December 20, 2008
Notable names for number two at DOJ
Now available at law.com is this article from Legal Times discussing the names making the rounds for the second spot at the Justice Department in the Obama Administration. Here are snippets from the article:
With congressional pressure mounting, the short list for the Department of Justice's No. 2. position appears to be getting shorter all the time.
President-elect Barack Obama's transition staff has declined to discuss potential Justice nominees, or even reveal who on the transition team is mustering names. But Washington lawyers have been speculating for weeks that Wilmer Cutler Pickering Hale and Dorr's David Ogden, who is heading the Justice Department transition team, is the likely pick for deputy attorney general. One Washington lawyer close to the transition says his nomination is all but assured.
Elena Kagan, dean of Harvard Law School, has also been named as a possibility, though many say the position would be an odd fit. Denied a hearing by Republicans after President Bill Clinton nominated her to the U.S. Court of Appeals for the D.C. Circuit in 1999, Kagan has re-emerged as a potential Supreme Court pick for Obama....
The deputy attorney general, who oversees the day-to-day operation of the department, typically comes to the job with a criminal law background, but [Ogden's law parter Randolf] Moss says Ogden and Holder would complement each other.
"The fact that Eric brings enormous expertise on criminal matters creates a nice balance," Moss says. And he adds that Ogden was associate deputy attorney general under then-Deputy Attorney General Jamie Gorelick, a job that required his involvement in numerous criminal investigations. Gorelick is now Ogden's colleague at Wilmer.
Good reads for sentencing fans in The Champion
I just noticed that much the September issue of the NACDL's journal, The Champion magazine, is available at this link. The issue is focused on white-collar crimes and includes a number of pieces that should be of special interest to sentencing fans. For example, Evan Jenness has this long and detailed piece dealing with federal sentencing guideline calculation issues titled "Gaining the Upper Hand in Arguing Loss in Securities Fraud Cases."
Though not focused on only white-collar matters, of particular interest for sentencing fans in this issue is this fascinating Q&A interviewwith now-former US Sentencing Commissioner John Steer. Here is one especially notable tid-bit from the interview on the topic of relevant conduct:
The Champion: Almost 20 years ago, you and Judge Wilkins wrote the article declaring relevant conduct the “cornerstone” of the guidelines. The Apprendi line of cases that led to the merits opinion in Booker, and ultimately to its remedial opinion declaring the guidelines advisory, raised new questions about the fairness of punishing defendants for unconvicted conduct. Do you think that relevant conduct should still be the cornerstone? Would you modify or change the relevant conduct rules? What do you think about using acquitted conduct at sentencing?
Steer: I believe “relevant conduct” is still a cornerstone in the construction of a just and effective sentencing policy.... That said, I think some changes to Section 1B1.3, Factors that Determine the Guidelines Range, are in order. The first change I would make, but not the most important, is to exclude “acquitted conduct” from this guideline, and move it to 5K2.21 (Dismissed and Uncharged Conduct) as a judge-discretionary factor....
The second, and more important, change to relevant conduct I would recommend is to decrease the weight given to unconvicted counts that are part of the same course of conduct or scheme under 1B1.3(a)(2) and (3), relative to conduct included within the count of conviction. That is the aspect of the guideline that I find most difficult to defend. Why should, for example, the drugs associated with an uncharged, or charged and dismissed, count be given the same guideline weight as an equivalent drug quantity in the count(s) of conviction? Why don’t we, instead, give less weight to the unconvicted conduct by, for example, counting all the drugs in the convicted counts but only half the drugs in the unconvicted conduct? I believe that, or some similar approach, would address another major unfairness perception about the guideline and, at the same time, provide an incentive to prosecutors to convict on more counts if they want the underlying conduct to count more.
Urging President-elect Obama to elevate district judges to the circuit courts
Emily Bazelon and Judith Resnik have this effective piece at Slate making a pitch for the elevation of district judges to circuit courts. The essay is titled, "Sitting on Great Judges: Where Obama should look when he makes his first appointments to the bench," and here are snippets:
Next summer, Barack Obama may get to make a Supreme Court appointment. But before then, he'll give us a preview by filling 13 vacant slots on the federal appeals courts....
Obama should look to sitting district court judges who have shown their dedication to opening up the courts as an avenue for redress. If they go up to the appeals courts, these judges will have more impact more quickly than the lawyers or academics lining up for appointments. District court judges know the ins and outs of their particular circuit's legal rules, and they understand how to fashion standards that trial judges can use. They also know the personalities of the circuit judges they'd be serving with, which helps for effectively negotiating on the standard appellate panel of three....
Examples from different parts of the country help to make the point.... Moving toward the middle of the country, another standout judge is Mark Bennett, appointed by Bill Clinton to Iowa's federal trial court.... Our third standout district court judge (who is also a friend and a former Slate blogger) is Nancy Gertner, a Clinton appointee from Massachusetts. She is an expert on the law of sentencing, pioneering the view that judges should interpret, rather than slavishly apply, the federal sentencing guidelines.
Regular readers know that Judge Bennett has also been a sentencing superstar along with Judge Gernter. Indeed, I think it is a great idea for the next administration to look to making a lot of early circuit appointments from the district bench. Of course, I would like to see at the top of any elevation list those district judges who have thoughtfully explored in opinions and articles the meaning and impact of Bookerand its progeny — a which includes not just Judges Bennett and Gertner, but also Judges Adelman and Bataillon and Block and Carr and Friedman andGleeson and Gwin and Hayden and Kopf and Lynch and Marbley and Merryday and Polster and Pratt and Presnell and Young and many more.
Some recent related posts:
- A modest(?) proposal for filling the bench from the ivory tower
- 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"
"Rewarding Prosecutors for Performance"
The title of this post is the title of this new article appearing on SSRN from Professor Stephanos Bibas (who has another recent piece on regulating prosecutors that is also a must-read). Here is the abstract of this article:
Prosecutorial discretion is a problem that most scholars attack from the outside. Most scholars favor external institutional solutions, such as ex ante legislation or ex post judicial and bar review of individual cases of misconduct. At best these approaches can catch the very worst misconduct. They lack inside information and sustained oversight and cannot generate and enforce fine-grained rules to guide prosecutorial decisionmaking. The more promising alternative is to work within prosecutors' offices, to create incentives for good performance.
This symposium essay explores a neglected toolbox that head prosecutors can use to influence line prosecutors: compensation and other rewards. Rewards can both attract and retain the best candidates and also encourage those who are already prosecutors to perform better. Though we take lock-step seniority-based salaries for granted, recent management literature has emphasized the need to pay for performance, to attract and retain stars and encourage quality performance and hard work.
First, Part I discusses possible metrics of prosecutorial success, to decide what traits and behavior to reward. Historically, prosecutors have focused on a couple of statistics such as conviction rates, but these numbers are manipulable and incomplete. Prosecutors' multiple constituencies and goals require subtler measures. A better solution is to collect and aggregate feedback from a variety of sources, including peer prosecutors, supervisors, judges, defense counsel, victims, defendants, and the public, as eBay does. This information, appropriately weighted and discounted, could better encourage prosecutors to serve all their constituencies.
The next step is to devise incentives to encourage success on these metrics. Part II surveys pay and reward systems designed to attract and retain good prosecutors and to encourage them to succeed. A first step is to offer variable salaries, raises, promotions, and awards tied to the metrics of success. More radical solutions could range from hourly rates to performance-based bonuses to contingency fees. While some of the more radical solutions, such as contingency fees, would be unwise or unworkable, others are worth trying.
December 19, 2008
Eleventh Circuit grants mandamus in CVRA case
The Eleventh Circuit issued late today an important CVRA ruling with a short opinion in In Re: Janice W. Stewart And Other Borrower-Crime Victims, No. 08-16753-G (11th Cir. Dec. 19, 2008) (available here). Here is how the opinion starts:
The Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771, provides that victims of a federal crime may appear and be heard during some phases of the prosecution of the person charged with the crime. The CVRA requires the Government to “make [its] best efforts to see” that the court (in which the prosecution is pending) permits the victim to appear and be heard. If the court refuses to allow the victim to appear, the victim may move the United States Court of Appeals for a writ of mandamus.
Several persons claiming to be victims of the crime charged in United States v. Coon, No. 08-CR-441-T-17MAP (M.D. Fla.), moved the magistrate judge – as he was entertaining, and conditionally accepting, the defendant Phillip Coon’s guilty plea pursuant to an information and a plea agreement – for leave to appear in the case and to be heard. The magistrate judge refused to recognize the movants as victims, and denied their motion. The district court subsequently adhered to the magistrate judge’s ruling. The movants (“petitioners”) now petition this court for a writ of mandamus. We grant the writ.
UPDATE: Paul Cassell, who helped represent the petitioners in this case, discusses the Eleventh Circuit's ruling in this post at The Volokh Conspiracy. Commentors over there spotlight some reasonable concerns about broad application of the CVRA in economic crime settings.
Louisiana child rapist officially comes off state's death row
Patrick Kennedy is surely the most famous child rapist sentencing to death, since his case went all the way the the Supreme Court and led to the Kennedy ruling that the Eighth Amendment precluded all capital child rape sentencing. But Louisiana had another child rapist sent to its death row, Richard Davis, and this local news article details the lastest development in his case:
Richard Davis, a 36-year-old who was on death row for raping a 5-year-old girl, now faces life in prison. Caddo District Judge Scott Crichton resentenced the Ohio native Thursday afternoon.
A Caddo jury last year sentenced Davis to die after convicting him of aggravated rape for repeatedly sexually assaulting the child from October 2004 to January 2005. The U.S. Supreme Court ruled in June a child rapist cannot be executed, forcing Crichton to resentence Davis.
By default, Crichton today sentenced Davis to life in prison at hard labor without the possibility of parole, probation or suspension of sentence....
In 2007, the jury also convicted Davis of one count of indecent behavior with a juvenile for promoting a 16-year-old girl for prostitution in 1996. Crichton resentenced him Thursday to serve those seven years consecutively. "I want it to be clear that this man should never be released under any circumstances," the judge said....
Crichton discusses the Supreme Court [Kennedy] ruling in an article on his Web site. It states: "Now if an offender with a history of being a violent sex offender kidnaps a 5-year-old child from the bedroom of her parents' home in the middle of the night, rapes her repeatedly, causing severe permanent physical and psychological damage, and then cuts off both of her arms, this offender is ineligible for the death penalty following a full trial, due process and unanimous jury verdict no matter what the state law provides. Why? Because five justices out of nine on the U.S. Supreme Court believe that it's cruel and unusual punishment."
Long child porn sentence affirmed by Eleventh Circuit
The Eleveth Circuit has a long opinion today in US v. Horsfall, No. 08-10739 (11th Cir. Dec. 19, 2008) (available here), rejecting various challenges to a long child-porn sentence. Here is how the decision starts:
Raymond J. Horsfall appeals the district court’s 327-month sentence imposed after pleading guilty to one count of receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2). On appeal, Horsfall argues that: 1) the government breached the plea agreement by recommending an upward departure; 2) the court erred by imposing an upward departure under the Guidelines; and 3) the court violated Horsfall’s Eighth Amendment rights by considering victim impact evidence at sentencing. For the reasons set out below, we affirm.
There is much to be learned from Horsfall including an important lesson about what not to do at your local Starbucks:
[O]n July 21, 2007, a Savannah police officer responded to a report that an individual was viewing child pornography on a laptop computer in a coffee house. That individual, Horsfall, admitted to the investigating officer that he was viewing child pornography on the computer. The officer subsequently seized the laptop and turned it over to federal authorities, who later discovered child pornography files on the computer, including the video file specified in Count Two of the indictment.
A must-read for those doing habeas work or just deep fed courts thinking
A new forthcoming article now appearing here via SSRN is a must-read for any and everyone working on, even even thinking about, habeas proceedings. This new piece is titled "The Future of Teague Retroactivity, or “Redressability,” after Danforth v. Minnesota: Why Lower Courts Should Give Retroactive Effect to New Constitutional Rules of Criminal Procedure in Postconviction Proceedings," and here is the abstract:
Although the Supreme Court's 1989 decision in Teague v. Lane generally prohibits the application of new constitutional rules of criminal procedure in federal habeas review of state-court judgments, the Court's 2008 decision in Danforth v. Minnesota frees state courts from Teague's strictures. Danforth explicitly permits state courts to fashion their own rules governing the retroactive application of new federal constitutional rules in postconviction proceedings, and leaves open the question whether lower federal courts are bound by Teague in postconviction review of federal criminal convictions.
In this Article, I examine the doctrinal underpinnings of the Court's retroactivity jurisprudence, and propose that state courts and the lower federal courts abandon the Supreme Court's experiment with nonretroactivity. Affording retroactive application to new constitutional rules in state and federal postconviction proceedings promotes fairness to litigants and uniformity in the development of federal constitutional criminal doctrine. Perhaps most importantly, a rule of retroactivity permits the lower state and federal courts to regain a role in the development of constitutional doctrine that had previously been constricted, first by Teague and then by the Antiterrorism and Effective Death Penalty Act.
My examination of the Danforth opinion leads me to believe that the foundations upon which Teague was built are now crumbling. Danforth marks a shift in the Court's conception of the function of habeas corpus which portends well for the reinvigoration of a constitutional dialogue among the lower courts and an increased role in constitutional development for the lower federal courts.
Seeking SCOTUS speculations during the Justices holiday break
Last year around this time, wehad the Supreme Court's then-fresh opinion in Gall and Kimbrough to keep us warm through long winter nights. This year, though we have lots of new USSC data to unpack, the Justices failed to beat the holiday rush in resolving any of its sentencing sleeper cases from the Fall.
Intriguingly, the Court managed to issue only two signed opinions before taking its holiday break this year. As detailed here, the Justices did get out four per curiam opinion and the two cases with signed opinions involved a divided court. But with only Chief Justice Roberts and Justice Stevens having authored signed opinions for the Court, it is difficult to even effectively speculate who might be writing the opinions in Oregon v. Ice, which deals with Blakely's applicability to consecutive sentencing determinations, and United States v. Hayes, which deal with the reach of the federal prohibition on certain misdemeanants possessing firearms and implicates Second Amendment issues.
Because Justice Scalia's opinions are always good for blogging business and because he was his usual active questioner in the oral arguments in Ice and Hayes, I am hoping he is spending the holiday break adding a final few constitutional flourishes to opinions for the Court in these cases. Though I know Santa won't have the opinions in hand when making deliveries next week, I do think we could get both opinions in early January. And, as of this writing, I think they may be worth the wait for sentencing fans.
Given that public SCOTUS activity is on ice until January 12, I would be grateful for readers keep me warm with speculations about Ice or about any other High Court cases they are following this Term.
Fourth Circuit affirms upward departure in notable obscenity case
The Fourth Circuit's work in US v. Whorley, No. 06-4288 (4th Cir. Dec. 18, 2008) (available here) is already getting attention from other bloggers because of the panel's split of the reach of federal obscenity law. But the case should draw a little attention from sentencing fans because the majority opinion also includes a discussion of reasonableness review of an upward departure. Here is the first paragraph of Whorley, which highlights why the case might draw attention for non-sentencing reasons:
Dwight Whorley was convicted of (1) knowingly receiving on a computer 20 obscene Japanese anime cartoons depicting minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 1462; (2) knowingly receiving, as a person previously convicted of receiving depictions of minors engaging in sexually explicit conduct, the same 20 anime cartoons, in violation of 18 U.S.C. § 1466A(a)(1); (3) knowingly receiving, as a person previously convicted of receiving depictions of minors engaging in sexually explicit conduct, 14 digital photographs depicting minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2); and (4) knowingly sending or receiving 20 obscene e-mails, in violation of 18 U.S.C. § 1462. Imposing a sentence that departed upward from the recommended Sentencing Guidelines range, the district court sentenced Whorley to 240 months’ imprisonment.
December 18, 2008
"Madoff Mercy: How long should the Ponzi schemer go to prison for?"
The title of this post is the title of this Slate commentary by Harlan Protass, who uses all the ugly Wall Street news to spotlight the the over-emphasis of loss in how the federal sentencing guidelines deal with white-collar fraud. Here are lengthy excerpts from an effective piece:
[W]hen it comes to large-scale frauds involving public companies and their millions of shares, the guidelines' grounding in mathematics sometimes results in sentences that are, quite literally, off the chart. They fall within the realm of prison terms usually reserved for mafia bosses, major international drug lords, cop killers, child molesters, and terrorists.
Remember Jeffrey Skilling — losses to Enron shareholders of more than $1 billion largely determined his 24-year-plus sentence. Or consider WorldCom's former chief, Bernie Ebbers. He got 25 years based principally on the $2.2 billion loss suffered by his company's shareholders. Sure, these men destroyed enormous shareholder value, just as the targets of today's criminal cases allegedly did. But it's hard to contend that they deserved prison terms longer than the average sentence for murder (22 years), kidnapping (14), and sexual abuse (eight).
Tying jail terms to the amount of money lost also puts way too much power in the hands of prosecutors. It gives them the muscle to threaten long prison stretches in order to coerce guilty pleas. If it weren't for the risk of lengthy sentences if convicted, many defendants might opt to test the government's evidence before a jury.
Linking jail time to dollars lost also severs many of the ties to factors courts are supposed to consider when determining and imposing sentences. For example, a relatively short prison term — years, not decades — can be enough to deter prospective financial fraudsters. And economic offenders pose little future threat because they're generally stripped of powers that would permit continued criminal conduct. Also, aren't there more fitting and useful ways to punish the titan fraudsters of Wall Street? Strip them of their wealth. Make them work to pay back those they ripped off or to serve the public good.
The Supreme Court's landmark decision in United States v. Bookerallowed judges to use good, old-fashioned common sense to reduce radically long sentences produced by the guidelines. And some judges have done that. In 2006, Richard Adelson, former president of Impath Inc., a laboratory services company that collapsed as a result of an accounting fraud, was convicted of securities fraud and filing false documents. The guidelines recommended a life sentence. Instead, a judge sentenced Adelson to 42 months in prison. (A federal appeals court in New York approved that call last week.) Lennox Parris and Lester Parris, co-directors of a New York-based water company, were convicted of securities fraud in connection with a scheme to boost the value of their company's stock with a series of press releases misrepresenting its success in scoring distribution contracts. They were each sentenced earlier this year to five years imprisonment, even though they faced 30 years to life under the guidelines. And this week, the former CEO of reinsurer General Re, Ronald Ferguson, who faced life imprisonment for his role in a rotten deal to artificially inflate the balance sheet of insurance giant AIG, was sentenced to two years in jail.
But honestly, that kind of largesse is rare. Most judges still stick close to the guidelines and the huge sentence recommendations they make for causing huge financial loss. Given that hundreds of billions, if not trillions, were lost on Wall Street this year, we could be talking about a parade of defendants swapping cuff links for handcuffs and facing not years behind bars but decades. That's more punishment than even Bernard Madoff deserves.
Regular readers know that I agree with a lot of what Harlan has to say, and his point about the power federal prosecutors wield in this context is especially important and often overlooked. That all said, Madoff's alleged crimes seem, at least from the early press reports, to be of a different character and magnitude than some of the other cases noted by Harlan.
For me the core problem with an obsessive concern with loss amounts is that, in many settings, the quantifiable amount of "loss" under the guidelines often has little or no connection to offenders' culpable mental states and subjective culpability. There are suggestions, however, that Bernie Madoff was in fact very culpable (perhaps for a very long time), and that the high loss levels in his case may have a direct relationship to his subjective culpability. Like all good law professors, I am troubled by severe punishments based on strict liability sentencing factor, but it is not clear this is a major concern in the Madoff case.
Moreover, Harlan's effective commentary still effectively ducks in the hardest question: exactly what punishment levels should be the norm in large-scale frauds involving public companies. He suggests that years and not decades may be the right ballpark, but there is a huge gulf between say three and thirty years imprisonment. These cases are so hard — and the current guidelines are so inadequate — because we do not have a ready metric or shared moral sense of how best to assess these kinds of crimes. But, as suggested above, I do think subjective culpability should be more important and that "loss" concepts are too important in the current federal sentencing scheme.
Some recent related posts:
- White-collar fraud meets technocorrections for Bernie Madoff
- Another prominent white-collar defendant gets a big variance
- A thoughtful and theory-driven exploration of a parsimonious white-collar sentence
- Second Circuit affirms (in unpublished opinion) greatly reduced white-collar sentence
- Noting the Second Circuit's approval of big white-collar sentencing break
UPDATE: This postat ChattahBox provides something of a counter to Harlan's commentary. It is titled "Bernard Madoff Deserves The Life Sentence He’s Likely To Get."
Judge Gertner applies the safety valve while imposing a within-guideline sentence
It is been a while since I have had a chance to talk up a new sentencing opinion from federal District Judge Nancy Gertner. Joyfully, she provides sentencing fans with an early holiday present today through a lengthy opinion in US v. Matos, No. 05cr30012-NG (D. Mass. Dec. 18, 2008) (available for download below). There are lots of parts of Matos worth quoting, but I thought readers would find intriguing the Judge Gertner's explanation for why she here decided to impose a within-guideline sentence (after finding safety-valve applicability to avoid a higher mandatory minimum sentence):
To be sure, in the Court’s judgment, the Guidelines sentences for non-violent drug offenders are much, much too high as a general matter to effect the purposes of punishment. Moreover, this Court does not stand alone in that analysis. But before the Court sentences a defendant to a particular period of time, it needs a rationale, beyond the general policy judgment of an individual judge.
For example, in the case at bar, there was no information about why a sentence of 24 months rather than 36 or 57 months would accomplish deterrence, appropriately incapacitate this individual, or prevent recidivism. There was no information about how other judges sentenced similarly situated individuals. There was no information about the likely conditions of Matos’ confinement, and little information about the impact of Matos’ incarceration on his family. While Matos is surely close to his family, the record provided no basis for adjusting his sentence on this ground. In short, there were no factors — individual to Matos or the crime he committed — that suggested 57 months imprisonment was an inappropriate sentence.
Rather, where the only reason why the Court would reject a Guidelines sentence is because of its disagreement with the Guidelines' policy choices, that is not sufficient in and of itself. Accordingly, on the record before the Court, it finds that the sentence fits the offense and offender.
Tenth Circuit affirms sex offender conditions in sentencing for bank thefft
The Tenth Circuit's ruling today in US v. Hahn, No. 07-5117 (10th Cir. Dec. 18, 2008) (available here), might be filed under the heading "bad defendants make bad law." Hahn involves a defendant who pilfered $20 bills as an ATM techncian and then pleaded guilty to violating 18 U.S.C. § 656, the misapplication of financial institution funds. He "was sentenced to eighteen months incarceration followed by a five-year term of supervised release ... [which included] standard conditions of supervised release as well as several additional ones including special sex offender conditions."
To understand why these special sex offender conditions were imposed and affirmed, you'll have to read the decision in Hahn, which actually covers a lot of notable supervised release law. (Alternatively, folks can just make crude remarks about sex and $20 bills in the comments.)
A clemency recipient makes case for the good clemencies
Sadly, the specter of ugly pardons past (Marc Rich) and ugly pardons future (possible preemptive torture pardons) is giving the historic Presidential clemency power a bad name these days. Fortunately, some of the tales of good clemencies present are getting told, as in this USA Today op-ed by Kemba Smith in titled "The wisdom of pardons: For me, clemency was the only path to justice." Here is how it begins:
The nomination of Eric Holder as the next U.S. attorney general has renewed concerns about the end-of-term clemencies granted by President Clinton. High-profile names such as Marc Rich grabbed headlines at the time, but many other people with no political influence benefited from the president's mercy.
I am one of those people. If I had not received a commutation, my first-time conviction for a non-violent offense would have kept me in prison until 2016 (with good behavior) because of the harsh mandatory sentencing laws for crack cocaine. My 1994 prison sentence grew out of my boyfriend's trafficking in crack. After he was murdered, the government charged me with conspiracy to distribute the crack that his drug ring distributed. During my court hearings, prosecutors acknowledged that I never sold, handled or used any of the drugs involved in the conspiracy.
Today, I could be in federal prison still serving my 24-year sentence. Instead, I've been raising my now 13-year-old son, graduated from college in 2002 and completed a year of law school. I own a home and speak to youth about the importance of their choices and the consequences that can affect their lives forever. My own experience led me to create a non-profit foundation that focuses on providing children of incarcerated parents with a mentor, and collaborates with other organizations on justice-reform initiatives.
My story of redemption does not need to be an anomaly. Thousands of petitions for executive clemency are pending before President Bush with a month left in his term. The majority of those are unknown to him or the public. Many are people of color caught up in the war on drugs and serving long mandatory minimum sentences, often for low-level offenses. The president should expedite such applications and grant them clemency.
Some recent related posts:
- "Begging Bush's Pardon"
- More proof politicians are very compassionate toward criminals ... who are fellow politicians
- Who do you want President Bush to pardon?
- A profile of Prez pardons as we enter clemency season
- Will Prez Bush become merciful again as his term concludes?
- Federal clemency news and notes
- "What pardons will Bush issue?"
- An effective call for President Bush to be a truly "compassionate conservative" with his clemency power
"Lethal Injection and the Problem of Constitutional Remedies"
The title of this post is the title of this new paper by Professor Eric Berger available via SSRN. Here is the abstract:
Many states' lethal injection procedures contain serious flaws that create a significant risk of excruciating pain, but, more often that not, courts uphold those procedures against Eighth Amendment challenges. This Article argues that remedial concerns significantly shape — and misdirect — courts' approaches to lethal injection. Many courts, including the U.S. Supreme Court in Baze v. Rees, fear that any lethal injection remedy would unduly burden the state and interfere with executions. Accordingly, they sharply limit the underlying Eighth Amendment right.
This Article contends that these remedial anxieties are misplaced here. Lethal injection procedures are not only dangerous but also the product of troubling political process failures. Accordingly, far from deserving judicial deference, states' systemic lack of attention, transparency, and democratic deliberation require court oversight. Moreover, contrary to common wisdom, lethal injection actions seek only modest relief that would make executions much safer without interfering excessively in state affairs.
In allowing mistaken remedial concerns to dissuade real engagement with the merits in these cases, judges are abdicating their constitutional responsibility to oversee state practices threatening individual rights. Courts may instinctively look to remedial issues when determining the scope of a constitutional right, but, given that they do so, they should consider those issues more carefully. As criticisms of public law injunctions have increased, some judges have overlooked their obligation to hold states accountable for unconstitutional procedures, particularly when state officials insulate those procedures from democratic processes. Until courts adopt a more nuanced approach to constitutional remedies, they will continue to under-enforce some constitutional rights and effectively bless inhumane practices.
Like many scholarly article about the death penalty, this piece in my view makes a lot of good points in the completely wrong setting. It is exactly right to notice that "remedial concerns significantly shape — and misdirect — courts' approaches" to certain Eighth Amendment claims. But this problem does not seem significant at all in most capital punishment settings, whereas it is an ever-present problem in non-capital cases involving Eighth Amendment challenges.
In all the major lethal injection rulings in both federal and state courts, I am repeatedly and consistently impressed with the extent of the "real engagement with the merits" of what always seem to be very weak evidentiary claims based on limited medical evidence and a few anecdotes. In sharp contrast, a broad array of Eighth Amendment claims brought by non-capital defendants — whether involving extreme sentences or extreme prison conditions — rarely seem to get serious consideration by courts, let alone "real engagement with the merits."
I know the judgment "inhumane" is in the eye of the beholder, but I continue to struggle to understand why so many folks criticize courts for failing to order states to take extraordinary precautions to minimize every possible risk that a murderer might possibly feel some pain during the execution process. In my book, it is far more inhumane when courts bless an LWOP sentence for a 13-year-old offender or a six-year prison term for a woman whose covered breasts touched a ward, or a 55-year mandatory prison term for three small sales of pot, or 200 years imprisonment for downloading illegal porrn.
Will the Obama Administration embrace and promote the faith-based prison movement?
One of the few positive sentencing and corrections stories these days involves the apparent successes of faith-based prisons. A helpful reader sent me this news story from Oklahoma, headlined "Faith builds character: Inmates learn new ways to rebuild their lives," on this topic. Here are snippets
Behind the iron bars and razor wire of Oklahoma's largest prison for women, a quiet miracle is taking place. Nearly 200 inmates at Mabel Bassett Correctional Center are living in separate pods from the general population where they are finding hope for themselves and their families through character development and spiritual renewal.
"This is an incredible program," said Ilinda Jackson, director. "It instills character in these women, teaches them how to deal with the behaviors that got them here, and addresses how to change." She said the voluntary program is changing the atmosphere at the prison.
Misconduct is way down among participants. "There's less violence, a higher level of accountability. The women are taking responsibility for their lives," she said. The Faith and Character Community Program, now in its second year, is divided into two groups, women pursuing a faith-based solution to their problems, and those seeking character development without the faith element.
Millicent Newton-Embry, warden at Mabel Bassett, said the program has changed the environment of the entire prison, not just the faith and character pods, as women in those pods have influenced inmates in the general population. Misconduct reports are down 18 percent prison-wide since the programs were initiated. "We have less people fighting over things like curling irons," she said. "The staff has more time to do important case management work because they're spending less time mediating conflict. The inmates are resolving these things themselves.
"Studies have shown that religion, when it's voluntary, can be foremost in changing criminal thinking, and criminal attitudes, for the long term," she said. Outside volunteers teach the religious elements of the faith pod to avoid any church-state issues.
I have long been disappointed that academics and researchers have not yet paid sufficient attention to the faith-based prison movement. But the Bush Administration was an avowed supporter of the movement, though I think the administration could and should have done even more to facilitate the movement's growth and development at both the federal and state level.
President-elect Obama has expressed some support for some Bush Administration faith-based programming, but I have not seen any explicit discussion from the Obama team about faith-based prison. I am hopeful that the new administration will openly embrace and actively promote the faith-based prison movement if and when there is continuing reason to believe that the movement is having a positive impact on both offenders and public safety.
Some related posts on faith-based prison programs:
- Is faith the best thing to happen to prisons since ... the faithful started prisons?
- Interesting Ohio report on correctional faith-based initiatives
- Another report tentatively praising faith-based prisons
- The virtues of faith-based prisons
- Interesting examination of faith-based prison movement
- A thoughtful, but disappointing, attack on a faith-based prison program
- Religion, sentencing and corrections
- Having faith in prisons
- Say hallelujah for new faith-based prison scholarship
How might police departments of school districts use $3 million in Fulton County, Georgia?
This new piece from the New York Times, headlined "In Georgia, Push to End Unanimity for Execution," spotlights some of the consequences of a few Georgian jurors' decision to resist imposing a death sentence on courthouse killer Brian Nichols. The question for this post comes from this notable accounting of some of the costs of the efforts by the state to get Nichols on death row:
The county spent more than $3 million on a 54-count trial featuring 144 witnesses and 1,200 pieces of evidence, and much of that money could have been saved had the prosecution accepted Mr. Nichols’s offer to plead guilty in exchange for a sentence of life without parole. Mr. Howard [the Fulton County district attorney] scored a victory by convicting Mr. Nichols on all counts, but his primary goal was always a death sentence.
Though I know many people are disinclined to look at capital cases in cost/benefit terms, I have to think that Fulton County police departments and school districts would have ultimately put the millions spent seeking to get Nichols on death row to better use than did DA Howard. Ironically, the requirement of jurors unanimity now saves Fulton County taxpayers and other taxpayers from a lot of additional expenses: millions more surely would have been expended during years of state and federal appellate review had Nichols been sentenced to death.
Especially during these tight budget times, more and more jurisdictions seem likely to realize that a well-run capital punishment system is a luxury that is rarely worth the government expense if and when other services are being cut. It will be interesting to see if persons in Georgia come to recognize this inevitable reality after anger over the Nichols' verdict subsides a bit.
Some related posts:
- You make the AG call: should feds seek death for courthouse killer Brian Nichols?
- The decline of death even in Texas!
- Notable second-term Presidential execution realities
- 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?
- "A year later, state assesses justice without death penalty"
Another example of drunk driving sentencing problems
This local news report from New Mexico, headlined "Study: Repeat DWI Offenders Not Getting Help," reinforces my enduring concern that criminal justice systems often do not effectively respond to the crime of drunk driving. Here are some details from the piece:
A study shows more people people who are repeatedly arrested for DWI are not getting help. According to a new study from the University of New Mexico Center on Alcoholism, Substance Abuse and Addictions, 52 percent of convicted second or third-time DWI offenders were not getting court-ordered treatment as part of their sentence.
The study -- based on court records -- also states that of all the offenders who were ordered into treatment only 46 percent were actually receiving treatment. "I think our primary concern is that it's not being ordered in the judgment and sentencing as is required by New Mexico law," said Rachel O'Connor, the state's DWI czar.
O'Connor said the study is disappointing and will hopefully be a wake-up call. "The courts, I think, need to look at their policies and practices and see what they can do to change this number," said O'Connor. "These are repeat DWI offenders. I think the governor and legislators have made clear that treatment is part of a recovery process and we want to make sure that they're sentenced to it."
Some related posts on sentencing drunk drivers:
- Getting tougher on drunk driving
- Why do we worry so much more about sex offenders than drunk drivers?
- Technology versus toughness to combat drunk driving
- Undue leniency for drunk drivers?
- More discussion of leniency for drunk drivers
- Is capital punishment for drunk driving morally required?
- More examples of undue leniency shown to repeat drunk drivers
December 17, 2008
California court rejects Second Amendment attack on public firearm possession crime
A helpful reader sent me an e-mail altering me to a new decision dealing with a Heller-based Second Amendment claim in a Califorinia criminal case. The ruling in People v. Yarbrough, No. A120721 (Cal. App. 1st Dist. Dec. 17, 2008) (available here) , starts this way:
Defendant was convicted following a jury trial of carrying a concealed firearm (Pen. Code, § 12025, subd. (a)(2)), and carrying a loaded firearm in a public place (Pen. Code, § 12031, subd. (a)(1)). He was sentenced to the middle term of two years in state prison for the conviction of carrying a loaded firearm in a public place, and sentence on the remaining conviction was stayed.
In this appeal defendant claims that his conviction of possession of a concealed weapon violates the Second Amendment to the United States Constitution, and the trial court gave erroneous instructions in response to jury questions on the charge of carrying a loaded firearm in a public place. He also challenges the trial court’s sentencing decision to deny probation and impose a state prison term. We conclude that the conviction of possession of a concealed weapon does not contravene defendant’s Second Amendment rights as interpreted in the United States Supreme Court’s decision in District of Columbia v. Heller (2008) ___ U.S. ___ [171 L.Ed.2d 637, 128 S.Ct. 2783] (Heller), and the court properly instructed the jury on carrying a loaded firearm in a public place. We also find that no prejudicial sentencing error occurred. We therefore affirm the judgment.
I hope to get a chance to consume this opinion and comment on its particulars soon.
'tis the season ... to litigate creatively?
This local AP story out of Ohio that just has to put everyone in a holiday (litigation?) mood:
A Christmas tree inside a northwest Ohio village police department is decorated with more than just the usual trimmings. Mug shots of local sex offenders are pasted on some of the ornaments. Paper cutouts of bells and stars feature the faces and names of all eight registered sex offenders in the of North Baltimore community.
Police Chief Alan Baer thought the ornaments would get attention and raise awareness and says a great deal of foot traffic moves in and out of the department. Baer says the display on the artificial tree isn't to make light of the crimes or disparage Christmas traditions. He says the police chaplain thought it was a good idea.
Surely some litigious group or someone who likes to wage wars over Christmas and seasonal displays will not take kindly to this news. Are there potential Fourth and Fifth and Eighth Amendment claims to litigate in this case along with the standard First Amendment concerns? Though sex-offender mug shot ornaments apparently have the blessing of the police chaplain, but what about higher authorities? Dare I ask what would (baby) Jesus do?