December 9, 2008
What's the guideline calculation for a Governor selling a Senate seat?
I often joke that politicians and criminals will always make sure I have a job and that business gets good when politicians are the criminals. If that joke has a basis in reality, business just got real good in light of this stunning news out of Illinois:
Federal agents arrested Illinois Gov. Rod R. Blagojevich and a senior aide on corruption charges, accusing the Democratic governor of trying to sell the Senate seat being vacated by President-elect Barack Obama. Mr. Blagojevich, 51 years old, and chief of staff John Harris, 46, are each charged with conspiracy to commit mail and wire fraud and solicitation of bribery.
According to a 76-page two-count indictment unsealed by prosecutors in Chicago on Tuesday, Federal Bureau of Investigation agents allegedly heard the governor on wiretaps attempting to trade or sell the Senate seat being vacated by Mr. Obama when he becomes president next month.
In exchange for the Illinois seat, federal agents say Mr. Blagojevich is heard seeking a number of arrangements, including a salary for himself at an organization affiliated with labor unions, a cabinet post or ambassadorship for himself, cash or campaign funds, and placing his wife Patti on paid corporate boards.
During a Dec. 4 wiretapped conversation, Mr. Blagojevich allegedly told an adviser he would "get some [money] upfront, maybe" from one candidate for the Senate seat.
Wowsa! The lengthy FBI affidavit outlining the charges against Governor Blagojevich is available at this link. I suppose law students thinking about career paths should be encouraged to learn that the market for representing corrupt politicians is unlikely to dry up anytime soon.
Who would have thought that former Governor George Ryan could start claiming in his clemency arguments that was the least corrupt Illinois chief executive in recent memory?
The decline of death even in Texas!
Perhaps the surest sign that the death penalty is dying a slow death in the United States comes from the state most responsible for keep the death penalty so lively in recent decades. Thanks to Capital Defense Weekly, I discovered this new report from the Texas Coalition to Abolish the Death Penalty, titled "Texas Death Penalty Developments in 2008: The Year in Review." Consider these amazing data concerning death sentences imposed in 2008 from the report:
According to data compiled from news sources, the Texas Department of Criminal Justice, and the Office of Court Administration, eight men and one woman were newly sentenced to death in Texas in 2008. This marks the lowest number of new death sentences in Texas since official reinstatement of the death penalty in 1976 and reflects similar trends nationwide. It also represents a steep departure from the late 1990s, when as many as 48 people in Texas were sent to death row in a single year....
Notably, Harris County, which in the past condemned as many as 15 people a year to death, did not send anyone to death row in 2008. While Harris County still accounts for a third of all Texas inmates awaiting execution (116 of 344), it only has sentenced seven people to death in the last four years.
Wow! I assume these remarkable numbers reflect the tendency of prosecutors seeking few death sentences and juries handing out fewer death sentences (though I suppose it is possible that there were a lot few horrible Texas murders in recent years than a decade ago).
Some recent related posts:
- Notable second-term Presidential execution realities
- Busy pre-holiday weeks for executions
- As goes Maryland, so goes the nation on capital punishment?
- More evidence that the death penalty is dying a slow death on the front lines
- Any speculations on what this Election Day could mean for the death penalty?
Encouraging decarceration story out of New Hampshire
This local story from New Hampshire provide a nice reminder that not all government official at all levels want to increase incarceration. The piece is headlined, "Worthy inmates may get sentence break," and it highlights efforts by the state's top corrections official to get some individuals out of prison earlier:
The state's top prison official said yesterday he is putting new emphasis on helping worthy inmates win a suspension of part of their sentences. State law allows the commissioner of corrections to intercede when an inmate wants to ask for a sentence suspension, but may not have been in prison long enough to qualify under the law.
Corrections Commissioner William Wrenn said he is using that power to help convince inmates to continue their education and obtain a high school diploma or equivalency while they are in prison. "All the studies out there say the higher level of education that somebody achieves, the less likely they are to recidivate," he said. "So we work hard to motivate them to try and get that diploma."
Corrections Department data shows about four out of five state prisoners dropped out of high school before earning a diploma.
Wrenn's idea could save the state money. The average cost to house a prison inmate is $30,000 a year. Like commissioners at other state agencies, Wrenn is under orders to cut his budgets for the next two years....
State truth-in-sentencing laws don't allow prisoners time off for good behavior. They do allow an inmate to ask the judge who imposed his sentence to suspend part of it, but only after serving the greater of four years or two-thirds of the minimum term. The same law allows Wrenn to forward a petition to the judge when he thinks it's justified.
Wrenn said some cases may warrant review before four years are up, but he is not about to install a revolving door in the prison walls..... "We're saying to inmates, 'Look, if you do lot of positive things in an attempt to change your behavior and the drivers of your behavior, and you're doing positive stuff, then we'll give you an opportunity to take your case back to a judge for a review.'"...
Corrections spokesman Jeffrey Lyons said that in 2007, less than 48 percent of 2,800 inmates had a diploma. During the year, 13 earned a high school diploma and 93 got a GED.
Wrenn hopes to boost those figures.... "Anything we can do to safely and with low risk to allow somebody back into the community, I think it is worthwhile," Wrenn said.
It is not surprising that tight budget times are leading some state corrections officials to look for creative and progressive ways to reduce incarceration costs. Indeed, given that we still see so few politicians willing to break away from the old "tough-on-crime" thinking, the themes of "cost-effective-on-crime" may be the best hope toward moving away from expensive over-reliance on imprisonment in our nation's criminal justice systems.
Tenth Circuit rejects various challenges to SORNA failure to register crime
Another circuit court has directly addressed various constitutional challenges to the federal crime of failing to register as a sex offender: yesterday the Tenth Circuit in US v. Lawrance, No. 08-6034 (10th Cir. Dec. 8, 2008) (available here) found the defendants claims unavailing. Here is how the opinion begins:
Defendant-Appellant Keith Allen Lawrance appeals from his conviction for failing to register pursuant to the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250, enacted July 27, 2006. Mr. Lawrance entered a conditional guilty plea to the indictment, reserving his right to appeal the district court’s order denying his motion to dismiss. See United States v. Lawrance, No. CR-07-166-D, 2007 WL 5271934 (W.D. Okla. Sept. 5, 2007). He was sentenced to fifteen months’ imprisonment and five years’ supervised released. On appeal, he argues that the application of SORNA and its failure to register provisions to his case is unconstitutional because the statute violates (1) the Ex Post Facto Clause, (2) the Commerce Clause, and (3) the Due Process Clause. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.
UPDATE: Even more SORNA challenges go down in US v. Hinckley, No. 07-7107 (10th Cir. Dec. 9, 2008) (available here). A concurrence and a dissent in Hinckley provide a potent reminder that these issues are subject to significant debate and will be subject to continuing litigation until the Supreme Court takes up one of these types of cases.
In the meantime, Sex Crimes is the go-to blog for all the SORNA litigation updates and commentary. Over there, Corey Yung has this post on the Tenth Circuit rulings and this post on a new district court SORNA ruling. Notably, this new district court ruling from Florida, in US v. Myers, No. 08-cr-60064-WJZ (SD Fla. Dec. 9, 2008), hold that a prosecution under SORNA for failing to register is an unlawful extension of Commerce Clause authority.
December 8, 2008
My latest (academic?) musings about progressive punishment perspectives
The kind editors of the Harvard Law & Policy Review were kind enough to ask me to write a piece for their terrific on-line journal. Thanks to the editors' great and speedy efforts, my HLPR article now appears at this link. The piece is titled, "Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities," and here are the first two paragraphs:
Progressives have long played a leading role in reforming punshment practices and sentencing norms in the United States. In the nineteenth century, progressives pioneered a move away from brutal physical punishments toward the development of penitentiaries focused on the spiritual rehabilitation of lawbreakers. In the twentieth century, progressives complained about the failure to devote sufficient resources to humane prison programming and about the tendency of rehabilitative ideals to be corrupted in practice. Over the last two centuries, progressives have also frequently expressed concerns about sentencing disparities rooted in racial, ethnic and socioeconomic discrimination. Today, progressives continue to express concerns about punishment practices and sentencing norms.
But I fear that many progressives have failed to update their reform concerns and advocacy in light of twenty-first century realities. We primarily hear progressive voices speaking out against the death penalty and lamenting wrongfulconvictions and racial disparities in criminal justice systems. Over the last decade, for example, the American Bar Association and other organizations have produced massive reports urging execution moratoriums and major reforms to the administration of capital punishment. The Innocence Project and other organizations have spotlighted common causes of wrongful convictions and have urged states to establish innocence commissions. Given the stunning and unprecedented expansion of modern American imprisonment rates, however, the problems and consequences of mass incarceration should become the new preeminent concern for progressives. Indeed, as explained below, the failure of progressives to adapt their criminal justice advocacy for modern times may indirectly contribute to the status of the United States as the world’s leader in imprisonment.
Though I had in mind an audience of policy-makers and public policy groups (and transition teams?) when writing this piece, I fear that my musings here may still be too "academic" in every sense of that word. In any event, I suspect some will find this piece provocative (and/or misguided), and I hope readers will share reactions in comments.
Who do you want President Bush to pardon?
I am in DC today for an ABA event and so may be off-line most of the day. While I am away, perhaps everyone use the comments to join the Washington Times is creating a pardon wish-list for President Bush. In this editorial, headlined "Whom shall Bush Pardon?," the Times has a few specifics clemency suggestions for the out-going President:
In his last weeks in office, President Bush has an opportunity to redress the scales of justice for a few individuals who were harshly punished and some who never should have been prosecuted. In the former category is press baron Conrad Black, whose sentence Mr. Bush should commute. In the latter category is Vice President Dick Cheney's former chief of staff Lewis "Scooter" Libby, whom the president should pardon. In both categories are Border Patrol agents Jose Compean and Ignacio Ramos, who deserve both a pardon and commutation.
Interesting data on the application of NY gun law for Plaxico's consideration
The New York Daily News has this interesting article, headlined "Plaxico Burress faces tough gun laws in Manhattan," providing data concerning the application of gun laws throughout New York City. Here are some excerpts:
Plaxico Burress picked a club in the wrong borough to dance around with an illegal gun. Prosecutors in Manhattan have the highest conviction rate among the city's five boroughs against people collared in second-degree gun possession cases. About 22% of Manhattan defendants get convicted on that charge, according to a News analysis of state Division of Criminal Justice data from 2003 to 2007. The conviction rate hovered around 10% in three other boroughs: 9% in Staten Island, 10% in the Bronx and 12% in Queens. Brooklyn had the lowest conviction rate at 7%.
Citywide, 11.4% of the 9,729 defendants charged with second-degree gun possession were actually convicted of that charge, which carries a mandatory 3-1/2 year sentence. "To take a gun into a crowded nightclub where people drink and push each other around because of the density of people there," Mayor Bloomberg said in a radio address Friday. "There's a reason for this law and it is to convince you to not do this and to make the price heavy to stop it."...
Despite Bloomberg's call for Burress to get the maximum, the team distraction should be encouraged by statistics showing most people charged with second-degree gun possession don't get convicted of that crime. In all five boroughs, most have the charges knocked down to less serious crimes or see them dismissed. If Burress pleads to the lesser charge of third-degree criminal possession of a weapon — the crime has no mandatory sentence — he could still do some time. Last year, 60% of the men and women convicted of third-degree possession served time, state officials said....
Staten Island District Attorney Dan Donovan said his office uses the mandatory minimum sentence as leverage to gain gun intelligence and to convince defendants to plea to a class D violent felony, which can carry a year in jail. "While we will convict less people of the arrest charge, we're gaining intelligence on the gun traffickers," he said.
Related posts on the Plaxico Burress case:
- NYC Mayor Bloomberg pushing for Plaxico Burress to get at least 3½ years in state prison, leading me to many questions
- "Main Threat to Burress Is a Sentencing Law"
- Starting to make the Second Amendment case for Plaxico Buress
- If instant polling matters in criminal justice administration, Plaxico may be in trouble
December 7, 2008
One of the reasons why post-Booker circuit jurisprudence tends to be pro-prosecution
Especially since the Blakely and Booker rulings, I have taken to describing the U.S. Supreme Court to be the most liberal appellate court on non-capital sentencing issues in the country. Today I discovered a bit of data that in part explains why the federal circuit courts have been so disinclined to apply dynamically the rights and remedies that the Blakely and Booker decision recognize.
The data concern the backgrounds of modern federal circuit court judges, and they appear toward the end of this new Washington Post article suggesting that the American Constitution Society (ACS) may become a resource for the Obama Administration in ways that the Federalist Society was for the Bush Administration. Here's what the Post article reports, with a little context:
ACS members ... would like nothing more than to duplicate the Federalist Society's influence. Last month, the organization published a series of policy briefs designed to be a legal road map for the next administration. Among its suggestions are that the Justice Department re-energize civil rights enforcement, try terrorism suspects in civilian courts and appoint federal judges who have a broader range of life experiences.
Cyrus Mehri, a partner in the District law firm Mehri & Skalet who has been supportive of ACS, pointed to a survey his firm conducted showing that no one with a background in public interest law has been appointed to the federal appeals courts since 1981. Also, the survey found, not one federal appeals court judge has substantial experience as an in-house counsel for a labor union. Meanwhile, 45 percent have previously worked as state or federal prosecutors or attorneys general.
I am very suspicious of the assertion that "no one" with a public interest law background has been appointed to the federal circuit courts in over 25 years. Indeed, I can think of more than a few Clinton circuit court appointees who had what I would consider a significant public interest background.
Still, I think it is accurate to assert that former prosecutors and pro-government lawyers are problematically over-represented on the federal circuit courts. And that reality partially (but only partially) explains why federal prosecutors have won most post-Booker battles in lower courts. Like those at the ACS, I am hoping the change that President-Elect Obama has promised will extend to the composition of the federal circuit courts.
Some recent related posts:
- Why federal sentencing reformers must focus on the USSC and lower courts
- How a new administration is likely to impact federal sentencing practice
- Are we on the verge of a new changed era concerning federal sentencing law and policy?
- Judging, politics, sentencing and elections
- Any early federal sentencing thoughts on Eric Holder, the next U.S. Attorney General?
- What does the future hold for the US Sentencing Commission?
- FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"
Making an economic case for cost-oriented sentencing and prison reforms
I am pleased to see that Professor Rachel Barkow and Joshua Libling have this effective new editorial in the Boston Herald noting that sentencing and prison reform makes good economic sense in tough times. Their piece is headlined "Sentencing laws needn’t drain us," and here are some excerpts:
Simply building more prisons isn’t a feasible solution [to prison over-crowding]. An across-the-board release of prisoners or lowering of sentences is obviously unappealing. But the combination of the state budgetary and prison overcrowding crises offers Massachusetts an opportunity to become smarter in its sentencing policy and to adopt the best solution: using fiscal-cost forecasting for criminal sentencing.
Fiscal cost forecasting makes sentencing policy more rational in the real world of limited resources. Minnesota’s sentencing commission has developed computer models to predict the impact in terms of dollars and prison population of all changes to the state’s laws affecting criminal sentences. This early-warning system has empowered — indeed, forced — officials there to consider the costs of sentencing proposals prior to enacting them, which has allowed that state to avoid the prison overcrowding that has plagued Massachusetts....
Significantly, fiscal cost forecasting doesn’t dictate higher or lower sentences. Sometimes states raise sentences in light of cost data, knowing that they have the resources to afford the financial outlay. Other times, states lower sentences for some crimes (particularly nonviolent crimes) in order to reserve space for violent crimes and achieve the same overall reduction in crime, but at a lesser cost.
Cost data allow more informed, more efficient and more rational use of resources. When $1 billion is being cut from the Bay State budget and violent felons are sharing bunk space, getting more bang for the prison buck makes common sense.