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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