« December 28, 2008 - January 3, 2009 | Main | January 11, 2009 - January 17, 2009 »

January 10, 2009

Will Texas execute more than a dozen prisoners in the first quarter of 2009?

Though not quite as eye-popping as this other Texas death row story, anyone who seriously studies the administration of capital punishment should be closely following the fact, as reported in this AP piece, that Texas is scheduled to execute a remarkable number of prisoners over the next few months:

Texas is wasting little time this new year claiming its annual notoriety as the nation's most active capital punishment state. Convicted killer Curtis Moore, condemned for the slayings of three people during a drug-ripoff robbery in 1995 in Fort Worth, is set for lethal injection this week in what would be the first execution in the United States in 2009.

It's the first of eight scheduled punishments this month in the U.S., all but two of them in Texas. The 18 prisoners put to death in Texas last year accounted for about half of the 37 executions carried out in the country. Since the U.S. Supreme Court in 1976 allowed capital punishment to resume, 423 Texas inmates have been put to death. Virginia was next with 102.

Moore, 40, was set to die Wednesday. Two more executions are set for the Texas Department of Criminal Justice Huntsville Unit next week, then three more the following week. The six Texas inmates set to die in January are among at least 14 with execution dates already this year. Three more are set to die in early February, four in March and another in April....

In Texas, where a record 40 prisoners were put to death in 2000, execution dates are set by trial court judges from the county where the prisoner was convicted. For inmates now with scheduled dates, legal appeals either are exhausted or in the final stages in appeals courts.

Some recent related posts:

January 10, 2009 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

A (back-handed?) rejection of Booker retroactivity from the Sixth Circuit

In addition to the Sixth Circuit's affirmance of a long within-guideline child porn sentence (discussed here), the court yesterday also rejected a claim that Booker should be applied retroactively in Duncan v. US, No. 06-5021 (6th Cir. Jan. 9, 2009) (available here).  A helpful reader sent me these astute observations about the Duncan opinion:

The panel affirmed a sentence against a Booker retroactivity challenge, but the short opinion was interesting since it almost read like a cert petition in favor of Booker retroactivity. (The specific issue was Booker retroactivity back to Blakely, as opposed to Apprendi.) The court made a lot of interesting arguments in favor of retroactivity..., but ultimately held that it was constrained by circuit precedent.

January 10, 2009 in Apprendi / Blakely Retroactivity | Permalink | Comments (1) | TrackBack

"The Subjective Experience of Punishment" now in print

About a year ago I highlighted here Adam Kolber has SSRN draft titled "The Subjective Experience of Punishment."  I am now pleased to report that this draft is now in print here at the Columbia Law Review.  It appears that the abstract has changed a bit, and here is how it now reads: 

Suppose two people commit the same crime and are sentenced to equal terms in the same prison facility. I argue that they have identical punishments in name only. One may experience incarceration as challenging but tolerable while the other is thoroughly tormented by it. Even though people vary substantially in their experiences of punishment, our sentencing laws pay little attention to such differences.

I make two central claims: First, a successful justification of punishment must take account of offenders’ subjective experiences when assessing punishment severity.  Second, we have certain obligations to consider actual or anticipated punishment experience at sentencing, at least when we can do so in a cost-effective, administrable manner.  Though it may seem impossible or prohibitively expensive to take punishment experience into account, we should not accept this excuse too quickly. In civil litigation, we often make assessments of emotional distress.  Even if we cannot calibrate the punishments of individual offenders, we could enact broad policies that are better at taking punishment experience into account than those we have now. I do not argue that more sensitive offenders should receive shorter prison sentences than less sensitive offenders who commit crimes of equal blameworthiness.  I do, however, argue that when they are given equal prison terms, more sensitive offenders receive harsher punishments than less sensitive offenders and that it is a mistake to believe that both kinds of offenders receive punishments proportional to their desert.

January 10, 2009 in Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

"Texas death row inmate pulls out eye, eats it"

A helpful reader flattered me(?) by saying he thought of my blog as soon as he saw the headline that titles this post and this AP article.  Here are a few more gruesome details:   

A Texas death row inmate with a history of mental problems pulled out his only good eye and told authorities he ate it. 

Andre Thomas, 25, was arrested for the fatal stabbings of his estranged wife, their young son and her 13-month-old daughter in March 2004. Their hearts also had been ripped out. He was convicted and condemned for the infant's death.  While in the Grayson County Jail in Sherman, Thomas plucked out his right eye before his trial later in 2004.  A judge subsequently ruled he was competent to stand trial.

A death-row officer at the Polunsky Unit of the Texas Department of Criminal Justice found Thomas in his cell with blood on his face and took him to the infirmary. ""Thomas said he pulled out his eye and subsequently ingested it," agency spokesman Jason Clark said Friday.

Thomas was treated at East Texas Medical Center in Tyler after the Dec. 9 incident.  Then he was transferred and remains at the Jester Unit, a prison psychiatric facility near Richmond southwest of Houston.  "He will finally be able to receive the mental health care that we had wanted and begged for from day 1," Bobbie Peterson-Cate, Thomas' trial attorney, told the Sherman Herald Democrat. "He is insane and mentally ill. It is exactly the same reason he pulled out the last one."

January 10, 2009 in Death Penalty Reforms | Permalink | Comments (4) | TrackBack

January 9, 2009

Notable long child porn sentence upheld by split Sixth Circuit

The circuits have already issued a number of notable sentence decisions today, but the one that struck me as most blog-worthy is the Sixth Circuit's affirmance of a within-guideline child porn sentence in US v. Paull, No. 07-3482 (6th Cir. Jan. 9, 2009) (available here). This first paragraph of the dissent by Judge Merritt in Paull spotlights some (of many) reasons why the decision is notable (and likely worthy of a serious cert petition):

As a recent October 23, 2008, Wall Street Journal article by Amir Efrati points out, our federal legal system has lost its bearings on the subject of computer-based child pornography.  Our “social revulsion” against these “misfits” downloading these images is perhaps somewhat more rational than the thousands of witchcraft trials and burnings conducted in Europe and here from the Thirteenth to the Eighteenth Centuries, but it borders on the same thing.  In 2008 alone the Department of Justice has brought 2,200 cases like this one in the federal courts.  Some trial and appellate judges are sending these mentally ill defendants like Paull to federal prison for very long sentences.  But the 17-1/2 year sentence for Paull may be the longest yet.  He is a 65-year-old, psychologically disabled, former minister with Type 1 diabetes with many complications.  How could this sentence be “not greater than necessary” to punish this crime?

Some related recent federal child porn prosecution and sentencing posts:

January 9, 2009 in Sex Offender Sentencing | Permalink | Comments (26) | TrackBack

"Corrections costs must reflect fiscal realities; State must make bold reforms to system"

The title of this post is the title of this editorial from a local Michigan paper, although I imagine this title might be fitting for editorials in a large number of state papers.  Here are a few snippets:

With Michigan facing yet another budget crisis, Gov. Jennifer Granholm and lawmakers should finally adjust the Department of Corrections operational costs and policies to fit economic reality.  Recent measures taken to reduce costs, while helpful, fall short of the bold steps necessary to truly reform this very expensive system.

Michigan has more prisoners, incarcerates them longer and spends more to confine them than any other Great Lakes state.   The state faces an estimated $265 million budget deficit this fiscal year and a whopping $1.5 billion deficit next year....  

But as Michigan's corrections costs have escalated, numerous proposals to reduce them have been ignored. And calls for comprehensive reform have gone nowhere, too. This month the Justice Center at the Council of State Governments is expected to weigh in on steps toward more effective and affordable crime fighting. Certainly, some things already recommended will be cited.

Michigan has more prisoners, incarcerates them longer and spends more to confine them than any other Great Lakes state. Michigan has some 50,000 prisoners and spends an average of $34,000 per inmate, the bulk of which is tied to administrative costs. More than a third of all state employees -- more than 17,000 people -- work for the Corrections Department....

Like other states also facing cost pressures, Michigan needs to pursue less expensive but safe alternatives to imprisonment for some nonviolent offenders. In addition, the price tag for providing health care to inmates must be addressed among soaring administrative costs. The parole process, which has seen a decreasing number of prisoners paroled in the last few years, deserves attention along with re-examining sentencing guidelines.

State resources must be targeted to ensure that they are used in addressing the risks and needs of those who pose the greatest threat of re-offending.  A pilot project was funded last year that finally steers the mentally ill to treatment instead of prison.  Taxpayers need Granholm and legislators, who understand the issues involved in transforming the prison system, to show the political will to do what is necessary.  Only that will bring meaningful change and cost-savings, in corrections and elsewhere.

January 9, 2009 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Ninth Circuit rejects variance based on fast-track disparity

The Ninth Circuit has issued a significant ruling that rejects fast-track disparity as the basis for a variance in US v. Gonzalez-Zotelo, No. 08-50010 (9th Cir. Jan. 8, 2009) (available here).  Here is how the opinion starts:

The government appeals the 30-month sentence the district court imposed on Juan Gonzalez-Zotelo after his conviction for being a deported alien found in the United States in violation of 8 U.S.C. § 1326.  The U.S. Attorney’s Office did not offer Gonzalez-Zotelo a fast-track plea bargain because of his prior conviction for lewd and lascivious acts with a child.  The district court nonetheless gave Gonzalez-Zotelo the same sentence given earlier that day to a fast-track defendant with armed robbery priors, to promote “consistency.”  Because the district court erred when it imposed a lower sentence on Gonzalez-Zotelo based solely on what it misperceived to be unwarranted sentencing disparity, we vacate the sentence and remand for re-sentencing.  Under our cases, the disparity in question is indeed warranted, because it is justified by Congress’s approval of fast-track plea bargaining programs. This conclusion is not undermined by Kimbrough v. United States, which allows judges to disagree with Guidelines sentencing policy, not with congressional sentencing policy.

The Ninth Circuit opinion notes that its work in Gonzalez-Zotelo is in accord with opinions from the Fifth and Eleventh Circuits, but in tension with an opinion from the First Circuit.

January 9, 2009 in Booker in the Circuits | Permalink | Comments (5) | TrackBack

Fourth Circuit finds federal sex offender civil commitment law unconstitutional

As reported here at How Appealing, "a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit [Thursday] declared unconstitutional ... a federal statute intended to allow the federal government to place in indefinite civil commitment 'sexually dangerous' persons who have completed serving their federal prison sentences."   Here is a snippet from the start of US v. Comstock, No. 07-7671 (4th Cir. Jan. 8, 2009) (available here):

After carefully considering the Government’s arguments, we conclude, for the reasons set forth below, that § 4248 does indeed lie beyond the scope of Congress’s authority.  The Constitution does not empower the federal government to confine a person solely because of asserted "sexual dangerousness" when the Government need not allege (let alone prove) that this "dangerousness" violates any federal law. 

Eugene Volokh and Ilya Somin and Corey Yung all have extended and very thoughtful comments on the Comstock ruling.  I share their collective instinct that this could end up before the Supreme Court.

January 9, 2009 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

January 8, 2009

"Death penalty for white-collar criminals?"

The title of this post is the title of this newspaper commentary, which is an (unsurprising?) response to the Madoff mess.  Here are snippets:

We rationalize capital punishment by claiming that the fear of death is an excellent deterrent and a fitting punishment for cases of extreme harm to an individual (murder) or a community (sex offenders).  Rarely has the fear of the death penalty deterred a single crime of passion or the flawed anti-social criminal.  To be a deterrent, potential criminals need time to weigh the crime against the penalty and some level of native intelligence to understand that death by lethal injection or the electric chair is very likely if they commit the crime.

Ethical and religious considerations aside, perhaps the death penalty should not be reserved only for violent physical crime but as punishment for extreme economic harm, to white-collar crime such as embezzlement, fraud, or the conspiracies of silence that made so many accessories to Madoff’s Ponzi scheme, and the corporate collapses that have cost us nearly a trillion dollars so far.  I tend to think that Madoff would never have stolen so much money from so many people if the penalty was death.

As internationally minded readers likely know, the Chinese use the death penalty this way.  Though I doubt the US will be following China's lead here anytime soon, this commentary provides a useful reminder of how easy and common it is for persons to want to respond to one extreme crime with a proposal for more extreme punishment schemes.

January 8, 2009 in Death Penalty Reforms, White-collar sentencing | Permalink | Comments (6) | TrackBack

Notable Ohio Supreme Court ruling on constitutionality of "blended" juve sentences

As detailed in this official press release, today the Ohio Supreme Court issued a notable discussion on the constitutionality of the state's use of "blended" sentences for juvenile offenders convicted of serious crimes.  Here are the basics:

The Supreme Court of Ohio ruled today that in cases where a juvenile is charged as a “serious youthful offender,” a section of state law authorizing a juvenile judge, rather than a jury, to consider certain factors in determining whether to impose a “blended” juvenile and adult sentence does not violate the defendant’s jury trial rights under the U.S. or Ohio constitutions.

In a 7-0 decision authored by Justice Paul E. Pfeifer, the Court also held that, in serious youthful offender cases where sentencing took place prior to this Court’s 2006 decision in State v. Foster, constitutional jury trial rights do not apply to findings made by a juvenile court under Ohio’s adult felony sentencing statutes in imposing the adult portion of a blended sentence.

Under R.C. 2152.13, an Ohio juvenile judge sentencing a “serious youthful offender” (a minor convicted of an offense that would constitute a violent felony if committed by an adult) is authorized to make factual findings to determine whether the defendant should receive a “blended” sentence that includes not only a normal juvenile sentence but also a stayed term of adult imprisonment....

Writing for the Court in today’s decision, Justice Pfeifer pointed to the U.S. Supreme Court’s ruling in McKeiver v. Pennsylvania (1971) and this Court’s holding in In re Agler (1969) that because the fundamental objectives of juvenile proceedings are different than those of an adult criminal prosecution, juvenile offenders do not have a constitutional right to have their cases decided by a jury. He noted, however, that because juveniles like D.H. who are charged under Ohio’s serious youthful offender statute face the potential imposition of an adult sentence, this case differed in an important respect from the cases of the juveniles in McKeiver and Agler, and thus merited separate consideration.

By giving minors charged as serious youthful offenders the right to have their guilt or innocence determined by a jury, but vesting juvenile judges with discretion to impose an appropriate sentence, Justice Pfeifer found that Ohio’s statutory scheme balances the due process rights of defendants with the state’s strong public interest in rehabilitating delinquent children.

The State v. D.H., No. 2009-Ohio-9, can be accessed at this link.  Because Ohio's "blended" sentencing law is a unique creation, I am not sure this case had broad enough appeal to garner Supreme Court attention if DH were to appeal.  Nevertheless, these are really interesting constitutional issues that ought to interest not only sentencing fans, but also anyone concerned about juvenile justice. 

January 8, 2009 in Blakely in the States | Permalink | Comments (0) | TrackBack

Does Cass Sunstein really think capital punishment may be morally required?

The Washington Post reports here on another prominent law professor about to go from a faculty salary to a government salary:

President-elect Barack Obama will name Cass R. Sunstein, a close friend and one of the nation's top constitutional lawyers, to a senior-level post in charge of government regulation, a transition official said. Sunstein, a Harvard University law professor who grew close to Obama during their years at the University of Chicago, will become the administrator of the Office of Information and Regulatory Affairs.

Obama talked on the campaign trail about the need to revamp the nation's regulatory structure, especially in housing and finance, areas in which lapses contributed to the current economic crisis. In his new position, Sunstein will oversee reform of regulations, seeking to find smarter approaches and better results in health, environment and other domestic areas, a transition source said.

The office Sunstein will head is part of the Office of Management and Budget and is responsible for reviewing draft regulations and overseeing the implementation of government-wide policies aimed at making federal agencies more efficient, according to the mission statement on its Web site.

As first noted here, Sunstein has recently argued (along with Adrian Vermeule), in an article entitled "Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs," that governments may have an obligationto use the death penalty if it can deter killings and save innocent lives.  I have a feeling that Sunstein considered this article to be academic musings not a policy paper for the management of the federal criminal justice system.  Nevertheless, since I would like to see the feds take over the administration of capital punishment (and take it away from the states), I am strangely hopeful that Sunstein might be seriously committed to trying to do something new and bold in the arena of capital punishment.

Some related posts on Sunstein's paper and death penalty deterrence:

January 8, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (12) | TrackBack

January 7, 2009

"Sask man whose daughters froze to death to face aboriginal sentencing circle"

The title of this post is the title of this new article from The Canadian Press.  Here are some of the intriguing specifics:

A Saskatchewan father whose two young daughters froze to death when he took them out in a numbing blizzard will face an aboriginal sentencing circle, but Christopher Pauchay's lawyer says that doesn't mean he'll get off lightly.

Provincial court Judge Barry Morgan on Wednesday approved Pauchay's bid to have the aboriginal community help determine a punishment. "It's not going to be a way to get out of jail free. It's just a way to have more detail and more insight into this particular offender," defence lawyer Ron Piche told The Canadian Press after reading Morgan's decision....  

Pauchay, 25, pleaded guilty in November to criminal negligence causing death.  The single charge covered the deaths of both children and Pauchay's failure "to provide protection from exposure to the elements" in temperatures that would have felt like -50 C with the wind chill.  It was nearly a year ago when he left his home on the Yellow Quill First Nation with his daughters Kaydance, 3, and Santana, 1.

The Court heard that Pauchay had been drinking and didn't remember much about that night.  He did recall that one of his girls was hurt and he needed to get help.  But once outside, the children became separated from their father.  Pauchay eventually made it to a neighbour's house in the early morning of Jan. 29 and was taken to hospital suffering from severe frostbite and hypothermia. Eight hours later, when he was able to speak, he asked about his children.... 

Piche, who believes a conditional sentence is appropriate, said Pauchay "has suffered and will suffer for the rest of his life."  He also said Pauchay told him that he's not afraid of going to jail. "He's living his own punishment on a daily basis."  However, Piche also noted that Morgan will have the final say on what is an appropriate sentence.

A sentencing circle is usually made up of members of the community, the victim, the victim's family and elders. Everyone has a chance to talk about the crime and to suggest punishment that might be appropriate. A judge still imposes the sentence and can ignore the recommendations of the sentencing circle.

Crown prosecutor Marylynne Beaton, who opposed the sentencing circle, could not immediately be reached for comment. However, she had told court that the crime was far too serious for a sentencing circle, usually reserved for criminals who won't face more than two years behind bars. The Crown is seeking a sentence of 2 1/2 to five years in prison.

January 7, 2009 in Criminal Sentences Alternatives | Permalink | Comments (5) | TrackBack

Any early predictions on Jeff Skilling's likely sentence the second time around?

As noted here, the Fifth Circuit ordered former Enron CEO Jeff Skilling resentenced because District Judge Sim Lake made a guideline calculation error.  But the Fifth Circuit said little else about Skilling's original sentence, which may ensure that the outcome (and even the terms of debate) for his resentencing are uncertain for the time being. This Bloomberg news reporthas this notable discussion of resentencing possibilities:

If that’s the only basis of resentencing, it would be a modest reduction,” said Kirby Behre, a partner at Paul Hastings Janofsky & Walker in Washington and co-author of “Federal Sentencing for Business Crimes.” “It might be more than modest, but it’s not going to get him down to 10 or 12 years.”

In the 2000 guidelines under which Skilling was sentenced, the financial-institution factor brought his offense level to 40 from 36 and his range to between 292 and 365 months in prison.  Lake imposed 292 months, or 24 years and four months. Dropping the offense level back to 36 brings a range of 188 to 235 months, or 15 2/3 years to 19 years and seven months....

Because the Supreme Court made the guidelines voluntary in January 2005, in a case called U.S. v. Booker, Skilling may be given the same sentence...

Other experts said the judge may reduce Skilling’s sentence to the lower range....  Lake is likely to use the guidelines again when he resentences Skilling, said Paul Cassell, a former federal judge who’s now a law professor at the University of Utah in Salt Lake City. “Most federal judges in the system follow the guidelines, particularly in a case where they’ve used them before,” Cassell said in a phone interview.

For a host or reasons, I am disinclined to make any predictions about resentencing.  In addition, because the Skilling legal team clearly plans to continue appealing his convictions, it is even unclear whether resentencing may be only a few months away or still years away.  Whatever the practical particulars, I would be eager to here reader thoughts on what might happen next on the sentencing side of the Skilling case.

January 7, 2009 in Enron sentencing | Permalink | Comments (3) | TrackBack

Notable crack reduction opinion from the Second Circuit

Virtually every day now we get a new opinion from the circuit courts about the legal rules surrounding federal sentence reductions pursuant to 18 U.S.C. § 3582(c)(2).  The latest such decision is from the Second Circuit in US v. v. Williams (Lewis), No. 08-1065 (2d Cir. Jan. 7, 2009) (available here).  Here is the court's summary of its work in this case:

Appellant appeals from a denial of a motion seeking a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2) following the amendment to the Sentencing Guidelines applicable to crack cocaine violations. In denying the motion for resentencing, the District Court for the Northern District of New York (Mordue, J.), found that because Appellant’s original sentence was a non- Guidelines sentence resulting from a departure from the statutory minimum sentence pursuant to 18 U.S.C. § 3553(e), he was not eligible for a reduced sentence under the amended Guidelines.  We agree with the district court’s interpretation of § 3582(c)(2) and find that Appellant is not eligible for a new sentence under the revised Guidelines because the Guidelines provision underlying the sentence that was finally imposed on the Appellant was not a provision affected by the subsequent amendment to the Guidelines. AFFIRMED.

January 7, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack

Senator Specter refines the case against AG-nominee Holder

As detailed in this New York Times article and this BLT post, Senator Arlen Specter has started to define the terms of the debate for next week's confirmation hearing for Attorney General Nominee Eric Holder.  Here are the basics from The BLT:

Sen. Arlen Specter, the ranking Republican on the Senate Judiciary Committee, has begun laying out the questions he plans to ask Eric Holder Jr. next week during Holder’s confirmation hearing to be attorney general.

In a speech on the Senate floor Tuesday, Specter (R-Pa.) said he plans to focus his inquiry on three areas: the pardon of fugitive commodities trader Marc Rich; the decision by Holder’s then-boss Attorney General Janet Reno not to appoint a special prosecutor to look into Vice President Al Gore’s 1996 fundraising activities; and the clemency granted to a group of Puerto Rican nationalists.

“All of these matters relate to judgment,” Specter said. “They relate to whether Mr. Holder had the kind of resoluteness displayed by Attorney General Griffin Bell, by Attorney General Elliot Richardson, to say ‘no’ to their superiors.” Specter also said he plans to ask Holder his views on journalists’ privilege, the Bush administration’s surveillance policies, and the Justice Department’s evolving view of corporations’ attorney-client privilege.

The fact that two of the three top-shelf concerns involve clemency issues perhaps provides more support for my view that the entire US Pardon Office ought to be completely removed from the Department of Justice.  (Specifically, I would like to see the Pardon Office relocated as a department in the US Sentencing Commission.) 

Also, it is telling and disappointing that Senator Specter does not have on his question list a number of other critical practical questions about the federal criminal justices system.  Indeed, I wonder if Holder will get any questions on, e.g., the post-Booker sentencing system or sex offender prosecutions in light of the new federal Adam Walsh Act or crime victims rights in light of the new federal Crime Victims Rights orfederal habeas a decade after the AEDPA or the federal death penalty in light of increased capital prosecutions during the Bush Administration or federal reentry efforts in light of the new Second Chance Act.

Some prior posts on the Obama transition and the Holder pick:

January 7, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (18) | TrackBack

Seeking guidance from a higher authority on Bible-influenced capital sentencing

I have previously noted in prior posts how lower courts have split over the consequences of juror consideration of biblical passages during the penalty phase of a capital trial.  Indeed, as noted here, nearly three years ago, Karl Keys of CDWsuggested that it is "past time time for SCOTUS action" on this issue.  Now, thanks to a helpful reader, I have learned that a new cert petition (available for download below) presents the Justices with a new opportunity to take up this issue.

The new petition involves a Texas case, Oliver v. Quarterman, that has already worked its way through federal habeas. Here are the first two questions presented in the Oliver petition:

1. Does juror consultation of the Bible during sentencing deliberations deprive a defendant of his federal constitutional rights?

2.When evaluating possible prejudice to a defendant resulting from juror consultation of the Bible during sentencing deliberations, what standard of proof should apply, or should there be an irrebuttable presumption of prejudice?

Download Final Oliver Petition

Some related prior posts:

January 7, 2009 in Death Penalty Reforms | Permalink | Comments (24) | TrackBack

January 6, 2009

Might the US Sentencing Commission have any notable guideline amendments in the works?

As detailed in this official announcement, "a public meeting of the [U.S. Sentencing] Commission is scheduled for Tuesday, January 13, 2009, at 11:30 a.m."  And, on the official agenda is "Possible Votes to Publish Guideline Amendments and Issues for Comment." 

I have not heard any advance buzz about any major guideline amendments in the works.  But, as eagle-eyed readers may have learned from this post linking to this recent this fascinating Q&A interview,  now-former US Sentencing Commissioner John Steer has stated that, before he left the commission, he "provided my colleagues with a draft amendment to accomplish" the objective of ending the requirement that acquitted conduct be used in determining the guideline range. 

I would be quite excited (and somewhat surprised) if the USSC has an amendment dealing with acquitted conduct in the works.  But, in these days of transition and lots of inside-the-beltway changes, perhaps this aspect or some other notable aspects of the existing federal sentencing guidelines might be subject to amendment.

January 6, 2009 in Federal Sentencing Guidelines | Permalink | Comments (3) | TrackBack

Enron CEO Jeff Skilling's convictions affirmed, but resentencing ordered

The AP has this early report on today's huge white-collar sentencing news:

An appeals court has upheld former Enron Corp. CEO Jeff Skilling's convictions for his role in the energy giant's collapse but orders that he be resentenced.  A three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans on Tuesday denied Skilling's request that his convictions be overturned because they were based on an incorrect legal theory.

But the judges, in their 105-page opinion, ordered that Skilling be resentenced. They said U.S. District Judge Sim Lake erred by applying guidelines that resulted in a 24-year prison term.  Skilling was convicted in May 2006 on 19 counts of fraud, conspiracy, insider trading and lying to auditors for his role in the collapse of Houston-based Enron, once the nation's seventh-largest company.

I will post the opinion once I track it down, and lots of commentary will follow whenever I get the chance to see exactly what the long opinion says.

UPDATE: The full opinion in US v. Skilling is available at this link.  The sentencing discussion does not start until page 97, and here is how the sentencing section begins:

Skilling challenges various aspects of his sentence. In particular, he disputes the district court’s application of the Sentencing Guidelines and the reasonableness of his sentence under 18 U.S.C. § 3553(a).  Because we decide that the court committed error in applying the Guidelines, we do not reach the § 3553(a) requirements, as proper calculation of the Guidelines range is antecedent to a reasonableness challenge.  See Gall v. United States, 128 S. Ct. 586, 596-97 (2007).

January 6, 2009 in Enron sentencing | Permalink | Comments (5) | TrackBack

Fourth Circuit rules guidelines limit reduction for crack retroactivity

Ruling in accord with a recent Tenth Circuit ruling concerning Booker's inapplicability to crack retroactivity proceedings (blogged here), the Fourth Circuit yesterday US v. Dunphy, No. 08-6919 (4th Cir. Dec. 5, 2008) (available here), ruling that there is a limit on the extent of the sentence reduction that defendants can get in crack retroactivity proceedings.  The Dunphy ruling is thorough and thoughtful, and a long opinion is quickly summarized by the ruling's conclusion:

When a sentence is within the guidelines applicable at the time of the original sentencing, in an 18 U.S.C § 3582(c) resentencing hearing, a district judge is not authorized to reduce a defendant’s sentence below the amended guideline range.

January 6, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack

"The New Second Amendment: A Bark Worse Than Its Right"

I just noticed this notable new commentary, with the same title of this post, by UCLA Law Prof Adam Winkler noting the consistent pattern of lower court rulings after Heller.  Here are snippets:

As many legal scholars predicted, the Supreme Court's [Heller] decision led to a tidal wave of Second Amendment challenges to gun control. Every person charged with a gun crime saw the Supreme Court's decision as a Get Out of Jail Free Card.

To date, the lower federal courts have ruled in over 60 different cases on the constitutionality of a wide variety of gun control laws. There have been suits against laws banning possession of firearms by felons, drug addicts, illegal aliens, and individuals convicted of domestic violence misdemeanors. The courts have ruled on the constitutionality of laws prohibiting particular types of weapons, including sawed-off shotguns and machine guns, and specific weapons attachments. Defendants have challenged laws barring guns in school zones and post offices, and laws outlawing "straw" purchases, the carrying of concealed weapons, possession of an unregistered firearm, and particular types of ammunition.

The courts have upheld every one of these laws. Since Heller, its Gun Control: 60, Individual Right: 0.

I am very pleased someone else is noticing that lower courts so have have been consistently willing and eager to uphold any and every modern gun control law despite all the sturm und drang about the Heller ruling.  However, I remain disappointed that all the interest groups, politicians and academics so focused on Heller as it was making it was to the Supreme Court seem largely disinterested in seriously working through all of its important practical implications. 

As detailed here and here, well over 70 interest groups had the time, money and energy to file amicus briefs in an effort to influence the Supreme Court's work in Heller.  To my knowledge, few if any of these groups have invested one whit of time, money and energy toward helping a variety of federal defendants who now have a variety of really good arguments that their charges or sentences are now constitutional questionable after Heller.

Some related Second Amendment posts:

January 6, 2009 in Second Amendment issues | Permalink | Comments (0) | TrackBack