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:
February 5, 2008
"The Subjective Experience of Punishment"
Suppose two people commit the same crime and are sentenced to equal terms in the same prison facility. I argue that they have identical punishments in name only. One may experience incarceration as challenging but tolerable while the other is thoroughly tormented by it. Our sentencing policies seek to equalize the duration of their incarceration, yet largely ignore the differences in their experiences of isolation, stigma, and confinement. In this article, I argue that, according to our prevailing theories of punishment, the subjective experience of punishment matters. There is, therefore, a disconnect between our punishment practices and our best attempts to justify those practices.
There are three possible responses. First, we could try to modify or expand our theories to avoid the obligation to calibrate punishment. I show why this approach is unlikely to succeed. Second, we could conclude that, even though we ought to calibrate our punishments, doing so would be too costly or difficult to administer. This response is too hasty. In civil litigation, we do make subjective assessments of damages. Advances in neuroscience may someday make these assessments more accurate and less expensive. Even if we cannot individually calibrate punishments, we can surely enact sentencing policies that are more subjectively-sensitive than the policies we have now. We are left, then, with only the third response: to recognize that subjective experience matters in assessments of punishment severity and to take at least modest steps toward calibrating punishment, either through individual measurement or, more feasibly, by enacting punishment policies that are subjectively sensitive.
Here is Larry Solum's mini-review: "I really enjoyed this fine paper by Kolber, although I am pretty sure I do not accept his argument. Nonetheless, a compelling read and highly recommended."
Federal district judges say the darndest things
For proof that federal district judges cannot do just anything they want at sentencing after Booker, check out the opinion of the Eighth Circuit today in US v. Wysong, No. 07-1025 (8th Cir. Feb. 5, 2008) (available here). Here is how the brief opinion starts:
Cinthia Wysong pled guilty to one count of possession of pseudoephedrine, knowing or having reasonable cause to believe that the chemical would be used to manufacture a controlled substance, in violation of 21 U.S.C. § 841(c)(2). At sentencing, the district court varied downward from the advisory guidelines range of 46-57 months to a term of 24 months’ imprisonment, and then suspended the 24- month sentence. Because federal courts are not authorized by statute to suspend sentences, we reverse and remand for resentencing.
What's just right in Kansas...
Proving yet again that the states are way ahead of the feds in figuring out how to do sentencing and corrections, this local article reports encouraging news from everyone's favorite bellwether state:
The percentage of Kansas inmates who commit new crimes while on supervised release has dropped significantly over five years.
The rate, which was a little more than 5 percent in 2002, fell to 2.2 percent last year, Corrections Secretary Roger Werholtz told lawmakers Monday. He attributed the reduction to increased legislative funding for programs that supervise inmates after they leave prison, and more dollars for alcohol and drug treatment.
Werholtz said that with fewer offenders returning to prison, the number of inmates in Kansas prisons has decreased from 9,153 in 2004 to 8,854 in mid-2007. “There is sufficient (prison) capacity to meet our needs for the next 10 years,” Werholtz told the House Appropriations Committee. However, he said that prediction assumed that the Legislature would not pass new sentencing laws that would put more offenders in prison. “During the last week of January, the prison population fell below 8,700, which was the first time that had been done since July, 2002,” he said.
Werholtz praised the passage last year of SB 14, which enacted a grant program to encourage community corrections programs to reduce revocation rates at least 20 percent. The law also reduced sentences by 60 days for offenders who complete job training and drug abuse programs in prison. Rep. Pat Colloton, the Leawood Republican who sponsored the House legislation, said the goal was to save money and rehabilitate criminals by preventing return trips to prison.
Will the new US Pardon Attorney "scandal" garner any serious attention?
As I had predicted and feared, buzz about Super Tuesday has totally eclipsed the new story suggesting scandalous behavious by the now-resigned former US Pardon Attorney Roger Adams. Fortunately, FAMM is unlikely to let this story go away without a bit more attention, as evidenced by this new FAMM press release. Here are excerpts:
Today, FAMM calls on Congress to immediately investigate the breakdown at the Office of the Pardon Attorney and ask Attorney General Michael Mukasey how he intends to fix it.... [George] Lardner’s piece [in the New York Times] was triggered by a report produced at the end of a seven-month investigation by the Justice Department’s inspector general regarding alleged mismanagement. Lardner’s piece described the pardon office as being in complete disarray. According to the pardon attorney’s official reports, there is a backlog of 2,501 clemency petitions still “pending” in the bureaucratic mill as of January 1, 2008.
This is a tragedy because many prisoners seeking clemency are serving truly excessive sentences that benefit no one. For example:
- Barbara Scrivner has served over 12 years of a 30-year sentence. She played a minor, addiction-driven role in her husband’s methamphetamine ring. In prison, she has beaten her drug addiction, is earning a bachelor’s degree from a Christian college, and counsels young people on the dangers of drug abuse. Meanwhile, her own teenage daughter is growing up without a mother.
- Marty Sax is a decorated Vietnam veteran and first-time, nonviolent offender. He has served almost 15 years of a 20-year sentence for his part in a marijuana conspiracy. He has been a model prisoner. Even the judge who sentenced him, the FBI agent, and an attorney who helped prosecute Marty agree that he has served too much time.
“All Americans—even those in prison—are entitled to a government that takes them seriously and responds to their needs,” says [FAMM's Molly] Gill. “The Office of the Pardon Attorney is not doing this, and all of us should be asking why.”
[T]here has never been a single reason in the world for anyone anywhere to think George W. Bush would be anything but extremely stingy with pardons. His administration came on the heels of a first-class clemency controversy (Clinton). Bush is a Republican and a former governor. As a governor, he set records for stinginess with pardons and knew what it was like to experience sharp criticism for use of the clemency power....
Bush may or may not grant a "big bunch" of pardons before he leaves. But, if he does, he certainly wouldn't be the first President to do so. That would be George Washington. And, if he (Bush) does grant a few, just how many would constitute a "bunch" will be entirely debatable. The only thing that seems clear to me is that Bush is in something like a no-win situation with his critics. And the expectations and calls for reform of the clemency process have been much greater during his administration than they ever were during the administration of Bill Clinton. In my mind, that says something in and of itself.
Helping the federal judiciary (but not private lawyers) with crack retroactivity
A self-described "friend of the blog" sent me the following e-mail:
I thought that you might be interested in the programs that the Federal Judicial Center is developing for the District Courts. The e-mail announcing the programs is set out below. I believe all of the programs are accessible only through the judiciary's intranet website or TV network.
To All District and Magistrate Judges: I am pleased to announce the availability of three Center initiatives that may be helpful in applying the new Sentencing Guideline pertaining to crack cocaine convictions.
1. An FJC Online web resource: the Crack Cocaine Retroactivity Guideline Information Exchange. The Federal Judicial Center is providing this resource in response to the need for a central location for judges, chief probation officers, district court clerks, senior staff attorneys, and federal defenders to share information and resources concerning policy, practical application, and local procedural issues. You can search the Exchange by topic, add your own topics, pose questions, and offer answers to others. Links to relevant websites are included. You can also post documents and reference materials. The Exchange is also available through the FJC Online home page at http://cwn.fjc.dcn.
2. An FJTN broadcast, Using BOP Sentry Reports to Evaluate Sentencing Reductions, a 30-minute live program on Thursday, February 7, at 1:00 p.m. EST.
3. An FJTN broadcast, Sentencing in Federal Courts: Applying Gall, Kimbrough, and the New Cocaine Guidelines, which has been rescheduled to debut on February 27 at 3:00 p.m. EST.
E-mails announcing the availability of the Exchange and the FJTN broadcasts have been sent to chief probation officers, district court clerks, senior staff attorneys, and federal defenders.
Barbara Rothstein, Director, Federal Judicial Center
Of course, I am pleased to see so may efforts afoot to help with implementing the new crack guidelines. But I am disappointed (and getting grumpy) that private attorneys and academics and other non-federal-employees (like me) are being shut out from these significant resources.
What might Second Amendment strict scrutiny mean for strict gun laws?
As detailed in this article in today's Washington Post and this post at SCOTUSblog, attorneys for respondent Dick Heller filed this brief in the Supreme Court assailing the constitutionality of DC's gun restrictions under the Second Amendment. Among many interesting aspect of the brief is a section calling for the "highest level of scrutiny for regulations implicating Second Amendment rights." Here are some intriguing (and puzzling) excerpts from this part of the brief:
The Second Amendment has the distinction of securing the most fundamental rights of all — enabling the preservation of one’s life and guaranteeing our liberty. These are not second-class concerns. .... If a gun law is to be upheld, it should be upheld precisely because the government has a compelling interest in its regulatory impact. Because the governmental interest is so strong in this arena, applying the ordinary level of strict scrutiny for enumerated rights to gun regulations will not result in wholesale abandonment of the country’s basic firearm safety laws.... The prohibition on possession of guns by felons, 18 U.S.C. § 922(g), and the requirement that gun buyers undergo a background check for history of criminal activity or mental illness, 18 U.S.C. § 922(t), would easily survive strict scrutiny.
So, according to the respondent in Heller, the Second Amendment secures "the most fundamental rights of all," namely "preservation of one’s life." And yet, only a few sentences later, the respondent in Heller asserts that any and all felons — including Martha Stewart and Lewis Libby and Lil Kim and Michael Vick (but not Wesley Snipes) — can be entirely prohibited from securing this fundamental right to the preservation of their lives. Hmmm.
Some related posts on jurisprudential challenges in the Heller Second Amendment case:
Is even Texas justice going softer on capital punishment?
Because Texas is the only state that seems really invested in and committed to capital punishment, I found the headline of this local article from Austin really interesting: "Four Travis candidates lay out their views on death penalty: Three of Earle's assistants say they would seek ultimate punishment infrequently; former assistant says he would never seek death."
Notably, the one Texas candidate saying he would not pursue death cases stressed the "cost of prosecuting such cases." I have long thought an emphasis on economic realities is the strongest practical argument against the death penalty. And these economic realities are highlighted by this intriguing article from New Hampshire, which starts this way:
Nearly $978,000 has been allocated to date for the capital murder case against Michael K. "Stix" Addison and requests for more money likely will be made before Addison stands trial in September for allegedly killing a Manchester police officer, attorneys involved in the case said.
Notably, as detailed in this New Hampshire budget report, the state's Highway Safety Agency gets only about $500,000 annually. So the citizens of New Hampshire are likely to be spending in 2008 more than twice as much to seek a death verdict against a murderer than they are going to spend on keeping their state highways safe. I wonder how many of the frugal citizens of New Hampshire realize their state tax dollars are being allocated this way. I also wonder how many lives might be saved on the roads if the NH Highway Safety agency had an addition million dollars for road safety.
February 4, 2008
Super Tuesday and sentencing "change"
Tomorrow, so-called Super Tuesday, will likely be the biggest single day in the 2008 presidential campaign until November. Thus, I thought it appropriate to spotlight a few of my favorite posts from my Campaign 2008 archive as pundits everywhere gear up for the big day:
- How the media can do better: ask the candidates tough crime and punishment questions
- Race, class and criminal justice in campaign 2008
- Pardon politics and the 2008 campaign
- Interesting commentary on 2008 politics of death
- ACLU urging candidates "to oppose mandatory minimum sentencing"
- A huge win for sentencing hope over fear in Iowa
- Is Senator Clinton to the right of Justice Scalia on sentencing issues?
- Why is Huckabee now trying to seem tough rather than compassionate?
- Candidates asked "what would Jesus do" about the death penalty
Needless to say, I am caught up in all the "change" talk coming from all the candidates, and I am sincerely hoping that change may extend to our current misguided affinity for long terms of incarceration for lots of non-violent offenders. I think some of the candaidates are more likely than others to work seriously toward sentencing change, but I fear these issues will be relatively low-priority matters for anyone elected in 2008.
Valuable new paper on sex offender registration realities
Professor Wayne Logan has this interesting new little paper on SSRN, titled "Sex Offender Registration and Community Notification: Past, Present, and Future." Here is the abstract:
Based on a keynote address delivered in conjunction with the Journal's annual symposium, this paper examines several of the major legal and policy issues associated with sex offender registration and community notification laws. Particular attention is dedicated to the Adam Walsh Act, a federal law taking effect in July 2006 that continues Congress' effort to foster changes in state registration and notification regimes as a result of its Spending Clause authority. In addition to discussing the federalism implications of the AWA, the paper examines several of its most significant provisions, including those calling for empirical assessment of registration and community notification, twelve years after Congress first pressured states nationwide to adopt laws in accord with its will.
Another notable sentencing ruling from the Sixth Circuit
Keeping up with just the Sixth Circuit sentencing jurisprudence is becoming a full-time job, and today brings yet another thoughtful sentencing ruling from a panel of that court. Today's work is in US v. Conatser et al., Nos. 06-5694/5946 (6th Cir. Feb. 4, 2008) (available here), and the start of Judge Moore's partial concurrence provides a flavor for some of the issues being discussed in this decision:
I join the majority opinion in most respects, but I write separately because I believe that the majority gives inadequate attention to Marlowe’s argument that his sentence of life imprisonment violates the Sixth Amendment because judge-found facts triggered a substantial increase in his advisory Guidelines range. Although I do not believe that Marlowe’s sentence violates the Constitution, his claim deserves a more detailed analysis than it received in the majority opinion. Therefore, I concur in the judgment upholding Marlowe’s sentence.
The sad (unpardonable) state of compassion in the Bush Administration
Writing in today's New York Times, George Lardner has this potent op-ed headlined "Begging Bush's Pardon." Here are a few excerpts from a piece that deserves a full read and lots of attention even while other political matters are making bigger headlines:
The first rule for handling requests for presidential pardons was set down in a report to Congress in 1887, during Grover Cleveland’s first term in office. It said they were to be sent to the attorney general’s “pardon clerk” for “his prompt and appropriate attention.”
Just as important, according to the report, was that the petitioners were to be given a fair shake. They were almost always convicted criminals, but that didn’t mean they were all guilty as charged or deserving of the harsh punishments that had been inflicted on them. And so, the pardon attorney in those days was under instructions to “accord to the convict all that he may be fairly entitled to have said in his favor.” The attorney general, thus provided with “an impartial representation” of the case, was to tell the president what he thought should be done.
Today’s Justice Department seems to have nothing but contempt for those principles. The Bush White House has seemingly never heard of them. Thousands of petitioners for clemency have been waiting for years for a ruling, some since before Bill Clinton left office. Thousands of others have been rejected out of hand, largely because preparing a fair report of what might be said in their favor would take too much time and cost too much money....
The sorry state of the system became apparent last month with the abrupt resignation of the pardon attorney, Roger Adams.... His departure came on the heels of a seven-month investigation of alleged mismanagement by the Justice Department’s inspector general. While Mr. Adams has disputed the findings, a heavily censored report of the investigation, provided to me on Friday under the Freedom of Information Act, found that he made “highly inappropriate” racial remarks concerning a Nigerian petitioner and threatened retaliation against employees who dared complain about other aspects of his work....
Being over-free with pardons has hardly been George W. Bush’s problem. He has granted only 142 pardons, four commutations and one remission (to I. Lewis Libby Jr., the former White House aide) since taking office seven years ago. President Bush has denied more than 40 requests for every one granted. (President Clinton, by comparison, granted one in seven requests.)...
Oddly, it seems that the White House, in fact, wanted to say yes more often. In early 2006, several Justice Department officials insist, Harriet Miers explicitly asked the pardon attorney for more recommendations that the White House could act on favorably. Mr. Adams, according to one official present at the meeting, replied that he would need a bigger staff to handle the workload. Favorable reports do take more time, requiring F.B.I. background reports, the views of prosecutors and judges if willing to give them, and other opinions like those of prison officials. Typically, it takes a year to 18 months at best before a positive recommendation can be sent to the White House. Denials, however, are almost automatic if that is what the Justice Department recommends.
Still, Mr. Adams’s talk of a need for more help rings somewhat hollow. He usually had a staff of six lawyers including himself to handle pardon requests. In the late 1980s, by contrast, the pardon attorney had three lawyers besides himself to process petitions and, under President Ronald Reagan, they saw 406 requests granted, almost three times as many as the current administration. Despite the supposed constitutional restraints on the president’s war-making and lawmaking powers, widely skirted in recent years, his authority to grant pardons is complete, except in cases of impeachment.
But it looks as if it will take a new president devoted to addressing cases of what Alexander Hamilton called “unfortunate guilt” to restore it to its original vigor. Pending appointment of a permanent replacement, the acting pardon attorney is Helen Bollwerk, a former federal prosecutor who has been Mr. Adams’s deputy the last two years. Ms. Bollwerk is not likely to preside over a renaissance. She arrived in the pardons office with a duplicate of a Monopoly “Get Out of Jail” card that had a red-circle-and-slash “no” symbol over it. It’s said that this was a gag her fellow workers in the United States attorney’s office had given her, but there are thousands of pardon petitioners who aren’t laughing.
As regular readers know, I have done lots and lots of posts on the pardon power, on the Libby commutation, on the Bush record and on pardons and the 2008 campaign. Here is an abridged list of some of these prior posts:
On the pardon power and modern politics:
- Another bipartisan call for President Bush to commute border agent sentences
- Latest FSR issue on "Learning from Libby"
- Presidential pot to kettle: "your clemency decision is so black"
- Clemency and Pardons category index
On the Bush clemency record:
- Few giving the President sentencing thanks
- A new batch of Bush pardons and a crack commutation
- Shouldn't the turkeys have been named Scooter and Libby?
- Scooter Libby drops appeal ... is a holiday pardon on the way?
- Latest FSR issue on "Learning from Libby"
I suspect that P.S. Ruckman at his blog Pardon Power will join me in closely following the fall-out from this significant sentencing story. I hope that lots of others will focus on this important story, too, though I fear it will get lost in all the buzz now about Super Sunday and Super Tuesday and a super-sized federal budget.
Finding "Compassion in Juvenile Sentencing"
My name is Lisa Kenney and I became aware the number of individuals in my home State of Colorado who had been convicted as juveniles to Life Without the Possibility of Parole (LWOP) when I watched the Frontline documentary, When Kids Get Life. I was so disturbed by what I’d watched that I began researching the subject of juveniles tried and sentenced as adults. Based on what I discovered, I believe there are some serious problems with our justice system and with the way we, as a society view the children convicted of serious crimes. This Weblog is a forum for presenting and discussing articles, rulings and issues related to this subject.
There is a lot of really interesting stuff on this blog, and I found this passage from the latest post especially moving and astute:
When I began writing this blog, I had assumptions about how the judicial system worked, but I never understood how gray so much of what happens is. The cases that caught my attention are all high profile, highly publicized cases because of the age of the offenders and because of the nature of the crimes.
I’ve learned that the justice system and the laws that govern it can be profoundly impacted by politics, perceived public opionion and of course by the media. I’ve learned that most of those who’ve been locked away as children have been largely forgotten. The lucky ones have one or two people who stand behind them and support them. The unlucky ones have been forgotten by even their families.
Connecticut getting serious about a serious sentencing commission
This local news piece reports on another state getting serious about creating a permanent sentencing commission. Here are the basics (with a notable guidelines twist):
A panel of experts is expected to recommend that the state form a permanent commission to study sentencing in criminal courts, racial disparities in prisons and other issues. The panel, a temporary task force created by the state legislature, will make dozens of recommendations when it releases its final report this month. Among them will be a recommendation that Connecticut join 26 states that have permanent bodies to examine criminal justice....
A permanent commission has almost unanimous support, as long as it would not have the power to set up sentencing guidelines that judges and many attorneys oppose.... "The judges would have a problem with any permanent commission that is a precursor to guidelines," said Judge Patrick Carroll, the state's deputy chief court administrator. Carroll likely has nothing to worry about. "We're not into guidelines in this state - not judges, prosecutors or defense lawyers," said Thomas Ullmann, a public defender in New Haven who headed the task force subcommittee studying the possibility of a permanent commission.
The commission likely would be made up of a rotating group of appointed experts from all areas of the justice system, officials said. "I think it's a great idea," Ullmann said. "It will help us create sound policy." Connecticut needs a permanent task force in part because record-keeping is so confusing that it is almost impossible for lawmakers to analyze state courts, the task force concluded.... "There is not a clear understanding of how offenders are moving through the criminal justice system," the task force concluded in its interim report. "Data is not shared among agencies."
An out-of-state consultant who served on the temporary task force said she was stunned by how difficult it was to get basic data. Barbara Tombs, a senior fellow at the Vera Institute of Justice in New York City, a nonprofit that researches criminal justice issues, asked the state for a report on how many inmates in prison on burglary charges had prior burglary arrests. The state could not provide the data, Tombs said. The state could not set how many people had been convicted of murder in recent years, she said. "These are very basic things you should know about your system," Tombs said....
The anti-guidelines sentiment in Connecticut is not just notable, but deeply ironic, given that a lot of the ideas and support for sentencing guidelines at the federal level emerged from work at Yale Law School. Yale Professors like Dennis Curtis and Dan Freed and Kate Stith and Stan Wheeler all played major roles in the federal guideline sentencing story, but now it seems sentencing guidelines are a reviled concept to state actors in Yale's backyard.
Poetic sentencing justice thanks to Wal-Mart
As first discussed here, the re-sentencing of former Wal-Mart vice chairman Tom Coughlin resulted in an interesting and important post-Gall opinion from U.S. District Judge Robert Dawson. The full 30-page opinion (available here) merits a close read, and I wanted to highlight this lengthy poetic paragraph at the very end of the opinion:
[T]he Court notes that there has been considerable debate of late concerning the sentencings of criminal defendants such as Gall and Coughlin and the role of the Guidelines in those sentencings. The goal is to reconcile a congressional desire to achieve some semblance of national uniformity in sentencing with a conflicting desire to maintain the discretion of sentencing judges, while not infringing upon the Sixth Amendment right to have jurors decide certain sentencing facts. The debate percolates from the deepest foundations of the criminal justice system, holds its principles to light and inquires into the nature and desirability of forms and degrees of punishment. That vigorous debate, played out in media and in courts, evidences the nation’s desire for criminal courts that are powerful in their imposition of punishment but not prideful in their formulation of sentences, effective in their determent of crime but not cruel in their measure of retribution, firm enough to apply the forceful hand of the law but merciful enough not to raise the specter of tyranny. It is the struggle towards that goal that makes the American criminal justice system one of the greatest achievements of this nation’s social evolution and ingenuity. Punishment is imposed parsimoniously and with respectful consideration for the individuality of each peculiar defendant. A court that mechanically doles out precalculated sentences on a wholesale basis to categories of faceless defendants fails to do justice. A court that succumbs to apathy, bred by repetition, will cease to see defendants as individuals, with pasts and potentials, with humanity and promise. “It is a terrible business to mark a man out for the vengeance of men,” and “the terrible thing about legal officials . . . is simply that they have gotten used to it.” Gilbert Keith Chesterton, Tremendous Trifles 54-55 (BiblioBazar, LLC 2006) (1909). “[T]he more a man looks at a thing, the less he can see it,” so that “they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop.” Id. at 55.
More on the Snipes jury outcome and acquitted conduct enhancements
Following up my post on Friday's verdict in the Welsey Snipes tax evasion trial, I received this notable e-mail from a lawyer who had a criminal trial before the federal district judge in charge of Snipes' sentencing fate:
Snipes - re: acquitted conduct
FYI - I had a jury trial before Judge Hodges (the Snipes case judge) a couple of years ago. Split verdict. Jury acquitted the defendant of the most serious charge and convicted of a less serious one. Judge Hodges pounded the defendant with the acquitted conduct and imposed a Guidelines sentence that was identical to the one defendant would have received had he been convicted on all counts. The judge's decision made the jury trial seem less than pointless. I often wonder how that jury would feel if they knew that their deliberations were meaningless.
Some posts on acquitted conduct sentencing enhancements:
February 3, 2008
Why tight budget times will speed path to technocorrections
I am so sorry that Mike at the CS blog is calling it quits, because a local story from my local statehouse highlights why he is so right in emphasizing that tight state budgets will increase affinity for technocorrections. This local Ohio statehouse news story (which may require a subscription) is headlined "Senators Told GPS Electronic Monitoring Of Offenders Could Save State $148 Million." Here are excerpts:
Housing inmates in prison costs $69 per day. Tracking some of them electronically would cost $18 per day and, a Senate panel was told this week, could save the state at least $148 million.
For the third time this session, the Senate Judiciary Criminal Justice Committee was briefed on an electronic monitoring system that tracks travel of individuals who may be subject to restraining orders or on parole. Chairman Timothy Grendell (R-Chesterland) took a test drive with one of the Global Positioning Satellite bracelets from I-Secure Trac of Ohio. Results were presented to the panel in the form of a computer map display of the state that reflected his travel.
"I had the benefit of wearing this device for several days this week," Sen. Grendell said. He drove to church, to the bakery he owns, to downtown Cleveland, and eventually to the Statehouse. He was fitted with a device about the size of an iPod that continually tracked him via satellite at 20-second intervals. He discovered it also measured the speed at which his car was moving. "I was driving down here on I-71 when I was notified I was speeding. It's amazing technology," Sen. Grendell said....
Chairman Grendell views use of electronic monitoring technology not only for stalkers, sex offenders and other law enforcement applications, but also as a potential way to relieve crowding in prisons. He met this week with Director Terry Collins of the Department of Rehabilitation and Correction, and a member of Gov. Ted Strickland's staff. "The administration is open to different solutions including the broader use of these technologies," said Keith Dailey, the governor's press secretary.
Some related posts on the costs and benefits of GPS tracking:
- Is the future parole with GPS and other techno-reentry devices?
- Every step you take, every move you make...
- Is GPS tracking a better way?
- More on the pros and cons of GPS tracking
- The devil's in the details of GPS tracking of sex offenders
- Are we willing to pay the costs of (effective?) technocorrections like GPS tracking?
- California commission considering costs of sex offender laws
- A practical challenge to GPS monitoring
- More reasons to expect a GPS-world of corrections
Is legislation to lower federal sentences a real possibility in 2008?
In this recent post, I hinted at my own pessimism about the prospects of legislation to lower federal sentences during an election year. But this new article from the Houston Chronicle strike a distinctly more optimistic tone. Here a excerpts:
The tough-on-crime crackdown of the 1980s and 1990s is getting a second look in Congress. Some lawmakers, including Houston Rep. Sheila Jackson Lee, are questioning whether the soaring incarceration rates brought about by changes in federal sentencing laws have actually deterred crimes....
Jackson Lee, who serves on the House Judiciary Committee's crime subcommittee, is part of the vanguard re-examining a criminal justice system that has seen the federal prison population double from 1.1 million inmates in 1990 to 2.3 million today [sic: these numbers are national incarceration, not the federal prison population]....
The momentum for change reaches beyond liberal lawmakers and left-leaning interest groups. The Supreme Court and the Sentencing Commission recently moved to give judges more discretion in sentencing crack cocaine offenders....
Rep. Lamar Smith of San Antonio, the top Republican on the Judiciary Committee, will be among those standing in Jackson Lee's way. After the Sentencing Commission's decision to allow judges to retroactively reduce crack offenders' sentences slightly — though not less than the mandatory minimums — Smith introduced his own legislation seeking to block any early releases. "In addition to endangering our communities, allowing the early release of criminals back into society would cripple our re-entry programs by overburdening probation officers and flood the courts with additional litigation," Smith said....
Jackson Lee, who also is pushing to cut prison rates by half for nonviolent federal offenders who are over the age of 45 and have served at least 50 percent of their sentence, said she is hopeful that the new Democratic majority in Congress will be able to prevail on criminal justice changes. "The question of liberty is so important to me, and the question of having faith in the integrity of the criminal justice system," she said. "There is a sense of urgency to make right which has been wrong, to improve what has not worked, and to find ways to rehabilitate, to protect the American public from crime but at the same time give people a second chance." Her views are far from universally shared. Jackson Lee acknowledged the legislation faces a strong challenge, though the congresswoman said she has high hopes of getting it into law this year.
For lots and lots and lots of political and practical reasons, I doubt significant sentencing reforms will emerge from Congress in 2008. But perhaps I am being too pessimistic at a time when everyone seems to be getting on the change bandwagon.
February 3, 2008 in Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack
Could Nebraska become the next state to repeal its death penalty?
Term limits are forcing him out, but Ernie Chambers hopes to leave on a high note. Once again he's trying to get rid of Nebraska's death penalty. This time, he has some strong support.... A packed house heard Friday's hearing on Chambers' latest bill. Most who spoke out were against capital punishment.
Curtis McCarty, against the death penalty says, "We make mistakes, we do put innocent people in jail, and we put them on death row." Curtis McCarty was sentenced to die in Oklahoma in 1982. McCarty says, "Confined 23 hours a day to this small cage with very little to do, no social contacts, little contact with family and visitors." After 19 years on death row, a judge made McCarty a free man. "Generally you would feel elated that you were vindicated, but it was more sad then it was anything," McCarty says....
No one testified in favor of the death penalty at Friday's hearing, but there were two County Attorneys who wanted the bill to be clarified,explaining the difference between a sentence of life or a sentence of life without parole.