February 9, 2008
Latest issue of Corrections Today about "Evidence-Based" research and reforms
The latest issue of Corrections Today, which is the professional membership publication of the American Correctional Association, is devoted to "Correctional Research & Evidence-Based Practices." In this opening commentary, National Institute of Corrections' Chief of Research and Evaluation sets the tone for the issue with this call to action: "We need to shift the center of gravity from the research community toward the practitioner community by focusing on the integration of research and correctional practice." Here are just a few of the important pieces in this issue:
- Increasing Public Safety and Reducing Spending: Applying a Justice Reinvestment Strategy in Texas and Kansas
NY Times and NAACP speak out against the AG on crack retroactivity
AG Michael Mukasey's recent congressional testimony urging Congress to block retroactivity for the new crack guidelines (basics here and here) has now brought this new editorial from the New York Times and this new press release from the NAACP. Here are excerpts:
From the NY Times:
Attorney General Michael Mukasey tried to scare the House Judiciary Committee on Thursday into blocking a responsible plan by the United States Sentencing Commission to address the gross disparity in penalties for possession or sale of crack cocaine and those for powder cocaine offenses. His alarm is unwarranted.... Instead of brandishing overblown fears to try to defeat a limited reform, Mr. Mukasey should be working with Congress to finally end the damaging 100-to-1 rule.
From the NAACP:
The NAACP was both saddened and offended by Attorney General Michael Mukasey’s call for Congress to override the decision by the U.S. Sentencing Commission to apply their May 2007 decision to reduce the recommended mandatory minimum sentencing range for conviction of possession of crack cocaine retroactive to those already in prison. “Attorney General Mukasey’s characterization of people currently in prison for crack cocaine convictions, and of the impact that a potential reduction in their sentences could have on our communities, is not only inaccurate and disingenuous, but it is alarmist and plays on the worst fears and stereotypes many Americans had of crack cocaine users in the 1980s,” said NAACP Washington Bureau Director Hilary O. Shelton.
“The fact that a federal judge will be called to review every case individually and take into account if there were other factors involved in the conviction, whether it be the use of a gun, violence, death or the defendant’s criminal history before determining if the retroactivity can apply, appears to have eluded the Attorney General,” Shelton added. “Furthermore, because more than 82 percent of those currently in prison for federal crack cocaine convictions are African Americans and 96 percent are racial or ethnic minorities, the NAACP is deeply concerned at the Attorney General’s callous characterization that many of the people in question are ‘violent gang members’.”
February 9, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (15) | TrackBack
My bloggy interview at LexBlog discussing start of OSJCL Amici
In this post at LexBlog, Rob La Gatta has put up an interview we did last week discussing, inter alia, how my blogging here (and the thoughtful comments of so many readers) inspired me to help create OSJCL Amici: Views from the Field. Here is this part of our Q and A:
Rob La Gatta: How did the idea for Views From The Field first develop?
Doug Berman: I’ve been blogging on my Sentencing Law & Policy Blog for a while, and have been inspired by the number of thoughtful practitioners who will say things in comments and through e-mails that give me really distinctive views on the federal sentencing world. Being involved with the Ohio State Journal of Criminal Law, I thought we ought to have an online supplement, one that avowedly focused on getting the perspective of thoughtful practitioners (rather than just providing opportunities for law professors to write smaller versions of longer ideas). That was the model.
I lucked out that there was a very capable student who had just joined the journal, who indicated an interest in getting involved in some new projects. He helped us run with it and put together a lot of the infrastructure. I’ve [also] been lucky — through my work on federal sentencing — to get to know a number of federal judges....I sent out an e-mail to a bunch of district judges and said "Hey, we’d like you to write for this." Fortunately, out of the 10 I wrote to, 4 not only wrote back, but actually wrote...and wrote really interesting stuff that, in a sense, comprised our first issue.
February 8, 2008
Federal Defenders memo about DOJ position on crack retroactivity
I just got a copy of an interesting little memo from the Sentencing Resource Counsel of the Federal Public and Community Defenders, which clearly was written to respond to concerns within the defense bar as a result of the recent testimony of AG Mukasey urging Congress to block the retroactive implementation of the new crack guidelines. Here is how the memo (which can be downloaded below) starts and ends:
Many of you have expressed concern over the Attorney General’s public declaration of the Department of Justice’s intention to propose new legislation to repeal the crack retroactivity decisions of Congress and the Sentencing Commission. The Attorney General’s proposed legislation would eliminate an available mechanism for a sentence reduction based on the Sentencing Commission’s careful findings that guideline ranges for crack defendants are greater than necessary to accomplish the goals of sentencing and have a racially disparate impact. Congress approved the Commission’s partial remedy for these urgent and compelling problems, and for the same reasons, the Sentencing Commission unanimously found that retroactivity is appropriate.
We believe that Congress is most unlikely to pass any such legislation for a variety of reasons....
While we do not believe that Congress will fall for the Department's announced intent to push legislation that would undo overdue and partial relief for some prisoners who suffer unfair sentences for crack offenses, we are prepared to mount constitutional challenges in the event that our optimism is not warranted. A legal memorandum on these issues has been prepared and is available upon request should the need arise.
Some recent related posts:
February 8, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (3) | TrackBack
The Nebraska Supreme Court finds electrocution unconstitutional
As detailed in this SCOTUSblog post, the Nebraska Supreme Court ruled today that electrocution is cruel and unusual punishment. Here are the basics from SCOTUSblog:
The Supreme Court of Nebraska — the last state to allow the death penalty to be carried out only by electrocution — on Friday struck down that method, relying on the state's constitution. The 6-1 ruling, because it is based solely on state law, would not be reviewed by the U.S. Supreme Court. The state court's 69-page majority opinion and 17-page dissent can be found at this link. The decision came in the case of State v. Mata (S-05-1268).
Division in the Justice Department over crack retroactivity
Writing this strong piece in the Los Angeles Times, Richard Schmitt is focused on the really interesting set of issues in the wake of AG Michael Mukasey's recent crack advocacy. Here are extended excerpts:
In recent days, Atty. Gen. Michael B. Mukasey has voiced opposition to the early release of hundreds of federal inmates convicted of dealing crack cocaine, saying the move would unleash a potential crime wave in communities across the country. He reiterated his concern Thursday at a hearing before the House Judiciary Committee.
But some U.S. attorney offices around the country may not be getting the message. In at least three cases, federal prosecutors have supported efforts to win inmates reduced sentences. Two of the cases are in the Portland, Ore., area, where one inmate is thought to have been released. A third defendant, jailed in Massachusetts, could be released this summer. The disconnect between Justice Department policy and how new sentencing guidelines are being applied in some cases suggests the issue may be more complex than the attorney general has indicated....
Peter A. Carr, a Justice Department spokesman, said Thursday that there should be no confusion about where the department stands. "The department's policy on retroactivity is laid out in the attorney general's statement before Congress," he said. But even some Justice Department officials see little chance that the Democratic Congress would approve such legislation. Opponents say the move would be unfair to defendants who have already served long sentences.
Justice Department officials signaled at a conference on the new guidelines last month that they would do their part to implement the rules fairly -- a view that appears to contrast with the hard line that Mukasey has recently adopted. Some U.S. attorneys outside the Beltway are already helping implement the rules. In Portland, the U.S. attorney's office supported reduced sentences for defendants in two cases, even before the guidelines were set to go into effect. Kent Robinson, first assistant U.S. attorney in Portland, said the office backed the early release in one case because the defendant was already living in a halfway house....
The other Oregon defendant, Octabian Jamar Riley, was sent to prison in 2004 for selling crack and carrying a .45-caliber handgun. On the surface, he seemed to be just the sort of armed criminal that Mukasey was concerned about. But Riley won't be hitting the streets any time soon. Robinson said federal officials had turned over Riley to the state of Oregon to face separate charges. Robinson said that it was an oversight to process the claims before March 3, and that he was unaware at the time that the Justice Department had a policy against it. "We mistakenly let those slip through before the national policy to oppose release [before March 3] was clear to us," he said. "Both represented rather extraordinary circumstances," he added. He said the office was now opposing any early release requests until at least March 3.
On Wednesday, a federal judge in Boston shaved 15 months off the sentence of another convicted crack dealer, court records show. The defendant, Deborah Woodard, had originally been convicted of possessing more than 50 grams of crack with intent to distribute, and was sentenced to 135 months in federal prison. The decision by U.S. District Judge William G. Young to trim her sentence followed a request last month by Woodard's public defender. After receiving the request, Young asked the government for its view on giving Woodard a break. The U.S. attorney's office in Boston responded by joining in the request, court records show. "My understanding is that the attorney general's concerns became known after the motion was filed, and our response was due," said Christina Dilorio-Sterling, a spokeswoman for the U.S. attorney's office in Boston. Woodard could be eligible for release in June.
February 8, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (7) | TrackBack
Welsey Snipes to be sentenced two weeks too late
As detailed in this local story, a "federal judge has set a sentencing date for actor Wesley Snipes, who was convicted Feb. 1 on three misdemeanor counts of willful failure to file tax returns" for late April 2008. Here are more details:
Senior U.S. District Judge William Terrell Hodges set a hearing for April 24 to sentence Snipes and his codefendants Eddie Ray Kahn and Douglas Rosile. Snipes, Kahn and Rosile were each charged with one count of conspiracy to defraud and one count of aiding and abetting the making of a false and fraudulent claim as part of an alleged tax fraud scheme. Snipes also was charged with six counts of willfully failing to file federal income tax returns.
Jurors acquitted Snipes of the felony counts, but convicted Kahn and Rosile. The jury also acquitted Snipes of the three remaining failure to file counts.Snipes faces a possible maximum sentence of three years in prison. Kahn and Rosile face a possible 10 years.... Hodges' order allows Snipes and Rosile, both free on bond, to remain free until the sentencing.
Unless one believes that general deterrence should have no role at all in sentencing, it seems to me that this sentencing is scheduled about two weeks too late. Snipes' sentencing will be a very high-profile punishment for failure to file tax returns, and it seems that society would benefit greatly by having this sentencing tax place right before Tax Day, April 15. I wonder if, as a victim of Snipes' crime, federal citizen taxpayers like me (and TaxProf Paul Caron) have a right under the Crime Victims' Rights Act to request moving up the sentencing date in this case.
Even the NRA, while urging Second Amendment strict scrutiny, thinks Martha Stewart and Lewis Libby have no gun rights
SCOTUSblog here has links to a large bunch of amicus briefs filed in the Supreme Court's Heller Second Amendment case. Though perhaps other supporters of gun rights do not sell out felons, I was especially interested to see that the National Rifle Association's brief, which describes the NRA as "America’s foremost defender of Second Amendment rights" readily concedes that "laws barring [any gun] ownership by convicted felons" would pass its proposed Second Amendment test.
As I have highlighted in prior posts, there are lots and lots of folks with felony convictions — such as Martha Stewart and Lewis Libby — who might want and need to have a gun for self-protection. Nevertheless, while the NRA claims to be the foremost defender of the "human, civil, and constitutional rights of the individual to keep and bear arms in a free society," the NRA is still content (and even seems eager) to concede that once convicted of any kind of felony, any and every person loses forever these "human, civil, and constitutional rights."
Some related posts on the Heller Second Amendment case:
February 7, 2008
Mukasey's crack testimony and reactions from public policy groups
AG Mukasey's take on crack retroactivity appears in the last few pages of this written testimony submitted today to the House Judiciary Committee, which this morning held an "Oversight Hearing of the Department of Justice." Here is the key concluding paragraph of the crack part of his testimony:
[W]e think it is imperative for Congress to pass legislation to address the Sentencing Commission’s decision. In calling for action, I emphasize that we are not asking this Committee to prolong the sentences of those offenders who pose the least threat to their communities, such as first-time, non-violent offenders. Instead, our objective is to address the Sentencing Commission’s decision in a way that protects public safety and addresses the adverse judicial and administrative consequences that will result from retroactive application of these lower guidelines. We would appreciate the opportunity to work with this Committee and this House to address the retroactivity issue in an expedient manner while beginning discussions on changes to the current statutory differential between crack and powder cocaine offenses.
Unsurprisingly, public policy groups like FAMM and the ACLU are not impressed and they've got press releases out responding to the AG's assertions. The FAMM release is here, and the ACLU release is here.
Some recent related posts:
February 7, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack
Eighth Circuit provides post-Kimbrough spin on crack sentences
The Eighth Circuit today in US v. Roberson, No. 06-3458 (8th Cir. Feb. 7, 2008) (available here) provides its spin on crack sentencing after Kimbrough. Here are some key excerpts (with cited omitted):
The district court ignored Roberson’s and Sturgis’s arguments for lighter sentences based on the 100:1 disparity between crack and powder cocaine under the guidelines. Previously, we have expressly refused to authorize such a consideration. Kimbrough held that the sentencing court did not abuse its discretion by considering the disparity between crack and powder cocaine sentences. More specifically, a district court acts within its discretion if it considers the crack/powder disparity in finding that a within-guidelines sentence is “‘greater than necessary’ to serve the objectives of sentencing.” Id. at 564 (quoting 18 U.S.C. § 3553(a) (2007)).
We do not believe, though, that Kimbrough means that a district court now acts unreasonably, abuses its discretion, or otherwise commits error if it does not consider the crack/powder sentencing disparity. True, the Supreme Court took a dim view of the extent of the disparity and was supportive of the Commission’s efforts to reduce it, see Kimbrough, 128 S.Ct. at 564, 567-68, but it did not appear to mandate that district courts consider the disparity in all sentences for crimes involving crack cocaine. Accordingly, we decline to go beyond the facial holding in Kimbrough by requiring that district courts consider the crack/powder disparity.
Today's Sixth Circuit must-read on reasonableness
I'll have to read all the analysis before commenting, but How Appealing provides the basics on the latest Sixth Circuit reasoned discussion of reasonableness:
En banc Sixth Circuit issues decision addressing "reasonableness" review of criminal sentence imposed under federal Sentencing Guidelines: The court splits 9-6 over the outcome, and one of the three dissenting opinions cites U.S. District Judge Richard G. Kopf's blog-based "top ten" list.
UPDATE: All four opinion in Vonner are amazing, and I am sort of at a loss for fitting commentary — except to say I am proud of all the judges who wrote opinions and took the time to work through all the challenges that Booker and its progeny present for lower courts. Against this backdrop, the final paragraph of the majority opinion is especially worth spotlighting:
Since Booker, the Supreme Court has handed down three cases about appellate review of challenges to the lengths of criminal sentences and the processes for determining them. See Rita, 127 S. Ct. at 2470; Gall, 128 S. Ct. at 602; Kimbrough v. United States, 128 S. Ct. 558, 576 (2007). One theme runs through all three cases: Booker empowered district courts, not appellate courts and not the Sentencing Commission. Talk of presumptions, plain error and procedural and substantive rules of review means nothing if it does not account for the central reality that Booker breathes life into the authority of district court judges to engage in individualized sentencing within reason in applying the § 3553(a) factors to the criminal defendants that come before them. If there is a pattern that emerges from Rita, Gall and Kimbrough, it is that the district court judges were vindicated in all three cases, and a court of appeals was affirmed just once — and that of course was when it deferred to the on-the-scene judgment of the district court. Our affirmance in today’s case respects the central lesson from these decisions — that district courts have considerable discretion in this area and thus deserve the benefit of the doubt when we review their sentences and the reasons given for them.
More on Mukasey on crack: is the best defense is a good offense?
This Washington Post article has a bit more information about AG Mukasey's latest statements about implementation of the US Sentencing Commission's crack retroactivity decision. Here are excerpts:
In a statement prepared for his scheduled appearance before the House Judiciary Committee today, Attorney General Michael B. Mukasey said that unless Congress acts, "1,600 convicted crack dealers, many of them violent gang members, will be eligible for immediate release into communities nationwide" under a decision by the U.S. Sentencing Commission. "Retroactive application of these new lower guidelines will pose significant public safety risks . . ." Mukasey said in the statement. "Many of these offenders are among the most serious and violent offenders in the federal system and their early release . . . would produce tragic, but predictable results." ...
Supporters of the commission's action say the fears raised by Mukasey are overblown. They note that inmates would have their petitions to be released heard by judges who would consider filings from prosecutors and probation officers before determining an offender's fitness to reenter society.
"I'm really kind of shocked that Attorney General Mukasey would seemingly not have faith in the American judicial system to do all it can to ensure that violent offenders are not released early and to address a fundamental injustice in the criminal justice process," said U.S. District Judge Reggie B. Walton, who presides in the District. "His position presupposes that judges will be irresponsible in exercising their discretion."
The federal judiciary supported the Sentencing Commission, citing the law's harsh impact on first offenders. It was joined by federal public defenders, probation officers and activists. Mukasey seemed to factor the criticism into his statement. "In calling for action, I emphasize that we are not asking this committee to prolong the sentences of those offenders who pose the least threat to their communities, such as first-time, non-violent offenders."
I find it notable and telling that these statements is that they arise in testimony submitted to the House Judiciary Committee, which later this morning is conducting an "Oversight Hearing of the Department of Justice." Notably, as detailed in this press release and this official letter, the Chair of this House Committee is on record demanding from Mukasey "answers to questions about the politicization of the Department of Justice, waterboarding, the destruction of CIA tapes, and vote suppression." Perhaps AG Mukasey shrewdly believes that, rather than try to defend his Justice Department on all these fronts, he can and should go on the crack attack in the hope of distracting attention from other issues.
Indeed, against the backdrop of all the recent waterboarding news and the pardon attorney office scandal, I suppose I am not surprised that AG Mukasey would like to make headlines by beating up on judges, the Sentencing Commission and recent efforts to achieve greater sentencing fairness in federal drug sentencing. I am surprised, however, that I am starting to really miss former AG Alberto Gonzales, who actually tended to be a bit more cautious and nuanced in his rhetoric about sentencing reform efforts and the work of federal judges and the US Sentencing Commission.
February 7, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (11) | TrackBack
Providing a positive spin on the pardon attorney scandal
Former US Pardon Attorney Margaret Colgate Love sent me this e-mail which suggests good might come from the latest disturbing news from the US Pardon Attorney's Office:
It occurred to me that the ugly situation in the Pardon Attorney's Office, as reported in the New York Times op-ed piece by George Lardner and in Tuesday's AP piece, has at least one silver lining: It offers an opportunity to restore the Justice Department's pardon program to its historical role as the source of fair and impartial advice about clemency cases. That act would be the most valuable pardon legacy any president has left for three decades, and it would more than redeem President Bush's otherwise undistinguished pardoning record.
Since the late 1970's, when Jimmy Carter's attorney general Griffin Bell delegated responsibility for making clemency recommendations to the chief operating officer of the Justice Department, the pardon program has lost whatever independence and integrity it once enjoyed within the Department. In recent years, it has functioned primarily to ratify the results achieved by prosecutors, not to provide any real possibility of revising them. As a result, it has lost its capacity to serve and protect the presidency -- as demonstrated by the fiasco at the end of the Clinton admnistration. Now, in selecting a new pardon attorney, the attorney general has an opportunity to consider whether the present administrative arrangement is a desirable one. More particularly, he can decide whether to maintain the office's subservience to the prosecutorial agenda, or to appoint a person genuinely willing and able to do what the 1887 report to Congress, quoted by Lardner, proposed: "to accord to the convict all that he may be fairly entitled to have said in his favor." Whatever the outcome of the selection process, the exercise itself should give rise to a much-needed discussion of the role of pardon in today's justice system.
Some recent related posts:
Violent crime and crazy talk
Over at Crime & Consequences, Steve Erickson has this interesting post titled, "The Ubiquity of Substance Abuse in the Calculus of Crime and Mental Illness." Here are snippets:
As mentioned previously, the recent National Institute of Mental Health's CATIE study suggested a link between schizophrenia and violence. That conclusion generated a lot of controversy from folks who assert that there is no link between mental illness and violence, touting the frequent mantra that those with mental illness are no more likely to become violent than the general population. Indeed, we should be careful not to needlessly contribute to the enduring stigma that burdens those with mental illness. Nonetheless, we shouldn't ignore the link between mental illness and crime simply because it makes some people uncomfortable or is at odds with the vested rhetoric of political correctness....
[Other] studies confirm ... a strong link between criminality and substance abuse.... Putting all of the rhetoric aside, the risk of violence and crime among those with mental illness who abuse alcohol and drugs is a serious risk in need of candor within the academic and popular realms of debate.
Economic woes in Michigan impacting corrections and sentencing
The budget proposal that state budget director Robert Emerson delivers Thursday is expected to trim spending on prisons, but one influential senator has asked Gov. Jennifer Granholm to not count on any savings until legislation changing sentencing requirements actually passes. Granholm said last week in her State of the State address that the state needed to look again at making changes in prison spending in the budget year that starts Oct. 1....
The governor said in December that she's still interested in rewriting sentencing guidelines so some convicts are sent to county jails with shorter sentences rather than to state prisons, or serve a shorter time in prison, saving the state money. She made that proposal last year but it never got taken up by lawmakers....
Sen. Alan Cropsey, a DeWitt Republican who heads the Senate Judiciary Committee and the appropriations subcommittee that oversees corrections spending, warned Wednesday that the Democratic governor may not be able to get the changes she wants to lower prison costs. "Last year, she based her budget on policies to be enacted, on policies she couldn't even get the Democrats to touch," Cropsey said Wednesday. "At this point, either on the Democratic or Republican side, we haven't been shown any changes that anyone feels comfortable with."
Last year, the Granholm administration proposed sentencing changes that would have changed some felonies into misdemeanors punishable by up to a year in jail. Other crimes would have had shorter maximum sentences. Some drug offenders would face a maximum three-month jail term, not the potential for up to four years in prison. Under that plan, the $2 billion prison system — which consumes more of the state's tax dollars than its 15 public universities — would have housed 3,300 fewer inmates over three years. Space in crowded county jails would have dropped by 2,000 beds in a year, according to the Michigan Department of Corrections.
But the measures went nowhere. County officials said they feared being saddled with more inmates and incarceration costs, and prosecutors and sheriffs warned the public could be at risk from more criminals on the streets.
The highlight above is my addition to the article because I find it especially important to spotlight that spending on prisons in Michigan exceeds spending on public universities. Not only is this a telling reality, it also might be a dangerous one: studies show that persons with more educational achievement commit fewer crimes, and thus state investment in university education may well pay better public safety dividends than investments in a prison system.
Hawaii still dealing with Apprendi fix and fall-out
This local article reveals how long it can take for certain matters to make their way from the Supreme Court in DC all the way out to Hawaii:
State courts can resentence convicted felons to extended prison terms under a new law enacted just last year for cases dating to the year 2000, according to a state appeals court ruling issued last week. The ruling by the state Intermediate Court of Appeals upholds the constitutionality of Act 1, which brings Hawaii sentencing statutes in line with recent U.S. Supreme Court orders and rulings. The effective date of the law is retroactive to 2000, when the high court issued a ruling in a New Jersey case.
The new law requires juries to determine whether a convicted felon is eligible for a prison term longer than what is normally allowed, based on the danger he poses to the public. Previously, judges made that determination....
"We're happy with the ICA ruling, and it is our hope that the Supreme Court will see the issue similarly," said state Attorney General Mark Bennett. Oral arguments are scheduled for today. Public Defender Jack Tonaki said there already is a case that raises the same or similar issues pending before the Hawaii Supreme Court.
February 6, 2008
AG Mukasey comes out swinging on crack retroactivity
This ABCNews story and this AP piece both report that Attorney General Michael Mukasey is going to ask Congress to intervene with the retroactive implementation of the new crack guidelines. Here are a few particulars from a big new story on the crack sentencing front:
The Justice Department is expected to ask Congress to pass legislation to keep certain crack offenders behind bars until they take part in educational, rehabilitation and prisoner re-entry programs, even though a recent change in sentencing regulations makes them eligible for early release....
In testimony he's expected to give before Congress Thursday, Attorney General Michael Mukasey will claim that the sentencing guideline changes will lead to more than 1,500 violent crack cocaine dealers to be released immediately. "Unless Congress acts by the March 3 deadline, nearly 1,600 convicted crack dealers, many of them violent gang members, will be eligible for immediate release into communities nationwide," Mukasey said in a prepared statement that was sent to the House Judiciary Committee on Wednesday....
Mukasey will be testifying before the House Judiciary Committee, whose ranking member, Rep. Lamar Smith, R-Tex., has introduced legislation to halt the retroactive release. "Many of these criminals are dangerous repeat offenders who possessed firearms during their crimes," Rep. Smith said in introducing the measure. A senior Justice Department official described the measure as uncompromising on Wednesday. "The Lamar Smith bill is a straight-up bill opposing retroactivity," the official said....
With less than 30 days to pass legislation before the first offenders are eligible for release, it is unclear how quickly Congress will move.
As I have noted in prior posts (some of which are linked below), it seems very unlikely that Congress will, at this late date, have the time or inclination to do much about the unanimous crack retroactivity decision coming from the US Sentencing Commission back in December. Nevertheless, the AG's testimony can (and should) turn this into an interesting political issue, especially because now all three serious presidential candidates are members of Congress.
Some related posts:
- Mukasey talking (seriously?) about pushing legislation to undo crack retroactivity
- FSR issue covers crack sentencing
- Bill introduced to overturn USSC's crack retroactivity decision
February 6, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack
Interesting appellate reading from How Appealing
Though not focused purely on sentencing issues, these two items today on How Appealing caught my eye:
- In federal death penalty trial of defendant charged with two counts of murder committed while engaged in drug trafficking, the federal district court erred in precluding the prosecution from introducing evidence at the guilt phase related to post-mortem dismemberment: You can access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link.
- Unanimous three-judge Seventh Circuit panel rejects constitutional challenges to provisions of the Adam Walsh Child Protection and Safety Act that limit a criminal defendant's access to alleged child pornography in a child pornography prosecution: Chief Judge Frank H. Easterbrook wrote today's ruling. This decision represents the first time that a federal appellate court has addressed the constitutionality of these particular statutory provisions, which were enacted in July of 2006.
Actually, the Seventh Circuit opinion does have a sentencing section, though the start of the sentencing discussion provides the major highlights:
On to the sentence, which at 330 months is exceedingly long. Shrake did not molest any of the children in the video files or produce them himself. And he does not have a criminal record. Yet the sentence is within a properly constructed range under the Sentencing Guidelines. The district judge calculated Shrake’s offense level at 40, which for a first offender supplies a range of 292 to 365 months; the judge sentenced Shrake in the middle of that range, and on appeal such a sentence enjoys a presumption of reasonableness. See Rita v. United States, 127 S. Ct. 2456 (2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). After Gall v. United States, 128 S. Ct. 586 (2007), stressed the extent of a district judge’s discretion in sentencing, and the limits of appellate review, it is difficult to see how a mid-Guideline sentence could be upset unless the judge refuses to entertain the defendant’s arguments or resorts to an irrational extra-statutory consideration.
More detail on the US Pardon Attorney scandal
This new AP story, headlined "Pardon Attorney Moved After Racism Claim," provides more details on the ugliness in the Office of the US Pardon Attorney. Here are excerpts:
The Justice Department attorney responsible for recommending presidential pardons has been transferred out of his office following accusations of mismanagement and racism.
Roger Adams, who served as the government's pardon attorney for over a decade, told internal Justice Department investigators he probably has "some faults, but racial prejudice is not one of them." But the department's inspector general concluded otherwise, finding that Adams acted improperly in describing a drug convict applying for a pardon as "about as honest as you could expect for a Nigerian." "Unfortunately, that's not very honest," Adams allegedly told a co-worker, according to the inspector general's December 2007 report.
The inspector general's office said it did not find reason to doubt the accuracy of the statement after its own interview with Adams. "We believe that Adams' comments — and his use of nationality in the decision-making process — were inappropriate," the report concluded. "We were extremely troubled by Adams' belief that an applicant's 'ethnic background' was something that should be an 'important consideration' in a pardon decision."
The investigation also concluded that Adams threatened to transfer or otherwise retaliate against staffers who complained about his management style to the inspector general, which is the Justice Department's internal watchdog.... Adams recently left his post as pardon attorney voluntarily and now works in the general counsel's office at the Justice Department's management division, agency spokesman Erik Ablin said Tuesday in a statement....
The inspector general's report describes a poisonous work environment — apparently felt by both Adams and his staff — in the pardon attorney's office. The heavily edited report was spurred by complaints in June 2007 from unnamed Justice employees, some of whom apparently kept notes over the years detailing conversations they had with Adams.
It should not be overlooked — indeed, I think it should be stressed — that Adams became the US Pardon Attorney during the Clinton Administration and was serving in this role at the time of President Bill Clinton's troublesome set of last day pardons. Reports were that President Clinton completely circumvented the Pardon Office when issuing his last-day pardons, though I suspect the subsequent brouhaha over the Clinton pardons surely impacted the environment and day-to-day work of that office even as the White House changed hands.
Some recent related posts:
New York Times editorial assails juvenile LWOP
Highlighting one of many sentencing issues I wish would get more attention in this election season, the New York Times today has this new editorial headlined, "A Shameful Record." Here are excerpts:
The United States leads the world in a shameful category: the number of people it has locked up for life without parole for crimes committed by juveniles. Juvenile crime should not be taken lightly, but young people should not be completely written off.
According to Human Rights Watch, 2,380 people in this country are serving life sentences for crimes they committed before they turned 18. That makes the United States an extreme global outlier. Sentencing juveniles to life without parole is at odds with international law; the vast majority of the world’s countries ban the practice....
In California, the Legislature recently failed to act on a bill that would have allowed the more than 225 inmates serving life sentences there for crimes committed as minors the right to appear before a parole board after serving 25 years in prison. The bill deserves to be reintroduced, and to pass. California is hardly the only state that needs to rethink its approach. As many as 38 states sentence minors to life without the chance of parole, including Pennsylvania, the worst offender, where hundreds of inmates — estimates range from 360 to 433 — have no hope of ever being released because of crimes they committed between the ages of 13 and 18.
There are now more than 2 million people behind bars in the United States. Locking up juveniles for life without parole is unfair and a poor use of criminal justice resources. California, and the other states, should rethink this misguided policy.
Some recent related posts on juve life sentences: