March 11, 2009
Names starting to emerge for early Obama circuit court nominees
This new article in the New York Times, headlined "Obama’s Court Nominees Are Focus of Speculation," starts naming some of the names that President Obama might name for federal circuit court positions. Here are excerpts from the article:
President Obama will soon begin naming a small stream of nominees to the federal appeals courts, administration officials said, a step that will provide the first signs of how much he intends to impose any ideological stamp on the nation’s judiciary.
White House lawyers have compiled lists of likely candidates for vacancies on several of the 12 regional appeals courts, notably those based in Richmond, Va., and New York....
To fill a seat that traditionally goes to someone from Maryland, officials said the White House was considering nominating Andre Davis, a District Court judge based in Baltimore.
There are several candidates for the Virginia seat, including Elizabeth Magill, a law professor at the University of Virginia and daughter of a former federal appeals court judge.
For the United States Court of Appeals for the Second Circuit, based in New York, officials said the White House had settled on elevating Judge Gerard E. Lynch, a Columbia law professor, from the District Court....
In a closed meeting on Capitol Hill two weeks ago, Mr. Craig told Democratic senators that the White House would rely on their recommendations to fill the district courts. But he said that while Mr. Obama would welcome their advice, he warned that filling the appeals courts was largely a presidential prerogative, participants said.
Judge Lynch has a terrific sentencing history (including authoring this great piece recently for OSJCL Amici), so sentencing fans should be excited about the prospect of his addition to the Second Circuit.
Some related old and new posts on judicial appointments:
- Why federal sentencing reformers must focus on the USSC and lower courts
- Judging, politics, sentencing and elections
March 10, 2009
Latest FSR issue, focused on sex offenders, now available on-line
I am pleased to report that the latest issue of the Federal Sentencing Reporter is available on-line. The issue is titled "Sex Offender: Recent Developments in Punishment and Management." Professor Michael O’Hear, the chief editor who assembled a great set of articles, authored an opening commentary, entitled "Perpetual Panic." This introductory essay can be downloaded at this link.
- Michael O’Hear, Perpetual Panic
- Mary Ann Farkas & Gale Miller, Sex Offender Treatment: Reconciling Criminal Justice Priorities and Therapeutic Goals
- Ian N. Friedman & Kristina W. Supler, Child Pornography Sentencing: The Road Here and the Road Ahead
- Eric S. Janus & Robert A. Prentky, Sexual Predator Laws: A Two-Decade Retrospective
- Mary Graw Leary, Kennedy v. Louisiana: A Chapter of Subtle Changes in the Supreme Court’s Book on the Death Penalty
- Joseph L. Lester, Brandishing the Mark of Cain: Defects in the Adam Walsh Act
- Michael Petrunik, Lisa Murphy, & J. Paul Fedoroff, American and Canadian Approaches to Sex Offenders: A Study of the Politics of Dangerousness
- Richard G. Wright, From Wetterling to Walsh: The Growth of Federalization in Sex Offender Policy
- Corey Rayburn Yung, The Sex Offender Registration and Notification Act and the Commerce Clause
Other recent FSR issues:
- FSR Issue 21.1: Thoughts for the U.S. Sentencing Commission
- FSR Issue 20.5: American Criminal Justice Policy in a "Change" Election
- FSRIssue 20.4: Debates and Realities Surrounding Crack Retroactivity
- FSR Issue 20.3: White-Collar Sentencing
- FSR Issue 20.2: Prisoner Reentry
Two more executions in two states not debating the death penalty
Though the fate of the death penalty continues to be debate in many states, tonight Texas and Georgia got on with the business of carrying out executions. Here are details from this AP report:
A man convicted of a double slaying was executed on Tuesday in Texas and another man was executed in Georgia for stabbing to death a neighbor who had spurned his sexual advances.
In Texas, James Edward Martinez, 34, was executed at the state prison in Huntsville on Tuesday for the 2000 fatal shootings of Sandra Walton, 29, whom he dated briefly, and Michael Humphreys, 19, a friend of the woman, outside her Fort Worth apartment complex....
In Georgia, Robert Newland, 65, was put to death by lethal injection at the state prison at Jackson. He was the first person executed in Georgia this year. Newland was convicted in 1987 and sentenced to death for the slaying of Carol Sanders Beatty, a 27-year-old former state and national amateur diving champion.
I wonder if those Justices who have recently expressed concern with long stays on death row (details here) are somewhat disappointed that Georgia needed nearly two decades to complete Newland's sentence, but then are somewhat gratified that Texas managed to carry out Martinez's death sentence less than a decade after his crime.
If Texas goes forward with another execution it has scheduled for Wednesday, there will have been a total of 20 executions in the US in 2009 before we have even reached the Ides of March. At this pace, the first year of the Obama Administration could have, ironically, more total executions in the United States than any of the years of George Bush's presidency.
Some recent related posts:
- States considering laying off the death penalty during tough economic times
- Death penalty abolition becoming more realistic in a few western states
- Interesting time for Time's discussion of death's demise
- What might 2009 have in store for . . . the death penalty in the US?
- Notable second-term Presidential execution realities
- DPIC releases year-end report on state of death penalty in 2008
Basic Madoff plea details emerging
As now reported by all the major media outlets, the specifics of the charges and expected plea in the financial frauds committed by Bernie Madoff are coming into focus. This Bloomberg story has many of the latest particulars:
Bernard Madoff, the New York money manager accused of leading the largest Ponzi scheme in U.S. history, will plead guilty later this week to 11 criminal charges, his lawyer told a federal judge.
Madoff, 70, will admit he directed a fraud that prosecutors alleged began in the 1980s. By last November, Madoff told 4,800 investors their accounts held $64.8 billion, according to court papers filed in Manhattan federal court. Prosecutors will seek forfeiture from Madoff of as much as $170 billion. Madoff, free on $10 million bail, faces 150 years in prison.
“There is no plea agreement,” Assistant U.S. Attorney Marc Litt said at hearing today before U.S. District Judge Denny Chin.... “The filing of these charges does not end the matter,” said Acting Manhattan U.S. Attorney Lev Dassin. “Our investigation is continuing.”...
“The charges reflect an extraordinary array of crimes committed by Bernard Madoff for over 20 years,” Dassin said in a statement. “The size and scope of Mr. Madoff’s fraud are unprecedented.”
Over at TalkLeft, Jeralyn in this post has an effective assessment of all the latest news. Here is her summary take-away:
My prediction: Madoff will go to jail Thursday, never to be released again. And, no matter how much money the government forfeits, not every victim will be made whole.
Effective NPR coverage of supermax prisons and solitary confinement
Thanks to this post at How Appealing, I discovered that National Public Radio has recently run a series of effective pieces on supermax prisons and solitary confinement. Here are the links as assembled there:
This past Sunday's broadcast of "All Things Considered" contained audio segments entitled "Ex-Prisoner Sues California Over Years In Solitary" and "Is The Use Of Maximum Security Prisons Abused?"
Running the federal sentencing guideline numbers for Bernie Madoff
The recent legal developments in the prosecution of Bernie Madoff (details here) have lots of folks buzzing about not just his expected guilty plea, but also his possible federal sentence. Helpfully, today's Boston Herald has this new article that, as this graphic shows, runs through the basic guideline calculations for Bernie Madoff based on what we all think we know about his big-time financial fraud. Here are excerpts from the article:
It’s the one “big score” that Bernard Madoff probably wishes he wasn’t about to make. Experts say Madoff, who’s expected to plead guilty Thursday to running a $50 billion Ponzi scheme, rates about 52 points on a scale federal judges use when setting sentences. The bad news for Madoff: Anything over 42 usually translates into life behind bars.
“This guy is going to jail for the rest of his life - the only question is whether he goes in now or goes in later,” Boston white-collar defense lawyer Tom Hoopes said.... Even if Madoff helps investigators unravel the case and go after any accomplices, Hoopes believes a judge won’t cut the man’s score by more than 25 percent. That would still leave 39 points, or enough for the 70-year-old Madoff to get at least 22 years behind bars....
Defense lawyer Willis Riccio thinks Madoff will get about 15 years, but “that’s a life sentence in the sense that Madoff might not live out his term.” However, alleged victim George Christin fears Madoff will serve as little as five years. “He probably set things up so the SEC can’t figure anything out without his input,” said the Bedford man, whose family lost $2.5 million. “Madoff will use that as leverage to get way less than life in prison.”
Besides, Christin, a 60-year-old special-education teacher who’s scrapped plans to retire at 65, doesn’t even see a life sentence as punishment enough. “There’s no way the scales will ever be balanced,” he said. “For justice to be done, they’d have to make that man live in the slums of Calcutta and eat garbage for the rest of his life.”
Some related Madoff posts:
- A victim's perspective on a possible plea deal for Bernie Madoff
- White-collar fraud meets technocorrections for Bernie Madoff
- "Madoff Mercy: How long should the Ponzi schemer go to prison for?"
- Notable criminal justice echoes of the Madoff mess
- "Death penalty for white-collar criminals?"
Notable stories of sex and death from the local papers
I just got around to reading these two local stories from the Sunday papers on the notable topics of "sexting" and the administration of the death penalty:
- From the Orlando Sentinel here, "'Sexting' teenagers face child-porn charges: 20% of teens have sent nude photos of themselves via cell phone or posted the images on a Web site."
- From the The (Louisiana) Advocate here, "Economics of Executions"
March 9, 2009
Litigation advice for white-collar sentencing after Kimbrough
A helpful reader passed along (and got me permission to post) an effective little article about federal sentencing that was recently published in the ABA's Criminal Litigation. The piece discusses the impact of Kimbrough, with an extra focus on white-collar sentencing issues. Here's an abstract for the article, which can be downloaded below:
The line of sentencing cases from Booker to Kimbrough might seem to trace the slow death of the U.S. Sentencing Commission. This Article argues, however, that the opposite is true. Rather than slowly killing the Commission, these cases have actually restored it to a new level of primacy, one more free from Congressional influence than ever before.
This turn of events has great practical importance. It means that today, the best way to achieve a below-guidelines sentence, may be to argue that the guideline at issue is not the product of the Commission's informed, expert judgment, but rather of Congress's meddling. This line-of-attack has already been used to obtain lower sentences for a broad range of offenses, from weapons possession to child pornography. And, as this Article outlines, it is primed for use against white-collar sentencing guidelines, which, at Congress's direction, have produced particularly harsh sentences over the past decade.
An SCOTUS exchange in a cert. denial concerning a long stay on death row
As detailed in this CNN report, a few Supreme Court Justices discussed the death penalty in little separate opinion response to the denial of cert in a Florida capital case. Here are the basics:
Two Supreme Court justices on opposite sides of the ideological aisle exchanged tough words Monday over the fate of a Florida murderer who has been on death row for 32 years.
The high court has refused to hear the appeal of William Thompson, who had plead guilty twice in the March 1976 kidnapping and torture-murder of a woman. His case and subsequent appeals have been litigated since, but a new execution date has not been set. A key part of his request to be spared lethal injection is that three decades as a capital inmate constitutes cruel and unusual punishment.
"Our experience during the past three decades has demonstrated that delays in state-sponsored killings are inescapable and that executing defendants after such is unacceptably cruel," said Justice John Paul Stevens, who disagreed with the court's decision to allow the execution to proceed. He was supported by Justice Stephen Breyer in his objection to the court's ruling on Monday in the case, Thompson v. McNeil (08-7369).
But Justice Clarence Thomas took issue with his colleagues' conclusions. "It is the crime and not the punishment imposed by the jury or the delay in execution that was 'unacceptably cruel,'" he responded. Thomas took time in his concurrence to detail the graphic crime that led to the conviction of Thompson and his co-defendant.
Justice Stevens' statement in Thompson is available at this link; Justice Breyer's dissent from the denial of cert. in Thompson is available at this link; Justice Thomas' concurrence in support of the denial of cert. in Thompson is available at this link.
The lack of originalist justification for excluding felons from the Second Amendment
I just saw on SSRN this notable article by Carlton Larson about the Supreme Court's work in Heller, titled "Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit." Here is the abstract:
This Symposium Essay examines the Supreme Court's Second Amendment decision in District of Columbia v. Heller. Specifically, the Essay examines four exceptions to the right to bear arms that the Court specifically approved: laws disarming felons; laws disarming the mentally ill; laws prohibiting the possession of firearms in sensitive places; and laws regulating the commercial sale of firearms. The Essay argues that these exceptions cannot be completely justified on originalist grounds, at least under the form of originalism that the Court is likely to employ. The Essay further argues that the exceptions cannot be justified if strict scrutiny is the applicable standard of scrutiny. Accordingly, some lesser standard of review of firearms regulation must apply.
This little essay confirms my own suppositions about the absence of sound and compelling originalist justification for categorically precluding all felons (not to mention some misdemeanants) from the protections of the Second Amendment. Consider these passages from the piece:
[S]o far as I can determine, no colonial or state law in eighteenth-century America formally restricted the ability of felons to own firearms....
The absence of an explicit felon exception in the text of the Second Amendment is echoed in state constitutional provisions. Only one state constitutional provision addressing the right to bear arms contains an exception for felons. This provision, Idaho’s, was enacted in 1978....
In sum, felon disarmament laws significantly post-date both the Second Amendment and the Fourteenth Amendment. An originalist argument that sought to identify 1791 or 1868 analogues to felon disarmament laws would be quite difficult to make.
Some related Second Amendment posts:
- Justice Scalia sells out felon gun rights, but on what basis exactly?
- Former SG Ted Olson suggests Heller could impact broad prohibitions on felon gun rights
- SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
- Even the Chief and Justice Scalia are content to damn gun possession with faint praise
- Deafening silence from the gun rights crowd about Hayes
- Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
- What if no lower court judges participate in a "Second Amendment Revolution"
- Has there been a single pro-gun-rights rulings in lower courts since Heller?
- Still more proof that federal courts have no real interest in gun rights
- District Court rejects Second Amendment claim from misdemeanant
- Another (too?) brief opinion rejecting misdemeanant's Second Amendment claim
- Starting to make the Second Amendment case for Plaxico Buress
- "The New Second Amendment: A Bark Worse Than Its Right"
- Is anyone (other than me) discussing the apparent insignificance of Heller?
- What might 2009 have in store for . . . Second Amendment jurisprudence?
More calls for an end to the drug war and legalization of marijuana
The number of voices calling for and end to the drug war and/or the legalization of marijuana continues to grow. For example, this cover story in The Economist this week is titled "Failed states and failed policies; How to stop the drug wars: Prohibition has failed; legalisation is the least bad solution." Here is a snippet:
Next week ministers from around the world gather in Vienna to set international drug policy for the next decade. Like first-world-war generals, many will claim that all that is needed is more of the same. In fact the war on drugs has been a disaster, creating failed states in the developing world even as addiction has flourished in the rich world. By any sensible measure, this 100-year struggle has been illiberal, murderous and pointless. That is why The Economist continues to believe that the least bad policy is to legalise drugs.
“Least bad” does not mean good. Legalisation, though clearly better for producer countries, would bring (different) risks to consumer countries. As we outline below, many vulnerable drug-takers would suffer. But in our view, more would gain.
Similarly, consider this local op-ed out of California, titled "California can lead the Nation out of this Depression by legalizing Marijuana." Here are excerpts:
Californians, and the other states that allow medical marijuana, have received some good news. Assemblyman Tom Ammiano's landmark bill (AB 390) to tax and regulate marijuana just like alcohol and tobacco is being considered by state lawmakers....
According to NORML, Californians consume $1-$2 billion worth of medical marijuana per year, enough to generate some $100 million in sales tax. According to a state analysis the tax would net $1.3 billion a year if this legislation passes.
There's no way to tell how many California residents smoke pot, but according to the Zogby Poll “Fifty-eight percent of respondents residing on the West Coast agree that cannabis should be taxed and legally regulated like alcohol and cigarettes.”
One might very well hope and want to believe that the traditional poltical left and political right ought to be able to come together on ending excessive government control/spending on (failed) efforts to thwart the inevitable (and now black) market for marijuana. At the very least, one might hope and want to believe that the labratory of the states might give state-wide legalization (for persons over 21) a real try and see what happens. I am not holding my breath, but tough economic times certainly make this a better possibility now than probably any other time is my lifetime.
Some recent related posts:
- "Time For Marijuana Legalization?"
- Should we end a failed expensive war (the war or drugs) during these hard economic times?
- Terrific commentary and assessment of the war on drugs
- The state of cost problems in the states of prison nation
The persistence of pre-Booker precedents in a post-Booker world
The Sixth Circuit's work today in US v. Blue, No. 07-5296 (6th Cir. March 9, 2009) (available here), provides yet another example that, even years after the Bookerdecision, many sentencings and appeals march forward as if the pre-Booker world was still in place. The Blue decision does not really break any new ground in rejecting an appeal of a district court's refusal to depart for substantial assistance absent a government motion for such a departure. But the start of the panel's analysis provides an example of how hard it has been to get lawyers to fully inculcate the import and impact of Booker:
We must begin by situating Blue’s appeal in the context of appellate review of sentencing post-Booker— a task that, regrettably, the parties did not undertake in their briefs.[FN1]
[FN1] The government cites United States v. Moore, 225 F.3d 637, 641 (6th Cir. 2000) — a case that pre-dates Booker by five years — for the proposition that we should “review the district court’s interpretation of the Sentencing Guidelines de novo.” And Blue’s counsel fares no better by citing United States v. Hawkins, 274 F.3d 420 (6th Cir. 2001). By the time the parties filed their appellate briefs with this Court in late 2007, Bookerhad been on the books for over two years. This Court expresses its fervent hope that the parties’ persistent recitation of pre-Booker cases is not evidence that counsel are unaware that the appellate standard for sentencing review now focuses on “reasonableness,” Booker, 543 U.S. at 262; Rita, 127 S.Ct. at 2464.
Should all sex offenders be barred from Facebook and MySpace?
The question in the title of this post is being debated now in Illinois as a result of new bills being proposed by some legislators. This local article, headlined " GOP bills about sex offenders draw ire: Rights groups, others say they’re too strict," provides the details over the debate:
llinois House Republicans say state government should do more to keep sex offenders away from children and pornography on the Internet. But critics, including civil rights groups and Internet companies, say the ideas may go too far.
Republicans again are pushing a package of nearly a dozen bills that would strengthen laws against child pornography and restrict what Web sites registered sex offenders can visit. The measures were spawned by a series of task force meetings House Republicans conducted in 2006, during which parents, law enforcement officials and community leaders testified about the growing dangers of social networking sites and child pornography.
The package includes House Bill 1312, introduced by House Republican Leader Tom Cross of Oswego. It would prevent registered sex offenders from accessing social networking Web sites like Facebook and MySpace. The measure also would require the owners of these sites to verify the ages of all their users and verify the status of all guardians of minors who use the sites....
The Republican ideas are backed by the Illinois Family Institute, a Christian organization that provides “a biblical perspective to public policy.” David Smith, the organization’s executive director, says the rights of sex offenders should not preempt public safety. “Their freedoms need to be curtailed, to tell you the truth, as a result of their violation of public trust,” Smith said.....
Braden Cox, the policy counsel of NetChoice, called the social networking regulations in Cross’ bill problematic.... “This bill sounds good in theory, but you quickly see that it’s something that is not technically feasible and would create more problems than it would solve,” he said....
Kate Dean, executive director of the U.S. Internet Service Provider Association, said Reboletti’s service provider bill could be successfully challenged in court if it became law. “The courts have found similar approaches to be unconstitutional,” said Dean.
An Indiana law passed in 2008 bans sex offenders from using social networking Web sites, and states such as Minnesota, North Carolina, and Connecticut are considering similar measures. A Pennsylvania law forcing Internet service providers to restrict access to Web sites accused of hosting child pornography was ruled unconstitutional in 2004 by a federal judge.
March 8, 2009
A picture of prison economy problems in Pennsylvania
Today's Pittsburgh Post-Gazette has this effective article on the prison economy realities. The piece, which has this accompanying graphic, is headlined "Rendell's prison plan could lock him up in costly quandary: Increased budget likely to cause inmate population to swell." Here are a few excerpts:
The nation's economic crisis has put a damper on most new construction, but there's one area where building is booming like it's 1999 — prisons.
Pennsylvania's state correctional facilities are at 114 percent of capacity and several construction projects are in the works to meet demands for space. Gov. Ed Rendell's proposed budget includes more than $1.8 billion for the Department of Corrections, a nearly 10 percent increase dedicated mostly to construction and increased staffing....
The Rendell budget proposal for fiscal year 2009-2010 also increases funding for the Board of Probation and Parole, which plans to use the money to hire more field agents. But the 8.3 percent increase brings the department's budget to $99.2 million, less than one-eighteenth of Department of Corrections spending.
Even the DOC agrees that bringing down the prison population ... is a good idea. But as Mr. Rendell's parole quandary suggests, it isn't easy politically or logistically.
In September, a parolee shot and killed a Philadelphia police officer a month after his release from prison, where he had been serving a sentence for a 1998 robbery and aggravated assault. After the killing, Mr. Rendell imposed a moratorium on all parole in the state, causing prison populations to spike. He lifted the moratorium for nonviolent offenders in October, then for violent offenders in January.
The 11-member Pennsylvania Commission on Sentencing is looking at reforming parole guidelines, but legislators might tackle a sweeping reform of their own — a mandate that repeat violent offenders serve out their maximum sentences. A bill is still in the drafting stages, but Mr. Rendell already has voiced support for such a measure.
While getting tougher on violent offenders -- classified as people convicted of murder, manslaughter, rape, aggravated assault, robbery, theft or arson — policymakers are looking at ways to get nonviolent offenders out from behind bars....
Department statistics show a sharp rise in the number of nonviolent offenders in the prisons. In 2008 nonviolent offenders comprised 41 percent of the prison population, with 44 percent classified as violent (the rest are parole violators). In 2002, it was 51 percent violent, 30 percent nonviolent.
DOC spokeswoman Susan McNaughton pointed to tougher sentences — including mandatory minimums — for gun and drug convictions as contributors to the rise of nonviolent prisoners. For example, a first-time conviction for trafficking more than 10 grams of cocaine carries a mandatory three-year minimum sentence.
Rep. Tom Caltagirone, D-Berks, chair of the House Judiciary Committee, said he wants to take a hard look at mandatory minimums, but it's difficult to gain support from legislators wary of being labeled as soft on crime. "We have all these stupid mandatories," Mr. Caltagirone said. "It's a knee-jerk reaction: 'We're going to get all the bad guys off the street.' ... "The violent offenders — repeat, serious offenders — absolutely we need to lock them up. But do we need to lock up everybody?"
"New look at sentencing guidelines for cocaine"
The title of this post is the title of this effective piece in today's San Francisco Chronicle. Here are snippets:
Willie Mays Aikens has returned to Kansas City, where he's still a star. He's worked in construction and hopes to land a job with Major League Baseball, maybe as a counselor, he says, "talking to people about what drugs can do to a person." People in Kansas City still talk about Aikens' four home runs for the Royals in the 1980 World Series. They seem ready to forgive the crack cocaine bust that earned him a 16-year prison term....
Aikens' path was dark indeed, but not because his crime was large. The drug sale that sent him to prison was 64 grams, about a quarter cup. The federal cocaine sentencing statutes treat that much crack the same as a bucket of cocaine powder, the material from which crack is produced.
Aikens' case exemplifies all that's gone wrong because of these federal sentencing laws: The focus on petty crimes. The distortion of priorities in the war on drugs. The lopsided impact on African Americans - the 83 percent of federal crack defendants who are black, though a federal health survey found most crack users are white. The problems have been documented for years. Now it's time for a change....
Federal prosecutions target petty crack cocaine cases throughout the nation, destroying the lives of many small-time offenders and squandering resources in the war on drugs. The U.S. Sentencing Commission tallied all 4,262 crack cases for 2006. It calculated a median drug quantity of 1.8 ounces.
Surprisingly, among the strictest jurisdictions was the Northern California district based in San Francisco. A single ounce of crack was involved in the median case here, enough to cover the bottom of a teacup.
Lots of AWA news and notes
Thanks to Corey Yung at Sex Crimes, it is a bit easier to keep up with all the dynamic developments surrounding all the dynamic aspects of the Adam Walsh Act. Here are just a few recent posts from Sex Crimes covering recent AWA activity:
- 11th Circuit Rejects Constitutional Challenges to SORNA
- Heritage Foundation Supports Adam Walsh Act
- APA Praises Comstock Ruling, Criticizes Civil Commitment
- Walsh Wants Walsh Act Funded