Sentencing Law and Policy

If you ever wondered what might happen if you sold balg eagle feathers...

this new Justice Department official press release, titled "Arizona Man Sentenced for Selling Bald Eagle Feathers," provides an answer:

Cedric E. Salabye of Dilkon, Ariz., was sentenced Friday in federal court in Phoenix for selling 11 bald eagle tail feathers, the Justice Department announced today.  Salabye pleaded guilty on April 23, 2009, to one count of a federal indictment charging him with selling eagle feathers in violation of the Bald and Golden Eagle Protection Act.  Judge David G. Campbell of the U.S. District Court for the District of Arizona sentenced Salabye to five years of probation, six months of home confinement and 150 hours of community service.

At the time Salabye committed the violation in 2006, the bald eagle was listed as threatened under the Endangered Species Act.  The bald eagle was removed from protection under the federal Endangered Species Act in 2007.  However, two other federal laws still provide protection for the bald eagle — the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act.

Eagles and other protected migratory birds are viewed as sacred in many Native American cultures and the feathers of the birds are central to religious and spiritual Native American customs.  By law, enrolled members of federally recognized Native American tribes are entitled to obtain permits to possess eagle parts for religious purposes, but federal law strictly prohibits the sale of bald and golden eagles or their feathers and parts under any circumstance.  The U.S. Fish and Wildlife Service operates the National Eagle Repository, which collects eagles that die naturally, by accident or other means, to supply enrolled members of federally recognized tribes with eagle parts for religious use.

"The buying and selling of the feathers of bald eagles, our nation’s symbol, is illegal and those who choose to ignore those laws will be prosecuted," said John C. Cruden, Acting Assistant Attorney General for the Justice Department’s Environment and Natural Resources Division.

"Links to Sex Crimes to Follow Texas Suspects"

The title of this post is the headline of this interesting article in today's Wall Street Journal.  Here is how it begins:

Desirée Wood gave up hope that the man who raped her 20 years ago in Dallas would ever be caught and sentenced for the crime. Now, she says, she has reason to believe her attacker might see some form of justice, after all.

On Tuesday, a law takes effect in Texas that lets prosecutors and parole boards for the first time see DNA evidence that links a suspect to an old sexual assault, even though the statute of limitations has expired on the case and the suspect was never tried. Previously, there would be no record linking the suspect to the old crime.

Supporters of the law, the first of its kind in the country, hope it means that suspects in those old cases will face more-vigorous prosecutions and sterner parole boards should they find themselves in trouble with the law again. Opponents say the law could rob suspects of due-process rights.

And here is how the piece articulates the due process concerns with this new Texas law being articulated by others:

The law has its critics. The American Civil Liberties Union is concerned that it could punish suspects without the benefit of due process.  After objections from the ACLU, the proposed law was revised to allow only law-enforcement agencies to access DNA information linking someone to an old sexual assault.  The law also allows suspects to petition for removal of the information from their files if they believe it has been wrongly included.

The ACLU still has concerns about how the information could be used.  "This is something we will definitely be monitoring to make sure there aren't negative unintended consequences," said Rebecca Bernhardt, policy director of the Texas ACLU.

Will new evidence of Texas executing an innocent man alter modern death penalty debates?

As detailed in this new New York Times editorial, headlined "Questions About an Execution," more folks are coming to the view that Texas executed an innocent man in 2004.  The editorial provides the basic facts and notes the standard abolitionist "innocence" argument that now seems stronger:

People should have no illusions about the brutal injustice of the death penalty after all of the exonerations in recent years from DNA evidence, but the case of Cameron Todd Willingham is still shocking.

Mr. Willingham was executed for setting a fire that killed his 2-year-old daughter and 1-year-old twins, but a fire expert hired by the State of Texas has issued a report casting enormous doubt on whether the fire was arson at all. The Willingham investigation, which is continuing, is further evidence that the criminal justice system is far too flawed to justify imposing a death penalty.

After the fire, investigators decided, based in large part on burn patterns on the house’s floors, that it was intentionally set. Prosecutors charged Mr. Willingham, who escaped from the burning home, with capital murder. Mr. Willingham protested his innocence until the day the state killed him by lethal injection in 2004.

The following year, Texas created the Forensic Science Commission to investigate charges of scientific mistakes or misconduct, and the panel began looking into the Willingham case. It commissioned Craig Beyler, a nationally recognized fire expert, to examine evidence....

The report concluded that a “finding of arson could not be sustained.” The Forensic Science Commission is now asking the state fire marshal’s office for its response. It anticipates issuing a final report next year.

The commission is to be commended for conducting this inquiry, but it is outrageous that Texas is conducting its careful, highly skilled investigation after Mr. Willingham has been executed, rather than before.

And, this week's New Yorker has a this long detailed article on the Willingham case in which David Grann documents all the reasons why it should now be a lot easier for opponents of the death penalty to assert that at least one innocent person has been executed in the modern capital punishment era.

With nearly 1200 execution over the last three decades, I have long consider the claim that only guilty persons have been executed harder to believe than the claim that at least one innocent person has been wrongfully put to death.  But now it seems that abolitionists have a name and a face to associate with the sensible statistical assertion that even a careful death penalty system is bound to sometimes execute an innocent man.  Of course, even acknowledging Willingham's innocence, proponents of the death penalty can still assert that it seems we still get it right more than 99.9% of the time.  But will that be good enough as the modern death penalty debate goes forward?

Lots of notable new and timely Findlaw commentaries

The folks at Findlaw do a great job in its Writ section getting top academics to do timely commentaries on legal issues of current debate and interest.  Here are some commentaries from the last few weeks that ought to interest sentencing fans:

• From Sherry Colb here, "Supreme Court Considers Constitutionality of Juvenile Life Without Parole"

• From Steve Sheppard here, " Sharon Keller, Troy Davis, and the Duty of a Death Case Judge"

• From Michael Dorf here, "Did the Supreme Court Recognize an Innocent Person's Right Not to Be Executed?"

Sex offender driven to drink and drive by registration requirement

This little local story, headlined "Police: Pa. man drove drunk to Megan's Law meeting," is both funny and not-so-funny.  Here are the basics:

A convicted child sex offender has been charged with drunken driving because he allegedly showed up intoxicated when he registered under Megan's Law at a western Pennsylvania state police barracks.

State police in Greensburg say 37-year-old Jerry Cignetti, of Bradenville, showed up drunk on Friday.  Court records show he was convicted in Westmoreland County in 1998 for the indecent assault of a child under 13.  He was paroled but had to register as a sex offender once his sentence was completed.

The 1L Crim Law teacher in me is wondering if this might be the basis for an interesting (though surely losing) claim of necessity.

Dueling persectives on proposed California prison reforms and a new challenge

As highlighted in the links below, the California editorial pages are buzzing over the state's on-going debate over prison and sentencing reforms.  And, as these two pieces reveal, California lawmakers will be criticized no matter what they do (or don't do):

• An editorial from the San Jose Mercury News  here, "Gutless Assembly copping out on prisons"

• An op-ed from the San Bernardino Sun here, "Misguided logic drives dangerous state prison plan"

Relatedly, this new piece in the New York Times, headlined "California Officials Fear Abduction Case May Hurt Efforts on Parole," highlights how a single high-profile case may alter the on-going debate.  Here is how the piece begins:

The case of Phillip Garrido, a parolee and registered sex offender accused of abducting an 11-year-old girl and holding her hostage for 18 years, has become embroiled in the debate over legislation intended to reduce California’s inmate population.

I sure hope a whole bunch of folks end up writing lots of articles and books about this chapter in state sentencing reform, since it captures so many of the dynamic modern challenges of sentencing law, policy, politics and practice.

Will NC's new Racial Justice Act effectively kill the state's death penalty?

This interesting local article from North Carolina, which is headlined "New death penalty law concerns Pitt attorney," prompts the question of this post.  The piece provides one local prosecutor's perspective on the likely impact of North Carolina's new Racial Justice Act, and here are excerpts from the start and end of the article:

Pitt County's chief prosecutor said an adopted law is an attempt to stop death penalty prosecutions without doing away with the punishment. The Racial Justice Act, signed into law Aug. 11 by Gov. Beverly Perdue, seeks to prevent death sentences “sought or obtained on the basis of race.” It allows defendants to introduce statistical evidence that shows race was a significant factor in the decision to seek or impose a death sentence.

Pitt County District Attorney Clark Everett lobbied against the legislation earlier this year. The state already has sufficient safeguards in place to prevent or remedy racially motivated death penalty prosecutions, he said.

While proving racial bias is placed on the defendant, Everett said prosecutors will have to develop evidence to refute the claim. It will become a battle of statisticians, one claiming bias and another saying none exists. “This should be titled the Statisticians Relief Act of 2009 because it is going to make a lot of them a lot of money,” Everett said. “It's going to be a battle of statisticians, and it's going to cost the state millions.”

The decision to pursue a death penalty prosecution isn't made lightly, Everett said. Prosecutors must have evidence to support claims that aggravating circumstances were present when a murder occurred. These circumstances and evidence are unique to each case and can't be made to fit statistical models. “The goal should be the punishment fits the crime, not some statistical predictions,” Everett said. “Murders aren't committed following a statistical model.”

The Racial Justice Act is an attempt to end the death penalty without voting to end the punishment, Everett said.  “They are killing it with a thousand cuts,” Everett said.  The General Assembly should hold a simple yes or no vote on whether the death penalty should be abolished in the state, he said....

Everett said the Racial Justice Act won't prevent him from pursuing a death penalty case if the evidence supports seeking that punishment but it adds another layer of bureaucracy to the decision-making process.  “It makes it difficult to explain to survivors the process and what punishment they can expect in the near future,” he said. “It adds another layer of litigation and costs, and that's something I have to consider.  It doesn't appear at this time we have a workable death penalty in this state,” Everett said....

No executions have been carried out in North Carolina since August 2006 when the N.C. Medical Board barred doctors from being present for lethal injections.  The state sued the medical board and in May the state Supreme Court ruled in the state's favor.  However, executions won't resume until North Carolina's Council of State reviews the state's protocols for execution.  The council's review is currently facing a legal challenge.  

As this excerpt reveals, this article is rich with insight and irony.  First, it appears that lethal injection challenges more than this new Racial Justice Act has the North Carolina death penalty struggling to stay legally relevant.  Thus, whatever the NC Racial Justice Act might mean practically, the efficacy of lethal injection litigation blocking executions right now explains why the 167 persons on the state's death row seem unlikely to face their imposed punishment anytime soon.

Second, this local article highlights all the interesting practical dynamics that surround a capital Racial Justice Act.  As the prosecutor notes, the Act is not going to prevent him from seeking a death sentence in a specific case, though he is going to "have to consider" how the Act presents "another layer of litigation and costs."  This may be the real virtue (or vice?) of this sort of Act: local prosecutors will be thinking twice about racial issues concerning offenders and victims impacting decisions to pursue the punishment of death.

Finally, as is true for all capital punishment reforms, this new Racial Justice Act is likely to result in lots of (unpredictable?) litigation.  In the end, how state courts interpret and apply the new Act will determine if it has a major or minor impact on the operation of the death penalty in North Carolina.

Some recent related posts:

• Robust legislative debate over NC Racial Justice Act
• NC Racial Justice Act going to governor's desk
• NC Gov signs new racial justice act concerning capital prosecutions

Trickle-down realities of the prison economy in California

This local article from California, which is headlined "State prison cuts' effect on county jail feared," spotlights the trickle-down impact of most prison cuts at the state level.  Here are excerpts:

After four years of declines in the number of inmates held at the Sonoma County Jail, local authorities fear that an overhaul of the statewide prison system could increase the jail population by hundreds of inmates at an estimated cost of $1 million a year.

Lawmakers have until Sept. 11, the end of the legislative session, to save close to a billion dollars by decreasing the state's prison population, which is roughly double its intended capacity.

That has local criminal justice authorities and county leaders concerned that the Sonoma County Jail could fill with parolees who have violated parole and inmates who under today's regulations would be sent to state prison. “Increased victimization and a potential increase in the jail population is the big concern that law enforcement officials have,” Sonoma County District Attorney Stephan Passalacqua said. “In this day of limited resources, how do we deal with that?”...

Passalacqua, County Supervisor Mike Kerns and Assistant Sheriff Linda Suvoy, who runs the county corrections system, said [all] changes [impact] local law enforcement. “If you add inmates locally it's going to be a problem,” said Suvoy, citing staffing issues and costs of reopening units that have been closed. “The big question is how to pay for it and is the state really going to divert funding to the local governments to address those issues,” she said....

County Supervisor Shirlee Zane said there have not been any formal discussions about the local impacts of prison overhaul measures among county supervisors, but the worry is palpable, as the costs to a community are not just at the jail. “These impacts are going to be significant,” she said. “If we have 400 state prisoners coming back into the county, my hunch is well over 50 percent of them are going to need substance-abuse counseling and job assistance, and those services are being cut. Releasing prisoners and cutting services that are going to help them stay out of prison and gainfully employed is absurd.”

Kerns, though supportive of overhauling the state prison system, said he wished the state would find a way to do it in a way that didn't cost the county. “We will be lobbying against this (Senate bill),” he said. “It's going to cost us money we don't have. Basically it will mean we will have to expand existing facilities. It's going to cost us a lot more money and it's going to be much more difficult for us to provide resources.”

Some recent related posts:

• Latest news on sentencing and prison reform in California
• Latest legislative twist suggests California won't have a sentencing commission anytime soon
• Debate and drama continues in California over prison and sentencing reform
• California prison and sentencing reforms getting closer to reality
• Possibility of California sentencing commission continues to generate controversy
• Federal judicial panel orders California to drastically cut prison population
• "Free 40,000 California inmates? Not so fast."
• Prison reforms and cuts left uncertain in final California budget deal
• Economic necessity finally forcing long-needed reform in California
• "State police chiefs' association backs prison plan in budget"
• Defending the prison cuts in the new California budget
• "Gulags in the sun"
• "The Fiscal Crisis in Corrections: Rethinking Policies and Practices"
• Reviewing how tough times are resulting in prison releases

Plenty of blame to go around in high-profile failure of "supervised parole"

This big crime story of the past week concerned the discovery that convicted rapist Phillip Garridowas able to kidnap and keep a young girl in backyard dwellings for nearly two decades.  This is, of course, a sentencing story in many ways, and this Wall Street Journal article highlights how it repesents a remarkable high-profile failing of "supervised parole":

State and federal officials are investigating how a convicted kidnapper and rapist was able to hide captives in the yard of his Northern California home for 18 years while under supervised parole.

Authorities over the past decade had made surprise visits to the Antioch home of Phillip Garrido, who prosecutors allege kidnapped 29-year-old Jaycee Dugard when she was 11 and kept her in backyard dwellings until her discovery this week. Ms. Dugard, who police say had two children with her captor, was reunited Thursday with her family.

Despite supervision of Mr. Garrido by parole and probation officers, state and local law enforcement agencies acknowledged their failure to find Ms. Dugard earlier.  Contra Costa County Sheriff Warren Rupf said Friday that an officer had visited Mr. Garrido's home in 2006 after receiving a 911 call that said Mr. Garrido had people living in tents in his backyard and was "psychotic and had a sexual addiction." "We should have been more inquisitive," Mr. Rupf said at a news conference. "There are no excuses."...

Mr. Garrido had been sentenced in 1977 to 50 years in prison on federal charges and five years to life on state charges after he was convicted of kidnapping a woman in California 1976. He was found guilty of taking the woman to Reno, Nev., where he sexually assaulted her, according to the Nevada Department of Public Safety. After serving 11 years, a parole board released Mr. Garrido in 1988 and placed him on lifetime probation.

Gordon Hinkle, a spokesman for the California Department of Corrections and Rehabilitation, said Thursday that Mr. Garrido was supervised by a parole officer whose caseload was reduced to allow greater attention to high-risk parolees. Mr. Garrido wore a GPS ankle bracelet to monitor his whereabouts, he said. Mr. Hinkle declined to identify the parole officer, but said his agency is "very proud" of what the officer did in recent days to help arrest Mr. Garrido.

The case comes at a time when planned prisoner releases in states such as California and Michigan are renewing interest in parole boards and probation, which in some corrections systems can decide on early release. For the past 25 years or so, such boards have been out of style. Legislation in 1984 eliminated them for new federal cases due to concerns about disparate treatment of prisoners. At the state level, they were criticized for high-profile crimes committed by parolees. Michigan has since beefed up its parole board, and California is trying to figure out how to process early prisoner releases....

Mr. Garrido was under federal parole supervision when he allegedly kidnapped Ms. Dugard, according to a spokeswoman for the Nevada Department of Public Safety. Mr. Hinkle, the California corrections department spokesman, said Mr. Garrido was transferred to the custody of California's parole system in 1999.

Since then, state parole agents went to his home two or three times each month, sometimes unannounced, Mr. Hinkle said, and met with him at other locations. Mr. Garrido was "under pretty strict supervision," he said. "If everything seemed to be in order, [parole officers] take a quick look around and move on," he said. "It's not like you're going into a search situation where you're going to be throwing up mattresses and tearing up the refrigerator."

The parole and probation systems -- designed to keep close track of offenders -- have limitations, said Richard Wood, a former federal probation officer...."Some of the people you're seeing as a parole officer are very, very good at hiding what they're doing," he said. "Meeting them one or two hours a week doesn't do it."

Last year, the sheriff's department in Contra Costa County did a sweep of the residences of registered sex offenders to ensure they were complying with their release conditions. Eleven offenders were arrested, the department reported, but a visit to Mr. Garrido's house apparently didn't generate any suspicions, according to Contra Costa County officials.

North Carolina Supreme Court finds state constitutional right for some felons to bear arms

Thanks to this post at The Volokh Conspiracy, which is titled "Felons and the Right To Bear Arms," I discovered that late yesterday the North Carolina Supreme Court ruling in Britt v. State, No. 488A07 (NC Aug. 28, 2009) (available here), that at least North Carolina felons have a state constitutional right to bear arms under the North Carolina Constitution.  Here are a few key passages from the notable (and very important?) ruling:

Article I, Section 30 of the North Carolina Constitution provides, in pertinent part: “A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.”  This Court has held that regulation of the right to bear arms is a proper exercise of the General Assembly’s police power, but that any regulation must be at least “reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety.”...

Plaintiff pleaded guilty to one felony count of possession with intent to sell and deliver a controlled substance in 1979. The State does not argue that any aspect of plaintiff’s crime involved violence or the threat of violence. Plaintiff completed his sentence without incident in 1982. Plaintiff’s right to possess firearms was restored in 1987.  No evidence has been presented which would indicate that plaintiff is dangerous or has ever misused firearms, either before his crime or in the seventeen years between restoration of his rights and adoption of N.C.G.S. § 14-415.1’s complete ban on any possession of a firearm by him....

Plaintiff, through his uncontested lifelong nonviolence towards other citizens, his thirty years of lawabiding conduct since his crime, his seventeen years of responsible, lawful firearm possession between 1987 and 2004, and his assiduous and proactive compliance with the 2004 amendment, has affirmatively demonstrated that he is not among the class of citizens who pose a threat to public peace and safety....

Based on the facts of plaintiff’s crime, his long post-conviction history of respect for the law, the absence of any evidence of violence by plaintiff, and the lack of any exception or possible relief from the statute’s operation, as applied to plaintiff, the 2004 version of N.C.G.S. § 14-451.1 is an unreasonable regulation, not fairly related to the preservation of public peace and safety.  In particular, it is unreasonable to assert that a nonviolent citizen who has responsibly, safely, and legally owned and used firearms for seventeen years is in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety.  We conclude that N.C.G.S. § 14-415.1 is an unconstitutional violation of Article I, Section 30 of the North Carolina Constitution as applied to this plaintiff.  As discussed above, pursuant to N.C.G.S. § 14-415.1, the State unreasonably divested plaintiff of his right to own a firearm.  Such action violates plaintiff’s right to keep and bear arms under Article I, Section 30 of the North Carolina Constitution.

Though this ruling is based only on state constitutional law, it raises a host of very interesting questions in the wake of Heller (especially given that the language of the NC constitution is parallel to the language of the Second Amendment).  Let me do just a little issue spotting:

1.  Does this ruling automatically extend to all other NC felons who can show a "history of respect for the law [and] the absence of any evidence of violence" in their lives?  My guess is that a lot of drug and drunk driving felons might reasonably make such a claim; but do they need to go to court to get a formal ruling that they are like Britt?

2.  Because Britt had his civil rights restored under state law, he is no longer prohibited under federal statutory law from possessing a firearm.  But can this ruling help NC felons who don't have their civil rights restored if and when they get charged in federal court with felon-in-possession under federal law?

3.  Will any lower federal courts be moved by the bold and clear assertion in Britt that the NC blanket ban on felon gun possession is "an unreasonable regulation, not fairly related to the preservation of public peace and safety"?   

Federal prosecutors again found to have committed severe misconduct

This article from the Chicago Tribune, headlined "Prosecutorial misconduct seen in drug trial: Witness allowed to testify falsely, federal Judge Joan Lefkow rules," reports on yet another disturbing case of federal prosecutorial misconduct emerging from a prominent US Attorney's Office.  Here are the basics:

A federal judge has found that a prosecutor in U.S. Atty. Patrick Fitzgerald's office committed prosecutorial misconduct by allowing a government witness to testify falsely in a drug conspiracy trial that resulted in the convictions of four defendants in March.

In a 27-page ruling issued Wednesday, U.S. District Judge Joan Lefkow ordered a new trial for the four on some counts, including the key conspiracy charge.  But she refused to dismiss multiple other counts, meaning each faces sentencing for those convictions....

At trial, the prosecution's case relied in part on witness Senecca Williams, who testified as part of a plea agreement with the government.  Lefkow described him as a key witness for prosecutors because he helped prove the elements of the conspiracy charge against the four defendants -- Rondell Freeman, Brian Wilbourn, Daniel Hill and Adam Sanders.

Leonard Goodman, the lawyer for Wilbourn, said the defendants and Williams were facing sentences of 20 years to life in prison on the conspiracy convictions.  But Williams' deal called for only a 5-year sentence. "Everybody knows these witnesses will lie, saying whatever the government wants them to say to get their deals," Goodman contended. "The only difference is that in this case we happened to catch one."

Under questioning from prosecutors, Williams testified that during late 2002 and early 2003, he witnessed Wilbourn packaging narcotics and talking about drug business with Freeman at a Granville Avenue apartment sometimes known as the "penthouse."  But the government ultimately conceded that Wilbourn was behind bars from April 2002 until September 2005 and that Freeman did not even live in the Granville Avenue apartment in 2002.  That meant Williams' testimony could not be true.

But, Lefkow wrote, when defense lawyers confronted Williams with the fact that Wilbourn was actually in jail when Williams said he witnessed the conspiracy, one of the prosecutors -- Lefkow does not identify whom -- objected and said, "That's not true." Williams never conceded on the witness stand that he was lying or that he was mistaken, according to Lefkow....

Prosecutors argued that they did not knowingly use perjured testimony. But Lefkow wrote that she could not accept prosecutors' "glib assertion" that Williams was only mistaken in his testimony. What's more, she said it was "beside the point" whether Williams was lying or mistaken. "It is well established that the prosecution may not use testimony that it knows to be false," Lefkow said. And, she wrote, the government had ample reason to know that Wilbourn had been locked up when Williams said Wilbourn was free.

Thanks to this post at the WSJ Law Blog, everyone can read the full opinion from Judge Lefkow at this link.  I am already looking forward to what the new Snitching Blog will have to say about this case.

Interesting information about LWOP instructions in capital cases

Thanks to this new item at the Death Penalty Information Center, everyone can check out how "states apply a variety of conditions and use differing instructions to inform" a capital jury about life without parole as a sentencing alternative.  Here is the full posting from DPIC:

New Resources: State Instructions for Juries Regarding Life Without Parole Sentences in Capital Cases

In all states that use the death penalty, there are provisions for sentencing inmates to the alternative sentence of life without parole (LWOP).  Prior to the U.S. Supreme Court's ruling in Simmons v. South Carolina (1994), some states with LWOP did not inform the jury of this alternative even when so requested by the defense.  Today, states apply a variety of conditions and use differing instructions to inform the jury about this alternative sentence.  Opinion polls and surveys of capital jurors have shown how important this alternative is in death penalty cases. Thanks to the research of Emma Reynolds of Drexel Law School and Intern at the Philadelphia Federal Defender, Capital Habeas Unit, we are able to offer a summary of how states handle this key issue.  Her paper, "Survey of Life Without Parole Instructions in Death Penalty States," provides the relevant statute and information about jury instructions in each death penalty state. As with any legal research, it would be important to research any changes in the law before using this information (e.g., New Mexico has now abolished the death penalty and replaced the sentence with LWOP).

"Why March to a Uniform Beat?: Adding Honesty and Proportionality to the Individualized Tunes of Federal Sentencing "

The title of this post is the title of this interesting-looking new piece on SSRN from Jelani Jefferson Exum. Here is the abstract:

The Federal Sentencing Guidelines were initially created to increase uniformity in sentencing by diminishing the influence of individual judges’ biases in the sentencing determination.  However, now that the Guidelines have been rendered advisory by the Supreme Court in United States v. Booker, and circuit courts have been directed to review sentences for “unreasonableness”, most of the Supreme Court’s attention has been focused on ensuring the preservation of uniformity, rather than recognizing the continued importance of bias reduction.  The assumption, it seems, is that once uniformity in sentencing is achieved then the potential of judicial bias has been erased. However, judicial bias in sentencing is not necessarily eradicated by the uniformity promised by sentencing guidelines, and this possibility of bias in sentencing also has implications for the honesty and appropriate proportionality that Congress has called for to inform sentencing decisions.  However, the Supreme Court has ignored these additional purposes of sentencing. Recently, in United States v. Gall, the Supreme Court explained that in order for a sentence to be procedurally reasonable, district courts must first calculate and consider the proper Guidelines range, consider the §3553(a) sentencing factors, and adequately explain the chosen sentence. However, out of those three requirements for procedural reasonableness, only the requirement that district courts begin the sentencing process by calculating the applicable Guidelines range — the factor that the Court considers to be the most closely related to ensuring uniformity — has been given any force.  The requirements to consider the §3553(a) factors and adequately explain the sentence have fallen by the wayside as vague concepts, though these are the requirements that can most effectively ensure the reduction of impermissible bias in sentencing by allowing for a check on both honesty and proportionality.  This Article reveals the Supreme Court’s error in requiring that district courts begin their sentencing determinations by calculating and considering the applicable Sentencing Guidelines range in order for the sentence to be procedurally reasonable.  Not only is this requirement based on a misreading of the sentencing statutes, but it also cuts against the sentencing principles set forth by Congress as well as the traditional concern with individualized sentencing that has always been at the heart of sentencing jurisprudence and that are reflected in both the honesty and proportionality goals.

This Article provides an in-depth look at the Guidelines themselves in order to make the argument that the Supreme Court’s approach to sentencing post-Booker is misguided.  The Supreme Court’s framework for an advisory Guidelines scheme allows the biases that are already buried in the Guidelines themselves to continue to act as the prevailing factors in sentencing.  These biases, whatever the source, counteract Congress’ three-fold purpose in promulgating the Sentencing Guidelines in the first place — honesty, uniformity, and proportionality.  Even the recent Supreme Court decision, Kimbrough v. United States, acknowledged that the Guidelines can sometimes create unwarranted disparities and lead to sentences that are unduly harsh.  The new, advisory Guidelines system provides the opportunity for the Court to require that sentences be based on §3553(a) factors, in order to create uniformity in sentencing purposes rather than just in sentencing results, and to require real explanations to justify those sentences.  Therefore, this Article proposes that the Supreme Court do away with the procedural requirement that district courts begin the sentencing process by calculating the Guidelines range in order to remove the possibility of using the Guidelines as a shield behind which to hide bias in the name of uniformity. As this Article asserts, not only is this outcome statutorily mandated, but it serves Congress’ own articulated sentencing principles and is consistent with notions of sentencing fairness that is reflected in the concept of individualized sentencing.

What should be the US Sentencing Commission's priorities these days?

Remarkably, we are rapidly approaching the five-year anniversary of the Supreme Court's decision to make the federal sentencing guidelines advisory in Booker. Much can be said about what Booker has changed, but what Booker clearly has not changed in the central importance of the work of the US Sentencing Commission to the operation and outcomes of the federal sentencing system.

As detailed in this official notice, this coming Monday afternoon the USSC has a public meeting scheduled at which it will be formally setting its priorities for the 2009-2010 amendment cycle. As noted in this post from June, the USSC set out here a very ambitious set of proposed priorities for this amendment cycle.  Though I am very pleased that the USSC has in mind a robust agenda, I wonder and worry if it risks bitting off more than it can effectively chew, especially since it is still awaiting the Senate confirmation of the new chair and new commissioner nominated by President Obama.

With this background, dear readers, I pose for a Friday afternoon discussion in the comments the basic question that titles this post: What should be the US Sentencing Commission's priorities these days?

The next chapter in the Troy Davis story begins

The Atlanta Journal-Constitution has this story, headlined "Troy Davis case treads new legal ground," which details how the Troy Davis case will be proceeding in the district court after it was transfered there by the Supreme Court:

A federal judge in Savannah has directed parties in the Troy Davis death-penalty case to give him their positions as to whether a “free-standing actual innocence claim” is recognized by the U.S. Constitution. In a three-page order issued late Wednesday, Chief U.S. District Judge William T. Moore Jr. said he is following instructions from the nation’s highest court....

Moore, who was assigned the case, ordered state attorneys to submit their legal briefs to him in 45 days. He gave Davis’ lawyers another 45 days to respond. This would mean Davis’ evidentiary hearing would not be convened until November at the earliest.

Moore noted that the U.S. Supreme Court has never determined that an innocence claim such as the one raised by Davis is recognized by the Constitution. The high court also has not determined the burden of proof to be allowed in such a case, Moore said, asking the parties to give him their positions on both issues.

Related Davis ruling posts:

• SCOTUS orders innocence hearing in Troy Davis case
• How many justices decided death and innocence (and original habeas) are different in Davis?
• "Supreme Court's Davis Ruling Raises New Death-Penalty Questions" 

Latest news on sentencing and prison reform in California

Anyone closely following the saga of proposed sentencing and prison reforms in California will want to be sure to check out these two new press reports:

• From the Contra Costa Times here, "Assembly to push milder prison reform plan"

• From the Los Angeles Times here, "Rights groups urge Atty. Gen. Jerry Brown to comply with prison reduction order"

Seventh Circuit enforces requirement that district judges address non-frivolous sentencing arguments

The Seventh Circuit today issued an important little opinion on post-Booker procedural requirements in US v. Villegas-Miranda, No. 08-2308 (7th Cir. Aug. 27, 2009) (available here). Here is a key passage from the ruling (with internal cites and quotes left out):

Even if the sentencing court stated convincing reasons for the sentence it imposed, we cannot find its silence in response to a defendant’s principal argument to be harmless error because we can never be sure of what effect it had, or could have had, on the court’s decision.  Given that there is no dispute that Villegas-Miranda’s concurrent sentences” argument was one of his two principal arguments, if it was not so weak as to not merit discussion, the sentencing court was required to respond to it.  Although the district court listened at length to Villegas-Miranda’s “concurrent sentences” argument, we cannot take on faith that it adequately considered the argument where it passed it over in silence.

This case reinforces my sense that the Seventh Circuit has been distinctly rigorous in enforcing the requirement that district courts expressly address any and all non-frivolous defense arguments for below-guideline sentences.  I am pleased to see the Seventh Circuit being tough on this requirement  — which I view as one of the most important aspects of the Supreme Court's Rita ruling — especially given my sense that lots of other circuits tend to take a "good enough for government work" approach to this issue.

Some related posts:

• "Explaining Sentences"
• Stressing the importance of sentencing explanations by district courts

• Notable new article on "Appellate Review of Sentence Explanations"

What should we take away from the latest private prison scandal?

The New York Times reported yesterday on the latest private prison scandal in this piece headlined "Hawaii to Remove Inmates Over Abuse Charges."  Here are some of the details:

Hawaii prison officials said Tuesday that all of the state’s 168 female inmates at a privately run Kentucky prison will be removed by the end of September because of charges of sexual abuse by guards. Forty inmates were returned to Hawaii on Aug. 17....

Otter Creek is run by the Corrections Corporation of America and is one of a spate of private, for-profit prisons, mainly in the South, that have been the focus of investigations over issues like abusive conditions and wrongful deaths. Because Eastern Kentucky is one of the poorest rural regions in the country, the prison was welcomed by local residents desperate for jobs.

Hawaii sent inmates to Kentucky to save money. Housing an inmate at the Women’s Community Correctional Center in Kailua, Hawaii, costs $86 a day, compared with $58.46 a day at the Kentucky prison, not including air travel. 

Hawaii investigators found that at least five corrections officials at the prison, including a chaplain, had been charged with having sex with inmates in the last three years, and four were convicted....

The private prison industry has generated extensive controversy, with critics arguing that incarceration should not be contracted to for-profit companies.  Several reports have found contract violations at private prisons, safety and security concerns, questionable cost savings and higher rates of inmate recidivism.  “Privately operated prisons appear to have systemic problems in maintaining secure facilities,” a 2001 study by the Federal Bureau of Prisons concluded.

Those views are shared by Alex Friedmann, associate editor of Prison Legal News, a nonprofit group based in Seattle that has a monthly magazine and does litigation on behalf of inmates’ rights. “Private prisons such as Otter Creek raise serious concerns about transparency and public accountability, and there have been incidents of sexual misconduct at that facility for many years,” Mr. Friedmann said.

But proponents say privately run prisons provide needed beds at lower cost.  About 8 percent of state and federal inmates are held in such prisons, according to the Justice Department. “We are reviewing every allegation, regardless of the disposition,” said Lisa Lamb, a spokeswoman for the Kentucky Department of Corrections, which she said was investigating 23 accusations of sexual assault at Otter Creek going back to 2006....

In July, Gov. Linda Lingle of Hawaii, a Republican, said that bringing prisoners home would cost hundreds of millions of dollars that the state did not have, but that she was willing to do so because of the security concerns. Prison overcrowding led to federal oversight in Hawaii from 1985 to 1999. The state now houses one-third of its prison population in mainland facilities.

The pay at the Otter Creek prison is low, even by local standards. A federal prison in Kentucky pays workers with no experience at least $18 an hour, nearby state-run prisons pay $11.22 and Otter Creek pays $8.25. Mr. Friedmann said lower wages at private prisons lead to higher employee turnover and less experienced staff.

Obviously, this piece reveals yet another piece of the broader stories surrounding the modern prison economy in lean budget times.  But it also raises distinct questions about the potential virtues and vices of private prison facilities that now hold around 200,000 prisoners all around the United States.  Given the size and scope of this industry, I am disappointed (though not really surprised) that we do not hear more debates and see more research on the entire private prison approach to corrections.

Notable Second Circuit ruling on problems with long-delayed sentencing

The Second Circuit has an intriguing little sentencing ruling today in US v. Ray, No. 08-2795 (2d Cir. Aug. 27, 2009) (available here). Here is how the opinion's official abstract explains the issues covered:

Appeal from a judgment of the United States District Court for the Eastern District of New York (Thomas C. Platt, Judge), sentencing defendant, after a fifteen-year delay, to a one-day term of imprisonment and three years of supervised release with a special condition that she serve six months in a halfway house.  Defendant challenges her conviction and sentence on the grounds that she was deprived of her right to a speedy sentencing under the Speedy Trial Clause of the Sixth Amendment and the Due Process Clause of the Fifth Amendment.  Alternatively, defendant seeks a remand for resentencing because, in her view, the sentence serves no rehabilitative purpose and is, consequently, unreasonable. We reject defendant’s Sixth Amendment challenge because sentencing and trial are separate and distinct phases of criminal proceedings, and the Speedy Trial Clause applies to trials only, not to sentencing proceedings.  We do, however, see merit in her Fifth Amendment challenge.  The fifteen-year delay in the imposition of sentence on defendant is not justified by any legitimate reason and has caused her prejudice insofar as the custodial portion of it threatens to undermine her successful rehabilitation.  We therefore vacate the portion of her sentence requiring a six-month residence in a halfway house in order to remedy the prejudice caused by the violation of her rights under the Due Process Clause. We do not reach her “unreasonableness” challenge to the sentence.

Affirmed in part, and vacated with respect to the special requirement that defendant reside for six months in a halfway house.

Will (local?) killer in Vermont challenge his federal capital prosecution?

I blog here yesterday about the decision by the Justice Department will to pursue federal death penalty charges against Michael Jacques, a Vermont sex offender accused of an awful rape/murder crime.  This updated local story about the case provides some useful additional information and commentary about the interesting federalism issues that the case raises:

Vermont does not have the death penalty, but Jacques is being charged under federal law because he allegedly used the Internet to both plan for and cover up the crime, according to police.  Because of that, the crime is considered to have crossed state borders, opening it up for federal prosecution.

This would be the third death penalty case in Vermont since the late 1990s.  A 1998 case involving a fatal bombing in Fair Haven had a death sentence attached, but the defendant later pleaded down for a life sentence in prison.  In 2005, Donald Fell was sentenced to death for the 2000 carjacking murder of a North Clarendon woman, who was kidnapped by Fell in Rutland and later killed in New York State. He now sits on death row.

Cheryl Hanna, a professor at the Vermont Law School, said the announcement was interesting because it is the first from the new Obama administration on the use of the death penalty in states that do not have one. "I suspect that we will see some kind of outcry from death penalty opponents over this decision, as we did with the Fell case," she said.

Hanna said it may well be that Jacques' defense questions the constitutionality of the law allowing the federal government to prosecute.  In the Fell case, the crime clearly crossed state borders, but here, Hanna explained, prosecutors are relying on a new law allowing them to step in because the crime allegedly involves the Internet.  "I would not be surprised if the defense questions the law itself here," she said.

This case is already starting to sound like fodder for a law school exam question: Is using the internet while planning a local crime sufficient to provide federal jurisdiction to prosecute that local crime?  Should it be?

Some related (and mostly dated) posts:

• Feds decide to seek death in local(?) killing in state without the death penalty
• "Death penalty decisions loom for Barack Obama"
• More support for an exclusively federal death penalty
• A poster child for the (federal) death penalty?
• The federal law gap in the NJ death penalty report
• The federal death penalty in America's paradise
• Ashcroft's death penalty "legacy"
• Expansion of the federal death penalty?