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May 4, 2009

Unanimous SCOTUS win for defendant in Flores-Figueroa

Providing a notable contrast to last week's ruling in Dean (basics here), today the Supreme Court vindicates a federal defendant's mens rea claim in the interpretation of an identity-fraud statute.  Here are the basics from SCOTUSblog:

The Court has released the opinion in Flores-Figueroa v. United States(08-108). The decision below, which held for the United States, is reversed in a 9-0 opinion by Justice Breyer, available here. Justice Scalia filed an opinion concurring in part and in the judgment, joined by Justice Thomas, and Justice Alito filed an opinion concurring in part and in the judgment.

And here is the first paragraph from Justice Breyer's opinion in Flores-Figueroa (emphasis in the original):

A federal criminal statute forbidding “[a]ggravatedidentity theft” imposes a mandatory consecutive 2-year prison term upon individuals convicted of certain other crimes if, during (or in relation to) the commission of those other crimes, the offender “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” 18 U. S. C. §1028A(a)(1) (emphasis added).  The question is whether the statute requires the Government to show that the defendant knew that the “means of identification” he or she unlawfully transferred,possessed, or used, in fact, belonged to “another person.”  We conclude that it does.

May 4, 2009 in Offense Characteristics | Permalink | Comments (2) | TrackBack

SCOTUS grants cert in Sullivan, juve LWOP case

As detailed in this order list, among the cases in which the Supreme Court granted cert this morning is Sullivan v. Florida.  As detailed in posts linked below, Sullivan involves an Eighth Amendment challenge a sentence of life without parole given to a rape defendant who was only 13 years old(!) at the time of the crime.  For a variety of reasons, Sullivan has the potential to be the biggest non-capital Eighth Amendment case decided by the Supreme Court in many years.

Interestingly, as noted here by SCOTUSblog, the Supreme Court also took up a companion juve LWOP case, Graham v. Florida, which apparently involves an life sentence for a non-murder crime committed by a 17-year-old offender.  As suggested in the prior paragraph, Sullivan and Graham are likely to be the cases to watch for sentencing fans in the next SCOTUS Term (which, of course, is going to involve a brand new Justice).  Exciting times.

Some related posts on juve LWOP and the Sullivan case:

May 4, 2009 in Scope of Imprisonment | Permalink | Comments (14) | TrackBack

Has there been any in-court impact from DOJ's new crack sentencing policy?

The new crack sentencing policy talk from the new Justice Department (basics here and here) has justifiably garnered lots of media attention.  For example, over the weekend the San Francisco Chronicle had this front-page article, headlined "Advocates predict change in cocaine sentences."  And today I have seen these editorials supporting the equalization plan now proposed by DOJ:

But while others continue to call for Congress to embrace DOJ's new suggestion to eliminate the crack/powder disparity, I continue to wonder whether there has been (or will be) any in-court fallout from DOJ policy even before Congress gets around to acting. 

It surely will take weeks (and probably many months) before DOJ's advocacy produces legislation that "completely eliminates the sentencing disparity between crack and powder cocaine."  Meanwhile, nearly 100 crack sentences are imposed in federal courts each and every week (and more are appealed each week).  Were any of the sentencings late last week impacted by DOJ's new crack sentencing policy?  Will any crack sentencings scheduled for this coming week be affected?  In my view, they certainly should be, but that does not mean they will.

Some recent related posts:

May 4, 2009 in Drug Offense Sentencing | Permalink | Comments (0) | TrackBack

May 3, 2009

Banishment a popular (but uneven?) special punishment in Georgia

As detailed in this effective local article, headlined "More than 500 people have been banished from Houston County," one Georgia county makes banishment a (semi)regular punishment for certain offenders.  Here are the particulars:

More than 500 people have been banished in Houston County since 1998 when the District Attorney’s Office started tracking this sentencing option.  Still, that’s about one out of every 60 cases, comparing the 500 banishments to more than 30,000 cases for the same time frame, said Houston County District Attorney Kelly Burke....

Keeping a person out of the county where the crime was committed during the probationary period may actually help the offender, Burke said.  For example, banishment disrupts the network of a drug abuser or dealer, breaking the cycles of addiction and the criminal activity of buying and selling, Burke said.  “I believe banishment really works,” Burke said. “It provides a chance to get your life straight while on probation.”

In the case of domestic violence, often the victim doesn’t want the abuser to go to jail but to simply be left alone, Burke said.  Banishment gives the victim peace of mind that they can safely go to a restaurant or to a child’s soccer game without the offender showing up and claiming they didn’t know the victim was at the restaurant or the game — a common scenario that plays out in restraining orders, Burke said....

Jim Rockefeller, a criminal defense attorney in Warner Robins, said banishment can be a useful tool with someone who is involved in some sort of network of gang activity or drug dealers. However, wholesale use of banishment would result in simply shuffling people around the state, he said.  Also, if wrongly used, banishment can set up a person for failure by cutting them off from positive networks such as families and jobs, Rockefeller said.

Rockefeller said he believes it would be appropriate for the state General Assembly to develop uniform guidelines on the use of banishment. Another option that judges might consider would be requiring banishment consideration to be part of arguments during sentencing hearings, rather than part of negotiated pleas among prosecutors and defense attorneys, Rockefeller said.

In neighboring Bibb County, banishment is rare. “We have done it a few times since I’ve been in office but not a whole lot,” Bibb County District Attorney Howard Simms said.  “Some of our judges don’t like it.” Simms said he also has problems himself with the enforceability of banishment and other issues it creates, such as with child custody.

Superior Court Judge S. Phillip Brown said there are some practical considerations of why banishment wouldn’t work on a broad-based approach or as a routine matter.  What about doctor’s appointments, for example?, Brown said.  His concern is that banishment may set up an offender for failure when the justice system should encourage success.

With 500 cases of banishment over a fairly long period in a single Georgia country, we should be able to move past anecdote and be able to collect some empirical evidence about whether banishment is an effective sentencing provision for certain classes of offenders.  I fear that no serious banishment studies are underway, but this would be a valuable and important opportunity from criminology or sociology grad students looking to make a real impact with some ground-level research.

May 3, 2009 in Criminal Sentences Alternatives | Permalink | Comments (4) | TrackBack

A sentencing aside amidst all the SCOTUS speculation

Today's above-the-fold front-page article in the New York Times is all about President Obama's legal past as he prepares to make a pick for the Supreme Court's future.  This article, which is headlined "As a Professor, a Pragmatist About the Supreme Court," includes this notable aside noting how President Obama addressed sentencing issues back when he was Professor Obama:

Former students say that Mr. Obama does not particularly prize consistency or broad principle.... [W]hen it came to sentencing laws, Mr. Obama led [student Adam] Bonin in a more conservative direction than the student had expected.  The primary victims of black criminals were fellow blacks — and so minority neighborhoods had an interest in keeping sentencing laws tough, he taught.

May 3, 2009 in Who Sentences? | Permalink | Comments (9) | TrackBack

May 2, 2009

Alabama judge orders killer dad to take daily look at his victims

As detailed in this local AP article, an Alabama state judge added a novel condition when sentencing a killer to death earlier this week.  Here are the details:

A judge on Thursday ordered a death sentence for a coastal Alabama man who was convicted of murdering four young children by tossing them from a bridge to "torture" his wife. Mobile County Circuit Judge Charles Graddick also ordered that prison officials show Lam Luong photos of the children each day he spends on death row awaiting lethal injection....

The 38-year-old jobless shrimper was convicted of capital murder in March for killing the children on Jan. 7, 2008 in a dispute with his wife, Kieu Phan, who was 23 at the time. Jurors last month earlier voted 12-0 for the death penalty.

Luong, a Vietnamese refugee who came to the U.S. when he was 13, was convicted of dropping the children — Ryan Phan, 3; Hannah Luong, 2; Lindsey Luong, 1; and 4-month-old Danny Luong — from the top of an 80-foot-high span to Dauphin Island. The bodies were recovered from coastal waters.  Luong was the father of three of the children.  His wife was pregnant with Ryan, the child of another man, when they met in 2004, according to testimony.

May 2, 2009 in Death Penalty Reforms | Permalink | Comments (3) | TrackBack

The steady stream of child porn sentencings

I continue to find notable how many seemingly upstanding citizens find there way into federal prison for downloading kiddie porn.  For example, the San Francisco Chronicle reports here that a "former aide to U.S. Senator Barbara Boxer was sentenced Friday to five years in federal prison for receiving child pornography."  Similarly consider these local articles here and here reporting on men who are 71 and 59 years old now getting long federal prison terms for obtaining child porn.

I sure hope that anyone on-line looking for kiddie porn finds this blog post and realizes that the punishment for this activity is severe.  General deterrence is the strongest argument to support why seemingly law abiding persons who merely downloaded kiddie porn pictures should get such lengthy prison terms for their first offenses.  I hope that, over time, this general deterrence is effective, and I will continue to post these stories in the hope I can do my own little part in helping to achieve this end.

May 2, 2009 in Sex Offender Sentencing | Permalink | Comments (11) | TrackBack

Two notable ex post rulings on sex offender registration from Indiana Supreme Court

As detailed in this local article, headlined "Rulings affect sex offender state registry," the Indiana Supreme Court had two significant rulings this week about ex post facto limitations on the application of sex offender registration rules.  Here are the basics:

A pair of rulings by the Indiana Supreme Court might bring dramatic changes to who is listed on Indiana’s Sex and Violent Offender Registry.

One ruling deals with sex offenders who committed their crimes and were sentenced before the state’s sex offender registry laws existed. The other ruling, involving an Allen County case, deals with whether sex offenders’ listings on the registry are subject to further changes to the registry.

There are 753 people on Allen County’s sex and violent offender registry. In the first ruling, the state’s highest court overturned Richard P. Wallace’s 2000 conviction for failing to register as a sex offender.... Wallace appealed [his conviction} arguing in part that the changes to the registry violated the state’s Constitution by creating an “after the fact” punishment. And the state’s high court agreed.

“Wallace was charged, convicted and served the sentence for his crime before the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted,” Justice Robert D. Rucker wrote....

In the second case, the court upheld a ruling by Allen Superior Court Judge Fran Gull involving Allen County resident Todd Jensen. Gull had ruled that Jensen must register for life as a sexually violent predator even though the provision in the law that created that designation did not exist when he was convicted....

Jensen appealed, using in part arguments similar to the ones Wallace used, that the requirement created a punishment after the fact. In a split decision, the appellate court agreed and sent the case back to Gull to limit Jensen’s registration requirement to 10 years.

But in a 3-2 decision, the state Supreme Court upheld Gull’s ruling that Jensen should have to register as a sexually violent predator for life.

The Indiana Supreme Court ruling in Wallace can be accessed at this link; its ruling on Jensen can be accessed at this link.

May 2, 2009 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

NC Supreme Court addresses doctor involvement in executions

As detailed in this local article, headlined "Justices overrule medical board: It had limited role of doctors at executions," the North Carolina Supreme Court yesterday issued a major opinion concerning doctor involvement in execution protocols.  Here are the basic details:

One roadblock to resuming executions in North Carolina is gone, but others remain after a ruling by the N.C. Supreme Court yesterday. In a 4-3 decision, the state's highest court upheld a ruling that said the N.C. Medical Board overstepped its authority when it issued a position statement saying it could punish doctors for participating in an execution.

Other lawsuits over the state's execution procedures remain, including a lawsuit in Wake Superior Court challenging how the N.C. Council of State changed execution procedures in 2007 to require someone with medical training to play a part in the execution. The change put the execution procedures in conflict with the medical board's opinion....

There hasn't been an execution in the state since Samuel Flippen of Forsyth County died by lethal injection in August 2006 for killing his 2-year-old stepdaughter. At present, 163 people are on the state's death row.

In yesterday's decision, the seven justices were deciding an appeal by the medical board of an October 2007 decision in Wake Superior Court. Writing for the majority, Justice Edward Thomas Brady wrote that allowing the board to discipline its doctors for participating in executions would elevate the board over the General Assembly....

Justice Robin E. Hudson dissented, arguing that it wasn't the court's proper role to decide the issue. She was joined by Chief Justice Sarah Parker and Justice Patricia Timmons-Goodson.

The full ruling of the NC Supreme Court can be accessed at this link.

Some related posts on doctors and executions:

May 2, 2009 in Death Penalty Reforms | Permalink | Comments (6) | TrackBack

May 1, 2009

Souter, short list speculations and sentencing spins

As detailed in this CNN article, Associate Justice David Souter has now officially announced that he will retire from the Supreme Court.  As we come to expect, SCOTUSblog is a great resource on this story, and it has this post noting some early comments from President Obama: 

On the selection of a replacement, President Obama said he will seek someone with a “sharp and independent mind, and a record of excellence and integrity… someone who understands justice is not about some abstract legal theory or footnote in a casebook, it is also about how our laws affect the daily realities of peoples’ lives. Whether they can make a living, and care for their families, whether they feel safe in their homes and welcome in their own nation.” He said he views “that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”

He will “seek someone who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role…who shares [his] respect for the constitutional values for which this nation was founded and who brings a thoughtful understanding for how to apply them in our time.”

White House Press Secretary Robert Gibbs ... said that President Obama hopes to have a nominee selected “well before the end of July” as Congress will be “out of Washington” for August.

Meanwhile, the short list speculating game is already in full gear (see, e.g., CNN here, Huff Post here).  As I have noted in lost of prior posts in conjunction with other recent openings, any change in Justices can impact the various still evolving balances in still evolving sentencing jurisprudence.  And, whomever the President selects, I am hoping the new Justice is willing and able to bring some fresh thinking and perhaps some new ideas to the sentencing table.

Some prior posts on SCOTUS personnel and Obama judicial appointments:

May 1, 2009 in Who Sentences? | Permalink | Comments (7) | TrackBack

A close look at Alabama's experiences with sentencing reform

In my view, there is clearly far too little scholarship on state sentencing systems (and probably too much on the federal sentencing system). It is thus exciting and refreshing to see this new piece on SSRN by Joseph Colquitt, titled "Can Alabama Handle the Truth (in Sentencing)?." Here is its abstract:

This Essay examines truth in sentencing, discusses its strengths and weaknesses, and analyzes what it will mean for Alabama.  The piece neither seeks to support or oppose the existing legislative mandate to adopt truth in sentencing in Alabama.  Rather, the Essay seeks to shed light on the issues, induce a healthy dialogue, and encourage the involved parties to garner a broad base of knowledge, carefully deliberate, properly design Alabama's truth-in-sentencing scheme, and ensure that the state has built the necessary infrastructure to support truth in sentencing.  Otherwise, adopting any truth-in-sentencing scheme would be imprudent. The Essay also examines Alabama past and present sentencing models and reports on the Sentencing Commission's voluntary sentencing guidelines presently used in the state as well as the challenges it faces in developing a truth-in-sentencing scheme in compliance the existing legislative mandate.

May 1, 2009 in State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Former GC for Gen Re gets relatively short prison sentence

This article from The National Law Journal, which is headlined "Former Assistant GC Sentenced in General Re Fraud Case," reports on a notable white-collar sentencing that took place yesterday.  Here are excerpts:

The former assistant general counsel of General Re Corp., Robert Graham, was sentenced Thursday to one year and one day in federal prison in a financial fraud case closely watched by in-house counsel nationwide.

Graham, 61, was found guilty last year of conspiracy, securities fraud, mail fraud and making false statements to the U.S. Securities and Exchange Commission. As part of his sentence, he was ordered to pay a $100,000 fine. He had faced a maximum sentence of up to 210 years in prison.

"Certainly, that kind of sentence seems more in line with a liability for a corporate failure than hundreds of years in prison," said Susan Hackett, general counsel for the Association of Corporate Counsel, of the sentence that Graham actually received.

Graham, who was senior vice president and assistant GC at Stamford, Conn.-based General Re from 1986 to 2005, will remain free on bond pending his appeal of his convictions. His lawyer, Alan Vinegrad, had sought a period of home confinement and community service....

The charges against Graham, who was senior vice president and assistant general counsel of Gen Re, were part of a 16-count indictment involving four other defendants at Gen Re and American International Group Inc.

This ABA Journal piece indicates that prosecutors were asking for a sentence of 230 years for Graham, but that does not sound quite right.  Still, I do think the prosecutors were seeking a much longer term and that Graham was the beneficiary of a significant downward variance.

May 1, 2009 in White-collar sentencing | Permalink | Comments (3) | TrackBack

California appellate court finds juve LWOP sentence unconstitutional

A helpful reader pointed me to an important ruling yesterday from a california appellate court finding a juvenile life sentence unconstitutional.  The ruling in In re Nunez, No. G040377 (Cal. App. 4th Dist. April 30, 2009) (available here), starts this way:

Antonio de Jesus Nuñez filed a petition for habeas corpus in the California Supreme Court on grounds, inter alia, that his sentence of life in prison without parole (LWOP) for kidnapping for ransom (Pen. Code, § 209, subd. (a)) — an offense he committed when he was 14 years old — constitutes cruel and unusual punishment under the Eighth Amendment or, alternatively, cruel or unusual punishment in violation of article I, section 17, of the California Constitution. Concluding Nunez established a prima facie case for relief, the Supreme Court ordered Nuñez's prison custodian to show cause before this court justifying the constitutionality of Nuñez's LWOP sentence.  After we placed the matter on calendar, petitioner and the Attorney General submitted briefs and argued the matter.

Petitioner contends his LWOP sentence violates article I, section 17's proportionality requirement based on, among other factors, his youth, the lack of injury to any victim, and the circumstance that LWOP is not a sentencing option for kidnappers his age who — unlike petitioner — murder their victims. We agree that under our state Constitution the LWOP sentence imposed on petitioner is void both in the abstract for society‟s most youthful offenders and as applied to petitioner in particular. We do not reach this conclusion lightly.  As stated by our Supreme Court in In re Lynch (1972) 8 Cal.3d 410, 414-415 (Lynch): “We recognize that in our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments, and that such questions are in the first instance for the judgment of the Legislature alone. [Citations.]  [¶] Yet legislative authority remains ultimately circumscribed by the constitutional provision forbidding the infliction of cruel or unusual punishment, adopted by the people of this state as an integral part of our Declaration of Rights.  It is the difficult but imperative task of the judicial branch, as coequal guardian of the Constitution, to condemn any violation of that prohibition.”  When such a showing is made, as here, “we must forthrightly meet our responsibility „to ensure that the promise of the Declaration of Rights is a reality to the individual.‟ [Citation].” (Id. at p. 415.)

And because petitioner is the only known offender under age 15 across the country and around the world subjected to an LWOP sentence for a nonhomicide, no-injury offense, we also conclude his severe sentence is so freakishly rare as to constitute arbitrary and capricious punishment violating the Eighth Amendment.  Accordingly, as required by the state and federal Constitutions, we vacate defendant‟s LWOP sentence on his kidnapping conviction and remand to the trial court for resentencing.

May 1, 2009 in Offender Characteristics | Permalink | Comments (19) | TrackBack

New York Times editorial on crack sentencing

The New York Times has this new editorial, headlined "Fairness in Drug Sentencing."  Here are snippets:

Congress’s decision to mandate longer prison terms for people arrested with crack cocaine than those caught with the powdered form of the drug was both irrational and discriminatory....

Congress has repeatedly ignored calls to equalize sentencing, partly because Justice Department officials in previous administrations have argued against it. This week, however, Lanny A. Breuer, the new chief of the Justice Department’s Criminal Division, told lawmakers that it was time to revisit the crack/cocaine disparity.

Mr. Breuer argued that the sentencing disparity was “difficult to justify based on the facts and science, including evidence that crack is not an inherently more addictive substance than powder cocaine.” The law was especially problematic, he continued, “because a growing number of citizens view it as fundamentally unfair.”

Mr. Breuer is right. Instead of perpetuating this discrimination, Congress should quickly move to equalize the penalties for the possession of crack and cocaine.

Some recent related posts:

May 1, 2009 in Drug Offense Sentencing | Permalink | Comments (0) | TrackBack