February 16, 2008
Still more on lying, Clemens, Bonds and equal justice
This New York Times commentary, headlined "Justice Will Be Served Only if Clemens Isn’t Given a Pass," echoes points I have been making about the need for equal steroid justice. Here are excerpts:
What we all know now is that someone was lying. And at this juncture, that someone would seem to be Clemens. We’re not talking about razor-thin, “I thought it was flaxseed oil” types of lies before a federal grand jury, which is what Barry Bonds stands accused of. We’re talking about potentially whopping lies before Congress, before the world....
If there is fair and equal justice under the law, Clemens should become the next super athlete, after Marion Jones and Bonds, to be pursued by [government agents] to the end of the earth. Or at least to a room containing a federal grand jury.
Bonds was ultimately indicted on four counts of perjury and one count of obstruction of justice for telling a federal grand jury in 2003 that he never knowingly took illegal performance-enhancing drugs. The public was not privy to Bonds’s flaxseed performance before the grand jury. If we had been, maybe we would have come away with the same “Are you kidding me?” reaction that many had to Clemens’s testimony on Wednesday, particularly when he said that his friend and former teammate, Andy Pettitte, had “misremembered” previous conversations between the two men. The flaxseed oil comments became the basis for attacking Bonds, for belittling his historic home run chase of Henry Aaron. Now we are confronted by a performance by Clemens that makes Bonds’s flaxseed story seem almost naïve.
But none of this means a thing unless the Department of Justice investigates Clemens. On the surface, there seems to be little choice but to do so. What Jones and now Bonds and Clemens have in common is not accusations of illegal use of steroids but of lying to representatives of the federal government: Jones to federal agents, Bonds to a grand jury and Clemens to members of Congress.
Jones was pursued and disgraced and finally sentenced because she lied; Bonds was pursued and faces a trial because the government believes he lied. Clemens, by virtue of his performance Wednesday, has to be a prime candidate for the same treatment....
[There is a] potential racial divide over punishment, with Jones unceremoniously carted away, with Bonds up next, and with Clemens, a bigger-than-life Texan with some bigger-than-life friends, hoping to emerge unscathed by the law. Earl Ward, an African-American who is one of Brian McNamee’s lawyers, directly addressed the issue of color Thursday, noting that “several people of color have been caught up in the steroids scandal” and that if Clemens is left uninvestigated, “it would send the entirely wrong message to African-Americans.” Ward is a paid adversary of Clemens, of course, but what he is saying, many others are thinking.
Some recent related posts:
February 15, 2008
Different rhetoric about individual gun rights
This AP reports that "Barack Obama said Friday that the country must do 'whatever it takes' to eradicate gun violence following a campus shooting in his home state, but he believes in an individual's right to bear arms": "I think there is an individual right to bear arms, but it's subject to commonsense regulation" like background checks, he said during a news conference.
Meanwhile, I am pleased to report that at least one lawyer has built on some of my musings about the potential for Second Amendment arguments in felon-in-possession cases. This lawyer's motion to dismiss such a case based on the Second Amendment can be downloaded below, and here are snippets:
The rights contained in the Second Amendment are “preferred rights” because, first and foremost, they are inextricably intertwined with the right of self-defense....
The statute, under which the Defendant is now charged, is 18 U.S.C. Sec. 922(g)(1) is a broad and sweeping statute. Arguably, it punishes the status of being a felon; see, Robinson v. California, 370 U.S. 660 (1962)(held, it is a denial of due process to criminalize a person’s status). Inarguably, the statute makes no distinction between violent crimes and non-violent crimes or street crimes and white collar crimes. The Defendant, in the case at bar, finds himself precisely in the same classification as Michael Millikin, Michael Vick, Martha Stewart, I. Lewis “Scooter” Libby, Jr., Gregory Reyes, William Lerach, and a whole host of others...
Measured by Second Amendment principles grounded in a fundamental, individual right to keep and bear arms, in the sanctity of one’s own home, for purposes of self-defense, the statute under which the Defendant has been charged is overbroad and fatally flawed. Count IV of the Indictment should be dismissed.
Notable new resource for those working on crack resentencing
The Center for Community Alternatives (CCA), which seeks to "promote reintegrative justice and a reduced reliance on incarceration through advocacy, services and public policy development," now has on its website an interesting new resource for federal defense attorneys. This new document is titled "Entitled The Importance of an Individualized Assessment: Making the Most of Resentencing Under the Amended Crack Cocaine Guidelines," and it suggests resentencing strategies and issues. The document covers a lot of federal sentencing ground, and here is how it revs up:
Combined, Gall, Kimbrough, and the Sentencing Commission’s decision provide a wonderful opportunity for those convicted of a federal crack cocaine offense to receive significant reductions in their sentences. But the Commission has sought, in several ways, to limit the sentence reductions available to individuals convicted of a crack cocaine offense. A full understanding of the possibility available to such individuals, and the problems with the Commission’s attempted limitations, requires some discussion of Gall and Kimbrough.
February 15, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack
Weekend reading from SSRN
A bunch of new pieces on SSRN seem worthy of a weekend look. Here are the titles and links:
- Lady Madonna, Children at Your Feet: The Criminal Justice System's Romanticization of the Parent-Child Relationship by Jennifer M. Collins
- Experience and Expression: Conversations about Crime, Place and Community by Emily Gray, Stephen Farrall & Jonathan Jackson
- Adverse Employment Consequences Triggered by Criminal Convictions: Recent Cases Interpret State Statutes Prohibiting Discrimination by Christine Neylon & Jonathan J. Darrow
- Unequal Justice by William J. Stuntz
Off to Penn to talk about the Eighth Amendment
As highlighed in this official annoucnement, I am scheduled to speak this afternoon at the start of a very interesting symposium at University of Pennsylvania Law School. The symposium is titled "Cruel and Unusual Punishment: Litigating Under the Eighth Amendment," and I hope that I will be able to talk more about this event in a series of posts over the next two days. To start, however, check out this great line-up of participants:
- Elizabeth Alexander (ACLU National Prison Project)
- Stephen Bright (Southern Center for Human Rights)
- Deborah Denno (Fordham University)
- Sharon Dolovich (UCLA and Harvard University)
- Richard Frase (University of Minnesota)
- Sarah Hart (Philadelphia District Attorney’s Office)
- Mark Kappelhoff (United States Department of Justice-Civil Rights Division)
- Youngjae Lee (Fordham University)
- Jules Lobel (University of Pittsburgh)
- David Rudovsky (University of Pennsylvania)
- Margo Schlanger (Washington University of St. Louis)
- Carol Steiker (Harvard University)
- Jordi Steiker (University of Texas-Austin)
PM UPDATE: I have been treated so very well by all the Penn folks, and I got lots of insights from my co-panelists (Profs. Frase and Lee) this afternoon.
Arizona Supeme Court extends jury trial rights to misdemeanors leading to sex offender registration
In a very interesting opinion that covers a lot of very interesting modern criminal justice issues, the Arizona Supreme Court yesterday in Fushek v. State, No. CV-07-0251-PR (Ariz. Feb. 15, 2008), unanimously held that the Arizona state constitution requires a jury trial for misdemeanor charges that could lead to sex offender registration. Here is the opinion's key conclusion:
[W]e conclude that the potential of sex offender registration reflects a legislative determination that Fushek has been charged with serious crimes. As the Supreme Court noted in Blanton, “[t]he judiciary should not substitute its judgment as to seriousness for that of a legislature, which is far better equipped to perform the task.” 489 U.S. at 541-42.... We defer to the legislature’s determination that misdemeanor crimes involving sexual motivation are serious offenses and hold that when a special allegation of sexual motivation exposes a defendant to the possibility of sex offender registration, Article 2, Section 24 of our Constitution entitles the defendant to a trial by jury.
When will the various Clinton clemency scandals become a campaign issue?
The suggestion of a posible presidential pardon for Roger Clemens (basics here) has yet again caused justice, politics and clemency power to come into focus in a high-profile setting. However, this long opinion piece from yesterday's Wall Street Journal, titled "The Clintons' Terror Pardons," has me wondering why the many ugly stories surrounding Bill Clinton's troublesome clemency record has not (yet) become a big campaign issue. Here are snippets from the opinion piece, which is quite potent:
While the pardon scandals that marked Bill and Hillary Clinton's final days in office are remembered as transactions involving cronies, criminals and campaign contributors, the FALN clemencies of 1999 should be remembered in the context of the increasing threat of domestic and transnational terrorism that was ramping up during the Clinton years of alleged peace and prosperity....
It was within that context that the FBI gave its position on the FALN clemencies -- which the White House succeeded in keeping out of news coverage but ultimately failed to suppress -- stating that "the release of these individuals will psychologically and operationally enhance the ongoing violent and criminal activities of terrorist groups, not only in Puerto Rico, but throughout the world." The White House spun the clemencies as a sign of the president's universal commitment to "peace and reconciliation" just one year after Osama bin Laden told his followers that the United States is a "paper tiger" that can be attacked with impunity.
It would be a mistake to dismiss as "old news" the story of how and why these terrorists were released in light of the fact that it took place during the precise period when Bill Clinton now claims he was avidly engaged, even "obsessed," with efforts to protect the public from clandestine terrorist attacks. If Bill and Hillary Clinton were willing to pander to the demands of local Hispanic politicians and leftist human-rights activists defending bomb-makers convicted of seditious conspiracy, how might they stand up to pressure from other interest groups working in less obvious ways against U.S. interests in a post-9/11 world?...
The FALN clemencies provide a disturbing example of how the abuse or misuse of presidential prerogative, under the guise of policy, can be put in service of the personal and private activities of the president's spouse -- and beyond the reach of meaningful congressional oversight.
Sentencing, a love story
Who says sentencings cannot be romantic? As highlighted by this local story, headlined "First the Wedding, Then Years in Prison," at least one lucky couple was able to arrange for both a sentencing and a wedding to fall on Valentine's Day:
A bittersweet story of love and the law developed Thursday when Cupid made a St. Valentine’s Day visit to an Ohio County courtroom. Circuit Judge James Mazzone officiated at the wedding of Misty Johnson and Kevin Felder just moments after Mazzone sentenced Felder to five to 18 years in prison for robbery.
Asked to comment on the unfortunate circumstances surround the marriage, Felder said, “It is a decision between the two of us. I am sorry for what I did, and I want to be a better man when I come home.” After saying goodbye to her new husband as he was escorted from the courtroom, the bride tearfully offered her assessment of the situation. “I love him that much,” she said. “That’s all I can say.”
Felder, dressed in an orange jail jumpsuit rather than a tuxedo, asked Mazzone if he could have his handcuffs removed during the wedding ceremony. The judge declined. “I’m sorry, but I can’t allow that,” Mazzone said. “You are in custody.” Felder was escorted out of the courtroom moments after the couple exchanged wedding vows.
During the criminal hearing, Felder pleaded guilty to one count of second-degree robbery. Assistant Ohio County Prosecutor Steven Vogrin said Felder robbed the Wheeling Island Convenient store on Sept. 5.... During the sentencing phase of the hearing, Vogrin said Felder committed the robbery while he was on probation for a July 20 domestic violence offense involving Johnson, his then-girlfriend. Vogrin said as part of the plea agreement, the state would not seek recidivist status against Felder, who has two previous felony convictions and could have been facing life in prison.
February 14, 2008
Merits brief of defendant in Kennedy, the SCOTUS capital child rape case
As noted in posts in this Kennedy case archive, the Supreme Court later this term will hear Kennedy v. Louisiana, a case allowing it to review the constitutionality of state laws that make the death penalty a punishment for the crime of child rape. (Over at his great blog Sex Crimes, Corey Yung now has this new resource page with on-line materials related to Kennedy v. Louisiana). This week the petitioner filed his merits brief, which can be downloaded below. Here are snippets from the argument summary:
The death sentence imposed on petitioner constitutes cruel and unusual punishment in violation of the Eighth Amendment.
I. Punishing the crime of child rape with the death penalty cannot be squared with this Court’s decision in Coker v. Georgia, 433 U.S. 584 (1977). There, six Justices agreed “that the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life.” Id. at 598 (plurality opinion) (quotation omitted). Subsequent decisions have made clear that capital punishment is categorically impermissible for person-on-person violence that does not result in death, and in which the offender does not attempt or intend to kill or display reckless indifference toward human life....
II. Even if it were permissible under some circumstances to impose the death penalty for child rape, petitioner’s sentence would still violate the Eighth Amendment. This Court’s jurisprudence requires capital sentencing statutes genuinely to narrow the class of death-eligible defendants in order to separate the most culpable offenders from others who have committed the same crime. But Louisiana’s capital rape law contains no narrowing mechanism that can serve to differentiate petitioner’s case in any rational way from the many child rape prosecutions in the State in which the death penalty is neither sought nor imposed.
More on Roger Clemens, Barry Bonds, perjury prosecutions and race concerns
This new Bloomberg news piece, which quotes many former federal prosecutors, has me thinking again about racial disparities if Roger Clemens is not very soon subject to the same kind of criminal charges that are now facing Barry Bonds. Here are snippets:
Roger Clemens may have risked a perjury prosecution with his sworn denials to a U.S. congressional committee investigating performance-enhancing drugs, lawyers following the case said....
Clemens may find that his denials of drug use play well with his fans, said Sam Buell, a former federal prosecutor who now teaches law at Washington University in St. Louis. They may also expose him to a criminal prosecution that could have been avoided, he said. "He's the one who's created venue for possible charges of lying,'' Buell said. "He's the one who's offered himself up as a witness. If it is then established that he's lying, it's going to be hard for the government to look the other way.''
"If you lie under oath to Congress, you are subject to prosecution,'' said Columbia Law School professor Daniel Richman, a former federal prosecutor. "The sad fact is that all too many people lie to Congress and don't get prosecuted. This is the beginning of an interesting prosecutorial decision-making process.''
The U.S. Attorney's Office in San Francisco brought perjury and obstruction charges against baseball All-Star outfielder Barry Bonds in November for telling a grand jury he didn't knowingly use steroids. Bonds denied the charges and will seek at a Feb. 29 hearing to dismiss the perjury count. Olympic sprinter Marion Jones was accused of obstruction and lying to U.S. investigators about taking steroids. Jones pleaded guilty to the charges and was sentenced to six months in prison.
Some recent related posts:
Eighth Circuit rejects constitutional challenges to long bargained justice
The Eighth Circuit issued a bloodless ruling on Valentine's Day in a case with notable facts in US v. Kling, No. 07-1303 (8th Cir. Feb. 14, 2008) (available here). Here is how the opinion begins:
Larry Raymond Kling pleaded guilty to one count of child exploitation, in violation of 18 U.S.C. § 2251(a). Prior to pleading guilty, Kling entered into a plea agreement with the government pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). In his plea agreement, Kling agreed to a sentencing range of 324 to 360 months' imprisonment. The district court accepted the plea agreement and sentenced Kling to 324 months' imprisonment. Kling appeals, arguing that a sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement is illegal and that his sentence is a violation of the Eighth Amendment. We affirm.
It appears that the defendant, whose age is not mentioned in this opinion, made videotapes and took pictures of himself "engaging in sexual acts with a 15-year-old girl." The defendant claims he agreed to plead guilty only to avoid a possible life term, and the district judge at sentencing noted "the severity of the sentence recommended by the agreement and expressed an opinion that 'this is the most unjust sentence that I have ever imposed.'" Unfortunately for Kling, even on Valentine's Day, he gets not love from the circuit court when he complains about his sentence for taking pictures of his forbidden love.
"McNamee's Lawyer Predicts Clemens Pardon"
This AP story has the same headline as this post. Here are the details of another example of everything coming back to sentencing and politics:
One of Brian McNamee's lawyers predicted that Roger Clemens will be pardoned by President Bush, saying some Republicans treated his client harshly because of the pitcher's friendship with the Bush family. Lawyer Richard Emery made the claims Thursday, a day after a congressional hearing broke down along party lines.
Many Democrats were skeptical of Clemens' denials that he used performance-enhancing drugs and Republicans questioned the character of McNamee, the personal trainer who made the accusations against the seven-time Cy Young Award winner. "It would be the easiest thing in the world for George W. Bush given the corrupt proclivities of his administration to say Roger Clemens is an American hero, Roger Clemens helped children," Emery said in a telephone interview. "It's my belief they have some reason to believe they can get a pardon."
During Wednesday's session before the House Committee on Oversight and Government Reform, Clemens repeated his denials under oath, which could lead to criminal charges if federal prosecutors conclude he made false statements or obstructed Congress.
Emery cited Bush's decision last year to commute the 2 1/2-year prison sentence of I. Lewis "Scooter" Libby, his vice president's former top aide. Libby was convicted in the case of the leaked identity of a CIA operative. During the hearing, Clemens cited his friendship with Bush's father, President George H.W. Bush, a baseball fan who regularly attends Houston Astros' games. Clemens said he was on a recent hunting trip when the elder Bush called with words of support. "They have some belief that even if he's prosecuted, he will never have to serve jail time or face a trail," Emery said. "This is a charade we're going through."
IRS Special Agent Jeff Novitzky attended the hearing and watched from the second row. Novitzky has been a part of the BALCO prosecution team that secured an indictment against Barry Bonds on charges of perjury and obstruction of justice. Bonds testified before a grand jury in 2003 and denied that he knowingly used performance-enhancing drugs. Emery praised Clemens' lawyers, Rusty Hardin and Lanny Breuer, as knowledgeable and said the prospect of a pardon was the only explanation that allowed the pitcher to repeat his denials under oath. "It's the only reason lawyers worth their salt would allow their client to run into the buzzsaw of Jeff Novitzky and the potential prosecution, tampering and lying to a federal official," Emery said.
Some recent related posts:
- Will the new US Pardon Attorney "scandal" garner any serious attention?
- Editorial on presidential pardon practices
Another potent report calling for juve sentencing reforms
As detailed in this press report, an "Illinois youth justice advocacy group called for the abolition of life-without-parole sentencing for youths 17 and under on Wednesday." Here are more details from the article:
The Illinois Coalition for the Fair Sentencing of Children interviewed 103 state prisoners who got that maximum sentence even though they were 14 to 17-year-olds. The oldest prisoner who talked about his life-without-parole sentence as a youth, is now 47. The study concluded that adolescents should have the chance to come before a parole board within the first 15 to 20 years of their life sentence.
The group said it is inhumane to lock-up minors for life without the chance of parole. They said adolescents are less culpable than adults and are capable of being rehabilitated. The coalition pointed out that the U.S. Supreme Court 2005 recognized that children are “categorically less culpable” for their crimes because their brain development is still evolving. Some psychiatrists said that young adults are not necessarily less culpable, but their developmental stage needs to be considered.
Injections, physicians and distractions
As detailed in many long-ago posts (examples here and here), for nearly two years — ever since lower federal courts started regularly blocking state executions because of Eighth Amendment concerns — I have been calling for Congress to hold hearings in which doctors and lawyers could provide evidence on the practicalities of injection protocols. Notably, yesterday brought a high-profile House hearing with doctors and lawyers providing evidence of injection protocols, but of course the focus was injections given to Mr. and Mrs. Clemens. I suppose this shows yet again that politicians and the public care a lot more about sports than the death penalty, but it hardly helps fix our broken system of capital punishment.
Fortunately, anyone eager to hear from doctors and lawyers about execution protocols can get some satisfaction from SSRN through this new piece, titled "Physician and Execution — Highlights from a Discussion of Lethal Injection." Here is the abstract:
This article constitutes excerpts of a videotaped discussion (www.nejm.org) hosted by the New England Journal of Medicine on January 14, 2008, concerning a range of topics on lethal injection prompted by the United States Supreme Court's January 7 oral arguments in Baze v. Rees. Dr. Atul Gawande moderated the roundtable that included two anesthesiologists — Dr. Robert Truog and Dr. David Waisel — as well as law professor Deborah Denno. The discussion focused on the drugs used in lethal injection executions, whether physicians should participate, potential alternatives, and some of the legal parameters of Baze.
February 13, 2008
More thoughts about the scope of Second Amendment rights
My post this morning about the potential scope of Second Amendment rights and the prospect of felon gun right has led to some great comments, and now I want to fill out my (half-baked?) ideas in this arena. Specifically, I want to highlight how far courts often go to protect important provisions of the Bill of Rights, and then question whether other Second Amendment fans really have the courage of their convictions.
Specifically, consider that in the Fifth Amendment context, the right not to "be compelled in any criminal case to be a witness against himself" has been interpreted to require Miranda warnings. Or consider that in the Sixth Amendment context, the right "to have the assistance of counsel" has been interpreted to require the state at its expense to provide an effective lawyer.
In other words, whether seen as living or dead, provisions in the Bill of Rights have often been dynamically interpretted to safeguard rights against the government that courts consider important (and I am not even talking about any penumbral emanations). And, lets play out the Sixth Amendment analogy in light of current federal law barring all felons from gun ownership: Would anyone find constitutional a federal law that made it a felony offense — and one subject to a 10-year federal prison sentence — for any and all previously convicted felon to hire a lawyer?
Again, lets keep the context in mind as I play out these ideas: I fully understand why people who do not support individual gun rights are eager to deny gun rights for felons and to support long sentences for gun crimes. But this returns me to the tough question for genuine supporters of individual Second Amendment rights: if a person really, truly, deeply believes in an individual and fundamental right to keep and bear arms, why should this person (other than for reasons of political expediency) be willing and eager to concede that such a fundamental right is always forfeited by anyone who has ever committed a felony?
Should Roger Clemens now be indicted for perjury?
Here is a very simple question for any and all federal prosecutors or would-be federal prosecutors: Based on his performance under oath before the House today, should Roger Clemens be indicted for perjury. According to this MLB.com article, at least one former federal prosecutor is talking up perjury charges for the seven-time Cy Young winner:
Roger Clemens was unconvincing in his testimony before Congress and may have opened himself up to federal perjury charges, a legal expert told MLB.com on Wednesday. Katherine Darmer, a former assistant U.S. attorney in New York and an expert on criminal procedure, said that Clemens did not come across as credible and that it would not be surprising to see the former big league hurler experience more legal troubles in days to come. "I thought Roger Clemens did not come across well," said Darmer, a professor of law at Chapman (Calif.) University. "Coming at it from pretty much an open mind, I just thought he was not credible. He's obviously got a lot to lose with his denials, but if I were his lawyer or his family, I'd be worried about perjury charges."
Darmer said that Clemens may have been ill-advised to testify before Congress, especially after Rep. Henry Waxman (D-Calif.), the chairman of the House Committee on Oversight and Government Reform, said Wednesday that he was prepared to shy away from holding the hearing. Clemens insisted that he wanted an opportunity to set the record straight against lingering charges from his former trainer, Brian McNamee. Darmer said she believed Clemens thought he would have been able to better convince the committee of his innocence. "I think it backfired," Darmer said. "This may not be the majority view, but in watching these two guys, I just thought Roger came across as [less] credible. They were able to point to a number of inconsistencies, particularly his deposition denials, where he denied repeatedly that he'd had any conversations with McNamee about [HGH], and then later, he said, 'Except for when my wife [used].' It didn't add up."...
Darmer noted that, before Congress, Clemens attempted to steer several questions and did not answer in a straight-forward fashion at times, especially when inconsistencies in his testimony were pointed out.... "Somebody's lying, obviously. There's no way you can reconcile these two stories, and I think there's a lot of ways you can't reconcile Clemens' own story. Given that there's an independent third party [in the form of Andy Pettite], I think Clemens could face charges."
Darmer said that Clemens' tours of Capitol Hill on three recent days, going door-to-door to meet with as many representatives as possible, were an ill-guided attempt to exert influence. "He's got star power, and I think he was hoping he could use that and leverage that," Darmer said. "He's a national hero and a lot of people love the guy. As a federal prosecutor looking at these guys, I think Clemens is in trouble."
Should Congress not pursue the inconsistencies in Clemens' story, Darmer said, the message to the American people would not be favorable. "To me, it would look like they are giving special favors to a well-loved sports hero," Darmer said. "I think almost anyone else that appeared before Congress and told what, I believe, will turn out as bold-faced lies, would face consequences. Were they to just let it slide, I don't think that would look good for Congress."
Though Professor Darmer is focused on how it would make Congress look if Clemens does not have perjury charges, I am more concerned about how it looks from a racial justice perspective. As I noted in prior posts here and here, I am troubled that the highest profile athletes to be prosecuted for lying about steroid use have all been African-Americans (Barry Bonds, Marion Jones and Dana Stubblefield). Though I am not making direct or even indirect allegations of biased prosecutorial practices, I do consider the pattern worthy of commentary and critical reflection, especially if Clemens ultimately escapes having to face an indictment under all these circumstances.
Oregon AG seeks cert on Blakely's applicability
As detailed in this post, a few months ago the Oregon Supreme Court held in State v. Ice, No. S52248 (Ore. Oct. 11, 2007) (available here), that the "federal constitution requires that a jury, rather than a judge, find the facts that Oregon law requires be present before a judge can impose consecutive sentences." The Attorney General of Oregon does not agree and is now seeking Supreme Court review of this question:
Whether the Sixth Amendment, as construed in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), is violated by the imposition of consecutive sentences based on the sentencing judge’s determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant.
Oregon's petition for cert with this question can be downloaded below, and here are part of the "reasons for granting" section of the petition:
This Court should grant the petition for writ of certiorari and review this case for two reasons. First, the Oregon Supreme Court opinion deepens the significant split among the state courts that have considered this recurring issue of federal constitutional law....
Second, the Oregon Supreme Court’s holding is an unwarranted extension of Apprendi and Blakely beyond what this Court’s reasoning supports. This Court has explained the Apprendi rule as a non-subjective means for determining the elements of an offense. By extending the jury-trial requirement to establishing how otherwise-lawful sentences are served, the Oregon Supreme Court has gone well beyond the due-process concerns that require states to prove each element of an offense to a jury beyond a reasonable doubt.
Do any Second Amendment amici oppose extreme gun crime sentencing?
I am impressed, though not especially surprised, that nearly 50 amicus briefs have been filed in the Supreme Court in support of an individual right to keep and bear arms under the Second Amendment. SCOTUSblog here links to all these friendly briefs.
I wonder if any of these groups will help in my planned efforts to attack severe gun sentences under the Second Amendment if (when?) the Supreme Court recognizes that the this amendment provides an individual and enforceable right. As I have noted in a number of prior posts, I think laws prohibiting all felon from ever keeping a firearm and lengthy mandatory sentencing terms for simply keeping a gun under certain circumstances can (and should) be subject to a constitutional attack if the Supreme Court takes an individual view of the Second Amendment in Heller.
Some related posts on the Heller Second Amendment case:
Is crack reform to be subject to bargained justice?
The Washington Post has this intriguing little item suggesting a crack sentencing reform deal could be in the works:
Congress could limit the early release of crack cocaine offenders as part of a possible deal with the Bush administration to reduce a disparity in cocaine sentencing, a leading Democrat said yesterday.
Sen. Joseph R. Biden Jr. (Del.) said there is growing support in Congress for revising a 22-year-old law that sets far harsher federal penalties for crack cocaine than for powder cocaine. A Justice Department willingness to reduce the disparities and revise a mandatory minimum sentence for crack possession makes a deal possible, Biden said. He said he could consider in return the Bush administration's plea to limit a pending release of crack offenders whose sentences were cut by the U.S. Sentencing Commission.
"I'm willing to consider a compromise [as long as] . . . there's a significant change relative to disparities, a significant change relative to minimum mandatory, and in return for that I'm willing to talk about a meaningful change in retroactivity," Biden said after a hearing of the Senate Judiciary subcommittee he chairs.
I would be very surprised if this kind of deal becomes a legislative reality anytime soon, but it is really interesting that this sort of deal-making is being openly discussed.
Some recent related posts:
February 12, 2008
The cert petition in US v. Lett (and amici encouragement)
I reported in this post this morning that today we filed a cert petition in the remarkable case of US v. Lett (which was the topic of this column in today's New York Times). I can now post a copy of the filed petition, which has this Introduction:
Federal district courts impose more than 65,000 felony sentences every year. Inevitably, sentencing judges occasionally commit reversible legal errors in imposing these sentences. Acknowledging that reality, the Federal Rules of Criminal Procedure expressly afford sentencing judges an efficient means (rather than awaiting appellate reversal) to correct such errors when caught quickly. Rule 35(a) provides that “[w]ithin 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.” Here, the district court did just that. Based on a misunderstanding of the applicable statutory minimum sentence, Judge William Steele at first mistakenly concluded that he was unable to sentence petitioner Patrick Lett to less than five years’ incarceration for a minor, non-violent drug offense. Recognizing within the Rule 35 time period that he had erred in determining the sentencing range, Judge Steele corrected his legal error and imposed a lawful (and lower) sentence according to the terms of 18 U.S.C. § 3553(a).
The Eleventh Circuit reversed, holding that the district judge’s conscientious effort to correct his sentencing mistake was improper because the Judge’s legal error did not constitute “other clear error” for purposes of Rule 35. In doing so, the Eleventh Circuit adopted an unduly restrictive view of “other clear error” that undermines Rule 35’s ability to allow efficient corrections to legally erroneous criminal sentences. The decision below thus threatens the effective and just operation of the criminal sentencing system, an issue of substantial federal importance given the tens of thousands of sentences entered every year in U.S. District Courts.
Compounding the need for review, the court’s decision also conflicts with settled law in other circuits. All courts agree that Rule 35’s purpose is to allow a trial judge to avoid the need for appeal where the result of that appeal will be a reversal for resentencing. Rulings from the First, Second, and Ninth Circuits have correctly concluded in comparable settings that any time that a sentencing judge operates under a legal misunderstanding as to applicable sentencing options, such a mistake necessarily constitutes reversible error requiring resentencing (and thus is the type of error allowing correction under Rule 35). The court below in this case, by contrast, concluded that not all such sentencing errors amount to “clear error” allowing for correction through Rule 35(a). Rather, according to the Eleventh Circuit, an error regarding the judge’s sentencing authority will be “clear” (and thus subject to efficient correction in the district court) only if binding precedent in a factually indistinguishable case plainly reveals that error.
Finally, the Eleventh Circuit also adopted a novel and misguided “remedy” in the wake of its flawed Rule 35(a) interpretation. It ordered the District Court to impose the initial, erroneous five-year prison term — notwithstanding Judge Steele’s conscientious (and unreversed) determination that he had committed error in imposing that sentence, as well as Judge Steele’s express finding that only a much shorter prison term was “sufficient but not greater 4 than necessary” to serve the sentencing purposes Congress set out in 18 U.S.C. § 3553(a). Nothing in the language of Rule 35 or any other statutory provision justifies the Eleventh Circuit’s order that the district court now impose a legally erroneous sentence on Patrick Lett.
The Eleventh Circuit’s strained interpretation of Rule 35 reverses a “just determination” in this case, while also disrupting Judge Steele’s efforts to achieve “simplicity in procedure and fairness in administration,” and to “eliminate unjustifiable expense and delay.” See Fed. R. Crim. P. 2. Because the Eleventh Circuit’s ruling creates confusion that will lead to unjust and/or conflicting results in lower courts, this Court should intervene to provide needed guidance as to what constitutes “clear error” under Rule 35(a). Patrick Lett respectfully urges the Court to grant certiorari and reverse the decision below.
Though we have strong arguments for Supreme Court review, the statistical reality is that less than 1% of all cert. petitions are accepted by the Court. Consequently, I can state with confidence that Sgt. Lett (and his lawyers) would be happy and eager to have those aggrieved by this case consider filing an amicus brief in support of our cert. petition.
Tenth Circuit enforces need for proper guideline calculation
The Tenth Circuit discusses at length post-Booker sentencing realities today in US v. Todd, No. 06-6334 (10th Cir. Feb. 12, 2008) (available here). That discussion starts this way:
On two separate occasions, police apprehended Jared Lee Todd and recovered from him small vials that contained, in total, approximately 37 grams of methamphetamine. In conversations with police, Mr. Todd admitted that his drug dealings went much further, and that he had purchased for redistribution at least two ounces of methamphetamine every month over the last year (680.4 grams in total). Other facts presented to the district court tended to confirm Mr. Todd’s admission. After a jury convicted Mr. Todd of two counts of possessing methamphetamine with intent to distribute, the district court, in calculating the total attributable drug quantity for purposes of the United States Sentencing Guidelines, used only the 37 grams of methamphetamine actually confiscated from Mr. Todd. The court then proceeded to expressly rely on the recommended sentencing Guidelines range for that amount in assigning a sentence to Mr. Todd.
While the Supreme Court’s recent opinion in Gall v. United States, 128 S. Ct. 586 (2007), underscores the discretion district courts are properly due in sentencing, it also reiterates that courts must begin their analysis by calculating correctly the applicable Guidelines sentencing range. Though a district court may choose ultimately to depart or vary from the Guidelines, a properly calculated Guidelines range is, the Court explained, “the starting point and the initial benchmark” in any sentencing decision. Id. at 596. In this case, all of the evidence on record, including testimony of Mr. Todd’s own admission, indicated that he possessed with the intent to distribute quantities of methamphetamine far in excess of 37 grams. In light of this overwhelming evidentiary imbalance, we are obliged to hold that the district court’s use of that drug quantity when calculating the advisory Guidelines range was clearly erroneous, and, given its reliance on the Guidelines when passing sentence, we cannot say the court’s error was harmless.
Extended Third Circuit discussion of Kimbrough
Though it does not appear to break any significant ground, the Third Circuit has a notably lengthy opinion today in US v. Wise, No. 06-4926 (3d Cir. Feb. 12, 2008) (available here). This sentence from the opinion's first paragraph highlights the opinion's import: "Beyond the obvious significance of these appeals to the appellants themselves, these appeals are of particular note because they represent the first cases in this Circuit to address the differential in the powder cocaine and crack cocaine Sentencing Guidelines since the Supreme Court’s recent decision in Kimbrough v. United States, 128 S. Ct. 558 (2007) and the United States Sentencing Commission’s recent amendment to the Guidelines ranges for crack cocaine offenses."
I clearly have been visiting the wrong prisons
In various trips to prisons, I have never seen a drunken orgy. But this new CNN piece suggests that this just means I have not been visiting the right prisons:
Softball, drunken orgies and a prison system run like the mafia. That's what Florida's former prison secretary says he inherited when he took over one of the nation's largest prison systems two years ago....
In fact, on his first day on the job, James McDonough says he walked into his office -- the same one his predecessor used -- and there was crime scene tape preventing anyone from entering. "That was an indication we had a problem in the department," McDonough told CNN in an exclusive interview before he stepped down last Thursday.
McDonough revealed a startling list of alleged abuses and crimes going on inside Florida's prisons:
- Top prison officials admitting to kickbacks;
- Guards importing and selling steroids in an effort to give them an edge on the softball field;
- Taxpayer funds to pay for booze and women;
- Guards who punished other guards who threatened to report them.
"Corruption had gone to an extreme," McDonough said, saying it all began at the top. "They seemed to be drunk half the time and had orgies the other half, when they weren't taking money and beating each other up." Watch a corrupted prison system » He added, "Women were treated like chattel in this department." McDonough described a bizarre prison culture among those that ran the system -- one that he says seemed obsessed with inter-department softball games and the orgies after games.
And some people are getting all worked up about faith-based prisons? Yeesh.
Report on Senate crack hearing
I was busy with other matters and thus was not able to watch the Senate crack hearing via webcast. But, as detailed in this AP report, it appears that the hearing had its moments:
Senate Democrats on Tuesday rejected Attorney General Michael Mukasey's request to change new sentencing guidelines that would enable thousands of federal inmates to seek reductions in their crack cocaine sentences.... Senate Judiciary Committee Chairman Pat Leahy, D-Vt., accused Mukasey of falsely suggesting that the new policy would automatically set free 1,600 violent offenders "to prey on hapless communities."
"As the attorney general, himself a former federal judge, should have known ... no one can be released without a hearing before a federal judge who is obligated to evaluate each case and to consider factors such as the criminal history and violence," Leahy said in a statement. "We can't let such scare tactics by the administration deter us from our goal of achieving fairness and legitimacy in the criminal justice system," said Sen. Edward Kennedy, D-Mass....
Testifying for the Justice Department, Gretchen C.F. Shappert, a federal prosecutor for the Western District of North Carolina, told the Senate panel Tuesday that the new sentencing rules of retroactivity would be too burdensome on the federal court system. Further, the flood would hit certain court districts disproportionately, she said.
Everyone's written testimony from the hearing now appears to be linked on this official website. A quick scan of the testimony did not reveal anything especially new in this old debate, but perhaps readers see some hidden nuggets in the latest round of wacky crack talk.
February 12, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack
Gearing up for today's Senate crack hearing
All the usual suspects have useful information on their website in anticipation of today's afternoon Senate hearing on "Federal Cocaine Sentencing Laws: Reforming the 100-to-1 Crack/Powder Disparity." The Sentencing Project has this new webpage with links, and FAMM has this page analyzing some various crack sentencing reform bills that have been put forward. In addition, CQ Today has this effective article about all the current crack wackiness. Here is how the piece starts:
A Tuesday hearing before a Senate Judiciary subcommittee is just the latest front in a widening battle between Democrats and administration officials over federal sentencing guidelines for crack cocaine offenses.
What’s up next? One possibility is legislation designed to block recent action by the U.S. Sentencing Commission — action that effectively reduces sentences for crack cocaine offenses. That legislation may not go very far. But the escalating torrent of incendiary rhetoric designed to maximize political gain could have more far-reaching effects — especially in an election year.
The CQ Today article effectively highlights the interesting — and highly unpredictable — political stories surround this Senate hearing and the broader sentencing issues that it raises. In an election year in which very few folks inside the Beltway have few strong political talking points, I won't be surprised to see a return to "tough-on-crime" rhetoric coming from both sides of the ailse. However, given the economic and human costs of the legislation that this rhetoric has produced — as highlighted by my last three posts about Idaho reforms and Sargeant Lett and the pardon power — this kind of rhetoric may not be as politically effective as it once was. At least that's what I am hoping, and this Senate hearing may well provide a very interesting window into how both parties are thinking about crime politics for November 2008.
Proof that the politics on these issues are changing comes in part from this new Washington Times editorial, titled "Reforming crack-cocaine law," authored by J.C. Watts and Asa Hutchinson. Here is how it starts:
Both of us are former Republican congressmen; one of us is the former head of the Drug Enforcement Administration; and neither of us has ever been accused of being "soft on crime." That is why some may find it surprising that we respectfully disagree with our attorney general with regard to federal sentencing guidelines on crack and powder cocaine. Simple standards of fairness call for the attorney general to support the recommendations of the U.S. Sentencing Commission, which reduce the disparity of sentences and make the changes retroactive.
Some recent related posts:
Idaho joins states struggling with prison overcrowding
A bill that would give Idaho judges greater discretion to keep drug addicts out of prison even if they've been convicted of drug-dealing crimes will get a full hearing before the House Judiciary, Rules and Administration Committee. It's a modest effort to loosen Idaho's mandatory sentences for drug offenses and ease overcrowding in the state's prisons....
Idaho now has 7,400 people behind bars. More than half of them are there due to drug-related offenses. The state has shipped about 500 people to other states because there's no more room in prisons in Idaho. Under the bill, judges could opt for shorter, treatment-focused sentences for addicts convicted of drug-dealing crimes, on the presumption that if they get clean they're less likely to re-offend.
Currently, Idaho has mandatory sentences for a range of drug-trafficking offenses that give judges little or no discretion. Many sentences entail at least three to five years in prison. The bill "ain't a bad idea," Rep. Dick Harwood, R-St. Maries, told The Associated Press. "Our prisons are pumped full. It would be nice to give judges discretion about whether to send somebody to prison or to some other treatment program. In reality, they're the ones that are sitting on the front lines, not the legislators who are making the laws."
Idaho lawmakers have been focusing more and more on trying to address drug problems among those entering the criminal justice system. In addition to LeFavour's bill this year, Rep. Jim Clark, R-Hayden, has introduced another sentencing reform measure that would expand misdemeanor drug courts to help stop minor offenders from sliding into more serious substance abuse-related crimes.
This story provides just another example of how states are having to consider sentencing reforms as they deal with the economic hangover from the tough-on-crime, war-on-drugs, lock-em-all-up mentality that has dominated the political landscape over the last two decades. Only now are the bills coming due for this politically popular but very expensive approach to non-violent drug crimes. And, as detailed in the links below, state legislatures from coast-to-coast can no longer afford to ignore these problems:
Recent coverage of other states' struggles with the various costs of large prison populations:
- see also this post, "Costs cause states to pursue prison alternatives"
February 11, 2008
The amazing federal sentencing story of Sgt. Patrick Lett
Regular readers may recall some prior posts about the sentencing of Sgt. Patrick Lett (many of which are linked below). I am proud that Sgt. Lett is now my client and that, along with my colleague Douglas Cole of Jones Day, I can report that a cert petition is about to be filed on Sergeant Lett's behalf.
And I am pleased to report that Adam Liptak's Sidebar column in Tuesday's New York Times tells Sgt. Lett's story. Here are long excerpts from a story that should become a movie (especially if there is the appropriate happy ending):
Matthew Sinor was in his second year of law school at Ohio State a couple of years ago when he heard that an Army buddy had gotten into trouble with the law. Mr. Sinor rescheduled two exams and flew to Mobile, Ala., to make sure nothing went awry at his friend’s sentencing hearing.
The defendant, Sgt. Patrick Lett, had served 17 years in the Army, including two tours in Iraq, and he had pleaded guilty in federal court to selling cocaine. It was up to Judge William H. Steele, a former marine, to decide how to punish him. “I don’t normally see people standing before me in uniform,” Judge Steele said.
Sergeant Lett’s commanding officer, Capt. Michael Iannuccilli, testified that the man he knew was “a patriot, father and a good man.” “I would gladly deploy to Iraq with him and entrust my life to him,” Captain Iannuccilli said. “I’d trust my soldiers’ lives to him. He’s been nothing but an exemplary soldier.”...
Judge Steele made plain that he wanted to give Sergeant Lett the briefest possible sentence. But Congress had set a mandatory minimum sentence of five years, Judge Steele said, and that is the sentence he reluctantly imposed.
Mr. Sinor, the law student sitting in the courtroom, had studied sentencing law with Douglas A. Berman, an Ohio State law professor and one of the nation’s leading experts on the subject. Judge Steele had, Mr. Sinor believed, overlooked a five-part statutory “safety valve” that permits shorter sentences for defendants with unblemished backgrounds who played minor roles in crimes that did not involve violence and who had told the truth about what happened. Few defendants qualify. Sergeant Lett did. So Mr. Sinor wrote to Judge Steele, with copies to the lawyers, explaining the point they had all missed.
Judge Steele agreed, and he revised Sergeant Lett’s sentence to time served — 11 days. The next day, the judge invited Sergeant Lett to his chambers for a chat. “You should thank God for a friend like Matt,” Judge Steele said, as Sergeant Lett recalled. “I want you to go back in the military to do some good for your country. I know I will never see you again in my courtroom.” Later, Judge Steele amended the conditions of Sergeant Lett’s probation to allow him to carry a weapon, a necessity in his line of work....
In April, a three-judge panel of the federal appeals court in New Orleans reversed Judge Steele. The decision was frank in its admiration for a fine soldier and mechanical in its application of the law. The appeals court did not discuss whether Judge Steele had been right to apply the “safety valve,” saying “reasonable arguments can be made on both sides.” Instead, the panel said that the law simply did not allow Judge Steele to revise the sentence once he had imposed it.
True, there is a rule of criminal procedure that allows judges to “correct a sentence that resulted from arithmetical, technical or other clear error,” so long as they do it within seven days. Math can be fixed. But since Judge Steele’s mistake was in his understanding of his own power to do justice, the panel said, Sergeant Lett must serve five years.
Put another way, Judge Steele could have sentenced Sergeant Lett to time served at the sentencing hearing. By the next day, though, it was too late.
Professor Berman and Douglas R. Cole, of Jones Day in Columbus, Ohio, plan to file a petition to the Supreme Court on behalf of Sergeant Lett on Tuesday. They are working without pay. “This is a person who causes those who know him to go to extraordinary lengths to help him,” Mr. Cole, a former Ohio solicitor general, said of his client.
Some related posts:
Editorial on presidential pardon practices
This editorial in today's San Francisco Chronicle, titled "Bush fumbles on pardons," keeps the spotlight on the recent ugly news from the US Pardon Attorney's Office. Here are snippets:
President Bush always has had a reputation for being tight in his exercise of the presidential pardon. Oddly, the pardon is the one area in which his power is absolute — a president essentially can pardon or commute the sentence of any felon for any reason — yet this is the rare executive power Bush has chosen to underutilize. So much for his compassionate conservatism.
Last Monday, a New York Times opinion piece written by George Lardner, an associate at the Center for the Study of the Presidency, reported that Roger Adams, the Department of Justice Pardon Attorney under President Clinton and Bush, had been transferred to a new DOJ position. The transfer followed a December 2007 Inspector General's audit that found that Adams had acted improperly when he described a drug convict seeking a pardon as "about as honest as you could expect from a Nigerian."
It remains unclear whether Adams is a major factor behind the meager number of pardons issued by Bush, who has issued a stingy 142 pardons and — even stingier — a mere five sentence commutations since assuming office in 2001. Ultimately, the responsibility lies with a president who has shown no interest in freeing offenders convicted of often draconian federal mandatory-minimum sentences — unless the offender is the convicted lying and justice-obstructing former White House aide, Lewis "Scooter" Libby.
It's true that Bill Clinton tarnished the pardon process by issuing 140 last-minute pardons without proper review — to such unworthies as billionaire fugitive Marc Rich, who was hiding in Switzerland following a 51-count, 1983 indictment for tax evasion, racketeering and illegal trading. Bush has erred in freeing few prisoners despite the record number of felons in federal prison....
In his last year in office, George W. Bush has an opportunity to show Americans outside his narrow voter base that he believes his rhetoric and wants to help all American families.... [Hundreds of] Americans are serving excessive sentences for low-level crimes. The mercy that freed Libby is beyond their reach, and that is wrong.
Some recent related posts:
UPDATE: Writing here at his blog Pardon Power, P.S. Ruckman justifiably and forcefully criticizes this Chronicle editorial for not criticizing the Clinton Administration more for its poor pardon record. Here are excerpts:
Marc Rich? Are you kidding me? You are writing an editorial on the pardon power, non-violent drug offenders and the Clinton administration and you mention Marc Rich? Why not mention that fact that Clinton — like Bush — also "freed few prisoners despite the record number of felons in federal prison" (see this CJCJ article on Clinton's "prison legacy") and — even worse — pardoned his own half-brother (Roger Clinton), who was convicted on drug related charges?!...
[W]hat is worse? Bill Clinton publicly asserting these supposed beliefs about the severity of federal sentencing and then doing nothing about it? Or, President Bush not doing as much as the Chronicle would have him do?... Shame on Mr. Clinton. Shame on Mr. Clinton's brother. Shame on Hillary Clinton's brother. Thank goodness Mrs. Clinton was completely unaware of everything all the while!
Meanwhile, just forget about Marc Rich, Chronicle. He was nothing!
More details on DOD seeking the death penalty in GITMO cases
As if there wasn't enough to talk about concerning the death penalty, here is an official press release titled "Defense Department Seeks Death Penalty for Six Guantanamo Bay Detainees." Here are a few excerpts:
The Defense Department announced today it has sworn criminal charges and is seeking the death penalty against six detainees held at Guantanamo Bay, Cuba.
The detainees charged include Khalid Sheikh Mohammed, the alleged mastermind behind the Sept. 11, 2001, terrorist attacks, and five others charged in connection with the attacks, Air Force Brig. Gen. Thomas W. Hartmann, legal advisor to the convening authority in DoD’s Office of Military Commissions, told reporters at the Pentagon....
The chief prosecutor, who submitted the charges, has recommended that the six detainees be tried jointly and that the case be referred as capital for each defendant. Now that the charges are sworn, the convening authority, Susan Crawford, will review the charges and supporting evidence to determine whether probable cause exists to refer the case for trial by military commission and whether the case should be capital, Hartmann said.
If Crawford does refer the case to trial, it will take place at Guantanamo Bay, and the Defense Department will make the hearings as open as possible, Hartmann said. He emphasized that the charges today represent allegations only, and the detainees are innocent until proven guilty.
The charge sheet details 169 overt acts allegedly committed by the defendants in the planning and execution of the Sept. 11 events.... In addition to the right to examine evidence used against them, including classified evidence, Hartmann noted that detainees in the military commissions process also have many other rights, including the right to remain silent, the right to representation by a detailed military counsel or civilian counsel at no expense to the government, the right to obtain evidence and call witnesses on their own behalf, the right to cross-examine prosecution witnesses, and the right to be present during presentation of evidence.
In the case of a capital offense, a military commission panel composed of at least 12 members will determine a detainee’s guilt, and the detainee has the right to appeal the panel’s decision first to the Court of Military Commission Review, then through the District of Columbia Circuit Court of Appeals to the U.S. Supreme Court....
Hartmann noted that the sequence of events used in charging detainees at Guantanamo Bay is very similar to that used in charging U.S. servicemembers in military courts. “It's our obligation to move the process forward, to give these people their rights,” he said. “We are going to give them rights. We are going to give them rights that are virtually identical to the rights we provide to our military members, our soldiers, sailors, airmen and Marines who fight in the battlefield, and I think we'll all agree are national treasures.”
Recent related post:
Bill Lerach gets (plea bargained max of) two years in prison
As detailed in this early AP report, "a former partner at a prestigious New York law firm has been sentenced to two years in federal prison for his role in a lucrative kickback scheme involving class-action lawsuits. William Lerach was also sentenced Monday to two years probation, fined $250,000 and ordered to complete 1,000 hours of community service."
This somewhat unsurprising outcome can be spun in so many ways. This was the max Lerach could get under the terms of the plea agreement, so this is arguably a sentencing win for federal prosecutors. But, as detailed here, Lerach had put together such a favorable plea agreement, federal prosecutors at sentencing were forced to recommend a below-guideline sentence. Also, against the backdrop of the decades of imprisonment given to many other prominent high-profile white-collar offenders, Lerach has to be content with the ultimate outcome.
Related prior posts:
No rest for the sentencing weary in the Sixth Circuit
Though I just finished consuming the amazing Sixth Circuit opinions in the Vonner en banc ruling late last week, this morning brings another must-read for the Sixth Circuit sentencing aficionado. The ruling comes in US v. Thompson, No. 06-6233 (6th Cir. Feb. 11, 2008) (available here), and once again Judge Merritt's dissent (and the majority's response) that provides the most potent quotables. Consider these two sentences, for example, from the last paragraph of the dissent:
Unfortunately, the sentencing process in this case was just a repeat of guidelinitis, the system of rote sentencing in which the sentencing judge ratchets up the sentence instead of engaging in anything close to the deliberative or reflective process outlined by the two overriding principles stated above. The determinate sentence based on judicial fact finding, including a consecutive mandatory sentence based entirely on facts never found by the jury or admitted, makes the principle of Blakely, Booker, and Cunningham a joke.
The majority gets in a few zingers during the jurisprudence debate, as evidenced by these lines of response:
The dissent proposes a “Golden Mean” to guide sentencing courts based in part on the principle that all judicial factfinding must be eschewed unless either the factfinding results in a sentence somewhere within the initial base-offense level under the Guidelines or the district court explicitly explains why the concepts of general and individual deterrence outweigh the mitigating circumstances and the likelihood of successful rehabilitation. Dis. op. at 14. In order to adopt this Golden Mean, however, courts would first have to don the crowns of philosopher-kings — for that is the only way that any court in this circuit could avoid the clear import, reasoning and holding of binding precedent.
Of course, courts are unlikely to be able to don the crowns of philosopher-kings anytime soon: few ivory-tower academics are likely to give up these crowns with a serious fight.
Crack debate becoming really whack really quickly
When the US Sentencing Commission decided in December to make its new crack guidelines retroactive effective March 3, 2008, I knew that the script was already in place for sentencing March Madness. But with AG Michael Mukasey's recent congressional testimony urging Congress to block retroactivity for the new crack guidelines (basics here and here), crack wackiness has gotten a running start. And there is no evidence that sanity is going to prevail anytime soon. Indeed, news reports and upcoming events suggest that the crack story will only get more whack in the days and weeks ahead.
First, consider this interesting and troublesome news report from Buffalo, headlined ""Battle shapes up over crack sentences: Waivers may block bids for early release." The article indicates that the local US Attorney may rely on appeal waivers in plea agreements to try to deny defendants who pled guilty the benefit of the new crack guidelines:
Crack dealers convicted in Western New York may face a legal fight from federal prosecutors if they apply for early releases from prison under new sentencing guidelines approved late last year....
U.S. Attorney Terrance P. Flynn may oppose requests to reduce the sentences of previously convicted people, based on a legal waiver that is routinely included in federal plea agreements filed in Buffalo and Rochester. Dating to at least 1997, hundreds of federal drug offenders in the region have agreed to the waiver, promising that they would never ask for reduced sentences — even if future changes in the law allowed them to do so. “At this point, we haven’t decided whether we will try to enforce the waiver,” said Assistant U.S. Attorney Joseph M. Guerra III, Flynn’s top aide for drug prosecutions. “We’ve talked about the situation with [Justice Department] officials in Washington, and we’re waiting for guidance or directives from them.” ....
At least eight men and one woman already have filed court papers in Buffalo or Rochester, asking for their crack sentences to be reduced, according to Guerra.... Most of the federal prosecutors throughout the country do not require offenders to sign the kind of waiver that is required locally, court officials said....
Of course, one of many ironies of prosecutors trying to use appeal waivers to block crack retroactivity would be that only folks who pled guilty and accepted responsibility would get stung by this policy. Defendants who went to trial and lost don't have appeal waivers to worry about, but defendants who took accepted the government plea terms are now at risk of getting the courtroom door shut as a result of their decision to plead guilty. I guess this could be an example, to tweak a great quote, of no good plea deal going unpunished.
Meanwhile, as detailed in this official notice, tomorrow brings a hearing on "Federal Cocaine Sentencing Laws: Reforming the 100-to-1 Crack/Powder Disparity" scheduled by the Senate Committee on the Judiciary before the Subcommittee on Crime and Drugs at 2:30 pm. Here's the current witness list:
- John Richter, US Attorney on behalf of the Department of Justice
- District Judge Ricardo H. Hinojosa, Chair of the U.S. Sentencing Commission
- District Judge Reggie B. Waltonon behalf of Criminal Law Committee of the Federal Judicial Conference
- Nora Volkow, M.D., Director, National Institute on Drug Abuse, Department of Health & Human Services
- James Felman, Sentencing Committee of the Criminal Justice Section of the American Bar Association
I believe this hearing is supposed to be focused on possible legislative changes to the 100-1 crack/powder ratio that remains in place in federal statutory mandatory minimum provisions. However, in light of AG Mukasey's call for legislation to block the retroactivity of the new crack guidelines, I would expect all sort of craziness coming from the star-studded group of Senators that sit on the Senate Judiciary Subcommittee on Crime and Drugs.
February 11, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (5) | TrackBack
What sentence will (and should) Bill Lerach get?
As detailed in this Reuters story, class-action attorney Bill Lerach has lots of notable supporters as he faces sentencing on Monday:
Famed San Diego class-action attorney William Lerach has asked a federal judge to sentence him to a year in prison and to let him serve half that stretch at home as punishment for his role in a client kickbacks scheme, according to court papers filed Friday.
Scores of supporters, including Ralph Nader, commentator Ben Stein and U.S. Sen. Carl Levin, filed letters praising Lerach with the court of U.S. District Judge John Walter, who is set to sentence Lerach Monday. Prosecutors have asked Walter to sentence Lerach, best known for winning more than $7 billion in legal settlements on behalf of Enron investors, to two years in prison....
The federal probation office recommended a sentence of 15 to 21 months, two to three years of supervised release and a fine of $4,000 to $40,000 for Lerach. Defense attorney John Keker argued in a sentencing memo filed Friday that his client deserves a lighter sentence in light of “his exemplary character and compelling personal history and his continuing value to the community.” The sentencing memo excerpted at length the letters of support, which came “from gardeners to judges, adversaries to colleagues, family members to friends,” as well as investors who recouped lost funds thanks to Lerach, Keker wrote.
Interestingly, as detailed in this New York Sun article, one of the letter submitted on Lerach's behalf has some notable comments about the practice of paying plaintiffs:
A prominent class-action lawyer facing sentencing today for secretly paying plaintiffs to file securities lawsuits, William Lerach, is suggesting that the under-the-table practice was widespread and was not isolated to the firm he helped run for decades, Milberg Weiss. Lerach's claim that the payments were commonplace came in a letter one of his family members filed with Judge John Walter, who is scheduled to impose the sentence during a hearing this morning at federal court in Los Angeles....
"I did something wrong and I have to pay the price. Everybody was paying plaintiffs so they could bring their cases. I thought I had to do it, too," Lerach recently told one of his children, according to the letter. "After they changed the law, I stopped doing it, but other people at my firm kept doing it. I didn't know they were … I made the wrong decision and I have to go to jail."
The letter containing Lerach's comments on the scope of the secret payments was among those filed under seal, but an excerpt from it appeared in a defense pleading that was not properly redacted.
Related prior post:
Guantánamo detainee cases now about sentencing issues
As I have often said on this blog, all big public policy matters eventually become sentencing issues in some way. This New York Times article, headlined "U.S. Said to Seek Execution for 6 in Sept. 11 Case," highlights why GITMO prosecutions are now here:
Military prosecutors have decided to seek the death penalty for six Guantánamo detainees who are to be charged with central roles in the Sept. 11 terror attacks, government officials who have been briefed on the charges said Sunday. The officials said the charges would be announced at the Pentagon as soon as Monday and were likely to include numerous war-crimes charges against the six men, including Khalid Shaikh Mohammed, the former Qaeda operations chief who has described himself as the mastermind of the attacks, which killed nearly 3,000 people.
A Defense Department official said prosecutors were seeking the death penalty because “if any case warrants it, it would be for individuals who were parties to a crime of that scale.” The officials spoke anonymously because no one in the government was authorized to speak about the case. A decision to seek the death penalty would increase the international focus on the case and present new challenges to the troubled military commission system that has yet to begin a single trial....
Relatives of the Sept. 11 victims have expressed differing views of potential death sentences, with some arguing that it would accomplish little other than martyring men for whom martyrdom may be viewed as a reward.
But on Sunday, Debra Burlingame, whose brother Charles F. Burlingame III was the pilot of the hijacked American Airlines Flight 77 that was crashed into the Pentagon, said she would approve of an effort by prosecutors to seek the execution of men she blames for killing her brother. Ms. Burlingame said such a case could help refocus the public’s attention on what she called the calculated brutality of the attacks, which she said has been largely forgotten. “My opinion is,” she said, “if the death of 3,000 people isn’t sufficient for a death penalty in this country, then why do we even have the death penalty?”
In my view, the provisions of the federal Crime Victims Rights Act (CVRA), 18 U.S.C. § 3771, can and should be read to grant rights in GITMO prosecutions to all the victims of the September 11 attacks. Notably, key provisions of the CVRA, like § 3771(a)(5) and (c)(1), provide crime victims with a "reasonable right to confer with the attorney for the Government in the case" and require "the Department of Justice and other departments and agencies of the United States" to "make their best efforts to see that crime victims are notified of, and accorded, the[ir] rights" under the CVRA.
I wonder if DOJ and all federal officials involved in these GITMO cases have reached out to all the 9/11 victims to get their input on the decision to seek the death penalty. I wonder if Professor Paul Cassell or others who work on CVRA issues on behalf of crime victims might get more involved in GITMO matters now that the death penalty is on the table.
Where the bugged water cooler must reside
A couple of years ago, at a law blogger conference at Harvard Law School where folks debated the scholarly potential of blogs, Kate Litvak derisively described law professors blogs as a "bugged water cooler." As suggested by my paper for this conference, I have never thought much of this analogy; but this great-looking new group blog by law professors, because it is titled "The Faculty Lounge," makes me now think Litvak was perhaps on to something.
The Faculty Lounge, which is sub-titled "Conversations about law, culture, and academia," has a great group of contributors. Also, its first four category archives all involve topics dear to my heart: Blogs and Blogging, Constitutional Law, Criminal Law, Law School Hiring. I am already looking forward to frequently visiting TFL.
February 10, 2008
Beating the odds?
Though genuinely a serious issue, I have a hard time resisting a few chuckles upon seeing this news item from Boston:
A convicted Level 3 sex offender has won $10 million in the Massachusetts State Lottery. The Worcester Gazette & Telegram reports 56-year-old Daniel Snay, of Uxbridge, could now face charges because he failed to notify authorities that he had moved, according to Connecticut State Police. “I’m flabbergasted,” Connecticut State Police Lt. Paul Vance told the Telegram. “His whereabouts, until you told me about this, have been unknown to us. But I guess you could say he’s very fortunate.”
Snay works driving trucks for a yacht dealership in Mendon. He won the $10 million from a $20 scratch ticket purchased at Cumberland Farms in Hopedale. But the lottery winnings also come with unwanted publicity. “He was concerned, but there’s not much you can do about it,” said Snay’s lawyer Joseph M. Fabricotti. “We talked about it and he understood this was one of the repercussions that could happen.” Snay’s record of sexual assaults dates back to 1974. He has been convicted six times of indecent assault and battery in Massachusetts. Level 3 offenders are considered the most dangerous and the most likely to commit another crime.
An intriguing project for criminal conversations
Professors Paul Robinson and Kimberly Ferzan have created an intriguing new project entitled Criminal Law Conversations, which is explained at this slick website. Here is part of the pitch on the website:
We invite criminal law scholars around the world to contribute to an exciting peer engaged project of criminal law "conversations" to be published collectively as a book. Concise "core" papers, not to exceed 5000 words (approximately ten single spaced pages), each summarizing a theory or position, will each be followed by a number of short (normally no more than 800 words two pages or less) comments, with a final reply to the comments by the original core paper author.
The goal of Criminal Law Conversations (CLC) is to promote thoughtful critiques of important issues. Too often opposing advocates talk past each other. CLC's web based virtual "conversations" are designed to help opponents join issue. The website is not a blog but rather a vehicle for nominating and organizing the project's topics and contributors.
The personal realities and opportunity costs of capital cases
Thanks to How Appealing, I saw this interesting piece in the Casper Star-Tribune about some personal realities that come from working on a capital case. Here are excerpts:
Intensely stressful. Overwhelming. Simply miserable. The attorneys who've litigated death penalty cases in Wyoming don't mince words when describing the experience. Fighting for the ultimate punishment, or fighting to prevent it, is an emotionally taxing business that sticks with the participants long after the outcome has been decided....
Last Monday, prosecutors in Natrona County disclosed their plans to seek the death penalty against Donald Rolle, a Casper man accused of murdering Jennifer Randel, a woman he'd dated and been convicted of assaulting in the past. If the experience of others is any indication, the participants in the Rolle case can expect a long, difficult process.... Attorneys who've litigated capital cases say they differ from other trials -- even murder trials where defendants face life behind bars. "I don't know if anybody is so callous and indifferent that they don't spend many, many nights tossing and turning, trying to make sure they do the right thing," Newell said....
Death penalty cases proceed slower than a typical criminal case. Just getting to trial can be time consuming. In a regular criminal proceeding, attorneys might file a handful of motions. In a capital case, they sometimes file more than 100. Jury selection also takes longer. It might take a morning to seat a jury in murder cases that don't involve the death penalty. It took more than a week to seat a jury for the 2004 trial of Dale Wayne Eaton, the last defendant in a capital murder trial in Natrona County. It's also grueling process for jurors, who normally have little experience with the legal system....
The manpower required for a death penalty case is considerable. Keith Goody, who represented James Harlow, one of Wyoming's two inmates now on death row, estimates a lawyer can spend more than 1,800 hours on a death penalty case. "If you look at that, that's a year's worth of one lawyer's time," he said....
Stories like this always bring me back to thinking about the opportunity costs of the modern administration of the death penalty. There are literally millions of law-abiding Americans who could and would benefit greatly from just a few hours of a lawyer's time. And yet, while lots of law-abiding poor people have to make due with help from a lawyer, murderer James Harlow received the benefit of " year's worth of one lawyer's time" principally because the state of Wyoming decided it wanted to execute Harlow for his crime.
The opportunity costs, of course, extend far beyond the time of defense lawyers. How many crimes will go unprosecuted or under-prosecuted in Natrona County while state prosecutors invest resources in trying to add Donald Rolle to Wyoming's death row? How many civil lawsuits in the state will have to wait while state judges consider the "more than 100" motions that could be filed in the Rolle case? How many other state employees will get consumed (and perhaps even emotionally scarred) by the "long, difficult process" that just about every capital case creates?
As I explained here a few months ago, I am quite ambivalent about the death penalty in theory. But articles like this one from Wyoming confirm my view that the modern American death penalty system as administered by states involves an expensive, convoluted and distorting legal machinery that probably does more harm than good. But that is why I tend to be drawn more toward arguments to fix the death penalty --- by, as suggested here and here, making it exclusively federal --- rather than toward the kinds of absolute claims of most abolitionists.
"Where candidates stand on crime, death penalty"
The title of this post is the title of this new article in the San Francisco Chronicle. Before even reading the article, I already knew that all the 2008 presidential candidates are generally against crime and generally for the death penalty, but the article usefully provides a bit more nuance that its headline. Here are some long snippets from a very notable article:
With the Democratic nomination still up in the air after the Super Tuesday primaries, the evolving stances of Clinton and Obama on crime and punishment offer a point of comparison for voters in upcoming primaries, including Tuesday's votes in Virginia, Maryland and the District of Columbia. Although Clinton and Obama, both lawyers, have some important differences, their positions on two of the most politically sensitive crime issues — the death penalty and gun control — have converged....
The two differ on crime-related issues that have a lower profile but affect many thousands of prisoners, most of them minorities — the disparity between sentences for offenses involving crack and powder cocaine, and the merits of federal mandatory-minimum sentencing laws. On both, Clinton lines up with the prosecution, Obama with the defense.
Such disagreements scarcely exist on the Republican side. John McCain, Mitt Romney (who dropped out of the race Thursday) and Mike Huckabee are equally fervent in their support of the death penalty, opposition to gun control, allegiance to the war on drugs and abhorrence of liberal judges, while occasionally accusing one another of backsliding. One note of dissent comes from Huckabee, the former Arkansas governor, who opposes three-strikes sentencing laws, saying they have "created a system that is overrun with people, and the cost is choking us." But the real dissident in the Republican race is Paul, the Texas libertarian, who opposes the death penalty, favors drug decriminalization and thinks the federal government has far too big a presence in law enforcement....
It's true that most crime is prosecuted locally. But any president can exert a powerful influence on crime policies by backing or blocking legislation on wiretapping, guns, corporate wrongdoing or defendants' rights; by appointing judges, the attorney general, U.S. attorneys, and members of agencies like the U.S. Sentencing Commission; and by deciding whether federal prosecutors should chiefly target gangs, drugs, pornography or securities fraud.
Crime is seldom a prominent issue in presidential primaries, largely because the front-runners in each party typically take similar positions. But the subject can explode on Democrats in a November election. The prime example was in 1988, when Massachusetts Gov. Michael Dukakis, who had led Republican Vice President George Bush in early opinion polls, came under withering attack for his support of a furlough program that allowed a convicted murderer named William Horton — dubbed "Willie" in campaign ads — to leave prison in 1986 and rape a Maryland woman.
Dukakis was also the last major-party nominee to oppose the death penalty. He was hurt politically when he responded without apparent emotion to a debate question about whether he would favor execution for someone who raped and murdered his wife. Bill Clinton, by contrast, interrupted his 1992 presidential campaign and flew back to Arkansas for the execution of a brain-damaged killer named Rickey Ray Rector. As president, Clinton signed a 1994 crime bill that included a major expansion of the federal death penalty; according to the New York Times, first lady Hillary Clinton lobbied fellow Democrats for that provision. Bill Clinton also signed a 1996 law restricting state prisoners' ability to appeal their convictions and sentences in federal court....
The Democrats' clearest differences involve sentencing for drug crimes, including the disparity between terms for crack cocaine offenses, which affect mostly black prisoners, and terms for powder cocaine, which affect mostly whites. When the Sentencing Commission voted in November to lower sentencing guidelines for crack-related crimes, and bring them closer to sentences for powder cocaine, Obama favored applying the new terms retroactively to current prisoners, while Clinton opposed it, saying the change should affect only future cases. The commission voted for retroactivity in December, allowing 19,500 federal inmates to ask judges for sentence reductions, about two years in most cases.
Clinton has also questioned Obama's proposal to scrap some of the more than 170 federal mandatory-minimum laws, which require judges to impose specified prison sentences, most commonly for drug crimes. Noting that the laws mostly affect minorities and have had many critics, including the late Supreme Court Chief Justice William Rehnquist, Obama has attacked them as unfair to defendants and unduly restrictive on judges, but he has stopped short of calling for a wholesale repeal. Instead, he promises to review all mandatory minimums and try to eliminate those he considers too harsh.
UPDATE: Over at TalkLeft, Jeralyn has this long post providing more perspective on these issues, and she concludes with this assertion:
To say Obama is more progressive on crime issues or that he takes the defense line while Hillary toes the prosecution line, is not accurate. Neither one is particularly progressive or defense oriented. Their minor differences are just that, minor.
Rather than debate labels here, I would rather concentrate on records. Throughout his Presidency, Bill Clinton showed to the right on crime to score political points (and this SFC article suggests Hillary Clinton played a key role in these moves). I was so disappointed by Hillary Clinton's recent stance on crack retroactivity because it revealed that she, too, was very ready and seemingly quite willing to sell-out principles (and criminal defendants) as part of a misguided effort to score political points. As the San Francisco Chronicle spotlights, it likely made a lot of political sense in 1992 for Bill Clinton to try to move the democrats to the right on crime issues. But, 16 years later, the modern dynamics of crime and politics have changed dramatically, and I think the country now desperately needs leaders who worry more about modern justice realities than about dated political rhetoric.
Is there no pressing non-sentencing business in South Dakota?
This local AP story has me wondering if the South Dakota legislature has solved all of the state's other pressing problems:
South Dakota House is scheduled to consider a measure Monday to eliminate an archaic judicial doctrine that wipes away criminal convictions if defendants die before they are sentenced.
Representative Rich Engels of Hartford says many states already have abandoned the nearly century-old doctrine. HB1271, offered by Engels, would add South Dakota to the list. He says the doctrine developed in common law out of the view that a criminal conviction is not complete until an appeal has been completed or the time to appeal has passed. Engels says approval of HB1271 would allow crime victims to continue their quest for restitution. Under the existing doctrine, restitution cannot be obtained if a criminal conviction is erased when someone dies before they are sentenced.
I understand the concern for victim restitution, but wouldn't a reform of tort law, rather than a a reform a sentencing law be a more appropriate way to address this concern?