December 17, 2008
Eighth Circuit affirms reduced sentence on resentencing in light of Gall
Despite a well-deserved reputation for rigorous reasonableness review after Booker, the Eighth Circuit today in US v. Bueno, No. 06-4216 (8th Cir. Dec. 17, 2008) (available here), shows its softer side in the wake of Gall. The full opinion in Bueno merits a close read, especially for those who consider using family circumstances as a basis for a below-guideline sentence. Here are some extended passages from the panel's opinion that summarize the case and the Bueno holding:
After considering the above-described evidence, as well as Bueno’s testimony at the resentencing hearing, the district court found that Mrs. Bueno was in fact suffering from life-threatening diseases and maladies and that Bueno was the only person who could provide the continual care that she required. Accordingly, the district court imposed upon Bueno a sentence of five years probation, the conditions of which include house arrest with electronic monitoring, if that additional condition was determined by the United States Probation Office to be required, with Bueno being given the freedom to leave the home to go to work and to provide the necessary care to his wife.
The government objected to the sentence, arguing that Mrs. Bueno’s medical condition had been addressed, although in abbreviated form, in our decision in the first appeal and that the information regarding Mrs. Bueno’s medical condition had been presented in abbreviated form at Bueno’s initial sentencing. The government noted the seriousness of the offense of which Bueno had been convicted, pointing out that 71 kilograms of cocaine had been found in the hidden compartment of the vehicle that Bueno was driving at the time he was apprehended. It pointed out that in our opinion vacating Bueno’s original sentence, we held that the eighteen-month sentence did not adequately reflect the seriousness of the offense, afford adequate deterrence, or adequately avoid sentencing disparities among similarly situated defendants. Finally, the government reiterated its position that a sentence within the Guidelines range of 108 to 135 months would be appropriate.
At the outset, one could well ask how, in light of our earlier determination that an eighteen-month sentence constituted an unreasonable departure from the applicable Guidelines range, it could plausibly be contended that a sentence of five years’ probation is not equally an unreasonable sentence. The short answers are the substantially more detailed evidence submitted at resentencing regarding Mrs. Bueno’s physical and emotional condition and the Supreme Court’s December 10, 2007, opinion in Gall v. United States, 128 S. Ct. 586 (2007)....
Although the sentence imposed in this case stretches the allowable downward departure under § 5H1.6 to its very limits, we cannot say that it is unreasonable, and thus it is affirmed.
Notable new stories from the most dysfunctional sentencing state
In the wake of Blogo-gate, there has been lots of talk about what state should be considered most politically corrupt. That got me to thinking about which state should be considered most dysfunctional when it comes to sentencing. And these headlines (and the underlying stories) reminded me why a state other than California would have a hard time making the case for most dysfunctional:
- From the San Francisco Chronicle here, "Two lawmakers team up to oppose new Death Row"
- From the OC Register here, "Trim wasteful prison spending: Deficit-burdened state can't afford to lock up so many nonviolent parole violators."
- From The Daily Journal of California here, "High Court Lets 9th Circuit Sentencing Decision Stand"
These stories highlight just some of the many reasons California is clearly the most dysfunctional sentencing state. Whether we focus on the death penalty, prison overcrowding, constitutional sentencing jurisprudence or federal habeas review, California has something crazy and problematic going on both politically and practically. I guess the California-based Criminal Justice Legal Foundation never has to worry about running out of things to do.
White-collar fraud meets technocorrections for Bernie Madoff
There are already too many notable stories surrounding the Bernie Madoff fraud for me to cover them well, and the MSM is covering a lot of the bases already. But, thanks to WSJ Law Blog post, I see that we have now got a technocorrections angle worth covering:
[T]he terms for Madoff’s bail have tightened up. He may not have been much of a flight risk before, but he sure isn’t going to be one now: A bail hearing scheduled Wednesday for Madoff was canceled after he agreed to terms requested by the government, including home detention in his Manhattan apartment and a curfew of 7 p.m. He will also be required to wear a monitored ankle bracelet. Here’s the government’s press release.
Madoff’s wife, Ruth, will surrender her passport and pledged properties she owns in Manhattan, Montauk, and Palm Beach to help secure the $10 million bond. A federal judge gave Madoff until Wednesday to find a total of four co-signers for his bail package. After his arrest last week, he was released on a personal recognizance bond secured by his apartment in Manhattan, which is worth about $7 million. But as of Wednesday, only two people — Ruth Madoff, and Madoff’s brother, Peter — had signed the bond, meaning they are on the hook financially if Madoff flees. Hence, it seems, the need for the ankle bracelet and curfew measures.
I likely won't blog much about the Madoff case unless/until sentencing approaches. But readers are certainly welcome to use the comments to this post to discuss any aspects of the Madoff matter that is of interest.
"Recidivism as Omission: A Relational Account"
The title of this post is the title of this articleby Professor Youngjae Lee now available via SSRN. This abstract makes clear that this article has to be on every sentencing fan's holiday reading list:
Are repeat offenders more culpable than first-time offenders? In the United States, the most important determinant of punishment for a crime, other than the seriousness of the crime itself, is the offender's criminal history. Despite the popularity of the view that repeat offenders deserve to be treated more harshly than first-time offenders, there is no satisfactory retributivist account of the "recidivist premium." This Article advances a retributivist defense of the recidivist premium and proposes that the recidivist premium be thought of as punishment not, as sometimes suggested, for a defiant attitude or a bad character trait, but as punishment for an omission. The culpable omission that justifies the recidivist premium is, this Article argues, the repeat offender's failure, after his conviction, to arrange his life in a way that ensures a life free of further criminality.
This Article argues that, although how individuals conduct their lives as a general matter is not properly the business of the state, once offenders are convicted of a crime, they enter into a thick relationship with the state and that this relationship gives rise to an obligation for the offenders to rearrange their lives in order to steer clear of criminal wrongdoing. This theory, "Recidivism as Omission," offers a firm theoretical foundation to justify the recidivist premium because it does not rely on unwarranted inferences from repeat offenders' criminal histories that they are "bad people" or that they are "defiant of authority." Rather, this account focuses on the significance of conviction and punishment themselves and the ways in which they alter an offender's relationship to the state. In addition, this Article argues that obligations between the state and offenders run in both directions and that we should recognize the ways in which the state may be a responsible actor that should share the blame for recidivists' reoffending.
Sentencing toughness one-way-ratchet warming up in North Carolina
Despite tough budget times and lots of reason to believe over-punishment is a bigger problem than under-punishment, the social and political forces that drive (very costly) sentencing toughness seem to be heating up in North Carolina. Here are the details from this local article:
Gov. Mike Easley said today the principal flaw in the state's probation system is it lets the wrong people out of jail. He said his administration has asked for more money and more probation officers to help fix it.
"The current system puts people on probation who shouldn't be on probation," Easley said in an interview with The News & Observer and the Charlotte Observer. "Until those people are put behind bars, this is going to continue."
The News & Observer published a three-part series last week highlighting 580 cases of probationers who killed while out of prison since 2000 and a system that has lost track of thousands of convicted criminals. Easley's comments come after not responding for one month to interview requests from The News & Observer about the state's probation system.
Easley said his administration has asked for additional money for prison cells and probation officers, because a primary problem is that more prisoners need to be kept behind bars. "When you put mean people on the street, they do mean things," he said. "If they need 24/7 supervision, they should be in jail." He said when the legislature is asked for funding, the money doesn't come through until months later because of the length of the budget process.
I would be especially grateful to hear from folks with on-the-ground knowledge of North Carolina's system to know whether there is good sentencing sense behind the Governor's new tough talk.
EJI files seeks cert on claim that juve LWOP is unconstitutional for 13-year-old offender
I just received a helpful e-mail from the folks at Equal Justice Initiative informing me of a recently filed cert petition challenging under the Eighth Amendment a sentence of life without parole given to an offender who was only 13 years old(!) at the time of his crime. The full petition can be downloaded below, and here is additional information from this EJI link about this stunning case:
Joe Sullivan is one of only two 13-year-olds in the United States to be sentenced to die in prison for an offense in which no one was killed. Both of these sentences were imposed in Florida, making Florida the only state in the country to have sentenced a 13-year-old to die in prison for a non-homicide.
A severely mentally disabled boy, Joe was blamed by an older boy for a sexual battery that was allegedly committed when they broke into a home together. The older boy received a short sentence in juvenile detention, but Joe was tried as an adult, convicted of sexual battery, and sentenced to life imprisonment without the possibility of parole.
Only eight people in the country are sentenced to die in prison for any offense committed at age 13.
The lawyer who represented Joe in his one-day trial has since been suspended from the practice of law, and the biological evidence that could have exonerated Joe was destroyed in 1993. The lawyer appointed to represent Joe on appeal informed the court that there were no issues in his case worth appealing. Joe was unable to challenge his conviction and sentence earlier because he could not afford legal assistance.
Joe has spent 19 years in a Florida prison, where he has been assaulted and suffered deteriorating health. He is now confined to a wheelchair.
When I learn about cases like this, I have a hard time believing that a country founded on the principles of liberty has become so willing to be so repressive through our criminal justice systems. Regular readers will not be surprised to hear that I hope the US Supreme Court will take up this case. And I am discouraged that this kind of case even exists and that officials in other branches of our government cannot bring themselves to address these kinds of sad cases and instead only will react if and when courts order them to be more just and sensible in their sentencing policies.
December 17, 2008 in Examples of "over-punishment", Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (6) | TrackBack
An effective call for President Bush to be a truly "compassionate conservate" with his clemency power
Over at Pardon Power, P.S. Ruckman has a number of great new posts, including this one noting that Illinois Governor Rod Blagojevich is reported to be reviewing prison inmate petitions for clemency while he ignores calls for his resignation. And among the great reads is this long new post, which ends with this potent callfor President George Bush to use his clemency power dynamically during his last month in office:
Now comes the end of the administration of George W. Bush. When he came to office eight years ago, he wrapped himself in the theme of "compassionate conservatism" — a theme which critics feel has yet to be operationalized in any meaningful way. Regardless, today, out in a space of land much much larger than the Western District of Arkansas are thousands and thousands of prisoners who have experienced the harsh administration of mandatory minimum sentences. Many of them are first-time offenders who committed non-violent offenses. They have learned — as has everyone affected by their imprisonment — that the justice system can construct huge, impressive mechanical devices to automatically send "signals." But, now, Mr. President, maybe now more than ever, it is time for them to also learn that criminal justice in the United States is not the duty and function of a single branch of our government, or even two. The courts may feel bound by the legislature. And legislators may feel bound by constituents and public opinion. But, in matters of criminal justice, President Bush, thanks to the U.S. Constitution, the only thing that constrains you is a compassionate human being's idea of the right thing to do, or not do.
Mr. President, reach into the thousands of clemency applications that are sitting in the Office of the Pardon Attorney right now — many of which have been sitting there for years and years — and do what you know is the right thing to do. Do what should have been done when Mr. Clinton left office. Use the pardon power as it was meant to be used — or at least use it in the manner in which it is best used — to round off the rough edges of justice without reference to personal and partisan considerations and with a sense of humility and, yes, compassion. In addition to giving real life meaning to the phrase "compassionate conservatism," you will enliven the the proverb we are all better off to remember, "There, but for the Grace of God, go I."
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?"
December 16, 2008
ABA criminal justice transition recommendations
I just tripped across this ABA webpagetitled "Transition 2008" through which the ABA sets out its recommended "legislative and executive branch actions and initiatives that will improve the justice system, promote the rule of law, ensure the nation's security, and protect civil liberties." Specifically, this ABA page has "four separate policy papers summarizing some of the Association's most significant recommendations for the new administration and the new Congress."
The transition paper on "Criminal Justice System Improvements " is available at this link. Here is how it is described:
The ABA offers recommendations to improve the criminal justice system. Such recommendations include: alternatives to incarceration; repeal of mandatory minimum sentencing; eliminating sentencing disparities; and enacting prison reform legislation.
Is anyone teaching a post-Heller seminar on the Second Amendment?
As regular readers know well, I find the debate and litigation surrounding the Second Amendment after Heller to be fascinating (and also incomplete and stunted in various ways). For this reason and others, I have been lately toying with the notion of developing a upper-level law school seminar on the law, policy and practice of the Second Amendment after Heller.
Before getting serious about a potential new teaching project, however, I thought it might be useful to inquire whether anyone else has been working on such a seminar or course. (I have heard varying reports about the Second Amendment becoming a more prominent topic in constitutional law classes in various law school, but I have not heard about a class or seminar devoted just to the Second Amendment after Heller.)
In addition to seeking information about whether anyone is now teaching or developing a post-Heller Second Amendment course, I would also welcome general comments from practitioners and others about whether they think such a course would be a valuable addition to a law school curriculum.
Cross posted at Law School Innovation.
Another prominent white-collar defendant gets a big variance
As detailed in this early Bloomberg report, "Ronald Ferguson, the former chief executive officer of General Reinsurance Corp., was sentenced to two years in prison for helping American International Group Inc. deceive shareholders." Here are more details of what sounds like an interesting sentencing hearing:
Ferguson, 66, was the highest-ranking of five executives convicted for using a sham transaction in 2000 to help AIG improve its balance sheet. U.S. District Judge Christopher Droney in Hartford, Connecticut, also gave Ferguson two years of supervised release and ordered him to pay a $200,000 fine.
Droney, who ruled the fraud cost AIG shareholders as much as $597 million, could have sentenced Ferguson to life in prison. “We will never know why such a good man did such a bad thing,” Droney said. While Ferguson’s criminal conduct was “substantial,” he deserved leniency because of his history and character, the judge said. “I’ve never received such an outpouring for a defendant,” Droney said....
Ferguson deserved a “substantial” term, Assistant U.S. Attorney Eric Glover told Droney today, though he agreed that life “would not be appropriate.”...
Defense attorney Michael Horowitz asked Droney to impose “an unusually long period of supervised release or probation” that would allow Ferguson to work with the needy. Ferguson, who is studying to become an ordained minister, filed 379 letters asking for mercy and depicting him as decent, caring and honorable....
More than 30 Ferguson supporters filled the courtroom today. Among those who spoke was Andrew Henry, general counsel of Colgate-Palmolive Co., where Ferguson was a director from 1987 to 2005; Jill Ker Conway, the former president of Smith College; and Ferguson’s wife of 46 years, Carol. “I am begging you for mercy,” Carol Ferguson, who turned 66 yesterday, said to Droney. “I cannot imagine my life without Ron.” She said her husband’s message for the past 50 years has been that, “you should do the right thing, even when it hurts, even when no one is looking.”
Based on the determined loss amount, the guideline range in this case must have been decades, not merely years. (I heard one report that the PSR calculated a range for 14 to 17 years of imprisonment, and this Bloomberg report certainly suggests that the government was certainly asking for a lot more time than Judge Droney imposed.)
The prominence of the case, the amount of loss, the factors mentioned by Judge Droney, and the fact that Sentencing Commission Michael Horowitz represented Ferguson all add to the intigue and importance of this sentencing ruling for not just the defendant here, but also other prominent white-collar defendants. And I cannot help but speculate that all the pro-discretion rulings coming from the Second Circuit recently played a role in the willingness of Judge Droney to give relatively little weight to the lengthy sentencing term urged by the guidelines.
Some recent related posts:
- A thoughtful and theory-driven exploration of a parsimonious white-collar sentence
- En banc Second Circuit hands down Cavera, the "local conditions" sentencing case
- Second Circuit affirms (in unpublished opinion) greatly reduced white-collar sentence
- Noting the Second Circuit's approval of big white-collar sentencing break
UPDATE: As indicated in this comment and as now confirmed by another source, the guidelines were actually recommending a life sentence in this Ferguson case and the calculated offense level was 49, which is six levels higher than the highest recommended sentence. Yeah, right, year those federal sentencing guidelines sure are presumptively reasonable for non-violent first offenders. Hah!!
When can guideline errors be harmless (and when is procedural error is not "significant") after Gall?
An otherwise ordinary Sixth Circuit opinion today in US v. Shor, No. 07-2334 (6th Cir. Dec. 16, 2008) (available here), has this extraordinary little footnote:
Both parties cite pre-Bookercases for the proposition that our review of the district court’s interpretation of the Guidelines is de novo. This is incorrect: the Guidelines are advisory and thus a district court’s interpretation of the Guidelines is only one factor in our holistic review for procedural reasonableness. The Supreme Court was quite explicit on this point in Gall. Here, however, this difference is immaterial, for the Supreme Court was also quite explicit in Gall that miscalculating the Guidelines range is a “significant procedural error” that requires reversal. See Gall, 128 S. Ct. at 597, 598. It is unclear in the wake of Gall when a procedural error is not “significant.”
I find this footnote extraordinary in part because, to my chagrin, circuit courts have largely embraced and encouraged heavy reliance on pre-Booker circuit jurisprudence even in settings where there is every reason to think Booker (and now Gall and Kimbrough) alters the validity and value of that pre-Bookercircuit jurisprudence. It is nice to see a circuit court poke at the parties for all-too-ready reliance on pre-Booker cases.
That said, courts and litigants can be excused for heavy reliance on pre-Booker circuit jurisprudence given that Booker (and now Gall and Kimbrough and Rita) have left unresolved many practical questions about the operation and application of reasonableness review. The issue spotted by the Sixth Circuit in Shor concerning the possibility of non-significant procedural error is part of a larger set of questions I have about the review of post-Booker sentencing errors. Specifically, I often wonder about the potential value (and potential drawbacks) from the idea that some guideline errors should be reviewed for harmlessness. (I sense that some circuit panels have brought harmlessness concepts into the mix of reasonableness review, but not with any consistency.)
In the end, the potential interaction of the array of potentially applicable appellate review terms and ideas — reasonableness (procedural and substantive), abuse of discretion, harmless/significant/clear/plain error, de novo review — makes my head hurt.
A modest(?) proposal for filling the bench from the ivory tower
Law prof Carl Tobias has this new piece online at FindLaw that is sure to get the law professor blogs a buzzing. Titled "Why Barack Obama, as President, Should Nominate Leading Law Professors for Seats on the Federal Appeals Court," this essay certainly gets my endorsement as long as some profs with criminal justice backgrounds are among the short-list mix. Here are a few excerpts from the short piece:
President-elect Barack Obama will receive much advice in the coming months. One valuable idea that his nascent administration should embrace and implement is nominating legal scholars to serve on the United States Courts of Appeals. Numerous legal academics are particularly well-suited to discharge the critical responsibility of delivering appellate justice.
President Ronald Reagan used this concept to excellent effect over both of his administrations. The chief executive searched for, identified, and appointed many highly-respected legal scholars to the appeals courts.... Yet selecting legal academics for the appellate courts apparently fell out of favor in the administrations of Presidents George H. W. Bush, Bill Clinton and George W. Bush. To be sure, these chief executives did choose a few legal scholars, but they were notable exceptions to the rule....
President Obama has vowed both to practice bipartisanship and to appoint excellent judges. One fertile source of nominees who possess the requisite expertise and temperament to be outstanding appellate jurists is the faculties of the 200 American law schools. Because legal scholars' work closely resembles that of circuit judges, choosing academics will allow President Obama to select candidates who are essentially known quantities, and to be confident that they possess the skills necessary to be distinguished federal appeals judges.
I obviously have a parochial and personal interest in endorsing academics who have criminal justice backgrounds when thinking about judicial appointments. But the important reality of heavy criminal law dockets in the federal appellate courts (especially outside the DC Circuit) undercuts somewhat the assertion by Tobias that "legal scholars' work closely resembles that of circuit judges."
I fear that too many modern legal scholars, perhaps especially many modern constitutional scholars, tend to give far too little attention and thought to a broad array of criminal justice issues that regularly occupy the day-to-day work of the federal judiciary. Put another way, I fear that too many criminal justice issues tend to get second-class treatment in the modern legal academy. I would hate to have a federal appellate bench filled with academics inclined to give criminal justice cases second-class treatment on appeal.
Some recent related posts:
- How a new administration is likely to impact federal sentencing practice
- Why federal sentencing reformers must focus on the USSC and lower courts
- Looking at control of federal prosecutors as we look toward a new administration
- Are we on the verge of a new changed era concerning federal sentencing law and policy?
- "Smart on Crime: Recommendations for the Next Administration and Congress"
- What might a new administration mean for the federal death penalty?
- FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"
Another example of gender bias in adult-youth sex offense sentencing?
I am noticing more and more sentencing cases involving sexual trysts older women and younger boys in which gender dynamics seem to have a major impact on sentencing outcomes. Here is a local report on another such case from Colorado:
If the roles were reversed, would the accused be treated the same? The question was repeatedly raised during a sentencing hearing Monday for a 31-year-old Grand Junction woman charged with several felonies for having a sexual relationship with a 14-year-old boy.
Theresa Millon, 31, ended up pregnant by the same boy and repeated on Monday her main defense to the charges: That she was sexually pursued “for weeks” before giving in to the boy’s desires. “I’ve wondered if this was a male offender making the same argument — that the girl kept coming on to me and I gave in — how I would take that,” District Judge Richard Gurley said toward the end of Millon’s hearing. “I wouldn’t be very receptive to that argument.”
Millon was sentenced to a term of 10 years to life on probation — Millon will have to successfully complete an intensive sex-offender treatment program.... Millon’s sentence was left to the judge’s discretion, per the terms of a plea agreement struck with the District Attorney’s Office. Millon pleaded guilty to a lone count of sexual assault on a child....
Millon said the boy claimed to have “been with” several other women in their 30s. She learned she was pregnant in April or May and had an abortion in early June.
Millon will likely lose custody of her own two children as a result of her guilty plea.
December 15, 2008
"Rethinking Juvenile Justice"
The title of this post is the title of this new entry on SSRN, which provides a means to download the first chapter of this new book from Elizabeth Scott and Laurence Steinberg. Here is the abstract of the book from the SSRN posting:
Legal reforms over the past generation have transformed juvenile crime regulation from a system that viewed most youth crime as the product of immaturity into one that is ready to hold many youths to the standard of accountability imposed on adults. Supporters of these reforms argue that they are simply a response to the inability of the traditional juvenile court to deal adequately with violent youth crime, but the legal changes that have transformed the system have often been undertaken in an atmosphere of moral panic, with little deliberation about consequences and costs.
In this book we argue that a developmental model of regulation that is grounded in scientific knowledge about adolescence and juvenile crime is more compatible with the justice system's commitment to fairness and also more likely to promote social welfare than the contemporary approach. This premise for the most part translates into a legal regime that deals with most adolescent offenders as an intermediate legal category of persons — neither children nor adults. Developmental knowledge clarifies that the typical teenage offender is less culpable than his adult counterpart and therefore deserves less punishment. It also indicates that most adolescents mature out of their inclination to get involved in criminal activity, and that correctional interventions may influence the trajectories of their adult lives. The research shows that programs that attend to developmental knowledge are likely to facilitate the transition to conventional adult roles, benefiting both young offenders and society by reducing recidivism and reducing the economic costs of crime regulation.
Early federal sentencing data presents from the US Sentencing Commission
Data junkies, rejoice! The number-crunching elves working inside the US Sentencing Commission (which is inside the Beltway just south of the North Pole) have finished making the present that every federal sentencing nerd like me wants for the holidays: new batches of federal sentencing data. Specifically, now to be found on the USSC's main webpage are these data-licious announcements:
December 2008 Preliminary Post-Kimbrough/Gall Data Report: An updated set of tables presenting preliminary data on fiscal year 2008 cases sentenced on or after December 10, 2007 through September 30, 2008. This report was prepared using data received, coded, and edited by the Commission by November 3, 2008.
FY2008 4th Quarterly Sentencing Update: An extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2008. The numbers are prepared using data from cases in which the defendant was sentenced by the close-of-business on September 30, 2008 and which were received, coded, and edited by the Commission by November 3, 2008.
Data on Retroactive Application of the Crack Cocaine Amendment: A set of tables presenting preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2). These cases involve retroactive application of the crack cocaine amendment to the sentencing guidelines (Amendment 706, as amended by Amendment 711) which became effective on November 1, 2007 and which was made retroactive effective March 3, 2008. The report represents those cases considered by the courts through September 30, 2008 and for which data was received, coded, and edited by the Commission as of December 8, 2008.
I hope to get a chance to consume and crunch all this new data soon, but in the meantime perhaps readers can identify any particular sentencing statistics that jump out from all this new federal data.
"A year later, state assesses justice without death penalty"
The title of this post is the title of this intriguing article in today's Newark Star-Ledger. Here is an excerpt:
A year later, prosecutors and defense lawyers agree the demise of the death penalty has had no discernible impact on the way would-be capital cases are prosecuted in New Jersey. And while the philosophical debate over the death penalty has not changed, some say a new law that has prison without parole as the most severe penalty is better than a capital punishment law with what seemed like an unending appeals process. Since the state reinstated capital punishment in 1982, there were no executions, even though 60 defendants had been sentenced to death.
"I don't think it's made much of a difference at all other than that some of the cases that were languishing out there are now getting tried," said Richard Pompelio, executive director of the New Jersey Crime Victims Law Center. "The important thing for crime victims is that the process have an end, and with the death penalty there never was an end."
During the debate over repeal, there was concern that removing the threat of the death penalty would impede prosecutors' ability to negotiate pleas, but that has not materialized, according to prosecutors. Three of 23 capital punishment cases pending at the time of repeal have resulted in guilty pleas.
"We have not viewed it as an impediment in the disposition of murder cases," said Hudson County Prosecutor Edward DeFazio, who served on a state study commission that two years ago recommended repealing the death penalty. "As a practical matter, we have really seen no difference in the way we conduct our business in prosecuting murder cases."
Essex County Prosecutor Paula Dow, head of the state association of county prosecutors, said eliminating the death penalty has not hindered prosecutors in pursuing tough sentences for the most violent offenders. "We are still seeing very aggressive sentences," Dow said, citing instances in which judges have imposed life sentences for murder. A life sentence is 75 years in prison, 85 percent of which must be served without parole. "That's almost the penultimate penalty," she said.
Dow said repealing the death penalty also freed prosecutors from the burden of pursuing death penalty cases in lengthy, expensive trials and prolonged appeals. "It was a very big drain on the limited resources of law enforcement," she said. "There were long delays in the resolution of the cases, multiple appeals and very high costs associated with the handling of the litigation."
This article shows, yet again, how resistent complicated sentencing systems can be to dramatic legal changes. Functionally, it seems, criminal justice systems develop complicated ecologies that can only evolve slowly and will thus mute the impact of even very consequential changes in formal legal rules. This has been the basic practical story in the wake of the Supreme Court's work in Apprendi, Blakely and Booker, and it is interesting to see the same basic story playing out in the state capital punishment arena in New Jersey.
A timely(?) call for greater attention to mens rea in the criminal law
Via e-mail I received a link to this interesting "Legal Opinion Letter" from the folks at the Washington Legal Foundation. The short letter is titled "Mens ReaRequirement: A Critical Casualty Of Overcriminalization," and it is mostly critical of the broad definition of white-collar offenses that enable criminal prosecutions of corporate officials based on seemingly innocuous public statements. But, especially as my 1L Crim Law students gear up for my exam, I found the letter's final paragraph reminded me of famous passage in the Model Penal Code commentaries:
By passing statutes that criminalize innocent or merely negligent behavior or that are so broadly defined that citizens cannot be sure when they are violating the law, the federal and state governments have significantly eroded the traditional mens rea requirement for criminal conviction. This is a development to be much regretted. There are many things a liberal government may do to improve social welfare. Government may properly ask individual citizens to make significant sacrifices for the common good. However, there are also many things a liberal government may not do. Visiting the opprobrium and stigma of criminal punishment on those who have not behaved in a blameworthy way is among them. Such official scapegoating is inconsistent with a liberal legal regime. A just legal system does not permit punishment without fault. Hence, justice demands the reinvigoration and preservation of the mens rea requirement for criminal punishment.
Ironically, I am not as troubled as the author of this letter by the use of the criminal law to achieve certain regulatory ends. What does trouble me greatly, however, is the use of severe criminal punishments in the absence of serious culpability.
Because of various modern practical challenges in using administrative law or tort law to regulate certain risky behaviors, I can see a justification for legislatures sometimes passing laws that may ultimately criminalize innocent or merely negligent behavior. But I have a hard time with extreme prison terms being in the mix without requirements of serious culpability. Any and all criminal provisions that threaten severe prison terms without requiring proof of significant blameworthiness necessarily gives prosecutors a huge amount of (unregulated) discretionary authority in their charging and bargaining and sentencing practices.
Notable little Fifth Circuit ruling on constitutional requirements for back-end sentencing decisions
Especially in light of renewed interest in second-look sentencing issues and also the modern revolution of sentencing procedures, the Fifth Circuit's recent decision in Boss vs. Quarterman, No. 07-50448 (5th Cir. Dec. 12, 2008) (available here) merits some attention. Here is how the little opinion begins and ends:
Texas state prisoner Jackie Lynn Boss, serving a 10-year sentence for intoxication assault, appeals the district court's denial of his petition for a writ of habeas corpus. Boss sought federal review of the Texas Board of Pardons and Parole's June 2005 decision to deny him “mandatory supervision” release. The parole panel's decision listed statutory reasons for the denial but did not offer any evidence from the record to support its findings. Boss argues due process requires more. We granted a certificate of appealability on the question of whether Superintendent v. Hill requires the Texas Board of Pardons and Paroles to give reasons for denying mandatory supervision that are supported by "some evidence." We AFFIRM the denial of the writ by the district court....
We find no persuasive reason to conclude that Hill supplanted Greenholtz. The Hill opinion made no reference to Greenholtz, a strong implication that parole board decisions on good-time credits and on mandatory supervision make distinct draws upon due process. Moreover, the Supreme Court continues to rely on Greenholtz after Hill. In a case considering the due process required to transfer a prisoner to a supermax facility, the Court stated "[w]here the inquiry draws more on the experience of prison administrators . . . the informal, nonadversary procedures set forth in Greenholtz . . . provide the appropriate model."
Denying mandatory supervision and revoking good-time credits are distinct deprivations for which the Supreme Court has prescribed different constitutional protections. We cannot find that Hill's “some evidence” requirement clearly established the due process requirements for denials of mandatory supervision. Rather, Greenholtz continues to define the procedural protections due before a state denies a prisoner conditional release.
Headaches on the path to Holder's AG confirmation
The Legal Times has this interesting new piece headlined, "GOP Signals Rough Path to AG Position for Holder." Here is a snippet:
Sen. Jeff Sessions of Alabama questioned Holder's fitness to be attorney general. Sen. Charles Grassley of Iowa said he wanted to delve into Holder's career in private practice. Sen. Tom Coburn of Oklahoma threatened to prevent a vote.
Republicans have also asked the Justice Department to hand over reams of documents from Holder's time as U.S. Attorney and deputy attorney general, touching on subjects as seemingly arcane as his involvement in the Clinton administration's decision to allow an American aerospace company to export a communications satellite to the Chinese....
The Republicans are searching for Holder's fingerprints on a variety of controversial policies and scandals in the 1990s, including President Bill Clinton's impeachment proceedings; the Justice Department's investigation into the siege in Waco, Texas; and the Miami raid involving Elian Gonzalez. They're also exploring Holder's involvement in Justice Department investigations into Clinton-era fundraising and the administration's decision to allow Loral Space to export a communications satellite to China to be launched on a Chinese-built rocket.
The letter [to DOJ] also requests materials related to a memorandum Holder drafted dealing with attorney-client privilege waivers in corporate investigations, a hot-button issue that was revisited this year by Deputy Attorney General Mark Filip. And the letter asks for materials that would highlight Holder's positions on gun control, the death penalty, and Miranda warnings -- issues certain to rally the conservative base.
I would be surprised if all this Holder push-back will significantly impede his path to becoming our next Attorney General. But it should at least ensure that his confirmation hearings are interesting (and blog-worthy).
Some prior posts on the Obama transition, the Holder pick and federal criminal justice issues:
- Pardons, politics, race and justice: why Holder should come out swinging
- Lots of buzzing around Eric Holder as the next US Attorney General
- Any early federal sentencing thoughts on Eric Holder, the next U.S. Attorney General?
- Three late afternoon thoughts on the Holder pick: race, tough and tech
- President-Elect Obama officially names Eric Holder as his AG pick
- Looking at control of federal prosecutors as we look toward a new administration
- How a new administration is likely to impact federal sentencing practice
- Interesting reflections on Obama appointees from drug policy reformers
December 14, 2008
You make the AG call: should feds seek death for courthouse killer Brian Nichols?
I suppose I should not be surprised to see this news reportout of Atlanta, which indicates that the state DA unable to get the death penalty for courthouse killer Brian Nichols now wants the feds to give it go:
Fulton County District Attorney Paul Howard said Saturday that courthouse killer Brian Nichols may get the death penalty yet — from a federal court jury. Howard, whose prosecution sought and failed to get death for Nichols, said he would talk this week about possible federal charges against Nichols for killing off-duty U.S. Customs agent David Wilhelm.
The agent was working alone at his new home in Buckhead when Nichols confronted him the night of his March 11, 2005 escape from the Fulton County Courthouse. Nichols was sentenced Saturday to multiple life prison sentences for the entire case, including four sentences without parole for the four killings.
Howard said at a post-sentencing news conference that he and U.S. Attorney David Nahmias will talk about a renewed death-penalty effort later in the week. Howard also said he will push for a change in Georgia law that mandates a unanimous decision by juries tackling death penalty cases.
Nichols’ jury hung in a persistent 9-3 vote, with those wanting death in the majority. Without unanimity, however, Judge James Bodiford was forced to deliver sentences of life in prison.
Were I the Attorney General with authority to review whatever recommendation was made by the local US Attorney, I would first request an accounting of how much money the state of Georgia spent in its (now failed) effort to get Brian Nichols on to death row. I would then ask for an estimate of how much it would likely cost to conduct a federal capital trial in this case. I genuinely believe any and every death penalty decision should be informed by as much tangible cost/benefit information as possible.
I suspect others may believe that cost issues should be ignored (or be at least a very minor consideration) in a high-profile case like this one. And I hope these folks will use the comments to indicate what factors they think should come first in the AG's consideration of this case.