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November 22, 2008

The Sentencing Project's thoughtful call for racial justice

On Friday, I received from The Sentencing Project the following e-mail announcing an important new report addressing racial justice: 

We're pleased to call your attention to a newly released report, Compact for Racial Justice: An Agenda for Fairness and Unity.  The publication was produced by the Applied Research Center as a proactive agenda for fairness and unity in communities, politics, and the law. 
 
The Sentencing Project was the lead author of the chapter promoting criminal justice reforms (beginning at page 17). In this chapter, we discuss the failed crime policies of the past 30 years, marked by the six-fold increase in the prison population since 1972.  Much of this increase can be attributed to the War on Drugs and the consequent sentencing disparities it imposed.   In addition to calling for reforms of current policies, we caution policymakers in the new administration against repeating the mistakes of the past through enacting policies and practices that impose harsh penalties that produce disproportionate effects on minorities, youth, and immigrants. 
 
Finally, we offer four specific recommendations for immediate action: implement racial impact statements, abolish the mandatory detention of immigrants, support people in reentry and the communities where they return, and make racial equity a standard for all criminal justice policy and practice.
 
You can obtain this publication here.

November 22, 2008 in Race, Class, and Gender | Permalink | Comments (1) | TrackBack

Around the blogosphere

Lots of new goodies at for sentencing fans at:

November 22, 2008 | Permalink | Comments (0) | TrackBack

ACLU makes argument for right to counsel at crack retroactivity proceeding

Yesterday, I received a press release from the ACLU noting the filing of a notable brief in the Fifth Circuit.  Here are the basics:

The American Civil Liberties Union today filed its opening brief before the U.S. Fifth Circuit Court of Appeals in an effort to preserve the constitutional right to counsel for those seeking resentencing based on the recent reduction to the federal sentencing guideline range for crack-cocaine offenses.

“When an individual’s freedom hangs in the balance, fundamental fairness and the most basic of our constitutional protections demand that the right to counsel be honored,” said Adam Wolf, a staff attorney with the ACLU Drug Law Reform Project.  “Those unfairly sentenced under the initial, now infamous crack-cocaine guidelines must not face further injustice through the denial of necessary and deserved legal representation.”...

The ACLU’s brief argues that the denial of such a resentencing motion -- when new facts may be introduced that significantly impact the length of incarceration -- without granting the defendant access to legal counsel or an opportunity to review and respond to new evidence violates the Sixth Amendment’s right to counsel and the Fifth Amendment’s Due Process Clause, respectively....

The case, U.S. v. Ross, is on appeal from the U.S. District Court for the Northern District of Texas.  The ACLU’s brief may be found online at this link.

November 22, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack

November 21, 2008

The revised make-up of the US Sentencing Commission

A helpful reader helped me discover that the US Senate yesterday confirmed two important Presidential nominees to the US Sentencing Commission.  Specifically, it appears that by voice vote the Senate has now (1) confirmed Judge Ricardo Hinojosa to continue serving as a Commissioner (and Chair?) of the USSC, and (2) confirmed William Carr to start a term as a new Commissioner of the USSC (replacing the now retired John Steer). 

Hearty congrats to both Commissioners Hinojosa and Carr.  I have come to know and respect both of these sentencing gurus, and I am already looking forward to what they might have planned for the USSC in the months and years ahead.  I am especially hopeful that they are willing to be especially bold and creative about federal sentencing law and policy in the wake of an election in which both major political parties were stressing the need for legal and policy changes in DC.

I am hopeful that the USSC website will soon have an official public discussion of these notable developments.  Also, I am left wondering about the status of current Commissioner Michael Horowitz, who had been nominated by President Bush for another stint but apparently was not considered by the Senate yesterday.  Because the USSC has statutory constraints on its composition — involving party affiliation and judicial status — the seat of Commissioner Horowitz might need to be filled by a different person.  But here I am just speculating (and I fear that neither the Obama transition team or likely new AG Holder has had much time to date to really focus on the only federal agency technically in the judicial branch).

I welcome any insider reports (or outsider comments) on these developments or on yesterday's USSC public meeting.  This is an exciting time (and quite dynamic and uncertain time) to be in the thick of federal sentencing law and policy debates.

Some recent related posts:

November 21, 2008 in Who Sentences? | Permalink | Comments (0) | TrackBack

Notable Sixth Circuit discussion of reasonableness review in child porn case

The Sixth Circuit provides an interesting read this morning in US v. Blackie, No. 07-2002 (6th Cir. Nov. 21, 2008) (available here). The opinion starts by providing a review of all the issues it reviews:

Kerry Blackie pled guilty to a single count of possession of visual depictions of minors engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). The district court imposed a sentence of 42 months, which is outside the advisory Sentencing Guidelines range. Blackie appeals his sentence, alleging that the district court: (1) improperly considered the factors set forth in 18 U.S.C. § 3553(a); (2) imposed a sentence outside the Guidelines range without stating its reasons for doing so as required by 18 U.S.C. § 3553(c)(2); and (3) failed to provide notice of its intent to depart from the Guidelines range as required by Federal Rule of Criminal Procedure 32(h).

For the reasons set forth below, we VACATE Blackie’s sentence and REMAND the case for resentencing consistent with this opinion.

November 21, 2008 in Booker in the Circuits | Permalink | Comments (2) | TrackBack

Deep thoughts on the structure of appellate review

Anyone following the post-Booker jurisprudence surrounding reasonableness review cannot help but ponder the nature and value of appellate review of sentencing decisions.  For anyone really eager to go deep into the topic of appellate review, the latest issue of the Vanderbilt Law Review has these two new pieces worth checking out:

November 21, 2008 in Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Members of Congress push for commutation of Border Agent sentences

This AP article details the latest effort to encourage President Bush to use his clemency power to do some sentencing justice for two notable federal defendants.  Here are the specifics:

A handful of lawmakers want President George W. Bush to commute the sentences of two Border Patrol agents convicted of shooting a now-convicted drug smuggler and covering it up. The House members said Thursday that Bush should commute the sentence of the two men before he leaves office to show his concern for law enforcement officers and the danger of their jobs. They asked the Justice Department to recommend the agents' cases to Bush....

The lawmakers pushing for the pardon attorney to at least commute the sentence of the Border Patrol agents or possibly pardon them say his action on their plea will be a barometer for other pardons. Ignacio Ramos and Jose Compean were sentenced to 11 years and 12 years, respectively, after being convicted in 2006 of shooting now-convicted drug smuggler Osvaldo Aldrete Davila of Mexico and trying to cover up the incident.... "If you can't do it for Ramos and Compean, how can you do it for anyone on that list?" said Rep. Steve King, R-Iowa....

Rep. John Culberson, R-Houston, said lawmakers will pressure President-elect Barack Obama to show leniency to the agents if Bush does not. Other lawmakers who had signed a letter to the Justice Department's pardon attorney by Thursday morning are Rep. William Delahunt, D-Mass. and Republican Reps. Ted Poe of Texas, Dana Rohrabacher, Howard McKeon and Ed Royce of California and Walter Jones and Sue Myrick of North Carolina.

Some prior posts about the Border Agents case:

November 21, 2008 in Examples of "over-punishment" | Permalink | Comments (1) | TrackBack

November 20, 2008

A not-so-clever way to seek a sentencing postponement

This local story from Florida provides an interesting companion to the recent story from Australia on the broader topic of dumb sentencing strategies.  Here are the basics:

A Vero Beach man accused of making two bogus bomb threats earlier this month to “avoid his pending commitment to prison,” has been arrested, according to records released Thursday.

Deandre Love, 26, faces two counts of false report of a bomb in connection with the Nov. 7 incidents that happened just before Love was supposed to appear before Circuit Judge Robert Belanger for a felony sentencing hearing....

Investigators came up with Love’s name by researching cell phone information, and compared a recording of the 911 call to court proceedings.  “The confirmed voice of the defendant was consistent with voice of the suspect who called in the bomb threat to 911/dispatch,” sheriff’s records show.

November 20, 2008 in Offense Characteristics | Permalink | Comments (0) | TrackBack

Notable new California appellate ruling about sex offender registration and trial rights

I just get an e-mail from a friendly readers forwarding me a new California Court of Appeal case which "finds that the residency restrictions in California's sex offender registration law are "punishment" for Apprendi purposes."  This notable new ruling comes in People v. Mosley, No. (Cal. App. 4th Dist. Nov. 19, 2008) (available for download below), and here is how the opinion begins:

This appeal sits at the intersection of two topical, controversial legal issues: sex offender registration and the right to a jury trial.  The Legislature and the voters have drastically expanded the reach and ramifications of sex offender registration in recent years, culminating in “The Sexual Predator Punishment and Control Act: Jessica’s Law” (Jessica’s Law), approved in 2006 as Proposition 83.1  The United States Supreme Court has revitalized the right to a jury trial over the same period, culminating in decisions striking down the federal sentencing guidelines in 2005 and California’s determinate sentencing law (DSL) in 2007.  Juries, not judges, must determine any additional facts necessary to impose punishment beyond that otherwise provided by statute based solely on the jury’s verdict....

In this anomalous case — where the jury acquitted defendant of any sexual offense, but the court subjected defendant to the residency restriction by requiring sex offender registration based on its own fact-finding — we affirm defendant’s conviction on the underlying offense, misdemeanor assault.  But we must reverse the imposition of the registration requirement.  We modify the judgment by striking the sex offender registration requirement and affirm the judgment as modified.

Download cal_sex_offender_ruling.pdf

November 20, 2008 | Permalink | Comments (2) | TrackBack

An amusing tale of failed sentencing fakery from Down Under

Here is a local report from Australia, headlined "Fake engineer produces fake references to get a lighter sentence," about an amusing sentencing proceeding:

Timothy McCormack produced four excellent character references to persuade a judge to give him a lighter sentence for faking his engineering credentials to work on Qantas aircraft.

But during his sentencing hearing in the District Court yesterday he sat hunkered down in the dock with his head between his fists, bent so low that only his hair was visible to the bench. The references were too good to be true, the court heard. The fake engineer had also falsified each of his references.

They included a fictional school counsellor, which had been misspelt "councilor", and an allegedly fictional Senior Sergeant Woodward, who purported to be the president of a fictional Hornsby Junior Australian Rules Football Club. "There is no football club by that name," said the Crown prosecutor, Paul McGuire.

Judge Mark Marien, who described the proceedings as an "extra-ordinary event", said that all the references were formatted in the same way and signed by the same hand. McCormack, 27, pleaded guilty in September to 42 charges relating to the falsification of documents, including his exam results for the Civil Aviation Safety Authority's aircraft maintenance engineer licence and his engineering credentials.

He duped Qantas for nine months by posing as a licensed aircraft engineer before he was discovered in July last year. He had performed 30 maintenance checks. The plane that later gained notoriety for an emergency landing in Bangkok was among the aircraft he checked for maintenance.

His barrister, Sydney Jacobs, asked for a six-week adjournment so it could be determined whether his lying was a psychiatric rather than a behavioural disorder. "What I seek to explore is that there is some pathological condition," Mr Jacobs said....  Judge Marien granted a two-week adjournment. "What has occurred in these sentencing procedures is, in my experience, an extraordinary event," he said.

November 20, 2008 in Sentencing around the world | Permalink | Comments (1) | TrackBack

Through the federal clemency looking glass with Holder

Though I am still ruminating over the selection of Eric Holder for the next Attorney General (as evidenced here and here and here), the latest political buzz over the nomination has me depressed about what I see as the likely impact of the Holder choice on public perceptions of federal executive clemency. Consider this Politico reporting in this new piece that the Marc Rich pardon will be a central part of debate in Holder's confirmation hearing:

Eric Holder’s long and distinguished public service career may now be defined by what he did in his last full day at the Justice Department.  The former deputy attorney general in the Clinton administration, who’s now President-elect Barack Obama’s reported choice to be attorney general, is expected to be confirmed by the Senate – but not without some serious scrutiny of his involvement in President Bill Clinton’s controversial pardon of fugitive financer Marc Rich....

As deputy attorney general, Holder famously let Rich’s last-minute pardon move across his desk. It was a bad decision, Holder later acknowledged, and one that has haunted his otherwise solid career of public service and philanthropy. "If I had focused on this in a way that I could have, should have, the recommendation I would have given him would have been, 'Don't do this, Mr. President,' " Holder told The Washington Post in March, 2001.

Republican legal advocates are pushing the Senate to scrutinize the pardon, even as they admit the issue is unlikely to scuttle Holder’s confirmation.

Similarly, The Washington Post today has this new editorial headlined "Mr. Holder at Justice? The likely nominee needs to answer questions about a pardon."  In other words, against the backdrop of a long and distinguished public service career, the biggest concern expressed about Holder will be his failure to stop his boss from making a stupid and self-serving decision to grant clemency to someone who did not deserve it.  I suggest this puts us through the federal clemency looking glass: when so much unjust harshness defines our modern federal criminal justice system, it is both sad and telling that one lone act of unjust mercy garners all the headlines concerning Holder in particular and for the clemency power in general.

I have no problem with Holder getting some political heat over his role in the Rich pardon: after all, political accountability is the only real restraint on the exercise of the absolute executive clemency power that is constitutionally enshrined.  But, I am very troubled that Holder is going to be politically pilloried for not trying to block an ugly act of clemency by President Clinton, rather than being questioned about the the broader (and, in my view, much uglier) failure of recent Administrations to use the clemency power proactively to remedy the many unjustly long federal sentences that have been imposed over the last two decades.  

Beyond questions about the failure to grant justifiable clemency petitions, Holder should be asked about lots of other federal criminal justice failings during the Clinton Administration.  The Washington Post and others inside the Beltway really should not worry about questioning Holder about his role in clemency decisions.  After all, Bill Clinton clearly was "the decider" here.  Rather, the Post and others should be asking who is going to question Holder about more important matters of federal criminal sentencing administration such as:

(1) the Clinton Administration's abject failure to do anything serious about the crack/powder disparity in the wake of the US Sentencing Commission's major report on the disparity in 1995,

(2) the Clinton Administration's abject failure to do anything serious about needed mandatory minimum reforms (beyond the safety-valve legislation),

(3) the Clinton Administration's abject failure to do anything serious about acquitted conduct sentencing enhancements under the guidelines, especially following the Supreme Court's Watts decision in 1998, and 

(4) the Clinton Administration's abject failure to effectively staff and support the work of the US Sentencing Commission, especially in the late 1990s when there were literally no Commissioners because of a variety of political stalemates over potential appointments.

I fear that none of these important questions will be asked, in part because many pundits and politicans rather bloviate about the Marc Rich pardon for which Bill Clinton (and Hillary Clinton?) ultimately merit much more blame and grief than Eric Holder.  But I really hope I am not the only one with enduring concerns about Holder's role in these other more consequential sentencing law and policy issues, and also not the only one interested in his current views on these still-important issues a decade later.

UPDATE:  I just noticed at TalkLeft this post, titled "Right Gearing Up To Attack Holder On Rich Pardon," which concludes that "it appears opposing Holder will be a rallying point for the Right."  I think it is much too early to assume that anyone will rally behind opposing Holder, especially given that for now attacks on Holder (especially as they related to the Rich Pardon) seem to be just a conveninent way to vent about some ugly final days of the Clinton Administration.

That said, the comments to the TalkLeft post raise some interesting questions:

A.  Will any of the new Holder-related pardon buzz impact how President Bush uses his clemency powers in the weeks ahead?

B.  Shouldn't Scooter Libby, who represented Marc Rich from 1985 to 2000 (details here), have a lot of useful information if/when Holder is questioned by the Senate about these matters?

November 20, 2008 in Clemency and Pardons | Permalink | Comments (4) | TrackBack

"Real offender in this sex case is Georgia law"

The title of this post is the title of this potent new editorial from the Altanta Journal-Constitution.  Here is how it starts:

In its relentless efforts to expel Wendy Whitaker from her Columbia County home, the state of Georgia has crossed the line from protector to persecutor of its citizens.  The state isn’t inciting torch-wielding mobs to chase Whitaker from her home 20 miles west of Augusta.  But it is using a gaggle of state attorneys and a politically driven, poorly written sex offender law to wreck her life.

Twelve years ago, Whitaker engaged in oral sex with a classmate in her sophomore class on high school property. She had just turned 17; the boy was three weeks shy of 16.  After they were caught, Whitaker pleaded guilty to sodomy, never realizing that the admission to a single act of adolescent stupidity would cast a shadow on her life that she could never escape.  Whitaker is now doomed to be on Georgia’s sex offender registry for the rest of her life.  She can’t live near schools, churches, swimming pools, school bus stops, day care centers, parks, rec centers or skating rinks, or work near schools, churches or day care centers.

Whitaker poses no danger to the children of Georgia; she’s a happily married 29-year-old, trying to get on with her life and live in the home that she and her husband bought a few years ago.  Yet, the state has spent thousands of taxpayer dollars to force Whitaker from her house.

Related post:

November 20, 2008 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

The legal backstory of Heller

Over at Reason online, one can now find this lengthy article telling the backstory of the case that resulting the the Heller ruling.  The article is titled "How the Second Amendment Was Restored: The inside story of how a gang of libertarian lawyers made constitutional history."  Ultimately, I share Ilya Somin's view that this article overstates the ultimate importance and significance of Heller.  But this article is still a must-read as a piece of modern legal history, and also for a useful set of lessons for anyone seriously committed to impact-oriented constitutional litigation.

Some related posts on the Heller's (lack of) importance:

November 20, 2008 in Second Amendment issues | Permalink | Comments (1) | TrackBack

"Ethics dilemma for lawyers when inmates seek death"

The title of this post is the title of this interesting piece from the AP, which discusses at length one of the hardest lawyering issues that surround representation of death-eligible offenders.  Here are snippets:

About 12 percent of the 1,133 inmates executed in the U.S. since 1977 abandoned their appeals and asked for their sentences to be carried out, said Richard Dieter, executive director of the center and a law professor at Catholic University in Washington. Each time, the inmate either fired the defense lawyer or told them to stop filing appeals. "It amounts to the same thing," Dieter said.

Attorneys are required to follow the client's wishes or have themselves removed from the case, said Michael Mello, a Vermont Law School professor who teaches ethics and death penalty law. "Their hands are pretty well tied," Mello said. "These are the cases that haunt you. This is the most hideous of cases."

November 20, 2008 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

November 19, 2008

Three late afternoon thoughts on the Holder pick: race, tough and tech

I have so many old and new thoughts about the importance of the next Attorney General and about President-Elect Obama's apparent selection of Eric Holder for that spot.  At the end of a long day, I want to focus on three particular thoughts/words:

1.  Race:  The import and impact of racial issues in all aspects of the work of the federal Justice Department (both criminal and civil) should not be overlooked, even though war on terror and political issues have dominated modern DOJ and AG discussions.  An appointment of the first African-American Attorney General is therefore noteworthy and important for many reasons.  And, while many aspire for post-racial dialogues about crime and justice, the interplay between race and justice will be that much more salient when Eric Holder becomes the nation's top cop.

2.  Tough:  Jeff Rosen wisely notes here that, because Holder "has impeccable credentials as a tough-on-crime prosecutor," he might be uniquely positioned to achieve a "Nixon in China on Crime."  While many might be concerned about his past connection to all the tough-on-crime posturing during the Clinton Administration, that very background might give him a unique ability and unique credibility if and when he tries to turn the corner on "tough-on-crime" in an effort to now be "smart-on-crime."

3.  Tech:  I was pleased to learn during this NPR segment that Holder is, according to a close friend, "a technology junkie."  As some of my regular technocorrections blogging helps to highlight, I expect some of the hardest and most unpredictable crime and justice issues on the horizon will involve technology issues.  Whatever his policy positions or instincts, the fact that Holder has an affinity and comfort with technology should be a great assert for his new job.

Some recent Holder as AG posts:

November 19, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (5) | TrackBack

More thoughtful thoughts on emotions and the death penalty

Professor Susan Bandes has this new piece up at SSRN, titled "Repellent Crimes and Rational Deliberation: Emotion and the Death Penalty." As regular readers know, this is a topic that I find very interesting, and I also find Susan's insights to be thoughtful and interesting (and we often agree on premises and disagree on where those premises take up). Here is the abstract for this new piece:

It is often assumed that the anger, outrage and other strong emotions provoked by repellent crimes interfere with rational deliberation. There is some truth to the notion that heinous murders and other shocking crimes place an enormous strain on the criminal justice system, and may exert a destructive influence on institutional process. Nevertheless, the argument that strong emotion interferes with rational deliberation begs the question: what is rational deliberation? This article argues for an understanding of rational deliberation that recognizes its pervasive emotional content. It suggests that the legal system operates on certain misconceptions about emotion that are themselves harmful to institutional process. The most pervasive misconception is that the very attempt to address emotion is destabilizing to the rule of law. Though the legal system rarely incorporates scientific or social-scientific knowledge of emotional dynamics, it nevertheless operates on its own assumptions about how emotions work. It tends to take three approaches to emotion: requiring it to be "set aside" (e.g. the anti-sympathy instruction); permitting it to be "introduced," (e.g. the victim impact statement) and ignoring it (e.g. the refusal to clarify the meaning of life without parole despite evidence that juries misunderstand the term and that clarifying it will affect their sentencing decisions).

I will argue that the legal approach to emotion and rationality is based on three primary misconceptions about the nature of emotion: 1) that emotions are tangible objects with an identity independent of the person they are in, or the institutional context in which they occur; 2) that emotions are private and internal feelings, rather than processes that take shape in a social world; and 3) that emotions are bursts of uncontrollable passion that short-circuit rational deliberation. Using the example of capital punishment, the article illustrates that these misconceptions have serious consequences for the structure and functioning of the capital system.

Some related posts on the death penalty and emotion:

November 19, 2008 in Recommended reading | Permalink | Comments (0) | TrackBack

Debate over doctors and death protocols in NC

As reported in this local article, which is headlined "High court debates execution issue: N.C. justices chide doctors, legislators for not resolving lethal injection deadlock," the messy realities of state lethal injection protocols was the subject of appellate court conversation in North Carolina yesterday.  Here are some of the details:

The N.C. Supreme Court dove into the two-year stalemate on executions Tuesday by asking attorneys to define what legislators meant by requiring a doctor's presence when convicted murderers are put to death. The debate over the word “present” has created a de facto moratorium on executions in North Carolina.

The legal battle pits the N.C. Medical Board against the Department of Correction, which wants a doctor to make sure lethal injections are properly administered. That, the department says, guards against a violation of the constitutional law against cruel and unusual punishment.

But the medical board contends that lawmakers, in requiring a doctor's presence, only meant that the doctor should certify that an inmate was executed. Taking part in the execution by monitoring an inmate's vital signs would violate a doctor's basic mission to preserve life, the board says. That has prevented the department from finding doctors to attend executions.

During an hourlong hearing Tuesday, Associate Justice Edward Thomas Brady challenged Todd Brosius, a lawyer for the medical board, on the legislature's intent in having a doctor present.... Brady and other justices also challenged state Assistant Attorney General Joseph Finarelli, who argued that lawmakers meant for doctors to do more than attend and certify death.

The justices noted that state lawmakers had an opportunity to clarify the law with two bills filed last year. But the General Assembly did not take up the legislation. Some justices suggested that the legislature, not the courts, should resolve the stalemate. “Why don't we send this right over where it belongs?” Associate Justice Patricia Timmons-Goodson asked.

November 19, 2008 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Any early federal sentencing thoughts on Eric Holder, the next U.S. Attorney General?

Holder The AP has this latest report on the buzz surrounding President-Elect Obama's choice for attorney general: "A source close to the process of selecting Barack Obama's attorney general says the president-elect has 'informally' offered the post to Washington lawyer Eric Holder, who has accepted."  On this latest word, I am prepared to declare this a done deal.  I am also prepared to predict that Holder will get confirmed by the Senate, notwithstanding all the hold-over Clinton Administration DOJ scandals that necessarily will be a cause for media discussion and pundit critiques in the days and weeks ahead.

Many folks will use the Holder selection as an excuse to rehash lots of old Clinton Administration stories — involving once-semi-(in)famous figures ranging from Elian Gonzales to Marc Rich.  Fortunately, many others will be more eager to look forward.  Glenn Greenwald here at Salon, for example, already has a long and interesting piece up, under the headline "Preliminary facts and thoughts about Eric Holder: Is Obama's likely nominee for Attorney General an encouraging sign for advocates of the Constitution and the rule of law?"  Greenwald, who is mostly focused on war-on-terror issues, comes to this tentative early view: "on balance -- particularly in light of what he was saying regarding the most extreme Constitutional and executive power abuses of the last eight years and, more importantly, how he was saying it -- this choice, as a preliminary matter, seems like a step in the right direction."

Of course, my focus is on federal sentencing law and policy, and I am not yet even prepared to start forming preliminary thoughts.  I have a instinctual bias against anyone closely connected to the Clinton Administration because I have come to view that administration as uniquely willing and eager to put tough rhetoric and political calculations before sound sentencing policy-making.  And yet I sense that Holder's past Clinton Administration record can provide only a very limited guide to his future Obama Administration work.  For this reason, I am especially eager to have readers share any and all early federal sentencing thoughts about our likely next Attorney General.

November 19, 2008 in Who Sentences? | Permalink | Comments (23) | TrackBack

Ohio executes while Texas has to postpone two scheduled executions

Providing another tangible example of the unpredictability of modern application of the death penalty, Ohio and Texas had surprisingly different executions experiences over the last 24 hours.  As detailed in new reports here and here, two different defendants in Texas had their scheduled executions postponed, whereas Ohio this morning went forward with a scheduled execution this morning.  This AP report provides the basics on Ohio's capital activity:

Ohio on Wednesday executed a man for the 1992 stabbing death of a collectibles store owner in Toledo, the state's second execution in as many months. Gregory Bryant-Bey, 53, died by lethal injection at 10:41 a.m. at the Southern Ohio Correctional Facility in Lucasville.

Some recent related posts:

November 19, 2008 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

"Larger Inmate Population Is Boon to Private Prisons"

The title of this post is the title of this new article from the Wall Street Journal.  Here is how it starts:

Prison companies are preparing for a wave of new business as the economic downturn makes it increasingly difficult for federal and state government officials to build and operate their own jails.

The Federal Bureau of Prisons and several state governments have sent thousands of inmates in recent months to prisons and detention centers run by Corrections Corp. of America, Geo Group Inc. and other private operators, as a crackdown on illegal immigration, a lengthening of mandatory sentences for certain crimes and other factors have overcrowded many government facilities.

Prison-policy experts expect inmate populations in 10 states to have increased by 25% or more between 2006 and 2011, according to a report by the nonprofit Pew Charitable Trusts.

Private prisons housed 7.4% of the country's 1.59 million incarcerated adults in federal and state prisons as of the middle of 2007, up from 1.57 million in 2006, according to the Bureau of Justice Statistics, a crime-data-gathering arm of the U.S. Department of Justice.

I suppose we can all be grateful that at least we can count on one growth industry in these tough economic times.  And, needless to say, this article provides still more support for my favorite modern sentencing mantra: "It's the prison economy, stupid."

Some related posts:

November 19, 2008 in Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Fascinating amicus brief filed in Polizzi case

Regular readers may recall US District Judge Jack Weinstein's fascinating Polizzi decision earlier this year, in which he ruled that he should have informed the jury of which counts in a child pornography case carry mandatory minimum sentences (basics here, early commentary here).  The case is now being briefed before the Second Circuit, and yesterday I received a fascinating amicus brief filed by NACDL and FAMM is support of Judge Weinstein's ruling.  The brief, which can be downloaded below, has many important sections, and I found the historical discussion especially intriguing.  Here is a paragraph from the brief at the start of that discussion:

An examination of the historical record from the Colonial and post- Revolutionary eras shows that eighteenth-century jurors would have been keenly aware of the sentencing implications of their verdicts. Accordingly, the Sixth Amendment at the very least permits a trial court to exercise discretion, under all the facts and circumstances best known to it, to instruct the jury on the mandatory minimum sentence that would follow from a defendant’s conviction.

Download polizzi_2d_cir. Amicus Brief.pdf

November 19, 2008 in Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Around the blogosphere

Lots of notable new posts of interest for sentencing fans to be found at:

November 19, 2008 | Permalink | Comments (0) | TrackBack

November 18, 2008

Lots of buzzing around Eric Holder as the next US Attorney General

In this afternoon post, Newsweek has reported today that "President-elect Obama has decided to tap Eric Holder as his attorney general."  But this BLT post has this bold update on the story:

The Associated Press and The New York Timesare reporting that Obama is deeply considering Holder for the AG post but that no decision has been made.  Apparently, Obama aides have been feeling out Republican senators to get a sense of Holder's chances.  An official in the Obama camp told the Times that the Newsweek report was "wrong."

Of course, regular readers know that there is a pardon story that surround Holder as a result of his service in the Clinton Administration.  Here is how the Newsweek report covered this notable ghost of pardons past:

The only hesitancy about Holder’s selection was that he himself had reservations about going through a confirmation process that was likely to revive questions about his role in signing off on the controversial pardon of fugitive financier Marc Rich.  Although there is no evidence that Holder actively pushed the pardon, he was criticized for not raising with the White House the strong objections that some Justice Department lawyers and federal prosecutors in New York had to pardoning somebody who had fled the country.  But after reviewing the evidence in the case, and checking with staffers on the Senate Judiciary Committee, Obama aides and Holder both decided the issue was highly unlikely to prove an obstacle to his confirmation, one of the sources said --especially given the Democrats’ more sizable post-election majority in the Senate.

UPDATE:  Jeralyn at TalkLeft has a series of posts on Eric Holder's criminal justice record, including these recent ones of note:

Because I have never been much of a fan of what the Clinton Administration did on any number of federal criminal justice issues, I am not especially excited to learn that Obama's concept of hope and change for DOJ seems to involve the promotion of a former Clinton Administration high ranking DOJ official.  That said, a lot of people I respect have a lot of respect for Eric Holder, so I will come at this appointment with an open mind.  Still, I am growing ever more concerned that inside-the-beltway experience seems to be a running theme in all the cabinet picks being talked up these days.

November 18, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (4) | TrackBack

A birthday update for a high-profile federal defendant

As detailed in this CNN political post, today "may not be the happiest of birthday's for Ted Stevens. As the longtime Republican Senator from Alaska marks his 85th birthday, he's fighting for his political life."  Here's more from this new AP articleabout Stevens' current status and his trials and tribulations:

Convicted Sen. Ted Stevens clung Tuesday to the hope that a climactic vote count in Alaska would buttress his argument to remain in Congress and fellow Republicans accommodated him by putting off a decision on his expulsion.

It was just another in a series of topsy-turvy days for the 84-year-old, six-term senator who has been straddling coast-to-coast challenges to his power. Notwithstanding all that turmoil, Stevens revealed that he will not ask President Bush to give him a pardon for his seven felony convictions....

"I wouldn't wish what I'm going through on anyone, my worst enemy," he lamented to reporters at one point. "I haven't had a night's sleep for almost four months, all right."

It was possible he'd know a lot more about the electoral fight back home in Alaska before the day was done. Election officials there resumed counting some 24,000 absentee and contested votes....

Many of Stevens GOP colleagues have called on him to resign, but Stevens plans to appeal his convictions.

Some recent related Stevens posts:

UPDATE:  CNN provides this update election report: "Alaska Sen. Ted Stevens, the Republican lawmaker convicted on felony corruption charges in October, was defeated in his bid for re-election by Democrat Mark Begich, according to a release from Begich's campaign and unofficial results from state officials."

November 18, 2008 in White-collar sentencing | Permalink | Comments (0) | TrackBack

USSC public meeting this week

As detailed in this public notice, a public meeting of the US Sentencing Commission is scheduled for Thursday, November 20, 2008, at 9:30 a.m.  The public notice reveals that the USSC has a less-than-inspiring formal agenda, including a "Briefing on Identity Theft Enforcement and Restitution Act of 2008" and also a "Briefing on Ryan Haight Online Pharmacy Consumer Protection Act of 2008 and Drug Trafficking Vessel Interdiction Act of 2008."

Though the agenda might suggest this public meeting will be a snoozer, this will still be the first formal and public event for the USSC in the wake of the election of a new President and Congress.  Though I doubt the USSC will address this coming federal transition in any consequential way — and remember that technically the Commission is housed in the Judicial Branch — astute Commission-watchers may be able to assess changes in tones, attitudes and ambitions in light of new political realities.

Some related recent posts on post-election dynamics:

Some related older posts on USSC priorities:

November 18, 2008 | Permalink | Comments (0) | TrackBack

Busy pre-holiday weeks for executions

Among many holiday season traditions is a traditional slow down in the number of executions nationwide.  For various reasons, executions are rarely scheduled for the week of Thanksgiving or during the 12 days of Christmas.  But this reality can often mean a large number of executions just before the typical holiday season slow down.

This year, as detailed in this DPIC list of scheduled executions, we are on pace for an extraordinary pre-holiday rush of executions.  Specifically, there are five executions scheduled in three different states for  this pre-Turkey week (three in Texas and one in Kentucky and in Ohio).  And the week after Thanksgiving, there are four executions scheduled in four different states (Georgia, Louisiana, Tennessee and Washington).  I doubt that all nine of these executions will go forward, though I suspect most will. 

Interestingly, as detailed by this DPIC chart, if any one of these nine scheduled executions gets delayed, the total number of executions in 2008 will be the lowest since 1994.  Of course, the Baze litigation, which prevented any executions from going forward before May, largely explains the low number of total executions in 2008.  Nevertheless, given various predictions that there would be a rush of executions after Baze settled basic constitutional questions surrounding lethal injection protocols, the continued reduction in the number of executions annually remains noteworthy and significant.

November 18, 2008 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

A structural attack on mandatory minimum sentencing statutes

Writing for the Connecticut Law Tribune, Norm Pattis has this effective commentary headlined "Mandatory Sentences Lead To Major Injustices." The piece closes with this effective structural attack on mandatory minimum sentencing statutes:

Mandatory minimum sentences make a mockery of the separation of powers.  Lawmakers enact such legislation believing that they speak in the name of people who are sick and tired of coddling criminals.  Anger and passion demand action.  Lines get drawn.  But these lines become clubs wielded without discretion and review by members of the executive branch.

This isn't justice.  No one elects prosecutors.  They never appear before elected officials for reappointment decisions. They lack accountability.  Once a prosecutor has locked onto to a charge, no judge can dislodge him in the interest of justice.  And a law without sentencing guidelines blindly adheres to the fiction that one size fits all.  There are no safety valves for special cases; there are no downward departures for men and women deserving of consideration due to the sometimes special circumstances in their lives.

I am not a fan of judicial discretion.  But I trust a judge before whom I can appear and argue more than a lawmaker I will never meet.  And I trust most judges more than many prosecutors, who, by dint of our sentencing law have been made de facto kings of the courthouse.

Of course, in some states voters do elect their prosecutors.  But this does not undermine the broader applicability of the righteous concern expressed here about the extraordinary sentencing powers that mandatory minimum sentencing statutes give to prosecutors.  (Notably, prosecutors rarely deny that mandatory minimum sentencing statutes give them great charging and bargaining power, they just typically assert that they can and do use this power wisely.)

November 18, 2008 in Mandatory minimum sentencing statutes | Permalink | Comments (7) | TrackBack

Update on a notable post-Booker en banc case in the Third Circuit

As detailed in this new article from The Legal Intelligencer, the Third Circuit is due to hear en banc this week another notable post-Booker sentencing appeal. Here is how the article begins:

In a pair of en banc arguments on Wednesday, the 3rd U.S. Circuit Court of Appeals will tackle questions that could have a broad impact on how appellate courts review criminal sentences and on the scope of the federal courts' powers in granting relief in habeas corpus petitions.

In United States v. Tomko, a 13-judge panel must decide whether a sentence of probation and house arrest was "reasonable" for a confessed tax cheat.  A previous panel voted 2-1 in August 2007 to overturn the sentence, saying the case clearly called for at least some time in prison.

The court's decision to have the case reargued before the full court strongly suggests that the sentence will be upheld because a majority of the court's active judges is needed to grant en banc rehearing.

When I blogged here in August about the Third Circuit's decision to take Tomko en banc, I noted that we are still awaiting at least two important en banc reasonableness rulings from other circuits: the Cavera, case from the Second Circuit concerning whether local conditions can reasonably justify an above-guideline sentence, and the White case from the Sixth Circuit concerning acquitted conduct enhancements.  Notably, three months later we are still awaiting rulings in Cavera and White.

November 18, 2008 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

Oral argument tips for appellate judges

Thanks to Howard Bashman, we can all access this terrific little article from the October 2008 issue of The Federal Lawyer by U.S. District Judge Michael Mosman of the District of Oregon.  The article is about how judges might improve their performance at an appellate oral argument, and it hits themes that might especially resonate for those who labor in the sentencing appeals vineyard.

November 18, 2008 in Who Sentences? | Permalink | Comments (0) | TrackBack

November 17, 2008

Important new paper on modern criminal procedure

Though it apparently has been on SSRN for a little while, I just found my way to this abstract and draft of Professor David Alan Sklansky's new paper titled "Anti-Inquisitorialism."  Here is one part of the abstract that highlights why this piece is my latest must-read:

This article examines the various roles that anti-inquisitorialism has played and continues to play in shaping our criminal process, and then it assesses the attractiveness of anti-inquisitorialism as a guiding principle of American jurisprudence. The descriptive part of the article focuses on four particularly striking examples of anti-inquisitorialism at work: the Supreme Court's recent reinterpretation of the Confrontation Clause; the Court's invalidation of mandatory sentencing schemes that rely on facts found by the trial judge; the Court's endorsement of procedural default rules rejected by the International Court of Justice; and the longstanding, rhetorical invocation of the inquisitorial system in the law of interrogations and confessions.

The evaluative part of the article considers three different reasons the inquisitorial system might be thought a helpful guide to the paths American criminal procedure should not take. The first reason is originalist. It takes inquisitorial processes to be the chief set of evils against which the criminal procedure provisions of the Bill of Rights were intended to provide protection. The second reason is holistic, appealing to the organic integrity of our adversary system. The third reason is instrumental; it assumes that the inquisitorial system simply is worse than ours: worse at uncovering the truth, worse at protecting individual rights, or worse at preventing abuses of government authority.

None of these arguments is fully convincing....

Among other virtues, this article's stating quotation comes from a set of well-known modern pop philosophers.  So, I suppose I should get int he spirit and suggest downloading this article while it is Burnin' Up.

November 17, 2008 in Recommended reading | Permalink | Comments (1) | TrackBack

"Begging Bush's Pardon"

The title of this post is the title of this blog entry by Dan Froomkin over at the Washington Post.  Here is how he invites folks to play a classic lame-duck parlor game:

Who will President Bush pardon on his way out the door?  Who should he pardon?  Who shouldn't he pardon?  And how likely is he to issue some sort of blanket pardon covering officials in his own administration for their conduct related to interrogation of terror suspects, civil liberties violations, and the like?  Mulling these questions has deservedly become a Washington parlor games.  So come into my parlor and share your thoughts.

Of course, readers should feel free to play this game via the comments here.  (In addition, I am interested if any readers live in a house with a parlor that is still used for playing game.  My house is parlor-free, though we play a lot of games in other rooms.  I would guess that the White House and more than a few other houses in DC still have parlors.  But are people really sitting in these rooms debating who President Bush might still pardon?)

As this quadrennial (or bi-quadrennial) pardon speculation begins to heat up, Pardon Power is the place to go on a regular basis for news and notes.  For example, just up there today are these new posts of note:

November 17, 2008 in Clemency and Pardons | Permalink | Comments (6) | TrackBack

Notable US Attorney transitions and the Obama administration

Though not a core sentencing issue, who serves as the US Attorney in a federal district certainly can have an impact of a variety of sentencing issues. Thus, I am intrigued to see this news from the WSJ Law Blog that the US Attorneys for New Jersey and for the Southern District of New York are announcing their resignations. 

Few should be surprised that a new incoming federal administration is prompting some old US Attorneys to head for the door.  And everyone should get in the game of predicting who might take over these local federal "top cop" spots in the future.  Also, I encourage readers to opine on whether and how any particular US Attorney transition might have a particular impact on particular federal sentencing issues under an Obama Administration.

Some recent related posts:

November 17, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (2) | TrackBack

SCOTUS takes the DIG route to capital habeas case

Emily As reported here at SCOTUSblog, the Supreme Court this morning dismissed Bell v. Kelly, a capital habeas case heard just last week, as “improvidently granted.”  Kent at C&C provides this helpful explanation:

Sometimes "improvidently granted" is a term of art, but this time it is literally true.  They took a case that does not present the issue the petitioner claimed it presents.  As noted here, the premise of the question presented -- that the state court refused to consider evidence -- is false, and counsel for petitioner admitted as much in oral argument.  As discussed here, the case could have been used to resolve some important issues nonetheless, but the Court decided to simply dump it.

This DIG of a capital habeas case provides more support for the claims I put forward in my recent "Capital Waste" article.  At the start of this article, I make these introductory assertions:

I have concluded that, at least in the arena of criminal justice, the Supreme Court has recently done a poor job setting its own agenda and its failings have had a negative impact on state and federal legal systems.  Specifically, the Supreme Court has become caught up in what I call a “culture of death:” the Court devotes extraordinarily too much of its scarce time and energy to reviewing death penalty cases and adjudicating the claims of death row defendants.

Bell v. Kelly proved to be such a capital dog the Justices did not even bother to adjudicate the death row defendant's claims.  Rather, after deciding to take the case up, and having the parties and many amici write lengthy (and costly) briefs, and having everyone gear up for and conduct oral argument, the Justices decided they should just pull an Emily Litella and say "Nevermind."  Though I never mind being reminded of one of the late, great Gilda Radner's terrific SNL characters, I do very much mind my federal tax dollars going to this kind of capital waste of time and energy.

November 17, 2008 in Who Sentences? | Permalink | Comments (5) | TrackBack

A smorgasbord of reporting and opinion on the death penalty

A lot of death penalty headlines jumped out at me during my morning media review.  Here is just a sampling of notable item:

November 17, 2008 | Permalink | Comments (0) | TrackBack

November 16, 2008

Does Mommy not-so-dearest merit an extra harsh sentence?

The question in the title of this post is prompted by this new article from the New York Times.  The piece is headlined "Seeing Failure as Mother as Factor in Sentencing," and here are some excerpts:

As the prosecutor asked the judge to impose a long prison sentence, she used the word twice: “Mommy.”  The “mommy” she was referring to was Nixzaliz Santiago, who last week received a sentence of to 40 1/3 to 43 years in prison, the maximum term, for her part in the death of her 7-year-old daughter, Nixzmary Brown.

The prosecutor, Ama Dwimoh, said Ms. Santiago was the “one person” who the little girl should have been able to count on. “She called her ‘Mommy,’ ” Ms. Dwimoh told the judge. The word weighed heavily on a trial already filled with horrific details of abuse.

Justice Patricia M. DiMango, of State Supreme Court in Brooklyn, spoke of sleepless nights while contemplating a sentence. That sentence could keep Ms. Santiago, 30, in prison for up to 17 years longer than her husband, Cesar Rodriguez, 30, Nixzmary’s stepfather, who delivered the fatal beating and was sentenced in April by Justice L. Priscilla Hall to 26 1/3 to 29 years.

Justice DiMango said that Ms. Santiago, who was convicted of manslaughter and two counts of assault but acquitted of murder, had ignored her lawful obligation as a parent to try to save the dying child. But the wide gap between the sentences raised questions about whether Ms. Santiago shouldered an extra burden as she faced judge and jury: the duty to be a good mother....

B. Keith Crew, a professor of sociology and criminology at the University of Northern Iowa who has researched gender and racial differences in criminal sentencing, says that women who are not perceived as good mothers often “get the hammer” in sentencing. “There’s a sacredness about the role of mother,” he said. “When a woman is not fulfilling her role, it shocks the conscience, more than if she commits a crime. If she was prostituting herself or dealing drugs or stealing to feed, clothe and shelter her children, people would be more sympathetic.”...

Katherine M. Franke, the director of Columbia Law School’s Program in Gender and Sexuality Law, said Ms. Santiago’s sentence reinforced simple notions of parental roles, with men perceived as more violent and women as saddled with “all the obligations and responsibility — and ultimately the punishment — for what happens to their children.”

November 16, 2008 in Offender Characteristics | Permalink | Comments (4) | TrackBack

More evidence that prison crowding will prompt sentencing reform and/or more technocorrections

Regular readers know how many states are struggling with overcrowded prisons and the lack of ready or easy solutions (especially in tough fiscal times with budgets getting tighter and tighter).  Two effective articles this morning from very different part of the country — Massachusetts and Idaho — highlight that sentencing reform and/or technocorrections are going to have to play a major role in on-going efforts to deal with state and county prison crowding problems.

First, consider this piece from the Boston Globe headlined "Prison to double-bunk inmates: Sentencing changes urged to ease overcrowding in system." Here is how it starts:

The number of inmates in Massachusetts prisons is projected to reach about 12,000 next year for the first time, prompting the head of the prison system to call for sentencing changes that ease overcrowding and to proceed with a controversial plan to double-bunk inmates at a maximum-security facility.

About two weeks short of his one-year anniversary as commissioner of the Department of Correction, Harold W. Clarke said last week that he hopes Governor Deval Patrick reintroduces legislation to reform "mandatory minimum" sentences, which Clarke said have led to a surge in inmates, many with no history of violence. "We've been really concerned with mandatory sentencing laws," Clarke, 57, said at the department's headquarters here. "We don't want people backed up in prison that are not posing a risk to the community at large."

Next, consider this reporting from the Idaho Press-Tribune headlined "County struggles with jail crowding." Here are excerpts:

Canyon County and local police have a plan to put fewer offenders in the county jail to alleviate crowding. The county and Nampa and Caldwell police have written a proposal to book and release more people arrested by the cities’ police officers. The effort is intended to reduce the number of inmates in the county jail.

The reason: Canyon County faces a possible lawsuit from the ACLU and reduced insurance from the Idaho Counties Risk Management Program if it fails to take steps to reduce crowded conditions....

Other potential measures to alleviate jail overcrowding [include lowering] the cost for work release inmates from $20 to $12.50 a day [and greater] use of security ankle bracelets. Some offenders waiting for sentencing could be released from jail with tracking ankle bracelets. Their jail time wait for sentencing can be as much as 10 days.

November 16, 2008 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Is immigration reform a critical criminal justice priority?

The question posed by this post title is prompted by this sobering article in today's Houston Chronicle.  The piece is headlined, "A system's fatal flaws: Thousands of inmates admit they're in the U.S. illegally, but even those convicted of violent crimes are often released right back onto Houston's streets."  It starts this way:

Federal immigration officials allowed scores of violent criminals — some ordered deported decades ago — to walk away from Harris County Jail despite the inmates' admission to local authorities that they were in the country illegally, a Houston Chronicle investigation found.  A review of thousands of criminal and immigration records shows that Immigration and Customs Enforcement officials didn't file the paperwork to detain roughly 75 percent of the more than 3,500 inmates who told jailers during the booking process that they were in the U.S. illegally.

Although most of the inmates released from custody were accused of minor crimes, hundreds of convicted felons — including child molesters, rapists and drug dealers — also managed to avoid deportation after serving time in Harris County's jails, according to the Chronicle review, which was based on documents filed over a period of eight months starting in June 2007, the earliest immigration records available.

This important piece provide just more evidence of another major criminal justice problem that a new federal administration disregards at its peril.

November 16, 2008 in Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack

Ohio's experience implementing new crack guideline retroactivity

My local paper this morning had this effective little article about the implementation of the new reduced crack federal sentencing guidelines in the Southern District of Ohio.  Here are some particulars:

The federal probation office has determined that 256 crack-cocaine dealers in the Southern District of Ohio are probably eligible for early release from prison under a change in federal sentencing guidelines.... "That number is pretty close to being reliable. … We looked at well over 3,000 cases," said Pat Crowley, chief U.S. probation officer for the district.

The federal public defender's office had estimated that 439 inmates might be eligible. Federal prosecutors plan to object to early release in about 80 cases but agree with the probation office's assessment of the others, said William Hunt, first assistant U.S. attorney for the southern district....

The three agencies -- probation, public defender and prosecutor -- together reviewed 464 inmate files; in 80 percent of the cases, they agreed on whether an inmate was eligible and, if so, for how much of a reduction, Crowley said.

That bodes well for the inmates when they go before judges, said Steven Nolder, federal public defender for the southern district. The average sentence reduction is about 28 months, "which is right on target with the national average," Nolder said.

Hunt said the U.S. Department of Justice was not in favor of the guideline changes. But now that they are in place, he said, the department is objecting to early release for only the worst offenders.

Some related posts:

November 16, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Friday's news full of mixed blessings for Senator Ted Stevens

As detailed in this local news report, Alaska's Senator Ted Stevens got some bad political news on Friday when more vote counting put him further behind in his race with Anchorage Mayor Mark Begich.  However, there are tens of thousands of ballots still to be counted before Senator Stevens must give up hope of having been returned by Alaskan voters to the U.S. Senate.

Meanwhile, as detailed in this blog post, Alaska's Senator Ted Stevens got some good sentencing news on Friday when a split DC Circuit panel affirmed a below-guideline sentence of probation for a tax cheat.  Though there are many sentencing questions that will need to be addressed before I am prepared to predict Stevens' sentencing fate, the DC Circuit's ruling in Gardellini ensures that Stevens' lawyers will be able to effectively advocate against any prison term for the "Alaskan of the Century" (that's last century, I believe).

Some recent related Stevens posts:

November 16, 2008 in Campaign 2008 and sentencing issues | Permalink | Comments (0) | TrackBack