May 19, 2009
Will President Obama soon have to confront the Troy Davis case?
This blog post from a UK paper, titled "Why President Obama should have Georgia on his mind," flags an issue I have been thinking about recently. Here is how the post begins:
Unlike presidents Bush and Clinton, there's one potentially controversial issue in the United States that has yet to seriously trouble President Obama -- the death penalty. That could be about to change.
A death row prisoner with a particularly strong claim that he was wrongly convicted could be just weeks away from execution. Would the president stand by and let that happen? It might be difficult for him if he did. Here's why.
The case in question is that of Troy Davis, a 40-year-old man who has been on death row in the state of Georgia since 1991. On Saturday his "stay" of execution was lifted leaving it open to state officials to set an execution date. It won't be his first. Last September he was just two hours from a lethal injection until, at the eleventh (tenth?) hour, the Supreme Court stepped in and the execution was halted.
Should Conrad Black (and Jeff Skilling and others) be set free pending SCOTUS action?
Though the Supreme Court's cert grant yesterday in the criminal appeal of media mogul Conrad Black raises mostly white-collar substantive criminal law issues (as noted by bloggers here and here), I am wondering if and how this should impact the quasi-sentencing issue of bail pending appeal.
As noted here, Black was denied bail pending appeal by the Seventh Circuit last year and has now served more that a year in prison. Though the SCOTUS cert grant does not ensure Black's convictions will be reversed, it does greatly increase the chances he could be freed eventually. However, given the standard (slow) pace of SCOTUS action, Black's case won't be argued to SCOTUS until the fall and a ruling seems unlikely before 2010. In light of the cert grant, it seem to me that Conrad Black now has a much stronger argument that he should be able to be free rather than locked up while his (suspect?) convictions are reviewed.
Moreover, as detailed in this Houston Chronicle article, the fate of at least one other high-profile white-collar defendant also could be impacted by the now-pending Black SCOTUS case:
The U.S. Supreme Court’s decision today to hear the appeal of former media mogul Conrad Black could bode well for imprisoned former Enron CEO Jeff Skilling. “Skilling’s crossing his fingers,” said Wayne State University Law School professor Peter Henning, who is familiar with both cases. “This is Skilling’s best hope.”
Last week Skilling appealed to the high court clear up questions about a prosecution theory of guilt that backfired in other Enron-related cases, but was embraced by appellate judges in his case. The Black case ... involves the same theory, so the outcome of his appeal likely means the 5th U.S. Circuit Court of Appeals panel that affirmed Skilling’s 19 convictions will have to take another look....
“In effect, he’s in a bit of limbo now,” Henning said. “Regardless of what happens in Black, his case will get remanded for reconsideration to the 5th Circuit.” Skilling’s case still has a chance to be heard by the Supreme Court, but Henning said it’s unlikely after a case involving such similar issues has been accepted.
Daniel Petrocelli, Skilling’s lead lawyer, today called the Black case’s acceptance for review “a very significant development, and not just for Jeff Skilling’s case, but frankly for our entire justice system.”
Does Skilling likewise now have a much stronger argument for release pending appeal, especially given that it could likely be a full two years before SCOTUS decides Black and then the Fifth Circuit decides what the Black ruling might mean for Skilling's case? And are there lots of other similarly situated white-collar defendants serving time for honest services fraud that should now be going back to lower courts citing the Black cert grant to try to get back home while appeals are on-going?
NFL update: More on Vick's release ... while wondering about Plaxico's fate
For all you reentry fans, here is the latest news from ESPN about Michael Vick's imminent release from federal prison:
Concerned about Michael Vick's security, the federal bureau of prisons remains secretive about exactly when he will leave the federal penitentiary after serving 23 months for a dogfighting conspiracy. The suspended NFL quarterback's release could come under the cloak of darkness, sources close to Vick told ESPN's Kelly Naqi. Paperwork is being processed Tuesday and Vick is expected to leave prison sometime Wednesday.
Upon his release, Vick will travel to his home in Hampton, Va., about a 19-hour trip if he chooses to drive. He will not be escorted by federal authorities and must report into the probation office in Norfolk on Friday, at which time he'll begin serving home confinement. For two months, the suspended NFL star will be largely confined to his home and will wear an electronic monitor that allows federal probation officials to track his movements. He is expected to be released from federal custody on July 20....
Vick will be allowed to go to his full-time construction job and will likely be allowed about five hours a week for other court-approved activities, according to Ed Bales, managing director of Federal Prison Consultants, an inmate rehabilitation advocacy group.
Permissible activities for inmates on home confinement typically include things like medical appointments, religious obligations and meetings with probation officials. No dinners out. No chilling at a friend's house. And definitely no bars. "He's going to be pretty much read the riot act: 'If we catch you in one situation like that, it's back to you know where,' " Bales said.
One restriction tailored specifically for Vick for his three years of supervised probation: He can never again own a dog. U.S. District Judge Henry Hudson already made that decision when he sentenced Vick.
I did not realize a condition of Vick's supervised release prohibited dog ownership. I guess Vick can have a cat, and I sure hope he does not get drawn into the ugly clandestine world of cat juggling.
Meanwhile, while looking for Vick news, I came across this articlenoting that the Chicago Bears are talking about signing Plaxico Burress, who apparently "has a June 15 hearing stemming from felony gun charges." Given that New York state prosecutors seem disinclined to let Burress plead to anything that does not include at least a year in prison, I find it strange (and perhaps telling) that NFL teams and reporters still do not seem to fully realize that Burress could end up spending as much if not more time behind bars as Vick has simply for possessing a gun in the wrong place and the wrong time.
More on my personal favorite surprise SCOTUS short-lister
As noted in this prior post, I was surprised and pleased to hear my co-author and pal (and sentencing guru) Nora Demleitner, the current Dean at Hofstra University School of Law, on an NPR segment suggesting novel SCOTUS short-list names. Now I am also pleased that Newsday has this follow-up story about Nora's sudden status as a SCOTUS short-lister:
Much to her surprise, the dean of Hofstra University Law School woke Sunday morning to find she had just been thrust into the national political conversation as a possible contender for a seat on the United States Supreme Court.
National Public Radio speculated that Dean Nora V. Demleitner, 42, of Port Washington, was among those being considered by President Barack Obama for a job on the nation's highest court. "I was very surprised in that NPR mentioned me," Demleitner said in an interview Monday. "It's an incredible honor to be mentioned."
But the speculative allusion by legal affairs reporter Nina Totenberg may be as far as it goes. Demleitner said she has not been contacted by anyone from the Obama administration. The staff of Judiciary Committee member Sen. Charles Schumer (D-N.Y.) declined to comment on Demleitner's possible nomination to replace U.S. Supreme Court Justice David Souter, who is retiring in June when the court's term ends.
Brian Griffin, former president of the Criminal Courts Bar Association of Nassau County, said he read about Demleitner's potential candidacy in the newspaper. "I wasn't aware of her until she started appearing on the radar in the last few days," Griffin said. "It's comforting to know that someone with serious understanding of criminal law — the serious consequences and permanency of any conviction — is being considered for the Supreme Court."
Demleitner said she was baffled about how her name got mentioned. "Like everybody else, I know a lot of people who have connections, but I could not begin to imagine who would have done it," Demleitner said of a possible nomination....
Professor Julian Ku, who teaches constitutional and international law at Hofstra, said Demleitner has some unusual qualifications. "What makes her different is that her work is not focused primarily on U.S. laws. She's looking at U.S. laws in the context of the global community," said Ku. "There is no one like her on the court. It would be totally an out-of-the-box pick."
In January 2008, Demleitner became the first woman and the youngest person to assume the dean's post in the law school's 39-year history, according to Sun Min, a spokeswoman for the law school. Demleitner spent most of her career in academia, teaching in Germany, Italy, Michigan, Texas, Miami and at Hofstra. She has written extensively on the disfranchisement of convicted felons.
For various reasons, I would be (wonderfully) shocked if Nora was selected for SCOTUS this time around. But I am intrigued (and hopeful) about the possibility that her new short-list status might foreshadow the possibility that she be named, say, to the US Sentencing Commission or to the Second or DC Circuit or to any other important national position that could profit greatly from having someone with Nora's diverse background and keen insights on an array of issues.
Some recent related posts:
Notable Fifth Circuit ruling about reach/impact of Kimbrough
The Fifth Circuit issued a notable sentencing ruling yesterday in US v. Simmons, No. 08-60755 (5th Cir. May 18, 2009) (available here). This case has bounced up and down as the district court and the Fifth Circuit try to figure out post-Booker sentencing rules. Here is the latest insights from the Fifth Circuit about Kimbrough and related matters:
Kimbrough does not limit the relevance of a district court’s policy disagreement with the Guidelines to the situations such as the cocaine disparity and whatever might be considered similar....
Whatever else in Kimbrough might require further case development, it is evident that the Supreme Court held that a district court’s policy disagreement with the Guidelines is not an automatic ground for reversal ... [though it called for] a more intense review when the district court declares a properly calculated sentencing range to be inconsistent with the Guidelines’ policy factors even for an ordinary case. Kimbrough, 128 S. Ct. at 575. If the concern instead is about the suitability of the sentence under the special conditions of a particular offender, the Court did not state that “closer review” is needed.
Therefore, the district court’s disagreement with the policy statement concerning age as applied to this defendant’s case is relevant to the sentencing decision. Consideration of a policy statement is among the factors under Section 3553(a). Disagreement with the policy should be considered along with other factors. See id. After deciding that a sentence outside the Guidelines range is justified, the court “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of variance.” Gall, 126 S. Ct. at 597. Once those thought processes lead to a decision on the proper sentence, the court must explain itself in such as way as to permit “meaningful appellate review” and satisfy the need that sentencing fairness be perceived. Id.
Thoughtful new district court opinion adopting 1:1 crack/powder ratio
I am pleased to be able to post a new opinion from a district court that provides a thorough and thoughtful account of why the court has adopted a 1:1 ratio for crack sentence cases. Here is the openning paragraph and one key passage from US v. Gully, No. CR 08-3005-MWB (N.D. Iowa May 18, 2009):
Defendant Demetrius Darnell Gully was before the court on May 14, 2009, for sentencing on his guilty plea, without a plea agreement, to four charges of distributing less than 5 grams of crack cocaine, arising from “controlled buys” in January 2008, after a prior felony drug conviction in 2004. Three of the counts charged that the distributions occurred within 1,000 feet of a public playground or school. This “crack” case raises the following questions: (1) Whether the court has discretion to impose a 1:1 crack-to-powder ratio in sentencing; and (2) whether a 1:1 ratio is appropriate in this case. This written ruling addresses only these questions, although other matters were resolved at defendant Gully’s sentencing hearing....
[I]n this case, the prosecution offered no argument or logical reason why crack cocaine and powder cocaine should be treated differently, on the basis of the controlled substances themselves. Rather, the prosecution reiterated the policy line, which this court rejects, that different treatment of crack and powder is appropriate in this case because of this defendant’s conduct, i.e., that the crack-to-powder ratio is an appropriate proxy for other kinds of harm or criminal conduct perceived to come with crack trafficking. Again, this court believes that the appropriate course is to treat interchangeable forms of cocaine as equivalents, and to enhance punishment when additional criminal effects and use of weapons, for example, are present in a particular case.
Yet another different SCOTUS short-list
Marcia Coyle has this new piece in The National Law Journal headlined "An Alternative Short List for the High Court: Law professors say whom they would nominate to the U.S. Supreme Court. Are any on the president's radar?" Here is how the piece begins:
Is New York Law School's Annette Gordon-Reed, the Pulitzer Prize-winning law professor/historian, on President Obama's Supreme Court "short list"? Or, Alabama lawyer Bryan Stevenson, a MacArthur Foundation "genius" award recipient and tireless advocate on behalf of indigent defendants and prisoners? How about veteran consumer rights champion Alan Morrison and University of Notre Dame Law School Dean Patricia O'Hara?
Probably not. But they appear on the short lists of more than a dozen constitutional law and Supreme Court scholars asked by The National Law Journal to step into Obama's shoes to pick a nominee to succeed retiring Justice David Souter. These scholars, who vary ideologically and geographically, most often recommended four women who are reportedly on Obama's short list, giving the most nods to Pamela Karlan, a leading constitutional law scholar, voting rights authority and founding director of the Stanford Law School's Supreme Court Litigation Clinic.
Some prior posts on SCOTUS personnel:
"Executions Debated as Missouri Plans One"
The title of this post is the headline of this article from today's New York Times, which provides an effective primer on the state of death penalty debate in Missouri as the state gears up to execute convicted murderer Dennis Skillicorn early Wednesday morning. Here are a few excerpts:
Officials in this state are preparing to execute a prisoner for the first time since 2005, when criticisms about the state’s lethal injection method emerged and one doctor who carried out executions acknowledged being dyslexic and sometimes “improvising” when it came to the amounts of chemicals he administered.
That doctor will no longer take part, and a United States Supreme Court ruling last year upheld a lethal injection procedure similar to the one Missouri will use, but some lawmakers, including some prominent Republicans, say they have lingering questions about the state’s system of capital punishment.
The focus of those questions has shifted some, no longer centering on the method of execution but turning toward which prisoners are condemned and which are not, and whether those choices make sense. “I still favor the death penalty, but I just want to make sure we put the right people to death,” said State Representative Bill Deeken, a Republican, explaining why he last week proposed delaying the death penalty for two years more until a study can determine whether it is meted out fairly in this state. “At this point, we just do not know.”...
In the final days of the state legislative session in Jefferson City last week, a death penalty moratorium was rejected, but the House, which Republicans control, passed a provision calling for a commission to study the question.....House leaders say their chamber’s vote sent a signal to Gov. Jay Nixon, a Democrat in his first term, who has yet to issue a decision on Mr. Skillicorn’s request for clemency.
People here are deeply split over Mr. Skillicorn. His supporters say that while he participated in robbing Mr. Drummond and was convicted of murder, another man (now also awaiting execution) was the one who fired the gun that killed Mr. Drummond. They point to Mr. Skillicorn’s work in prison leading a hospice program, editing a magazine for death row inmates, and, in the view of even some prison workers, helping to create a calmer, safer atmosphere behind bars....
But State Representative Bob Nance of Excelsior Springs, the community not far from Kansas City where Mr. Drummond had lived, said Mr. Skillicorn “should hardly be held up as a poster child for what’s wrong with the death penalty.” Mr. Skillicorn was implicated for his involvement in other murders — though never, he says, as the gunman. He was convicted of second-degree murder in a 1979 burglary with accomplices in which a farmer was killed. And in the days after Mr. Drummond’s death, he and his accomplice went on a cross- country spree and, the authorities say, his accomplice shot and killed an Arizona couple. Mr. Skillicorn pleaded guilty to murder in that case.
Interesting deterrence study out of Italy (perhaps providing a basis for more clemencies)
This new press release from Science Daily, titled "Potential Criminals Deterred By Longer Sentences," reports on an interesting new published study on deterrence coming from Italy. Here are excerpts from the press release:
A new study published in the Journal of Political Economy sheds some empirical light on the question of deterrence. Using a recently passed Italian law as a natural experiment, the study found that former prisoners are less likely to return to jail if they expect longer sentences for future crimes....
Passed in 2006, Italy's Collective Clemency Bill presents a unique opportunity to study the deterrent effect of prison sentences, the authors say.... When the clemency bill was passed, it immediately released thousands of prisoners who had three years or less left on their sentences. The remainder of each prisoner's sentence was suspended, but not forgiven. The law stipulated that a former inmate who commits a new crime within five years will have the suspended portion of his sentence reinstated and added to the sentence for the new crime. As a result, a repeat offender can expect extra jail time equal to the suspended portion of his sentence — anywhere from one month to three years.
Using government data, the researchers looked at the recidivism rates of these former inmates for the first seven months after their release. They found that those with longer suspended sentences — and therefore longer expected sentences for new crimes — were less likely to be re-arrested than those with shorter suspended sentences....
The deterrent effect was consistent across age groups, and among men and women, though 95 percent of the sample was male. "This means that a policy a commuting actual sentences in expected sentences significantly reduces recidivism," Dr. Vertova says. "A mass release of prisoners can be effective in reducing their propensity of re-committing crimes if, when a released individual gets convicted of a new crime, his normal sentence is increased by the time that was pardoned because of the early release."
There was one important exception to the deterrent effect, however. Recidivism rates among those whose original crime was more serious were essentially unaffected by the length of their suspended sentence. That finding suggests that "more dangerous inmates are not deterred," the authors write. The researchers also caution that their results only measure deterrence on those who have already served time in jail. "Indeed, it is not clear whether these results can be to individuals who have never received prison treatment."
The full study can be accessed at this link, and here is the paper's official abstract:
The Collective Clemency Bill passed by the Italian Parliament in July 2006 represents a natural experiment to analyze the behavioral response of individuals to an exogenous manipulation of prison sentences. On the basis of a unique data set on the postrelease behavior of former inmates, we find that 1 month less time served in prison commuted into 1 month more in expected sentence for future crimes reduces the probability of recidivism by 0.16 percentage points. From this result we estimate an elasticity of average recidivism with respect to the expected punishment equal to −0.74 for a 7‐month period.
The implications of this interesting study are potentially quite profound, especially at a time when states are struggling with over-crowded prisons and academics are debating "second look" sentencing reforms. This study suggests governments might be able to save money AND reduce the probability of recidivism by granting conditional clemencies to non-violent offenders.
Examining environmental sentences after Booker
Professor Michael O'Hear has this new article on SSRN, titled “Bark and Bite: The Environmental Sentencing Guidelines after Booker.” Here is the abstract:
The federal sentencing guidelines for environmental crimes bark loudly, calling for sentences of imprisonment for all but the most trivial of environmental offenses. Although the terms of imprisonment are not long, the prospect of even a short period of incarceration is doubtlessly capable of getting the attention of the white-collar professionals who typically commit environmental offenses. Research I conducted in 2004, however, indicated that the bark of the environmental guidelines was considerably worse than their bite. Judges “departed” below the applicable guidelines range in an unusually high percentage of environmental cases, barely one-third of convicted environmental defendants received prison sentences, and only about forty percent of prison sentences exceeded one year in length.
Although the data contained in my 2004 study were striking at the time, ensuing developments might appropriately raise questions as to their reliability today. For instance, the Supreme Court fundamentally restructured federal sentencing law through its 2005 decision in United States v. Booker, which changed the status of the federal sentencing guidelines from mandatory to advisory.
With Booker and other developments in mind, the present article updates the data from my earlier study, demonstrating a surprising level of continuity from the Clinton to the Bush eras, and from pre-Booker to post-Booker. Simply put, despite notable institutional and legal changes, the bark of the environmental guidelines remains considerably worse than their bite.
Finally, the article considers normative implications of the bark/bite gap. In light of the overarching purposes and premises of the federal sentencing system, the data provide important support for a fundamental redesign of the environmental guidelines. Failing such a redesign by the Sentencing Commission, the data should be regarded by the courts as providing some support for arguments by individual defendants that particular provisions of the environmental guidelines should not be applied to them.
May 18, 2009
"Pot Activist Sentenced To 10 Years For Growing 1,000 Plants"
The title of this post is the title of this interesting article reporting on a federal sentencing from California. Here are some more details:
A federal judge in San Francisco Monday sentenced a Lake County man to 10 years in prison for growing more than 1,000 marijuana plants, saying the marijuana activist appeared to "want to be a martyr for the cause."
The sentence for Charles "Eddy" Lepp, 56, was the mandatory minimum under federal law for growing more than 1,000 plants. U.S. District Judge Marilyn Patel said Lepp didn't qualify for a so-called "safety valve" exception with a lesser sentence because he testified at his trial last fall that he was a proud leader of others who grew marijuana on his land.
Patel told Lepp, "I think Mr. Lepp is very proud of what he's been doing. The problem is that now unfortunately, Mr. Lepp, it's caught up with you." "Maybe you want to be martyr for the cause," Patel said. "That will be your lot."
Patel said she thought the length of the sentence was excessive, but said it would be up to Congress to change the law.
Lepp, a disabled Vietnam veteran who says he is now a Rastafarian minister, was convicted in Patel's court in September of conspiring to grow and growing more than 1,000 plants on 23 acres he owns adjacent to state Highway 20 in Upper Lake.
Lepp had contended the marijuana was grown for medical use under California's compassionate use law and for spiritual practice in his Rastafarian religion. But he was not allowed to make either argument at his trial. U.S. drug laws don't allow state medical marijuana laws to be used as a defense in federal prosecutions.
Lepp said at the sentencing, "I've done all I can to comply with the laws and rules of the state in which I reside." He said he informed local authorities in 2004 that his land would be used to enable patients who didn't own land to grow marijuana for medical purposes."
Prosecutor David Hall told the judge, "I've never seen a man work harder to get time in prison than Mr. Lepp has." Lepp's attorney, Michael Hinckley, said outside of court that the sentence was "tragic" and said he will appeal.
Any last-minute predictions about the Lori Drew cyber-bullying case?
As detailed in this new Los Angeles Times posting, Lori Drew, who was "convicted of committing a hoax on the social networking site MySpace that led to the suicide of a 13-year-old girl, is scheduled to be sentenced this afternoon in federal court in downtown Los Angeles." As I have highlighted in prior posts, there are lots of interesting legal issues and sentencing questions raised by this case. In addition to the basic question of what sentence Drew might/should be given for her three misdemeanor convictions, there is the preliminary issue of whether her convictions should be dismissed and the procedural issue of whether her crime has "victims" who should be permitted to testify at her sentencing hearing.
Just for kicks, I will make some last-minute predictions (that might soon look silly): I predict that Drew's motion to dismiss is denied, that the victims get to testify at her sentencing, and that Drew gets a sentence of a few months of home confinement. But this is just wild speculation. Any other guesses
Some related prior posts:
- Friday forum: What sentence would you impose on Lori Drew, the MySpace bullying defendant?
- Juror says publicly that she wanted MySpace bullying defendant sent to prison
- Very different sentencing recommendations in the Lori Drew cyberbullying case
- Prosecutorial power, victims rights, sentencing judgments and judicial empathy
UPDATE: Apparently the District Court will keep Lori Drew's legal limbo for at least another 6 weeks. As this new Wired report now explains, following "an hour of discussion with prosecutors and Drew’s defense attorney, U.S. District Judge George Wu indicated he was still weighing a defense motion to overturn the jury verdict in the case and that he needs to review transcripts from the trial to weigh both the motion to overturn and the sentencing. Sentencing is now set for July 2nd."
Interesting group of cert grants from SCOTUS
As noted in this post last week, the SCOTUSblog folks had about a half-dozen criminal law cases on their list of “Petitions to Watch.” Though I have not yet figured out the fate of all of these watched cases, the list of four granted cases today have lots of interesting dimensions. The basics are detailed here at SCOTUSblog:
The Court has granted certiorari in four cases today: Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board, et al. (08-861) Black, et al. v. United States (08-876); Wood v. Allen (08-9156) [limited to questions 1 and 2]; and Beard v. Kindler (08-992).
I welcome comments on whether any of these cases should be of extra interest to sentencing fans.
UPDATE: This SCOTUSblog post provides these additional details on the three criminal case grants:
The Court granted three [criminal] cases, including a review of the fraud conviction of a former media mogul, Canadian Conrad M. Black, in a celebrated case involving allegedly illegal executive compensation. The case is Black v. U.S. (08-876).
Also granted was Beard v . Kindler (08-992), on the proper treatment in a federal habeas corpus proceeding of state procedural rules that are discretionary rather than mandatory. Justice Samuel A. Alito, Jr., took no part in that order. The Court also agreed to hear a death penalty case, Wood v. Allen (08-9156), with the grant limited to the first two questions. The Wood case tests the failure of an inexperienced defense lawyer to present in a capital sentencing proceeding evidence of the defendant’s severe mental impairment.
Kent at C&C has this long post providing lots of helpful context for the Beard v . Kindler grant.
For a very different SCOTUS short list...
be sure to check out this segment, titled "Supreme Court Choices You Haven't Heard Of," from NPR's "Weekend Edition Sunday." Among the names I heard on the NPR nominee list of choices I had not heard was my co-author Nora Demleitner, who is now Dean at Hofstra University School of Law. Awesome!
I would be very surprised (and very pleasantly surprised) if Nora was named to the Supreme Court now, in part because she is still very young. But I am sure she would be a fantastic jurist and it would be really nice and valuable to have someone on the Court who knows a lot about sentencing law and policy. Notably, Newsday noticed Nora's name on NPR's novel short list, so maybe she will start getting even more buzz soon.
Meanwhile, I am wondering if and when we might get a nominee this week from the White House. I would really like to be able to transition from all the speculations to in-depth examination of an actual nominee, but I am fearing we still may have a while to wait.
Some prior posts on SCOTUS personnel:
- Insider myopia and the diverse benefits of a short bench
- Does SCOTUS need a trial judge?
Brave New Justice and sentencing issues
Are there broader lessons to be drawn from Michael Vick's up-coming prisoner reentry story?
I cannot listen to sport radio without being reminded of an interesting criminal justice story unfolding this week: Michael Vick is scheduled to be released from the federal prison in Leavenworth after serving about 19 months of his 23-month federal sentence. This local article provides some of the high-profile re-entry details for Vick:
When Michael Vick gets out of prison later this week, he'll join about 120,000 other federal ex-cons under court-ordered supervision. Statistics show that about a third will end up back in prison.
Vick is scheduled to leave the federal penitentiary at Leavenworth, Kan., either Wednesday or Thursday. He'll arrive in Hampton [Virginia] and be immediately placed in home confinement. A federal community corrections officer will be able to monitor his every move, with the help of an electronic tracking device.
Felicia Ponce, a spokeswoman for the U.S. Bureau of Prisons, said Vick will have to follow a strict set of rules. Some of the rules will be standard, such as a curfew, and some tailored for him. "They look at the individual's security needs, and they develop a plan to help them integrate back into the community," she said.
Being on home confinement isn't the "peaches and cream that people think it is," said local defense attorney Andrew Protogyrou. "You're not allowed to go out to dinner. You're not allowed to go to a friend's house. The probation officer drops by unexpectedly. There is no freedom other than what the probation officer says you can do."...
Vick will live, at least initially, at 21 Haywagon Trail, Hampton, with his fiancee, Kijafa Frink, and their children. He'll be allowed to travel to his job with the construction firm W.M. Jordan Co. and to his probation appointments and court appearances.
His attorneys say he plans to perform volunteer community service, even though the court has not obligated that. He wanted to work for Habitat for Humanity, but the nonprofit denied his request. "We evaluated the request but have determined that we will not have a suitable work site available at the time of his release from prison," said Janet V. Green, executive director of Habitat's Peninsula office....
While he is free, Vick must remain on his best behavior. When his two months of confinement are up, he'll be free, but on three years of supervised release, or probation, which comes with new rules and restrictions.
Standard conditions include not being able to travel outside of eastern Virginia without approval, maintaining employment, staying away from known criminals, and meeting with his probation officer regularly. The judge who sentenced Vick also ordered additional conditions prohibiting him from incurring debt and mandating participation in a substance abuse treatment program. In addition, the judge ordered Vick not to "engage in the purchase, possession or sale of any canine." If Vick violates the terms of his supervision, he could be sent back to prison for the remainder of the three years he's on probation.
Not discussed in this article, but the topic of lots of other media attention, is whether NFL Commissioner Roger Goodell will lift Vick's indefinite suspension and also which NFL team will give Vick a second chance on his football career. Notably, according to this blog post, ESPN has wall-to-wall coverage planned for Vick's prison release.
As hinted in the title to this post, I think there are a lot of interesting (and blog-worthy) reentry stories related to this high-profile case. But, because Vick is a unique person who committed a unique set of federal crimes, these stories may not have much broader relevance. So, dear readers, I ask you to help me figure out whether I ought to join ESPN in doing wall-to-wall coverage or should instead just leave this story to the sports pages.
Another example of the long slog of seeking death in California
The Los Angeles Times has this interesting new article on the administration of the death penalty in California, which is headlined "'Dysfunctional' death penalty racks up 28-year, $5-million tab: And that's just for one case. Michael Ray Burgener's death sentence in the murder of a 7-Eleven clerk has been overturned multiple times, and lawyers say his appeals could span another 15 years." Here are a few details:
Burgener, sentenced to death for murder in 1981, has yet to complete his automatic appeal before the San Francisco-based California Supreme Court. His case has ping-ponged from trial courts to appeals courts over 28 years, and he still does not know whether he will be sentenced to die from lethal injection or spend the rest of his life in prison. Given how long his appeals are taking, there is not likely to be any practical difference....
Burgener's tale illustrates why executions remain relatively rare in California and why old age is the most common cause of death on death row. He was sentenced to death in the 1980s, when capital punishment cases began to escalate and courts grew overwhelmed. The pace of justice, always slow when it comes to the state's death penalty, can grind to a near halt when new judges and new lawyers take over an old case.
The judge who presided at Burgener's penalty retrial is dead. The judge who replaced him is now dead. The attorney who defended Burgener at trial is dead. And the prosecutor who won the guilty verdict no longer works for the Riverside County District Attorney. None of the state high court justices who heard his first appeal are on the court anymore. The condemned man has outlasted them all.
Lawyers estimate that Burgener, 58, may have 15 years of appeals left if he is again sentenced to death. His case would then return to the state high court for review. The court also would have to review a constitutional challenge of his sentence. If that sentence is denied, Burgener could start all over again in federal court.
May 17, 2009
Effective primer on sex offender residency restrictions
Now available via SSRN is this piece, titled "Residency Restrictions for Convicted Sex Offenders: A Popular Approach on Questionnable Footing," that provides an effective review of the law and policy of sex offender residency restrictions. Here is the abstract:
Municipalities across the country are adopting residency restrictions prohibiting convicted sex offenders from living in close proximity to places that children are likely to frequent. The number of sex offenders is large -- by one report there are some 550,000 registered sex offenders nationally. As more and more local and state governments adopt residency restrictions, municipal lawyers and planners are increasingly finding themselves at the center of the debate. The literature and discussions in case law suggest that residency restrictions do not reduce recidivism, do not offer any real protection for potential victims, are generally not legally defensible, and thwart efforts to reform offenders and return them to society. This however, is ignored by the emotional demands of community residents to enact these laws to “protect vulnerable children” from convicted offenders. As a body is case law is starting to develop concerning these laws, it is becoming apparent that municipalities may have difficulty defending residency restrictions. This article provides a brief review of the literature and then discusses constitutional and statutory issues through an examination of recent caselaw.
Notable materials from the Missouri Sentencing Advisory Commission
Though I am usually able to keep up with most of the activities of the US Sentencing Commission (and most of the stuff posted on its website), I never have enough time to review (and praise) all the interesting and important work being done by many state sentencing commissions. Fortunately, helpful readers sometimes alert me to some of this work appearing publicly on state commission websites.
For example, thanks to a helpful reader, now I can note (and praise) these materials recently added to the official website of the Missouri Sentencing Advisory Commission:
In addition to encouraging folks interested in state sentencing developments to check out all these goodies from the Missouri Sentencing Advisory Commission, I also encourage folks involved in state sentencing developments to keep alerting me to notable reports and materials.
Interesting sentencing doings at this week's ALI annual meeting
As regular readers may know, The American Law Institute has been working on a revision of the sentencing provisions of the Model Penal Code for nearly a decade. And, as detailed in this tentative agenda, this week's annual meeting of the ALI includes another presentation and discussion of a draft of the new proposed MPC sentencing provisions. (Background on the ALI sentencing project can be accessed at this link.)
As the 2009 meeting agenda also shows, however, there is an even more notable sentencing item on the ALI's schedule: the presentation of a capital punishment report and a "vote on Council recommendation that ALI withdraw Model Penal Code § 210.6." As MPC fans know, § 210.6 is the provision of the MPC that sets forth a whole bunch of rules for the administration of the death penalty.
Valuably, the ALI has made publicly available at this link its "Report of the Council to the Membership of The American Law Institute On the Matter of the Death Penalty." This report is quite interesting for a variety of reasons, and I may comment on its substance in future posts. For now, however, I want to set forth its trio of recommendations to the ALI membership:
A. The Council recommends to the ALI membership that the Institute withdraw § 210.6 of the Model Penal Code. When a motion to that effect is presented at the 2009 Annual Meeting, the Council recommends that those present vote in favor.
B. The Council further recommends that if a motion that the Institute endorse or oppose the abolition of capital punishment is presented for a vote at the 2009 Annual Meeting, the members present vote against that motion.
C. The Council reports that there are no plans to begin an ALI project to draft language that would revise or replace § 210.6 or otherwise address the subject of capital punishment.