March 1, 2008
Keeping track of corportate punishment (and its deferral)
Mary Flood has this interesting new piece in the Houston Chronicle, headlined "Justice's deals draw scrutiny: Research by Houston lawyers takes issue with corporate penalties." Here are snippets, including a closing quote from yours truly:
The research of two Houston lawyers is at the center of a growing controversy over the way the Justice Department lets corporations accused of wrongdoing off the criminal hook. Larry Finder, a former Houston U.S. Attorney in private practice, and Ryan McConnell, a federal prosecutor here, started tracking and writing about the trends a few years ago. Now their work is oft-cited as legislators, professors and others take aim at how the Justice Department is striking a growing number of deals with companies.
Though there has been mounting concern about the increased use of agreements to help bad-acting corporations avoid business-crushing criminal trials, scrutiny heightened recently with revelations of prosecutors passing lucrative monitoring jobs to former colleagues. One such contract worth potentially $52 million went to ex-top prosecutor John Ashcroft's firm to monitor Zimmer Holdings in a case about kickbacks in the medical field.
Finder and McConnell could find no other analysis of these corporate prosecutions. They found that there seemed to be no policy in place to create uniformity in the way federal prosecutors handle the cases. Their work is cited by members of Congress now trying to change the way these cases are handled....
Ellen Podgor, a professor at Stetson University College of Law who has written about these corporate deals, said the idea of corporate deferred prosecution is a good one "but I see enormous problems in the way they are operating." She said the problem is the government's role. It gets to decide whether the corporation is in breach, it gets to pick the monitor and all this without the judicial oversight in regular plea bargains or probations, she said....
Doug Berman, a professor at Moritz College of Law at Ohio State University who writes on federal sentencing, said "it's sad nobody was keeping track until some eggheads in Houston did." "We have a sentencing commission that tracks every sentence on drug cases and sex offender cases, yet when it comes to the Justice Department giving a break to corporations, nobody keeps track of this stuff," Berman said. "The powers that be don't want too much out about whether corporations are getting too many breaks."
Is AG Mukasey going soft on the federal death penalty?
Thanks to this post at TalkLeft, I saw this local article reporting that new Attorney General Michael Mukasey is unwilling to support the toughest federal charges against a murderous drug kingpin. Here are the basics:
Federal prosecutors say they will not seek the death penalty against Martin Carrillo, a former fugitive charged in a major drug conspiracy and killing. The decision was announced Friday by U.S. Attorney Drew Wrigley, after he received a letter from U.S. Attorney General Michael Mukasey. Wrigley said it was a short statement by Mukasey....
Carrillo is charged with four felony counts, including death caused by use of a firearm during a crime of violence. He's one of five men accused in the death of Lee Avila of East Grand Forks, Minn.... Carrillo, who turned 21 last week, was arrested in Washington state in October, after evading authorities for about 11 months. He is one of more than 60 people charged in the case known as Operation Speed Racer....
Nine people have been considered for capital punishment in Wrigley's tenure as U.S. attorney for North Dakota. The state's first federal death penalty verdict was handed down in 2006 to Alfonso Rodriguez Jr., convicted in the kidnapping and death of University of North Dakota student Dru Sjodin. Rodriguez sits on death row at a federal prison in Indiana.
Authorities say Carrillo, Arandas, Martinez, Wessels and Michael Petzold were involved in the death of Avila, 28, after a dispute over the size of a shipment of methamphetamine. Petzold pleaded guilty before prosecutors made a decision on capital punishment, and was sentenced to 30 years in prison.
Jeralyn at TalkLeft, who I think is categorically against the death penalty, seems pleased about this development: "Could we finally be done with the Ashcroft-Gonzales era of seeking the death penalty even in the face of opposition from federal prosecutors? We might actually be doing better than that."
I am much more troubled by this decision. I think it sends the symbolic message that, if you kill a young white woman in North Dakota, federal authorities will seek to vindicate your death through the toughest possible federal criminal punishment, but if you kill a young Latino man in North Dakota, federal authorities will not be too concerned about vidicating your death through the toughest possible criminal punishment. Sorry, gents, but apparently your lives are less important to the federal criminal justice system.
Interesting paper gives another perspective on Pew data
Providing a fitting follow-up to this week's Pew Center report, "One in 100: Behind Bars in America 2008" (discussed here), is this new article on SSRN titled "Years of Life Lost to Prison: Racial and Gender Gradients in the United States of America." The piece is authored by an interestingly diverse group of experts, and here is the abstract:
Background: The United States has the highest rate of imprisonment of any country in the world. African Americans and Hispanics comprise a disproportionately large share of the prison population. We applied a "prison life expectancy" to specify differences in exposure to imprisonment by gender and race at the population level.
Methods: The impact of imprisonment on life expectancy in the United States was measured for each year from 2000 to 2004, and then averaged. Using the Sullivan method, prison and prison-free life expectancies were estimated by dividing the years lived in each age range of the life table into these two states using prevalence of imprisonment by gender and race.
Results: African American males can expect to spend on average 3.09 years in prison or jail over their lifetime and Hispanic and Caucasian males can spend on average 1.06 and 0.50 years, respectively. African American females, on the other hand, can expect to spend on average 0.23 years in these institutions and Hispanic and Caucasian females can expect to spend on average 0.09 and 0.05 years, respectively. Overall, African American males, the highest risk group, can expect to spend on average 61.80 times longer in prison or jail as compared to Caucasian women, the lowest risk group.
Conclusion: There are clear gender and racial gradients in life expectancy spent in prison in the United States. Future research needs to examine how current imprisonment practice in the United States may influence population health and health disparities.
Q&A on crack retroactivity
US News and World Report has this new piece, headlined "The Impact of Releasing Crack Offenders," that includes a Q&A with Judge Reggie Walton. Here how the piece introduces the Q&A:
Judge Reggie Walton, a U.S. district court judge in Washington, D.C., is hardly known for giving soft sentences. But as chair of the Criminal Law Committee for the Judicial Conference, he has been one of the most outspoken critics of the cocaine sentencing disparity. U.S. News spoke with Walton about his views.
March 1, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack
February 29, 2008
Lots of coastal circuit sentencing talk
Busy days and bigger issues have kept me from keeping up with all of this week's circuit sentencing law, but I did notice two recent rulings from the coasts that local folk will want to give a look:
- From the DC Circuit, US v. Brown, No. 03-3102 (DC Cir. Feb. 29, 2008) (available here).
- From the Ninth Circuit, US v. Barsumyan, No. 07-50251 (9th Cir. Feb. 28, 2008) (available here).
There are some especialy interesting part of Barsumyan for anyone who has thought deeply about how the post-Booker world might have been constructed to look a lot different than it looks right now.
Senator Clinton talks a good game on sentencing reform
A helpful reader sent me this link from a Vibe Magazing Q&A with Senator Hillary Clinton. This portion is especially notable in light of Senator Clinton's expressed opposition to crack retroactivity:
VIBE: In your speech, you talked about having first, second, and third chances for children. In the last ten years the rate of incarceration of women has increased exponentially. I don’t think the average person realizes that it’s not 50% or 100%, it’s like 750% in the last thirty years. There are a disproportionate number of African-American men and women who are going to be released from prison with felony convictions. What do we do about that group of people who are effectively disenfranchised when they come out?
CLINTON: Number one, we need to divert more people from the prison system. We have too many people in prison for non-violent drug offenses, which disproportionately impacts on the African-American community. That’s why I’ve been a strong advocate of eliminating the disparity between crack cocaine and powder cocaine [sentencing].
There may have been a reason for it 25 years ago but there isn’t any justification for it now. But it also means that in the prisons themselves, we’ve got to get back to the services that used to be there. They have mostly been eliminated — GED programs, college credit programs, drug and alcohol abuse programs — I mean, it is like a wasteland. We put too many people in there and then we basically forget about them. And then when people come out we need a system of second-chance programs. And we need to move to restore people’s rights. They need to feel like they’ve done whatever time they’re supposed to do and now they are back as a full participant. So we need a network of job-training programs, of housing programs, of civic engagement and education programs.
And there are some good examples around. The Fortune Society in New York does a really good job. Other places like Greyston Bakery in Yonkers, NY that hires ex-offenders and trains them. We can do this on a larger scale than what we’re doing now. And a lot of the job training programs we used to have in this country, which has been decimated, need to be brought back so we can, as I have argued, put people to work in green collar jobs. We should be training people; we should be doing that in the prisons. We should be giving people skills that are going to be part of the economy of the future.
February 28, 2008
Playing with the economics of the death penalty
A helpful reader forwarded to me this fascinating local story headlined, "Arapahoe County DA Charges Death-Penalty Fees to the State: How does DA Carol Chambers beat the high cost of a death-penalty prosecution? By billing the prison system." Here is how it start:
The State of Colorado has managed to execute one murderer in the past forty years. Its death row, current population one, is among the smallest in the country. For four years after a 2002 U.S. Supreme Court decision threw out the state's system of having three judges decide whether an inmate should be executed, not a single new capital case was filed.
Some prosecutors regard the pursuit of the death penalty in the Centennial State as an exercise in futility. Even for the most heinous crimes, they say, it's difficult to get juries to impose the ultimate sentence — and then the appeals process can drag on for a decade or more, with taxpayers shelling out millions to fund both sides of the court battle. A recent memo to Governor Bill Ritter from the Colorado Attorney General's Office says it's not unusual for the defense in a death-penalty case to file between 300 and 400 motions, all of which must be answered by the prosecution. There are district attorneys who would rather undergo a colonoscopy with a garden hose than face such a gauntlet of budget-busting paperwork and frustration.
Then there's Carol Chambers, the maverick district attorney of the 18th Judicial District, which includes Arapahoe, Douglas, Elbert and Lincoln counties. Her office is pursuing six of the seven capital murder cases now under way in Colorado. The crusade has drawn heat from death-penalty opponents, but it's also attracting scrutiny from the state legislature.
Using a 130-year-old statute that requires the Colorado Department of Corrections to reimburse counties for prosecuting crimes committed inside state prisons, Chambers has found an unusual way to pay for half of her death-penalty cases. She's billed the DOC hundreds of thousands of dollars in recent months, effectively shifting the cost of trying to execute three inmates from her county-funded budget to Colorado coffers. The tactic has forced prison officials to go to state lawmakers, seeking a special fund for "payments to district attorneys," and raised questions about whether Chambers can bill the state for the entire salaries of employees in her office, including a chief deputy making $131,000 a year.
"Carol Chambers has turned her death machine into a cash cow," says attorney David Lane, an inveterate death-penalty opponent who is representing one of the prisoners facing possible execution. "I've never seen a capital case go this way. The only explanation I can see is that it's a big moneymaker for her office. Killing people is big business for them."
Chambers denies that there's any profit motive involved in her office's reinvigorated pursuit of the death penalty. "There is nothing inflated or improper about our bill to the Department of Corrections," she insists. "There is no financial incentive in the litigation."
UPDATE: A kind reader sent me this link to a response to this story that DA Chambers has already produced.
Potent new Pew report documents 1 in 100 prison reality
As detailed in this press release, "[a]ccording to a new report released today by the Pew Center on the States’ Public Safety Performance Project, at the start of 2008, 2,319,258 adults were held in American prisons or jails, or one in every 99.1 men and women." Here are more details from the release:
During 2007, the prison population rose by more than 25,000 inmates. In addition to detailing state and regional prison growth rates, Pew’s report, One in 100: Behind Bars in America 2008, identifies how corrections spending compares to other state investments, why it has increased, and what some states are doing to limit growth in both prison populations and costs while maintaining public safety....
According to the report, 36 states and the Federal Bureau of Prisons saw their prison populations increase in 2007. Among the seven states with the largest number of prisoners — those with more than 50,000 inmates — three grew (Ohio, Florida and Georgia), while four (New York, Michigan, Texas and California) saw their populations dip. Texas surpassed California as the nation’s prison leader following a decline in both states’ inmate populations — Texas decreased by 326 inmates and California by 4,068. Ten states, meanwhile, experienced a jump in inmate population growth of 5 percent or greater, a list topped by Kentucky with a surge of 12 percent.
A close examination of the most recent U.S. Department of Justice data (2006) found that while one in 30 men between the ages of 20 and 34 is behind bars, the figure is one in nine for black males in that age group. Men are still roughly 13 times more likely to be incarcerated, but the female population is expanding at a far brisker pace. For black women in their mid- to late-30s, the incarceration rate also has hit the one-in-100 mark. In addition, one in every 53 adults in their 20s is behind bars; the rate for those over 55 is one in 837....
Twenty years ago, the states collectively spent $10.6 billion of their general funds — their primary discretionary dollars — on corrections. Last year, they spent more than $44 billion in general funds, a 315 percent jump, and more than $49 billion in total funds from all sources. Coupled with tightening state budgets, the greater prison expenditures may force states to make tough choices about where to spend their money. For example, Pew found that over the same 20-year period, inflation-adjusted general fund spending on corrections rose 127 percent while higher education expenditures rose just 21 percent....
The full report can be found here, and the graphic on page 6 of the report highlights why I am always so concerned about the racial skew in our sentencing policies and practices regarding imprisonment. Also, the report usefully (though somewhat summarily) addresses modern political realities:
The politics of crime fighting have made most lawmakers understandably wary of advocating a diverse punishment strategy. There are politicians who have seen their careers torpedoed by opponents who used a lone vote, or even a comment, to create a dreaded “soft-on- crime” image at election time. Still, in some states, policy makers on both sides of the aisle are finding a safe path through this minefield. In some cases, the soaring costs of imprisonment have hindered spending on other vital programs to a degree that many find unacceptable. At the same time, polls show a shift in public attitudes toward crime, which has dropped down the list of issues of most concern to voters. Taken together, these factors — coupled with new strategies that can cut recidivism rates — are fueling a bipartisan appetite for new approaches.
An economically astute(?) forfeiture approach to sex offenders
As this article spotlights, legislators in Kentucky are talking about an new way to punish sex offenders:
Two state representatives from Northern Kentucky want the property of sex offenders confiscated so that those who use the Internet to lure their victims lose their computers for starters. The bill, filed last month by Reps. Arnold Simpson, D-Covington, and Thomas Kerr, R-Taylor Mill, would “require the forfeiture of all real and personal property used in or acquired as a result of certain sexual offenses against minors.”
If passed, the measure would allow for the seizure of property used by convicted sex offenders, including their cars, money, computers, money, homes — any personal belongings they may have used during the sex crime against a minor....
Too often, Simpson said, the tendency in Frankfort is to enhance criminal penalties in ways that result in longer sentences. The problem with longer sentences, he said, is that they increase correctional expenses for the state and counties. “I feel the bill would be still another tool to attempt to combat crimes against our children and would have little or no budget impact,” said Simpson.
The proposed sex offender law would work much like those already on the books for taking the property of convicted drug dealers. “If they use an asset in a crime they run the risk of forfeiting their property,” Kerr said. Under the bill, officials would also be able to take the sex offender’s home, or other property, if that is where the sex crime took place.
“HB 210 may be unconstitutional in that the state cannot deprive a person of property without affording a prompt opportunity to reclaim it if it is unlawfully seized,” said Daniel T. Goyette, chief public defender for Louisville Metro Public Defender's Office. “The Constitution requires a remedy for all injuries done to property ‘without sale, denial or delay.’”...
Under the bill, property would be seized by law enforcement, held and then sold. The funds would go to police and prosecutors, minus any liens on the property, such as car loans. “This will help prosecutors by giving them additional funds to prosecute the offenders,” said Kerr. Kenton County Commonwealth’s Attorney Rob Sanders, who, according to Simpson, requested the bill, said that under the bill 15 percent of the money that comes from sex offenders’ confiscated property would be earmarked for prosecutors, who could use the funds for expert witnesses, forensic investigations and the like. Law enforcement agencies investigating such crimes would collect about 85 percent of the money brought in from sex offenders’ seized assets.
“It’s a great benefit to law enforcement and to the protection of children,” said Sanders. Goyette said the bill invites problems. “What people do not seem to understand about this is that if the government can seize a sex offender's property with impunity, there is nothing to prevent seizure of other property,” said Goyette. “The government does not start exercising such power by seizing the property of citizens who have influence and positions of prominence in the community—they start with people everyone despises anyway.... I question whether this bill is even necessary, except to create a fund for prosecutors without imposing a tax for it,” Goyette said.
This article provides another great example of how prison costs are changing how states are thinking about crime and punishment. It also spotlights why legislatures, because of the high cost of prisons, are always going to consider seriously ways to punish through deprivations of property rather than through deprivations of liberty.
I wonder if all the folks generally concerned about private property rights and the Supreme Court's Takings jurisprudence will speak out concerning this interesting Kentucky forfeiture proposal. As regular readers know, I am generally a big fan of alternatives to imprisonment, and it seems that this Kentucky bill imagines forfeiture as a possible alternative (rather than an addition) to lengthening prison terms for certain offenders. Consequently, I hope this bill gets some traction and that more jurisdictions start considering property deprivations (as opposed to liberty deprivations) as a way to get tougher on sex offenders (and all sorts of other offenders, too).
Some related posts:
February 27, 2008
How do I love thee (USSC data), let me count the ways (to sentence)
I noted here that I was hoping to see some US Sentencing Commission data on whether the Gall and Kimbrough rulings might be having a big impact on district court sentencing outcomes. Joyfully, the USSC today scratches my data itch with the release of this new data report, which is descibed this way on the USSC website:
February 2008 Preliminary Post-Kimbrough/Gall Data Report: A set of tables presenting preliminary data on fiscal year 2008 cases sentenced on or after December 10, 2008. The numbers are prepared using data received, coded, and edited by the Commission by February 21, 2008.
In addition, the USSC also now has available its official 2007 data sets:
2007 Annual Report and Sourcebook: The 2007 Annual Report presents an overview of major Commission activities and accomplishments for fiscal year 2006. See the Commission's 2007 Sourcebook of Federal Sentencing Statistics for descriptive figures, tables, and charts, and selected district, circuit, and national sentencing data.
Cracked history: How Hillary Clinton really "played the race card" and Sean Wilentz failed to notice
Writing at length in the New Republic, historian Sean Wilentz throws strong charges at the Obama campaign in this piece titled, "Race Man: How Barack Obama played the race card and blamed Hillary Clinton." Though the interesting piece should be read in full, I find most telling that Wilentz does not even mention the most seeming racialized decision that Hillary Clinton has made during the campaign, namely her remarkable decision in December to oppose retroactive application of the new crack guidelines.
As I highlighted in this first post, the only prominent opponents to retroactivity for the new USSC guidelines have been President Bush's Justice Department (noted here), Republican members of the House Judiciary Committee (noted here), and Senator Hillary Clinton. I was so disappointed by Senator Clinton's position --- and have blogged about it so much --- because it seemed to be a racialized decision that echoed her husband's tendency to talk a good game about racial justice, but then actively support criminal justice laws that have well-known and pernicious racial inequities.
To the extent that anyone has justifiable complaints about race in the campaign and the media's coverage, I think the complaints should be focused on the media's failure (and perhaps also the Obama campaign's failure) to demand that Senator Clinton explain the basis for her position on this and other racialized criminal justice issues.
Some related prior posts of mine on race, sentencing and the 2008 campaign:
- Clinton and Obama, crime and punishment
- Will sentencing issues surface in the Clinton-Obama battle for black votes?
- Race, class and criminal justice in campaign 2008
- Politics and the war on drugs
- Major conference on race and criminal justice
- Interesting new op-ed on crack sentencing and clemency
The tough-on-crime turn toward imprisonment in the UK
Across the pond, the Prospect magazine has this long and interesting essay, titled Crime and punishment. Here is the essay's sub-heading: "Britain is locking up more people than ever — a policy that some say accounts for falling crime. But there may be other reasons for the drop in the crime rate. Are we imprisoning so many people because we have to, or because we want to?". This is how the essay starts:
There are around 82,000 people in prison in Britain. Is that a lot or a little? How can we tell? Compared to the 2.2m people languishing in US jails it doesn't sound all that many. Britain's prisoners could fit into the new Wembley stadium with room to spare, although on the government's own projections, all 90,000 Wembley seats will be taken sometime around 2010. Over the last five years, the prison population has grown by 20 per cent. Lord Carter, in a report for the government published last December, accepts that this trend will continue, and recommends a new prison-building programme so that supply can meet demand, which may reach 100,000 by 2014. (The government says it wants to stabilise the prison population at about 95,000. The Tories, by contrast, say they are happy to sail on through 100,000.)
Carter notes that the prison population in Britain has risen by 60 per cent since 1995. In Germany it has been more or less stable during this period, while in Canada it has fallen by 11 per cent. New Zealand just outstrips Britain, with 68 per cent growth since 1995, while even the US lags behind with 42 per cent. But it will be a long time before Britain catches up with the US in terms of the imprisonment rate: the US imprisons 750 people per 100,000, as against 149 in England and Wales and 136 in Scotland. Still, within Europe, our imprisonment rate is behind only former eastern bloc countries and, curiously, Luxembourg. The only west European country that comes close is Spain, which imprisons 146 per 100,000. By comparison, Germany imprisons 93 per 100,000, Turkey 91, France 85 and Italy 67.
Prison: what a strange thing it is. I can remember my shock as a child being told that some adults had done things so bad they had to be locked away, for years, until they knew better. I could hardly imagine anything worse. Prisons seem to belong to the age of the horse-drawn cart and the workhouse, not Eurostar and the internet. If anything, we should be phasing them out — converting old prisons into luxury flats as we do with unused warehouses and deconsecrated churches. Instead, we are building more and more — although apparently not enough to cope with the doubling of the prison population over the last 30 years.
Speaking as a philosopher, rather than a criminologist, I find just about everything to do with the criminal justice system a puzzle. But the central question, it seems to me, is this: are we imprisoning more people because we have to, or because we choose to? And in either case, why?
An important prosecutorial perspective on modern federal sentencing
Just posted on SSRN is this terrific looking new article by Dan Richman, titled "Federal Sentencing in 2007: The Supreme Court Holds — The Center Doesn't." Here is the abstract:
This article takes stock of federal sentencing after 2007, the year of the periphery. On Capitol Hill, Attorney General Gonzales discovered that U.S. Attorneys can bite back — at least when Congress wants them to. In the Supreme Court, the trio of Rita v. United States, Gall v. United States, and Kimbrough v. United States enshrined the reasonable district court as the ineffable place where federal criminal policy, sentencing philosophy and individualized judgment merge. In contrast to the Supreme Court's sentencing cases, which focus on the allocation of authority between judges and juries, and the bulk of the sentencing literature, which pits prosecutors against judges, the institutional pairing highlighted here is Main Justice vs. the Districts, with Justice Department sentencing policies since 2001 considered in the larger context of DOJ efforts to exercise power over U.S. Attorneys' Offices.
What has often been framed as judicial discretion might better be seen as a coordinated exercise in local norm setting, an exercise in which line prosecutors, through charging power and shared control over investments in information gathering (in tandem with agencies), inevitably play a critical role. The extent to which prosecutors will be allowed to explicitly embrace the power they tacitly exercise already, and whether an illusory regime of sentencing uniformity will give way to a real one of collaborative norm articulation and development remains to be seen. But the suggestion here is that the new sentencing cases may point the way to a healthier federal criminal justice system.
Dan's scholarship has always brought an important (and too-often-overlooked) prosecutorial perspective to the impact of sentencing reforms and real-world criminal justice developments. Based on a quick skim, this piece appears to continue Dan's strong and very sophisticated work in this arena.
I have long viewed the "real" story behind federal sentencing issues ranging from the 2003 Feeney Amendment to the 2008 debate over crack retroactivity often have a lot to do with the backstory of, as Dan puts it, Main Justice vs. the Districts. I am glad Dan is spotlighting this part of the federal sentencing onion in light of the new SCOTUS rulings, and I highly encourage reader reactions to his distinct insights.
Around the blogosphere
There are lots of new posts of interest at a lot of old favorites:
Though there a lot good at all these locales, Grits does especially awesome work in this post, titled "Liberals try scare tactics touting 'impending crime wave'." The post (which has generated great comments) concludes this way:
I've long believed that crime and punishment is a bipartisan issue, or rather a non-partisan one. Big government liberals like prisons as much as tuff on crime conservatives do, just for different reasons. IMO we don't need a "third way" on crime, we need a second.
February 26, 2008
Insider myopia and the diverse benefits of a short bench
Jeffrey Rosen has this remarkable — and depressingly telling — article online at The New Republic, titled "Short Bench: Why the Dems lack Supreme Court nominees." Here is a taste:
As Democrats dream about the possibility of retaking the White House in 2008, they are also fantasizing about their first Supreme Court appointments since 1994. But the bench of potential candidates is surprisingly thin....
[M]ost of the sitting Democratic appellate judges are too old to be considered plausible Supreme Court candidates.... Democrats have a strong incentive to pick younger justices this time around....
The next Democratic president will also feel strong pressure to appoint a woman or a Latino justice -- or both. Here, the pool of potential candidates is also shallow....
[T]he next president could try to appoint [a BigLaw lawyer like Beth S. Brinkmann] directly from private practice. (The last lawyer to be appointed directly from practice to the Court was Lewis Powell in 1971.) But a choice like this might be controversial among Democratic activists in the John Edwards wing of the party, who feel the current Democratic justices are already too sympathetic to business....
Another possibility would be for the next Democrat to appoint a legal academic [but] professors at the moment don't have a great reputation as potential justices....
That leaves only one other category of potential Democratic justices: current and former politicians. There's much to be said for putting a politician on the Court: A majority of justices on the Court that decided Brown v. Board of Education had a background in elected politics, as opposed to no members of the Roberts Court. And, over the course of history, former politicians have made not only the best chief justices -- think of John Marshall, Charles Evans Hughes, and Earl Warren -- but also some of the most effective associate justices. (Hugo Black is the model here.) Politicians, at least the smart ones, tend to be more pragmatic than ideological and, for this reason, have been well positioned on the Court to build majorities and transform the Court in their own image.
The current justices, though, are a group of technically accomplished lawyers, and, in order to be their intellectual match, any Democratic justice appointed from politics would have to be book smart as well as a ruthlessly determined politician. All of which means that the next Democratic president may have only one obvious candidate for the first Supreme Court vacancy: Once Obama has beaten Clinton, or vice versa, and gone on to the White House, the winner can appoint the loser to the Supreme Court.
Both the tone and content of this piece is notable for its inside-the-Beltway attitude and perspective. Apparently, in Rosen's DC-oriented mind, the only viable Democratic SCOTUS nominees are federal appellate judges, big-law lawyers, elite law professors, and "book smart" and "ruthlessly determined" politicians. Putting aside the simple fact that a Democratic president might have a filibuster-proof Senate to help his or her cause, Rosen's short list reveals a remarkable lack of historical perspective.
Justice Sandra Day O'Connor, of course, should be grateful President Reagan had a less myopic view of SCOTUS potential, since she was nominated from an intermediate Arizona state court. Similarly, Justices William Brennan and Benjamin Cardozo and Oliver Wendell Holmes came from state appellate court systems to the US Supreme Court. And Justices William Rehnquist and Thurgood Marshall and Arthur Goldberg and Byron White and Harlan Fiske Stone were all serving in the federal executive branch when nominated (though Marshall had previously spent a few years on the Second Circuit).
So, to help out anyone starting to sensibly write up a truly diverse Democratic short list, let me think a bit outside Rosen's DC-oriented box. Here are just a few different kinds of short-list possibilities from spending a little time thinking dynamically about different types of potential Justices (and not (yet) obsessing over possible judicial attitudes):
- Chief Justice Leah Ward Sears of Georgia (age 52 and the only African-American female Chief Justice in the United States)
Any other suggestions, dear readers?
Another notable notice opinion before Irizarry
The Supreme Court will soon hear argument in Irizarry (basics here and here), a case which will force the Justice to explore "departures" and "variances" in the context of Rule 32(h)'s application after Booker. As Irizarry buzz builds, the Sixth Circuit today provides another example of the case's importance through its work in US v. Alexander, No. 06-1867 (6th Cir. Feb. 26, 2008) (available here). Here is how the (split) decision in Alexander starts:
Defendant-Appellant Donald Wayne Alexander pleaded guilty to an indictment charging him with sexual abuse of a minor in violation of 18 U.S.C. § 2243(a). The district court departed upward and sentenced Alexander to forty-two months’ imprisonment. Because the district court failed to provide notice of the variance as required by Federal Rule of Criminal Procedure 32(h) we VACATE Alexander’s sentence and REMAND to the district court for re-sentencing.
Judge Kennedy provides this start to her dissent in Alexander: "While I agree with the majority that the district court’s failure to provide Defendant Alexander with reasonable notice of its intention to depart from the Guidelines range was plain error, I respectfully dissent with their decision to notice the error as Defendant has not demonstrated that this error affects substantial rights."
What if Jim Comey had succeeded John Ashcroft as AG?
Especially with AG Mukasey continuing to lament crack retroactivity, it is interesting to ponder what might have happened if President Bush had picked someone other than Alberto Gonzales to be his Attorney General at the start of his second term in office. Had Bush not tapped Gonzales, the inside money for taking over after AG Ashcroft would have been on James Comey, and it is fascinating to speculate about how Comey might have avoided all the troubled that AG Gonzales eventually got into.
Anyone eager to play this "what if" game seriously should be sure to attend this event next week sponsored by the Vera Institute of Justice in New York City. The evening event will have Comey, who is now senior vice president and general counsel of Lockheed Martin Corporation," speaking on "Integrity, Public Trust, and Prosecution."
One of many ironies of playing this "what if" game is to think about the possible ripple effect on the US Supreme Court. If Gonzales had not been made AG, President Bush might have thought to appoint Gonzales to the bench, and maybe have even offered Gonzales the SCOTUS seat that Bush first nominated Harriet Miers to fill. For various reasons, I think Gonzales would have survived the confirmation process (whereas Miers obviously didn't), and so maybe Justice Alito should be the one most thankful that this "what if" game is not reality.
Is AG Mukasey rightful to fear men and his former judicial colleagues?
As detailed in this CNN story, Attorney General Michael Mukasey continues to preach that his former colleagues (namely, federal district judges) cannot be trusted to make sound and safe decisions concerning which defendants get the benefit of the new federal crack guidelines. Here are details from the CNN piece:
Attorney General Michael Mukasey on Monday urged police officers to join his effort to push Congress to prevent what he fears will be a dumping of thousands of violent criminal offenders on the streets of U.S. cities in coming weeks.....
"Nearly 80 percent of those eligible ... have a prior criminal record," Mukasey told hundreds of members of the Fraternal Order of Police. "This tells us those who are eligible for early release are very likely to commit another crime." Mukasey also said 955 of those eligible [right away] for release are male. "We believe that this statistic will help to alleviate the concern expressed by some that the eligible offenders were simply girlfriends just caught up with their boyfriends," Mukasey said....
Mukasey said he is willing to discuss with Democratic lawmakers what should be the proper ratio in crack and powder cocaine sentencing but first wants to ensure the rules are changed to sharply curtail the releases.
Members of the Congressional Black Caucus have taken the lead in pressing for greater fairness. They point to the Commission's statistic that 32 percent of the first wave of offenders who could be released have had been convicted of only one crime or none at all prior to the charge that led to their conviction. The Justice Department said that means more than two-thirds of the offenders are in a criminal history category that suggests they will commit another crime.
The subject will be explored Tuesday in a House subcommittee hearing where Democratic officials say they plan to call for lighter sentences for those convicted of crack offenses and reject the Justice Department arguments.
The AG's monday afternoon speech is available at this link, and here are key paragraphs from the text on crack sentencing:
I understand that well-intentioned people can view statistics differently. But, these statistics are important for two reasons. First, they confirm what the Department has seen in the field and what our prosecutors have experienced in court. These offenders are often violent criminals who are likely to repeat their criminal activities. Second, these statistics – all taken from the Commission’s own study – undermine the allegations that there are great numbers of one-time crack users who were simply caught in the wrong place and the wrong time. Furthermore, the Department has suggested a way to address that concern: Congress should limit the retroactivity so that only first time, non-violent offenders could have their sentences reduced, and the amount of the reduction could not surpass the two-levels allowed by the Commission. This would address the Department’s public safety concern and allow any non-violent offenders to be released early, and permit those who need it to get the benefit of the Bureau of Prisons’ pre-release programs that help prevent or at least diminish the incidence of recidivism.
With respect to the crack-powder sentencing ratio itself, the Department has acknowledged that honest men and women can disagree about what the appropriate sentences should be for these crimes, and how they should differ from sentences for other drug crimes. The Department is committed to being a part of those discussions and to helping develop fair and just punishment for crimes committed in the future. But we believe that any reforms in the area of crack sentences have to satisfy two important conditions: First, any reforms should come from Congress, not the Sentencing Commission; and second, reforms should not be applied retroactively.
Some recent related posts:
- A retroactive litmus test on leading Democratic candidates
- Is Senator Clinton to the right of Justice Scalia on sentencing issues?
- Race, class and criminal justice in campaign 2008
- Interesting new op-ed on crack sentencing and clemency
- Latest FSR issue covers crack sentencing
February 26, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack
The interesting softer turn in Mississippi parole practices
Proving yet again that the most interesting and dynamic sentencing stories emerge from states, this local article discussed a notable development in Mississippi:
The Mississippi House voted Monday to ease the state’s truth in sentencing law.
By a vote of 69-52, the House approved legislation that would exempt non-violent offenders from the law, which now requires all people convicted of a felony to serve at least 85 percent of their sentence before being eligible for parole. The legislation has passed the House in previous sessions, only to die later in the process. It now goes to the Senate.
The bill would allow nonviolent offenders, such as those convicted of burglary and embezzlement, to be eligible for parole after serving 25 percent of the sentence. People convicted of selling marijuana and prescription drugs also would be eligible for early parole; other drug dealers would not.
Corrections Committee Chairman Bennett Malone, D-Carthage, said too many young people are being ruined for life because of the sentences they are given. He cited a ase in which a person was sentenced to 15-20 years for a first-time marijuana offense. "You might as well shoot that person," Malone said. "He will be institutionalized. ... There are better ways and cheaper ways to solve this problem." He cited home monitoring devices and other work programs....
Malone and others pointed out that the budget for the Department of Corrections has skyrocketed since the truth in sentencing law was passed. He said 6,300 inmates would be eligible for early parole if the legislation becomes law, though it would take the Parole Board literally years to hear all those cases.
The bill was hotly debated for about 80 minutes with Republicans primarily opposing it and Democrats supporting it, though a surprising number of members from each side voted against the majority of their party.
As I like to say, everyone in state government these days is now coming to understand that, when it comes to sentencing realities and politics, it's the prison economy, stupid.
More on smart guns, dumb technologies and market realities
Following up my earlier post on smart guns, Eugene Volokh asks his readers why they think there has not been any progress on smart gun technology in recent years. The comments make for very interesting reading, though there seems to be a collective view that an effective smart gun presents almost insurmountable technological challenges.
Though I accept the basic premise that an effective smart gun would present technological challenges, I have a hard time believing that gun technology could not improve. In a modern world in which phones, cameras, cars, computers, TVs and appliances get more technologically sophisticated seemingly every month, I have a really hard time believing that it is technologically impossible to build a smarter gun.
My suspicion is that the marketplace does not support gun technology improvements, perhaps because most gun buyers and users do not want or need a smarter gun. As Grits astutely noted, a smarter gun might hurt the "gray market" gun trade, and most lawful gun users likely feel they can ensure safe gun use through self-help and old technology. These realities, in turn, suggest that smart gun advances may require government or private funding that creates incentives outside the traditional market for tech innovation in this arena. As I suggested in my prior post, a good Second Amendment decision in Heller from the Supreme Court might jump start a gun-tech movement.