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May 2, 2009

Alabama judge orders killer dad to take daily look at his victims

As detailed in this local AP article, an Alabama state judge added a novel condition when sentencing a killer to death earlier this week.  Here are the details:

A judge on Thursday ordered a death sentence for a coastal Alabama man who was convicted of murdering four young children by tossing them from a bridge to "torture" his wife. Mobile County Circuit Judge Charles Graddick also ordered that prison officials show Lam Luong photos of the children each day he spends on death row awaiting lethal injection....

The 38-year-old jobless shrimper was convicted of capital murder in March for killing the children on Jan. 7, 2008 in a dispute with his wife, Kieu Phan, who was 23 at the time. Jurors last month earlier voted 12-0 for the death penalty.

Luong, a Vietnamese refugee who came to the U.S. when he was 13, was convicted of dropping the children — Ryan Phan, 3; Hannah Luong, 2; Lindsey Luong, 1; and 4-month-old Danny Luong — from the top of an 80-foot-high span to Dauphin Island. The bodies were recovered from coastal waters.  Luong was the father of three of the children.  His wife was pregnant with Ryan, the child of another man, when they met in 2004, according to testimony.

May 2, 2009 in Death Penalty Reforms | Permalink | Comments (3) | TrackBack

The steady stream of child porn sentencings

I continue to find notable how many seemingly upstanding citizens find there way into federal prison for downloading kiddie porn.  For example, the San Francisco Chronicle reports here that a "former aide to U.S. Senator Barbara Boxer was sentenced Friday to five years in federal prison for receiving child pornography."  Similarly consider these local articles here and here reporting on men who are 71 and 59 years old now getting long federal prison terms for obtaining child porn.

I sure hope that anyone on-line looking for kiddie porn finds this blog post and realizes that the punishment for this activity is severe.  General deterrence is the strongest argument to support why seemingly law abiding persons who merely downloaded kiddie porn pictures should get such lengthy prison terms for their first offenses.  I hope that, over time, this general deterrence is effective, and I will continue to post these stories in the hope I can do my own little part in helping to achieve this end.

May 2, 2009 in Sex Offender Sentencing | Permalink | Comments (11) | TrackBack

Two notable ex post rulings on sex offender registration from Indiana Supreme Court

As detailed in this local article, headlined "Rulings affect sex offender state registry," the Indiana Supreme Court had two significant rulings this week about ex post facto limitations on the application of sex offender registration rules.  Here are the basics:

A pair of rulings by the Indiana Supreme Court might bring dramatic changes to who is listed on Indiana’s Sex and Violent Offender Registry.

One ruling deals with sex offenders who committed their crimes and were sentenced before the state’s sex offender registry laws existed. The other ruling, involving an Allen County case, deals with whether sex offenders’ listings on the registry are subject to further changes to the registry.

There are 753 people on Allen County’s sex and violent offender registry. In the first ruling, the state’s highest court overturned Richard P. Wallace’s 2000 conviction for failing to register as a sex offender.... Wallace appealed [his conviction} arguing in part that the changes to the registry violated the state’s Constitution by creating an “after the fact” punishment. And the state’s high court agreed.

“Wallace was charged, convicted and served the sentence for his crime before the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted,” Justice Robert D. Rucker wrote....

In the second case, the court upheld a ruling by Allen Superior Court Judge Fran Gull involving Allen County resident Todd Jensen. Gull had ruled that Jensen must register for life as a sexually violent predator even though the provision in the law that created that designation did not exist when he was convicted....

Jensen appealed, using in part arguments similar to the ones Wallace used, that the requirement created a punishment after the fact. In a split decision, the appellate court agreed and sent the case back to Gull to limit Jensen’s registration requirement to 10 years.

But in a 3-2 decision, the state Supreme Court upheld Gull’s ruling that Jensen should have to register as a sexually violent predator for life.

The Indiana Supreme Court ruling in Wallace can be accessed at this link; its ruling on Jensen can be accessed at this link.

May 2, 2009 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

NC Supreme Court addresses doctor involvement in executions

As detailed in this local article, headlined "Justices overrule medical board: It had limited role of doctors at executions," the North Carolina Supreme Court yesterday issued a major opinion concerning doctor involvement in execution protocols.  Here are the basic details:

One roadblock to resuming executions in North Carolina is gone, but others remain after a ruling by the N.C. Supreme Court yesterday. In a 4-3 decision, the state's highest court upheld a ruling that said the N.C. Medical Board overstepped its authority when it issued a position statement saying it could punish doctors for participating in an execution.

Other lawsuits over the state's execution procedures remain, including a lawsuit in Wake Superior Court challenging how the N.C. Council of State changed execution procedures in 2007 to require someone with medical training to play a part in the execution. The change put the execution procedures in conflict with the medical board's opinion....

There hasn't been an execution in the state since Samuel Flippen of Forsyth County died by lethal injection in August 2006 for killing his 2-year-old stepdaughter. At present, 163 people are on the state's death row.

In yesterday's decision, the seven justices were deciding an appeal by the medical board of an October 2007 decision in Wake Superior Court. Writing for the majority, Justice Edward Thomas Brady wrote that allowing the board to discipline its doctors for participating in executions would elevate the board over the General Assembly....

Justice Robin E. Hudson dissented, arguing that it wasn't the court's proper role to decide the issue. She was joined by Chief Justice Sarah Parker and Justice Patricia Timmons-Goodson.

The full ruling of the NC Supreme Court can be accessed at this link.

Some related posts on doctors and executions:

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

May 1, 2009

Souter, short list speculations and sentencing spins

As detailed in this CNN article, Associate Justice David Souter has now officially announced that he will retire from the Supreme Court.  As we come to expect, SCOTUSblog is a great resource on this story, and it has this post noting some early comments from President Obama: 

On the selection of a replacement, President Obama said he will seek someone with a “sharp and independent mind, and a record of excellence and integrity… someone who understands justice is not about some abstract legal theory or footnote in a casebook, it is also about how our laws affect the daily realities of peoples’ lives. Whether they can make a living, and care for their families, whether they feel safe in their homes and welcome in their own nation.” He said he views “that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”

He will “seek someone who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role…who shares [his] respect for the constitutional values for which this nation was founded and who brings a thoughtful understanding for how to apply them in our time.”

White House Press Secretary Robert Gibbs ... said that President Obama hopes to have a nominee selected “well before the end of July” as Congress will be “out of Washington” for August.

Meanwhile, the short list speculating game is already in full gear (see, e.g., CNN here, Huff Post here).  As I have noted in lost of prior posts in conjunction with other recent openings, any change in Justices can impact the various still evolving balances in still evolving sentencing jurisprudence.  And, whomever the President selects, I am hoping the new Justice is willing and able to bring some fresh thinking and perhaps some new ideas to the sentencing table.

Some prior posts on SCOTUS personnel and Obama judicial appointments:

May 1, 2009 in Who Sentences? | Permalink | Comments (7) | TrackBack

A close look at Alabama's experiences with sentencing reform

In my view, there is clearly far too little scholarship on state sentencing systems (and probably too much on the federal sentencing system). It is thus exciting and refreshing to see this new piece on SSRN by Joseph Colquitt, titled "Can Alabama Handle the Truth (in Sentencing)?." Here is its abstract:

This Essay examines truth in sentencing, discusses its strengths and weaknesses, and analyzes what it will mean for Alabama.  The piece neither seeks to support or oppose the existing legislative mandate to adopt truth in sentencing in Alabama.  Rather, the Essay seeks to shed light on the issues, induce a healthy dialogue, and encourage the involved parties to garner a broad base of knowledge, carefully deliberate, properly design Alabama's truth-in-sentencing scheme, and ensure that the state has built the necessary infrastructure to support truth in sentencing.  Otherwise, adopting any truth-in-sentencing scheme would be imprudent. The Essay also examines Alabama past and present sentencing models and reports on the Sentencing Commission's voluntary sentencing guidelines presently used in the state as well as the challenges it faces in developing a truth-in-sentencing scheme in compliance the existing legislative mandate.

May 1, 2009 in State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Former GC for Gen Re gets relatively short prison sentence

This article from The National Law Journal, which is headlined "Former Assistant GC Sentenced in General Re Fraud Case," reports on a notable white-collar sentencing that took place yesterday.  Here are excerpts:

The former assistant general counsel of General Re Corp., Robert Graham, was sentenced Thursday to one year and one day in federal prison in a financial fraud case closely watched by in-house counsel nationwide.

Graham, 61, was found guilty last year of conspiracy, securities fraud, mail fraud and making false statements to the U.S. Securities and Exchange Commission. As part of his sentence, he was ordered to pay a $100,000 fine. He had faced a maximum sentence of up to 210 years in prison.

"Certainly, that kind of sentence seems more in line with a liability for a corporate failure than hundreds of years in prison," said Susan Hackett, general counsel for the Association of Corporate Counsel, of the sentence that Graham actually received.

Graham, who was senior vice president and assistant GC at Stamford, Conn.-based General Re from 1986 to 2005, will remain free on bond pending his appeal of his convictions. His lawyer, Alan Vinegrad, had sought a period of home confinement and community service....

The charges against Graham, who was senior vice president and assistant general counsel of Gen Re, were part of a 16-count indictment involving four other defendants at Gen Re and American International Group Inc.

This ABA Journal piece indicates that prosecutors were asking for a sentence of 230 years for Graham, but that does not sound quite right.  Still, I do think the prosecutors were seeking a much longer term and that Graham was the beneficiary of a significant downward variance.

May 1, 2009 in White-collar sentencing | Permalink | Comments (3) | TrackBack

California appellate court finds juve LWOP sentence unconstitutional

A helpful reader pointed me to an important ruling yesterday from a california appellate court finding a juvenile life sentence unconstitutional.  The ruling in In re Nunez, No. G040377 (Cal. App. 4th Dist. April 30, 2009) (available here), starts this way:

Antonio de Jesus Nuñez filed a petition for habeas corpus in the California Supreme Court on grounds, inter alia, that his sentence of life in prison without parole (LWOP) for kidnapping for ransom (Pen. Code, § 209, subd. (a)) — an offense he committed when he was 14 years old — constitutes cruel and unusual punishment under the Eighth Amendment or, alternatively, cruel or unusual punishment in violation of article I, section 17, of the California Constitution. Concluding Nunez established a prima facie case for relief, the Supreme Court ordered Nuñez's prison custodian to show cause before this court justifying the constitutionality of Nuñez's LWOP sentence.  After we placed the matter on calendar, petitioner and the Attorney General submitted briefs and argued the matter.

Petitioner contends his LWOP sentence violates article I, section 17's proportionality requirement based on, among other factors, his youth, the lack of injury to any victim, and the circumstance that LWOP is not a sentencing option for kidnappers his age who — unlike petitioner — murder their victims. We agree that under our state Constitution the LWOP sentence imposed on petitioner is void both in the abstract for society‟s most youthful offenders and as applied to petitioner in particular. We do not reach this conclusion lightly.  As stated by our Supreme Court in In re Lynch (1972) 8 Cal.3d 410, 414-415 (Lynch): “We recognize that in our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments, and that such questions are in the first instance for the judgment of the Legislature alone. [Citations.]  [¶] Yet legislative authority remains ultimately circumscribed by the constitutional provision forbidding the infliction of cruel or unusual punishment, adopted by the people of this state as an integral part of our Declaration of Rights.  It is the difficult but imperative task of the judicial branch, as coequal guardian of the Constitution, to condemn any violation of that prohibition.”  When such a showing is made, as here, “we must forthrightly meet our responsibility „to ensure that the promise of the Declaration of Rights is a reality to the individual.‟ [Citation].” (Id. at p. 415.)

And because petitioner is the only known offender under age 15 across the country and around the world subjected to an LWOP sentence for a nonhomicide, no-injury offense, we also conclude his severe sentence is so freakishly rare as to constitute arbitrary and capricious punishment violating the Eighth Amendment.  Accordingly, as required by the state and federal Constitutions, we vacate defendant‟s LWOP sentence on his kidnapping conviction and remand to the trial court for resentencing.

May 1, 2009 in Offender Characteristics | Permalink | Comments (19) | TrackBack

New York Times editorial on crack sentencing

The New York Times has this new editorial, headlined "Fairness in Drug Sentencing."  Here are snippets:

Congress’s decision to mandate longer prison terms for people arrested with crack cocaine than those caught with the powdered form of the drug was both irrational and discriminatory....

Congress has repeatedly ignored calls to equalize sentencing, partly because Justice Department officials in previous administrations have argued against it. This week, however, Lanny A. Breuer, the new chief of the Justice Department’s Criminal Division, told lawmakers that it was time to revisit the crack/cocaine disparity.

Mr. Breuer argued that the sentencing disparity was “difficult to justify based on the facts and science, including evidence that crack is not an inherently more addictive substance than powder cocaine.” The law was especially problematic, he continued, “because a growing number of citizens view it as fundamentally unfair.”

Mr. Breuer is right. Instead of perpetuating this discrimination, Congress should quickly move to equalize the penalties for the possession of crack and cocaine.

Some recent related posts:

May 1, 2009 in Drug Offense Sentencing | Permalink | Comments (0) | TrackBack

April 30, 2009

"Souter to retire, NBC-TV reports"

This title of this post is the title of this report at SCOTUSblog by Lyle Denniston.  Here is how it begins:

Justice David H. Souter has decided to retire when the Supreme Court completes its current Term in early summer, the NBC-TV network reported Thursday night.  The 69-year-old jurist, who is completing his 19th year on the Court, has passed word of his plans to others, and the White House has been told, according to the network’s account.  Other news organizations also were reporting that Souter has made his decision not to continue serving.

Anyone want to start throwing out names for the next Justice?

UPDATE:  Lots of links to major media coverage has been assembled here at How Appealing.

April 30, 2009 in Who Sentences? | Permalink | Comments (10) | TrackBack

PA death row defendant, tired of delays though asserting innocence, asks to be executed

Pennsylvania's death row has over two hundred defendants, but the state has executed only three defendants in the modern era.  As detailed in this local story, one defendant is tired of waiting to leave death row via execution:

An Altoona man on death row has sent a letter to Gov. Ed Rendell asking that his death warrant be signed, thereby carrying out a sentence imposed on him for the 1998 Thanksgiving Day murder of his former girlfriend's husband. William L. Wright III, now 45, was convicted a decade ago of killing James Mowery in his Beale Avenue home....

In 2007, Wright became upset when the state Supreme Court, after years of deliberation, had failed to decide his appeal.  He filed a lawsuit with the U.S. District Court in Johnstown claiming inordinate delay in sentencing.  The state Supreme Court in December dismissed Wright's appeal saying that evidence of his guilt was "overwhelming." 

Wright decided he would file no more appeals at the state level and carried on his fight in the federal court, but now he has dismissed his state appeals attorney and federal public defender, R. Thomas Forr of Altoona, and has said he wants to die.  On April 19, Wright sent a letter to Rendell stating he was writing to expedite the signing of his death warrant "so I can commence the death-penalty execution."...

Rendell spokesman Chuck Ardo said this week that the Office of General Counsel will review the Wright case and recommend to the governor to sign or not sign the warrant.  Ardo said no inmate has been put to death during Rendell's six-plus years in office.  Two inmates who ceased appealing their convictions were put to death under Gov. Tom Ridge....

Wright concluded his letter to the governor stating, "For what it's worth, I sincerely regret that the responsibility now falls on you to execute an innocent man.  Thus, I would appreciate your prompt and speedy attention in this matter."

April 30, 2009 in Death Penalty Reforms | Permalink | Comments (5) | TrackBack

"Does Unconscious Racial Bias Affect Trial Judges?"

The title of this post is the title of this piece appearing on SSRN.  Here is the abstract:

Race matters in the criminal justice system.  Black defendants appear to fare worse than similarly situated white defendants.  Why?  Implicit bias is one possibility.  Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans.  Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases?  And if so, do these biases account for racially disparate outcomes in the criminal justice system?

We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results — which are both discouraging and encouraging — raise profound issues for courts and society.  We find that judges harbor the same kinds of implicit biases as others; that these biases can influence their judgment; but that given sufficient motivation, judges can compensate for the influence of these biases.

April 30, 2009 in Race, Class, and Gender | Permalink | Comments (3) | TrackBack

Tenth Circuit rejects novel argument about crack retroactivity rules

The Tenth Circuit today in US v. Dryden, No. 08-3310 (10th Cir. April 30, 2009) (available here), rejects a defendant's novel effort to get the benefit of the new retroactive crack guidelines. Here is how it starts:

After the United States Sentencing Commission decided to give retroactive effect to its recent amendment to the crack-cocaine guidelines, Edward Dryden moved under 18 U.S.C. § 3582(c)(2) for a reduction in his sentence.  The district court denied the motion, agreeing with the government that a reduction would be barred by the Commission’s policy statement in USSG § 1B1.10(a)(2) , because the amended guideline would not have reduced Mr. Dryden’s guideline sentencing range. Mr. Dryden appeals, raising the novel argument that the Commission’s policy statement results from an unconstitutional delegation to the Commission of legislative authority to restrict the jurisdiction of federal courts.  See Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935).  Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

April 30, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Letter to the USSC about modern sentencing data

I had the honor of signing my name to a terrific letter put together last week by a group of sentencing gurus that urged the US Sentencing Commission to go further in making its sentencing data more transparent and accessible. This letter can be downloaded below, and here is how it begins:

The undersigned scholars and researchers study the federal sentencing system from a variety of policy and philosophical perspectives.  As you well know, these are interesting times. Constitutional decisions by the Supreme Court revised the guideline system put in place by the Sentencing Reform Act of 1984 (the SRA).  Legislation, both enacted and proposed, has raised important questions concerning the fairness and effectiveness of federal sentencing.  The quality of our national policy debate can be improved by empirical research, just as our sentencing practices can be improved by empirical evaluation.

We call on you to fully use the powers granted by the SRA to facilitate research and evaluation. The upcoming Data and Research Conference on May 5-7 provides an opportunity for the Commission to expand its role as “clearinghouse and information center” on federal sentencing practices and to assist researchers working with the annual monitoring data file.  The conference agenda published on your website does not seem to address several concerns regarding the timing and method of release of Commission data, however, and the release of data beyond the annual monitoring, appeals, and organizations data files.  We ask that you consider these additional issues and recommendations.

Download Open_letter_to_USSC_April_20

April 30, 2009 in Data on sentencing | Permalink | Comments (2) | TrackBack

Executions in Georgia and Texas this week

While another western state is getting closer to death penalty repeal this week (basics here), two active capital punishment state have their execution chambers active.  Specifically, as detailed in this AP article, Georgia executed a murderer last night, and Texas is scheduled to execute a murderer tonight.  As detailed in this Dallas Morning News article, tonight's scheduled execution in Texas moves the state's Governor closer to a capital punishment milestone:

Thursday evening, capital punishment opponents from Amnesty International USA and the Texas Coalition to Abolish the Death Penalty planned what they said would be a 200-minute vigil outside the criminal courthouse in Houston to mark what soon will be the 200th execution of Gov. Rick Perry's tenure.  Johnson would be the 198th Texas inmate put to death since Perry succeeded Gov. George W. Bush when Bush became president in the 2000 election.  During Bush's six years as governor, 157 executions were carried out in Texas.

Johnson was among at least six Texas inmates with execution dates extending into the summer.  Scheduled to die next, on May 19, was Michael Lynn Riley, 50, condemned for the slaying of Winona Harris.  The victim was stabbed more than 23 years ago during the robbery of a convenience store in Quitman, about 80 miles east of Dallas.

April 30, 2009 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

Comparative examiniation of proportional punishments

I just saw on SSRN this new piece, titled "Proportionality in the Criminal Law: The Differing American versus Canadian Approaches to Punishment."  Here is the abstract:

The focus of this Article shall be upon the Eighth Amendment of the United States Constitution and s. 12 of the Canadian Charter of Rights and Freedoms, both of which prohibit “cruel and unusual punishment”; and their effect on mandatory criminal sentencing (via penal statute) in the two countries.  Part I of this Article shall briefly explain the differences between the jurisdictional application of criminal justice in the United States and Canada.  Part II of this Article shall present and explain the American Eighth Amendment approach to the constitutionality of mandatory criminal sentencing.  Part III of this Article shall present and explain the Canadian s. 12 approach to the constitutionality of mandatory criminal sentencing.  Part IV of this Article shall compare and contrast the two national approaches and present the underlying argument of this Article, namely that if one’s concern is the fair and proportionate application of justice, then the Canadian approach to reconciling the constitutional prohibition against “cruel and unusual punishment” and the application (through penal statute) of mandatory criminal sentencing is the superior one.  Part V of this Article shall explore the possible reasons for the differing national approaches to mandatory criminal sentencing.

April 30, 2009 in Sentencing around the world | Permalink | Comments (1) | TrackBack

April 29, 2009

Colorado death penalty repeal bill continues moving forward

As detailed in this local article, a bill in Colorado to repeal the state's death penalty continues to march forward:

A proposal to eliminate the death penalty in Colorado has cleared another hurdle. The Senate State, Veterans and Military Affairs Committee backed the measure (House Bill 1274) Wednesday at the urging of families of murder victims.  The bill now heads to the Senate Appropriations Committee for another vote....

The bill would take the money now being used to prosecute death penalty cases, about $1 million a year, and use it to investigate cold cases instead.  Opponents, including most of the state's district attorneys, say families are being given false hope that their crimes will be solved.

April 29, 2009 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

DOJ's basic game-plan while urging crack sentencing reform from Congress

Here is a copy of the written testimony from Assistant Attorney General Lanny Breuer submitted to the Senate Judiciary Committee for this morning's hearing on federal crack sentencing (basics here).  The last two substantive paragraphs provide an outline of what DOJ is doing internally and also how it plans to proceed in upcoming cases:

Earlier this month the Attorney General asked the Deputy Attorney General to form and chair a working group to examine federal sentencing and corrections policy. The group’s comprehensive review will include possible recommendations to the President and Congress for new sentencing legislation affecting the structure of federal sentencing. In addition to studying issues related to prisoner reentry, Department policies on charging and sentencing, and other sentencing-related topics, the group will also focus on formulating a new federal cocaine sentencing policy; one that completely eliminates the sentencing disparity between crack and powder cocaine but also fully accounts for violence, chronic offenders, weapon possession and other aggravating factors associated – in individual cases – with both crack and powder cocaine trafficking. It will also develop recommendations for legislation, and we look forward to working closely with Congress and the Sentencing Commission on this important policy issue and finding a workable solution.

Until a comprehensive solution – one that embodies new quantity thresholds and perhaps new sentencing enhancements – can be developed and enacted as legislation by Congress and as amended guidelines by the Sentencing Commission, federal prosecutors will adhere to existing law.  We are gratified that the Sentencing Commission has already taken a small step to ameliorate the 100:1 ratio contained in existing statutes by amending the guidelines for crack cocaine offenses.  We will continue to ask federal courts to calculate the guidelines in crack cocaine cases, as required by Supreme Court decisions.  However, we recognize that federal courts have the authority to sentence outside the guidelines in crack cases or even to create their own quantity ratio.  Our prosecutors will inform courts that they should act within their discretion to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a) and our prosecutors will bring the relevant case-specific facts to the courts’ attention.

This is a nice effort to dodge some of the questions I raised in this "now what" post, but this line still jumps out: "we recognize that federal courts have the authority to sentence outside the guidelines in crack cases or even to create their own quantity ratio."  Given that DOJ recognizes that federal sentencing judges have authority to "create their own quantity ratio," and given that DOJ now seeks to "completely eliminate[] the sentencing disparity between crack and powder cocaine, why shouldn't prosecutors simply recommend in each on-going crack case that sentencing judges should not embrace (or should I say "create") a 1:1 ratio going forward?  Or, perhaps the better question is, shouldn't prosecutors now just express agreement with defense counsel in on-going crack case when they suggest that a 1:1 ratio be adopted by a sentencing court?

Some recent related posts:

April 29, 2009 in Drug Offense Sentencing | Permalink | Comments (8) | TrackBack

Third Circuit finds failure to address departure arguments procedurally unreasonable

Continuing its important recent work on reasonableness review, the Third Circuit today provides another notable opinion in US v. Lofink, No. 08-3204 (3d Cir. April 29, 2009) (available here). His is how the ruling starts:

The United States District Court for the District of Delaware sentenced Defendant Anthony Lofink for his convictions on charges of wire fraud, conspiracy to commit wire fraud, and conspiracy to commit money laundering. Lofink had moved for a departure from the Guidelines range contained in the Presentence Investigation Report (“PSR”), but the District Court denied the motion on the basis that it had taken Lofink’s arguments into account when fashioning his sentence.  Because our precedents require district courts to decide departure motions on their merits in order to satisfy the requirement of procedural reasonableness, we will vacate the sentence and remand for resentencing. In doing so, however, we intimate no opinion as to the merits of Lofink’s departure motion or the substantive reasonableness of the sentence the District Court imposed.

April 29, 2009 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

En banc Sixth Circuit rejects ineffectiveness claim for failing to preserve Sixth Amendment claims pre-Booker

Ruling en banc, the Sixth Circuit today in Nichols v. US, No. 05-6452 (6th Cir. April 29, 2009) (available here), reversed course after a panel had previously found defense counsel ineffective for failing to preserve Sixth Amendment claims.  Here is how the majority opinion in the new Nichols ruling concludes:

Nichols has not shown that his counsel was constitutionally ineffective for failing to anticipate or foresee a change in the law and raise an Apprendi-based challenge at sentencing or on direct appeal, for failing to move the appellate court for reconsideration on a Blakely-based claim in post-appellate proceedings, or for failing to petition the Supreme Court for certiorari based on Booker.  For the reasons discussed in this opinion, we AFFIRM the district court’s judgment.

Here is how the dissenting opinion concludes:

Because Apprendi and Blakely cast the constitutionality of the federal Sentencing Guidelines into serious doubt, and because the enhancements to Nichols’s Guidelines range directly presented circumstances that were called into question by Apprendi and Blakely, I conclude that Nichols’s counsel was constitutionally ineffective for failing to preserve a Sixth Amendment challenge to his sentence.

April 29, 2009 | Permalink | Comments (8) | TrackBack

Eager to hear and post reports on courtroom ripples of new DOJ crack/powder policy

Especially because the Justice Department's important advocacy for completely eliminating the crack/powder sentencing disparity (basics here) prompts many real-world questions for on-going crack cases (noted here), I am eager to hear about and post details of any early courtroom consequences of DOJ's new policy perspective.  In particular, I hope litigants and/or court information officers will send me information about any notable documents or rulings that make reference to the new DOJ policy.

Some recent related posts:

April 29, 2009 in Drug Offense Sentencing | Permalink | Comments (1) | TrackBack

With the new DOJ advocating completely eliminating crack/powder disparity, now what?

Because the wheels of federal sentencing reform move slowly in Congress, the Justice Department's important advocacy for completely eliminating the crack/powder sentencing disparity (basics here) probably will take a while to become new sentencing legislation.  But the realities of federal sentencing decision-making move very quickly in the courtroom.  Specifically, in fiscal year 2008 there were over 6000 crack sentences imposed in federal court, which means that over 100 crack defendants are sentences each and every week in federal court and that perhaps 20 or more crack defendants are scheduled to be sentenced just later today.

What should now happen in these upcoming crack sentencing cases later today and tomorrow and next week and next month?  What should happen in on-going sentencing appeals in which a defendant is complaining to a circuit court that his within-guideline sentence is unreasonable?  What should happen to those cases involving defendants getting the retroactive benefit of the new crack guidelines, but have seeking an even greater reduction than the US Sentencing Commission authorized?  And, whatever federal judges can and think they can/should now do, what will federal prosecutors nationwide be recommending that judges do?

Exciting times... and uncertain times.  I guess this is the inevitability consequence of change we can believe in.

UPDATE:  Both Senators Durbin and Feinstein have been asking hard questions about how to apply new rules to old cases, and nobody has really good answers (and Senator Feinstein used the term "parole" in her question, perhaps because even she does not completely realize there is no such concept in current federal criminal law).  Of course, one possible "easy" answer might be to take care of this problem through executive clemency mechanism, rather than forcing courts to deal with these matters.

April 29, 2009 in Drug Offense Sentencing | Permalink | Comments (8) | TrackBack

Two SCOTUS losses for criminal defendants

As detailed in this SCOTUSblog post, the Supreme Court handed down two opinions this morning and they are both losses for defendants:

The Court has released the opinion in Kansas v. Ventris (07-1356) . The decision below, which held for the defendant, is reversed and remanded in a 7-2 opinion by Justice Scalia, available here.  Justice Stevens filed a dissenting opinion joined by Justice Ginsburg.

The Court has released the opinion in Dean v. United States (08-5274). The decision below, which held for the United States, is affirmed in a 7-2 opinion by Chief Justice Roberts, available here. Justice Stevens filed a dissenting opinion and Justice Breyer filed a dissenting opinion.

Dean involves a sentencing opinion dealing with a mandatory minimum sentencing provision that I will likely blog about later today.  Readers are welcome to get a running start in the comments.

April 29, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (15) | TrackBack

Watching the webcast of the Senate crack disparity hearing

As detailed in this official notice, the Senate Committee on the Judiciary, Subcommittee on Crime and Drugs will hold a hearing at 10am this morning entitled "Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity."  Though I do not plan to live-blog the event, I do plan to try to watch the live webcast from this link.  And I hope readers feel free to use the comments to provide real-time commentary or any notable moments from the event.

Some recent related posts:

UPDATE:  As I am watching Assistant Attorney General Lanny Breuer testify via webcast, I received an e-mail from FAMM titled "Today is an historic day for sentencing reform!," and it starts this way:

This morning, the U.S. Department of Justice is announcing that it supports replacing the controversial 100:1 sentencing disparity between crack and powder cocaine with an even 1:1 ratio.  DOJ's announcement, included in testimony to be delivered on Capitol Hill by Assistant Attorney General Lanny Breuer, marks the first time the Justice Department has publicly endorsed equalization of the penalties between crack and powder cocaine.... FAMM member Cedric Parker is the final witness at the hearing.

The significance of today's announcement cannot be overstated.  For years, FAMM has argued that individualized and proportionate sentencing does not jeopardize public safety. Today, the U.S. Justice Department — the nation's top law enforcement agency, the overseer of every federal prosecutor in the United States — agreed with us. DOJ's new position on crack penalties acknowledges that we need not sacrifice safety for sentencing fairness.  The nation's top cops say we can have both!

And I just heard AAG Breuer state that DOJ now wants "this Congress to completely eliminate the crack/powder disparity."  He also has says that AG Holder has created a working group on federal sentencing that will work toward a better sentencing structure for how to deal with these matters.

MORE:  Here are early reports on this hearing from the Washington Post and the Wall Street Journal.

April 29, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (1) | TrackBack

Unusual porn case leads to unusual rejection of a federal plea deal

It is notable any time that a federal judge rejects a plea deal worked out by the prosecution and the defense.  But, as documented by local coverage here and here, an unusual porn case from Indiana is notable for lots of other reasons, too:

A federal judge rejected a plea agreement for repeat bestiality offender Michael Bessigano in Hammond federal court Tuesday, saying Bessigano's case doesn't justify a sentence below federal guidelines.

Judge Philip Simon said the confidential report from probation agents recommended a sentencing range between 33 and 41 months in prison for the Hobart man's conviction of downloading bestiality pornography.

Discussion in court indicated that, under the plea agreement between defense lawyer John E. Martin and Assistant U.S. Attorney Bernie Van Wormer, Bessigano could be sentenced to as little as two years in prison. Simon called the agreement "not appropriate," and said that if Bessigano persisted in his guilty plea without the agreement, he would be exposed to a tougher sentence.  Simon gave Van Wormer and Martin two weeks to work out another plea agreement. Simon said he would schedule a joint plea hearing and sentencing....

Before he faced federal bestiality charges, Bessigano spent more than four years in prison on an animal cruelty conviction for having sex with a chicken, then killing the animal in a Valparaiso motel room.

Though I will tolerate off-color jokes about this remarkable case, I will expect the jokes to go beyond obvious "choking the chicken" references.

April 29, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (9) | TrackBack

Some real-world insights from some real-world lawyers

This interesting new article from the Fulton County Daily Report, headlined "Best Lawyers' Panels Agree That Law Schools, Firms Need Retooling," say a lot about the modern realities facing lawyers and law schools. Here are some notable excerpts that end with a sentencing spin:

Seismic changes in the legal profession engaged the concern of seasoned attorneys at a conference held last week by the Best Lawyers of America.... At Friday's panels on the future of legal education and the legal profession, the tenor of questions showed a lively concern for where the profession is headed.

The practice of law has changed radically in 25 years.... Law schools must retool legal education, the deans agreed, but exactly how still is not clear. "You're producing a product that very few people want. Firms have hiring freezes. Why not stop producing the product -- or create new markets for what you're producing?" one lawyer challenged the deans. "You're like the auto manufacturers who produce a product for which there is no demand."...

Organizational behavior and product management skills plus strategic business thinking are important competencies for lawyers at firms handling today's giant matters, said the deans. But they said the current criteria for law school admission -- college grades and LSAT scores -- do not assess these competencies. [Dean Richard] Matasar challenged lawyers who think legal education is out of step with the demands of the market to "go back to your place that manufactured you and put pressure on them. You have the power of the pocketbook."

Another lawyer in the audience objected to the idea that legal education should merely supply product to private firms and companies. "We're not talking about cars. We're talking about minds. ... This is supposed to be a profession," he protested. Massive discovery demands have shifted legal work away from thinking and analysis to product management, said another attorney. "When we were in law school, discovery meant two or three banker boxes of documents. Now it means two or three hundred boxes. That demands widgets -- not thinking," he said.

Members of the panel on the future of the profession agreed that the vastly expanded scale of electronic discovery has transformed legal work. The panel's moderator, Philip K. Howard of Covington & Burling, pointed to another fundamental change: the increase in the number and complexity of laws.

"Layers of law have accumulated like concrete. Some is productive. So much of it is not. Congress never goes back and revises," said Howard, who addresses this issue in his latest book, "Life Without Lawyers: Liberating Americans From Too Much Law."...

[Robert] Clifford, a member of plaintiffs firm, the Clifford Law Offices in Chicago, cited gargantuan discovery requirements as one of the culprits for the disappearing jury trial....

[Charles] Stillman, the panel's white-collar criminal practitioner, said federal sentencing guidelines also have chilled jury trials. Defendants prefer to cut a sentencing deal rather than take their chances in court.  Stillman is a founder of Stillman, Friedman & Shechtman and a former federal prosecutor.

He warned of a new development -- the government's increasing use of private firms to handle internal investigations of companies.  Subcontracting investigations to firms is another shift in power from public law enforcement agencies to the private sector, said Stillman. "So lawyers are increasingly viewed as an arm of government.  This is a very serious challenge to our profession, which I find quite scary," he said.

Cross-posted at LSI

April 29, 2009 in Who Sentences? | Permalink | Comments (1) | TrackBack

"Woman sent to jail for texting in court"

This local story from Utah, which carried the headline that is the title of this post, ought to get technology fans and First Amendment gurus all worked up:

A Utah woman is in jail for sending a text message. She's being held for contempt of court.

Susan Henwood, a mother of four, has been sentenced to 30 days in the Tooele County Jail because she sent a text message about a court hearing she was observing. "She shouldn't be there. She did nothing wrong," her husband, Joshua Henwood, said.

In early April, Joshua was sick and couldn't make his court appearance in a debt collection case. He sent Susan to ask for a continuance and to keep him updated, so she sent a text that said: "It doesn't look good for you" and "They're coming for the Polaris Ranger." The Polaris was one of several items the other side of the case wanted to sell to recoup supposed losses.  Henwood says his wife's text wasn't a warning to hide anything, just a heads up.

But Judge Stephen Henroid caught wind of the text and held Susan in contempt of court.  She started her 30 day sentence Monday. "You see drunk drivers and what do they get? A few days. She texts and she's in jail for 30? No, no," Susan's grandmother, Dolores Kyle, said.

Judge Henroid wasn't available for comment. A spokeswoman with the court system says the problem wasn't that Susan texted in court but the content of her text, but the spokeswoman was unable to provide further detail.

Back in Grantsville, Joshua says he still doesn't understand why his wife must spend a month in jail. He feels powerless to help. "I think this was an unfit punishment for the crime," he said.

The court spokeswoman says while everyone in a courtroom is asked to turn off their cell phones, sending a text message will usually just get you a reprimand from the bailiff. In this case, she reiterates, it was the content of the message.

April 29, 2009 in Offense Characteristics | Permalink | Comments (17) | TrackBack

A post-Stevens pitch to formalize prosecutorial disclosure duties

Over at Politico, Josh Gerstein has this fascinating report, headlined "Stevens Judge wants evidence rules changed."  Here is how it starts:

The judge who oversaw the trial of former senator Ted Stevens — and who ordered possible criminal contempt proceedings against six prosecutors on the case — now wants federal court rules changed to make clear that prosecutors have a duty to give defendants all evidence that could aid their defense.

The Stevens case judge, Emmet Sullivan sent a letter Tuesday to another judge who chairs a panel on court rules, urging that the rules for all federal criminal cases impose such a disclosure obligation on prosecutors.  "An amendment...that requires the government to produce all exculpatory information to the defense serves the best interests of the court, the prosecution, the defense, and, ultimately, the public," Sullivan wrote.  "Such a rule would also provide clear guidance to the prosecutor and indeed protect prosecutors from inadvertent failures to disclosure exculpatory information."

April 29, 2009 in Who Sentences? | Permalink | Comments (0) | TrackBack

April 28, 2009

CLR note on co-defendant disparity after Booker

Now available on-line is this new Columbia Law Review note titled "Equal Justice Under Law: Post-Booker, Should Federal Judges Be Able to Depart from the Federal Sentencing Guidelines to Remedy Disparity Between Codefendants' Sentences?".  Here is the piece's abstract:

In the 2005 case of United States v. Booker, the Supreme Court held that the Federal Sentencing Guidelines were merely advisory and therefore no longer binding on trial judges.  Since then, some judges have based departures from the Guidelines on the finding that the disparity between codefendants’ sentences is unwarranted.  Although basing a departure on this consideration was universally impermissible before Booker, most circuits have now held that consideration of codefendant disparity is a permissible basis for departure.  However, some circuits have held that this disparity is still not a justification for departure or that departures may not be based on codefendant disparity in certain types of cases.  This Note argues that Booker and subsequent Supreme Court decisions permit trial judges to remedy disparity between codefendants’ sentences in all cases where the judge finds that the disparity is unwarranted.  It then shows how consideration of this disparity furthers Congress’s goal of increased sentencing uniformity and ensures greater fairness in the sentencing of defendants who only played a minor role in a crime.

April 28, 2009 in Booker and Fanfan Commentary | Permalink | Comments (1) | TrackBack

A SCOTUS win for the capital defendant in Cone v. Bell

Though it will not get as much attention as a bunch of four-letter words, the B-ruling in today's Supreme Court double-feature is a win for a capital defendant.  Here are the basics courtesy of SCOTUSblog:

The Court has released the opinion in Cone v. Bell (07-1114). The decision below, which held for the state, is vacated and remanded in a 6-3 opinion by Justice Stevens available here. The Chief Justice filed an opinion concurring in the judgment. Justice Alito filed an opinion concurring in part and dissenting in part.  Justice Thomas filed a dissenting opinion, joined by Justice Scalia.

UPDATE:  C&C has this extensive commentary on the Cone ruling.

April 28, 2009 in Death Penalty Reforms | Permalink | Comments (18) | TrackBack

Is the new DOJ about to crack the stalemate over fixing the crack disparity?

For many years, politicians and lawyers on both sides of the political aisle have been saying that the notorious 100-to-1 crack/powder ratio in federal sentencing statutes was unjust and should be fixed.  But, especially in the legislative and executive branches, there has been mostly talk and little action on this front.  (Some in the federal judiciary, thanks to Booker and Kimbrough and the new USSC reduced and retroactive crack guidelines, have been working toward means to better achieve case-specific justice even while other branches have avoided dealing with these issues on a systematic, system-wide basis.)

With a new DOJ sheriff in town, however, there is now good reason for those eager for reform to be more hopeful than cynical.  And, though there has been little formal action on this issue to date, a hearing in Congress scheduled for Wednesday — which just happens to be President Obama's 100th day — could mark an important turning point in both the debate and the practical realities of crack sentencing. 

As detailed in this official notice, the Senate Committee on the Judiciary, Subcommittee on Crime and Drugs will hold a hearing entitled "Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity" on Wednesday morning.  And, as indicated in this new CQ Politics article, some inside-the-Beltway folks think that something big and consequential might be brewing:

Troubled by the disproportionate effects of the sentencing disparity, members of Congress as well as federal officials have been working in recent years to fix the problem.  In 2007, then-Sen. Joseph R. Biden Jr. , D-Del., introduced legislation that would end harsher sentencing for crack vs. powder cocaine.  A co-signer of the legislation was Barack Obama , D-Ill.

Now that Obama and Biden are in the White House, those who advocate for fair and proportionate sentencing laws say they have good reason to hope that Congress will put sentences for crack and cocaine on equal footing.

The Justice Department is sending Lanny Breuer, chief of its criminal division, to testify at Wednesday’s hearing, which is a positive signal from the Obama administration, said Mary Price, vice president and general counsel for Families Against Mandatory Minimums.

In this arena, I am disinclined to predict or even expect change until I see it with my own eyes.  But I think it is quite understandable for the folks at FAMM and at The Sentencing Project to be especially hopeful that a new DOJ might help finally forge a new path.  Stay tuned.

Some recent related posts:

April 28, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (4) | TrackBack

What kind of plea deal might be in the works for Dreier?

This new article from the New York Law Journal, headlined "Dreier to Plead Guilty to All Charges, Attorney Says," reports on a high-profile white-collar prosecution that now appears headed toward a high-profile white-collar sentencing.  Here are details from the article:

Marc S. Dreier intends to plead guilty on May 11 to every count in the indictment charging him with stealing hundreds of millions of dollars from hedge funds and individuals, his attorney said Monday.

Defense attorney Gerald L. Shargel told Southern District of New York Judge Jed S. Rakoff that his client will plead to one count of conspiracy to commit securities fraud and wire fraud, one count of securities fraud, five counts of wire fraud and one count of money laundering.  Each count carries a potential sentence of 20 years in prison except for the conspiracy count, which carries a five-year term....

Dreier, the founder and sole equity partner of the now defunct 250-attorney Dreier LLP, had been widely expected to plead guilty to some or all of the charges he faces in connection with a scheme in which he peddled more than $700 million in phony real estate and pension fund notes. To keep his scheme going, he paid back approximately $300 million to people who bought the bogus notes.  He is charged with selling notes to at least 13 different funds and three individuals between 2004 and 2008, with the purchase price wired to an attorney trust fund maintained by his firm....

Dreier, who was present at Monday's hearing, is effectively asking for the mercy of the court in deciding to plead guilty.  Asked after the hearing why Dreier wanted to plead guilty instead of going to trial, Shargel said,  "He wants to end it because he accepts responsibility for what he did."  Shargel also said Dreier has accomplished much in his life, but he "simply went off the tracks ... . I'm sure no one will ever know why he did what he did."

In addition to accepting responsibility, Dreier surely would also like to avoid spending the rest of his life in federal prison and a plea deal was likely the only way to minimize his risk of never being a free man again.  The question now, however, is how good a deal has he managed to secure.  Judge Rakoff has a sentencing history that should make the defense team hopeful, but Dreier's crimes may make it hard for either prosecutors or the sentencing judge to show him too much mercy come sentencing.

April 28, 2009 in White-collar sentencing | Permalink | Comments (1) | TrackBack

"Is Crime Victims Rights Law Being Misused in Environmental Cases?"

09_ncvrw_icon The question in the title of this post is the headline of this new piece in The National Law Journal.  Here is how the effective piece begins:

A law that was designed to empower crime victims and give them a stronger voice in the justice system is increasingly being used as a weapon to punish companies accused of environmental crimes.

To the chagrin of corporate defense lawyers, the 2004 Crime Victims Rights Act is increasingly turning up in the government's environmental prosecutions, with victims fighting to be heard, especially at sentencing.

The issue has triggered robust legal debate. Defense lawyers argue that the five-year-old statute is being used for unintended purposes. They also contend it gives prosecutors an unfair advantage by letting them use victims to play on the courts' emotions at sentencing.

But victims' rights advocates counter that people hurt in catastrophes such as explosions or chemical spills deserve a seat at the table -- and a say in the punishment.

It is interesting and notable that this question is being asked right in the middle of National Crime Victims’ Rights Week.  As detailed in this new press release from the White House, President Obama has called upon all Americans "to observe this week by participating in events that raise awareness of victims' rights and services and by volunteering to serve victims in their time of need."  I suppose that this NLJ article in some ways satisfies this call.

April 28, 2009 in Victims' Rights At Sentencing | Permalink | Comments (0) | TrackBack

April 27, 2009

Circuit courts say the darndest things

I make an effort to read just about every published federal appellate ruling dealing with sentencing issues, and sometimes this effort rewards me with amazing nuggets of wisdom from circuit judges.  For example, I learned something new about the US Constitution from the final paragraph of the Eleventh Circuit's work today in US v. Aldrich, No. 08-15556 (11th Cir. April 27, 2009) (available here).  Specifically, thanks to Aldrich, I now know that "[t]here is no constitutionally significant difference between masturbating in front of a minor in person versus doing so via web camera."

April 27, 2009 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

"America's Sheriff" gets more than 5 years in the federal pen despite acquittals

Over the weekend, I noted here the interesting issues surrounding today's sentencing of the former sheriff of Orange County, Mike Carona.  Here is the basic AP report on the proceedings:

A former Southern California sheriff has been sentenced to 5 1/2 years in prison for tampering with a witness in his public corruption case.  U.S. District Judge Andrew J. Guilford sentenced Michael Carona on Monday near the 6 1/2-year term that probation officials had recommended....

Carona was indicted on sweeping public corruption charges in 2007 and stepped down from the nation's fifth-largest sheriff's department.  In January, the jury rejected the heart of the case and convicted Carona of a single count of witness tampering. 

And here is how a local weekly characterizes what happened during the sentencing, which highlights how acquitted conduct realities played a role in these proceedings:

Once dubbed "America's Sheriff," Mike Carona was sentenced this afternoon to 66 months behind bars, two years probation after he serves the prison time and a $125,000 fine for attempting to sabotage a grand jury investigation into abuse of power and bribery at the Orange County Sheriff's Department.

U.S. District Court Judge Andrew J. Guilford said during his sentencing that he didn't understand the "unrestrained celebrations" after Carona's guilty verdict, in which Carona was cleared of several other corruption charges. In January, a cheerfully weepy Carona stood outside the Ronald Reagan Federal Courthouse and declared that God, working through an Orange County jury, had provided him "a miracle" and "vindicated" him of any criminal conduct.

"A wrong message was sent regarding respect for the law and the jury system," said Guilford. "Carona has given no indication he wouldn't ask someone again to lie." Carona's attorney, Jeffrey Rawitz, took the blame today for the celebrations, calling them a result of his own lack of experience as a criminal defense lawyer. "I'm responsible for that.  We thought he was going to be convicted," Rawitz told the judge.... "I was not experienced enough as a criminal defense lawyer. I should have said, 'Keep your mouth shut.' But that relates to me, not Mr. Carona, because I didn't explain to him that he was exposed to these numbers."

Though Carona had sought a much shorter term, federal prosecutors were asking for nine years.  Thus, among other things, this case provides another example of the post-Booker tendency of judges to "split the difference" in challenging sentencing cases.

April 27, 2009 in Celebrity sentencings | Permalink | Comments (1) | TrackBack

Early report on Bies oral argument

As noted here, the Supreme Court this morning heard oral argument in Bobby v. Bies, one of the very few capital cases on the SCOTUS docket this term.  This early AP report suggests I was right to predict that the Justices are likely to give Ohio another bite at the death penalty apple in this case:

The Supreme Court appears likely to give Ohio another chance to sentence a convicted killer to death, despite a previous finding that the man is mentally retarded. The high court heard oral arguments Monday in the case of Michael Bies, who was convicted of killing a 10-year-old boy in Cincinnati in 1992.

Several of the court's liberal justices seemed to agree with the state's argument that Bies never received a proper hearing on his mental state because he was sentenced years before the high court barred the execution of the mentally disabled.

The full oral argument transcript can be found at this link.

UPDATE:  The first sentence of Adam Liptak's report here in the New York Times about the Bies argument captures the tone and spirit of what transpired during oral argument:

It does not bode well for a death row inmate when his lawyer must spend the bulk of a Supreme Court argument fending off combative questions from two of the court’s most liberal justices.

April 27, 2009 in Death Penalty Reforms | Permalink | Comments (24) | TrackBack

Eleventh Circuit holds that reasonable suspicion sufficient for search of probationer

Today in US v. Carter, No. 08-14460 (11th Cir. April 27, 2009) (available here), the Eleventh Circuit addresses an interesting intersection of different strands of criminal procedure jurisprudence.  Here is how the ruling begins:

We consider in this appeal whether the warrantless search of the home of the Defendant, a probationer, was reasonable under the Fourth Amendment.  We apply the balancing test articulated in United States v. Knights, 534 U.S. 112, 122 S. Ct. 587 (2001), and conclude that the search in this case was reasonable if supported by reasonable suspicion.  And, because there was reasonable suspicion that the Defendant was engaged in criminal conduct, we conclude that the search was reasonable and affirm the district court’s denial of the Defendant’s motion to suppress.

April 27, 2009 | Permalink | Comments (3) | TrackBack

Still no SCOTUS action on Sullivan juve LWOP case from Florida

Thanks to SCOTUSblog's posting of today's Supreme Court orders list, it appears that for the second straight week the the Justices have decided not to decide what to do with the cert petition in Sullivan v. Florida.  As detailed in posts linked below, Sullivan involves an Eighth Amendment challenge a sentence of life without parole given to a rape defendant who was only 13 years old(!) at the time of the crime. 

Some related posts on juve LWOP and the Sullivan case:

April 27, 2009 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

The little SCOTUS capital case that could...?

As detailed in this AP piece, this local story and this SCOTUSblog preview, this morning the US Supreme Court will hear oral argument in Bobby v. Bies, one of the very few capital cases on the SCOTUS docket this term.  There are so many notable aspects of this little case as it comes up from argument, I am not sure where to start my commentary.

Perhaps it is the broader SCOTUS death penalty context of Bobby v. Bies that first draws my attention.  After a series of terms with numerous consequential and controversial capital cases (e.g., Baze and Kennedy and Medellin last Term), this SCOTUS Term has only two argued cases involving capital defendants.  And, notably, neither of these capital cases emerged from the deep south or west as is typical.  Bies comes out of Ohio, and involves an intricate set of procedural issues formally concerning the Double Jeopardy Clause. 

Indeed, because the Double Jeopardy issue is so narrow in Bies, it appears that a few Justices decided simply that an error-correction cert grant was needed because the Sixth Circuit arguably over-extended precedents to take the death penalty off the table the defendant.  It is telling and somewhat remarkable that, especially in a Term with so few capital cases, not a single amicus brief was filed in Bies for either side.  (I'd love to hear from serious SCOTUS followers about the last capital case without any merits amici.)

But while Bies looks like a tiny case, there are some really big issues lurking.  Bies is the first case to provide the Justices an opportunity to consider again its consequential 2002 Atkins ruling that the Eighth Amendment prohibits the execution of mentally retarded defendants.  And because Ohio puts the burden on a defendant to prove up his mental retardation, there also also some Apprendi and/or due process issues to be found deep inside this case.  And, of course, like all state capital cases in the federal courts, there are the usual confusing and confounding AEDPA issues.

Ultimately, I think it is likely that Ohio gets a narrow victory in Bies (and I also think it is likely that Bies will live a long time on death row even if Ohio prevails in this case).  But, as cases like Baze and Marsh reminds us, the death penalty context often leads some Justices to go beyond the precise issues they must confront in a particular case.  If that happens in Bies, this little capital case from Ohio could possibly become a much bigger deal than it now seems.

April 27, 2009 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

"Time to end the crack disparity"

The title of this post is the title of this editorial from today's Philadelphia Inquier.  Here is an excerpt:

This is National Crack the Disparity Month. Never heard of it? Then listen. Crack the Disparity is the name of a coalition lobbying to change the federal law mandating longer sentences to persons arrested for having crack cocaine than those caught with powder cocaine....

The uneven treatment strikes at the heart of the justice system. The stiff sentence for crack cocaine is one of the main reasons prisons are overflowing with nonviolent offenders.

The harsher sentences have had a terrible impact on inner-city neighborhoods, where the cheaper crack is more likely to be found. Families are torn apart when members are arrested and sent to prison for long terms. Meanwhile, those arrested with powder cocaine, which is more likely in affluent settings where that form is more prevalent, get off light, in comparison.

Equal crimes should be punished equally. That's the message of the coalition, which will take 70 people to Washington tomorrow to lobby for an end to the disparity in cocaine sentencing....

The month-long attention to the cocaine sentencing issue will culminate Wednesday with a hearing before the Senate Judiciary Committee's Subcommittee on Crime and Drugs. Additional information about the hearing is on The Sentencing Project's Web site, www.sentencingproject.org.

Some recent related posts:

April 27, 2009 in Drug Offense Sentencing | Permalink | Comments (1) | TrackBack

April 26, 2009

Kansas appeals court strikes down "branding" requirement for sex offender

As detailed in this local news report, a "Kansas appeals court has ruled that a judge overstepped his authority when he ordered a man to put up signs announcing that he was a sex offender." Here are a few more details:

Quoting from the title song of the 1960s TV series “Branded,” the three-judge panel ruled Friday in the case of Leroy Schad, a 73-year-old Hudson, Kan., man who was ordered to post the signs on his house and car as part of a plea bargain related to his taking baths with two children....

While the TV show was used as an illustrative example, the ruling itself hinged on precedents from Tennessee, Montana and Illinois. In those cases, the courts ruled that public humiliation would interfere with the rehabilitative purpose of probation and was impermissible....

In addition to overruling the sign conditions, the appellate judges also ordered Stafford County District Judge Ron L. Svaty to reconsider the five-year length of Schad’s probation and a prohibition on leaving his house to buy groceries.

The full, lengthy ruling can be accessed at this link.

April 26, 2009 in Sex Offender Sentencing | Permalink | Comments (15) | TrackBack

Should law enforcement service be an aggravator or mitigator at sentencing?

On Monday, the former sheriff of Orange County, Mike Carona, is to be sentenced in federal court.  This local account, headlined "Legal experts say ex-sheriff likely to serve prison time: Will ex-lawman's badge be benefit or liability?", puts the spotlight on the question in the title of this post.  As highlighted in these excerpts, the use of acquitted conduct at sentencing also is part of the story:

In the end, former Sheriff Mike Carona's punishment may come down to the weight that a federal judge puts on the badge Carona once wore.  The 11th sheriff of Orange County – who hoped one day to run for lieutenant governor – will be sentenced Monday for urging his ex-assistant sheriff, Don Haidl, to lie during a grand jury investigation.

Carona was sheriff at the time of the Aug. 13, 2007, conversation that was captured on audiotape. Defense lawyers are asking U.S. District Judge Andrew Guilford to look beyond Carona's conviction and see the public servant with 32 years behind the badge – years spent advancing the cause of children and homeland security. Federal prosecutors, on the other hand, argue Carona's position as the top law enforcement official in the county makes the crime more egregious.... 

Carona faces a sentence ranging from probation to 20 years in prison.  Several federal criminal law experts said this week that they expect Guillord to sentence Carona to some time behind bars.... Most expected him to get a sentence near the 6 1/2 years recommended in the probation report. They also speculated that Guilford would likely take into account Carona's conduct – even acts for which Carona was not convicted.... 

After the verdict, jurors said they thought Carona was guilty of some crimes, such as accepting illegal campaign contributions.  But they said it was not enough to convict him, given that the five-year statute of limitations had passed on the conduct they thought was criminal.  Judges are allowed to take anything in consideration, such as the defendant's overall behavior, said Laurie Levenson, a professor at Loyola Law School in Los Angeles.

April 26, 2009 | Permalink | Comments (2) | TrackBack

Sentencing guidelines promulgated by Korea's supreme court

This editorial from The Korea Times, headlined "Eight Major Crimes Subject to Tougher Punishment," provides a window into how similar sentencing issues get discussed and debated around the world.  Here are excerpts:

The Supreme Court has introduced sentencing guidelines for eight major crimes in order to ensure fair trials and the rule of law. Bribery, embezzlement, breach of trust, murder, rape, robbery, perjury and false accusations will be subject to tougher punishment from July.

We hope that judges will sincerely implement the guidelines to ensure fairness and objectivity in handing down sentences to those indicted.  As the top court insisted, the goal of the guidelines is to restore public trust in the justice system.  No one can deny that judges have often been too lenient with politicians, bureaucrats and businessmen accused of bribery, influence peddling, embezzlement and other forms of corruption.

History shows that political heavyweights, ranking officials and business tycoons have been given lighter sentences than what they should have received for grave criminal acts.  In many corruption cases, prosecutors have usually demanded harsher punishments for the suspects, but judges have given suspended prison terms to the accused in many cases, sparking controversy over the justice system....

According to the sentencing guidelines, those receiving 50 million or more in bribes will be given at least three years and six months in prison if convicted and will not be allowed to enjoy suspended jail terms.  In addition, those taking more than 500 million won in bribes may face life imprisonment, with a minimum sentence calling for seven years in jail.  The harsher punishment rules certainly reflect the Supreme Court's strong willingness to get tough with corrupt politicians, bureaucrats and businessmen.

April 26, 2009 in Sentencing around the world | Permalink | Comments (2) | TrackBack

What should California do with its (former) juve killer?

This New York Times piece, headlined "A Killer at 16, and Still in California’s Juvenile Justice System Decades Later," documents a notable case that perhaps lacks any easy solution. Here is how the piece starts:

Except for one detail and one horrifying crime, Donald Schmidt is a run-of-the-mill juvenile offender.  He watches television, does chores, talks to his lawyer and waits for his release.

Donald Schmidt, 37, molested and drowned a 3-year-old girl.  The detail is his age: Mr. Schmidt is 37, the oldest defendant ever in California’s juvenile justice system.  Just 16 when he molested and drowned a 3-year-old girl while high on methamphetamine, he has been in juvenile facilities for two decades, sometimes alongside teenagers who were not yet born when he was convicted.

Under California law, juvenile offenders who commit serious crimes can be kept in the system until they are 25.  Mr. Schmidt’s detention, though, has been extended under a rarely invoked state code that allows continued detention if a jury finds the inmate has a “mental disorder, defect or abnormality that causes the person to have serious difficulty controlling his or her dangerous behavior.”

Because Mr. Schmidt was convicted as a juvenile and continued to be held under the mental health code, he cannot be transferred to an adult facility.

The code requires such petitions for extended detention to be renewed or rejected every two years.  On Tuesday, prosecutors will again go to trial to argue that Mr. Schmidt should remain in juvenile custody, an argument they have made repeatedly, and successfully, since 1997, when he was first eligible for release.  “We believe he’s a psychopath,” said Bob Lee, the district attorney in Santa Cruz County. “And we believe has he has no regrets or remorse for his conduct.”

April 26, 2009 in Offender Characteristics | Permalink | Comments (5) | TrackBack