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April 4, 2009

Potential Ohio AG candidate talking about speeding up capital appeals

On the heels of this week's official state report on Ohio's capital cases come this local news of a potential Ohio Attorney General candidate talking about his commitment to speed the path of condemned killers to the execution chamber:

Delaware County Prosecutor Dave Yost made an unofficial campaign stop for Ohio Attorney General Friday, telling fellow Republicans if he decides to run and is elected he would speed up the death penalty appeals process....

Yost hasn't officially declared his candidacy for Ohio Attorney General next year but it's a strong likelihood given the fact he's traveling the state speaking to groups such as local Republicans at its monthly lunch.

Yost said the death penalty process in Ohio is bogged down once cases get to federal court. The average time a person spends on death row is more than 13 years and more than 35 men have been on death row more than 20 years.

"Justice delayed is justice denied," he said. "We will push those appeals through to make sure the victims finally get justice." He vowed to beef up staff in the unit that fights appeals from death-row inmates.

Though this might seem like just a little local story, it provides a telling and important reminder that death penalty politics still have not changed all that much despite lots of capital repeal and reform movements around the nation. 

Ohio is not, of course, a southern state or a classic red state in which one might think that vocal support for the death penalty is a critical and classic way to garner votes and attention.  In addition, Ohio has had some innocence and lethal injection problems and has also executed more defendants that just about every state not named Texas in recent years.  And yet, despite all these forces, we still see a leading candidate for Attorney General actively campaigning that he will help speed up executions. 

Some recent related posts:

April 4, 2009 in Death Penalty Reforms | Permalink | Comments (8) | TrackBack

"We Deserve Our Lives Back"

The title of this post is the name of this website.  Here is its mission statement:

We Deserve Our Lives Back is a non-profit organization established to locate bills/laws that work in conjunction with second chance agencies in providing a re-entry plateau for ex-offenders.  Our mission is to reduce recidivism by conversing, petitioning and sharing information through media outlets.  Our efforts need your assistance, we are one, yet together we are many, who deserve to have our lives back.  Gainful and meaningful employment is a stepping stone but a career is what we strive to regain.  We don’t ask that you level the playing field, we just want the opportunity to play.

Here is the start of the text of an e-mail I received asking me to spotlight this website in conjunction with an effort to generate support for a federal bill to enable expungement of a federal conviction:

I am writing to solicit your organization's support on behalf of the thousands of young men and women who, having been convicted of a Federal Felony and, regardless of the sentence handed down by the courts and having “paid their debt to society”, are also being handed a hidden life sentence that is not a part of any judicial proceeding. There is currently no appeal process for this life sentence.

I am speaking of the first time, non-violent offender who, due to the current federal policy, must spend the rest of their lives bearing the stigma of a federal felony conviction. Some of these offenders are only sentenced to probationary periods of six to twelve months so little was their involvement. Yet they must suffer the same life sentence as one who committed a much more serious violent crime. This is not justice.

Under current federal law, punishment for a felony offense amounts to a life sentence even though the offender has supposedly “paid his full debt to society.” Most, if not all, states provide a path for the expungement of criminal records for non-violent offenders when certain requirements are met.... In the case of a federal charge, no such avenues exist. Once a person is convicted of a federal felony their record cannot be expunged, not even by Presidential pardon. This is one of the most unjust and unfair practices in this country. A first time, non-violent offender who has paid their full debt deserves a second chance....

Therefore I am asking that your organization support H. R. 1529 sponsored by Congressman Charles Rangel. Previous versions of this bill have been allowed to die in committee. This cannot be to happen again. This is one of the most human and humane pieces of legislation that I have ever seen. The positive impact of this bill is incalculable. It is only right and just that federal law also allow former offenders the ability to lead productive lives without the stigma of a felony conviction haunting and handicapping them for the rest of their life.

Please post a link on your site to "We Deserve Our Lives Back," where a petition may be signed in support of this bill.  Urge your members to follow this with personal letters, e-mail and phone calls to their individual representative. Contact information for all members of congress can be found at the following site. You may also contact your representative through this site.

The concept of “permanent punishment” with no hope of restoration for a non-violent first offender is void of any of the commonly held concepts of fairness.  Compassion and mercy should not be viewed as being “soft on crime.”

April 4, 2009 in Reentry and community supervision | Permalink | Comments (10) | TrackBack

"The Fall of the Presidential Pardon"

The title of this post is the title of this effective piece on modern federal clemency realities sent my way by a helpful reader.  Here are a few lengthy excerpts from a lengthy article that justifies a full read:

Although all recent presidents have granted few pardons, Bush's rate was exceptionally low. He tied with his father for the lowest-ever percentage of granted pardons (conviction reversals) — 9.8 percent — and he granted an astonishingly tiny number of requested commutations (shortened sentences): 0.012 percent....

[A]lthough Bush disappointed some guilty crony hopefuls with his meager list of pardons and commutations, he disappointed a far greater number of long-serving prisoners with no other hope of release.  An ever-growing percentage of the US's 2.3 million prisoners — including more than half of the 200,000 inmates in federal prison - are drug offenders, many of them charged on vague counts of "conspiracy."  Since parole was abolished on the federal level in 1987, drug prisoners serving drastic sentences are told to apply for a presidential pardon: It's their only option....

With the stingy-pardoning Bush era in the past, many nonviolent lifers see the advent of the Obama presidency as a ray of hope.  His message of change and his immediate action toward closing the military prison at Guantanamo Bay are optimistic signs for Danielle Metz, a first-time nonviolent offender serving three life sentences plus 20 years for cocaine conspiracy.... As the Obama administration comes into its own, federal prisoners and justice policy experts alike are hoping he'll resurrect the presidential pardon, returning it to its intended place as a critical piece of the grand puzzle of the judicial system....

Although there have been a smattering of clemency grants for drug offenders in recent years, they don't add up to a policy statement disavowing the drug war — in fact, they may do the opposite, according to Tom Murlowski of the November Coalition, a nonprofit organization that combats drug war injustice.  Murlowski points to President Clinton, who commuted the sentences of 22 drug offenders on his last day in office, following up on a handful of previous drug-related clemency grants.

"There were thousands of cases as deserving, or more so, than the few that got released, and most of those drug offenders released were those that had some solid media support behind them — they had virtually all been featured in mainstream media in some way," Murlowski told Truthout.  "Our fear was that, when these few stories were featured and, ultimately commuted, it sent the erroneous message that these were isolated cases of drug war injustice, when the reality was a systemic injustice as a result of fundamentally flawed policies."...

Another little-noted factor has contributed to the dearth of recent pardons: The Office of the Pardon Attorney has long been underfunded and understaffed.  Clemency and pardon requests go through several steps before they reach the president — they must be investigated by government agencies, then reviewed by the pardon attorney, the attorney general and finally the president — and qualified support personnel at each of these levels is essential.

According to Marc Mauer, executive director of The Sentencing Project, more pardons might be granted if the department was simply funded adequately. "There's been a huge backlog under the [Bush] administration, which is basically a resource issue; not providing sufficient staff to review applications," Mauer told Truthout.

Instead of prompting more hires, the backlog has perpetuated a shoddy, negligent review process, according to former Pardon Attorney Love.  "These cases are not getting fully reviewed," Love told Truthout.  "It seems like the main objective of the current pardon attorney is to manage the backlog by getting rid of cases as soon as he can; turning them around at the door.  I've heard he's not even getting the pre-sentence report in most cases."

Compounding the situation, the pardon attorney in office for the past 10 years was known for discriminatory behavior, and was recently removed from office following accusations of racism.  A report by the department's inspector general stated that Pardon Attorney Roger Adams described a drug offender requesting a pardon as "about as honest as you could expect for a Nigerian.... Unfortunately, that's not very honest."

According to the inspector general's report, "Adams' comments — and his use of nationality in the decision-making process — were inappropriate." Considering most long-serving drug offenders are minorities, Adams's behavior calls into question the handling of the entire pardon evaluation process in recent years.

Some related posts:

April 4, 2009 in Clemency and Pardons | Permalink | Comments (0) | TrackBack

April 3, 2009

"Release of sex offenders delayed"

The title of this post comes from the title of this new entry at SCOTUSblog.  Here are the particulars from the start of a long and effective post by Lyle Denniston:

Chief Justice John G. Roberts, Jr., put on hold on Friday a federal appeals court ruling that the federal government contended would lead to the early release of “the great majority” of “sexually dangerous” inmates now held in federal prison.  In a brief order, the Chief Justice said there was “a presumption of constitutionality” of the 2006 federal law that the Fourth Circuit Court struck down.  He thus blocked temporarily the Circuit Court ruling, until the Justices act on a new government appeal filed Friday (U.S. v. Comstock, et al., 08-1224).

Roberts took little time to act. The Justice Department in the morning asked for a delay of the appeals court decision, but also sought an “immediate, interim” stay while its request was awaiting the Chief Justice’s reaction. Roberts, without seeking a response from the challengers to the federal law, by late afternoon issued his order fully staying the Circuit Court.

Related post:

April 3, 2009 | Permalink | Comments (6) | TrackBack

While New York "drops the rock," one state senator ups the rhetoric

As detailed in this local article, not everyone in New York is happy with the state legislature's decision to reform the Rockefeller drug laws.  Specifically, as explained in this official press release, state Senator Joseph Griffo is reiterating "his warning that a provision in the current State Budget agreement will endanger public safety":

The agreement would drastically roll back the ‘Rockefeller Drug Laws’ to potentially allow 5,000 – 8,000 drug dealers back onto the street.  “I’m terribly disappointed that the Senate Majority decided to hide this initiative in the State Budget,” said Senator Griffo. “Rather than putting it in a separate measure that could be discussed and debated, we’re fast-tracking what will be an added hindrance to law-enforcement and will negatively affect communities in New York.”

“The Association of District Attorneys, the people who are out in front of prosecuting drug dealers, have said that this is a poor public policy decision,” Griffo added, “We’re opening a Pandora’s Box that will allow drugs to become a greater scourge to communities and families.”

April 3, 2009 in Drug Offense Sentencing | Permalink | Comments (7) | TrackBack

"Michael Vick says prison gave him time to think"

The title of this post is the headline given by my local paper to this AP article about Michael Vick's comments to a bankruptcy court today.  Here's more from the article, which includes some interesting reentry aspects:

Suspended NFL star Michael Vick told a bankruptcy court on Friday that his time in prison has given him a chance to think, and he's realized he needs to make some changes. The ex-Atlanta Falcons quarterback, who is serving a 23-month prison sentence for bankrolling a dogfighting operation, said he knows he committed a "heinous" act that was very irresponsible.

"I can't live like the old Mike Vick," he told a courtroom filled with his family, friends and fiancee. "I was very immature. I did a lot of things I wasn't supposed to do being a role model."

In prison, he's filled his days by reading, writing, playing basketball and working a 12-cent-an-hour job as a janitor, he said. The experience has given him a chance to develop he called "an exit strategy."...

Vick is expected to be released from custody in July, and traveled from a federal prison in Kansas to attend the hearing. He could be transferred to home confinement at his eastern Virginia home by late May, and his agent testified Thursday that he hopes Vick can return to the NFL by September....

When he is sent to home confinement, Vick will have a 40-hour-a-week, $10-an-hour job at one of W.M. Jordan Co.'s 40 commercial construction jobs, said John Robert Lawson, whose father helped start the Newport News company.

Lawson, 57, said that he has known Vick for more than 10 years and that they have been involved in charitable work together. He said Vick's representatives approached him when the former hometown hero was turned away by other employers. "I believe all of us make mistakes, and once you've fulfilled your commitment and paid the price, you should be given a second chance," Lawson said in a telephone interview. "He's not a bad person. He made some bad choices."

April 3, 2009 in Celebrity sentencings | Permalink | Comments (2) | TrackBack

Deep thoughts about post-Booker sentencing and sources of law

Professor Mark Osler, whose tendency toward deep and provocative sentencing thoughts are exemplified by his recent book"Jesus on Death Row: The Trial of Jesus and American Capital Punishment," has a fascinating new article now available here via SSRN.  The piece is titled "Seeking Justice Below the Guidelines: Sentencing as an Expression of Natural Law," and here is the abstract:

Even though there are strong personal incentives against it, federal judges abandon the sentencing guidelines in about one-third of all cases.  Shockingly, when they sentence outside of the range, 96% of the time the sentence is below the range rather than above.  Looking to both traditional descriptions of natural law and the use of natural law within American history, the author argues that this tendency can be seen as a natural law impulse, and one that ultimately will undermine limitations on sentencing discretion in the form of guidelines.

April 3, 2009 in Booker and Fanfan Commentary | Permalink | Comments (3) | TrackBack

State execution team resigns due to lethal injection litigation

At least in Washington state, it appears that when the litigation going gets tough, the not-so-tough resign.  That's what I take away from this local story, headlined "State's execution team resigns, fearing identities would be revealed."  Here are the basics:

Four people who have volunteered to administer lethal injections to death-row inmates at the Washington State Penitentiary in Walla Walla quit their positions this week, apparently worried that their identities could become public as a result of an ongoing court case to decide whether lethal injection constitutes cruel and unusual punishment.

 The four resigned Tuesday, which was the deadline Thurston County Superior Court Judge Chris Wickham had set for the team's records -- detailing the members' credentials, qualifications and experience in administering lethal drugs -- to be submitted for his review.  The state is now without a lethal-injection team, and it's unclear what effect the resignations will have on the court proceedings.

Death-row inmate Darold Stenson, who was sentenced to die in 1994 for killing his wife and business partner, filed his lawsuit last year, claiming that lethal injection can result in excruciating pain if not administered correctly....

The resignations are "a surprising and disturbing development," said Scott Englehard, the attorney representing Gentry. "This issue has nothing to do with guarding their identities." Englehard said the plaintiff's attorneys already agreed that no identifying information related to the team members would be disclosed.  The records were to be reviewed in camera, a time-honored legal tradition in which only a judge sees sensitive and confidential documents and then decides what information attorneys will be privy to, he said.  His client and the other plaintiffs have a right to inquire about the team's "experience or qualifications to properly carry out a lethal-injection execution," Englehard said.

This development reminds me of the practical impact that sometimes occurs from another kind of right-to-life protesting: the tendency of medical professions to stop being involved with abortions because of fear generated by protesters.  The passion of death penalty opponents often is similar to the passion of abortion opponents, and I sense that any persons involved with either the death penalty or abortions have a reasonable basis to fear that this passion may sometimes get expressed in disturbing ways.  For this reason, I have a hard time faulting the decision by these volunteers to resign, even though I still believe the slogan that quitters never prosper.

April 3, 2009 in Death Penalty Reforms | Permalink | Comments (20) | TrackBack

Ohio ACLU writes to local lawmakers and prosecutors about sexting

This local piecereports on an interesting sexting developing in Ohio: "The American Civil Liberties Union of Ohio sent letters to all county prosecutors and members of the Ohio General Assembly today, calling on them to respect sex offender laws and the role of law and not impose heavy-handed charges on 'sexting' teens."  Here is more from this ACLU press release:

ACLU of Ohio Legal Director Jeffrey Gamso said, “Child pornography laws were created to protect child victims from adults who prey on them. In sexting cases, the victim is often also the perpetrator who originally distributed the photo. Local officials are twisting the law to prosecute those they were meant to protect. ”

“A conviction for sexting can do far more than teach a lesson — it can ruin a life. Teens found to have committed a felony or labeled a sex offender could be barred from certain jobs and educational programs, required to register for years with local law enforcement and have restrictions on where they may live. While teens should be educated on the consequences of distributing nude photos, imposing these harsh punishments will only further harm young lives.” added Gamso.

This page at the ACLU of Ohio website also provides links to the letter to County Prosecutors and to the letter to members of the Ohio General Assembly.

Some recent related posts:

April 3, 2009 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

April 2, 2009

Split Ninth Circuit reverses (yet again) the prison sentence in unique Paul case

Those who follow post-Booker reasonableness review (too) closely may recall that the Ninth Circuit's unpublished decision in US v. Paul, No. 06-30506 (9th Cir. Aug. 17, 2007) (available here, bogged here), is the only within-guideline sentence reversed as substantively unreasonable.  The Paul case, after resentencing, led to another notable ruling by the Ninth Circuit today in US v. Paul, No. 08-30125 (9th Cir. April 2, 2009) (available here).  Here is how the per curiam majority opinion starts:

 In United States v. Paul, 239 Fed. App’x 353 (9th Cir. 2007) (Paul I), we held that a 16-month sentence imposed on Patricia Betterman Paul for theft from a local government receiving federal funding, a violation of 18 U.S.C. § 666(a)(1)(A), was unreasonable.  Id. at 354. We viewed her case as one that did not fall within the “heartland” of cases to which the Federal Sentencing Guidelines are most applicable, as contemplated by Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456, 2465 (2007) (a court may decide “that the Guidelines sentence should not apply, perhaps because . . . the case at hand falls outside the ‘heartland’ to which the Commission intends individual Guidelines to apply”); cf. United States v. Mohamed, 459 F.3d 979, 987 (9th Cir. 2006) (“any post Booker decision” as to whether a case falls within the heartland “is subject to a unitary review for reasonableness”), and allowed by Gall v. United States, ___ U.S. ___, 128 S. Ct. 586, 595 (2007) (rejecting “an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside theGuidelines range”).  We vacated the sentence and remanded for resentencing, pointing to four specific mitigating factors that demonstrated the 16-month sentence was unreasonably high.  Paul now appeals the subsequent sentence of 15 months that the district court imposed upon remand. This case presents the question whether a district court can disregard the spirit and express instructions of an appellate court’s mandate to reconsider an unreasonable sentence.  We once more vacate Paul’s sentence, and remand to a different judge for resentencing.

Here is how a lengthy dissent by Judge Hall gets started:

Under the guise of the rule of mandate, the majority seeks to insulate this court’s previous unpublished disposition from intervening Supreme Court and Ninth Circuit precedent. In so doing, the majority demonstrates a complete disregard for the appropriate roles of the sentencing judge and the appellate court.

April 2, 2009 in Booker in the Circuits | Permalink | Comments (14) | TrackBack

Former Illinois Gov Blagojevich (finally) indicted by feds

As detailed in this New York Times report, former Gov Blagojevich is now officiall defendant Blagojevich.  Here are some of the particulars:

Rod R. Blagojevich, this state’s ousted governor, was charged on Thursday with 16 felony counts, among them racketeering conspiracy, wire fraud and extortion conspiracy in a wide-ranging scheme to deprive residents of “honest government,” prosecutors said, including trying to leverage his authority to pick someone to fill President Obama’s former Senate seat.

Five of his closest advisers, including his brother, Robert, a top fundraiser, and two former chiefs of staff, were also charged in the 19-count indictment.

Prosecutors said Mr. Blagojevich used numerous elements of his state work — including appointing people to state boards, investing state money and signing legislation — as a way to seek money, campaign contributions and jobs for himself and others.

April 2, 2009 in Celebrity sentencings | Permalink | Comments (0) | TrackBack

Sixth Circuit vacates sentence for lack of adequate explanation

Though very few post-Gall appeals lead to reversals of sentences as substantively unreasonable, we are still getting a reasonable number of opinions concluding that a district court has failed to adequately explain the reasons for the sentence it has imposed.  The Sixth Circuit today, for example, in US v. Gapinski, No. 08-1193 (6th Cir. April 2, 2009) (available here), demands a redo because "the record does not show that the district court considered and explained its reasons for rejecting Gapinski’s nonfrivolous argument for a lower sentence based upon substantial assistance to the government."

April 2, 2009 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

New report on drug courts from The Sentencing Project

I received news of an important new report on drug courts from The Sentencing Project.  Here is the text of the e-mail I received about the report:

The Sentencing Project is pleased to announce the publication of a new report, Drug Courts: A Review of the Evidence, that assesses the impact of the drug court movement.
Since their introduction in 1989, drug courts have received a significant amount of attention by practitioners, policymakers, and the general public.  Originally conceived as an alternative to incarceration for persons convicted of low-level drug offenses, there are now more than 1,600 drug courts nationally, covering all 50 states.  Many of these programs have broadened their eligibility requirements to grant more individuals access to treatment rather than incarceration.  In the two decades since their launch, a substantial body of literature has been established evaluating drug court efficacy in regard to reducing recidivism and criminal justice costs.
To mark the 20-year anniversary of the modern drug court, The Sentencing Project surveyed a wide-range of research to outline general findings on the operation and efficacy of drug courts, and to highlight benefits and potential concerns.  Overall, we find that:

  • Drug courts have generally been demonstrated to have positive benefits in reducing recidivism.
  • Evaluations of the cost-effectiveness of drug courts have generally found benefits through reduced costs of crime or incarceration.
  • Concern remains regarding potential "net-widening" effects of drug courts by drawing in defendants who might not otherwise have been subject to arrest and prosecution.

April 2, 2009 in Drug Offense Sentencing | Permalink | Comments (2) | TrackBack

President Obama nominates two more district judges to serve as circuit judges

As detailed in this official press release, "President Obama today announced his intent to nominate Judge Gerard Lynch for a seat on the United States Court of Appeals for the Second Circuit and Judge Andre Davis for a seat on the United States Court of Appeals for the Fourth Circuit."  As this announcement suggests, both nominees have previously been confirmed for federal judgeships: Judge Lynch now serves on the US District Court for the Southern District of New York and Judge Davis now serves on the US District Court for the District of Maryland.

Serious sentencing fans should already know Judge Lynch's name.  He has authored more than a few important sentencing opinions (see, e.g., blog entries here and here and here).  He has also written a number of terrific sentencing articles, both from the bench and from the academy before he became a judge.  Here are links to some of his more recent sentencing writings:

April 2, 2009 in Who Sentences? | Permalink | Comments (6) | TrackBack

Interesting new paper on Baze and lethal injection litigation

A helpful reader pointed me to this new paper appearing on SSRN titled "Bazed and Confused: Lethal Injection, the Eighth Amendment, and Plurality Opinions."  Here is the abstract:

For over six months, from October 2007 to April 2008, there was a de facto moratorium on all executions while state and lower federal courts waited for the Supreme Court to assess the propriety of lethal injection protocols under the Eighth Amendment.  Unfortunately, the Supreme Court proved incapable of achieving even minimal consensus as to the interplay between the Eighth Amendment and lethal injection procedures.  Chief Justice Roberts's plurality opinion in Baze v. Rees, which purports to provide a framework for use by lower courts evaluating the constitutional propriety of local lethal injection protocols, garnered the votes of only three justices. Far from resolving the lethal injection dispute, Baze leaves the individual states and lower courts to quarrel over the weight and precedential value to be accorded to the case's seven separate opinions. This Article addresses the fact the Court's jurisprudence regarding plurality opinions -- the Marks rule -- is frustratingly indeterminate in its application to any case, and antithetical to the Eighth and Fourtheenth Amendments in the context of capital cases.

This is the first article to critique the unchallenged assumption that plurality opinions, such as Baze, generate reliably binding precedent in the context of capital appeals.  Building on an established literature regarding the heightened importance of procedural regularity in the context of capital cases, this Article argues that the Court's current framework for discerning constitutional rules from plurality opinions-the Marks rule-has proven incapable of reliable and regular application, and therefore, must be revisited by the Court.  After demonstrating the need for a clarifying standard regarding the application of plurality opinions in the capital context, this Article reflects on what a reformed approach to plurality precedent should look like.  To this end, the second major premise of the Article is that although a variety of standards may produce the sort of regularity that is currently lacking in the context of plurality opinions, not every formula for discerning a holding from a plurality decision is consistent with the consensus and legitimacy concerns that lie at the heart of modern Eighth Amendment jurisprudence.  Specifically, by directing attention to the oft-ignored, but longstanding, circuit split regarding the scope and application of plurality opinions, this Article calls for a re-examination of doctrines that would allow non-consensus based rulings to define the contours of Eighth Amendment law.  In short, this Article addresses the intersection of plurality opinions, the death penalty, and the Eighth Amendment, and prescribes a two-tier inquiry for resolving the ambiguity that surrounds the Marks rule in this context.

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

Good timing for a message-sending tax fraud sentence!?!

As detailed in this AP article, a federal district judge "saying he wanted to send a message to "quick-buck artists," handed down stiff sentences Wednesday to two former executives and a lawyer with accounting firm KPMG for helping rich people evade more than a billion dollars in taxes."  Here are more details:

U.S. District Judge Lewis Kaplan sentenced former KPMG executive John Larson to more than 10 years in prison; a fellow executive, Robert Pfaff, received more than eight years. 

The judge said Larson, 57, and Pfaff, 58, were "centrally involved" in the brazen tax shelter scheme "that didn't pass the smell test from Day 1." He gave lawyer Raymond Ruble, 63, a term of 6 1/2 years in prison.  The judge said he hoped the sentences "will say to quick-buck artists, 'Not so fast.'"

The men were convicted in December of multiple counts of tax evasion.  The government alleged they used tax shelters marketed by KPMG LLP to help wealthy clients make it appear they sustained large tax-deductible losses by getting loans for business ventures when they had not.

I do not know if this sentencing was consciously scheduled to come only two weeks before federal income taxes are due, but it does seem like an especially good time to send a message to would-be tax cheats.

April 2, 2009 in White-collar sentencing | Permalink | Comments (1) | TrackBack

April 1, 2009

A message for Prez Obama and his legal team from his favorite Justices

The most interesting jurisprudential aspect of today's Supreme Court decision in Harbison (basics here) is probably the splitting (and spitting) among the more conservative justices about how best to interpret 18 U.S.C. § 3599.  But while experts in the academy reflect on the statutory interpretation dissensus in Harbison, I hope that policy-makers in the White House reflect on the clemency consensus reflected in this paragraph toward the close of the majority's opinion:

The Government’s arguments about §3599’s history and purposes are laced with the suggestion that Congress simply would not have intended to fund clemency counselfor indigent state prisoners because clemency proceedings are a matter of grace entirely distinct from judicial proceedings.  As this Court has recognized, however,“[c]lemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.”  Herrera v. Collins, 506 U. S. 390, 411–412 (1993) (footnote omitted).  Far from regarding clemency as a matter of mercy alone, we have called it “the ‘fail safe’ in our criminal justice system.” Id., at 415.

As regular readers know, I have long been troubled by the failure of modern Presidents to make serious and sensible use of their clemency power, especially during a period in which thousands of federal defendants can and have made reasonable requests for the exercise of this "historic remedy."  And, given all the campaign talk of hope and change (and asserted concern for offender reentry and unjust sentencing disparities), I have been especially disappointed that President Obama is now closing in on the back end of his first 100 days in office without having yet granted a single clemency.

Sadly, I have to doubt that this effective little dicta in Harbison will finally get the new President and his legal team moving in the right direction when it comes to the use of the clemency power.  Still, one can at least hope that the sound clemency sentiments expressed by the Justices in Harbison will echo in some other branches.

Some related posts:

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

Ohio's death row getting smaller (though new AG still laments pace of appeals)

Ohio law requires the state Attorney General to produce an annual report that details the status of all individuals sentenced to death in the state.  As detailed in this official press release, the 2008 report was released today and can be accessed here.  Helpfully, this local article provides some of the intriguing data highlights from the nearly 300-page report:

Ohio's Death Row, once bulging with more than 200 condemned killers, is shrinking due to both executions and successful legal appeals.  The annual Capital Crimes Report released today by Attorney General Richard Cordray showed that 15 people got off Death Row last year. 

Only two of them, Richard Wade Cooey II and Gregory Bryant-Bey, were executed. A third, James Taylor, died of natural causes. Kenneth Richey was released as a result of a plea bargain.  Of the remaining 11 cases, two inmates had their death penalty sentences overturned and the others were sent down to lower courts for re-sentencing or new trials, Cordray's report showed.

At the same time, just three new death sentences were imposed statewide, one each in Mahoning, Summit and Wood counties.  Lower numbers are a continuing trend.  While there were 53 death sentence imposed between 2000 and 2008, more than twice that many, 123, were imposed from 1990 through 1999....

Cordray reported that 28 capital cases are pending in the state court system, with 118 pending in federal courts. That compares with 44 and 136, respectively, a year ago.  Ohio has executed 28 men since resuming capital punishment in 1999 after a 36-year hiatus....

About half of all inmates on Death Row are black, with 45 percent white and about 4 percent another race.  The average age of the condemned men, plus one woman, is 44.7 years.  The average time spent on Death Row is 13.6 years.  Of 245 murder victims, roughly half were women, 20 percent were children and two-thirds were white, according to the report.

Thanks to this post at Law Dork 2.0, I see that Ohio's new Attorney General, Rich Cordray, decides to keep up a venerable Ohio AG tradition of complaining about the pace of capital appeals.  This AP article has the details:

Ohio Attorney General Richard Cordray says the death penalty appeals process is still too long and sometimes defeats the possibility of justice being done.  Cordray tells The Associated Press on Wednesday that, even if lengthy appeals result in a new trial, it’s difficult to feel justice can be achieved because so much has changed over time.

Cordray also says it’s a bogus argument to say the death penalty should be eliminated because cases take too long and cost too much.

I have a feeling that Ohio AG Cordray did not use the word "bogus" to describe abolitionist arguments based on the costs of capital cases.  Still, it is interesting and notable that a Democratic AG in a (solidly blue?) northern state is apparently complaining about lengthy appeals and seems eager to reject a death penalty repeal argument that has become quite popular of late.

April 1, 2009 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

NFL receiver charged with DUI manslaughter in Florida, while MLB pitcher gets wrist slapped in Nebraska

This AP report has the latest news in yet another high-profile case which will allow me to follow more sentencing news through the sports pages.  Here are the basics involving the latest NFL star to be looking at real prison time:

Cleveland Browns wide receiver Donte Stallworth was charged Wednesday with killing a pedestrian last month while driving drunk in Miami.

An arrest warrant charging Stallworth, 28, with DUI manslaughter was filed in the March 14 accident that killed 59-year-old Mario Reyes.  If convicted, Stallworth would face a maximum 15-year prison sentence.

Stallworth's blood-alcohol level after the crash was .126, well above Florida's legal limit of .08, according to results of a blood test.  Stallworth will also be charged with DUI, which carries a possible six-month sentence plus fines and community service for first offenders.

In somewhat related news, the AP reports here on another famous professional athlete getting only slapped on the wrist for DUI because he was lucky enough to avoid running over anyone (this time):

New York Yankees pitcher Joba Chamberlain pleaded guilty Wednesday to a Nebraska charge of drunken driving and was given probation.  After a plea deal, prosecutors dropped the second charge of driving with an open alcohol container.

Chamberlain, 23, played for Nebraska in college.   He was pulled over Oct. 18 by police on the outskirts of Lincoln. Authorities say his blood-alcohol level was 0.134 percent. The legal limit in Nebraska is 0.08 percent....

He'll also pay a $400 fine, lose his license for 60 days and complete an alcohol education class.

Some related posts:

April 1, 2009 in Celebrity sentencings | Permalink | Comments (11) | TrackBack

Split First Circuit ruling on upward departure based on conduct underlying vacated state convictions

Regular readers might recall long-ago posts here and here about a brouhaha in Massachusetts concerning the practice of some state judges being willing to vacate prior state conviction in an effort to impact federal sentencing realities.  Today, these issues became the focal point of a split First Circuit ruling in US v. Marsh, No. 07-1698 (1st Cir. April 1, 2009) (available here).  Here is how the majority opinion in Marsh gets started:

Matthew Marsh ("Marsh") pled guilty to three counts of distributing and conspiring to distribute crack cocaine. He was sentenced to a total of eleven years' imprisonment. The sentence was comprised of a statutory mandatory minimum of ten years and an additional year resulting from an upward departure from the applicable Sentencing Guidelines range.  The departure was based on conduct underlying certain state-court convictions that had been vacated less than two weeks prior to Marsh's federal sentencing.  This appeal is limited to Marsh's claim that the one-year upward departure was improper, and thus that his sentence was unreasonable.  We affirm, and in so doing, we reject the dissent's view that the district court impermissibly considered the conduct underlying the vacated convictions.

April 1, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Official AG Holder statement on DOJ's new position in Stevens case

Now up here on the official DOJ website is the "Statement of Attorney General Eric Holder Regarding United States V. Theodore F. Stevens."  Here is the full text:

In connection with the post-trial litigation in United States v. Theodore F. Stevens, the Department of Justice has conducted a review of the case, including an examination of the extent of the disclosures provided to the defendant.  After careful review, I have concluded that certain information should have been provided to the defense for use at trial.  In light of this conclusion, and in consideration of the totality of the circumstances of this particular case, I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial.

The Department’s Office of Professional Responsibility will conduct a thorough review of the prosecution of this matter.  This does not mean or imply that any determination has been made about the conduct of those attorneys who handled the investigation and trial of this case.

The Department of Justice must always ensure that any case in which it is involved is handled fairly and consistent with its commitment to justice.  Under oftentimes trying conditions, the attorneys who serve in this Department live up to those principles on a daily basis.  I am proud of them and of the work they do for the American people.

My real-world translation: "Though I have concluded we secured a constitutionally tainted conviction in the course of ruining Senator Stevens' career and legacy, I won't admit that any lawyers did anything wrong and I hope that by dropping this whole matter nobody will consider what this case reveals about our federal criminal justice system." 

Though I am not a tort law or Bivens specialist, I cannot help but think about whether Senator Stevens might have a viable civil law claim for damages as a result of all the economic harm he has suffered as a result of his constitutionally tainted prosecution and conviction.  At the very least, I would hope the feds might pick up some of his post-conviction legal bills.

Some related posts:

April 1, 2009 in Celebrity sentencings | Permalink | Comments (10) | TrackBack

SCOTUS rules for defendants (and their lawyers) in clemency case

As detailed in this SCOTUSblog post, the Supreme Court today, "over two Justices’ partial dissents, ruled that a 2005 federal law providing free defense lawyers for individuals facing a possible death sentence allows such a lawyer to seek clemency for the client from state officials."  Here are the particulars with a link to the opion that to SCOTUSblog:

The Court has released the opinion in Harbison v. Bell (07-8521), on federally funded counsel in state clemency proceedings. The decision below, which held for the state, is reversed in a 7-2 opinion by Justice Stevens, available here. The Chief Justice and Justice Thomas filed concurring opinions and Justice Scalia filed an opinion concurring in part and dissenting in part, joined by Justice Alito.

April 1, 2009 | Permalink | Comments (18) | TrackBack

Federal judge blocks enforcement of Georgia law prohibiting sex offenders from volunteering in church

As detailed in this local article, federal district judge on Monday "granted a preliminary injunction that overturns a provision of Georgia’s sex offender law [that] prohibited registered sex offenders from volunteering in churches." Here are more details from the article:

The Southern Center for Human Rights challenged the constitutionality of the restriction, saying it criminalized protected religious activity. The center has a pending lawsuit against Gov. Sonny Perdue which also challenges a restriction that would prevent sex offenders from living within 1,000 feet of a school bus stop. That restriction is also on hold, pending the outcome of the court case.

U.S. District Judge Clarence Cooper wrote in a ruling that church activity was recognized by state correction officials as a benefit for convicted criminals that helps reduce recidivism. "Allowing plaintiffs to continue to participate in their faith communities will further public safety by providing support, stability and a grounded sense of right and wrong," Cooper wrote.

Cooper found the law banning sex offenders from volunteering in churches to be unconstitutionally vague, according to Sarah Geraghty, an attorney with the Southern Center of Human Rights. "It was the only way to rule consistent with the Constitution," Geraghty said. " Certain people on the registry should not work with children in a church setting or elsewhere, but criminalizing the practice of religion does more harm than good, and that’s what this statute did," Geraghty said. Geraghty said the law would make participating in Bible study a crime for sex offenders punishable by 10 to 30 years in prison.

The full ruling in Whitaker v. Perdue, No. 4:06-CV-0140-CC (N.D. Ga. March 30, 2009), can be accessed at this link.

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

"Opponents Focus On Cost In Death Penalty Debate"

The title of this post is the title of this piece from NPR's "Morning Edition."  Here is how the segment starts:

Efforts to repeal the death penalty are getting a boost from the economic crisis.  New Mexico repealed its death penalty in mid-March, and the Maryland Legislature has passed strict new limits on when the death penalty may be used. Death penalty repeal bills have advanced in several other legislatures, including those of Montana, Kansas and New Hampshire.

In all those states, there's been renewed interest in the argument that the death penalty costs considerably more than sentencing murderers to life in prison. Viki Elkey, executive director of the New Mexico Coalition to Repeal the Death Penalty, says lawmakers seemed especially interested in the financial argument this year.  "The cost issue has always been there, but of course it's been exacerbated this year because of the fact that the state is down $453 million," Elkey says.

Some recent related posts:

April 1, 2009 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

DOJ seeking now to drop all charges against former Senator Ted Stevens

The AP has this remarkable news in a high-profile case that I had thought was now primarily a sentencing story:

The Justice Department has asked a judge to drop corruption charges against former Sen. Ted Stevens, saying prosecutors withheld evidence from the trial that led to his conviction.

The 85-year-old Alaska Republican was convicted late last year on seven felony counts of lying on Senate financial disclosure forms to conceal hundreds of thousands of dollars in gifts and home renovations from a businessman.

In early morning court filings Wednesday, the Justice Department said prosecutors withheld evidence from Stevens' defense team that could have been used at trial. Prosecutors asked that the charges be dropped. They said they will not seek a new trial.

Some related posts:

April 1, 2009 in Celebrity sentencings | Permalink | Comments (9) | TrackBack

March 31, 2009

"Mom's plea deal includes 'resurrection clause'"

The title of this post is the title of this new piece at CNN.com.  Here are the fascinating particulars:

A Maryland woman involved with a group described as a religious cult pleaded guilty in the starvation death of her son, but insisted that the charges be dropped when he is resurrected.  The condition was made a part of Ria Ramkissoon's plea agreement, officials said.  She entered the plea Monday in Baltimore, Maryland, to a first-degree felony count of child abuse resulting in death, her attorney, Steven Silverman, said Tuesday.

Ramkissoon, a member of a group called One Mind Ministries, believes Javon Thompson, her year-old son, will rise again, and as part of her plea agreement, authorities agreed to the clause. "She certainly recognizes that her omissions caused the death of her son," Silverman said.  "To this day, she believes it was God's will and he will be resurrected and this will all take care of itself.  She realizes if she's wrong, then everyone has to take responsibility ... and if she's wrong, then she's a failure as a mother and the worst thing imaginable has happened.  I don't think that, mentally, she's ready to accept that."

Under the plea agreement, Ramkissoon, 22, must testify against four other One Mind Ministries members who are also facing charges, including first-degree murder, in Javon's death.  At her sentencing, set for August, she will receive a 20-year sentence, which will be suspended except for the time she has already served behind bars, Silverman said.  She must also undergo deprogramming and psychiatric counseling.

In court Monday, it was clarified that the "resurrection clause" would apply only in the case of Javon's actual resurrection -- not a perceived reincarnation, Silverman said. "This has never come up in the history of American law, as far as I've seen," Silverman said, adding that the clause was "very important to her."...

Ramkissoon and the others are accused of denying Javon food after the group's leader, a 40-year-old woman who goes by the name Queen Antoinette, decreed the boy was a demon since he refused to say "amen" after meals, Silverman said.  "Ria would cling to him every day and try to get him to say 'amen,' " Silverman said. Eventually, Queen Antoinette ordered that Ramkissoon be separated from the child, he said.

Javon is believed to have died in December 2006, court documents allege.  Following his death, the group members put the boy's body in a back room, and "everyone was directed to come in and pray," according to the documents.  "The Queen told everyone that 'God was going to raise Javon from the dead.'  Javon remained in the room for an extended period of time (in excess of one week). The resurrection never took place." 

Obviously, this is a serious matter and a sad case.  Nevertheless, I can already begin to imagine the late-night talk-show writers working this case into an opening monologue.  In addition, I cannot help but think about other possible unusual plea terms that this case might prompt.

March 31, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (10) | TrackBack

Eleventh Circuit affirms below-guideline sentence in "utterly gruesome" sex offense case

Late yesterday the Eleventh Circuit handed down a notable opinion in US v. Irey, No. No. 08-10997 (11th Cir. Mar 30, 2009) (available here). The start of the panel opinion provides a sketch of the particulars:

This appeal is about the discretion of a district court to impose a particular sentence. William Irey (“Defendant”) -- age 50 at sentencing -- pleaded guilty to using minors to engage in sexually explicit conduct outside the United States for the purpose of producing visual depictions of such conduct and transporting those images to the United States.  Believing that the sentence imposed on Defendant is too lenient, the government appeals Defendant’s sentence of 210 months’ imprisonment plus a life term of supervised release involving many different restrictions on his liberties.  We affirm the sentence.

While the ruling and majority opinion is itself noteworthy, a brief "special concurrence" by Judge Hill adds an extra layer of intrigue.  Here are snippets from this concurrence:  

I have studied this record and the sentencing transcript and the utterly gruesome details of the conduct involved here. I disagree with the conclusion by the district judge that there should have been a downward departure of any kind in this case.... The defendant acted deliberately, cunningly and with obvious delight. He ruined the lives of at least forty-three children (that we know of) and then published his triumphs on the internet for all the world to see, complete with scurrilous black marker writings tattooed on the nine-year-old girls’ skin.

Had I been given the heavy responsibility of sentencing in this case, my only regret would be that in the halls of Congress, the occupants of that legislative branch place an upward limit on this defendant’s confinement.  I strongly disagree with the district judge’s sentencing in this heinous case, as he moves so far downward from the maximum upper sentencing limit that he nearly reaches the minimum limit.

I am persuaded that the sentencing in this case is not a proper one. However I am more dedicated to my strong belief that district judges “on the firing line” should have free rein to exercise sentencing discretion.  Therefore, I am unwilling to say that the fact that I disagree with the sentence in this case is also sufficient grounds upon which to find abuse.

I reluctantly concur.

March 31, 2009 in Sex Offender Sentencing | Permalink | Comments (7) | TrackBack

Federal district judge enjoins controversial state sexting prosecution

As detailed in this Reuters article, a federal district judge "on Monday barred a Pennsylvania prosecutor from filing child pornography charges against three teenage girls caught with sexually suggestive pictures of themselves on their cell phones."  Thanks to How Appealing, you can read the judge's full opinion at this link, and here are more details from the Reuters article:

U.S. District Judge James Munley said he was issuing a restraining order on Wyoming County District Attorney George Skumanick because his proposed action would violate freedom of speech and parental rights.  The ruling came after the American Civil Liberties Union sued Skumanick on behalf of the girls and their families.  "The court agrees with the plaintiffs that the public interest would be served by issuing a TRO (temporary restraining order) in this matter as the public interest is on the side of protecting constitutional rights," the judge said....

Witold Walczack, legal director of the ACLU of Pennsylvania, welcomed the legal decision. "This country needs to have a discussion about whether prosecuting minors as child pornographers for merely being impulsive and naive is the appropriate way to address the serious consequences that can result from sexting," he said.

But Skumanick said it could encourage potential defendants to use the federal court system to evade state charges.  "My big fear is setting the precedent that would allow criminals in the state system seeking protecting in the federal system." Skumanick said.  When asked if he would appeal, he said was studying the opinion.

Based on the pretty remarkable factual allegations in this "sexting" case, I am neither surprised nor too troubled that the local DA was given a federal court smack-down in this case.  That said, I suspect that lots of state prosecutors ought to share the local DA's concern that this ruling in Miller v. Skumanick could (and should?) embolden any and all potential state criminal defendants to run to federal court to seek to preclude any and all constitutionally questionable state prosecutions. 

Indeed, I would suspect that anti-death-penalty litigators might want to take a page from the playbook of the ACLU of Pennsylvania.  Based on the theories sustained in Miller v. Skumanick, a state murder defendant being threatened by a local prosecutor with a capital indictment as part of plea negotiations might now consider running to federal court to assert various constitutional claims in order to try to preclude the local prosecutor from pursuing a state capital prosecution. 

Similarly, perhaps Second Amendment advocates can and should be able to use the ruling in Miller v. Skumanick to try to thwart any efforts by aggressive state prosecutors to pursue any kind of constitutionally questionable gun prosecution.  In fact, with Plaxico Burress having a hard time getting a favorable plea deal (basics here), his lawyers perhaps out to seriously consider heading over to the federal courts in Foley Square to assert Second Amendment claims in an effort to force New York state prosecutors to back off.

Some recent related posts:

March 31, 2009 in Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

Interesting pair of thoughtful sentencing rulings from the Seventh Circuit

As I continue to catch up on notable circuit rulings from last week when I was on the road, I came across two notable sentencing decisions from the Seventh Circuit.  Though covering quite different topics, both of these opinions merit attention and review because of the thoughtful engagement with defense arguments (even though the defendants wind up on the short end of the appeals):

March 31, 2009 in Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Thoughtful academic thoughts on ending marijuana prohibitions

Though President Obama last week gave too little respect or serious attention to the idea of legalizing marijuana in his on-line town hall meeting (background here), academics of late have been giving a lot of attention and respect to arguments for ending criminal prohibitions on marijuana.  Specifically, consider these notable articles that have all recently made appearances on SSRN:

March 31, 2009 in Drug Offense Sentencing | Permalink | Comments (14) | TrackBack

"Shrinking State Budgets May Spring Some Inmates"

The title of this post is the title of this piece from NPR's "Morning Edition."  Here is an excerpt:

This month, Kentucky Gov. Steve Beshear signed a law sending hundreds of drug offenders to treatment instead of prison. It's expected to save the state millions. Kansas, Montana and Pennsylvania are now doing the same. Other states are facing more drastic measures. California, South Carolina and Utah are considering letting thousands of inmates out early.

"This is a big bill that's coming due from a lot of overheated rhetoric from the '80s and '90s," said Adam Gelb, who studies prison costs for the Pew Center on the States. Gelb says prisons now house too many nonviolent property and drug offenders that never would have been sent to long prison terms in the past. "As we cast the correctional net wider and wider," he said, "we caught smaller and smaller fish."

But Tom Sneddon, of the National District Attorneys Association, says states should think carefully before they upend laws that he says reduced crime. He says there's no such thing as a small fish. "There aren't people sitting in prison that don't belong there," he said.

Sneddon says that in the 30 years he spent as a prosecutor, drug offenders were often charged with multiple crimes. But he says they're usually offered a plea deal for just one charge, making it seem as though they have been sent to prison on a single small charge. "To balance a budget on law enforcement and public safety's expense is not a wise policy decision to be made," he said.

Some recent related posts:

March 31, 2009 in Scope of Imprisonment | Permalink | Comments (2) | TrackBack

March 30, 2009

Talk of a plea deal to resolve gun charges against Plaxico Burress

Though press accounts are varied, this New York Times piece is reporting on a possible plea deal for football star Plaxico Burress to resolve his pending gun charges.  Here are the particulars of the report:

A plea deal is being seriously considered in the gun possession case against Plaxico Burress, the New York Giants’ wide receiver, and it appears likely that any agreement would require him to serve at least some time behind bars, a law enforcement official said on Sunday.

The details had not been finalized. Mr. Burress had been scheduled to appear at a hearing Tuesday in Manhattan Criminal Court, but his lawyer, Benjamin Brafman, said Monday that no plea agreement would be announced Tuesday and that the hearing would be postponed to another day.

Mr. Burress, 31, who caught the winning touchdown in the Giants’ Super Bowl victory in February 2008, turned himself in to the police on Dec. 1, nearly three days after he accidentally shot himself in the leg with an unlicensed handgun at a nightclub in Manhattan.  Mr. Burress was charged with two counts of second-degree criminal possession of a weapon, which carry a mandatory minimum sentence of 3½ years in prison if convicted.

Prosecutors commonly offer reduced charges in gun possession cases, taking into consideration things like a defendant’s criminal history, the reason for carrying the gun and the circumstances surrounding an arrest.  In Mr. Burress’s case, prosecutors may consider that he had been cooperative and that he did not appear to have a dubious motive in carrying the gun....

Last year, 986 cases in New York involving the same charges as Mr. Burress faces were resolved, and 90 percent of them resulted in convictions for less serious crimes, half of them misdemeanors or violations, said John M. Caher, a spokesman for the New York State Division of Criminal Justice Services.

The reduced charges in such cases include crimes like third-degree gun possession or attempted possession. Convictions on those charges allow for sentences of two years or less.

Alicia Maxey Greene, a spokeswoman for the Manhattan district attorney’s office, declined to comment on the case. Mr. Brafman would not discuss details of the negotiations, and the Giants and the N.F.L. also declined to comment.

Though I do not find a plea deal at all surprising, the academic in me was hoping that we might get a sentencing and Second Amendment showdown in this high-profile case.  Regular readers might recall that NYC Mayor Michael Bloomberg had called for Burress to be "prosecute[d] to the fullest extent of the law" and suggested he should serve the mandatory minimum sentence of 3½ years in prison for his crimes.  And, on the other side, at least one prominent Second Amendment advocate called for Burress to challenge his prosecution as unconstitutional in the wake of Heller.

Related posts on the Plaxico Burress case:

UPDATEThis Newsday commentary, headlined "Plaxico doesn't deserve pass: If Burress gets off easily, it will be celebrity justice," makes the case for throwing the book at Burress:

In this one, the evidence is so clear-cut it is laughable.  Everybody agrees that Burress had the gun in his possession. Everybody agrees that it was unlicensed.  Everybody agrees that it was loaded, because a round wound up passing through Burress' thigh.

Mayor Bloomberg has publicly called for Burress' head, and Morgenthau seeks and obtains more convictions and jail terms than any other borough for offenders in gun cases.

Hopefully, that will be enough to offset the strongest thing Burress and his lawyer have on their side — that he is rich and famous and has thousands of mindless idolaters out there who would like to see him walk under any circumstances.

March 30, 2009 in Celebrity sentencings | Permalink | Comments (1) | TrackBack

Ninth Circuit panel splits over adequacy of sentencing explanation

The Ninth Circuit has a long set of opinions covering lots of sentencing ground today in US v. Carter, No. 05-50303 (9th Cir. March 30, 3009) (available here).  Though all practitioners in the Ninth Circuit will want to check out this opinion, the case is more broadly notable because of the panel's split view over the adequacy of the district court's explanation for its long within-guideline sentence.  Here is a part of the partial dissent from Judge Tashima, which reveals the nature of the dispute:

[I]n imposing sentence, the court gave no indication that it had heard Carter’s arguments and imposed sentence with almost no explanation. I believe that the district court erred in failing to address Carter’s arguments, failing adequately to consider the § 3553(a) factors, and failing adequately to explain the sentence that was imposed....

Carter asked the court to apply the statutory mandatory minimum sentence of 360 months — a sentence already many times longer than those of his coconspirators. He argued that his criminal history category was overrepresented.... Carter asked the court to exercise its discretion and impose a below-guidelines sentence, taking into consideration his difficult childhood, his family situation and his young children, and the rehabilitative effect of what would be, under the statutory minimum, thirty years in prison.

Rather than addressing any of Carter’s arguments, the court applied the guidelines sentence, stating that the guidelines had “adequately taken into consideration [Carter’s] actions and criminal history,” and that the “lengthy sentence is sufficiently punitive and hopefully will deter against any further criminal activity.” This rote recitation of a few of the § 3553 factors does not begin to constitute “an individualized assessment based on the facts presented.”  Gall, 128 S. Ct. at 597.  Moreover, the court’s simple affirmative responses to the government’s pointed questions regarding Carter’s arguments do not provide a record that “makes clear that the sentencing judge listened to each argument.”  Rita v. United States, 127 S. Ct. 2456, 2469 (2007).

Relying on Ninth Circuit precedents in which little was said by a district court when imposing a within-guideline sentence, the majority in Carter was not so troubled by the procedural reasonableness of what happened in the district court.

March 30, 2009 in Booker in the Circuits | Permalink | Comments (3) | TrackBack

NY Times editorial backs Senator Jim Webb's reform plans

This morning the New York Times has this editorial, titled "Reviewing Criminal Justice," which praises Senator Jim Webb's crime and punishment reform bill.  Here are excerpts:

America’s criminal justice system needs repair.  Prisons are overcrowded, sentencing policies are uneven and often unfair, ex-convicts are poorly integrated into society, and the growing problem of gang violence has not received the attention it deserves. For these and other reasons, a bill introduced last week by Senator Jim Webb, Democrat of Virginia, should be given high priority on the Congressional calendar.

The bill, which has strong bipartisan support, would establish a national commission to review the system from top to bottom.  It is long overdue, and should be up and running as soon as possible....

Keeping people in prison who do not need to be there is not only unjust but also enormously expensive, which makes the problem a priority right now.  Hard-pressed states and localities that reduce prison costs will have more money to help the unemployed, avert layoffs of teachers and police officers, and keep hospitals operating....

The commission would be made up of recognized criminal justice experts, and charged with examining a range of policies that have emerged haphazardly across the country and recommending reforms. In addition to obvious problems like sentencing, the commission would bring much-needed scrutiny to issues like the special obstacles faced by the mentally ill in the system, as well as the shameful problem of prison violence.... 

There is no companion bill in the House, and one needs to be written.  Judging by the bipartisan support in the Senate, a national consensus has emerged that the criminal justice system is broken.

Relatedly, NPR's program "All Things Considered" had this segment on Senator Webb's reform efforts. Here is the set up:

Sen. Jim Webb introduced legislation last week establishing a blue-ribbon commission to retool the nation's prison system. The Virginia Democrat talks to host Jacki Lyden about the bill and why he feels the criminal justice system has to change.

Some related (old and new) posts:

March 30, 2009 in Scope of Imprisonment | Permalink | Comments (5) | TrackBack

The many fascinating legal and social issues swirling around "sexting"

I had a chance to read closely this federal complaint filed last week by the ACLU of Pennsylvania against a local district attorney who threatened three high school girls with child porn charges for appearing partially undressed in (provocative?) cell-phone pictures.  The complaint details the remarkable ways in which the local DA exercised his prosecutorial discretion in response to a "sexting" problem in a local school, and it asserts that his actions violated both the kids' First Amendment expression rights and their parents' rights to control their children's upbringing.

This interesting complaint confirmed my sense that there are an array of fascinating legal and social issues surrounding the phenomenon of "sexting."  And the Newark Star-Ledger had this effective article, headlined "A debate swirls over teens' lurid pictures: Should self-portraits draw harsh penalties?," highlighting that these issues are arising in many places in many different ways:

In Indiana, a middle-school boy faces obscenity charges for transmitting naked photos of himself to female classmates.  And last week in Passaic County, authorities accused a 14-year-old Clifton girl of distributing child pornography, saying she posted nude portraits of herself on MySpace.

In a growing number of states, law enforcement agencies are cracking down on teens who use cell phones and social networking sites to share lurid photographs.  Prosecutors say they are trying to stamp out a dangerous trend.  But their use of stringent child-pornography and sex-offender laws has ignited a debate.  "Do we really want to tag this 14-year-old girl as a sex offender for the next 30 years?" asked Bill Albert, spokesman for the National Campaign to Prevent Teen and Unplanned Pregnancy.  "Communities nationwide are scratching their heads about what role, if any, law enforcement should play in these cases."

A key hurdle for prosecutors is that technology has outpaced the legal system.  Most states don't have laws specifically addressing teens who transmit explicit images, a practice sometimes referred to as "sexting."

The only New Jersey laws applicable to the Clifton case are those designed for sexual predators and child pornography traffickers, said Parry Aftab, executive director of the nonprofit group WiredSafety.org.  Authorities suspect the 14-year-old, arrested Tuesday, took and posted nearly 30 explicit images of herself for her boyfriend to see.  If true, it makes for an unusual criminal case: The victim is also the perpetrator.

Any new or aspiring law professor might do well to start a sexting law and policy blog.  The combination of issues here — involving juvenile sexuality and criminality, severe child porn laws, new technologies, legal uncertainty and prosecutorial discretion, and constitutional law — all but ensures that sexting topics will draw lots of legal and social attention for quite some time.  Anyone who tracks major sexting cases and debates — and thus becomes an academic expert on these matters — likely will have their phone constantly ringing and an always full e-mail in-box.

March 30, 2009 in Sex Offender Sentencing | Permalink | Comments (40) | TrackBack

Rapper T.I. defends his special plea and sentencing deal

Recently sentenced rapper T.I. is talking about his sentencing fate in ways that may add heat to the debate over whether he got special treatment.  This MTV story has some of the choice quotes from T.I.'s first post-sentencing interview:

The sentencing judge called it "experimental." The U.S. attorney who helped broker the arrangement called it "unique."  And T.I. himself acknowledged that his plea deal — which reduced a potential 10-year prison term into community service and, more than likely, less than a year's worth of jail time — was "an opportunity."

T.I. wasn't the recipient of the plea deal because he snitched, he's often said.  Nor did he get the benefit of the doubt from the legal system because he's rich.  Tip landed his plea deal due to a combination of his fame, his familiar troubled past and his ability to recount his transformation from trap star to rap star as a means of influencing at-risk youth.

"If they would have gave Joe Blow, who got arrested with guns the next day or the next week — if [the court] would have gave him my deal, could he have turned around and given as much back to the community as I have? No he couldn't,"  T.I. told MTV News....  "I showed I was worthy of this and this was something possible," Tip continued. "So they decided the opportunity was worth the chance."

March 30, 2009 in Celebrity sentencings | Permalink | Comments (0) | TrackBack

March 29, 2009

Why isn't there more constitutional litigation over the "hellhole" that is extended solitary confinement?

Solitary Today I finally found the time to read this terrific examination of solitary confinement appearing in the March 30 issue of The New Yorker.  The piece by Atul Gawande is titled "Hellhole: The United States holds tens of thousands of inmates in long-term solitary confinement. Is this torture?". Here are just a few choice snippets from a piece that merits a full read:

Most hostages survived their ordeal [involving solitary confinement] although relationships, marriages, and careers were often lost.  Some found, as John McCain did, that the experience even strengthened them.  Yet none saw solitary confinement as anything less than torture.  This presents us with an awkward question: If prolonged isolation is — as research and experience have confirmed for decades — so objectively horrifying, so intrinsically cruel, how did we end up with a prison system that may subject more of our own citizens to it than any other country in history has?...

Prison violence, it turns out, is not simply an issue of a few belligerents. In the past thirty years, the United States has quadrupled its incarceration rate but not its prison space.  Work and education programs have been cancelled, out of a belief that the pursuit of rehabilitation is pointless.  The result has been unprecedented overcrowding, along with unprecedented idleness — a nice formula for violence.  Remove a few prisoners to solitary confinement, and the violence doesn’t change.  So you remove some more, and still nothing happens. Before long, you find yourself in the position we are in today.  The United States now has five per cent of the world’s population, twenty-five per cent of its prisoners, and probably the vast majority of prisoners who are in long-term solitary confinement.

It wasn’t always like this.  The wide-scale use of isolation is, almost exclusively, a phenomenon of the past twenty years.  In 1890, the United States Supreme Court came close to declaring the punishment to be unconstitutional.  Writing for the majority in the case of a Colorado murderer who had been held in isolation for a month, Justice Samuel Miller noted that experience had revealed “serious objections” to solitary confinement...

Prolonged isolation was used sparingly, if at all, by most American prisons for almost a century. Our first supermax — our first institution specifically designed for mass solitary confinement — was not established until 1983, in Marion, Illinois.  In 1995, a federal court reviewing California’s first supermax admitted that the conditions “hover on the edge of what is humanly tolerable for those with normal resilience.”  But it did not rule them to be unconstitutionally cruel or unusual, except in cases of mental illness.  The prison’s supermax conditions, the court stated, did not pose “a sufficiently high risk to all inmates of incurring a serious mental illness.”  In other words, there could be no legal objection to its routine use, given that the isolation didn’t make everyone crazy. The ruling seemed to fit the public mood.  By the end of the nineteen-nineties, some sixty supermax institutions had opened across the country.  And new solitary-confinement units were established within nearly all of our ordinary maximum-security prisons.

The number of prisoners in these facilities has since risen to extraordinary levels.  America now holds at least twenty-five thousand inmates in isolation in supermax prisons.  An additional fifty to eighty thousand are kept in restrictive segregation units, many of them in isolation, too, although the government does not release these figures.  By 1999, the practice had grown to the point that Arizona, Colorado, Maine, Nebraska, Nevada, Rhode Island, and Virginia kept between five and eight per cent of their prison population in isolation, and, by 2003, New York had joined them as well.  Mississippi alone held eighteen hundred prisoners in supermax — twelve per cent of its prisoners over all....

This past year, both the Republican and the Democratic Presidential candidates came out firmly for banning torture and closing the facility in Guantánamo Bay, where hundreds of prisoners have been held in years-long isolation.  Neither Barack Obama nor John McCain, however, addressed the question of whether prolonged solitary confinement is torture.  For a Presidential candidate, no less than for the prison commissioner, this would have been political suicide.  The simple truth is that public sentiment in America is the reason that solitary confinement has exploded in this country, even as other Western nations have taken steps to reduce it.  This is the dark side of American exceptionalism.  With little concern or demurral, we have consigned tens of thousands of our own citizens to conditions that horrified our highest court a century ago....  In much the same way that a previous generation of Americans countenanced legalized segregation, ours has countenanced legalized torture.  And there is no clearer manifestation of this than our routine use of solitary confinement — on our own people, in our own communities, in a supermax prison, for example, that is a thirty-minute drive from my door.

The article's efforts to draw parallels in this last paragraph to segregation and GTMO help spotlight my own belief that constitutional lawyers and policy policy groups have been complicit, at least indirectly, in the growth of solitary confinement in prison nation.  A generation ago, many civil rights lawyers and policy policy groups attacked segregation through constitutional court battles.  And, in modern times, many lawyers and public policy groups have be actively attacking GTMO, as well as just about every aspect of the death penalty.  But, while a few hundred accused terrorists and murderers have lots and lots of constitutional lawyers and activists running to court on their behalf, many thousands of lesser criminals confined to the hellhole of supermax prisons languish with very few persons even thinking about their plight, let alone fighting in court on their behalf.

Some related posts:

UPDATE: NPR's program "All Things Considered" had this segment on the article and the topic of solitary confinement.  Here is the set up:

Humans are social animals; deprived of regular contact, we lose our minds. And that's just what's happening in solitary confinement cells across the country — that according to surgeon and author Atul Gawande, whose article in the current issue of New Yorker magazine looks at the effects of extended solitary confinement. Gawande talks to host Jacki Lyden about the personal toll of solitary confinement.

March 29, 2009 in Scope of Imprisonment | Permalink | Comments (19) | TrackBack

A pretty good week in the circuits for a few federal defendants

Because I was on the road most of last week, I was unable to effectively keep up with all the circuit sentencing rulings.  But my quick review of the circuit week that was seems to suggest that a few federal defendants did better than usual with sentencing appeals in the circuits.  Specifically, defendants got victories in all these cases:

None of these rulings seem especially ground-breaking, but victories for defendants on sentencing appeals are rare enough to make these cases still noteworthy.  (And, of course, defendants lost a lot more sentencing appeals last week than they won).

March 29, 2009 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

Will AG Holder change DOJ sentencing practicies that seem inconsistent with "the rule of law, equality before the law, and the applicability of Due Process"?

As detailed in this post at The BLT, Attorney General Eric Holder was officially installed in his position just this past Friday in a formal ceremony in which he gave this speech.  Though many might view AG Holder's speech as filled with "rah-rah" Justice Department boiler-plate, this paragraph stood out to me:

Ours is a nation of laws, guided by principles that reflect the essential goodness of the American people. Many of these values – adherence to the rule of law, equality before the law, and the applicability of Due Process – are as well-known as they are timeless.  And yet, these principles can only truly be the animating force of our legal system if we, both individually and collectively, make it so. That is why, Mr. President, I pledge to you, to my fellow Department of Justice employees, and to the American people as a whole that I will lead a Department of Justice that is firmly rooted in, and solely guided by, these sacred principles.  In all that we do, in all that requires us to make the difficult judgments that must withstand the scrutiny of the ages, these values will serve as our eternal touchstone.

Sounds good to me, and I truly hope that these "sacred principles" serve as a "sole guide" and an "eternal touchstone" for all the important work of the Department of Justice in the months and years ahead.  And, with all due respect, I must assert that, in order to truly live up to these principles, all the folks at DOJ need to seriously reconsider certain of its sentencing policies and practices. 

Though one might make a pretty long list of DOJ sentencing practices that seem inconsistent with "adherence to the rule of law, equality before the law, and the applicability of Due Process," in my view these five particular practices justify immediate attention by the new AG:

  1. lack of consistency and transparency concerning child porn prosecutions and plea deals;
  2. lack of consistency and transparency concerning "fast-track" departure motions;
  3. lack of consistency and transparency concerning "substantial assistance" departure motions
  4. frequent (and also inconsistent) inclusion of appeal waivers in plea agreements
  5. aggressive reliance on acquitted conduct in guideline calculations to enhance sentences

In areas 1-4 above, opaque and unregulated discretion seems far more prominent than equality and due process.  And both area 4 and 5, in my view, seem inconsistent with historical conceptions of due process and even the "essential goodness of the American people." 

Commentors are, of course, welcomed and encouraged to spotlight other DOJ policies and practices that seem to be inconsistent with the "sacred principles" that AG Holder has pledged to champion.

March 29, 2009 in Who Sentences? | Permalink | Comments (5) | TrackBack

Death penalty news and notes

While I was on the road last week, I was not able to keep up with various death penalty developments.  Fortunately, there are no shortage of website to which one can turn for catching up, and there are lots of new items at these anti-DP sites:

March 29, 2009 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Noting the Second Amendment dogs that did not bark in Hayes

Now available via SSRN is this effective little piece of student scholarship commenting on the Supreme Court's work last month in US v. Hayes upholding a gun possession conviction for a misdemeanant.  The piece is is titled "To Heller and Back: Why Many Second Amendment Questions Remain Unanswered After United States v. Hayes," and here is the abstract:

In District of Columbia v. Heller, the U.S. Supreme Court held that the Second Amendment protects an individual right to possess firearms.  More recently, in United States v. Hayes, the Supreme Court upheld a federal statute which criminalizes the possession of firearms by persons previously convicted of misdemeanor domestic violence offenses.  This essay argues that the Hayes decision cannot be squared with the individual right to keep and bear arms enunciated in Heller.

Some related Second Amendment posts:

March 29, 2009 in Second Amendment issues | Permalink | Comments (0) | TrackBack