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November 19, 2008

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