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January 3, 2009

What might 2009 have in store for . . . sex offender law and policy?

Continuing the 2009 "what's in store" series, let's turn to sex offender law and policy.  To begin, it bears recalling how dynamic this area was throughout 2008. 

Last year began with the Supreme Court taking up the Kennedy child rape case, although its Court's ruling was a lot more about the death penalty than about sex offending.  Last year ended with the Ninth Circuit finding in Gonzalesthat a Californians 28-year sentence for a sex offender's failure to re-register his address was excessive under the Eighth Amendment.  In between, we saw: various states struggle with and sometimes resist the mandates of the federal Adam Walsh act; various federal district courts struggle with how to deal with harsh child porn sentencing guidelines; various other lower courts strike down as unconstitutional various extreme sentences and restrictions placed on sex offenders; various efforts to use technocorrections to track and regulate sex offenders.

As for 2009, I am expecting a lot more of the same, with both state governments and federal authorities and lower court judges in all jurisdictions struggling to balance competing concerns of public safety and fairness and the inevitable political and public hysteria about the most vilified type offender.  For anyone trying to keep track of what's going on state-by-state, the Vera Institute of Justice recently published these two essential documents for policy-makers: The Pursuit of Safety: Sex Offender Policy in the United States (available here) and Treatment and Reentry Practices for Sex Offenders: An Overview of States (available here).  In addition, academics should remember that the latest issue of the Ohio State Journal of Criminal Law includes a symposium on sex offender law and policy.

Other posts so far in the 2009 "what's in store" series:

January 3, 2009 in Sex Offender Sentencing | Permalink | Comments (16) | TrackBack

January 2, 2009

How might Toussie clarify the status of his "revoked" pardon?

The Daily News is reporting here that the White House is saying that President Bush won't act further in the case of Isaac Robert Toussie, the real estate developer to whom President Bush last week first granted a pardon, and then sought to take it back.  Here are details from the piece:

President Bush's embarrassing pardon of Isaac Toussie won't be reinstated before he leaves office this month, the White House confirmed Friday.  After granting — and then reversing in a historic first by a President — the Brooklyn real estate scammer's pardon for a 2003 fraud conviction, Bush plans to leave the matter to his successor...

Bush spokesman Tony Fratto told the Daily News, "The President will not consider the Toussie pardon unless and until it has been reviewed by the Office of the Pardon Attorney" at the Justice Department.  A Justice spokeswoman said this week that U.S. Pardon Attorney Ronald Rodgers — who rejected Toussie's pardon petition last August because it wasn't up to snuff — won't even look at it until May, four months after Barack Obama is sworn in as President.

Reacting to this new PS Ruckman in this post speculates here that President "Obama might turn the Toussie pardon into a PR opportunity extraordinaire [by making the case a] springboard to a new day of pardon reform."  I doubt President Obama will want to come near this case , except perhaps to encourage Toussie's lawyer (who happen to be a former law school classmate) to consider litigating the status of his revoked pardon.

A few informed people have told me that a solid legal argument can be made that the pardon "vested," and thus could not be revoked, once the public announcement was made.  I suspect Toussie could have standing to seek a declaratory judgment that his pardon is still effective despite President Bush's effort to take it back.  If such a suit was brought after President Bush and his legal team leaves the White House in a few weeks, it is unclear exactly who would be eager to argue that the revocation was valid.

Some recent related posts:

January 2, 2009 in Clemency and Pardons | Permalink | Comments (1) | TrackBack

In praise of How Appealing (and a call for more criminal justice blogs in 2009)

I suspect that all fans of the legal blogosphere already know that they must make regular stops at How Appealing to keep up with all the legal news that's worth following.  But Howard Bashman's most recent two posts, both which hit on sentencing topics I likely cannot give their due, reminds me of how essentially he remains to my ability to keep up with the sentencing news of note.  Here are the two posts, with titles drawn from notable major newspaper headlines:

In addition to wanting to again praise Howard for all he does to make my life easier, I also wanted to use this post as an opportunity to encourage any and every sentencing fans and/or potential bloggers to consider starting a new criminal justice blog in 2009. 

Though blogging my now seem old hat, the fact remains that many smaller criminal justice issues would be well-served by a focused blog.  Recent entrants to this part of the blogosphere — sites like Pardon Power and Sex Crimes — have been so valuable and successful not only because of the insights and energies of their authors, but also because there are so many criminal justice topics that can and should be covered by smart folks from so many different perspectives.

January 2, 2009 in On blogging | Permalink | Comments (2) | TrackBack

What might 2009 have in store for . . . Second Amendment jurisprudence?

Due to the Supreme Court's remarkable work in Heller (and all of the pre- and post-ruling buzz), one could call 2008 the most eventful year for the Second Amendment since its ratification.  Yet, as regular readers know, I fear that, even with the bold work by the Justices in Heller, the story of the modern Second Amendment now still remains a tale full of sound and fury, signifying nothing.  Indeed, because the post-Heller jurisprudential landscape will begin to take shape over the next few months, I consider 2009 a make-or-break year for the Second Amendment.

Intriguingly, the Supreme Court has a Second Amendment sleeper case in Hayes, which concerns a federal prohibition on gun possession by those convicted of a misdemeanor crime of domestic violence.  Though the oral argument in Hayes did not mention the Second Amendment, I am hopeful that the Court's opinion will at least make note of Heller.  Similarly, though lower courts are now relying heavily on Heller dicta to reject Second Amendment claims, I am hopeful that at least a few lower court judges will soon have the courage to seriously work through the implications of the constitutional principles stressed in Heller.

Meanwhile, the Second Amendment may have gotten an unexpected shot in the arm as a result of Plaxico Burress unexpectedly shooting himself in the leg.  Few people — save perhaps NYC Mayor Bloomberg and those who like to root against the New York Giants — seem eager to demand that Plaxico serve a mandatory 3½ years in prison just for carrying a gun in NYC for self-protection.  Plax's lawyers may come to see (perhaps with the help of the NRA and other gun rights activists) that the strongest legal argument for avoiding this mandatory prison term may be rooted in the Second Amendment.

Some recent related Second Amendment posts:

January 2, 2009 in Second Amendment issues | Permalink | Comments (5) | TrackBack

What might 2009 have in store for . . . punishment theory and incarceration rates?

I have combined theory and outcomes in this installment of the 2009 "what's in store" series primarily because new theoretical approaches to punishment and sentencing may be essential to changing modern incarceration rates.  Notably, this recent New York Times editorial, headlined "Sen. Webb’s Call for Prison Reform," documents that at least one prominent newspaper and one prominent politician are eager for action in 2009: 

This country puts too many people behind bars for too long. Most elected officials, afraid of being tarred as soft on crime, ignore these problems.  Sen. Jim Webb, a Democrat of Virginia, is now courageously stepping into the void, calling for a national commission to re-assess criminal justice policy.  Other members of Congress should show the same courage and rally to the cause....

In his two years in the Senate, Mr. Webb has held hearings on the cost of mass incarceration and on the criminal justice system’s response to the problems of illegal drugs. He also has called attention to the challenges of prisoner re-entry and of the need to provide released inmates, who have paid their debts to society, more help getting jobs and resuming productive lives.

Mr. Webb says he intends to introduce legislation to create a national commission to investigate these issues.  With Barack Obama in the White House, and strong Democratic majorities in Congress, the political climate should be more favorable than it has been in years.  And the economic downturn should make both federal and state lawmakers receptive to the idea of reforming a prison system that is as wasteful as it is inhumane.

Usefully, many informed state officials are also speaking up in this arena.  For example, Missouri Supreme Court Judge Michael Wolff and Oregon Chief Justice Paul DeMuniz recently sent this notable letter to the Obama transition team regarding sentencing theories and practices.  Here excerpts from an important letter that should be read in full:

We write to urge major change in state and federal sentencing practices. The United States has become the world leader in incarceration, ironically imprisoning a higher percentage of its citizens than any other country while hoping to regain respect as leader of the free world.  Minorities make up a disproportionately large share of our prison populations.  Minorities also account for a disproportionately large share of the victimizations our archaic sentencing approaches fail to prevent.  Disparity in sentencing extends far beyond cocaine sentences....

Evidence-based practices hold much promise for improving sentencing, but they have failed to influence sentencing culture outside the “treatment” courts.... State and federal sentencing guidelines were designed to reduce disparities, to provide some measure of “truth in sentencing,” and to slow prison growth.  But guidelines have failed to end disparity or prison growth.  Though they may achieve “truth in sentencing” by bringing time actually served within reach of the sentence imposed, they utterly conceal the truth that federal and most state guidelines have nothing whatever to do with public safety, and result in misallocation of prison resources as measured by public safety outcomes.  The failure of guidelines to serve public safety has fueled pressure for more prisons.

Notable signs of hope include efforts in Missouri, Wisconsin, Oregon and Virginia to infuse risk and need assessment into sentencing. Virginia, by legislative directive, used risk assessment to reduce inflow into its prison population by 25% with no increase in crime. Meaningful change requires that we insist upon data-driven sentencing throughout the spectrum of criminal behavior. We must use programs that demonstrably work on those they work on – without prison if the risk level permits, otherwise in custody and during reintegration and post-prison supervision.

Because crime was not a hot-button political issue in 2008 and because few states can now afford to sustain modern increases in incarceration rates, I am very hopeful that 2009 will be a turning-point year in this arena.  But I am also fearful that an array of political and practical forces will preserve many of the most troubling status-quo structures and processes that has helped make a nation conceived in liberty so reliant on locking so many people in cages.

Some related posts: 

January 2, 2009 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (10) | TrackBack

January 1, 2009

"New Sentencing Guidelines For Crack, New Challenges"

The title of this post is the title of this article in today's Washington Post. Here are a few snippets:

From March through the first week of December, federal judges in the Eastern District of Virginia and in Maryland granted more than 800 such requests and denied about 490. Judges in the District have granted more than 160 and denied nine. Lawyers said Virginia's federal courts have received a large number of applications filed by inmates representing themselves, and many are not eligible for reductions. In the District, the federal public defender is coordinating the effort....

In many cases, prosecutors didn't contest the reductions because the convicts were near the end of their sentences.  In others, prosecutors and defense attorneys agreed on reductions within the new guideline.  Thousands more cases remain, among them hundreds in Washington area federal courthouses. They have been more difficult to resolve, prosecutors and defense attorneys said....

Lawyers say some cases present such complex legal issues that they expect appeals. Certain cases are so difficult that, even when prosecutors agree that an offender is a candidate for a reduction, both sides disagree on how much.  Prosecutors say some convicts don't deserve much of a break because of bad conduct or criminal history.  And some offenders, they say, deserve no leniency at all.

Though not mentioned in this article, one of the challenges facing the courts concerns whether defendants who pled guilty under special terms when the old guidelines were applicable should get the benefit of the new guidelines.  This issue split a Fourth Circuit panel earlier this week in US v. Dews, No. 08-6458 (4th Cir. Dec. 30, 2008) (available here).  Stated precisely, the majority decided that two particular crack sentences imposed following a plea under Rule 11(e)(1)(C) were eligible for reduction under 18 U.S.C. § 3582(c)(2); the dissent claimed that sister circuits had held in other settings that sentences pursuant to 11(e)(1)(C) pleas could not be reduced.

January 1, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

What might 2009 have in store for . . . the death penalty in the US?

Though I lament that the death penalty gets so much attention from the courts, pundits and policy groups, I find fascinating that the politics and practicalities of the death penalty are so unpredictable.  Sure, we can be confident that Texas will lead the way in executions and that there will be one or more death sentences handed out in the average week.  But we can never be sure of the outcome of particular cases (e.g., in 2008, the Atlanta courthouse killer dodged a death sentence), nor can we confidently predict how critical "swing" jurisdictions like California and the feds will actually administer its capital punishment system.

In this late 2007 post, I asked for 2008 capital punishment predictions.  Commentors had a mixed record of success, and the various comments provide a reminder that, at this time last year, the Baze lethal injection de facto execution moratorium was in place, and the Supreme Court had not yet even taken up the Kennedy child rape case.  Singificantly (and, in my view, joyfully), the Supreme Court does not have any major capital cases on its docket right now, and I am not aware of any big cases in the pipeline.  After a very eventful 2008, the Supreme Court's impact on capital punishment in 2009 is unlikely to be consequential.

With the Supreme Court mostly mute, the practical story of the death penaltywill be shaped state-by-state  in 2009 by front-level participants and by lower court rulings.  The DPIC notes here that "23 executions [are already] scheduled for the first five months of 2009, and more dates are likely to be added; ... almost all the executions scheduled are in the south and about half (12 of 23) are in Texas."  I suspect 2009 will see more than the 37 executions of 2008, but I doubt we will approach the roughly 75 executions that had become the yearly average not too long ago.

Legislatively, Maryland in 2009 could become the second state (after New Jersey) to abolish its death penalty legislatively int he modern ear.  And tough financial times will likely continue the national trend away from this always costly and often inefficient ultimate punishment.  (StandDown Texas here has a nice review of some state-specific year-end capital coverage.)  Though I doubt any other states will formally abolish capital punishment, the de facto decline in death sentences sought and obtained by prosecutors ought to continue.

The highly unpredictable wild-card for the the death penalty in 2009 concerns federal dynamics and involvement.  As I explained in this post, IPresident Clinton's vocal support for the death penalty and President Bush's relative disengagement with these matters (despite his long-standing support for this punishment) may partially explains why there was an uptick in death sentences and executions through the 1990s and then a steady downward trend thereafter.  (Of course, the emergence of wrongful convictions as a salient political issue in capital punishment debates was also a big part of this story.)

As of this writing, I have little sense of President-elect Obama's concerns or commitments regarding the death penalty.  (This past summer, he made the politically shrewd decision to speak out against the Supreme Court's Kennedy decision prohibiting capital child rape prosecutions.  But I tend to attribute his statements to a desire to keep hot-button crime-and-punishment issues out of the 2008 campaign.)  Attorney Genereal nominee Eric Holder's current perspectives on the death penalty are also opaque.  Moreover, as demonstrated by this new story at Politico, which is headlined "Burris sought death for innocent man," one never can predict from where the next capital punishment story will emerge.

Some recent related posts:

UPDATE:  I see now that the Los Angeles Times has this new article about the death penalty in 2008, which includes this astute comments from the DPIC's Richard Deiter:  

The economic realities of cash-strapped state and local governments have undermined capital punishment where moral and legal arguments have failed, said Richard Dieter, a Catholic University law professor and director of the center. "I don't know that it will change public opinion, but the practical effects of the economy are just that -- if you're a politician and you have to cut something, do you want fewer police officers on the streets . . . or do you cut one death penalty and save a few million dollars?" Dieter said. "At a time when states are cutting back on teachers, police officers, healthcare, infrastructure and other vital services, citizens are increasingly concerned that the death penalty is not the best use of their limited resources."

January 1, 2009 in Death Penalty Reforms | Permalink | Comments (7) | TrackBack

What might 2009 have in store for . . . the federal judiciary and its criminal caseload?

Continuing the 2009 "what's in store" series, let's turn to the federal judiciary and its criminal docket.  This topic jumps to mind because the Chief Justice of the United States late yesterday released his "2008 Year-End Report on the Federal Judiciary," which can be accessed at this link.  The report details declines in some caseloads (and stresses a decline in judges' real wages), but it also documents increases in nearly every federal criminal justice statistic.  Here are some particulars:

Criminal appeals rose by 4% to 13,667 filings.  That increase stems from sentencing appeals in non-marijuana drug cases.  On November 1, 2007, the United States Sentencing Commission issued an amendment to its sentencing guidelines that reduced the penalties for most crack cocaine offenses and prompted numerous appeals.... Prisoner petitions rose by 9% to 16,853 filings....

The number of criminal cases filed in 2008 rose by 4% to 70,896 cases, and the number of defendants in those cases increased by 3% to 92,355 defendants.... Sex offense case filings grew by 9% to 2,674 cases, and the number of defendants in those cases climbed by 7% to 2,760 defendants.  The increase in sex offense filings stemmed from cases involving sexually explicit material and sex offender registration.  The number of drug cases dropped by 7% to 15,784 cases, and the number of defendants charged with drug crimes fell by 3% to 28,932 cases. Those reductions occurred when investigative agencies shifted their focus from drugs to terrorism and sex offenses....

In 2008, the number of persons under post-conviction supervision continued to increase, this year by 4% to 120,676 individuals.

As this terrific new US Sentencing Commission report documents, these numbers are stunning when considered from a historical perspective.  As recently as 1995, less than 40,000 defendants were sentenced in the federal system; the size of the federal criminal justice system has nearly doubled in just over a decade.  And yet, disappointingly, we almost never here prominent politicians or glib pundits who lament "too much government" complain about the massive modern growth of the federal criminal caseload.

Sadly, I do not expect a new Presidential administration in 2009 to reduce dramatically the criminal justice "footprint" of the federal government.  I do expect, however, to see some changes in the types of persons joining the federal judiciary and in the types of cases that become top priorities for federal prosecutors.  But the nature and impact of such changes will be slow, often subtle, and won't likely be very tangible until well after 2009. 

Some recent related posts:

January 1, 2009 in Who Sentences? | Permalink | Comments (3) | TrackBack

What might 2009 have in store for . . . executive clemency?

I will commemorate the new year with a long series of topic-specific posts asking "What might 2009 have in store for . . . ."  And, inspired by this new New York Times article, headlined "On Fast Track for Clemency, via Oval Office, I will start the series with a focus on executive clemency.  Here are excerpts from the Times article:

People with the wherewithal to do so have always tried to use special access to power to win clemency. And none of Mr. Bush’s decisions have been as controversial as President Bill Clinton’s last-minute pardon of the fugitive-financier Marc Rich.

But over the last few presidencies, the incentive to try to go around the normal process has increased, said P. S. Ruckman Jr., a political scientist who specializes in clemency. A huge backlog at the Justice Department’s pardon review office combined with the relatively small number of clemency grants by recent presidents, Professor Ruckman said, “encourages people to try to end-run the process — to try to cheat, for lack of a better word, to gain access to the White House directly.”

Although the Bush administration has repeatedly said clemency-seekers should go through the Justice Department review, a White House spokesman, Tony Fratto, said anyone was free to send a petition directly to the White House, which “at a minimum requires the cost of a stamp.” Mr. Fratto added that “it is immaterial to us who delivers a petition for a pardon” because the president makes such decisions “on the merits.”

But Professor Ruckman said that people without connections could not walk into the White House, and that under ordinary circumstances, any letter would be forwarded to the Justice Department, where about half a dozen lawyers had 2,172 pending cases as of Dec. 4....

Justice Department officials say clemency should be rare. They say the review process is fair, but Karen Orehowsky, a volunteer clemency consultant who advised Mr. Prior’s commutation team, said that ordinary people going through the department process have virtually no chance. “It takes a ‘Hail Mary’ from people who have a lot of connections and who are willing to put their neck out for people they care about, and it’s unfair to people who don’t have those connections,” Ms. Orehowsky said.

I vehemently dispute the suggestion that it is "cheating" to seeking an "end-run" around the Justice Department's dysfunctional (and constitutionally suspect) process in order to try to get the President's clemency attention.  Even were the DOJ process running well, putting prosecutors in charge of screening clemency applications seems contrary to both the theory and structure of the clemency process that the Framers put in US Constitution.  The Framers wanted the President to be "the decider" in this setting, and so the real "cheat" in my view is DOJ's creation of burdensome (and anti-clemency) screening process for requests.

Moreover, as this recent ABC News article effectively highlights, there is little reason to think the DOJ process is running well.  The article is headlined, "Is Pardon Reversal a Sign of a Broken System?: Critics Say Pardon System Needs 'Radical' Change After Reversal of the Isaac Toussie Pardon," and here is how it starts: 

Since President Bush granted and then unexpectedly revoked a controversial pardon last week, legal experts are furiously debating whether the process surrounding the president's constitutional power to pardon is broken, biased or both.... "There needs to be a radical restructuring and restaffing of the pardon process," said Margaret Love, who led the Office of the Pardon Attorney at the Justice Department from 1990 to 1997.

I hope 2009 might bring such a radical restructuring of the pardon process, but I am not holding my breath even in this season of change.  That said, the confirmation hearings for AG-nominee Eric Holder will keep these issues in the public and political dialogue through January.  And, if past is prologue, President Bush can be expected to add another layer to this story before he leaves the Oval Office.

Some recent (and not-so-recent) related posts:

January 1, 2009 in Clemency and Pardons | Permalink | Comments (7) | TrackBack

December 31, 2008

A year-ending post with a pre-party reminder of the harms of drinking and driving

Inspired in part by this news report from CNN, headlined "Barkley 'disappointed' after DUI arrest," I will conclude my postings for 2008 with a year-end reminder about the harms of the crime of drinking and driving.  As regular readers know, I am often amazed and annoyed that even repeat drunk driving offenses rarely lead to severe punishments — especially given the extreme sentences often imposed on other "risk-regulation" crimes like felon-in-possession gun laws or failure-to-register sex offender laws.  The reason I am annoyed is principally because drinking and driving results in more avoidable deaths and other harms than most other crimes combined. 

Let's start with deaths.  As detailed in this official NTHSA report, about 13,000 Americans are killed each and every year in alcohol-impaired driving crashes.  In other words, on average, more than 35 people die in alcohol-impaired driving crashes every single day.  And, as this press release highlights, these deaths increase during the winter holidays.

Though statistics concerning physical injuries and non-fatal crashes are harder to find, MADD reports here that perhaps as many as half a million people are injured each year in crashes where police reported that alcohol was present and that roughly "three in every ten Americans will be involved in an alcohol-related crash at some time in their lives."

For those who want to focus on economic costs, MADD also provides this sobering accounting: "Alcohol-related crashes in the United States cost the public an estimated $114.3 billion in 2000, including $51.1 billion in monetary costs and an estimated $63.2 billion in quality of life losses. People other than the drinking driver paid $71.6 billion of the alcohol-related crash bill, which is 63 percent of the total cost of these crashes."  Or consider this recent report of a single repeat drunk driver who cost the Wisconsin taxpayers $365,000.

The good news is that drunk driving deaths have declined over the last few decades and more and more persons view drinking and driving to be a serious crime.  Also, though I frequently call for harsher sentences from repeat drunk drivers, I fully recognize that tougher punishments is not the sole or even best solution.  Indeed, I hope that technocorrections provide a new means to deal with this serious crime, and I was pleased to see this press report indicating that Illinois is going to be requiring "breath-alcohol ignition-interlock device installed" in the cars of DWI first offenders.  (Notably, as reported here, Washington state is trying out ignition locks for those with suspended licenses.  I believe Alaska has a new law with ignition locks, too.)

In other words, let's all be safe out there tonight as we ring in the new year!

Some related posts:

December 31, 2008 in Offense Characteristics | Permalink | Comments (8) | TrackBack

End-of-year reasonableness review blow-out in some circuits

I noted here yesterday that the circuit courts have been clearing their sentencing dockets as 2008 winds to a close.  Of particular note for federal sentencing fans is the significant number of significant reasonableness review rulings in just the last few days. 

Specifically, I have seen published opinions upholding sentences against various viable challenges by defendants from the Seventh, Eighth and Tenth Circuits.  Though I have not yet identified any truly ground-breaking aspects of any of these new rulings, sentencing practitioners in these circuits ought to be sure to start 2009 by reviewing all the end-of-year reasonableness work by these courts.  And I would be grateful to anyone who helps identify any aspects of these various rulings that seem especially important.

December 31, 2008 in Offense Characteristics | Permalink | Comments (0) | TrackBack

Around the blogosphere

I am noticing lots of good end-of-year reading on lots of good criminal justice topics around the blogosphere.  Here is a sample:

And, of course, lots more stuff for clemency fans at Pardon Power.

December 31, 2008 | Permalink | Comments (6) | TrackBack

Should any and all sex offenders be barred from ever practicing law?

The New York Law Journal has this effective report on an interesting split decision from a New York state appellate panel in the lawyer discipline case of Matter of Lever.  The NYLJ article headline provides the basics of the story: "Attorney Caught in Internet Sex Sting Suspended From Practice for 3 Years: Rare split N.Y. appellate court suspends former Kirkland & Ellis associate who admitted attempting to meet purported 13-year-old for sex."  Here are a more details:

In a rare 3-2 decision in a disciplinary matter, a five-judge panel of the New York Appellate Division, 1st Department, agreed that Steven J. Lever "brought shame to himself and to this State's Bar" by using the Internet "to prey on minors for purposes of sexual gratification." They also agreed his conduct required "a significant sanction." However, finding a dearth of New York precedent on point, the judges could not agree on the appropriate punishment.

The three-judge majority, looking at similar cases from other states, cited the "substantial and credible mitigation evidence" in confirming a hearing panel's recommended three-year suspension. "From the beginning, respondent has admitted responsibility for his actions and has taken 'uncommon' efforts to rehabilitate himself," the majority wrote in its per curiam opinion, Matter of Lever, M-1412. "After his arrest, he voluntarily entered sex offender treatment and all evidence in the record supports the therapist's opinions that such therapy appears to be working and that the likelihood of respondent repeating the misconduct was 'low.'"...

In a vehement dissent, Justices David B. Saxe and James M. Catterson argued for disbarment. Catterson wrote for the two. "Because I believe that a convicted and registered sex offender has forfeited the privilege of admission to the bar and the elevated status of the officer of the court, I must respectfully take the unusual step in a disciplinary proceeding and dissent," Catterson wrote. "I believe that any penalty short of disbarment would not comport with the standards to which a member of the bar should adhere. I do not believe that we can reconcile the status of registered sex offender with that of a member of the bar in good standing."

UPDATE:  On this story, Scott at Simple Justice has this post asking "Just How Much Moral Turpitude is Too Much?"

December 31, 2008 in Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

December 30, 2008

Two great new data reports from the US Sentencing Commission

I am pleased to discover and report that the US Sentencing Commission has used the holiday season to produce two lovely new (and very reader-friendly) documents about federal sentencing realities.  First came last week's release of "Overview of Federal Criminal Cases, Fiscal Year 2007," which is actually a more exciting document than the title might suggest.  Here is how the USSC describes this report:

This publication provides a broad overview of federal sentencing data for fiscal year 2007. Readers will find this publication to be a brief, easy-to-use reference on the types of criminal cases handled by the federal courts and the punishments imposed on the offenders convicted in those cases. This publication will be available in hard copy format in the coming weeks.

And this week has now brought another report, "Changing Face of Federal Criminal Sentencing: Seventeen Years of Growth in the Federal Sentencing Caseload."  Though perhaps only a true sentencing geek like me finds even this title exciting, here is how the USSC whets our appetite for this notable new document:

This publication provides an overview of the demographic make-up of federal offenders sentenced under the federal sentencing guidelines for fiscal years 1991 through 2007, examines trends in the types of federal offenses sentenced, and analyzes the demographic characteristics of offenders sentenced for the most common federal offenses during this time period.

I now know at least one data nerd who can make special plans for a rocking federal sentencing new year's eve bash.  (Maybe I should drop all my USSC data runs from my roof at the stroke of midnight to celebrate all the great information the USSC has published in 2008.  It truly has been a banner year for federal sentencing data junkies.)

December 30, 2008 in Data on sentencing | Permalink | Comments (0) | TrackBack

Notable criminal justice echoes of the Madoff mess

The WSJ Law Blog reports hereon a notable Madoff mess echo that I had heard about from various persons working on criminal justice reform.  The post is titled "Madoff Scandal Threatens Country’s Criminal Justice Organizations," and here is the lead:

Earlier this month, the JEHT Foundation— a major financial supporter of the Innocence Project in Texas, among others — announced it would shut its doors in January because its prime donors invested with Madoff. JEHT, according to this Business Week article, is a six-year-old New York City-based philanthropy focused on juvenile and criminal justice, human rights, and election reform.

As detailed at this JEHT list of criminal justice grantees, many of the great organizations doing important sentencing-related work — like the Death Penalty Information Center and Families Against Mandatory Minimums and The Sentencing Project and the Vera Institute of Justice  — have received some funding from JEHT in recent years. 

UPDATE:  Speaking of Madoff and the criminal justice system, few federal sentencing fans will be surprised with the sentencing discussion in this Newsday article, headlined "If convicted, Bernard Madoff faces life in prison."  Here is how it starts:

Life in prison. That is the bleak prospect facing accused mega-Wall Street scammer Bernard Madoff, according to federal sentencing guidelines, if he is convicted of even a single charge of securities fraud in what is alleged to be the biggest Ponzi scheme in history.

With losses that may be running as high as $50 billion at Madoff's Manhattan-based securities business, the computation of his possible prison term in the event of a fraud conviction goes off the chart used by federal judges to compute sentences. If convicted, the only thing that could save Madoff, 70, from dying behind bars is if he were to cooperate with federal prosecutors and recover substantial sums of investor funds, legal experts said.

December 30, 2008 in Who Sentences? | Permalink | Comments (2) | TrackBack

Ninth Circuit finds 28-year "failure to register" sentence unconstitutional

The last few weeks have hardly been a slow period for notable sentencing decisions from the federal circuit courts.  And today brings some intriguing rulings on federal sentencing or quasi-sentencing issues from the Fifth, Sixth, Seventh, Eighth, Tenth and DC Circuit.  But the Ninth Circuit has the most significant ruling of this big batch of opinions ringing out this rocking 2008 sentencing year in the habeas case of Gonzales v. Duncan, No. 06-56523 (9th Cir. Dec. 30, 2008) (available here). The first two paragraphs of reveal why this ruling is so notable:

Cecilio Gonzalez was convicted by a jury of failing to update his annual sex offender registration within five working days of his birthday, in violation of California Penal Code § 290(a)(1)(D). Because of his prior criminal convictions, he received a sentence of 28 years to life imprisonment under California's “Three Strikes” law.  On habeas review, we must decide whether his sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment and, if so, whether the contrary conclusion of the California Court of Appeal constituted an unreasonable application of clearly established federal law.

The California courts have characterized the state’s registration requirement as a regulatory offense, a “most technical violation” that “by itself, pose[s] no danger to society.”  People v. Cluff, 105 Cal. Rptr. 2d 80, 81, 86 (Cal. Ct. App. 2001).  In a case materially indistinguishable from this one, the California Court of Appeal concluded that a Three Strikes sentence of 25 years to life imprisonment for violating the registration requirement was “grossly disproportionate to the offense” and violated the Eighth Amendment.  People v. Carmony, 26 Cal. Rptr. 3d 365, 368-69 (Cal. Ct. App. 2005). Although our standard of review is more deferential, we too conclude that Gonzalez’s sentence is grossly disproportionate to his offense. We further conclude that the California Court of Appeal’s decision affirming Gonzalez’s sentence constitutes an unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1). We therefore reverse the district court’s denial of Gonzalez’s petition and remand with instructions to grant the petition for a writ of habeas corpus.

The fact that a federal circuit court has found a non-capital prison sentence unconstitutionally excessive is big new in itself.  Indeed, I cannot recall a federal circuit ruling to this effect in all the years I have been blogging.  Add in the fact that this is a state habeas case involving a sex offender and California's Three Strikes law, and the story gets that much richer. 

Now lets also notice the fact that the (notoriously liberal?) Ninth Circuit in this case was represented by a panel with two republican appointees and only on (senior) democratic appointee, while the state of California was represented by the (notoriously liberal?) state AG Jerry Brown.  And the author of the opinion was Judge Bybee, who is considered among the most conservative of the circuit appointees of outgoing President George Bush. 

This is fascinating stuff, as is what might come next.  I sincerely hope that California might seek cert, because such a petition coming from the state has a much greater likelihood of garnering a grant than the many petitions coming from defendants who lose Eighth Amendment challenges to long prison sentences in the circuit courts.

UPDATE:  The Los Angeles Times has this report on the Gonzales ruling, which has this non-information about the possible future of the case: "The state attorney general's office declined to comment on the ruling or say whether it would be appealed, said Christine Gasparac, press secretary for Atty. Gen. Jerry Brown."

December 30, 2008 in Sentences Reconsidered | Permalink | Comments (26) | TrackBack

Effective reporting on the decline of death in North Carolina

This local article, headlined "In N.C., death penalty gets rarer," provides a very effective accounting of the slow and steady decline of the death penalty in North Carolina.  Here are highlights of an article that should be a must-read for everyone who seriously follows the administration of capital punishment:

North Carolina will finish this year with just one defendant sentenced to death, a record low since the penalty was reinstated 31 years ago. The single capital murder conviction this year continues a downward trend fueled by better criminal defense lawyers and new laws that exclude the mentally challenged and make prosecution evidence more accessible.

In North Carolina, more people on death row have been exonerated this year -- two -- than were sentenced to death. A de facto death penalty moratorium in North Carolina -- as the courts, state officials and the medical profession debate the ethics of lethal injections -- has prevented anyone from being executed for the past two years.

This year, 13 juries could have chosen death for defendants. Only one in Forsyth County did. Last month, a jury there gave the death sentence to James Ray Little III for shooting a cab driver to death two years ago in Winston-Salem. There will be no more capital murder trials before Wednesday, the end of the year....

The numbers suggest that juries are less likely to impose the ultimate punishment. In 1996, there were 60 capital trials resulting in 34 death sentences in North Carolina. The decline in death sentences is a national trend, but North Carolina's is among the most pronounced, according to the Death Penalty Information Center in Washington, D.C....

Tom Horner, president of the N.C. Conference of District Attorneys, said the de facto moratorium might be influencing prosecutors' decisions to seek life without parole instead of the death penalty. Capital murder cases are much more expensive and time consuming, he said, because defendants are entitled to additional services that include more expert witnesses and test juries. "It's just a tremendously different beast than just trying someone non-capitally," said Horner, the district attorney for Alleghany, Ashe, Wilkes and Yadkin counties.

Some recent related posts:

December 30, 2008 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Should the Delaware DOC consider the Monty Python "it's resting" defense?

DP sketch This local story from Delaware, headlined "Lawsuit begins with end of parrot: Inmates' rights questioned after man not allowed to make call," was just made for blogging. As detailed below, the story has a serious side (even though it also demands spending time watching this classic comedy video):

The death of Freddy the parrot could be debated in federal courts. It also could raise questions about the right of the accused to get "one phone call" after being arrested.

Thomas Goodrich charges in a lawsuit he filed this month that he never got that call, causing his expensive and beloved blue and gold macaw to starve to death.  Goodrich alleges he was held on a misdemeanor warrant in Young Correctional Institution for 12 days, unable to get word out to anyone to help him post bail or get food to his pet parrots....

The lawsuit names Department of Correction Commissioner Carl Danberg and former Young warden Raphael Williams as defendants and asks for $250,000 in punitive damages from each.... Beyond the question of the deceased pet -- and echoes of Monty Python's dead parrot sketch -- legal experts said Goodrich's lawsuit raises a serious issue about the rights of an accused to secure his or her freedom, most commonly through a phone call....

In the suit, Goodrich slams prison officials for lacking compassion and being "irresponsible" when such "animal cruelty was taking place." In addition to damages, Goodrich also asks the court to force the department to "adopt a facility 'Mission Statement' " to treat all inmates fairly and prevent a similar situation in future.

Martin Mersereau, with the People for the Ethical Treatment of Animals, said if true, the situation was "absolutely appalling" and "horrific." Mersereau, who handles cruelty cases for PETA, said the group regularly goes after people for such neglect and said that kind of abuse "is a jailable offense" and prison officials should be held accountable.

December 30, 2008 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

December 29, 2008

Real headaches or just hiccups on nominee Holder's path to AG?

The Boston Globe has this long pieceon coming Senate confirmation issues surrounding President-elect Obama's nominees.  The piece is headlined "Holder's hearing might be rocky: GOP could grill Cabinet nominee," and here is how it starts:

With Barack Obama anxious to take office, the public eager for fresh leadership, and the economy demanding urgent attention, the Senate is likely to defer to the president-elect and swiftly approve his Cabinet nominees, congressional aides and political analysts say.

But there will be one prominent exception: The confirmation hearing for Eric Holder, Obama's pick for attorney general, promises to be bruising, with Republicans determined to explore Holder's role in controversial pardons under President Clinton, his views on gun rights, and his involvement in the case of Elian Gonzalez, the 6-year-old Cuban boy returned to his homeland by Clinton's Justice Department.

"You're probably only going to have one truly horrendous confirmation; that's always the case," said Stephen Hess of the Brookings Institution, who served on the White House staffs of presidents Eisenhower and Nixon. "In this case, it is clearly the attorney general-designate, Eric Holder."

Meanwhile, yesterday the Hartford Courant had this long article full of new information about Eric Holder's role in some controversial commutations granted by President Clinton in 1999 that have always struck me as more troublesome than even the Marc Rich pardon.  This piece is headlined "Clinton-Era Sentence Reductions Could Trip Holder's Confirmation," and here is a section that really caught my eye:

[Q]uestions about Holder's appointment have been building over his role as a former deputy attorney general in a number of controversial Clinton-era legal decisions. High on the list are the dramatic sentence reductions he recommended in 1999 for members of two groups responsible for a years-long terror campaign aimed at Puerto Rican independence....

A total of 16 radical Independentistas, either Macheteros or members of the affiliated Armed Forces of National Liberation, ultimately won sentence reductions or remissions of fines — although none of them had applied personally for clemency.

Together, the groups are linked to 130 bombings, several murders and as many as a dozen robberies. When President Bill Clinton issued the clemency, the FBI said the two groups were the driving force behind the violent wing of the Puerto Rican independence movement and represented one of the nation's foremost domestic terror threats....

Senate staffers said the Puerto Rico clemency is expected to be the subject of considerable questioning. A senior Justice official, while generally supportive of Holder, called the lesser-known Puerto Rico commutations "far more egregious" because they involved terror and appear to have deviated widely from federal regulations and past practices in clemency matters.

Interviews and a review of congressional records show that Holder's recommendation for clemency was at odds with a report by the Office of the Pardon Attorney. The pardon attorney issued a second report to Holder about two years later that took no position on clemency. Critics say the second report violated rules requiring the pardons attorney to recommend either for or against clemency.

Despite all the reasons to expect an interesting show during his confirmation hearings, I still think the smart money has to be on Holder being easily confirmed as the next Attorney General.  But, one can never fully predict how these matter will play out, especially when there is reason to suspect that folks with scores to settle with either the Clintons or the President-elect might view the Holder hearings as the best opportunity to vent.

Some prior posts on the Obama transition, the Holder pick and federal criminal justice issues:

Election season 2008 posts about Clinton commutations to Puerto Rican terrorists:

December 29, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (2) | TrackBack

Senator Jim Webb continues his important campaign for serious sentencing and prison reforms

Regular readers know from prior posts that I am a huge fan of Senator Jim Webb's commitment to serious sentencing and prison reform.  As revealed by new this exciting article from today's Washington Post, headlined "Webb Sets His Sights On Prison Reform: Senator Proposes National Panel," my affinity for the good Senator remains well-justified.  Here are some details from the article:

This spring, Webb (D-Va.) plans to introduce legislation on a long-standing passion of his: reforming the U.S. prison system.  Jails teem with young black men who later struggle to rejoin society, he says. Drug addicts and the mentally ill take up cells that would be better used for violent criminals. And politicians have failed to address this costly problem for fear of being labeled "soft on crime."

It is a gamble for Webb, a fiery and cerebral Democrat from a staunchly law-and-order state. Virginia abolished parole in 1995, and it trails only Texas in the number of people it has executed. Moreover, as the country struggles with two wars overseas and an ailing economy, overflowing prisons are the last thing on many lawmakers' minds.

But Webb has never been one to rely on polls or political indicators to guide his way. He seems instead to charge ahead on projects that he has decided are worthy of his time, regardless of how they play -- or even whether they represent the priorities of the state he represents.

State Sen. Ken Cuccinelli II (R-Fairfax), who is running for attorney general, said the initiative sounds "out of line" with the desires of people in Virginia but not necessarily surprising for Webb. The senator, he said, "is more emotion than brain in terms of what leads his agenda."...

In speeches and in a book that devotes a chapter to prison issues, Webb describes a U.S. prison system that is deeply flawed in how it targets, punishes and releases those identified as criminals. With 2.3 million people behind bars, the United States has imprisoned a higher percentage of its population than any other nation, according to the Pew Center on the States and other groups. Although the United States has only 5 percent of the world's population, it has 25 percent of its prison population, Webb says.

A disproportionate number of those who are incarcerated are black, Webb notes. African Americans make up 13 percent of the population, but they comprise more than half of all prison inmates, compared with one-third two decades ago. Today, Webb says, a black man without a high school diploma has a 60 percent chance of going to prison.

Webb aims much of his criticism at enforcement efforts that he says too often target low-level drug offenders and parole violators, rather than those who perpetrate violence, such as gang members. He also blames policies that strip felons of citizenship rights and can hinder their chances of finding a job after release. He says he believes society can be made safer while making the system more humane and cost-effective.

That point of view has gained steam with members of both parties. Virginia Gov. Timothy M. Kaine (D) recently proposed earlier release for some prisoners convicted of nonviolent crimes as a cost-cutting measure.  But the movement is alarming to drug enforcement advocates. Tom Riley, spokesman for the Office of National Drug Policy Initiatives, said it has become an "urban myth" that the nation imprisons vast numbers of low-level drug offenders.

I have so many positive reactions to the news that Senator Webb remains eager to make a priority of sentencing and prison reform.  But I have so many negative reactions to how this Post article makes Senator Webb seem like an odd duck for having this priority.  For a nation supposedly committed to freedom and liberty, I think the odd ducks are those Americans not seriously concerned about the status of the US as the world's leader in incarceration.

Moreover, as regular readers of this blog know well, though too few federal lawmakers are concerned with overflowing prisons, due to an ailing economy and tight budgets nearly every state lawmaker is deeply concerned about how best to cut prison populations without hurting public safety.  I hope that Senator Webb's panel would start with a set of immediate action initiative to identify groups of prisoners who might be effectively released without a serious risk to public safety.

Some related posts about prison nation as a pressing problem: 

Some related posts Senator Webb's great work and the failings of other national politicians:

December 29, 2008 in Scope of Imprisonment | Permalink | Comments (6) | TrackBack