November 15, 2008
"Changing Lives, Changing Minds"
The title of this post is the title of this intriguing new blog, which I learned about through this e-mail (which I have received permission to reprint):
I am the marketing assistant for Changing Lives Through Literature, an incarceration alternative founded on the power of literature to transform lives of criminal offenders. Earlier this month, we started a new blog devoted to criminal justice reform, alternatives to incarceration, and the influence of literature on our lives. The blog is called Changing Lives, Changing Minds and is updated twice a week at http://cltl.umassd.edu/blog. As part of our blog, we feature links to programs with similar interests and missions to Changing Lives Through Literature.
We've included Sentencing Law and Policy in our link list and hope you will consider linking Changing Lives, Changing Minds on your blog in return. We are interested in the work that Sentencing Law and Policy is doing. We encourage you (and members of your organization) to check out our blog and consider writing a 500-750 word guest post related to criminal justice reform, incarceration alternatives, or the power of literature to transform lives. The post does not have to be original -- if you have already written a piece (for your own blog or elsewhere) that you feel would be appropriate, we'd be more than happy to publish it on our site. In all cases we would link back to the Sentencing Law and Policy site. I hope you will check out our site and consider writing a guest post. Keep up the great work!
Though I do not have an "organization" (unless you count my family cat who often keeps me company when I'm blogging from home), I surmise from this openning post that this new blog would welcome guest posts from regular readers/commentors on SL&P.
More proof that pardon scandals rarely get completely forgotten
The latest proof that bad pardoning actions can cast a long shadow comes from this new article at Politico, headlined "Clinton scandal figure on Justice team." Here are a few details:
President-elect Barack Obama tapped a major campaign bundler and a former U.S. attorney who got caught up in Bill Clinton's 2001 pardons scandal to serve on the 14-member Justice Department review team announced Friday.
Alejandro Mayorkas, a former U.S. attorney in California, drew controversy in 2001 for calling the White House on behalf of Carlos Vignali, a convicted drug dealer who was seeking a presidential commutation.... The House Committee of Government Reform cited Mayorkas in a report critical of Southern California politicians who pushed Clinton to release Carlos Vignali, saying Mayorkas should have been aware of Horacio Vignali's questionable background, according to a Los Angeles Times story published in March 2002.
Mayorkas told the newspaper that the criticism was fair, and he did not know the elder Vignali very well. "It is reasonable to expect that someone in my position would do his or her due diligence to learn that information," he told the Los Angeles Times. "I made a mistake."
The Obama transition team did not immediately respond to requests for comment about Mayorkas, who will serve on the Justice Department review team.
The saddest aspect of this story is the fact that a past pardon scandal is overshadowing the important decision by the Obama transition team to create a "team of 14 law scholars, corporate attorneys and former Clinton appointees who will look at civil rights, legal services and election law." The full review team is listed here at change.gov.
Another notable example of capital plea bargaining
Thanks to this post at C&C, I saw this news article from Utah describing another case in which the threat of the death penalty helped secure a ready and efficient resolution to a murder charge. Here are the basics from the start of the news report:
A Sanpete County man avoided the death penalty Thursday by admitting to strangling his former girlfriend in April, and then killing a man he hated. Donald Bret Richardson pleaded guilty in 6th District Court to two counts of first-degree felony aggravated murder.
As part of a plea deal, prosecutors agreed to recommend that Richardson, 48, serve life in prison without the possibility of parole. Defense attorneys James Valdez and McCaye Christianson said Thursday the resolution accomplished their goal of saving Richardson's life. "For a long time he wanted the death penalty," said Valdez. Added Christianson: "It's a peaceful resolution to a horrible, tragic episode."
As regular readers know, I think an important and underexamined aspect of the death penalty is its impact on plea bargaining and other pre-trial aspects of the investigation and prosecution of horrible murders.
Some related posts:
November 14, 2008
SCOTUS takes up three new criminal cases
The Supreme Court today, as detailed in this SCOTUSblog post, took up three new federal criminal cases. Though none of the cases seem to be blockbusters, they all merit watching in 2009. Here are the basic thanks to Lyle Denniston's great reporting at SCOTUSblog:
[T]he Court will decide whether an individual can be retried on charges on which a jury could not agree in an earlier trial in which the jury acquitted on other charges (Yeager v. U.S., 08-67), whether using a telephone or e-mail to buy drugs for personal use converts that minor possession crime into a felony, with heavier penalties (Abuelhawa v. U.S., 08-192), and whether a federal law imposing an enhanced sentence for firing a gun during a drug crime or other violent crime applies if the gun was fired accidentally or involuntarily (Dean v. U.S., 08-5274).
The cases probably will be argued in the session that begins Feb. 23 and continues through March 4....
The [Yeager] case involving partial convictions and acquittals is a test of the application of a 1970 Supreme Court decision, Ashe v. Swenson, ruling that the Fifth Amendment’s ban on being tried more than once for the same crime includes the doctrine that an issue once raised and litigated cannot be raised in a later case — the doctrine of “collateral estoppel” or “issue-preclusion.”...
In agreeing [in Abuelhawa] to rule on the escalation of a drug-possession misdemeanor crime into a felony, when the purchase of drugs was done by using a cellphone or other communications device, the Court was confronted with another split in the lower courts....
The newly granted firearms case [Dean] involves a federal law that provides for a ten-year minimum sentence if a gun is fired during a crime of violence or a drug-trafficking crime. The issue is whether the added sentence is to be imposed when a gun went off without the accused having intend to fire it.
I could make an argument that all three cases in essence involve sentencing issues, since there is no dispute that the defendants in all three of these cases committed some federal crime. But, though I can put a sentencing spin on all federal criminal cases, the Deancase involve the application of a statutory mandatory minimum in a setting that could make it especially noteworthy for various reasons.
Friday federal sentencing lesson: do not trust a Quaker ... a U Penn Quaker, that is
Because I graduated from two rival institutions, I may get too much schadenfreude from stories about University of Pennsylvania Quakers getting into serious federal sentencing trouble. Still, I cannot help but wonder what Ben Franklin might say, in the wake of this recent story about the Penn student hacker and child-porn downloader, about this new story concerning the sentencing of Penn alum involved in identity fraud. Here are the basics:
University of Pennsylvania graduate Edward Anderton of Everett, Wash., admitted teaming with his jet-setting college girlfriend, Jocelyn Kirsch, to steal the identities of friends and neighbors in Philadelphia in 2006 and 2007.
Together, they gleaned more than $116,000 in goods and services. They used the money for expensive salon visits, fancy dinners and lavish trips to places such as Paris and Hawaii. A U.S. attorney has called them "poster children" for identity fraud.
More details about the case can be found in this news report, which indicates that the Bonnie to Anderton's Clyde has already been sentenced harshly:
Kirsch, 23, a former Drexel University student who drew heavy media coverage when her photo, posed in a bikini, was posted on the Internet, was sentenced last month to 70 to 81 months in prison by U.S. District Judge Eduardo C. Robreno.
Kirsch, who experts testified has serious psychological problems and a history of retail theft, including charges she used a stolen credit card while on bail awaiting a federal court hearing, faced a longer potential prison term than Anderton...
In a federal court filing this month, Anderton's attorney, Lawrence S. Krasner, argued that Anderton deserves a lesser sentence than his former paramour because his criminal conduct lasted only as long as the relationship with Kirsch. Krasner wrote that Anderton has worked since his guilty plea saving money to pay victim restitution....
Assistant U.S. Attorney Louis D. Lappen filed a sentencing memo urging Robreno to imposed a sentence within the federal sentencing guideline range of 57 to 65 months.
Perhaps Professors at U Penn need to start reminding all students of Penn's motto, "Leges sine moribus vanae," which roughly means "Laws without morals are useless."
UPDATE: According to this new press report on the sentencing, it seems that Anderton got a below-guideline sentence:
Edward K. Anderton, the honor student and University of Pennsylvania economics grad whose life was consumed by his romantic and criminal partnership with his girlfriend, was sentenced this afternoon to 48 months in prison by a federal judge.
Anderton, 25, made an emotional, self-abasing 20-minute statement to the judge in which he apologized to his victims, his parents and family, and others that he said his conduct harmed.
DC Circuit splits over reasonableness of probation sentence for tax cheat
The DC Circuit issues relatively few sentencing decisions, but those it hands down tend to be quite thoughtful. Today's split panel decision in US v. Gardellini, No. 07-3089 (DC Cir. Nov. 14, 2008) (available here), is no exception. Here is how the majority opinion starts:
This case exemplifies our deferential substantive review of sentences – including outside-the-Guidelines sentences – in the wake of Booker v. United States, 543 U.S. 220 (2005), and Gall v. United States, 128 S. Ct. 586 (2007). The Sentencing Guidelines range for defendant Gardellini’s tax offense was 10 to 16 months. The District Court imposed probation and a fine. On appeal, the Government challenges that below-Guidelines sentence as substantively unreasonable. But the Government’s Guidelines-centric appellate argument overlooks the twin points that the Supreme Court has stressed in its recent sentencing decisions: The Guidelines now are advisory only, and substantive appellate review in sentencing cases is narrow and deferential. As the case law in the courts of appeals since Gall demonstrates, it will be the unusual case when we reverse a district court sentence – whether within, above, or below the applicable Guidelines range – as substantively unreasonable. Based on the principles set forth in Booker and Gall, we affirm the District Court’s judgment in this case.
Here is a snippet from the start of the dissenting opinion:
[I]n sentencing Gardellini, the district court gave no weight to one of the goals stated by 18 U.S.C. § 3553(a)(2)(B): deterring others from committing similar crimes. As a result, whereas the Sentencing Guidelines set a range of 10–16 months imprisonment, the court sentenced Gardellini to probation and a $15,000 fine. (The probation, I should note, will be served in Belgium, where his wife is an EU official. He will thus not be subject to the usual restrictions inherent in probation, such as susceptibility to searches, which the Supreme Court has found important in evaluating the reasonableness of a probation sentence. See Gall v. United States, 128 S. Ct. 586, 595-96 (2007).) I believe disregard of the deterrence factor was an abuse of discretion and would therefore reverse and remand for resentencing.
As goes Maryland, so goes the nation on capital punishment?
The stories surrounding Maryland's policy debates over the death penalty have been dynamics and interesting for quite sometime. But now that a commission appointed by Maryland's governor has formally recommended abolishing capital punishment, any and everyone interesting in death penalty law and policy ought to be keeping a very close eye on what goes on in this state. Here are the latest specifics from this Baltimore Sun article:
Armed with a recommendation from a state commission to abolish Maryland's death penalty, opponents who have long sought to end the practice are hoping to finally put the matter to rest by pressuring key lawmakers to switch their votes....
Death penalty opponents plan to be active in the districts of lawmakers who might be swayed. They are likely to enlist the likes of Sister Helen Prejean, whose story of counseling a death-row inmate became the film Dead Man Walking, and Baltimore Archbishop Edwin F. O'Brien. Cardinal William H. Keeler, who previously held that post, has personally reached out to Catholic lawmakers on the issue.
"We're going to make it as difficult as a possible for members to vote against the death penalty repeal," said Richard J. Dowling, a lobbyist for the Maryland Catholic Conference. "We're not going to pull any punches. We're going to pull out all the stops."
It's unclear what kind of impact the commission's final report, due next month, will have on the debate. The Maryland commission is basing its recommendation in part on racial and jurisdictional disparities in the application of capital punishment -- findings contained in previous reports.
One reason death penalty abolitionists are wise to "pull out all the stops" in Maryland is because national legislators and activists in and around DC will not be able avoid watching (and learning) from what happens in Maryland. And, unlike in Vegas, what happens in Maryland on this issue likely won't stay in Maryland. If Maryland does abolish the death penalty legislatively, capital punishment abolitionists likely will be emboldened to take their anti-death penalty fight nationally. But, if Maryland is unable to follow New Jersey's lead here, I think it will be a real significant blow to the anti-death penalty movement.
Developing criminal justice "wish list" for the Obama Administration
Over at the White Collar Crim Prof Blog, Ellen Podgor has this terrifically interesting "Wish List to President Barack Obama & The Next AG." Ellen's wish list is lengthy (even though only focused on white-collar topics), and here are a few of her provocative and thoughtful wishes that caught my eye:
- Provide better transparency, especially with items like deferred prosecution agreements -- put them all online for everyone to see
- Support efforts to bring sentences in line with those given in most civilized countries for white collar offenses
- Develop educational programs for youths to teach them what is considered a crime with respect to computer usage
- Set up an independent board to give grants to the press for investigative reporting
- Support efforts to revise the Criminal Code
Needless to say, I could add dozens of my wishes to this list, especially if I were to branch out beyond white-collar topics. But on a Friday, I am especially interested to hear some criminal justice wishes from readers.
So, dear readers, please use the comments for expressing your wishes on criminal justice topics for the next Administration. Though I seriously doubt the President-Elect or his future AG regularly read this blog, one never knows how many cyberspace genies might try to help make a good criminal justice wish comes true.
November 13, 2008
"Distributive Principles of Criminal Law: Who Should be Punished How Much?"
Via e-mail, I just received an announcement about Paul Robinson's new book, which is titled "Distributive Principles of Criminal Law: Who Should be Punished How Much." This Amazon entry provides links to small parts of the book and this product description:
The rules governing who will be punished and how much determine a society's success in two of its most fundamental functions: doing justice and protecting citizens from crime. Drawing from the existing theoretical literature and adding to it recent insights from the social sciences, Paul Robinson describes the nature of the practical challenge in setting rational punishment principles, how past efforts have failed, and the alternatives that have been tried. He ultimately proposes a principle for distributing criminal liability and punishment that will be most likely to do justice and control crime.
Paul Robinson is one of the world's leading criminal law experts. He has been writing about criminal liability and punishment issues for three decades, and has published dozens of influential articles in the best scholarly journals. This long-awaited volume is a brilliant synthesis of social science research and legal reasoning that brings together three decades of work in a compelling line of argument that addresses all of the important issues in assessing liability and punishment.
"Behavioral Criminal Law and Economics"
The interesting title of this post is the title of this interesting looking new paper just posted on SSRN. Here is the abstract:
A behavioral economics literature identifies how behaviorally-derived assumptions affect the economic analysis of criminal law and public law enforcement. We review and extend that literature. Specifically, we consider the effect of cognitive biases, prospect theory, hedonic adaptation, hyperbolic discounting, fairness preferences, and other deviations from standard economic assumptions on the optimal rules for deterring potential offenders and for regulating (or motivating) potential crime victims, legislators, police, prosecutors, judges, and juries.
Today's dog-bites-man headline in the sentencing world
This new story over the AP wire caught my eye because of its shocking headline: "Anne Hathaway's ex-boyfriend not enjoying prison." Here's more:
Italian con man Raffaello Follieri, who went from dating actress Anne Hathawayto serving a prison term for fraud, isn't enjoying the "unspeakably unsanitary" conditions at a federal jail in Brooklyn. Follieri's lawyer sent a letter to a judge this week complaining about the facility....
The lawyer, Flora Edwards, said things are so bad, it has made Follieri ill. So far he has had a fever, blood in his urine, intestinal problems and shortness of breath. Edwards asked the judge to have the 30-year-old transferred back to the federal jail in Manhattanwhere he was previously held. The judge asked the government to look into Follieri's complaints.
Though the silly headline to this story was what first caught my eye (does anyone "enjoy" prison?), the fact that Follieri's complaints are making national news and bringing attention to prison conditions is also noteworthy. Indeed, this AP story reminds me why I sometimes experience schadenfreude when celebrity defendants (with well-compensated attorneys) are exposed to the ugly underbelly of our modern criminal justice system.
Ninth Circuit rocks while reviewing conditional plea efforts
A decision by the Ninth Circuit today in In re: Gallaher, No. 07-74593 (9th Cir. Nov. 13, 2008) (available here) is blogworthy in part because it reviews some intricate procedural issues. But the ruling's openning paragraph also provides a good excuse for linking to this great clip of a great classic song as part of the great soundtrack of a great classic movie. Here is that paragraph:
In the classic words of the Rolling Stones, “You can’t always get what you want.” The Rolling Stones, You Can’t Always Get What You Want, on Let It Bleed (Decca Records 1969). A defendant who chooses to take a conditional plea cannot always assume the court will grant its consent. And, a district court that wants to review a defendant’s Presentence Report (PSR) cannot do so until the defendant has granted his consent or entered a plea. Consequently, we are forced to disappoint both the district court and the petitioner in this appeal. Because the district court exercised its discretion to deny its consent to Gallaher’s conditional plea, the petition for a writ of mandamus must be denied. However, because the district court erred by prematurely reviewing Gallaher’s PSR, we remand for further proceedings, and reassign this case to a new judge to consider de novo whether to accept Gallaher’s conditional plea.
A criminal justice blueprint for the new Prez that I hope gets followed
I received recently an e-mail announcing a new publication from the Center for American Progress Action Fund, entitled "Change for America: A Progressive Blueprint for the 44th President." This website explains this new document and its coverage, and it provides this link to ten chapters available for download. One chapter of special interest for sentencing fans is this one authored by Dawn Johnsen titled "Department of Justice: Restoring Integrity and the Rule of Law."
This whole chapter encouraging changes within DOJ should be enjoyable reading for anyone troubled by how the Justice Department has operated in recent years. And anyone eager for serious state and federal sentencing reform should be especially pleased by the last three pages of this chapter, which are devoted to "longer-term priorities." Here are some lengthy excerpts from this astute and effective part of CAP's blueprint for criminal justice change:
The attorney general should launch a coordinated set of initiatives that tackle the most fundamental and intractable problems in the criminal justice systems, both federal and state.... Although crime is largely a state and local responsibility, federal leadership can be enormously influential beyond the federal system through assistance that fosters innovation, supports research, and shares information about “what works” in combating crime....
Incarceration in the United States is an issue crying out for DOJ attention. After holding steady for most of the 20th century, the federal prison population increased 10-fold in the last 25 years. The United States at all levels of government incarcerates more of its population than any other nation in the world, both in terms of the incarceration rate and in absolute numbers....
The costs, both financial and social, are astronomical. DOJ should undertake affirmative efforts to decrease prison populations without endangering public safety. Again, states can provide useful models for each other and for the federal government. In response especially to budget crises, some states have successfully reduced incarceration rates without increasing crime. DOJ should study, disseminate, and implement best practices, which include increased and improved use of drug courts and treatment alternatives to incarceration....
DOJ should document the condition of indigent defense representation systems in the states, compile existing national and local standards for indigent defense systems and defense counsel, and bring stakeholders — judges, defenders, and prosecutors — together to devise solutions to the problem. Beyond this, DOJ should advocate for federal funding for state indigent defense systems analogous to funding for state prosecutorial functions....
DOJ should strive to remedy the terribly disparate racial impact of current criminal law enforcement efforts. Under both the federal and state systems, African Americans suffer gravely disproportionate treatment at every stage — stops, arrest, prosecution, conviction, and sentencing. The causes and solutions are complex. The consequences, however, are devastating, in terms of shockingly disparate rates of imprisonment, which translate into political disenfranchisement and exclusion from student loans, jobs, and other life opportunities....
The solutions typically should not be race based, but should address the harms of problems such as ever-lengthening prison terms and the failures of the war on drugs. Yet the gross disparate impacts on African Americans, and the perpetuation of the historic harms of discrimination, provide a special moral imperative for concerted attention to problems that harm us as a nation.
In addition, DOJ should pay special attention to how our criminal justice policies harm our nation’s youth, diminishing forever their life opportunities. Most obvious are extremely lengthy prison sentences and even life without parole imposed for crimes committed by juveniles. Another recent such trend is to put children convicted of sex offenses on public sex offender registries, in some cases for the rest of their lives, which in turn may be used to limit where they may live or work....
Some progress in resolving these and other fundamental criminal justice problems can be made in the first months of the new administration — and the effort certainly should begin then. But real change will take far longer. Criminal justice reform should remain a priority throughout the next administration, with the goal of a more just and humane criminal justice system that better protects the public.
Some recent related posts:
- How a new administration is likely to impact federal sentencing practice
- Why federal sentencing reformers must focus on the USSC and lower courts
- Are we on the verge of a new changed era concerning federal sentencing law and policy?
- "Smart on Crime: Recommendations for the Next Administration and Congress"
- FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"
Maryland commission urges abolition of state's death penalty
As detailed in this new article in the Baltimore Sun, a commission appointed by Maryland's governor has now "recommended abolishing capital punishment in Maryland, prompting hope among death penalty opponents that the General Assembly could end the 30-year practice when it convenes in January." Here is more from the article:
The Maryland Commission on Capital Punishment voted 13-7 to make the recommendation and also found that the death penalty carries the "real possibility" of executing innocents and may be biased against blacks. The commission's final report provides additional ammunition to O'Malley and other death penalty opponents in their uphill fight to stop state executions.
Previous repeal efforts have narrowly failed despite high-profile campaigns by O'Malley, a Catholic and ardent opponent of capital punishment. An O'Malley spokesman said tonight that the Democratic governor looks forward to reading the final report, which is due next month. Tonight's decision "now places a burden on those who would like to defend the system," said Sen. Jamie Raskin, a Montgomery County Democrat and panel member who voted with the majority.
Death penalty proponents took comfort in what they characterized as a close vote, considering that some members of the commission were appointed by an ardent anti-death penalty governor. "Tonight was a night to really figure out where people actually stood," said Baltimore County State's Attorney Scott D. Shellenberger, a panel member who plans to write the minority's opinion to be included in the final commission report. "The vote is a testament to how close this issue is in the state of Maryland."
Despite the panel's recommendation and O'Malley's view, the final decision rests with the General Assembly, where a key Senate panel has repeatedly voted down a death penalty repeal, preventing it from reaching the chamber's floor....
The 23-member commission voted down a proposed amendment to keep the death penalty for people who kill correctional officers or police officers. The panel voiced unanimous or strong support for seven of eight findings it was charged with exploring. Among these:
- Racial and geographic disparities exist in how the death penalty is applied
- Death penalty cases are more costly than non-death penalty cases and take a harder toll on the survivors of murder victims
- There is no persuasive evidence that risk of execution is a deterrent to crime, and the unavailability of DNA evidence in all cases does not eliminate the "real possibility" of wrongly executing an innocent person
As more Alaskan votes are counted, Senator Stevens may have more time to focus on sentencing issues
As documented by this Alaska webpage and as further explained in this post at 538, the counting of additional votes in Alaska has led to a new "leader in the clubhouse" in the Senate race between Ted Stevens and Mark Begich. Though Stevens had been ahead by more than 3000 votes before the latest batch of votes were counted, Begich is now ahead by nearly 1000 votes. In addition, folks in the know seem to think that Begich is to have an advantage in thousands of votes that still need to be counted.
Though I was genuinely looking forward to the possibility of a felon being a sitting member of the U.S. Senate, it would probably be good for the country (as well as both political parties) not to have to figure out the political fate and future of Stevens had he been reelected. And, assuming Begich does prevail, Stevens and his team of lawyers can also benefit by now being able to devote all their time and energy to all the complicated legal issues sure to arise in his sentencing and appeals.
Some recent related Stevens posts:
- Senator Stevens convicted on all counts
- Some sentencing questions after Senator Stevens conviction
- How should (and will) Senator Stevens' political past and future impact his sentencing?
- Senator Ted Stevens not (yet) disenfranchised
- Will Senator Stevens pay at sentencing for election-related comments?
- Another appellate issue for Senator Stevens?
- Has a mega-jury in Alaska essentially rejected the DC jury's conviction of Senator Stevens?
November 12, 2008
"Obama on Drugs: Should reformers dare to hope?"
The title of this post is the title of this piece by Jacob Solum at Reason. It is mainly focused on marijuana policies, though it ends with this notable realpolitik reminder of administrations past:
The main danger with Obama is that his history of drug use, instead of making him more open to reform, will make him anxious to show he's tough on drugs. Something like that seems to have happened with Bill Clinton, who bragged about ever-escalating drug war budgets and threatened doctors who recommended marijuana to their patients with jail, trampling the First Amendment in his rush to prove his anti-drug bona fides.
"We are going to continue to find ways within the administration to fight legalization and the notion of legalization," a key Clinton drug policy adviser said in defense of this unconstitutional policy, which ultimately was overturned by a federal appeals court. "We're against the message that [California's medical marijuana initiative] sends to children." Who was this zealous drug warrior, eager to forcibly suppress "the notion of legalization" in the name of protecting children? Rahm Emanuel, Obama's chief of staff.
For lots of reasons, I am cautiously optimistic that the coming Obama Administration will have a much, much better approach to criminal justice drug law and policy than did the Clinton Administration. Nevertheless, as this piece by Jacob Solum highlights, few persons in power inside the beltway in DC has shown significant courage or long-term insight on these political hot-button issue. That said, I will still dare to hope for real change in the coming years.
Eleventh Circuit's Judge Carnes notes interest in fast-track disparity issue
Today in a thoughtful separate opinion concurring in the denial of en banc review in US v. Vega-Castillo, Judge Carnes of the Eleventh Circuit adds some terrific juice to an important post-Kimbrough federal sentencing issue. Here are notable snippets from the notable opinion:
I concur in the denial of rehearing en banc but might vote to carry en banc a case that more clearly presents the issue of whether sentencing disparities arising from the location of fast track or early disposition programs may justify a 18 U.S.C. § 3553(a) variance....
The argument in favor of permitting a variance is that defendants in thirteen or so of the federal districts around the country are earning early disposition sentencing departures, up to four levels, that defendants in the other eighty-one districts are not eligible to receive. See generally U.S.S.G. § 5K3.1. The argument derives its force from the notion that two defendants with essentially the same sentencing profile and post-charge conduct should not be treated differently merely because of the part of the country where they committed their crime. If a defendant in New Mexico gets a lower sentence because he meets the early disposition criteria, then a materially identical defendant in Florida who meets those same criteria (except for where he is located) ought to get one, too. Or, at least, the sentencing judge in Florida ought to be allowed to vary downward in calculating the sentence in order to even things up. That is the argument; that is the issue. Our Castro and Llanos-Agostadero decisions rejected that argument but then came Kimbrough. If Kimbrough has not revived the issue, it has at least put a few post-mortem twitches in it that might justify a fresh look en banc....
Because of Vega-Castillo’s criminal record, his failure to offer to waive his right to attack his conviction in a § 2255 proceeding, and his failure to offer to waive his right to appeal his sentence except for the issue at hand, his case does not adequately present the issue of whether a district court may, in an appropriate case, vary downward under § 3553(a) to eliminate disparities caused by the location of fast-track or early disposition programs.
AEDPA, capital habeas cases and the limits of change
Two events this morning have me thinking about federal habeas review in state capital cases and about the (limited?) potential for a new administration to impact these issue:
1. The Supreme Court this morning is hearing argument in Bell v. Kelly(SCOTUSwiki description here), which is an important concerning standards of review under AEDPA. This NACDL amicus brief explains effectively what may be at issue in Bell v. Kelly:
[This] case squarely presents the Court with an opportunity to address the relationship between minimal procedural fairness and the comity and federalism concerns embodied by the Anti-Terrorism and Effective Death Penalty Act (AEDPA).... The way in which the Court decides this case will influence whether state postconviction courts believe they are required to provide a minimally fair process in order for their decisions to be steeled from federal review by the provisions of the AEDPA.
2. A split panel of the Sixth Circuit today in Davie v. Mitchell issued three separate opinions in the course of affirming an Ohio death sentence on federal habeas review. At the start of his lengthy dissent, Judge Merritt minces no words about his view of the outcome:
The majority in this case is reading the AEDPA statute unlawfully to suspend the writ of habeas corpus in violation of the Suspension Clause of the United States Constitution, Article I, § 9 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”). Here, as I shall explain below, the majority is using the AEDPA statute as a license to overrule Miranda v. Arizona and its lineal progeny developed by the Warren-Brennan Court four decades ago to outlaw coerced confessions that abridge the Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination.
As habeas gurus know, the federal jurisprudence surrounding state capital habeas review has been a mess for decades. AEPDA was enacted during the Clinton Administration as part of a bipartisan effort to clean up this mess, but arguably AEDPA has only made the mess a lot worse. Indeed, today's SCOTUS oral argument and Sixth Circuit ruling spotlight the general inability of AEDPA to make this arena of habeas law and policy less messy.
Though surely not a high priority matter for the Obama team, I like to imagine that a new administration might eventually consider some changed approaches to old habeas issue. But, in the wake of the AEDPA experience, I am not optimistic about the potential for real change. In other words, I fear that, even if a new administration is willing and eager to "improve" AEDPA and the messy jurisprudence that surrounds capital habeas review, it may be very difficult to do significantly better than the status quo (at least absent a serious commitment to reconstructing radically federal involvement in state capital cases).
Kentucky governments fighting in court over incarceration costs
This local article from Kentucky, headlined "Counties sue state over state inmate costs," provides a good example of how our prison economy and tough economic times can lead to some unusual court battles. Here are some details:
The Kentucky County Judge/Executives Association and 110 fiscal courts filed the suit Friday in Franklin Circuit Court. The suit names the Commonwealth of Kentucky, the Justice Cabinet, the Finance Administration and the General Assembly as defendants. It seeks to force the state to pay for the time prisoners are housed in jails before they are sentenced. Presently, the state picks up the tab for state felons only from the time of sentencing.
“It’s been discussed for years and years,” said Laurel County Judge/Executive Lawrence Kuhl. “It’s not a thing we really wanted to do, it's a thing we felt we had to do.”
Kentucky law requires judges to give prisoners credit against their total sentences for the time they served while awaiting trial and adjudication. But while those charged with – and convicted of – felony crimes are state prisoners, the county bears all the costs of housing them before conviction....
Many counties are subsidizing their jail budgets by 30 to 40 percent. Last year, Laurel County diverted $1.5 million from its general fund to the county jail – and cut every other department’s budget, including the Sheriff’s Department.
Some related posts on prison economy realities:
Federal sentencing through history: "Theives Treated Tenderly."
An insightful reader sent me this link to a fascinating little New York Times story published in December 1886. The quote above is the headline from this story published 122 years ago; here is the first sentence and some later snippets from this reporting of 19th-century federal sentencing news that was fit to print:
The unusual leniency with which the case of H. Robertson Jr. was handled by Judge Benedlot in the United States Circuit Court a few days ago has brought to the attention of lawyers and others who have business with the Federal authorities the extremely light sentences imposed upon persons convicted of violating the postal laws....
It will be seen that in no case has the sentence been for a longer term than one year. In speaking of the tenderness with which Post Office cases were handled, Gen. Foster, the Assistant United States DistrictAttorney, said that he could not consider himself to blame as he had in nearly all the cases secured convictions. He could not regulate the sentences because that rested entirely with the Judges.