April 25, 2009
A simple plea for Prez Obama: grant at least a single clemency in your first 100 days
As evidenced by this Politico feature and this New York Times article, there is already no shortage of buzz and analysis of President Obama's first 100 days. Let me add my meta-punditry with a spin on the plea that titles this post: media pundits and especially public policy groups that work on sentencing reforms should be calling out President Obama if (and when?) the record of his first 100 days in office does not include a single grant of clemency.
As this chart from PS Ruckman shows, from the era of Thomas Jefferson through Ronald Reagan, only 3 of 38 US presidents failed to grant any clemencies during their first 100 days. And yet, while the federal criminal justice system has grown by staggering amounts over the last two decades (see USSC data here), only clemency pleas by cronies seemed to get serious and quick attention from the last three Presidents. I keep hoping that President Obama's promise of hope and change would apply to this historically important presidential prerogative, but my hope seems ever more false as each week goes by without any mention of these realities.
It will be a sad and telling commentary of the emptiness of the rhetoric of hope and change if President Obama was not able to find — or lacked the interest and courage to try to find — even a single case in the massive federal criminal justice system meriting some kind of clemency relief during his first 100 days in office. And it will be an even sadder and more telling commentary on the emptiness of modern political and social debate if prominent media pundits and public policy groups — many of whom rightly criticized President Bush for his failure to show compassion toward many requesting clemency — continue to fail to even note President Obama's continued failings in this regard.
I sincerely hope that, as part of the 100-day plans, the Obama team might have at least one single (and thus necessarily symbolic) clemency up its sleeves. But I am not optimistic that we will see even a single clemency grant by Wednesday or that any prominent media pundits or public policy groups — on either the left or the right — will vocally criticize President Obama in this arena.
Some related posts:
- Historical evidence that it is NOT too early to start demanding clemencies from President Obama
- How about some targeted clemency grants to save $100 million of federal tax dollars?
- Another public and potent call to reinvigorate the pardon power
- When will President Obama start acting like President Lincoln when it comes to the clemency power?
- Still waiting ... and waiting ... and waiting ... on the clemency front
- Are the Border Agents the only federal offenders for whom President Bush feels compassion?
- "Compassionate Conservatism, My Ass"
- The sad (unpardonable) state of compassion in the Bush Administration
- ACS issue brief on the pardon power
- Latest FSR issue on "Learning from Libby"
- "The Fall of the Presidential Pardon"
- What might 2009 have in store for . . . executive clemency?
"Money, Morality, and Repealing the Death Penalty"
The title of this post is the title of this notable commentary on the PBS website. Here is an excerpt from the middle of the piece:
For many death penalty opponents, New Mexico’s repeal was the result of years of hard work. The bill was first introduced 12 years ago, but it always faced challenges in the senate’s judiciary committee. “It was heartbreaking,” says the Rev. Dr. Holly Beaumont, a Disciples of Christ minister and legislative advocate for the New Mexico Conference of Churches. She represents the conference on the New Mexico Coalition to Repeal the Death Penalty.
Over the years faith-based death penalty opponents in New Mexico remained resolute, says Beaumont. “We weren’t going away, and the legislature knew that we would be back again.” She attributes their ultimate success to the multi-layered nature of the coalition, a collaboration of faith communities, the families of murder victims, Death Row exonerees, and other “people of conscience.” The coalition focused on reaching and educating those who had not yet made up their minds about capital punishment and pointed its advocacy efforts directly at the Roundhouse, New Mexico’s state capitol building and the home of its legislature.
In addition to New Mexico, a number of other states around the country have been dealing with death penalty repeal this year. A coalition of religious leaders, lawyers, and the families of murder victims is supporting passage of a pending bill to abolish the death penalty in Colorado, where this month the House of Representatives voted down capital punishment by a one-vote margin, and lawmakers say they will use the money saved (estimated at about $1.4 million per death penalty case) to solve hundreds of “cold” murder cases. The Colorado bill now heads to the state Senate, where it is expected to pass.
New Hampshire and Kansas have also considered anti-death penalty legislation this year. In New Hampshire, the House voted to end capital punishment, but the governor has said he will veto any repeal. In Kansas, where repeal was advocated primarily as a way to save money, the effort stopped short of a vote and the issue is scheduled for more study. According to the Wichita Eagle, each death penalty case costs an average of 70 percent more than each non-capital case. The paper also suggests that Kansans will be watching to see how nuanced the stand on capital punishment held by US Senator Sam Brownback, a Republican and a Methodist covert to Roman Catholicism, will be in his coming bid for governor.
Ceremonial signing of New York drug law reforms
This local piece provides this effective report on the ceremonial event yesterday in New York to mark the state's recent drug sentencing reforms:
Gov. David Paterson did a ceremonial signing in Queens [Friday] of a bill that reduces sentences for non-violent drug offenders. The legislation, which was passed as part of the 2009-10 state budget early this month, gives judges total discretion to divert non-violent addicts to drug treatment, and it expands the state’s treatment programs.
“This is a proud day for me and so many of my colleagues who have fought for so long to overhaul the drug laws and restore judicial discretion in narcotics cases,” Paterson said at Elmcor Youth and Adult Activities Inc., a state Office of Alcoholism and Substance Abuse Services-funded drug-treatment center. “For years, thousands of New Yorkers have spoken out against the Rockefeller Drug Laws.”
The Rockefeller-era drug laws set up mandatory sentencing for non-violent criminals convicted of drug offenses. There were some changes made to the laws in recent years, but advocates said they were not enough. Besides providing judges more authority over offenders, the new law provides opportunities for additional relief to offenders who were sent to prison under the old statutes. Drug offenders who are not addicted but who sell drugs will be sent to prison under the laws. The law also creates new crimes to ensure that adults who sell drugs to children are appropriately required to serve time in State prison.
Sen. Ruth Hassell-Thompson, D-Mount Vernon, said the new law creates a “balanced approach to drug addiction and crime.” “We are now shifting resources to treat addiction as a medical problem. By diverting addicts to drug-treatment courts, we believe we can get people off drugs and thereby reduce the demand for them,” she said in a statement.
April 24, 2009
Notable (and major?) child porn ruling from the Second Circuit
Regular readers may recall US District Judge Jack Weinstein's fascinating Polizzi decision last year, in which he ruled that he should have informed the jury of which counts in a child pornography case carry mandatory minimum sentences (basics here, early commentary here, amicus briefing here). Today the Second Circuit reversed Judge Weinstein's ruling, but seems to do so in a way that could have a much bigger impact than if they had just affirmed. Here is the Second Circuit's summary of its ruling in US v. Polouizzi, No. 08-1830 (2d Cir. April 24, 2009) (available here):
Appeal from a judgment entered April 9, 2008, in the United States District Court for the Eastern District of New York (Weinstein, J.), convicting defendant of eleven counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Cross-appeal from an order and judgment entered April 9, 2008, granting defendant’s motion pursuant to Federal Rule of Criminal Procedure 33 for a new trial on twelve counts charging receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2). Because the defendant’s possession as charged in the indictment constituted a single unit of prosecution and because the district court erred by granting defendant’s motion for a new trial on the counts charging receipt of child pornography, we vacate the April 9, 2008 order of the district court granting defendant’s motion for a new trial and remand this case to the district court to vacate all but one of the possession convictions and for further proceedings consistent with this opinion.
Here is the key language of what strikes me as a very important holding (and a footnote with caveats) in this decision:
Based on the clear language of the statute, we conclude that Congress intended to subject a person who simultaneously possesses multiple books, magazines, periodicals, films, video tapes, or other matter containing a visual depiction of child pornography to only one conviction under 18 U.S.C. § 2252(a)(4)(B). [FN5]
[FN5]We note that Polizzi was charged with possessing, on a single date, eleven computer files stored on three hard drives housed in two adjacent rooms in a single premises, his detached garage. Moreover, the government has not maintained, either below or on appeal, that Polizzi’s multiple possession convictions under § 2252(a)(4)(B) could be sustained because Polizzi “acquired possession of the [prohibited matters] on different occasions, or that he stored them at different sites.” United States v. Olmeda, 461 F.3d 271, 280 (2d Cir. 2006) (construing 18 U.S.C. § 922(g)). Thus, we need not decide whether § 2252(a)(4)(B) could be construed to support multiple possession convictions if such a theory were pleaded and proved. See Chiarella v. United States, 445 U.S. 222, 236-37 (1980) (noting that “we cannot affirm a criminal conviction on the basis of a theory not presented to the jury”); United States v. Mittelstaedt, 31 F.3d 1208, 1220 (same).
Because I haveto take advantage of the first perfect spring day in Columbus to go to the driving range, I likely will not have sufficient time this afternoon to completely consume and comment on this notable Second Circuit ruling. But I am hopeful that others will use the comments to help me figure out if the decision is a big deal or really just a big dodge from the Second Circuit.
Related posts on Polizzi and the challenges of child porn downloading cases:
UPDATE: The Second Circuit decision also includes an interesting discussion of whether and when it might be appropriate to advise a jury of the mandatory minimum sentencing terms associated with certain charges. This post at New York Federal Criminal Practice effectively discusses this issue.
District court resists excessive piling of mandatory minimum 924(c) sentences
Thanks to this post at the Second Circuit Sentencing Blog, I discoverd a notable opinion from last month by Judge Jed Rakoff dealing with extreme mandatory minimum stacking 924(c) gun sentences. Though the procedural posture and precise ruling US v. Ballard, 599 F. Supp. 2d 539 (S.D.N.Y. March 2, 2009), is complicated, this closing line captures the spirit of the ruling: "When the letter of the law so far departs from justice as to become the instrument of brutality, common sense should call a halt."
"Imprisoned by stereotypes"
When the average person conjures an image of a prisoner, what is pictured? Does the mind’s eye see a lone shadow with defiance and anger on his face and evil and ill-intent in his heart, prowling for trouble and poised to wreak violence? And who or what provides this image? Movies? The news media? Fear?
When three people from Texas look into the faces of prisoners, they see an opportunity for repentance, a prospect for a second chance, a vessel of potential. Their perception of prisoners is not based on sensationalized images from any screen, or on what they think it means to be a prisoner. Among them, they have more than three decades of experience in prison ministry. And while they, too, acknowledge that there are prisoners who live up to society’s stereotypes, there are also those who reduce such notions into myth.
"House Members Push Supreme Court Toward Transparency"
The title of this post is the title of this great new piece by Tony Mauro in the Legal Times. Here are excerpts:
The annual House hearing called to consider the Supreme Court's budget request began with its usual rituals Thursday morning.... But then a Texas congressman decided to test just how well the justices were listening and whether they would take his heartfelt message to heart -- a strong plea to the Court to ramp up its transparency and public face....
The provocateur was conservative Rep. John Culberson, R-Tex ... [who was] urging the Court to go to the next level of transparency. The justices had already talked about the occasional release of oral argument audio tapes, and of plans for an improved Web site. Culberson said there would be "no logical distinction" between what the Court has already done, and streaming the video of oral argument on the Court's Web site Suddenly, dressed in high-tech clothes, the old debate over cameras in the Supreme Court had been resurrected.
"It's a very easy matter on the Internet," Culberson said, and to prove it, he took out a device, aimed at the justices and announced that at that very moment, their visages were being seen live on the Internet. (Culberson's video is available at this link.) The justices were startled, but smiled for the camera....
"The next American revolution is going to come through the Internet," Culberson told the justices. "I encourage you to break down that wall. It's as easy as pushing this button."...
The justices retreated into their usual arguments against camera access. As he often does, Breyer said the current members of the Court are just temporary stewards of a cherished institution who don't want to damage it in anyway. Before deciding if the gains are worth the risk, Breyer said "social science research" is needed. Later, Culberson implored Breyer and Thomas, "Don't wait for the social science research. Trust your hearts."...
Will Thursday's impassioned display of pro-cameras sentiment in Congress make a difference? Thomas had said that the appropriations committee's views had spurred Supreme Court action on improving technology over the years. Thomas and Breyer must have left the hearing feeling the momentum on cameras coming from Congress and from technology was heading strongly toward openness. If the Court eventually, finally, says yes sometime in this century, Thursday's hearing of the financial services and general government subcommittee of the House Appropriations Committee will have played a significant part.
Sentencing in medical marijuana case impacted by statutory minimums
This article from the Los Angeles Times reveals the continued impact of mandatory minimum sentencing statutes even though the guidelines are advisory. Here are a few of the details:
The sentencing of a man who has become a key figure in the national debate over medical marijuana was postponed Thursday, with a federal judge saying he was inclined to impose a more lenient sentence than the five years required by federal sentencing guidelines, but questioning whether he had the authority to do so.
"If I could find a way out, I would," U.S. District Judge George H. Wu said. He gave lawyers in the case until June 2 to file briefs regarding the impending sentence of Charles Lynch.
Lynch, 47, ran a medical marijuana dispensary in Morro Bay on the Central Coast in 2006 and 2007. Despite having the blessing of the city's mayor and other public officials, he was charged with violating federal drug laws for distributing marijuana and was convicted by a federal court jury in Los Angeles last year.
At the hearing Thursday, Wu heard from several character witnesses, including one of Lynch's patients and the young man's father. "I stand before you today because I believe a man is being punished for reasons that don't make much sense," said Owen Beck, whose parents took him to Lynch's Central Coast Compassionate Caregivers when he was battling bone cancer at age 17. "I believe a great injustice is being done."...
Janice Peters, the mayor of Morro Bay, described Lynch as a "polite, compassionate" man who did everything the city asked of him with respect to his business. Rob Schultz, the town's city attorney said he received only one complaint about Lynch the whole time he was in business "and that had to do with the quality of the medical marijuana."
The comment drew loud laughter from Lynch's supporters, who packed the courtroom, many of them wearing green ribbons with the word "compassion" printed on them.....
Though Lynch was not charged with violating state law, prosecutors contend that he broke the law because he was not truly a "primary caregiver" entitled to dispense marijuana to patients and that he profited from the operation of his business.
Much of the discussion Thursday dealt with whether Wu was required to sentence Lynch to a mandatory minimum of five years or whether the defendant was entitled to a lesser sentence under a so-called safety valve.
April 23, 2009
Scholarly examination of New Jersey's death penalty repeal
I just notice on SSRN these two pieces that have emerged from the symposium held at Seton Hall in 2008 to discuss the death penalty in New Jersey:
Proposal to cut drug offense sentences in the UK
Long prison sentences for drug barons are ineffective as a deterrent and should be cut by up to two years, according to official proposals published yesterday. Sentences for drug couriers who import small amounts of heroin or cocaine but are very often "naive and vulnerable" women from the developing world are also to be reduced under the recommendations.
But the advice, from the panel that draws up sentencing guidelines, says that heavier sentences should be given to dealers who focus on psychiatric hospitals, drug treatment centres and bail hostels, or who try to smuggle drugs into prisons.
Its proposals will be considered by the Sentencing Guidelines Council, which is chaired by Sir Igor Judge, the lord chief justice, and includes the director of public prosecutions. The council lays down the sentencing framework for all the courts in England and Wales.
Prof Andrew Ashworth, the chairman of the panel, said the point was not that a robust approach to sentencing drug barons was inappropriate: crown court judges were giving longer sentences in the most serious cases of importing drugs than they were for adult rape or causing death by dangerous driving....
The panel recommended that the starting point -- when sentences are decided for those guilty of the most serious cases of importing or supplying drugs (bringing in at least 5kg of heroin or cocaine, or 50,000 tablets of ecstasy) -- should be cut from 14 years to 12 years. The final sentence, depending on the nature of the case, should be in the range of 10 to 14 years.
The members advise that the shorter sentences should be accompanied by much more extensive use of asset confiscation orders, which can cover not only ill-gotten gains but also legitimate assets such as houses, cars and yachts. Confiscation orders are only used in one in eight serious drugs cases at the moment....
The panel also suggested that the sentences for drug mules or couriers should be much shorter. Often their role in criminal organisations was a minor one. "They are very often naive, vulnerable, men and women from third world countries whose fates are totally disregarded by those at the top of the drug supply chain," said the panel members.
Flawed HLR note on federal white-collar sentencing
The April 2009 issue of the Harvard Law Review includes this student Note focused on federal white-collar sentencing, titled "Go Directly to Jail: White Collar Sentencing After the Sarbanes-Oxley Act." Here is how the note's conclusion starts:
If the purpose of the WCCPA was to deter white collar crime, the statute’s harsh penalties have not achieved their goal. Moreover, by introducing the potential for enormously disparate sentences for precisely the same crime, the WCCPA detracts from just punishment. This Note has proposed merely one way of reforming the sentencing process, in hopes that sentencing will become more consistent and predictable across judges and jurisdictions.
Though the note does a reasonable job of documenting some of the challenges and problems with modern white-collar federal sentencing, there is a telling lack of sophistication in much of the analysis. This lack of sophistication is most clear from a fundamental flaw in the Note's call for reform: "Congress or the United States Sentencing Commission must take steps to stabilize and rationalize the white collar sentencing system [and this] Note proposes that the best way to achieve this goal would be to tie Guidelines sentencing levels to actual loss, rather than intended loss...."
As all informed white-collar practitioners know, the federal guidelines have always tied "sentencing levels to actual loss" though USSG 2B1.1, and "intended loss" enters the picture only if and when the intended loss is greater than actual loss. Moreover, most modern white-collar sentencing decisions that have garnered lots of attention (e.g., Olis and Adelson and Parris) involve cases in which the the actual loss calculation produced a sentencing range that seemed much too high in light of the defendant's true culpability.
Anyone eager for a much more accurate and more sophisticated examination of federal white-collar sentencing must get the Federal Sentencing Reporter's February 2008 issue on this topic (available here, described in detail here and here). On the precise topic of loss, the FSR issue includes these terrific articles:
- Sentencing High-Loss Corporate Insider Frauds After Booker
- Challenging the Guidelines’ Loss Table
- Is Booker a “Loss” for White-Collar Defendants?
The fact that the Harvard Law Review could publish a note that incorporates such a fundamental flaw provides yet another sobering reminder of the extraordinarily poor instruction at at least one elite law school concerning the basics of federal sentencing law.
Are federal prosecutors over-charging the Somali pirate?
This recent AP article has me wondering if federal prosecutors should be accused of "over-charging" the Somali pirate (and also wondering if anyone really cares if they are). Here are excerpts from an interesting piece, which is headlined "Prosecutors beefed up charges against scrawny teen":
When U.S. prosecutors brought piracy charges against a teenager from Somalia, they dusted off a law that has been on the books since George Washington was president and used only sparingly since then.
The law's obscurity, the lack of recent precedent and murky definitions of what constitutes piracy could present challenges to law enforcement. But prosecutors also boosted their case with more common nonpiracy charges that could lead to a long prison sentence, even if the piracy count doesn't stick.
The government "threw pretty much everything they had at this guy because I think they wanted to hedge their bets," said Eugene Kontorovich, a professor at Northwestern University Law School....
There are varying accounts of his age — his lawyers say 15, his parents say 16 and the government says at least 18. The judge heard testimony from his father via telephone from Somalia and from government officials Tuesday before determining Muse should be tried as an adult.
The top count against Muse accuses him of piracy under the law of nations, a charge not used regularly since the 1800s. It carries a mandatory life sentence.
The other charges against him — discharging a firearm, conspiring to commit hostage taking and brandishing a firearm — could be found in drug, kidnapping and conspiracy cases throughout federal courthouses in the United States. They also offer potential penalties up to life in prison.
The government also set up a scenario in which they could eventually drop the piracy count in a plea bargain that would give Muse a chance to dodge a life sentence. That could be necessary if legal questions are raised by the piracy statute.
Recent related posts:
- Might the Somali pirate have an Apprendi claim to try to thwart his federal prosecution?
- Scholarly exploration of applying Apprendi to juve transfer decisions
Will "National Call-In Day for Justice" achieve anything?
I have already received two (not quite distinct) e-mails reminding me that today is "national Call-In Day." Here are parts of these e-mails:
Help flood Congress with calls! Call your federal lawmakers today and tell them that it is time to end the sentencing disparity between crack and powder cocaine. Your calls will make an important difference.
The National Call-In Day is part of "Crack the Disparity" National Month of Advocacy, a month-long coordinated push to eliminate the sentencing disparity between crack and powder cocaine....
Twenty-three years of a failed policy is long enough! It's time to end this unjust and disproportionate sentencing policy. Follow this link to get talking points and contact information for your federal senators and representative.
If you experience any problems using FAMM's Action Center to look up the names of your federal lawmakers, please call the U.S. Capitol Switchboard three times at (202) 224-3121 and ask to speak to your representative and two senators.
From The Sentencing Project:
Today, be one of thousands of people across the country to phone your members of Congress to call for an end to the sentencing disparity between crack and powder cocaine. Your calls will make an important difference.
This National Call-In Day is part of Crack the Disparity National Month of Advocacy, a month-long coordinated push to eliminate the sentencing disparity between crack and powder cocaine.
Twenty-three years of a failed policy is long enough! It's time to end this unjust and disproportionate sentencing policy.
To participate call the U.S. Capitol Switchboard right now at 202.224.3121, and ask to speak to your representatives in the Senate and House. Urge them to support and co-sponsor H.R. 265, the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act in the House and legislation in the Senate that eliminates the 100 to 1 disparity between crack and powder cocaine.
You should place three calls because you have one representative and two senators. Use this link to help you with your calls to Congress: Click here for talking points and script.
Regular readers know that I am generally supportive of these sentencing reform efforts, but I cannot help but question whether and how this "call-in" day will achieve anything. Both of these e-mails assert that "calls will make an important difference," but I genuinely wonder if they will make any difference.
For at least half of the 23 years of this "failed policy," the US Sentencing Commission and many other important institutions and individuals have been speaking out against crack-powder sentencing disparities. And yet inertia and a lack of leadership and courage among federal legislators and executive branch officials have kept this policy firmly entrenched in federal statutes. I sure hope a day of calls might make a difference, but I am not at all optimistic.
April 22, 2009
Another victim loss in a CVRA ruling from the Tenth Circuit
Today the Tenth Circuit has issues another opinion in the interesting victims rights case In re Antrobus (available here). Here is the concluding section of the opinion:
This case has a frustrating procedural history. It is, for example, regrettable that the petitioners were not given access to the ATF report, given the government’s lack of opposition. But in our system we do not possess perpetual power to revisit regrettable results, especially those we are never asked to review.
In the end, there is no one to blame here. The CVRA is a relatively new statute that effects dramatic changes to our traditional criminal justice system. The participants in that system—prosecutors, defendants, victims, and courts alike—are rightfully struggling with its scope and meaning. Understandably, the process of working out these changes may not be perfect. District courts and prosecutors must become sensitive to Congress’s new demand that victims have a seat at the table. At the same time, all litigants have to be aware of the constraints associated with efforts to relitigate issues repeatedly, and the scope of our review under law.
New note on sex offender residency restrictions in new Drexel Law Review
Thanks to this post at The Faculty Lounge, I see that "the moment has arrived for the first issue of the Drexel Law Review," and that it includes a "strong student note ... on sex offender residency restrictions." In fact, I see that the first issue of the DLR includes lots of interesting pieces, and the sex offender piece is titled "Sex Offender Residency Restrictions: How Common Sense Places Children at Risk," and can be accessed here.
Notable and encouraging comments from new USSC chair-nominee
This morning's Rutland Herald has this new piece, headlined "Sessions tapped for federal position," that with lots of intriguing comments from the new nominee for the head of the US Sentencing Commission. Here are some highlights:
Judge William Sessions, who was nominated Monday to be chairman of the U.S. Sentencing Commission, hopes to continue reforming federal sentencing guidelines to address prison overcrowding. "We're at a particular point in history where prisons are incredibly overcrowded," Sessions said. "We're also at a particular point in time in which there's a potential for real change."...
Options other than standard incarceration should be used more to address prison overcrowding, Sessions said. That includes drug treatment courts, placement in home confinement or community confinement, and split sentences in which part of a sentence is served in prison and part is served in the community.
Sessions also hopes to make rehabilitation a higher priority in federal sentences. "For the last 15 years there's been little interest in rehabilitation," Sessions said. Instead, punishment has been the priority. "A person commits a crime, and they get X," he said. "We're going back to, 'How do we get these people rehabilitated so when they get out of prison, they're not a danger?'"
Sen. Patrick Leahy, D-Vt. said he hopes Sessions wins unanimous confirmation in the Senate, and the Vermont senator's position as chairman of the Senate Judiciary Committee could help Sessions' confirmation....
[Recently], the sentencing commission was successful in reforming the crack sentencing guidelines by taking a more incremental approach, Sessions said. The crack cocaine reforms were retroactive, so the sentences were changed for roughly 20,000 federal prisoners who were already incarcerated.
"To order the federal court system to re-sentence 20,000 people and reduce their sentences by two to three years was a major deal," Sessions said. The effort also showed Sessions that an incremental approach — along with consensus-building prior to formally proposing sentencing changes — is the key to getting acceptance from Congress....
As the chairman, Sessions said he would have more control over the direction the commission takes. The chairman sets the agenda and the policy, and speaks before Congress, Sessions said. "You're the face of the commission," he said. "If you have a real conservative chair, sometimes the perception is that the sentencing commission is real conservative, and vice versa."
Some related posts:
- Interesting reflections on Obama appointees from drug policy reformers
- More evidence Obama's DOJ is just not that into change in the criminal justice arena
- How a new administration is likely to impact federal sentencing practice
- Should the US Sentencing Commission have more members?
- US Sentencing Commission's regional hearings to start next week
- Lots of news and notes from the US Sentencing Commission
- What might 2009 have in store for . . . the US Sentencing Commission?
Too much of a good thing at the new site The Legal Workshop?
I am pleased to report on a new scholarly on-line project (which I hope will evolve to better achieve its laudatory goals). The project is the Legal Workshop, and here is its basic mission statement:
The Legal Workshop is a website providing a single online forum for cutting-edge legal scholarship from the top law journals in the country....
The Legal Workshop features “op-ed” versions of the articles published by the member journals. These concise and lively pieces are written for a generalist audience, combining the best elements of print and online publication.
Each Legal Workshop Editorial undergoes the same rigorous editorial treatment and quality screening as the journals’ print content, but readers are able to offer comments and esteemed academics have the option of submitting response pieces, which are checked for citations and substance.
By aggregating the work of multiple law reviews, The Legal Workshop is able to provide frequently updated content. New article-based content is posted every Monday and most Wednesdays and Fridays. The Legal Workshop provides a one-stop forum for readers wishing to stay abreast of contemporary legal scholarship.
Larry Solum has a terrific early analysis here, which includes these three spot-on reactions:
First, the basic idea of creating an outlet for short-form legal scholarship is to be applauded....
Second, I am a bit skeptical of the ambitious claims in the press release about reaching "the general public."...
Third, I am also skeptical about potential for the format of "The Legal Workshop" to produce pieces that will directly influence practitioners -- lawyers and judges, who are most interested in descriptive doctrinal scholarship.
The fact that there is currently only this single criminal law piece now posted on the site, and that it runs nearly 4000 words and proposes a radical change to modern habeas law, confirms all that Larry has to say about this new project. It is great to have a short-form version of this 70-page habeas article from the Duke Law Review, but I doubt that either the general public or practitioners are going to find the short-form version much more useful and accessible than the long form version.
Plus, on a very practical level, I will be much less likely to cite the short-form version of the article inbecause its cite form -- which much include this cumbersome URL: http://legalworkshop.org/2009/03/18/habeas-corpus-and-state-sentencing-reform-a-story-of-unintended-consequences -- is much longer than the cite form for the full article.
April 21, 2009
Huge opinion concluding(?) Ohio lethal injection litigation
A helpful readers sent me a copy of the latest federal district court ruling in Ohio's lethal injection litigation. The ruling in Cooey v. Strickland is 159 pages(!) and it starts and ends this way:
This matter is before the Court upon remand for consideration of whether the Court should continue a previously granted stay of execution to intervening plaintiff Kenneth Biros in light of Baze v. Rees, 128 S. Ct. 1520 (2008). For the reasons that follow, this Court finds that Biros is not entitled to a continued stay and VACATES the stay of execution prohibiting the State of Ohio and any person acting on its behalf from implementing an order for the execution of Kenneth Biros....
This is not to say that Biros or any of the various plaintiffs involved in this litigation are incapable of ultimately prevailing in this litigation. Ohio’s method of execution by lethal injection is a system replete with inherent flaws that raise profound concerns and present unnecessary risks, even if it appears unlikely that Biros will demonstrate that those risks rise to the level of violating the United States Constitution. Thus, although the fact that the evidence at this stage of the litigation does not present a likelihood of Biros prevailing on his claim of a constitutional violation proves dispositive of his request for a continued stay of execution, it does not foreclose the possibility that additional evidence will indeed prove that the problems with Ohio’s policies and practices rise to the level of constitutional error.
Today’s decision therefore neither holds that Ohio’s method of execution by lethal injection is constitutional nor unconstitutional. Rather, today’s decision reflects only that at this juncture, Biros has not met his burden of persuading this Court that he is substantially likely to prove unconstitutionality. It would wholly confound this Court and no doubt many if not most of the people of the State of Ohio, however, if Defendants regarded today’s interlocutory decision as a wholesale endorsement of Ohio’s protocol, practices, and policies, both written and unwritten, and then did nothing to improve them. Such a misconstrued legal victory for Defendants would be Pyrrhic given that Defendants are charged with carrying out humane and constitutional executions and not with simply prevailing in litigation.
Director Collins appears to recognize as much, given that he testified that the ultimate goal is for Ohio to be as humane as possible and as professional as possible in carrying out its lawful executions. These are indisputably correct goals. But Collins also testified that he believes Ohio’s procedures are as humane and the best they can be right now, and he is incorrect. Thus, despite Defendants’ victory on the narrow issue of injunctive relief today, the aspirations of the State would suggest that the question should not be simply what must be done under compulsion by the Constitution, but also what should be done to meet the professed laudable goals of the State of Ohio.
Might the Somali pirate have an Apprendi claim to try to thwart his federal prosecution?
This latest news from New York federal courts all of a sudden gives me a great excuse to end my afternoon with a little pirate blogging from Apprendi-land:
A Somali teenager accused of holding hostage a U.S. ship captain in the Indian Ocean after an attempted hijacking will be tried as an adult in New York on piracy charges, a U.S. judge ruled on Tuesday.
Abduwali Abdukhadir Muse, the sole surviving accused pirate from the foiled bid to hijack huge U.S. container ship the Maersk Alabama earlier this month, was put in custody until his next court appearance on May 21.
Muse is charged with piracy, conspiracy to seize a ship by force, conspiracy to commit hostage taking and related firearms offenses. He faces a maximum sentence of life in prison if convicted....
Muse appeared at a hearing in Manhattan federal court after being brought to New York by U.S. authorities late on Monday. Parts of the hearing were closed to the public due to questions about whether Muse was less than 18 years old.
Defense attorney Philip Weinstein said he spoke to Muse's father in Somalia, who said his son is 15 years old but prosecutors said Muse told the FBI he was over 18. U.S. Magistrate Judge Andrew Peck eventually ruled Muse is 18 years old.
As all sentencing fans know, Apprendi holds that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Though some might be inclined to argue that the age of the Somali pirate use is a "jurisdictional fact" not subject to Apprendi, functionally a determination of Muse's age is highly consequential to his fate. And, though I doubt Muse's attorneys would want this age determination made by a jury, I am certain he would prefer that the proof standard on this issue was "beyond a reasonable doubt."
Does anyone know if the proof standard was discussed or debated before Judge Peck in today's hearing? Does anyone know whether and how Muse's attorneys might appeal this determination at this stage of the proceedings?
One recent related post:
UPDATE: I just found this effective new AP article suggesting good reasons to wonder about the proof surrounding Muse's age, which in turn suggests that the applicable proof standard for Muse's age could be very important going forward:
Muse's personal details are murky, with his parents in Somalia insisting he was tricked into getting involved in piracy. His age also remained unclear.
His parents said he is only 16. U.S. law enforcement said he is at least 18 and a federal judge agreed Tuesday, ruling that Muse is an adult and that the case can proceed in open court. Muse's mother said she has no records to prove his age, but she and the teen's father say he is 16. "I never delivered my babies in a hospital," she said.
A classmate, however, said he believed Muse could be older — and that he studied English at school. "I think he was one or two years older than me, and I am 16," said Abdisalan Muse, reached by telephone in Galkayo. "We did not know him to be a pirate, but he was always with older boys, who are likely to be the ones who corrupted him."
It is rare for Somalis to have formal birth records, and U.S. officials did not say on what basis they believe him to be 18 or older....
In New York, legal experts said the age issue will play a key role as the case develops.
"Age very much matters to how this case will be treated and how he himself will be treated in both the short and long term," said Daniel Richman, professor of Law at Columbia University Law School. He said it was important from a federal prosecutor's perspective on getting him treated as an adult to "avoid difficult and cumbersome proceedings."
Karen Greenberg, executive director of the Center on Law and Security at New York University's Law School, said that the case could bring the U.S. under international criticism. "If he is a juvenile and he is tried as an adult and given life imprisonment, it will not help the reputation we are trying hard to reform," she said. "International law is more lenient when it comes to juveniles and we already take criticism."
Colorful developments from the Centennial State
Thanks to two posts from TalkLeft, I see that there are colorful sentencing developments from the great state of Colorado: Colorado House Votes to Repeal Death Penalty and Denver Post Urges Feds to Legalize Marijuana. Though these developments surely do not mean that all state capital defenders in Colorado should give up their day jobs to start making plans for opening up a head shop, they do provide yet another interesting sign of the current crime and justice times.
I would be grateful to hear from anyone truly in the know about the chances of Colorado formally repealing the death penalty. This local report suggests that the biggest question now is whether the Governor would sign off on a repeal bill:
The Colorado House approved a plan Tuesday to eliminate the death penalty and use the money to focus on cold cases.
The measure now goes to the Senate, where it's expected to pass. Gov. Bill Ritter, a former prosecutor, hasn't said whether he would sign the bill.