October 28, 2008
Law prof fears "mass freeing of criminal defendants"
Yesterday in this post I noted this new op-ed authored by Senator John McCain in which the Senator asserts that Sentaor "Obama's judges would coddle criminals." Today, Professor Steven Calabresi, in a somewhat insightful and somewhat wacky op-ed in the Wall Street Journal, takes the anti-Obama rhetoric up a notch. Specifically, Professor Calabresi contends that if Senator Obama becomes President and appoints a large number of federal judges, "we could possibly see ... the abolition of capital punishment and the mass freeing of criminal defendants."
I was intrigued when Senator McCain promised that we might soon be seeing new judges coddling criminals, but I am really taking notice — as must be criminal defendants ranging from Senator Ted Stevens to Jeff Skilling from George Ryan to Conrad Black from Duke Cunningham to Tom Noe — now that a distinguished law professor is indicating that we might soon experience, as a result of new judicial appointment, "the mass freeing of criminal defendants."
I expect some hyperbolic tough-on-crime rhetoric coming from politicians like Senator McCain and former Mayor Rudy Giuliani (heard on recent robocalls). But I am both sadded and very disappointed to see this kind of silly over-the-top rhetoric coming from law professors. Though I know this is an exciting time legally and politically, I think everyone should just take a deep breath.
"What pardons will Bush issue?"
The title of this post is the title of this local article, which asks what is likely to be a hot questions in lots of circles a little more than a week from today. The article is focused on the possibility for preemptive pardons for people responsible for carrying out your administration's interrogation policies, but of course the question raises issues that go far beyond questions related to the lawfulness of some of the Bush Administration's activities.
Of course, as of late yesterday, a new name may have appeared on would-be pardon short lists: Senator Ted Stevens. I have had a fun time speculating about whether President Bush ought to seriously consider a pardon or commutation for Senator Stevens, especially if he were to win re-election. But, P.S. Ruckman is already on this story through this post, titled "Context: Convicted Senators Who Were Pardoned ... Zero."
Other well-known defendants who have reason to be thinking about this question include Sccoter Libby, the Border Agents, Marion Jones, Duke Cunningham, Jonathan Pollard and many more. Again, P.S. Ruckman is all over these matters with this post, titled "Watch List: Crunch Time Ahead."
Some recent related posts:
- A profile of Prez pardons as we enter clemency season
- Will Prez Bush become merciful again as his term concludes?
- Federal clemency news and notes
More scholarship to add to the fall reading pile
Thanks to this post at Co-op, I see there are these two must-reads for sentencing fans appearing in the October 2008 issue of the William & Mary Law Review:
- Giovanna Shay & Christopher Lasch, Initiating a New Constitutional Dialogue: The Increased Importance Under AEDPA of Seeking Certiorari from Judgments of State Courts
- David C. Holman, Death by a Thousand Cases: After Booker, Rita, and Gall, the Guidelines Still Violate the Sixth Amendment
Prosecuting prison rape
I just came across this interesting looking pieceon SSRN, titled "Prosecuting Sexual Violence in Correctional Settings: Examining Prosecutors' Perceptions." Here is the abstract:
The Prison Rape Elimination Act of 2003 (PREA) is the first piece of federal legislation, which expressly and exclusively addresses sexual abuse of persons in custody. Notwithstanding passage of the Act, there is clear belief, echoed by correctional leaders, that prosecutors are reluctant at best, and unwilling at worst, to prosecute cases of sexual violence in correctional settings. In order to gather information on prosecutor interest in and capacity to prosecute these cases, the National Institute of Corrections Project on Addressing Prison Rape at the Washington College of Law the (the NIC/WCL Project) collected data from state and federal prosecutors.
This article draws on that research and data to examine the perception that prosecutors are unwilling to prosecute cases of sexual violence in custody, discusses barriers to prosecution identified by prosecutors regarding investigating and prosecuting allegations of sexual abuse of persons under correctional supervision, and recommends tools to overcome those barriers.
A perfect Sixth Amendment test case for SCOTUS?
In separate opinions in recent years, Justice Stevens has suggested that he might like to overrule the Harris decision allowing judges to find facts triggering mandatory minimum sentence, and Justices Scalia and Thomas have indicated in various ways their concerns about the preservation of Sixth Amendment principles in the application of the Booker remedy. In addition, the entire Court has seemed none too impressed with the Eighth Circuit's work in crack sentencing cases.
For all these reasons (and a few others), I view the Eighth Circuit's work today in US v. Webb, No. 08-1331 (8th Cir. Oct. 28, 2008) (available here) has some real cert potential. The first paragraph of the Webb opinion reveals why the case could be of great interest to any Justice still serious about the reach and application of Sixth Amendment jury trial rights at sentencing:
Micaiah Rey and Geno Webb were convicted of conspiracy to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1), and 846. In response to an interrogatory, the jury found beyond a reasonable doubt that the conspiracy involved more than five but less than fifty grams of cocaine base. For sentencing purposes, the district court determined by a preponderance of the evidence that the conspiracy involved more than fifty but less than 150 grams of cocaine base. Accordingly, Rey was sentenced to 240 months’ imprisonment, and Webb was sentenced to 130 months’ imprisonment. Rey and Webb appeal, contending that their sentences must be based on the amount of drugs found by the jury and not the amount found by the judge. We affirm.
Some sentencing questions after Senator Stevens conviction
There are so many ideas and questions bouncing in my head in the wake of US Senator Ted Stevens of Alaska being convicted Monday afternoon on all seven counts in his federal corruption trial. Here are just a few of these questions:
1. What will be Senator Stevens' precise guideline range as calculated by the probation office and prosecutors? (And might there be a dispute over the guideline calculations as there was in the Scooter Libby case?)
2. Will Senator Stevens seek a "traditional" downward departure from the guidelines based on, say, his age or other offender characteristic that the guidelines deem "not ordinarily relevant"?
3. Which 3553(a) factors will Senator Stevens seek to emphasize if/when seeking a below-guideline sentence?
4. If sentenced to any prison term, will Senator Stevens get bail pending appeal? (Recall that it was the denial of bail pending appeal that prompted the timing of President Bush commutation of Scooter Libby's prison sentence.)
5. Might President Bush exercise his clemency powers to pardon Senator Stevens or to commute his sentence?
6. Should anyone eager for progressive federal sentencing reforms now actually root for Senator Stevens to be re-elected on the theory that he (and his many Senate friends) might now be much more sympathetic to argument that federal judges need to have broad discretion to consider mitigating factors at sentencing?
Japan continues its stepped up pace of executions
Here is a good trivia question for the sentencing cocktail parties: What do Japan and Texas have in comming these days? The answer, as detailed in this BBC News story and this AP story, is that both jurisdictions are now executing death row defendants at the same accelerated pace.
I have previously blogged here about the busy times for the death chamber in Texas. Here are details from the BBC about Japan's recent execution surge:
Japan has hanged two convicted murderers, including one who strangled two schoolgirls with his bare hands. The latest executions bring the total number of death penalties implemented this year to 15, thought to be the highest total in many years. Last year, Japan executed nine convicted killers.
Japan is one of the few countries in Asia which has stepped up its use of the death penalty, despite international condemnation.
The two people hanged on Tuesday were Michitoshi Kuma, 70, and Masahiro Takashio, 55, the justice ministry said in a statement. Kuma kidnapped two seven-year-old girls on their way to school in southern Japan in February 1992 and strangled them, dumping their bodies in the mountains. Takashio was convicted of breaking into a house in northern Japan in March 2004 and stabbing a 55-year-old woman and her 83-year-old mother to death before stealing 50,000 yen, or about $500....
Three people were executed in September. Executions are not announced beforehand and are carried out in secret, usually with strong local support....
[W]hile rights groups decry the use of the death penalty, without exception, public opinion in Japan seems to support its continued use. It is thought that about 100 convicted murderers and others on death-row are awaiting execution.
Interesting legal developments concerning sex offender regulations
Two interesting legal stories developed Monday concerning legal challenges to certain state sex offender laws:
- The story from Georgia concerns sex offender registries and is well covered by Sex Crimes in this post headlined "Georgia Supreme Court Rules that Registration Requirements Unconstitutionally Vague as Applied to Homeless."
- The story is from Missouri concerns a new law prohibiting sex offenders from "all Halloween-related contact with children" and is well covered by the New York Times in this article headlined "Judge Blocks Rules Limiting Sex Offenders on Halloween"
October 27, 2008
Senator Stevens convicted on all counts
As detailed in this CNN report, US Senator Ted Stevens of Alaska was convicted Monday afternoon on all seven counts in his federal corruption trial, and thus he now has to think about the federal sentencing guidelines and judicial sentencing discretion in a whole new way. Here are more particulars:
The jury found Stevens guilty of "knowingly and willfully" scheming to conceal on Senate disclosure forms more than $250,000 in home renovations and other gifts from an Alaska-based oil industry contractor. Stevens faces a maximum sentence of up to to 35 years in prison -- five years for each of the seven counts.
Legal experts note the judge has the discretion to give Stevens as little as no jail time and probation when he is sentenced....
As Stevens left the defense area, he and his wife exchanged a kiss on the cheek. Stevens said: "It's not over yet." Stevens' defense team said they will move for a new trial....
The longest-serving Republican senator in history, Stevens becomes the first senator to be convicted of a felony since 1981. Judge Emmet Sullivan has scheduled a hearing on any pending motions for February 25.
I wonder if Senator John McCain, who has expressed concern in an new op-ed about judicial sentencing discretion and about judges who "coddle criminals," will be urging Judge Sullivan not to exercise his discretion to show his Senate colleague any leniency.
Some related posts:
- Will Senator Ted Stevens soon be thinking extra hard about sentencing laws he helped pass?
- Members of Congress like judicial discretion ... when their friends are sentenced
UPDATE: I have not yet seen any speculation about what kind of guideline sentence Senator Stevens might be facing, though I have previously guessed he would be facing a few years because of the potential application of various upward adjustments. I have not frequently worked through the guidelines for corruption, so I would be grateful to readers using the comments to speculate on the applicable sentencing range.
Re-examining compassionate release
One important sentencing topic that rarely gets enough scholarly consideration is the legal doctrines that permit "compassionate release" for prisoners under certain limited circumstances. I was thus surprised and pleased to discover this new paper on SSRN by William Berry, titled "Extraordinary and Compelling: A Re-Examination of the Justifications for Compassionate Release." Here is the abstract:
Federal law, unbeknownst to many, includes a provision that permits the immediate release of federal prisoners. This safety valve provision requires that the Director of the Bureau of Prisons make a motion on behalf of the prisoner in order to secure the prisoner's compassionate release. Far from being a veiled version of parole, this compassionate release provision is to be used only in circumstances deemed "extraordinary and compelling." While the Bureau of Prisons has read this language very narrowly for many years, considering only terminally ill inmates as candidates for compassionate release, the Sentencing Commission modified its Guideline commentary in November 2007, defining for the first time criteria for determining what should be deemed "extraordinary and compelling." Specifically, the Commission's guidelines provide that extraordinary and compelling circumstances can include: (1) terminal illness, (2) debilitating physical conditions that prevent inmate self-care, and (3) death or incapacitation of the only family member able to care for a minor child.
This article considers the theoretical justifications for compassionate release in an attempt to develop a framework to evaluate what circumstances rise to the level of "extraordinary and compelling." First, the article argues that the State's purposes for punishment, whether retributive or utilitarian, do not by themselves justify the compassionate release of inmates. As a result, this article proposes that the basis for compassionate release should lie in the broader interests of the State. Thus, this article argues that the non-penal interests of the State (in light of the "extraordinary and compelling" factual circumstance) must clearly outweigh the State's penological interest in the inmate serving his/her entire sentence before compassionate release may be justified.
New op-ed from Senator McCain talking about DOJ and judges
A helpful reader passed along this new op-ed authored by Senator John McCain in which he discusses the future of the Department of Justice and judicial appointments. Here are snippets that might especially intrigue (and annoy) sentencing fans:
Lax enforcement policies, judges who legislate from the bench and lack of support for law enforcement personnel all continue to force our innocent citizens behind the barred windows of their homes and allow criminals to roam free.
And now drugs are bringing waves of crime and organized gang activity to rural areas thought to be nearly immune from such problems. The federal government must both support state and local law enforcement and effectively enforce federal laws designed to root out violent crime, organized gangs and other interstate criminal activity.
None of these law enforcement efforts will succeed without a judiciary that understands its proper role and its proper mission. Senator Obama would appoint liberal activist judges and supply them with greater sentencing discretion. I will appoint judges who will strictly interpret our Constitution. Senator Obama's judges would coddle criminals. I will appoint judges who will hold criminals accountable.
If allowed a follow-up question, I would ask how the Supreme Court's Heller Second Amendment ruling fits into all of this rhetoric. Judges Posner and Wilkinson have described Heller as an example of legislating from the bench, and I believe that local DC police supported the gun ban struck down in Heller.
In addition, I am wondering exactly why John McCain believes that "Obama's judges would coddle criminals," given that most of the major pro-criminal rulings in recent years were authored by Supreme Court justices appointed by Ronald Reagan. Justice Antonin Scalia coddled a brutal wife-beater with his decision in Blakely and an attempted murderer with his decision in Crawford; Justice Anthony Kennedy coddled a child rapist with his decision in the Kennedy child rape case and coddled a juve killer with his decision in Roper.
Some related posts:
- FAMM suggests sentencing questions for the candidates
- Why is Senator Jim Webb the only national figure focused on the prison economy?
- "Real commander needed for the war on drugs"
- Politics and the war on drugs
- FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"
Noticing the new ex-felon voting block
This Los Angeles Times article spotlights a notable new voting block: former felons who have regained the right to vote. Here are snippets from the article:
At least a dozen states have changed their laws since 2003 to allow more felons who are no longer in prison to cast ballots, reversing a long-standing trend. And though studies show that felons lean Democratic, states led by Republican governors have loosened their voting rules, including Alabama, Nebraska, Nevada and Florida -- where officials have learned from the 2000 presidential race just how close an election can be.
States restored voting rights to about 760,000 felons in the last decade, according to tallies by voting rights groups, but data on how many have registered to cast ballots are sketchy. Whether these voters could tip an election in a presidential swing state is a matter of speculation.
But the new laws have produced aggressive registration drives this election season in the most unconventional of places -- soup kitchens, halfway houses, even Alabama state prisons. "This is the first time in history that some of these places have ever seen this kind of civic activity," said the Rev. Kenneth Glasgow, who served time in prison. He now heads an Alabama nonprofit faith-based organization and has led efforts to register the state's current and former convicts....
In some states, voting rights activists have been joined by evangelical Christian groups who argue that forgiveness plays an important role in rehabilitating criminals. "We try to challenge the conservatives," said Pat Nolan, vice president of Prison Fellowship, a conservative Christian justice reform group founded by Charles Colson, the former Nixon administration aide who was convicted of Watergate-related crimes. Nolan is a former state assemblyman from Glendale who served time in federal prison for racketeering. "Why, after someone has paid their debt, do we continue to punish them?"
According to advocacy groups, about 5.3 million Americans, or 1 in 41 adults, have lost their right to vote because of a felony conviction.
October 26, 2008
A profile of Prez pardons as we enter clemency season
Former pardon attorney Margaret Colgate Love sent me a terrific little document providing a "a very quick and dirty profile of the 157 individuals who have been pardoned by President Bush to date, as well as the five individuals whose sentences have been commuted." The full document can be downloaded below, and here are a few snippets:
I found that of the 157 full pardons issued by President Bush to date, almost 2/3 went to people whose convictions had occurred more than 20 years before they were pardoned. Only a handful of pardons went to people convicted less than ten years before the pardon. Every single pardon recipient had fully served their sentence years before they were pardoned. Twenty-one of the pardon grants went to people convicted more than 35 years before, and eight of those pardoned were convicted in the 1940s and 50s.
By far the most frequently pardoned offenses are those falling into the general category of theft and fraud. But President Bush has also pardoned 29 drug offenders, 11 people convicted of a firearms-related offense, and eight tax evaders. In addition to the usual complement of bootleggers (11) and car thieves (7), there are teller embezzlers, thieving postal workers, gamblers, illegal dumpers, draft dodgers, and election law violators. The batch also includes the obligatory odometer cheat....
Only 18 of the 157 people pardoned spent more than two years in prison, and 16 of these were convicted of drug offenses. (The other two were an S&L fraudster sentenced to three years, and an armed bank robber sentenced to 12 years’ imprisonment.) Most surprising to me, more than two thirds of those pardoned spent no time in prison at all....
Something else that may be surprising to some, most of those pardoned (113) were not represented by a lawyer. Only one of the five individuals whose sentence was commuted was represented by counsel in connection with his clemency application....
Word on the street is that there will be more pardons after the election – and possibly even some before it. I would not be surprised to see a difference in the profile of those receiving pardons in the final weeks.
In praise of the ABA's sentencing institute
As noted in this post at WCCP, the "ABA's recent sentencing institute was packed full of wonderful discussion on the effect of Booker, Rita, Gall, and Kimbrough, as well conversations on many other issues related to sentencing." I was both grateful and fortunate to have a chance to speak at lunch, and it was exciting to talk about sentencing politics inside the beltway only days before the election. It was also a joy to participate on a great morning panel and to hear from so many others doing important sentencing work.
I hope the ABA might seriously consider doing this kind of sentencing institute annually. The topic certainly merits regular and sustained attention and, thanks to courts and commissions and legislatures, key sentencing issues and doctrines now seem to change every year.