April 18, 2009
Should the US Sentencing Commission have more members?
A conversation with a thoughtful sentencing observer got me to thinking about whether folks interested in significant reform of the federal sentencing system might urge a novel structural change in a key federal sentencing player. Specifically, perhaps the US Sentencing Commission, which only has seven members and has often through its history been beset with disruptive vacancies, ought to be bigger. Many state sentencing commissions are double the size, and there are lots of reasons to believe that larger, more diverse commissions are better able to propose, promote and protect new and needed sentencing reforms.
April 17, 2009
Notable student note defending a new ex post facto analysis after Booker
As I have indicted in a prior post, I think one of the most interesting and amazingly underexamined post-Bookerissue concerns whether or not the conversion of the guidelines to advisory status changed the settled pre-Booker determination that ex post facto doctrine precluded the application of new harsher guidelines to old crimes. Consequently, I am pleased to see this new student note on the issue, titled "Defending Demaree: The Ex Post Facto Clause's Lack of Control Over the Federal Sentencing Guidelines after Booker." Here is the abstract:
In 2005, the U.S. Supreme Court held that the Federal Sentencing Guidelines violated a defendant's Sixth Amendment right to a jury trial because they allowed a judge to depart from a mandatory range based on facts not presented to a jury. As a solution, the Court modified the Guidelines to be "advisory," yet curiously held that sentences were still subject to appellate review for reasonableness. Given this tension, U.S. courts of appeals are split on whether the Guidelines are "laws," subject to the Ex Post Facto Clause of the U.S. Constitution. This Note argues that the Guidelines are advisory, given the level of deference the Supreme Court and circuit courts have recently given to sentencing judges in departures from the Guidelines, and thus they are not "laws" under the Ex Post Facto Clause.
As I have noted before here, I believe that the Justice Department's official position on this ex post facto issue has changed after the Supreme Court's ruling in Irizarry. But I am not sure if there are any good cases in the pipeline to get this issue to before SCOTUS anytime soon.
Justice very delayed in a capital case leads to a reprimand
Anyone who wonders why some capital cases take sooooo long to make their way though the various layers of appeals available to capital defendants should be sure to check out this local article. Here are snippets:
A Shelby County Criminal Court judge was publicly reprimanded today for taking more than seven years to rule on an appeal in a death penalty case.
The Tennessee Court of the Judiciary issued the reprimand against Judge Carolyn Wade Blackett, citing state laws that require the appeal — called a petition for post-conviction relief — to be handled within one year of its filing and ruled on within 60 days after the petition has been heard.
The petition of Perry Cribbs was filed April 13, 1998, but Blackett did not enter her ruling for seven years, five months and 21 days.
En banc Third Circuit upholds probation sentence in tax evasion case
On the heels of yesterday's long panel ruling finding a child porn downloader's sentence unreasonable as too harsh in Olhovsky (discussed here), the Third Circuit today issued an even longer en banc opinion in US v. Tomko, No. 05-4997 (3d Cir. April 17, 2009). A helpful reader send me the ruling (which does not yet appear on line, but can be downloaded below), and here is how the majority opinion starts:
The Government appeals the reasonableness of William Tomko’s below-Guidelines sentence of probation, community service, restitution, and fine for his tax evasion conviction. If any one of a significant number of the members of this Court — including some in today’s majority — had been sitting as the District Judge, Tomko would have been sentenced to some time in prison. But “[t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Gall v. United States, 128 S. Ct. 586, 597 (2007).... Where, as here, a district court decides to vary from the Guidelines’ recommendations, we “must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. at 597. These principles require us to affirm Tomko’s sentence.
The full majority opinion runs nearly 40 pages, and the dissent also runs almost another 40. Both sides make a bunch of good points, and it is especially interesting to speculate about whether the Justice Department might be inclined to seek cert in this case.
UPDATE: The Tomko decision is now available on-line at this link.
Some notable cert petitions to watch
After another mid-season break, the Supreme Court start the always exciting final stretch of the Term with a cert conference today. Though we may not hear the results until Monday, the folks at SCOTUSblog in this post spotlight these two notable cases for criminal justice fans that have a good chance of becoming merits cases in the fall:
Title: Oliver v. Quarterman
Issue: Does juror consultation of the Bible during sentencing deliberations deprive a defendant of Sixth Amendment rights and what standard of proof should apply in evaluating the possible prejudice to the defendant?
In addition, I believe this cert conference also has at least one crack retroactivity petition and a few other federal sentencing cases that could possibly get the Justices' attention.
April 16, 2009
Third Circuit issues big opinion finding child porn sentence unreasonable
The Third Circuit has a major new sentencing decision today in a child porn case. The decision in US v. Olhovsky, No. 07-1642 (3d Cir. April 16, 2009) (available here), runs 73 pages, but its first paragraph is brief and provides an effective summary of the ruling:
Nicolau Olhovsky appeals the sentence of six years imprisonment that was imposed after he pled guilty to possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). He argues both that the sentence is unreasonable and that the sentencing court erred as a matter of law in refusing to allow his treating psychologist to testify at the sentencing hearing. For the reasons that follow, we agree. Accordingly, we will remand for resentencing.
UPDATE: I found the time late this evening to make it all the way through the Olhovsky opinion. The case and this ruling are remarkable for many reasons, and all federal sentencing fans will want to take the time to review closely the reasonableness discussion of the last 25 pages.
Of particular note, as Peter G. flags in the comments, Olhovsky appears to be the first case in which a circuit found a below-guidelines sentence of imprisonment to be substantively unreasonable as too harsh in light of the overarching parsimony principle of 3553(a). Yet, because the facts of Olhovsky are so remarkable and distinctive, it seems unlikely that this ruling will have too broad of an impact in other setting. Still, it is nice to see a panel finally give some real attention to the parsimony principle and to its obligations to judge the substantive reasonableness of a prison term in light of all the 3553(a) factors and not just in terms of the calculated guideline range.
The latest, greatest federal sentencing data from the USSC
The US Sentencing Commission has some fresh new sentencing data now up on its website. The USSC's latest data report, which can be accessed here, is described this way:
First Quarter FY09 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first quarter of fiscal year 2009. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published April 15, 2009)
The new data continue to show remarkable stability in the operation and application of the advisory federal guideline sentencing system: these data show, yet again, that just under 60% of all federal sentences are within the calculated guidelines range, with prosecutors requesting a below-range sentence in nearly 25% of all cases.
Not long after the election, I speculated here that ground-level sentencing trends might show the imprint of a new administration before there were any formal legal and policy developments. Interestingly, these latest numbers reveal a slight uptick in the number of judge-initiated departures and a slight down-tick in the number of prosecutor-initiated departures. But these changes seem to be too slight at this early stage to assert that the federal sentencing times are a-changing.
Troy Davis gets no relief on innocence claims in Eleventh Circuit
The Eleventh Circuit today in this long per curiam opinion disposes of the legal claims of Georgia death row defendant Troy Davis. Here is how the opinion starts:
On October 22, 2008, Troy Anthony Davis (“Davis”), a Georgia death row inmate, has filed an application with this Court seeking authorization to file a second or successive 28 U.S.C. § 2254 federal habeas petition, raising for the first time a freestanding actual innocence claim. Davis had previously filed a federal habeas petition in the United States District Court for the Southern District of Georgia in 2001, alleging, among other things, violations of Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972), Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), and Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Davis now claims that his execution would violate the Eighth and Fourteenth Amendments because he is actually innocent of the offense of murder. We took the unusual step of staying Davis’s execution, which had been scheduled for October 27, 2008, and ordered the parties to submit further briefs. Thereafter, we scheduled the case for oral argument. Having the benefit of the parties’ briefs and after hearing extensive oral argument, we deny Davis’s application.
This ruling will surely get lots and lots of attention from all the usual death penalty suspects, which of course includes many Justices of the Supreme Court. It will be interesting to see if SCOTUS will eventually take up this case.
What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
I am having a hard time figuring out what to think about the whole tea party movement, though at times it seems that even those involved in the movement are not always sure what exactly the whole tea party movement is really about. Helpfully, PJTV and Glenn Reynolds here provide this overview:
America is on the brink of another revolution. In a new American Tea Party, citizens across the USA are beginning to protest giant government programs that reach deep into their pockets. These programs create huge economic burdens on American families and threaten their livelihood now and into the future.
As regular readers know, one of the most sizable "giant government programs" run by many states (especially so-called "red states") are criminal justice programs that "create huge economic burdens" in the course of seeking to execute certain murderers, chasing lots of drug users and dealers, and locking up many thousands of individuals. I hope that criminal justice programs, which seems likely to result in as much wasteful spending as any other "giant government program," do not that escape the attention and criticisms of those involved in the tea party movement.
Of course, much of the tea party movement seems focused on federal spending, but again there is reason to have serious criminal justice spending concerns. This page at the DOJ websitenotes that the "American Recovery and Reinvestment Act of 2009 (H.R.1) includes $4 billion in Department of Justice grant funding to enhance state, local, and tribal law enforcement efforts, including the hiring of new police officers, to combat violence against women, and to fight internet crimes against children." Though $4 billion no longer seems like a lot of money, the array of scandals and problems surrounding DOJ in recent years leads me to hope that the tea party folks will keep the "giant" Justice Department in its critical sights.
Some related (old and new) posts:
- The state of cost problems in the states of prison nation
- Terrific commentary and assessment of the war on drugs
- Why we need a re-entry czar and a task force on the prison economy
- Why is Senator Jim Webb the only national figure focused on the prison economy?
- A dollars and sense criticism of Senator Obama's crime-fighting plans
- A good question about prison nation ... dodged
- Senator Biden, crime and punishment
- What will the new libertarian presidential candidate say about mass incarceration and the drug war?
- FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"
(Phony?) sentencing expert convicted of fraud for impersonating lawyer
Many practitioners know the name Howard O. Kieffer from his federal sentencing work in a vareity of settings on a variety of issues. But, as detailed in this AP article and this local piece, Kieffer now need to devote his expertise to his own upcoming sentencing after his federal conviction this week. Here are the fascinating details:
A federal court jury has convicted a Duluth man on charges of mail fraud and false statements in impersonating a lawyer. A prosecutor says he hopes the case continues in other states. Authorities said Howard O. Kieffer, 54, represented clients in at least 10 states. North Dakota was the first to charge him.
The Bismarck jury of seven men and five women reached a verdict after about an hour and a half of deliberation Wednesday afternoon. Kieffer faces up to 25 years in prison and a $500,000 fine. U.S. District Judge Patrick Conmy did not immediately set a sentencing date but ordered Kieffer to remain on home confinement until sentencing....
“I hope there are other districts in this country that will pursue something,” Assistant U.S. Attorney David Hagler said immediately after the two-day trial. Hagler told jurors that Kieffer made his own rules and befriended reputable attorneys because “he needed to use them” to vouch for him in applying to practice law.
Kieffer’s attorney, Joshua Lowther, called no witnesses, but he said the government did not prove its case beyond a reasonable doubt. Kieffer did not testify at his trial.
Prosecutors called two witnesses Wednesday who said they paid Kieffer at least $20,000 to appeal prison sentences for their loved ones, only to find out later he was not an attorney.
Ken Henderson of Woodbury, Minn., testified he paid Kieffer $25,000 to file an appeal for his wife, Denise, after her conviction for lying to the government in a Social Security fraud case. Natasha Caron of Naples, Fla., said she paid Kieffer $20,000 for an appeal of her son’s drug conviction.
Neither appeal succeeded. Henderson said his wife found out in talking with other federal prisoners that Kieffer was not really an attorney. Caron said her daughter found out Kieffer was a phony by searching prison Web sites. She said her son’s conviction and Kieffer’s handling of the case caused her “health and emotional collapse.” “I put my son’s case in this man’s hands and he was not an attorney,” Caron testified....
Other attorneys testified earlier that they thought Kieffer was one of their colleagues because he seemed to know about federal court matters and because they saw him at attorney training seminars. Bismarck attorney Chad McCabe said he vouched for Kieffer on his application to practice law in North Dakota.
Cases Kieffer handled outside North Dakota include that of former St. Louis Blues player Michael Danton, who pleaded guilty in 2004 to plotting to kill his agent, and a Colorado woman who was convicted of soliciting the killing of her former husband.
Kieffer was charged in North Dakota last year after one of his clients, a man accused of child pornography, wrote to U.S. District Judge Dan Hovland in Bismarck, raising questions about whether Kieffer had ever been a licensed attorney. Conmy had said Hovland would be among the trial witnesses but the judge did not testify.
Court records show Kieffer was convicted earlier of theft and filing false tax returns and served time in a federal prison from 1989 to 1992.
I would be eager to hear in the comments about what sort of sentencing readers think would be appropriate in this case. Folks who knew Keiffer are especially encouraged to share their thoughts.
Colorado legislature moving toward death penalty repeal and additions sentencing reforms
As detailed in this Denver Post article, headlined "House backs death-penalty demise: Another vote is needed before the Senate gets the bill, which would use the money saved to solve cold cases," the Colorado legislature is moving forward on a death penalty repeal proposal. In addition, some other sentencing reforms all also moving forward with cost issues front and center. Here are a few particulars:
Colorado's death penalty took one step toward the grave Wednesday as lawmakers in the state House gave initial approval to a bill that would end capital punishment and use the savings to solve cold cases. House Bill 1274 progresses as lawmakers prepare to take up a proposal next week that would drastically cut sentences for nonviolent, drug and property offenses and end jail time altogether for some offenders.
Both plans have earned the ire of district attorneys, who argue that such changes will encourage crime and make it more difficult to properly punish the most heinous criminals. Five Democrats stood with the Republican caucus in opposing HB 1274, though it wasn't enough to kill the legislation.
House Majority Leader Paul Weissmann, the bill's sponsor, isn't celebrating yet, saying the final role call vote on the bill will pose a tough hurdle. He's pitching the legislation as a way to save state money and make streets safer by helping to clear some of Colorado's 1,400-plus unsolved murder cases.
"You can debate all day long the morality of the death penalty. You'll never resolve it," said Weissmann, D-Louisville. "Any other part of government that spent this much money and was so rarely used would be one of the first things we set out to cut." Colorado has executed one person in four decades and has two more murderers on death row.
The bill's opponents argued that without the death penalty, there would be no checks on inmates already sentenced to life who might kill guards or other inmates, or order killings from prison. Some critics, like Democratic Rep. Edward Casso of Thornton, said capital punishment is one of a handful of issues voters should decide directly.
Legislative analysts estimate the bill could save Colorado about $800,000 a year and put $883,000 a year toward solving cold-case murders.
Meanwhile, the bill to overhaul Colorado's sentencing scheme is also being pitched as a way to save millions of dollars by putting fewer people in prison for shorter durations. Proponents say treatment and probation get better results than jail time for low-level offenders.
April 15, 2009
Iowa legislature working on revising state's sex offender residence restriction
This local story out of Iowa provides details on a fascinating legislative development from the state that largely pioneered the use of extreme sex offender residency restrictions:
Key lawmakers say they are close to an agreement on a plan to revise state laws dealing with sex offenders and scaling back a controversial law that prohibits offenders from living within 2,000 feet of a school or day care.
Law enforcement officials have criticized the 2,000-foot law for years, saying it’s difficult to enforce. Large areas of cities were off limits as places to live for convicted offenders whose crimes were against children.
A bipartisan group of lawmakers has been meeting behind closed doors in recent weeks to hash out a plan to revise the law and still provide protection to the public. Sen. Keith Kreiman, D-Bloomfield, said the latest version of working group’s plan would apply the 2,000-foot rule only to the most serious offenders. “I think the agreement will have the support of law enforcement and victims’ groups,” Kreiman said.
But the plan would clamp down on all people on the state’s sex offender registry and prohibit them from going into or working in exclusionary zones that would include schools, libraries and places where groups of children gather. Offenders also would be prohibited from loitering within 300 feet of areas covered by those zones. Under the plan, corrections officials would have discretion to decide which sex offenders would wear bracelets with real-time, GPS tracking abilities. Sex offenders on the state’s registry would have additional reporting requirements to local sheriff’s offices.
Kreiman, who is chairman of the Senate’s Judiciary Committee, said he’s not sure whether a deal has been reached on the package. Majority Democrats are looking for support from Republicans as well as Gov. Chet Culver before bringing the package to a vote. “I think we’re very, very close” on reaching a deal, Kreiman said.
"Man shoots self, gets 33 months"
The title of this post is the comical headline given to this local story of a recent federal sentencing. Here is the fuller explanation:
A Winslow man who accidentally shot himself in the leg with a stolen gun more than four years ago was sentenced in U.S. District Court on April 8 to 33 months for violating firearm laws.
Dennis L. Whitman, 26, also was sentenced by U.S. District Judge John Woodcock to three years of supervised released after he completes his sentence. Whitman pleaded guilty in January to possession of a stolen gun and possession of a gun after being convicted of a crime of domestic violence.
He was charged after Winslow police were called on Aug. 26, 2004, to MaineGeneral Medical Center’s Thayer unit in Waterville to investigate an accidental shooting. Whitman, according to court documents, accidentally shot himself with a .22-caliber handgun that was tucked into his waistband when he was helping a friend move furniture into an apartment.
Whitman told police that he had wrapped the gun in a blue towel and given it to the friend he had been with when he was shot and told him to get rid of it because it was stolen. When interviewed, Whitman’s friend said he had taken the gun to the Waterville-Winslow bridge and thrown it into the Kennebec River.
A Kennebec County Sheriff’s Department dive team found the gun, according to court documents. By tracing the serial number, police confirmed that it had been reported stolen on Aug. 19, 2004, from a Searsport home. Whitman admitted that he knew the gun had been stolen but refused to tell police who had given it to him.
He was indicted by a federal grand jury in September 2007 and arrested the next month. He pleaded guilty to the charges in December. He faced up to 10 years in prison and a fine of up to $250,000. Under the prevailing federal sentencing guidelines, he faced between 33 and 41 months in prison.
Though the federal charges in this case are legally distinct from the New York state gun charges facing Plaxico Buress, he and his lawyers will surely take no comfort from a headline suggesting that nearly three years in prison is the going rate for stupid self-shootings.
Renewing a lawyerly pitch for ending drug prohibition
Thanks to this postat TalkLeft, I see that the New York City Bar Association's Committee on Drugs and the Law has issued this interesting five-page document titled "A Wiser Course: Ending Drug Prohibition, Fifteen Years Later." Here are snippets from the start of the report:
In 1994, the New York City Bar Association’s Committee on Drugs and the Law concluded that the societal costs of drug prohibition are too high to justify it as a policy and called for a national dialogue on alternatives. Fifteen years later, that dialogue has not occurred, we are no closer to a drug-free society, and the problems associated with the illegal drug trade are worse than ever....
On June 10, 1994, the Committee on Drugs and the Law (the “Committee”) of the New York City Bar Association released a report (the “Report”) entitled “A Wiser Course: Ending Drug Prohibition.” It is available at http://www.nycbar.org/pdf/report/94087WiserCourse.pdf
The Report argued in detail, inter alia, that drug prohibition strains the judicial system with no apparent diminution in drug trade or drug use, fills prisons at great expense to the taxpayers, disproportionately punishes racial minorities, corrupts police and erodes constitutional rights, subsidizes organized crime, drafts poor children into the drug trade, causes violence by engendering competition over the lucrative illegal drug market, fails to decrease demand for drugs, facilitates the spread of disease and impairs the health of drug users, and diverts resources from prevention and treatment to law enforcement.
In short, the Report argued that U.S. drug control policy is the cause of, rather than the solution for, many social problems associated with drugs, and it identified several alternatives to prohibition proposed by members of the federal judiciary (including repeal of all federal laws banning drug sales and possession in favor of state-level drug control, a policy of reduced arrests, and sale of drugs through state stores) without advocating any specific policy....
Today the Committee makes a renewed call for a serious discussion of U.S. drug policy through a focus on the medical paradigm and the Controlled Substances Act.
Some recent related posts:
- Thoughtful academic thoughts on ending marijuana prohibitions
- "Time For Marijuana Legalization?"
- Terrific commentary and assessment of the war on drugs
- More calls for an end to the drug war and legalization of marijuana
"The cost of capital punishment"
The title of this post is the headline of this editorial against the death penalty appearing in today's Boston Globe. Here are snippets:
It may be too soon to call it a trend, but two states have abolished the death penalty in the past three years, and 10 others have legislation pending. States and voters are reconsidering capital punishment, and many have a new reason: money....
A recent study by the Urban Institute found that an average death penalty trial costs a state about $2 million more than a murder trial where no death penalty is sought. The Death Penalty Information Center estimates that keeping an inmate on death row costs $90,000 a year in extra security. Almost every state is facing a deficit, and getting smart about corrections budgets is an unexpected side benefit.
Abolitionists will take whatever argument they can, but money isn't the only, or the best, reason to stop executions. The death penalty is not a deterrent to most deadly crimes. It is applied unevenly. It places the United States among the world's most brutal regimes. And there are 130 other reasons: the 130 death-row inmates who were exonerated by new evidence. Their deaths would have carried an awful price tag.
Two notable sex offender rulings from the Missouri Supreme Court
As detailed in AP articles here and here, the Missouri Supreme Court has ruled against a couple of sex offender in a couple of interesting settings. The headlines of the articles provides a summary of the rulings: " Missouri Supreme court upholds 2005 child-visitation law for sex offenders" and "Mo. Supreme Court says psychologist licensure cannot stop hearing for sex offender."
April 14, 2009
New report from The Sentencing Project on the drug war's racial dynamics
Continuing its well-established traditions of producing interesting, informative and timely reports on hot criminal justice topics, the folks at The Sentencing Project have a new study looking at race and the drug war. Here are the details from the text of an e-mail I just received:
For the first time in 25 years, since the inception of the "war on drugs," the number of African Americans incarcerated in state prisons for drug offenses has declined substantially, according to a study released today by The Sentencing Project. It finds a 21.6% drop in the number of blacks incarcerated for a drug offense, a decline of 31,000 people during the period 1999-2005.
The study, The Changing Racial Dynamics of the War on Drugs, also documents a corresponding rise in the number of whites in state prison for a drug offense, an increase of 42.6% during this time frame, or more than 21,000 people. The number of Latinos incarcerated for state drug offenses was virtually unchanged.
The study notes that the black declines in incarceration represent "the end result of 50 state law enforcement and sentencing systems" which need to be examined individually. But overall, the decline in blacks incarcerated for a drug offense follows upon declining arrest and conviction rates for blacks as well. The study suggests much of the disparity resulting from the drug war has been a function of police targeting of open-air drug markets. As crack use and sales have declined, or moved indoors in some cases, law enforcement activity may have been reduced correspondingly.
Because of the rising number of whites in prison for a drug offense, the overall number of persons serving state prison time for a drug offense remained at a record 250,000 during the study period. The white increase may be related in part to more aggressive enforcement of methamphetamine laws, according to the study. While methamphetamine is only used at significant levels in a relative handful of states, data from states such as Iowa and Minnesota show a substantial influx of these cases during this time period.
The analysis by The Sentencing Project also documented a sharp contrast between state and federal prison populations. While the number of persons in state prisons for a drug offense rose by less than 1% during the study period, the increase in federal prisons was more than 32%. These latter changes are attributed to ongoing aggressive enforcement of drug laws, including application of harsh mandatory sentencing policies. Despite declines in the use of crack cocaine, federal prosecution and incarceration levels for crack offenses remain high and have a stark racially disparate impact.
Sixth Circuit concurrence talks about capital punishment's economic costs
As detailed in links below, lots of legislators, advocates and media folk have been talking about the economic costs of the death penalty lately. But today in Wiles v. Bagley, No. 05-3719 (6th Cir. April 14, 2009) (available here), Judge Martin writes a concurrence in the affirmance of an Ohio death penalty that explores this issue from a judicial perspective. Here is how this part of the concurrence starts:
Now in my thirtieth year as a judge on this Court, I have had an inside view of our system of capital punishment almost since the death penalty was reintroduced in the wake of Furman v. Georgia, 408 U.S. 238 (1972). During that time, judges, lawyers, and elected officials have expended great time and resources attempting to ensure the fairness, proportionality, and accuracy that the Constitution demands of our system. But those efforts have utterly failed. Capital punishment in this country remains “arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair.” Moore v. Parker, 425 F.3d 250, 268 (6th Cir. 2005) (Martin, J., dissenting). At the same time, the system’s necessary emphasis on competent representation, sound trial procedure, and searching post-conviction review has made it exceedingly expensive to maintain.
The system’s deep flaws and high costs raise a simple but important question: is the death penalty worth what it costs us? In my view, this broken system would not justify its costs even if it saved money, but those who do not agree may want to consider just how expensive the death penalty really is. Accordingly, I join Justice Stevens in calling for “a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces.” Baze v. Rees, ___ U.S. ___, 128 S.Ct. 1520, 1548-49 (2007) (Stevens, J., concurring). Such an evaluation, I believe, is particularly appropriate at a time when public funds are scarce and our state and federal governments are having to re-evaluate their fiscal priorities. Make no mistake: the choice to pay for the death penalty is a choice not to pay for other public goods like roads, schools, parks, public works, emergency services, public transportation, and law enforcement. So we need to ask whether the death penalty is worth what we are sacrificing to maintain it.
Some recent related posts:
- Great new (though still dated) examination of the death penalty and plea bargaining
- CNN now talking about the costs of the death penalty and state reforms
- States considering laying off the death penalty during tough economic times
- The economic case against the death penalty getting more and more attention
- More discussion of cost concerns in debates over the death penalty
- Capital case cost concerns continue to inform reform debate
- Still more discussion of the costs of the death penalty
- "Opponents Focus On Cost In Death Penalty Debate"
- Ohio's death row getting smaller (though new AG still laments pace of appeals)
- Potential Ohio AG candidate talking about speeding up capital appeals
- What might 2009 have in store for . . . the death penalty in the US?
Need to track sex offenders, there's an app for that...
Anyone who enjoys the new iPhone ads spotlighting interesting applications can join me in wondering if the newest app will get its own commercial. This press release provides the details:
The WatchOut! iPhone application, which enables consumers to search any given area for registered sex offenders based on location or specific name, officially launches today. Ten percent of profits from the WatchOut! application go to the Domestic Violence Crisis Center (www.dvccct.org).
The WatchOut! application features an easy-to-use interface that enables users to identify dangers around them by searching for registered sex offenders by zip code or by name. The program also allows the user to determine where the highest concentrations of offenders live by plotting the locations on a map. The WatchOut! application is perfect for parents of young children, people who are planning to move to a new area, those who are in the dating scene and anyone else who is interested in knowing who is nearby in order to be safer.
Believing that nothing is more important than safety, WatchOut! Software, LLC in partnership with Mobile Simplicity (www.mSimplicity.com) utilize the power of the iPhone to make consumers better informed about potential dangers. The reality is that nearly everyone lives near a registered sex offender, but few are aware of who these people are and where they live. "We feel that it is important for people who are moving into a new area to be aware of their surroundings and any possible dangers to their family," said Rick Krakowski, President of Mobile Simplicity, the firm that developed the mobile application. "It should be a part of anyone's research when looking into a new area, or even to increase awareness in one's current neighborhood."
April 13, 2009
Split Tenth Circuit panel denies denies Nacchio bail pending cert.
Howard Bashman has linked here the news reports and the short opinion coming from the Tenth Circuit on the issue of whether the former Qwest CEO Joseph Nacchio should get bail pending his attempt to get cert to review his white-collar conviction. Here is the line that jumps out from the Tenth Circuit's disposition: "Mr. Nacchio has not shown that there is a reasonable chance that the Supreme Court will grant his petition."
I suppose, as this request for bail goes up to the Justices (see AP report here and SCOTUSblog report here), the Court itself will have an opportunity to confirm or rebuff this significant cert prediction from the Tenth Circuit panel.
Some related posts:
- Conviction of Qwest's Nacchio reversed on appeal
- En banc Tenth Circuit reinstates insider trading conviction of former Qwest CEO Nacchio
- Should Joe Nacchio remain free on bail pending SCOTUS appeal?
DOJ trying to identify "victims" of serious identity fraud sentencing snafu
Perhaps readers with a literary bent can help me figure out whether this story reported by Marcia Coyle in the National Law Journal reads more like a tale from Dickens or Kafka or Orwell. Here are the basics:
The Department of Justice, working with federal courts and U.S. attorney offices, is trying to identify an unknown number of criminal defendants incorrectly convicted and sentenced under the felony provisions of a federal identification fraud statute instead of its misdemeanor provisions.
At the end of last year, Kenneth Melson, director of the Executive Office for U.S. Attorneys, notified the Administrative Office of the U.S. Courts that some defendants who have been convicted of possessing false, stolen, or unlawfully produced identification documents, in violation of 18 U.S.C. 1028(a)(4) or (6) of the identification document fraud statute, may have been incorrectly sentenced under that statute's felony penalty provisions, instead of the misdemeanor penalty provisions....
Melson explained that some U.S. attorneys' offices erroneously cited the felony penalty provisions in their indictments or plea agreements. As a result, some defendants may have been sentenced to longer terms of imprisonment than they would have been subject to under the misdemeanor penalty provision. In addition, the incorrect characterization of some offenses as felonies may have resulted in improper convictions for aggravated identity theft under 18 U.S.C. 1028A(a).
The problem was revealed by a U.S. attorney's office examining potential charges in a new case, according to Ian McCaleb, senior public affairs specialist for the department's Criminal Division. The department determined that two provisions in the law providing for increased penalties when the offense is the production, transfer or use of false, stolen or unlawfully produced identification documents do not apply to two other provisions of the act that criminalize the possession of false, stolen or unlawfully produced identification documents....
In cases in which judgment has become final, the department instructed U.S. attorneys to try to identify all defendants who may have received improper sentences or felony designations and are currently incarcerated, on probation, or on supervised release. The Executive Office has been working with the Bureau of Prisons, the AO and the U.S. Sentencing Commission, to find ways to identify adversely affected defendants, according to McCaleb.
Letters were to be sent to district courts and federal public defenders about the issue. Individual notices were to be sent to defendants who may have been affected, or their counsel. The Executive Office also sent case, sentencing and incarceration data to each district to assist the district in identifying cases which may have involved improper sentences....
McCaleb said ... the Executive Office is aware that motions for relief have been filed by defendants in nine districts. A total of 39 defendants have filed motions. In one additional district, a court has entered orders on its own initiative in three cases. Seven additional districts have sent notices to affected defendants, but no motions have been filed.
Vermont legislature considering "sexting exception" to child porn prohibitions
The Burlington Free Press had this recent coverage of the latest notable "sexting" legal development. The article is headlined "Legislature considers legalizing teen 'sexting': Bill would exempt teens from child-porn laws for consensual image exchange," and starts this way:
Vermont’s Legislature is considering a bill that, if approved, would make the state one of the first in the nation to grant legal protections to teenagers who send sexually explicit photos and videos to one another with their cell phones.
The law change is receiving widespread support from prosecutors, defense attorneys, law enforcement, women’s groups and others. Still, some advocates are questioning whether the proposal crosses the line between legalizing a common practice among teens experimenting with sexuality and protecting predators who target and exploit youngsters.
Some recent related posts:
- The many fascinating legal and social issues swirling around "sexting"
- Notable stories of sex and death from the local papers
- Federal district judge enjoins controversial state sexting prosecution
- Ohio ACLU writes to local lawmakers and prosecutors about sexting
- Some of the latest "sexting" news and notes
Eleventh Circuit rejects arguments for a right to counsel at crack sentence modification proceedings
Addressing an interesting right to counsel issue, the Eleventh Circuit today in US v. Webb, No. 08-13405 (11th Cir. April 13, 2009) (available here), concludes that "there is no statutory or constitutional right to counsel for a § 3582(c)(2) motion or hearing [and thus] the decision to appoint an attorney is left to the discretion of the district court." I believe that this Webb ruling is the first circuit decision on this right to counsel issue in the application of the US Sentencing Commission's recent reduction of crack guideline sentences, but the Eleventh Circuit says that other circuit have come to the same conclusion in earlier decisions:
The notion of a statutory or constitutional right to counsel for § 3582(c)(2) motions has been rejected by all of our sister circuits that have addressed the issue, and we agree with this consensus. See United States v. Legree, 205 F.3d 724, 730 (4th Cir. 2000); United States v. Tidwell, 178 F.3d 946, 949 (7th Cir. 1999); United States v. Townsend, 98 F.3d 510, 512–13 (9th Cir. 1996) (per curiam); United States v. Whitebird, 55 F.3d 1007, 1010–11 (5th Cir. 1995); United States v. Reddick, 53 F.3d 462, 464-65 (2d Cir. 1995). As the Fifth Circuit noted, a § 3582(c)(2) motion “is simply a vehicle through which appropriately sentenced prisoners can urge the court to exercise leniency to give certain defendants the benefits of an amendment to the Guidelines,” rather than “a challenge to the appropriateness of the original sentence.” Whitebird, 55 F.3d at 1011. A defendant bringing such a motion thus would not be eligible for the Sixth Amendment rights that would normally attach in a sentencing or resentencing hearing. See id.; see also Townsend, 98 F.3d at 512–13 (agreeing with Whitebird’s rationale). Additionally, we decline to find that the Fifth Amendment provides a mandatory right of counsel for all § 3582(c)(2) motions as a matter of fundamental fairness. The Federal Rules of Criminal Procedure permit courts to hold § 3582(c)(2) hearings without defendants being present. See Fed. R. Crim. P. 43(b)(4). Since we have found that the rights afforded under Rule 43 are at least as broad as those from Fifth Amendment due process, a defendant has no right to be present at such a hearing, and thus there would be no automatic Fifth Amendment right to counsel.
A footnote at the end of this discussion adds this important point that may help mitigate the practical impact of this ruling in many settings:
We note that courts have the discretion to appoint counsel. See Whitebird, 55 F.3d 1011. Given the array of factors that courts now must consider in deciding whether to reduce a sentence under § 3582(c)(2), there may be instances in which equitable concerns would make the appointment of counsel appropriate to ensure a just outcome. See United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir. 2008) (appointing counsel in § 3582(c)(2) proceeding “in the interest of justice” and noting that the “new complexities” created by changes to the sentencing guidelines might necessitate reconsideration of whether there should be a statutory or constitutional right to counsel in all such cases).
April 13, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack
Effective examination of juve LWOP problems in Michigan
This local article, headlined "As bill to ban life imprisonment for children languishes, inequities of defense persist," provides an effective review of Michigan's story of sentencing juvenile offenders to extreme prison terms. Here are excerpts (which include helpful links):
As legislation to end juvenile-life-without-parole sentences in Michigan remains stalled in the Senate Judiciary Committee, some court watchers are warning that the controversial sentence may not be in tune with recent public opinion and is not applied fairly by the justice system.
Currently, nearly 350 people in the state are serving life sentences for crimes committed when they were age 17 or younger. Seventy percent of them are African American, according to the state’s Department of Corrections.
Michigan, which currently spends approximately 20 percent of it’s general budget on corrections, has the third-highest number of inmates serving juvenile-life-without-parole sentences, according to a 2005 study by the Wayne State University School of Social Work. Wayne State’s study surveyed public sentiment on juvenile crime and punishment and found that a majority did not support juvenile-life-without-parole sentences....
When juveniles are facing charges that carry a life sentence, they are especially dependent on legal counsel in a state that has one of the most under-funded public defender systems in the country. A recent report by the National Legal Aid and Defender Association done in cooperation with the State Bar of Michigan found that the lack of state funding, standards and oversight leads to inadequate public defense locally where counties often lack the resources to provide adequate support for those who can’t afford an attorney....
According to an American Civil Liberties Union of Michigan report, “Second Chances: Juveniles Serving Life Without Parole in Michigan,” the rate of juvenile-life-without-parole sentences varies widely among Michigan counties. Between 1990 and 2000, the counties with the highest rate of this sentence were Saginaw, Calhoun and Berrien counties. According to the U.S. Census Bureau, Saginaw and Berrien rank among the top 25 most segregated metropolitan areas in the country.
The ACLU of Michigan report on juvenile LWOP sentences is available at this link. The ACLU report is now a few years old, but this more recent letter on the topic from the folks at Human Rights Watch suggests that not much has changed in the state since the report was issued.
Some related posts on juve LWOP:
- California considering eliminating LWOP for juveniles
- Nebraska working to reform juve LWOP sentences
"Man with weapons cache appealing on Second Amendment"
The title of this post is the headline of this local article reporting on a notable federal gun case from Connecticut. Here are the basics:
A Berlin man convicted in federal court on two dozen weapons charges will pursue an appeal based on a judge’s denial of his second-amendment rights, his attorney said. Alan Zaleski, 47, formerly of 863 Shuttle Meadow Ave., is facing 10 years in federal prison for each count when he is sentenced in June. He was indicted by a grand jury in 2007 after Berlin police, with the help of other departments, found a huge stash of weapons in August 2006 on his booby-trapped property.
Attorney William Koch Jr., representing Zaleski, said he’ll likely mount an appeal based on a federal judge’s decision to not allow him to introduce arguments that his client considered himself part of the state’s “unorganized militia.”... During a three-day search of the property, Berlin and New Britain police found dozens of machine guns and semi-automatic firearms, multiple handguns and rifles, silencers, three types of grenades, pipe bombs and IEDs — improvised explosive devices — and 67,000 rounds of ammunition....
Koch said U.S. District Court Judge Ellen Bree Burns improperly denied him the chance to present Zaleski’s views on the militia and his belief that the Bible accepts violence, including the possession of weapons. Burns ruled that Zaleski could not mount a First or Second Amendment defense before the trial started. Burns also twice denied Zaleski’s motions to have the case dismissed on the grounds he had a right to own the illegal guns because he was a member of the state’s “unorganized militia.”
Are any Skadden lawyers doing sentencing work with their "time off"?
I see from this New York Times article that Skadden, Arps is offering "all of its associates — about 1,300 worldwide — the option of accepting a third of their base pay to not show up for work for a year ... [and] is helping associates find pro bono work, and is encouraging them to do so." In addition to thinking Skadden has come up with an interesting way to try to weather the downturn, I cannot help but wonder if some of this lawyer talent might be encouraged to shift into the sentencing universe.
With more nearly 2.5 million people already in prison, another 5 millions under some form of supervision, and millions more dealing with the consequences of old or new felony charges, there are no shortage of pro bono opportunities in the criminal justice system. So, Skadden associates, if you are looking for good pro bono work (that can often get you real courtroom experience), think about heading to your local prison.
Some (arguably related) recent posts:
- Why isn't there more constitutional litigation over the "hellhole" that is extended solitary confinement?
Pondering the fall-out from the Stevens debacle
Today's Legal Times has this piece, headlined "Attorney General Weathers Stevens Fallout -- for Now," which takes early stock of the early aftermath of the latest ugliness in the Justice Department. Here is how it starts:
For the Justice Department, it was a week that might have echoed the toughest days of the Bush era.
First, the department got a very public, and perhaps unprecedented, spanking from a federal judge for mishandling the corruption case against former Sen. Ted Stevens, R-Alaska. U.S. District Judge Emmet Sullivan targeted six top prosecutors in a criminal contempt investigation for failing to turn over evidence to the defense. He also took strong aim at the department's Office of Professional Responsibility, which had been investigating the prosecutors, and wondered aloud whether the office was up to the job of policing Justice.
That was Tuesday. On Wednesday, Attorney General Eric Holder Jr. replaced the longtime head of the OPR with a veteran prosecutor. The department insists the switch had been in the works for some time and was unrelated to Sullivan's remarks. But the day after the move, Holder was being touted in The Washington Post for launching an era of reform at Justice.
In fact, the thing that may have made last week quite different from the Bush years was the public response by, and the political reaction to, Holder and the DOJ. On Tuesday, just after his department was pummeled in court, he appeared on the "CBS Evening News" with Katie Couric and said that he was "obviously troubled by the findings that -- and the statements that -- Judge Sullivan has made. But we'll cooperate fully with the investigation that has been ordered."
Holder also faced a fairly mild response from Capitol Hill. It helped that Congress was in recess. But even strong critics of the OPR stayed fairly silent. During the scandal over the U.S. Attorney firings, Sen. Joseph Lieberman, I-Conn., pushed a bill that would have beefed up public scrutiny of internal misconduct cases. Last week, in the wake of the Stevens debacle, a spokeswoman said Lieberman has no plans to reintroduce the legislation.
Whether Holder will stay so lucky remains to be seen.
April 12, 2009
Are state child abuse sentences often too low?
This long local article from South Carolina, headlined "Child abusers escape jail time," prompts the question in the title of this post. Here are snippets from the article:
Since 2002, S.C. judges have given no prison time in at least 10 cases in which defendants were initially charged with inflicting great bodily injury on a child — a felony that carries a maximum 20-year sentence but no minimum.... Short of death, the charge is the most serious involving harm to a child. By comparison, a person who seriously injures an adult can be charged with assault and battery with intent to kill, which also carries a 20-year maximum....
A state Senate Judiciary subcommittee on Wednesday will consider a bill ... that would require mandatory two-year prison sentences for day care operators convicted of inflicting great bodily injury on a child.... “It’s unconscionable for any judge to give anyone who pleads guilty to injuring a child probation,” said Veronica Swain Kunz, chief executive officer of the S.C. Victim Assistance Network. “It goes back to women and children being viewed as property.” She said she supports the state bill being considered Wednesday, noting, “I think (minimum mandatory sentences) should be much, much greater than two years.”
But prosecutors and judges interviewed by The State raised concerns about the bill, introduced Jan. 29 by state Sen. Mike Fair, R-Greenville. They said mandatory minimums rob prosecutors and judges of flexibility in crafting pleas and sentences, which could result in more trials and a backlog of cases in an already overburdened court system.
“They’re looking at the wrong end of the telescope,” said 15th Circuit Solicitor Greg Hembree of Conway, past president of the S.C. Solicitors Association. “If you have one judge who’s off the reservation, you get rid of the one guy. We’re building systems all the time for the one exception.”
Circuit Judge Paul Burch of Pageland, president of the S.C. Association of Circuit Court Judges, said the Legislature needs to be “real careful about what they need to do about mandatory minimums,” though he noted the association has not taken an official position on the issue.
Burch and Circuit Judge Edward Cottingham of Bennettsville were the sentencing judges in two of the 10 probation-only cases in The State’s analysis. Both said their sentences were based on recommendations from prosecutors. “When possible, I accept the solicitor’s recommendation because he knows things I don’t know,” Cottingham said. “But if I had a child in front of me who was really hurt, I would make a great deal about differing with the solicitor.”
It is notable and encouraging to hear state prosecutors advocating against a mandatory minimum prison sentence, though it is not difficult to understand why victim advocates in this context are troubled by frequent sentences of probation in cases in which a child is badly hurt.