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December 13, 2008

"Prosecutorial Regulation Versus Prosecutorial Accountability"

The title of this post is the title of an important new paper from Stephanos Bibas now avaialble here via SSRN. Here is the paper's abstract:

No government official has as much unreviewable power or discretion as the prosecutor.  Few regulations bind or even guide prosecutorial discretion, and fewer still work well.  Most commentators favor more external regulation by legislatures, judges, or bar authorities.  Neither across-the-board legislation nor ex post review of individual cases has proven to be effective, however. 

Drawing on management literature, this article reframes the issue as a principal-agent problem and suggests corporate strategies for better serving the relevant stakeholders.  Fear of voters could better check prosecutors, as could victim participation in individual cases.  Scholars have largely neglected the most promising avenue of reform, namely changing the internal structure and management of prosecutors' offices.  Leaders could do more to develop office cultures, norms, and ideals that value more than just maximizing conviction statistics.  Hierarchical office structures and internal procedural and substantive office policies could promote deliberation, give fair notice, and increase consistency.  Hiring, training, promotion, and tenure practices could better shape prosecutors and their behavior.  Pay structures and feedback from judges, defense counsel, and victims could encourage good behavior.  Finally, publishing more data on charges, convictions, plea bargains, and sentences could also improve accountability.

I am so very pleased to see more and more legal scholars (finally!) investing more and more time and energy into how to better regulate the work of prosecutors.  It will be interesting to see if and how all the new scholarly input has a real input on prosecutorial structures and decision-making.

December 13, 2008 in Who Sentences? | Permalink | Comments (7) | TrackBack

More headlines showing the continuing death of the death penalty

It is hard to read the newspapers (on-line, of course) without seeing more and more headlines showing how the death penalty is continuing to die a slow death.  Here are the headlines of note just from today's papers:

What is especially notable about these stories is the diverse set of institutional players all migrating away from the punishment of death.  The AP story reports on a jury unable to return a death sentence in a high-profile state case.  The Times reports on the US Attorney General deciding not to pursue a death sentence in a high-profile federal case.  And the Post reports on a Maryland Commission urging that state's legislature to abolish the death penalty.

December 13, 2008 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

December 12, 2008

A thoughtful and theory-driven exploration of a parsimonious white-collar sentence

I am very pleased to conclude the week by posting a copy of a terrifically thoughtful district court sentencing opinion in a white-collar sentencing case.  The ruling comes from Judge James Gwin in US v. Cole, No. 5:08-cr-00327 (N.D. Ohio Dec. 12, 2008) (available for download below).  Among the opinion's many virtues is its extended discussion of the traditional theories of punishment that Congress set out in 18 U.S.C. § 3553.  Here is how that discussion begins:

We have long understood that sentencing serves the purposes of retribution, deterrence, incapacitation, and rehabilitation.  Deterrence, incapacitation, and rehabilitation are prospective and societal–each looks forward and asks: What amount and kind of punishment will help make society safe?  In contrast, retribution imposes punishment based upon moral culpability and asks: What penalty is needed to restore the offender to moral standing within the community?

Federal sentencing law generally tracks these purposes.  Section 3553 tells Courts to choose a sentence that reflects the seriousness of the offense (retribution), promotes respect for the law (retribution, general deterrence), provides just punishment for the offense (retribution), affords adequate deterrence to criminal conduct (general deterrence), protects the public from further crimes of the Defendant (specific deterrence, incapacitation), and provides the Defendant with needed training, care, and treatment (rehabilitation).  18 U.S.C. § 3553(a)(2).  These four goals of sentencing will be addressed in turn.

Download Cole Sentencing Memo docketed version

December 12, 2008 in White-collar sentencing | Permalink | Comments (1) | TrackBack

Maine judge finds mandatory sentence constitutionally excessive in unusual setting

This local AP story reports on an interesting state sentencing ruling:

A Maine judge says the state’s mandatory sentencing law for habitual driving offenders was too harsh to impose on a Vietnam War veteran convicted of continuing to drive after losing his license as a habitual offender.  Franklin County Superior Court Justice Michaela Murphy sentenced 60-year-old Gerald Gilman to 90 days in jail, instead of two years required by law.

Murphy wrote that a two-year sentence mandated by the state’s so-called "Tina’s Law" because of Gilman’s past drunken-driving offenses was "constitutionally excessive."  Prosecutor Andrew Robinson called Murphy’s sentence illegal and said it will be appealed.

This press report suggests there was a written decision in this case, which I will post if I can find it.

December 12, 2008 in Mandatory minimum sentencing statutes | Permalink | Comments (0) | TrackBack

Is there a law student sentencing discount for federal child porn charges?

In this post a few months ago, I responded to a story headlined "Penn hacker sentenced, avoids child porn charges," by wondering if there was an an ivy-leaguer exception to federal child porn charges.  Today, this new local story of a child porn sentencing out of Boston has me wondering if there is a law student discount in federal child porn sentence cases.  Here are some excerpts from an interesting of what sounds like an interesting sentencing hearing:

A former law school student was sentenced Thursday to a year in a halfway house for possessing child pornography. Robert A. McDonald, 25, formerly of West Springfield, dodged a stiffer sentence in federal court after he made a teary plea for leniency and told a judge he deeply regretted looking at pictures of young children being sexually abused on the Internet....

In July, he admitted to one count of possession under a plea agreement with prosecutors. The halfway house sentence will allow McDonald to work during the day, but he must return there nights and weekends for a year.

Defense lawyer Hope C. Button said McDonald, now of Millbury, suffered from an Internet addiction and became enthralled by pornography as an adolescent. He began dabbling in child porn in spring 2007, according to Button. "The time Mr. McDonald viewed illegal pornography was extremely limited," Button told U.S. District Court Judge Michael A. Ponsor during a sentencing hearing. "It was if he had just stepped over that line."

Under advisory federal sentencing guidelines, McDonald faced a minimum of 24 months in prison. Ponsor told the defendant that judges are under increasing pressure to hand down onerous penalties to anyone involved in the distribution of child pornography - particularly over the Internet, where it proliferates. "There is no question that Congress wants us to clobber child pornographers," Ponsor said. "Sentences have been ratcheted up and up and up, and messages to judges have gotten louder and louder and louder."

To be sure, McDonald seemed an unlikely candidate to be standing before the court. According to court filings, he was a standout student who made the Law Review, was engaged to be married and aspired to hold public office when agents raided his house....

Assistant U.S. Attorney Alex J. Grant argued for prison time, but noted McDonald was an unusual defendant. "I dare say that there are few defendants that I prosecute ... who have a resume and a Law Review article to submit (at sentencing)," Grant said.

As I have stressed in a number of prior posts, anyone seriously concerned about federal sentencing disparities should look very closely at federal child porn cases.  And, critically, this look must focus closely on the operation of prosecutorial discretion, which often seems to have an even bigger impact in these cases than judicial discretion.

Some related federal child porn sentencing posts:

December 12, 2008 in Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

A refreshing reminder from Washington (state) that clemencies can be virtuous and deserved

With all the renewed discussion of President Clinton's ugly pardon of Marc Rich and debates over which friends President Bush might pardon, it is all too easy to forget the virtuous facets of the clemency power.  Fortunately, thanks to this article in the Seattle Times, we can all be reminded that the power to be merciful that the clemency power reflects can (and should) be used in virtuous ways.  Here are the basics:

The state Clemency and Pardons Board [Thursday] voted to recommend clemency for a man convicted 14 years ago of a three-strikes offense and sentenced to life in prison. The board voted 4-0 to recommend that Stevan Dozier be released from prison, where he has spent the past 14 years after being convicted of second-degree robbery. The recommendation now goes to Gov. Christine Gregoire.

If Gregoire approves the clemency, Dozier will be the first inmate sentenced to life under the state's three-strikes law to be released from prison.... Among those speaking on Dozier's behalf [at his] clemency hearing in Olympia were King County Prosecutor Dan Satterberg, the judge who sentenced Dozier to prison and John Carlson, one of the authors of the state's three-strikes law.  All agree that Dozier deserves a second chance at freedom.

"I accept personal responsibility for my past," Dozier told the board by telephone from the Monroe Correctional Complex. "I used to lack respect for other people and their belongings. I have changed."

Fourteen years ago, Dozier was hooked on crack cocaine, an addiction he funded by snatching women's purses and striking his victims in the face if they fought back.  On Feb. 1, 1994, Dozier attacked 69-year-old Mary Bedford as she was walking into her North Seattle apartment. He knocked her to the ground, punched her in the face and grabbed her wallet. The robbery resulted in an automatic life sentence for Dozier — only the sixth felon to commit a third-strike offense in the year that the law had been in effect.... 

For Satterberg, who has spent a career putting felons behind bars, arguing on Dozier's behalf will help correct what he considers a disproportionately stiff sentence written into the original law. Dozier's third-strike offense was second-degree robbery, a crime Satterberg's office rarely uses as a strike crime....

Dozier was convicted of three separate counts of second-degree robbery between 1986 and 1994. The Rainier Beach High School graduate wanted cash from his victims to pay for cocaine, said his attorney Jeffrey Ellis. "His story is that of a guy whose life was derailed by crack cocaine," Ellis said. "Because of the allure of money, because his addiction was so strong, he would use force to get the purses."

Factoring in Dozier's criminal history, he has already been behind bars twice as long as he would have been had the crime not resulted in a third strike, prosecutors said.... Satterberg praises Dozier for maintaining a minimum-wage prison job, attending drug treatment and sending money home to his adult autistic son. According to the state Department of Corrections, Dozier hasn't received a major infraction for more than a decade.

"Here is someone who has no motive to be a model inmate and [no hope] of gaining freedom again and turned his life around," Carlson said. "He has won the confidence of people within the institution and outside the institution." In a letter to Gregoire and Margaret Smith, chair of the Clemency and Pardons Board, Satterberg said that Dozier "has expressed remorse of his crimes many times over the years."

December 12, 2008 in Clemency and Pardons | Permalink | Comments (5) | TrackBack

Lots of holiday gifts from BJS for data junkies

This is the time of year in which the Bureau of Justice Statistics releases a whole bunch of statistics about prisoners and others under state and federal criminal control.  This year I got an e-mail from BJS providing links to a cornucopia of data.  Overwhelmed by all the goodies, I decided I'll just cut-and-paste all the goodies and links from the e-mail:


Prisoners in 2007
Available online at: http://www.ojp.usdoj.gov/bjs/abstract/p07.htm.

Presents data on prisoners under jurisdiction of federal or state
correctional authorities on December 31, 2007, collected from the
National Prisoner Statistics series.


Probation and Parole in the United States, 2007 - Statistical Tables
Available online at: http://www.ojp.usdoj.gov/bjs/abstract/ppus07st.htm.

Presents the number of persons on probation and parole at yearend 2007,
by state, with percent changes in each state during the year.


BJS Key Facts at a Glance charts

Incarceration rates, 1980-2007
Available at: http://www.ojp.usdoj.gov/bjs/glance/incrt.htm

State prison population by offense type, 1980-2005
Available at: http://www.ojp.usdoj.gov/bjs/glance/corrtyp.htm

Adult correctional populations, 1980-2007
Available at: http://www.ojp.usdoj.gov/bjs/glance/corr2.htm

December 12, 2008 in Data on sentencing | Permalink | Comments (0) | TrackBack

December 11, 2008

Will we invest in classrooms or cells in these tough times?

Eric Lotke blogging over at the website of the Campaign for America’s Future has this notable and important new post titled "Good Building, Bad Building."  Here are some snippets from today's must-read (with lots of great links not copied here):

China has opened a new subway system every year for the past six years. The U.S. has opened 45 new prisons and jails. Who’s setting up to lead in the 21st century?...

Even as states spend nearly $50 billion on prisons every year and counties spend over $20 billion on jails, we build additional locked capacity. Even with U.S. incarceration rates at seven times historical and international norms, we build. Even as crime continues on its 15-year descent to levels not seen in 40 years, we find money to build even more.

The sacrifices we make to build these prisons are astonishing.  Between 1987 and 2007, state spending on prisons increased by 40 percent (as a percent of the general fund).  State spending on higher education decreased by 30 percent. We are financing our prisons by cutting our colleges.

We continue to build even though prisons are often disappointing for economic development. The best jobs go to people from out of town, and dollars spent on prisons have little “multiplier” effect. They don’t generate future additional dollars of economic activity, as do dollars spent on transportation, schools and so forth.  Every dollar invested in highway construction generates $2.50 of gross domestic product in the short term.  Raising teacher wages by 10 percent is associated with a 5 percent decrease in drop-out rates.  But still we shortchange our schools and other rural enterprise, and build new prisons....

As our new federal leaders develop plans for stimulus and infrastructure investment, they should self-consciously direct resources to break the link between prisons and the dependent rural economies. They should create a grant program to help states transition from prison economies to more productive uses....

It’s a modest investment for the federal government that can yield substantial dividends quickly. But it needs to be consciously identified as a goal.  Left alone the prison autopilot will continue to rise.

Some related posts:

December 11, 2008 in Scope of Imprisonment | Permalink | Comments (11) | TrackBack

Any profound thoughts on the state of federal sentencing a year after Gall and Kimbrough?

It just dawned on me this morning that yesterday marked the one-year anniversary of the Supreme Court's decisions in Gall and Kimbrough, the two cases in which the Justices made extra clear that Booker really meant that the guidelines were to be treated as truly advisory.  Though the US Sentencing Commission seems unlikely to produce a "one-year-later" report on the impact of Gall and Kimbrough, it seems fair to suggest that these cases have had an important and consequential effect on federal sentencing outcomes and atmospherics. 

I could opine at length about my own impressions of the tangible and intangible impact of Gall and Kimbrough, but this post is mostly designed to encourage reader input.  Specifically, I am eager to hear from commentors concerning whether and how Gall and Kimbrough should be celebrated or cursed one year later.  I would also love to hear suggestions about what institutions like the US Sentencing Commission, the Justice Department and Congress should be thinking about as we start year two of the post-Gall/Kimbrough world (and approach year five(!) of the post-Booker world).

December 11, 2008 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Gall reasonableness case, Kimbrough reasonableness case, Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack

DPIC releases year-end report on state of death penalty in 2008

DPIC data Because there are no more executions scheduled for 2008, the Death Penalty Information Center was able to release its annual report on the death penalty early this year.  The report is available at this link, and it has these two sub-titles on its first page, "Marginalization of the Death Penalty Deepens With 95% of Executions in the South" and "Economic Concerns Bog Down Capital Punishment System." 

The first sub-title is not especially new or notable, since the vast majority of executions have always been in the south over the last three decades.  The second sub-title is new and notable because it has only been in recent years that the costs of administering capital punishment have become a more common part of policy debates.  And the DPIC report reinforces these economic dynamics in its conclusion:

Death sentences and executions have declined in the current decade.  Supreme Court Justices, law enforcement officers, and victims representatives have voiced deep concerns about the way the death penalty has been applied and whether it deserves fixing.  Clearly, a more reliable death penalty system will be very expensive.  As the country's economic crisis deepens, some states have abandoned capital punishment and others are considering doing so, primarily on pragmatic grounds....

The recent election revealed that the American public has become impatient with government programs that are very expensive and do not work.  There is a broad consensus for change.  As a program with increasing costs and questionable returns, the death penalty could be affected by these sentiments in coming years.

As I have suggested in so many prior posts, every capital punishment case is costly and a well-run capital punishment system is very expensive.  With states facing budget crunches and having to cut so many government programs that seek to help lots of citizens in need, states likely will continue to see the economic wisdom of cutting a government program that seek to kill a few citizens who murder.

The DPIC year-end report is always effective at getting these capital punishment realities in the news, and this year is no exception.  Here are links to just some of the major news coverage:

December 11, 2008 in Death Penalty Reforms | Permalink | Comments (3) | TrackBack

Noting the Second Circuit's approval of big white-collar sentencing break

The National Law Journal noticed the Second Circuit's important (though unpublished) sentencing work earlier this week as reported in this article, headlined "In Upholding Impath Exec's Sentence, 2nd Circuit Bolsters Discretion of Trial Judges."  Here are snippets from an effective article:

In a decision important to high-dollar white-collar prosecutions, the 2nd U.S. Circuit Court of Appeals bolstered the broad discretion of trial judges to issue sentences far below, or far above, sentencing guidelines.  The court Tuesday upheld the 42-month prison sentence of former Impath Inc. chief operating officer Richard Adelson, despite an 85-year sentence recommended by the guidelines. Federal prosecutors had appealed seeking more time for Adelson.... 

Around the country, federal judges have grappled with ways to calculate reasonable sentences for corporate criminals under the guidelines that say the higher the financial losses the longer the sentence. In securities cases market gyrations in the wake of news of corporate malfeasance can cost investors millions of dollars and increase potential criminal sentences.

"The Supreme Court has spoken several times on this issue but the courts of appeal never really got it, until now," said Mark S. Arisohn, of Labaton Sucharow in New York and Adelson's attorney. "The 2nd Circuit now recognizes that district courts have discretion to deviate from the guidelines, way up or way down, so long as the district court judge justifies that decision," he said....

U.S. District Judge Jed S. Rakoff called that a virtual life sentence and "patently unreasonable," of the sort reserved for Mafia dons and drug kingpins.  In 2006, the same year Adelson was sentenced, the circuit upheld the 25-year sentence for ex-WorldCom Inc. chief Bernard J. Ebbers, based on an $11 billion fraud that sent WorldCom into bankruptcy.

"I don't know of any other cases out there where the difference between guidelines and actual sentence were so big," Arisohn said....  The ruling further bolsters the authority of federal judges to be guided by individual circumstances in white-collar cases involving large market losses, and set was is reasonable, rather than adhering strictly to a guidelines formula, according to Arisohn.

Some related posts:

December 11, 2008 in White-collar sentencing | Permalink | Comments (0) | TrackBack

Fugitive mom back in Michigan court pleading for a sentencing break three decades later

Lefeve Some may recall the remarkable story of long-time fugitive Susan LeFevre (background here), a drug crime defendant who escaped from a Michigan prison in the 1970s and lived for three decades and raised a family in California under another name.  As detailed in this local press report, LeFevre is back in court and thus back in the news.  And, fascinatingly, the debate is over mandatory sentencing terms and pre-sentencing procedures even three decades later:

She maddeningly refused to answer the most innocuous question. Other times she rambled. Still other times she ignored her attorney's advice to stop talking. During a disjointed two hours on the witness stand Wednesday, a wealthy California woman who escaped from a Michigan prison 32 years ago tried to explain why her original prison sentence should be shortened.

By the time she finished, the only thing Susan LeFevre may have accomplished was raising doubts in the mind of the judge who will decide her fate. After listening to LeFevre and other witnesses during a hearing that began and ended with tears, Saginaw Circuit Judge William Crane continued the matter until January to give the prosecutor and defense attorneys time to submit written legal arguments.

But Crane was clearly unimpressed with LeFevre's testimony, especially when she claimed she wasn't guilty of the drug charges that she pleaded guilty to in 1975. She said the only reason she admitted selling drugs back then was to mollify prosecutors so they would support her bid for probation. Instead she received a 10-20 year sentence....

Her replies frustrated her two defense attorneys, who aren't contesting the original conviction. Rather, the attorneys are contesting the long prison sentence on other grounds.

They said LeFevre never had a chance to see her presentence report prior to her sentencing. If she had, she could have corrected numerous errors in it that may have influenced the original judge's sentencing, including the fact that she was a big-time dealer pocketing $2,000 a week. Also, the original judge erred by following a Saginaw court policy of sentencing anyone selling heroin to 10-20 years in prison, the defense attorneys said. LeFevre was a first-time offender who should have received far less, they said.

Assistant Saginaw County Prosecutor Paul Fehrman argued Wednesday that LeFevre waived her right to seek a new sentence when she escaped from prison in 1975. She should have tried to appeal her sentence, he said. "She made a conscious decision to leave Michigan and stay away for 30 years," he said. "She took matters into her own hands."

December 11, 2008 in Offender Characteristics | Permalink | Comments (2) | TrackBack

December 10, 2008

An effective review of the state of debate over the death penalty

Stateline.org has this effective new piece on the state of legislative debates over the death penalty in a few states.  The piece it titled, "Death penalty: Will other states follow N.J.?", and here are excerpts:

A year after New Jersey became the first state in a generation to repeal the death penalty, capital punishment opponents in Maryland and New Mexico are pointing to recent political developments in their states as a sign they could be next....

In at least one state where a repeal of the death penalty recently has come close to reaching the governor’s desk — Nebraska — political conditions have changed considerably and could hamper similar efforts in the future....

Even before New Jersey repealed its death penalty late last year, capital punishment was on the wane in the United States. Most of the nation’s executions are carried out in a handful of states, led by Texas, Virginia and Oklahoma, and overall numbers of death sentences and executions have trended downward.  The U.S. Supreme Court’s review of lethal injection, which it took up late last year, caused a nationwide moratorium on all executions that added to the decline.

Some recent related posts:

December 10, 2008 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

An honest (and honorable?) gendered sentencing outcome in adult-teen sex case

I have blogged in the past about how the sentencing of crimes involving adult-teen sexual relations often seems influenced by the genders of the adult and the teen.  The sentencing case from New Hampshire reported in this AP article, which is headlined "Judge cites boy's 'raging hormones,' reduces woman's sentence for sex with teen," brings this issue into the open in a case that seems notable (and strange) for various reasons.  Here are the basic details:

A 38-year-old woman was sentenced to prison Monday for sexually assaulting a teenage boy she initially accused of rape. Robin Mowery of Nashua was convicted in June of four counts of felonious sexual assault and two counts of sexual assault involving a friend of her teenage daughter. Mowery was 35 at the time; the boy was 15.

Prosecutors wanted her to serve 8 1/2 to 21 years behind bars, but Hillsborough County Superior Court Judge Robert Lynn handed down a lesser sentence of two to four years. She will receive credit for 180 days already served. "Like it or not, an underage boy having sex with an older-aged girl is viewed differently than the other way around," Lynn said at the sentencing hearing.

Lynn said he weighed the extent of the teen's victimization against how aggressively the boy pursued Mowery. "Young men have raging hormones. It doesn't make him a bad person," said Lynn, who also noted that the teen also tried to use the relationship as a "bargaining chip" to escape penalty for crimes committed as a juvenile.

Lynn also chastised Mowery for falsely testifying that the teen forced her to have sex at knifepoint. She also claimed he threatened to rape and kill her daughter if she spoke about their affair. "That was complete baloney," the judge said.

The paper reporting this story has created this little on-line survey to assess reader reactions to these gendered issues.  Disappointingly, one does not get to see the results of the survey upon completing it.

December 10, 2008 | Permalink | Comments (5) | TrackBack

The sentencing benefits of joining the winning team in the OJ case

This AP story, headlined "All 4 former Simpson co-defendants get probation," reports on yesterday's sentencings outcome for those defendants in the latest OJ case who figured out the best sentencing game-plan for small-time criminals is to plead guilty and help prosecutors by testifying against the big dogs.  Here are the basics:

Four men who pleaded guilty to reduced charges in exchange for testifying against O.J. Simpson at his robbery-kidnapping trial were sentenced Tuesday to probation, drawing a loud protest from a sports memorabilia dealer they held at gunpoint in a Las Vegas hotel room.

"You've got to be kidding me!" Bruce Fromong exclaimed after Clark County District Court Judge Jackie Glass sentenced Michael McClinton to eight years' probation. McClinton, 50, testified that he supplied two guns and brandished one during the Sept. 13, 2007, confrontation. "Get him out of the building," Glass said of Fromong. She did not let Fromong address the court before sentencing.

Glass lectured the four defendants but accepted a state recommendation that they serve no prison time. She handed probation terms of six years to Charles Ehrlich, four years to Walter Alexander and three years to Charles Cashmore.

The sentences were much lighter than those meted out Friday to Simpson and Clarence "C.J." Stewart, the only co-defendant who stood trial. Glass sentenced Simpson to nine to 33 years in prison and Stewart to 7 1/2 to 27 years.

Some related posts on OJ's sentencing:

December 10, 2008 in Celebrity sentencings | Permalink | Comments (1) | TrackBack

Tenth Circuit find Booker not applicable in crack retroactivity proceedings

A helpful reader reminded me today that I still haven't blogged about an important Tenth Circuit ruling concerning Booker's applicability to crack retroactivity proceedings that was handed down late last week.  (I can blame OJ and Plaxico for distracting me from more sober and arguably more important issues.)  The thoughtful panel decision in US v. Rhodes, No. 08-2111 (10th Cir. Dec. 5, 2008) (available here), cannot be easily summarized, but here are some key sections:

Although the parties and district court agreed that § 3582(c)(2) afforded the district court authority to modify Rhodes’ term of imprisonment, the parties and district court disagreed as to the extent of that authority. In particular, the government and district court concluded, over Rhodes’ objection, that the district court’s authority was circumscribed by § 1B1.10 of the Sentencing Guidelines.... Rhodes argues that, “because a hearing pursuant to § 3582(c)(2) is a new sentencing hearing, Bookeris applicable and the guidelines – including § 1B1.10 – must be considered advisory.”...

The remedial portion of Booker resolved the Sixth Amendment issue by excising § 3553(b)(1), which mandated that district courts, in conducting original sentencing proceedings, impose within-Guidelines sentences.  Importantly, however, Booker made no alteration to § 3582(c)(2), which, as noted, provides the statutory basis for sentence modification proceedings.... [T]he Sixth Amendment concerns that gave rise to the Booker decision will not be replicated in sentence modification proceedings.  Given the narrow scope of sentence modification proceedings, there is no concern that a district court in such a proceeding will make factual findings that in turn will raise a defendant’s sentence beyond the level justified by “the facts established by a plea of guilty or a jury verdict . . . .” Booker, 543 U.S. at 244.  Indeed, a district court in a sentence modification proceeding is authorized only to “reduce the [originally imposed] term of imprisonment,” 18 U.S.C. § 3582(c)(2), not to increase it.  As a result, we conclude that Booker simply has no bearing on sentencing modification proceedings conducted under § 3582(c)(2).

The Tenth Circuit panel in Rhodes recognizes that its holding is in conflict with the Ninth Circuit decision on this issue in the Hicks case:

The problem with the Hicks decision, in our view, is that it failed to consider that, as outlined above, sentence modification proceedings have a different statutory basis than original sentencing proceedings.  As a result, the Ninth Circuit erroneously concluded that the remedial portion of the Booker decision, which rendered the guidelines effectively advisory for purposes of original sentencing proceedings, applied to § 3582(c)(2) proceedings as well.

Ah, the sweet smell of a clean circuit split...

December 10, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Are the modern Second Amendment and Fourth Amendment on a collision course?

Though not (yet) a true sentencing issue, my deep interest in post-Heller gun litigation and my concerns about individual liberty have me wondering if the modern Second Amendment and Fourth Amendment are on a collision course.  Or, to be more precise, this post yesterday from The Volokh Conspiracy and this post yesterday from SCOTUSblog have me thinking again that Heller has extraordinary potential to create so many new issues/headaches in unexpected settings.

The post from Eugene Volokh reports on a federal district court decision last week, Lund v. Salt Lake City Corp., 2008 U.S. Dist. LEXIS 98722 (D. Utah Dec. 4), in which a federal district judge cites Heller in support of the proposition that "mere possession of a firearm in public is not unlawful and may well represent the exercise of a fundamental constitutional right guaranteed by the Second Amendment to the United States Constitution."  The post from Lyle Denniston at SCOTUSblog reports on yesterday's Supreme Court argument in which the state of Arizona and the federal government argued for — and got Justices supporting — the broad proposition that police who encounter someone in a public place should have the authority to frisk that individual any time they fear he may be “armed and dangerous,” even if they have no suspicion that any crime has been or is being committed.

Connecting these dots suggests the possibility that Heller may give me and all other citizens (save those with any criminal record?) a constitutional right to possess a gun in public, but the reasonable probability that some person may exercise this right in turn provides police with ready and perhaps unlimited authority to frisk any and everyone in public based on the (ever-present?) fear of an armed and dangerous individual.  Of course, police authority to frisk everyone in public may be limited by statute, but it seems that a number of Justices are prepared to assert it has virtually no limit in the Fourth Amendment.

These issues get extra tricky given that big-city mayors like Mike Bloomberg seem prepared and eager to say that anyone armed within a city is necessarily dangerous (especially if his gun is loaded).  Could the Mayor of DC (or any other city that might have a gun ban struck down after Heller) instruct police forces to frequently and repeatedly frisk any and everyone who might be armed in order to make sure that any possessed gun is unloaded and/or in good working so as not to be dangerous?

The deepest irony here is that those Justices who have embraced broad individual gun rights in Heller seem to be the same Justices untroubled by police having broad power to search individuals for guns.  Their view is, apparently, that legislatures are quite constitutionally limited in their power to restrict gun possession, but police are not very constitutionally limited in their power to search anyone who might be in possession of a gun.  These positions do not conflict as a matter of logic, but they make for a strange relationship between government power, gun possession and individual liberty.

December 10, 2008 in Second Amendment issues | Permalink | Comments (6) | TrackBack

Second Circuit affirms (in unpublished opinion) greatly reduced white-collar sentence

Regular readers and white-collar sentencing fans likely remember the memorable 2006 sentencing decision in Adelson (basics here, comments here right after the sentence was rendered).  In Adelson,  SDNY District Judge Jed Rakoff's granted an huge variance to a corporate president who faced a life sentence under the federal sentencing guidelines after a fraud conviction that resulted in $260 million in losses. 

I just learned from a helpful reader that yesterday the Second Circuit rejected the government's appeal of this sentence (in this summary order), based largely on the strength of the Circuit's work last week in its en banc Cavera decision (basics here, comments here on Cavera).  Here is the heart (indeed, virtually all) of the Second Circuit panel's explanation for why the way-below-guideline sentence in Adelson was reasonable:

 In Cavera, we stated that, “we will continue to patrol the boundaries of reasonableness, while heeding the Supreme Court’s renewed message that responsibility for sentencing is placed largely in the precincts of the district courts.”  Slip op. at 17.  We further noted that for certain kinds of crimes, including — as relevant to the present case — various financial offenses, “a district court may find that . . . there is a wide variety of culpability amongst defendants and, as a result, impose different sentences based on the factors identified in § 3553(a).”  Id.  We explained that “[s]uch district court decisions, if adequately explained, should be reviewed especially deferentially.”  Id.

This is just such a case. After adopting many of the calculations in the Presentence Report, the able district judge properly calculated Adelson’s total offense level and gave due consideration to the Section 3553(a) factors, including the nature, circumstances, and seriousness of the offense; the goal of deterring other potential offenders; and the history and characteristics of the defendant. After carefully considering those factors, the District Court sentenced Adelson principally to 42 months’ imprisonment, a sentence substantially below the applicable Guidelines range of life in prison, and also imposed an order of restitution of $50 million, payable to the company’s shareholders, and directed Adelson to forfeit $1.2 million in criminal proceeds.  The Government argues that in doing so the District Court “discarded the Guidelines in favor of the District Court’s personal view of the seriousness of the offense,” resulting in “fail[ure] to give proper weight to the sentencing factors.” But the record demonstrates that the District Court’s decision to impose a below Guidelines sentence was not a failure or refusal to recognize the Guidelines, but rather a carefully considered reliance on the Section 3553(a) factors.  In doing so, the District Court satisfied the requirements we described in Cavera, and we therefore affirm the sentence.

December 10, 2008 in White-collar sentencing | Permalink | Comments (0) | TrackBack

Gender bias and the application of the death penalty

Women As detailed in this local article, headlined "Tennessee moves closer to executing first woman: Sixth Circuit denies appeal to woman convicted in murder for hire of husband," a new federal habeas ruling in a state capital case provides an effective opportunity to reflect on gender bias in the application of the death penalty.  Let's start with the basics of the new ruling and the underlying crime:

The first woman ever to be sentenced to death in Tennessee is a step closer to the death chamber today after the Sixth Circuit Court of Appeals denied her habeas petition in a 2-1 decision. Nashville based Judge Gil Merritt filed the dissenting opinion.

Gaile K. Owens was convicted in Shelby County in 1986 of accessory before the fact in the 1985 murder of her husband, Ronald Owens.  The man who killed her husband, Sidney Porterfield, was also sentenced to death. Owens committed her crime on February 17, 1985 and was convicted on January 4, 1986. She entered prison on February 21, 1986.

The Sixth Circuit decision is available at this link, and this paragraph from the start of Judge Merritt's dissent highlights the gendered realities that flow through this capital case:

The facts about Ryan Owens’ cruel and sadistic behavior toward his wife now make an overwhelming case of domestic violence and psychological abuse in mitigation of the murder case against Gaile Owens. From the beginning, Mrs. Owens’ counsel knew that this was her best — indeed, her only — defense.  Before trial, her counsel told the trial court that in his opinion: “This case has a meritorious defense in the battered-wife syndrome.” (App. 120.)  The Memphis district attorneys obviously knew that this was the defense theory.  But this defense was never developed or even mentioned to the jury during the trial because of the cover-up of exculpatory evidence by the Memphis prosecutor and the complete failure of defense counsel to conduct a proper investigation of Ryan Owens’ sadistic behavior toward his wife.  I will discuss the Memphis prosecutor’s cover-up of exculpatory evidence first, then defense counsel’s failure to investigate and develop the defense, and finally the refusal of the Memphis trial court to allow in evidence one of the defendant’s best lines of mitigation testimony.

Though Judge Merritt's dissent here suggests gendered realities led to the murder and death sentence in this case, others might argue that the gender bias we see in the application of the death penalty usually helps women and disfavored men. 

The DPIC has this great page on women and the death penalty (from which I got the picture above). As Professor Vic Streib has effectively documented in this great accounting from the DPIC page, women make up 10% of those arrested for murder, but make up less than 2% of those persons on death row and less than 1% of those executed in the modern capital era.  And yet, as the Owens case perhaps suggests, maybe even those very few women sent to the row and executed could be themselves the victim of broader societal gender biases.

UPDATE:  In a notable coincidence, this news report on an Ohio Supreme Court decision handed down just today indicates that the number of women on Ohio's death row has been now cut in half:

Citing a judge's error, the Ohio Supreme Court on Wednesday threw out the death sentence of a woman who killed her 4-year-old son and set a fire to hide evidence of the crime.  The move leaves just one woman in Ohio facing execution.

Though the state has an active capital punishment system, it doesn't have a history of sending many women to death row.  Only six women have been sentenced to death under the state's 1981 capital punishment law.

December 10, 2008 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5) | TrackBack

December 9, 2008

Another notable child porn sentencing decision

I've previously noted the diversity of approaches and outcomes in federal child porn sentencings, in part because the the guidelines recommend sentences around the top of applicable statutory ranges.  A helpful reader sent along a notable new decision addressing these realities handed down last week by Judge Pratt (or Gall fame).  The opinion in US v. Johnson, No. 4:07-cr-00127 (N.D. Iowa Dec. 3, 2008) (available for download below), merits a full read.  Here is one of many notable passages:

Congress has created a fifteen-year window, between the statutory minimum (5 years) and maximum (20 years) sentences, within which this Court can penalize a convicted child pornographer. See 18 U.S.C. §§ 2252(a)(2), (b)(1). However, on account of Congress’ tinkering with the guidelines, the Commission now recommends that nearly all defendants be incarcerated near the twenty-year statutory maximum. Thus, strict adherence to the sentencing guidelines effective at the time of Defendant’s arrest, and even more so to those effective today, would make it difficult for the Court to consider the individualized factors that § 3553(a) requires.  Stated differently, the Court would struggle to differentiate between the punishment appropriate for the most and the least egregious acts of child pornographers.  As this Court noted in Shipley, the Court must consider the need to avoid unwarranted similarities in the punishment handed down to differently situated defendants.  560 F. Supp. 2d at 745-46.  The statute provides a broad range of punishments for the crime Defendant committed . If Congress does not want the courts to sentence individual defendants throughout that range based on the facts and circumstances of each case, then Congress should amend the sentencing statute, rather than manipulate the advisory guidelines, thereby blunting the effectiveness and reliability of the work of the Sentencing Commission.  While the Court has consulted the advice of the guidelines, the Court finds this advice is less reliable in the present case than in others where the guidelines are based on study and empirical data.

Download Johnson CP Sentencing Decision

December 9, 2008 in Sex Offender Sentencing | Permalink | Comments (8) | TrackBack