March 24, 2009
Sentencing scholar named acting Dean at Yale Law School
A helpful reader made the helpful suggestion that sentencing fans might be interested in this news from New Haven (as reported in this Yale press release):
President Richard C. Levin has named Kate Stith, Lafayette S. Foster Professor of Law, as Acting Dean of Yale Law School. Stith succeeds Harold Hongju Koh, who has been nominated by President Barack Obama as Legal Adviser of the U.S. Department of State....
Stith, a highly respected scholar, teacher, and colleague both at the Law School and in the broader University, will serve until a successor to Koh is appointed. “I am delighted and grateful that she is willing to take on this transitional leadership role at the Law School at such an important moment,” Levin said....
Stith teaches and writes in the areas of criminal law and procedure, comparative criminal law, criminal sentencing, federal criminal prosecution, university governance, government ethics, and congressional budget law. She was the principal author of “Fear of Judging: Sentencing Guidelines in the Federal Courts,” which was awarded the Certificate of Merit by the American Bar Association.
Stith is a leader in developing the field of sentencing law, which is at the intersection of substantive criminal law, criminal procedure, constitutional law, and comparative criminal law. Her current projects include co-authorship of a textbook on federal criminal law and a textbook on criminal procedure. She is an Advisor to the American Law Institute’s “Model Penal Code: Sentencing” project, and previously served, by appointment of the Chief Justice of the United States, on the Advisory Committee on the Federal Rules of Criminal Procedure of the U.S. Judicial Conference....
Stith joined Yale Law School as an Associate Professor of Law in 1985, after having served as an Assistant United States Attorney in the Southern District of New York, where she prosecuted white-collar and organized crime. She previously was on the staff of the President’s Council of Economic Advisors, a special assistant to the Assistant Attorney General in charge of the Criminal Division of the U.S. Department of Justice in Washington, and a law clerk to Judge Carl McGowan of the United States Court of Appeals for the D.C. Circuit and to Justice Byron R. White of the U.S. Supreme Court. She became Professor of Law in 1991, and the Lafayette S. Foster Professor of Law in 1998. She is a graduate of Dartmouth College, the Kennedy School of Government at Harvard and Harvard Law School.
New Jersey Supreme Court hearing challenge to local sex offfender residency restrictions
The Newark Star-Ledger has this report, headlined "Justices hear case on sex offenders; Housing restriction brings challenges," detailing a notable sex offender case coming before a notable state high court. Here is how it starts:
More than 100 towns in New Jersey have laws on the books that keep sex offenders from living near schools, libraries and playgrounds. But that soon may change because of a legal challenge that will be considered today by the state Supreme Court.
In a case involving Cherry Hill and Galloway Township, the court will hear arguments on whether towns have the power to restrict where released sex offenders live or if such local mandates conflict with New Jersey's Megan's Law, which has notified communities of their whereabouts for nearly 15 years.
March 23, 2009
"Disparities Seen in Federal Securities Fraud Sentences"
The title of this post is the title of this piece from last Friday's New York Law Journal by Steven Feldman discussing federal sentencing developments in a notable white-collar setting. Here are snippets:
Greater uncertainty reigns now that the guidelines are advisory. Because anecdotal evidence indicates that district courts are now more frequently imposing sentences below the guidelines range, it falls to practitioners to look for patterns in what appears to be a fairly random imposition of below-guidelines sentences. Recognizing these patterns is critical because having a sense of a likely sentence plays an important role in the decision of whether to go to trial or plead guilty. Several trends appear in recent securities fraud cases:
• Defendants convicted after trial are more likely to receive sentences within the guidelines range.
• Defendants who plead guilty well before trial are more often receiving sentences below the guidelines range, meaning that they receive much greater "credit" for accepting responsibility than the three-level reduction provided by U.S.S.G. §3E1.1.
• The disparities between the sentences for those who go to trial and are convicted, and those who plead guilty to the same conduct, have increased.
• The X-factor is the judge. Because the assignment wheel is random, one cannot control what judge will be assigned to a case. But knowing the court and its tendencies helps in prognosticating what sentence awaits post-trial or post-plea.
A strong pitch to SCOTUS to have Booker apply to crack sentence reductions
Late last week, a prominent group of SCOTUS gurus filed a cert petition in US v. Dunphy making a full-throated argument for judges to have broad resentencing authority when ruling on motions to reduce previously imposed crack sentences. The cert petition can be downloaded below, and here is its summary statement of reasons for granting the writ:
Federal courts across the country are divided over whether federal district courts must treat amended sentencing guidelines ranges as binding when imposing new sentences under 18 U.S.C. § 3582, or whether this Court’s holding in United States v. Booker, 543 U.S. 220 (2005), requires that they be treated as only advisory. This question is important and arises frequently, particularly in the context of the amended guidelines for crack cocaine offenses. This is such a case and is an ideal vehicle for resolving the split of authority.
The Fourth Circuit’s holding that district courts must treat the Guidelines as binding in 18 U.S.C. § 3582 proceedings also is wrong. This Court held in Booker that the Guidelines violate the Sixth Amendment when they require a longer sentence than is otherwise allowed based on the elements of the crime of conviction. Id. at 244. Such is the case here. Furthermore, treating the Guidelines as binding when constructing a new sentence flouts Booker’s mandate that binding guidelines are “no longer an open choice.” Booker, 543 U.S. at 263; accord United States v. Spears, 129 S. Ct. 840, 842 (2009) (per curiam) (Guidelines are “advisory only”) (quoting Kimbrough v. United States, 128 S. Ct. 558, 560 (2007)).
It is no answer to claim, as the Fourth Circuit does and the Sentencing Commission suggests, that proceedings under Section 3582 do not constitute “full” resentencings. Pet. App. 8a-9a, 11a, 15a. That is just a label. District courts impose new sentences under Section 3582 the same way they conduct other resentencings. And whenever a court reopens a sentence and constructs a new one, it must do so in accordance with the law that exists at the time the new sentence is imposed, not just with (retroactive) sentencing guidelines. Booker is the law; this Court should instruct the federal courts of appeals again that they must follow it.
March 23, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (5) | TrackBack
March 22, 2009
Seeking Sunday federal sentencing speculations
Amazingly, the five-year anniversary of the Supreme Court's blockbuster Blakely ruling is only a few months away. And, even more amazingly, since the Supreme Court decided how it would apply Blakely to the federal system in Booker, the basic law and practice of the federal sentencing has been remarkably stable. Despite lots and lots of predictions that Congress would respond to Blakely and Booker in all sorts of ways — and also lots and lots of recommendations from various quarters about how Congress should respond to Blakely and Booker — the post-Booker federal sentencing system has been largely free from significant congressional or executive changes.
The story of post-Booker stability has lots of facets, but one part surely involves political instability in both Congress and the Department of Justice. By the time everyone started figuring out the impact of Booker in early 2006, Republicans were getting worried (rightly so) about staying in power in Congress. And not long after Democrats took over Congress, then-AG Alberto Gonzales was starting to have his own troubles.
But, despite inevitable partisan bickering inside the Beltway, there is now a new political stability in DC. The same party controls Congress and the White House, and a whole bunch of new people (some really new and some familiar) are not in power at the Department of Justice. Some hope that these developments could bring progressive changes in mandatory minimum statutes, while other likely still worry (sensibly?) that any congressional work on sentencing statutes are more likely to be harsh and harmful.
Against this backdrop, I would like to hear from readers (whether in the know or just speculating) about what they think the federal sentencing system's future might look like.
Headlines showing how a down economy is a downer for prisoners, too
These two headlines caught my eye this morning as evidence of how persons in prison also have reasons to be concerned about the US economy's problems:
- From the Milwaukee Journal Sentinel here, "Economy concerns inmates, too"
- From the Sarasota Herald-Tribune here, "Prisons may cut education and substance abuse programs"
Medical marijuana fans now feeling they can exhale and inhale
This AP story, headlined "Pot advocates exhale after AG signals policy shift," provides details on reactions to the latest change in federal prosecutorial policies. Here is how the story starts:
Medical marijuana users and dispensary owners in California have held their breath for years — fearful they would be targeted for prosecution by the federal government. They finally exhaled this past week when U.S. Attorney General Eric Holder said federal agents will now target marijuana distributors only when they violate both federal and state laws, a departure from the policy of the Bush administration.
It's not seen by many as a move by the Obama administration toward the legalization of marijuana. However, it could end much of the confusion among state and federal authorities dealing with the mishmash of laws in which cultivating, using and selling pot for medical purposes is allowed by states but outlawed by the federal government.
"This signals, in my mind, a true kind of federalism," said Jody Armour, a law professor at the University of Southern California. "The federal government is allowing states to take chances, to take experiments and see what happens."