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February 26, 2008

Congress may push for Clemens perjury prosecution

The New York Times this morning reports here on the latest doings in the Roger Clemens HGH brouhaha:

A Congressional committee has taken the first steps toward asking the Department of Justice to start a criminal investigation into whether Roger Clemens committed perjury during testimony about performance-enhancing drugs, according to three lawyers with knowledge of the matter.

The committee chairman Henry A. Waxman said a decision about referring Clemens had not been made.  A draft letter referring Clemens, but not his accuser Brian McNamee, had been drawn up by staff members for the House Committee on Oversight and Government Reform by the end of last week, according to two of the lawyers.  But all three lawyers, who spoke on the condition of anonymity because they were not authorized to comment publicly on the matter, said it was possible that McNamee would also be included in the referral by the time it was sent to the Justice Department....

In a related case last month, Waxman and Davis jointly asked the Justice Department to investigate shortstop Miguel Tejada for suspected false statements in 2005, when Tejada spoke privately with committee staff members about performance-enhancing drugs....

Any referral from the committee is primarily a symbolic gesture. The Justice Department can decide on its own to investigate a Congressional perjury case, and indeed, several federal agents were present during the hearing Feb. 13.  One of those in attendance was Jeff Novitzky, the I.R.S. agent who has spent the past several years investigating steroid use among professional athletes....

A referral by Congress is like an extra push to the Justice Department, said Todd D. Peterson, a law professor at the George Washington University School of Law who worked in the department’s Office of Legal Counsel during the 1980s and 1990s. “It simply puts informal public pressure on the Department of Justice to take a look at it and respond in some way to Congress’s action,” he said.

Some recent related posts:

February 26, 2008 in Celebrity sentencings | Permalink | Comments (3) | TrackBack

February 25, 2008

House hearing Tuesday on crack sentencing disparity

As detailed on this official webpage, the House Subcommittee on Crime, Terrorism, and Homeland Security is holding a hearing tomorrow afternoon titled "Cracked Justice – Addressing the Unfairness in Cocaine Sentencing."  I have no idea who is scheduled to testify, though I suspect all the usual suspects will be out in force.

Indeed, this webpage at the Sentencing Project explains that tomorrow has been declared a special day in the legislative battle:

“My community has experienced the harm caused by drug abuse,” said Howard Saffold, a former Chicago police officer and participant in the “Crack the Disparity” Lobby Day cosponsored by The Sentencing Project. “We need services to treat people who are addicted to crack cocaine and employment opportunities for the young men who have, for various reasons, chosen to sell it. Excessive prison terms do not address the real problems.”...Saffold and 50 other community leaders from around the country will attend today's hearing before the House Judiciary's Subcommittee on Crime, Terrorism and Homeland Security and urge their representatives in Congress to push through crack cocaine sentencing reform this year.

The “Crack the Disparity” Lobby Day is sponsored by: American Bar Association, American Civil Liberties Union, Break the Chains, Drug Policy Alliance, Families Against Mandatory Minimums, National Association of Criminal Defense Lawyers, Open Society Policy Center, The Sentencing Project and United Methodist Church.

Another press release concerning the House hearing is available from the Drug Policy Alliance.

Though I am very pleased to see all this energy devoted to an important and highly symbolic issue, I fear that the current Congress is going to little serious interest in moving ahead with serious sentencing reform during this election year.  I feared this was true even before AG Mukasey came out swinging against the modest changes enacted by the US Sentencing Commission last year.  And the fact that all the major candidates seem eager to avoid too much discussion of crime and punishment issues sees to me to largely ensure that 2009 is the earliest that anyone should expect real reforms to have a chance to move forward.  But that's just my gut instinct, and I have been surprised by sentencing politics before and surely will be again in the future.

Some recent related posts:

February 25, 2008 in New USSC crack guidelines and report | Permalink | Comments (2) | TrackBack

Hillary Clinton as a criminal defense lawyer

This big Newday article provides me with proof that I can still learn something new about someone whom I thought I knew everything about.  Here are small snippets of a long piece that may be an especially interesting read for law student and law professors:

In 1975, a 27-year-old Hillary Rodham, acting as a court-appointed attorney, attacked the credibility of a 12-year-old girl in mounting an aggressive defense for an indigent client accused of rape in Arkansas —  using her child development background to help the defendant....

In her 2003 autobiography "Living History," Clinton writes that she initially balked at the assignment, but eventually secured a lenient plea deal for Taylor after a New York-based forensics expert she hired "cast doubt on the evidentiary value of semen and blood samples collected by the sheriff's office."...

"She was vigorously advocating for her client.  What she did was appropriate," said Andrew Schepard, director of Hofstra Law School's Center for Children, Families and the Law.  "He was lucky to have her as a lawyer ... In terms of what's good for the little girl?  It would have been hell on the victim.  But that wasn't Hillary's problem."...

February 25, 2008 in Campaign 2008 and sentencing issues | Permalink | Comments (6) | TrackBack

State amici shut out, SG gets extra time: is the fix in in Heller?

For anyone (like me) eager to see a robust Second Amendment right protected by the courts, today's Supreme Court order list concerning argument time in Heller provides an ominous tea leaf to read.  Tony Mauro in this post provides the story:

In a brief order on today's order list the Supreme Court dashed the hopes of gun rights advocates who hoped to have two lawyers and additional time arguing their cause before the Supreme Court when it hears arguments in the historic case D.C. v. Heller March 18.

Without explanation, the Court denied the motion of Texas Solicitor General R. Ted Cruz for argument time on the side of Alan Gura of Gura & Possessky, who has argued the pro-Second Amendment position from the start of the case. But the Court did agree to give Solicitor General Paul Clement 15 minutes to argue, in addition to the 30 minutes for each side in the case.

The Court's action can be read as a small but not insignificant victory for supporters of D.C.'s handgun control ordinance at issue in the case.... Walter Dellinger of O'Melveny & Myers, who will argue in defense of the D.C. handgun ban, had opposed the Texas motion, but supported Clement's request for added argument time....  [E]ven though Clement's brief lends support to both sides, the net effect of today's Court action is that the justices will hear 45 minutes of advocacy from those who want the lower court ruling eliminated, and 30 minutes from those who want it upheld.

Some recent related posts on the Heller case and the Second Amendment:

February 25, 2008 in Second Amendment issues | Permalink | Comments (3) | TrackBack

SCOTUS Cuellar case continues Term of statutory interpretation and sentencing

For legal process and statutory interpretation geeks like me, the criminal cases on the SCOTUS docket this Term are so intriguing.  As I have noted before, the Court has taken up a number of ACCA sentencing statutory interpretation cases this Term, and a number of other major sentencing cases —  such as Gall and Kimbrough and even capital cases like Baze and Medellin and Kennedy — can be viewed as matters concerning the impact of statutes and the legislative process.

The focus on statutory interpretation today is clear in Cuellar v. U.S. (06-1456), which concerns an issue effectively summarized this way at SCOTUSwiki:

[H]ere is the question raised: “Whether merely hiding funds with no design to create the appearance of legitimate wealth is sufficient to support a money laundering conviction?”  Relying on dictionary definitions and legal argument, the petition contends that “as a matter of plain English, to ‘launder’ money ‘is to disguise illegally-obtained money by making it appear legitimate’ ” — in other words, to make “dirty money” look “clean.”

Though seemingly about the definition of a federal offense, this passage from the short amicus brief from the NACDL spotlights the sentencing aspects of this case:

The expansive and unwarranted interpretation adopted by the Fifth Circuit below ... improperly expands the scope of an already broad statute far beyond its intended reach.  Section 1956 has become a vehicle for increasing potential sentences substantially in excess of what otherwise would be permissible for the underlying conduct, without any showing of the aggravated societal harm that the money laundering statute was designed to redress.  If this over-expansive interpretation is allowed to stand, criminal defendants unjustly will face longer sentences and will be forced to weigh the potential for such sentences in considering whether to plead guilty.

As I love to say, everything always comes back to sentencing issues.

UPDATE: The transcript of today's argument is now available here.

February 25, 2008 in Offense Characteristics | Permalink | Comments (0) | TrackBack

Notable commentary on Danforth

Michael Dorf has this new FrindLaw essay titled "Did Justice Stevens Pull a Fast One?  The Hidden Logic of a Recent Retroactivity Case in the Supreme Court."  Here is how it starts:

Last week, in Danforth v. Minnesota, the U.S. Supreme Court ruled that a state court was free to give greater protection to defendants' rights than the Supreme Court itself requires. Stated that way, the decision is hardly news.  In our system of federalism, federal constitutional law is not a ceiling, but a floor. It sets out the minimum protections to which people are entitled.  If states — through their constitutions or otherwise — choose to add protection, that is their prerogative.

Yet Danforth was no ordinary application of the floor-but-not-a-ceiling principle, because the question in the case was not whether Minnesota could interpret its own state law more broadly than federal law. Everyone accepts that it (like every other state) can.  The question in Danforth was whether Minnesota could over-protect federal law.  Perhaps surprisingly, the Supreme Court said yes.

Although the Danforth case involved highly technical and somewhat convoluted doctrine, it nonetheless warrants unpacking, for it may reveal an unexpected and important shift in the Justices' thinking about the relationship of state law to federal law.

Some recent posts on Danforth and criminal justice federalism:

February 25, 2008 in Who Sentences? | Permalink | Comments (9) | TrackBack

Interesting new op-ed on crack sentencing and clemency

Two of my favorite co-authors, Profs Marc Miller and Steve Chanenson, have this new op-ed in the Dallas Morning News headlined "Bush should give clemency to fix unfair crack sentences."  Here are excerpts:

Crack is back before Congress. Attorney General Michael Mukasey has come out against a new sentencing policy designed to bring a partial measure of fairness to the sentencing of federal crack offenders.  Crack is creeping back into the presidential campaign, where there is great need for leadership on this fundamental issue of race and justice....

Last year, the [US sentencing] commission proposed and Congress accepted a modest adjustment in the sentencing guidelines that prospectively reduces crack penalties and narrows the quantity-based punishment gap at points. Bravo.

Administrative concerns often require new rules to be forward-looking only. In this case, however, the commission tried to correct punishments that its expert analyses revealed were much too harsh and affected blacks unfairly.  So the commission voted unanimously to give federal judges the power to apply the new crack rules retroactively. Bravo again.

The commission's retroactivity vote does not mean automatic release for the roughly 19,500 current inmates convicted of crack offenses. Rather, it will permit judges to reduce existing sentences consistent with the new rules if they think it appropriate in individual cases. The Justice Department claims that resolving these cases in court will be too time-consuming and is urging Congress to overrule the commission on retroactivity.  Barack Obama supports retroactivity; Hillary Clinton does not.

In a late 2000 interview, President Bill Clinton said "the disparities are unconscionable between crack and powdered cocaine." But his attorney general helped kill the commission's 1995 proposal to eliminate the crack-cocaine disparity.  In 2001, President-elect Bush said he believed that "the powder-cocaine and the crack-cocaine penalties [should be] the same. I don't believe we ought to be discriminatory." Yet his Justice Department not only opposed both of the commission's recent crack decisions but is seeking legislation preventing the new rules from applying retroactively in many cases.

If Mr. Bush still believed what he said in 2001, he could deal with retroactivity in a streamlined fashion by exercising his clemency power.  This would address the workload problem that troubles his Justice Department. More importantly, the president would make a dramatic statement about racial justice and perhaps goad a recalcitrant Congress into fixing the underlying racial inequity in federal drug penalties.

But any suggestion that presidents make use of their constitutional clemency power has become deeply suspect. The federal pardon and clemency power has fallen from grace. Critics believe pardons and commutations have become partisan tools cynically wielded to benefit primarily the rich and powerful. There is, however, another tradition of pardon and clemency: Presidents over American history have used this constitutional power to fix and publicly address occasional systematic injustices.

Some recent related posts:

February 25, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

The politics of clemencies and pardons in Campaign 2008

Bt261211I often lament that sentencing issues have not been significant political issues of late, especially because the shifting focus to Ohio and Texas should justify some discussion of death and dollars in the two leading execution states.  Fortunately, folks interested in Campaign 2008 and clemency issues should be sure to check out Pardon Power, where one can find these notable recent posts:

Of course, it is not only Democrats with some pardon baggage.  Today I saw for the first time the cool political button pictured here, which parodies President Bush's commutation of Scooter Libby's prison sentence. 

Whether the issue is the Libby commutation, or Bill Clinton's ugly clemency record, or the calls for a commutation for the former Border Agents now serving long prison terms, I suspect that clemency issues will get some real traction at some point in the 2008 campaign.  Exactly when and by whom the issue gets raised will be interesting to watch.

February 25, 2008 in Campaign 2008 and sentencing issues | Permalink | Comments (0) | TrackBack

February 24, 2008

New academic paper on acquitted conduct after Booker

As regular readers know, I have strong feelings about acquitted conduct sentencing enhancements after Blakely and Booker (and these feelings are surely impacted by the fact that I have beeing involved in a lot of post-Booker acquitted conduct appellate litigation).  Consequently, I plan to read with great interesting this new piece I noticed on SSRN, titled "'Doing Time'.... After the Jury Acquits: Resolving the Post-Booker Acquitted Conduct Sentencing Dilemma."  Here are portions of the article's (long) abstract:

For the past two years, post-Booker cases have revealed deep contradictions between three important, but directly competing, constitutional-policy imperatives, i.e. (a) defining the limits of Congress' power to establish uniform sentencing policy and procedures, to eliminate or reduce apparent disparities in sentencing between judges; (b) re-establishing the system of individuated, case-specific sentences by permitting broader judicial discretion in sentencing; and (c) protecting the Sixth Amendment right to jury-found facts as a bulwark against governmental over-reaching, in the context of judicial decision-making.

Within the last several months, the [Supreme] Court decided Rita v. United States and Gall v. United States, which go a long way in sorting out the proper relationship between the first two policy imperatives above. However, the proper relationship between judicial discretion in sentencing and the Sixth Amendment right to jury-determined facts in sentencing, established in Apprendi and Blakely, is yet to be definitively addressed by the Court, post-Booker....

This article examines the unresolved, post-Booker contradiction between judicial discretion in sentencing and the Sixth Amendment right to jury-found facts, by considering the circumstance in which the contradiction is most plain, the judicial use of acquitted conduct to impose a sentence based on facts the jury has considered, and rejected, in an acquittal.  The article advances the position that the minority view expressed in lower court cases, that acquitted conduct may never be used by a sentencing court in light of Apprendi and Blakely (at least with respect to facts related to proof of the elements of the acquitted offense), is essentially correct as a matter of principle, and simple logic. However, the broad discretion entrusted to the sentencing court by the remedial measures described in Booker, Rita and Gall, requires principled line-drawing, if the jury is not to be supplanted by judicial fact-finding in sentencing, in apparent contravention of the Apprendi/Blakely/Booker Sixth Amendment rationale.

Some related posts on acquitted conduct enhancements after Booker:

February 24, 2008 in Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack

Can we learn anything from five months without executions?

The last execution in the United States was on September 25, 2007.  That date was the day that the Supreme Court's announced it would be reviewing the constitutionality of lethal injection protocols, and Michael Richard was executed in Texas that night after the US Supreme Court refused to block his execution.  Thereafter, however, the Supreme Court has blocked every subsequent state effort to go forward with an execution as it deals with the Baze case concerning the constitutional standards for judging execution methods.

As detailed in a number of prior posts, this extraordinary pause in executions provides an extraordinary opportunity for capital punishment research to examine and assess the death penalty in the United States at a time of extraordinary uncertainty. 

Is anyone trying to figure out exactly what has been happening with the death penalty over the last five months?  Though I would like to see sophisticated empirical analysis of capital realities during this five month period, I also would be very interested to hear informative anecdotes from folks working in the administration of capital punishment about whether anything has changed over the last five months other than the number of executions during this moratorium period.

Some related posts:

February 24, 2008 in Death Penalty Reforms | Permalink | Comments (3) | TrackBack

The crack retroactivity story in my backyard

Another story about the implementation of the new federal crack guidelines can be found this morning in my home-town Columbus Dispatch.  Here are the highlights:

The number of crack-cocaine dealers and users who could be released early from federal prison has nearly doubled from initial estimates, local officials now say. 

Last year, the U.S. Sentencing Commission announced new, retroactive sentencing guidelines for the drug offenders that could mean early release for 224 federal inmates who were sentenced in the U.S. District Court for southern Ohio, which includes Columbus, Dayton and Cincinnati. Since then, a review of offenders' files pushed the number up to 439 inmates, federal public defender Steve Nolder said. And of those, 85 could be released in the next few weeks. "A lot of these people will get released pretty quickly," Nolder said....

Local U.S. attorneys are working with public defenders but aren't agreeing to release all those who are eligible, said William Hunt, first assistant U.S. attorney. "We're concerned in general about the danger to the community," he said.  The government is objecting to a release if a gun was used in the drug crime, if the offender has a lengthy criminal history or if he or she caused problems in prison, Hunt said.

On Friday, federal judges finalized new procedures so that those eligible can be freed when the sentencing changes go into effect March 3.  For example, judges determined that the cases will be reviewed in order of the inmates' release dates, said U.S. District Judge Edmund A. Sargus Jr.  Inmates who aren't scheduled to be released for a few years will have to wait a few months to hear if they could be affected. And all inmates will be placed on supervised release, he said. "They will be monitored, drug-tested and watched for new offenses," Sargus said.

February 24, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack