Agents simply stopped counting at a certain point. "The child pornography collection that the defendant had was pretty much unlike anything the U.S. Attorney's Office here has ever seen before," she told the judge.
In seeking a longer prison term than what sentencing guidelines called for, O'Boyle told the judge that the collection contained "particularly brutal" and "horrendous acts of bondage and bestiality" involving children. Some were as young as infants, she said. [The defendant] also told court officials during a pre-sentence interview that in the early 1990s he visited Tijuana, Mexico, and Thailand and paid money to have sex with girls who said they were minors, O'Boyle said. He told the officials that he paid more money for the prostitutes because they were young.
And yet, despite all of these aggravating factors, the federal prosecutors in this case apparently were only seeking a sentence of just over 11 years of imprisonment. This recommendation seems in stark contrast to the recommended sentence of nearly 20 years in the Hanson case discussed here and other cases I have seen in which more sympathetic defendants are facing much longer recommended sentences from federal prosecutors.
As I have noted in prior posts, it is hard to tell exactly what is going on in this particular sentencing arena based on snippets of information from the press and various anecdotal reports. For this reason, I hope the US Sentencing Commission will take a close and studied look at how these kinds of cases are being handled. There is every reason to fear that child porn downloading is being subject to wildly disparate sentencing consequences nationwide perhaps due solely to disparate prosecutorial charging and bargaining policies.
Some related federal child porn sentencing posts:
Seventh Circuit reiterates duty to explain sentencing decision
In an important new article discussed here, Professor Michael O'Hear makes a strong argument that district courts should feel a strong obligation to "explain themselves when they reject a defendant's argument" for a lower sentence. In light of his arguments, Professor O'Hear will likely be pleased with the Seventh Circuit's work today in US v. Jackson, No. 07-3226 (7th Cir. Oct. 7, 2008) (available here). Here is how the Jackson decision begins:
Stanley F. Jackson pled guilty to one count of possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). Jackson was on probation and supervised release when he committed the charged offense so he received a four-year sentence from the state court for violating the terms of his release. The district court then sentenced Jackson to 170 months’ imprisonment for the drug offense and imposed its sentence to run consecutively to that state sentence.
Jackson challenges the consecutive nature of his sentence, arguing that because the state sentence was imposed in part for conduct that was taken into consideration by the district court in calculating his Guidelines range, he was punished excessively for one course of conduct. Although the district court had the discretion to impose a consecutive sentence in this case pursuant to Section 5G1.3(c) of the United States Sentencing Guidelines (“U.S.S.G.”), we are not confident that the district court considered the relevant factors before doing so. Therefore, we must remand for resentencing.
A dollars and sense criticism of Senator Obama's crime-fighting plans
Writing over at Slate, Radley Balko has this very interesting critique of Senator Obama's latest campaign talk about crime and justice issues. The piece is titled "Bad Cop: Why Obama is getting criminal justice policy wrong," and here are snippets from the start of a strong piece that should be read in full:
When Sen. Barack Obama expressed concern early in the primary season that there are more young black men in prison than in college, he raised hope that he might be the first major-party candidate in a generation to adopt a more nuanced criminal policy than the typical "longer sentences, more prisons, more cops."...
But in the last month, Obama's line on criminal justice has been a lot less encouraging. His running mate selection of Joe Biden, long one of the Senate's most strident crime hawks and staunchest drug warriors, was telling. Since the vice-presidential pick, Obama and Biden have embraced criminal justice policies geared toward a larger federal presence in law enforcement, a trend that started in the Nixon administration and that has skewed local police priorities toward the slogan-based crime policies of Congress, like "more arrests" and "stop coddling criminals."
In particular, Biden and Obama have promised to beef up two federal grant programs critics say have exacerbated many of the very problems Obama expressed concern about earlier in the primaries. Obama and Biden's position shows an unwillingness to think critically about criminal justice. They are opting instead for the reflexive belief that more federal involvement is always preferable to less.
The rest of the commentary goes on to explain why putting more federal dollars into more local cops into more federal drug task forces may often prove to be more harmful than helpful (and always proves to be expensive). Here is the key theme to Balko's analysis and his criticism of federal involvement in local criminal justice issues: "The main problem with federal block grants is that once they're issued, Congress can't monitor them to be sure they're spent properly."
In short, Balko highlights critical concerns that apply to all government activities: the importance of following the money and of demanding cost-benefit accountability and effectiveness. Indeed, if we were to seriously follow the money and demand cost-benefit accountability and effectiveness throughout all aspects of our criminal justice systems, I think we would have a much more sound and sensible approach to all sorts of crimes and punishments.
Some related posts:
- How the media can do better: ask the candidates tough crime and punishment questions
- Hoping for a presidential town hall on crime and punishment
- "Real commander needed for the war on drugs"
- Why is Senator Jim Webb the only national figure focused on the prison economy?
"Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and the Meaning of Punishment"
The title of this post is the title of this new article on SSRN, and the article is a must-read for me simply because the title incorporates so many of my favorite jurisprudential buzz-words. And, as this abstract highlights, the substance of the article also makes it a must-read:
Apprendi v. New Jersey and Blakely v. Washington threw contemporary state sentencing into disarray, completely revamping practices and procedures in light of a new understanding of the due process and Sixth Amendment rights at sentencing. While Apprendi and its progeny arguably represent a revolution in sentencing, there is one area that the revolution has left untouched: the view that the sentencing process ends when a judge in a courtroom pronounces a sentence. The Apprendi literature focuses on decisions a judge makes about the prescriptive sentence to be imposed, not on the actual sentence that is, in fact, imposed. This focus is particularly baffling when one considers that most states continue to use indeterminate sentencing, and that for the hundreds of thousands of prisoners serving indeterminate sentences, a parole board ultimately determines the length and disposition of the sentence they serve.
Discretionary parole release is one manifestation of the problems created when Apprendi is applied only to the judicial pronouncement of the sentence. I focus on one specific example of this larger phenomenon: the California parole board's practice of resentencing parole-eligible crimes into parole-ineligible ones, based on findings of fact it makes by the "some evidence" standard of proof. The California homicide statute divides parole-eligible crimes from parole-ineligible ones based on statutorily-enumerated "special circumstances," among them that the murder was especially heinous, atrocious, or cruel. After Apprendi, a judge could not sentence an offender to a parole-ineligible sentence based on her own finding of special circumstances. Nevertheless, parole boards in California repeatedly deny parole for eligible prisoners based on their own findings that the crime was heinous, atrocious, or cruel-in some cases, even when the jury has explicitly found otherwise.
Indeterminate sentences, which combine retributive and rehabilitative components, delineate where — and, more importantly, why — the Apprendi jury right applies to some facts and not others. This restores needed coherence to the Apprendi right and saves it from the attack that it is merely formal, not substantive. Unraveling the issues in California's practice will clarify the underlying doctrine not just about parole and Apprendi, but about punishment itself. In other words, exploring parole via Apprendi will teach us something about parole, just as exploring Apprendi via parole will teach us something about Apprendi. Putting the two together illustrates larger issues about the punitive and rehabilitative aspects of sentencing, and on the judicial and executive limits of punishment.
Cooperation prompts prosecutors to seek delay in Rezko sentencing
As detailed in this Chicago Tribune article, a high-profile sentencing may be put on the back-burner because the defendant is working with prosecutors. Here are the specifics:
In the first official sign that Antoin "Tony" Rezko and his lawyers are talking with federal prosecutors about his cooperation in corruption probes, the judge in his federal fraud case has been asked to delay his sentencing this month.
In a motion filed late Monday by prosecutors, the two sides ask that the Oct. 28 sentencing date for the former fundraiser and adviser to Gov. Rod Blagojevich be delayed indefinitely. "The parties agree that the [sentencing date], as well as dates related to sentencing filings, should be stricken while the parties engage in discussions that could affect their sentencing postures," says the motion written by Assistant U.S. Atty. Reid Schar. The motion seeks a hearing to discuss the status of the case in December. U.S. District Judge Amy St. Eve, who presided over Rezko's trial this year, was expected to hear the motion Wednesday.
A delay also would push Rezko's sentencing beyond the Nov. 4 presidential election, eliminating a possible focus on Rezko just days before the vote. Democratic nominee Barack Obama's fundraising and personal ties to Rezko have been an issue in the campaign.
October 6, 2008
Assailing LWOP for juvenile offenders
This new paper appearing on SSRN, titled "Sentencing Our Children to Die in Prison: Global Law and Practice," takes aim at the sentencing of juvenile offenders to life imprisonment without parole. Here is the abstract:
This article focuses on the sentencing of child offenders (those convicted of crimes when younger than eighteen years of age) to a term of life imprisonment without the possibility of release or parole ("LWOP"). It argues that the LWOP sentence condemns a child to die in prison, is cruel and ineffective as a punishment, has no deterrent value, contradicts our modern understanding that children have enormous potential for growth and maturity in passing from youth to adulthood, prevents society from ever reconsidering a child's sentence, and denies the widely held expert view that children are amenable to rehabilitation and redemption.
The article asserts that the United States is the world's only remaining practitioner of LWOP sentencing of juveniles, and that in the United State the sentence is applied disproportionately among youth of color. The article analyzes international human rights standards and international law to demonstrate that imposing sentences of LWOP for child offenders is a violation of law. The article identifies several juvenile justice and rehabilitation models of other countries and United States states that can serve as alternatives to harsh and inappropriate sentencing for children, and it makes recommendations to governments and policy-makers for remedying violations of international human rights standards, and for improving the opportunities for juvenile rehabilitation.
The authors conclude by recommending that: countries should continue to denounce as a violation of international law the practice of sentencing juveniles to LWOP, to condemn the practice among the remaining governments which allow such sentencing, and to call upon those where the law may be ambiguous to institute legal reforms confirming the prohibition of such sentencing. The authors further recommend that the United States should abolish the juvenile LWOP sentence under federal law and undertake efforts to bring the United States into compliance with its international obligations to prohibit this sentencing.
Pace of executions remains slow and not so steady six months after Baze
The Death Penalty Information Center has now posted here its latest accounting of all the executions in the United States since the Supreme Court upheld the constitutionality of Kentucky's lethal injection protocol in Baze v. Rees. As I have noted before, I find it remarkable not only that we have had roughly four executions per month (all in traditional death penalty states), but also that we have not seen any post-Baze increase in executions even though the Baze case led to a halt of all executions for over six months.
It is also interesting to see from this list of upcoming executions at DPIC that very few states other than Texas seem to be setting serious execution dates. Also of note from this list is that Ohio is the only state other than Texas with more than one upcoming execution date, even though Ohio has not gone forward with an execution in almost 18 months.
Some related recent posts:
- A month after Baze, has anything really changed?
- Three months after Baze, has anything really changed?
- Do special procedures help preserve the US death penalty?
- Three more uneventful(?) lethal injections, including one with a political spin
- Waiting and waiting and waiting on the row
- Did the Supreme Court's work in Baze matter at all?
New local law tries to prevent sex offenders from "clustering"
This local story from Florida, headlined "New law prohibits sex offenders from clustering," reports on what appears to be another new type of regulation on where sex offenders may live. Here are the details, along with an indication that some lawmakers are eager to create the equivalent of leper colonies for sex offender:
Hillsborough County leaders recently passed a new law that prohibits groups of sex offenders from clustering in one neighborhood. County Commissioners passed a new law that prohibits sex offenders from living together or "clustering." And offenders can occupy no more than 10 percent of units in a mobile home park. Landlords will also be punished if they allow it....
Community activist Michelle Williams pushed for changes so sex offenders aren't so closely concentrated, and county commissioners listened. "We needed to do whatever we had to do on the county level on the legislative side of it to keep our community and children safe," said Commissioner Kevin White....
White says he would like to have sexual offenders housed in a designated commune-like facility in Hillsborough County. The facility would be gated, well marked and a good distance from churches and schools. "Along the perimeter of that facility you could have the postings and the markings that this is a certified sex offender location -- please keep children so many feet away and children beware," White said.
Still more proof that federal courts have no real interest in gun rights
I am not especially surprised that the Second Amendment ruling in Heller has not changed the extreme sentences being handed out for federal gun possession crimes in federal courts. And yet I cannot help but note some of the disturbing cases that still get summary treatment despite Heller's supposedly strong embrace of an individual's right to keep and bear arms.
Specifically, consider the unpublished per curiam opinion today from an Eighth Circuit panel in US v. Smith, No. 08-2043 (8th Cir. Oct. 6, 2008) (available here). Though the details are sketchy from the opinion, it appears that the defendant was acquitted of various gun possession charges at trial, but still was convicted of one count of being a felon-in-possession of a firearm. (The firearm in question is a popular hunting rifle, the Norinco SKS pictured above. Notably, the Smith opinion gets the name of the rifle wrong, calling it a Norico SKS.)
For the crime of possession a popular hunting rifle, the defendant in Smith gets a sentence of more than eight years in federal prison. Of course, Mr. Smith is surely a bad dude, since we know he has a felony record, and that must have been a long record in order to have resulted in an applicable guideline sentencing range of 100 to 125 months. Still, according to Smith opinion, the defendant did have some mitigating circumstances going for him. Moreover, as I keep wanting to believe, if there really is a serious commitment to Second Amendment rights, there should be some constitutional concerns about sending someone to prison for nearly a decade simply for possessing a hunting rifle. But apparently not, since the Eighth Circuit panel summarily affirms the defendant's sentence in Smith.
Some related posts (written both before and after the Supreme Court's opinion in Heller)::
- Prosecutorial headaches after Heller
- Might the ACLU be a strong supporter of all persons' gun rights?
- The post-Heller litigation headaches (and judicial cut-backs) have begun
- Another review of felon efforts to assert Second Amendment rights
- More thoughts about the scope of Second Amendment rights
- More than six years in federal prison for (not quite) bearing arms
Is Senator McCain preparing to attack Senator Obama on crime issues?
Over at The Atlantic, Marc Ambinder has this notable new post suggesting that old-school "soft-on-crime" attacks are part of Senator McCain's strategy to get back his mojo in the final month of the 2008 campaign:
This Tuesday's debate will determine whether there's any re-tightening in battleground states, with the McCain campaign conceding that if the election were to be held this Tuesday, Obama would win more than 300 electoral votes....
Here is the gameplan [for issues on which to attack Senator Obama]:...
2. Obama's record on crime. "Far outside the mainstream." Crime record -- far outside the mainstream...issues like gang violence and crack/powder retroactivity (which even the Bush admin supports but is not popular)... Are they skating close to the race line here? The McCain camp turns it around: since when is a black candidate given a free pass on these issues?
As regular readers know, I have been itching for crime and punishment to be a campaign issue for quite some time. I am not especially surprised that the campaign of Senator McCain would return to classic line of attack on Democrats; indeed, I am surprised that this issue has not come up sooner.
Because there has been so little campaign talk about crime and punishment, it will be interesting to see how the McCain campaign will try to get this issue attention and also whether the media (both mainstream and online) will make up for lost time by giving the issue the coverage it merits. Interestingly, I see that John McCain's website has this updated page on "Fighting Crime," but I do not yet see any new video focused on crime and punishment issues.
Some related posts:
No action in Davis, cert denied in Lett and Vonner, a few Gall GVRs
The Supreme Court has started its new Term by releasing this long order list, which includes a number of notable denials of cert. Most disappointing to me is the appearance of my client, Patrick Lett, on the long list of cert denied (basics here). Also on the list of cert denied are all the notable sentencing cases discussed here a few weeks ago, including the Vonner case from the Sixth Circuit dealing with reasonableness review. There were a couple GVRs based on Gall in the order list, but the list otherwise suggests that the Justices are disinclined to do too much more in the sentencing arena anytime soon.
In addition, as SCOTUSblog details here, the Court "took no action on an appeal testing whether it is unconstitutional to execute a death-row inmate who has a significant claim of innocence. The Court’s 82-page list of orders on pending cases contained no word on Troy Anthony Davis' appeal, Davis v. Georgia (08-66)." I suspect there will be some action in this case before the month is out, although one can never predict the Court's pacing on these kinds of matters.
OJ Simpson subject to 15-year mandatory minimum (though with parole)
Writing here at SI.com, law professor Michael McCann provides an effective review of "the key questions following the guilty verdict of O.J. Simpson on all 12 counts of armed robbery and kidnapping." Here is the Q&A on sentencing:
What will happen at Simpson's sentencing on December 5?
Even if she opts to impose the most lenient possible sentence under discretion, Clark County District Judge Jackie Glass will sentence Simpson to at least 15 years in prison. His conviction alone of first-degree kidnapping with a deadly weapon carries a minimum sentence of 15 years, with the possibility of parole after five years, and a maximum sentence of life of prison with the chance of parole. Judge Glass could run the sentences for each of the 12 charges concurrently or consecutively, the latter of which would be disastrous for Simpson, as he would then serve time for each sentence, one-after-the-other.
Working in Simpson's favor is that judges normally refrain from imposing the maximum possible sentence for first-time offenders and, despite the many controversies surrounding him over the last two decades, Simpson has not previously been convicted of a crime (though he did plead no contest in 1989 to a spousal abuse charge, meaning he neither contested the charge nor admitted guilt). Then again, at age 61, there is a strong probability that, absent a successful appeal and regardless of Judge Glass' leniency, Simpson will spend the remainder of his life in prison.
Given that OJ is not really a classic "first-time offender," I do not think his legal team should be (or will be) expecting Judge Glass to impose the minimum possible sentence. That said, it will be very interesting to watch how everyone involved handles the acquitted conduct issue this high-profile case presents. It will also be interesting for years to come to watch how the Nevada parole authorities deal with this prominent felon as he ages in prison.
October 5, 2008
Sentencing sleepers at start of sleepy SCOTUS term
As suggested in new SCOTUS preview articles from Adam Liptak in the New York Times and Tony Mauro in Legal Times, there are no obvious blockbuster cases on the Supreme Court's docket as the Justice start their new Term this Monday. Nevertheless, for sentencing fans, a few sleepers are already on the docket, and some additional sentencing cases seem likely to garner the Court's attention before the Term concludes next year.
The sentencing sleepers that I am watching as the new term begins include: (1) Oregon v. Ice, which deals with Blakely's applicability to consecutive sentencing determinations; (2) Van de Kamp v. Goldstein, which deals with prosecutorial immunity, (3) Chambers v. United States, which deals with the application of the Armed Career Criminal Act, (4) United States v. Hayes, which deal with the reach of the federal prohibition on certain misdemeanants possessing firearms, and (5) Harbison v. Bell, which deals with the federal appointment of counsel for seeking state clemency. (SCOTUSwiki is a great resource for more background on these cases and other aspects of the new SCOTUS Term.)
Of these five, only Ice and Chambers deal directly with sentencing issues, but the other cases could produce rulings that have significant sentencing echoes. But all these pending matters are sleepers because I think it is unlikely the Justices will be inclined to issue truly ground-breaking opinions in any of these cases. Still, one can never be sure about what might come of these cases or others in a Term with a docket already filled with lots of criminal action (as noted in this new article by Marcia Coyle at The National Law Journal).
Some related SCOTUS docket posts:
- Justice Alito jumping out of the cert pool!!
- More on Justice Alito's climb out of the cert. pool
- Patrick Lett's case (and a few other notable sentencing cases) among "Petitions to Watch"
- Roberts, the cert pool, and sentencing jurisprudence
- New Justices content with their dip in the pool
- What SCOTUS should be doing
- 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 SCOTUS docket dynamics)
UPDATE: How Appealing has collected lots of SCOTUS pre-game press coverage over here.
New Hampshire latest state exploring incarceration alternatives
As detailed in this AP article, New Hampshire can be added to the states seriously exploring alternatives to incarceration. Here are a few details:
New Hampshire is involved in multiple efforts to evaluate the benefits of alternative sentencing programs for nonviolent offenders. A commission that includes government officials, legal experts and county, prison and mental health care administrators met twice last month to discuss how the state could save money through programs that keep nonviolent offenders out of jail.
"We wanted to get together the people who know the most about these issues and take a judicial approach to how we can deal with inmates convicted of crimes when they are not violent and ask, ’Is sending them to a prison cell the best way we can be dealing with our criminal justice obligations?’" said state Sen. Maggie Hassan, D-Exeter, who sponsored the bill creating the commission....
Next month, a two-day conference will bring county and state leaders together to exchange ideas on creating statewide sentencing alternatives for nonviolent offenders with mental illness or drug dependency. The New Hampshire judicial branch recently was selected as one of four jurisdictions in the country for a national project designed to help states improve court responses to people with mental illness, and the president of the New Hampshire Bar Association said she is making the issue a top priority.