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May 30, 2009

Different perspectives on federal sentencing from different vantage points

As noted in prior posts here and here, this past week the US Sentencing Commission held a public hearing at Stanford Law School.  This USSC webpage showing the agenda and the list of impressive persons who testified now also has links to some of the submitted written testimony. 

Though I am still reading through some of this written testimony, I was struck — though I suppose not really surprised) — by the different points of emphasis in the testimony of Ninth Circuit Judge Richard Tallman and the testimony of Hawaii District Judge Susan Oki Mollway.  Judge Tallman's testimony starts and ends with concerns about sentencing disparities, and he even states that, after Booker, "perhaps judges now have too much discretion."  In sharp contrast, Judge Mollway's testimony is focused on guidelines that seem unduly severe and the fact that mandatory minimum sentences limit judicial discretion and "are frequently unreasonable."

This contrast in post-Booker assessments surely reflects the different institutional perspectives of these judges.  On appeal, circuit judges often hear complaints about sentences that appear disparate and they have an obligation to try to rein in sentencing outliers through reasonableness review; at initial sentencing, district judges often hear complaints about guidelines that seem to harsh and they have an obligation to impose a sentence "sufficient, but not greater than necessary" under 3553(a).

Critically, both comments highlight the central importance of sounder federal guidelines even though they are now advisory.  If the federal sentencing guidelines were to more consistently set sentencing ranges at reasonable and just levels, district judges would more often impose sentences within the guidelines and circuit judges would not have so many outliers to have to try to rein in.

May 30, 2009 in Booker and Fanfan Commentary | Permalink | Comments (2) | TrackBack

Any predictions on how a Justice Sotomayor would approach capital cases?

This new AP piece, headlind "Death cases among early issues for new justice," spotlights that SCOTUS nominee Judge Sotomayor, though lacking a judicial record with the death penalty, has encountered the issue in at least one other setting.  Here is how this AP piece gets started:

As a director of a Puerto Rican advocacy group in the 1980s, Supreme Court nominee Sonia Sotomayor was part of a three-person committee that equated capital punishment with racism. The Puerto Rican Legal Defense and Education Fund argued in a 1981 letter to the governor of New York, Hugh Carey, that "capital punishment represents ongoing racism within our society."

Sotomayor later became a federal judge and spent 16 years on the bench without having to address the death penalty, one of the most contentious legal issues in the United States. That would change quickly if she is confirmed to the Supreme Court as its first Hispanic justice.

The court will hear arguments in three death penalty cases in the term beginning in October. All of the upcoming cases deal with claims by death row inmates and the power of federal courts to review their sentences after state courts have upheld them, not the constitutionality of the death penalty itself. Only infrequently is the guilt of the person in doubt in such cases. Most often, what the court hears are prisoners' claims of ineffective lawyers or muddled jury instructions.

Justices, however, use such cases to voice their concerns about the fairness of who gets sentenced to death and who doesn't, particularly the uneven quality of lawyers in capital cases. The decisions often find the four liberal justices on one side, the four conservatives on the other and Justice Anthony Kennedy determining who wins. Retiring Justice David Souter, whom Sotomayor would replace, generally sides with the inmates, along with his liberal colleagues.

An examination of the Puerto Rican defense fund's records did not turn up any death penalty-related writings directly attributable to Sotomayor. But her role in the group's advocacy against capital punishment is likely to be explored at her Senate confirmation hearing this summer, and should be, said Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation. "It was a long time ago, so it's not anything we can say indicates her present attitudes," Scheidegger said.

Richard Dieter, executive director of the anti-capital punishment Death Penalty Information Center, said that even if Sotomayor opposes the death penalty, it would not preclude her from ruling against defendants "when that's what precedents and the Constitution require." Dieter agreed with Scheidegger, though, that where she stands on the issue now is unknown, whatever she thought about the death penalty as a lawyer in her late 20s.

Prior posts on the SCOTUS nomination and record of Judge Sotomayor:

UPDATE:  Over at C&C, Kent Scheidegger has this interesting post titled "Judge Sotomayor and the Death Penalty."  Here are its last two parahraphs:

If Judge Sotomayor is personally opposed to the death penalty as a matter of policy, that is not disqualifying provided she is very clear on and committed to the distinction between personal views and constitutionality. Justice Blackmun understood the difference when he was first appointed, and he explained it in his dissent in Furman v. Georgia. Regrettably, somewhere along the route he lost his way.

A person's views on the constitutionality of capital punishment can tell us a lot about their views on judicial review, the separation of powers, and the role of courts generally. I will explore that further in another post. For now, it is important to note that we know very little about Judge Sotomayor's views on an issue that is very important and a large part of the Supreme Court's workload. We need to know a lot more. I hope the Senators will examine the issue closely.

May 30, 2009 in Death Penalty Reforms | Permalink | Comments (7) | TrackBack

Examining the work of psychologists in correctional settings

Now up on SSRN is this new article titled "'Where the Home in the Valley Meets the Damp Dirty Prison': A Human Rights Perspective on Therapeutic Jurisprudence and the Role of Forensic Psychologists in Correctional Settings."  Here is the abstract:

The roles of forensic psychologists in coerced environments such as corrections include that of treatment provider (for the offender) and that of organizational consultant (for the community).  This dual role raises ethical issues in the balance between offender and community rights, an imbalance results in the violation of human rights.  A timely reminder of a slippery ethical slope that can arise is the failure of the American Psychological Association to manage this balance regarding interrogation and torture of detainees under the Bush administration.  To establish a “bright-line position” regarding ethical practice, forensic psychologists need to be cognizant of international human rights law. In this endeavor, international covenants and a universal ethical code ought to guide practice, although seemingly unresolveable conflicts between ethics codes and the law may arise.  The legal theory of therapeutic jurisprudence can assist psychologists to understand the law, the legal system, and their role in applying the law therapeutically to support offender dignity, freedom, and well-being.  In this way, a moral stance is taken and the forensic role of treatment provider and/or organizational consultant is not expected to trump the ethical principle “do no harm” with the ethical principle “community protection”.

May 30, 2009 in Scope of Imprisonment | Permalink | Comments (4) | TrackBack

The prison economy and the war on terror meet in Montana

The AP has this fascinating new piece, headlined "Montana town offers to take Guantanamo prisoners," which highlights how the prison economy can provide a different perspective on the war on terror.  Here are excerpts:

On Capitol Hill, politicians are dead-set against transferring some of the world's most feared terrorists from Guantanamo to prisons on U.S. soil.  But at City Hall in this impoverished town on the Northern Plains, the attitude is: Bring 'em on.

Hardin, a dusty town of 3,400 people so desperate that it built a $27 million jail a couple of years ago in the vain hope it would be a moneymaker, is offering to house hundreds of Gitmo detainees at the empty, never-used institution.

The medium-security jail was conceived as a holding facility for drunks and other scofflaws, but town leaders said it could be fortified with a couple of guard towers and some more concertina wire.  Apart from that, it is a turnkey operation, fully outfitted with everything from cafeteria trays and sweatsocks to 88 surveillance cameras.

"Holy smokes — the amount of soldiers and attorneys it would bring here would be unbelievable," Clint Carleton said as he surveyed his mostly empty restaurant, Three Brothers Pizza. "I'm a lot more worried about some sex offender walking my streets than a guy that's a world-class terrorist. He's not going to escape, pop into the IGA (supermarket), grab a six-pack and go sit in the park."

After Hardin's six-member council passed a resolution last month in favor of taking the Guantanamo detainees, Montana's congressional delegation was quick to pledge it would never happen....

The jail's No. 1 promoter, Greg Smith, executive director of Hardin's economic development agency, said the Two Rivers Detention Center could easily be retrofitted to increase security.  And while the town hasn't had its own police force since the 1970s, Smith said the jail's well-armed neighbors would constitute an "unofficial redneck patrol."...

Hardin — situated about an hour's drive from Billings on the edge of the Crow Indian Reservation, not far from the Little Bighorn, where Custer made his last stand — is beset with high unemployment and a poverty rate double the national average.  It built the 464-bed jail on spec — that is, with no contracts lined up ahead of time to take prisoners.  Attempts to bring offenders, out-of-state criminals and federal inmates to Hardin have all failed, and the bonds issued to pay for construction are now in default.

Some prison agencies, including the Montana Corrections Department, have said the jail does not meet their design and security standards, in part because of its dormitory-style rooms and lack of an exercise yard.  Others said they had no need for the jail or selected a competing proposal.

Inside its concrete walls, orange jumpsuits, rubber sandals and stacks of white tube socks weigh down the shelves of the storeroom.  Computers, phones and video monitors line the tables in the control room.  In the cafeteria, stacks of plastic trays and cooking utensils wait to be put to use. Mayor Ron Adams said the jail could generate up to $300,000 a year for Hardin's coffers if it were to open.  That is about 20 percent of the town's annual budget. It would also create more than 100 jobs.

May 30, 2009 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

May 29, 2009

Efforts in Connecticut to convince Governor Rell to sign death penalty repeal bill

This local article from Connecticut, headlined "Groups try to persuade Rell to abolish death penalty," highlights some of on-going work by what might be called the abolitionist lobby:

Opponents of the death penalty began a campaign Thursday to persuade Gov. M. Jodi Rell to sign a bill that would end capital punishment in Connecticut. Defense lawyers, human rights activists and church leaders from throughout the state asked the Republican governor to reconsider her pledge to veto the legislation, which was approved in historic votes in the House and Senate over the last two weeks.

While a new Quinnipiac University Poll indicated Thursday that 61 percent of the state wants to keep the death penalty, defense lawyers -- during a news conference that featured the author of "Dead Man Walking" in a teleconference from Iowa -- said the survey was flawed. The lawyers noted that a quarter of capital-punishment supporters in the Q Poll seem to erroneously believe that keeping murderers behind bars for life is more expensive than executing them after decades of expensive appeals.

First-term Rep. Gary A. Holder-Winfield, a New Haven lawmaker who had a private, half-hour-long meeting with Rell this week, said she seemed interested in the issues, but doubts she'll change her mind when the bill gets to her desk over the next couple of weeks.

An executive with the national office of the NAACP said in an interview that Rell should consider the racial implications of a tradition linked to the violent lynchings in the Deep South.

Meanwhile, Rell's communications office said that since the Senate voted May 22 to repeal the death penalty, the governor's office has received 1,141 e-mails asking her to sign the legislation and 359 asking for a veto.  Chris Cooper, her spokesman, said about 400 phone calls were received, most asking her to sign the bill.  About three dozen pieces of mail have been about 2-1 in favor of the repeal.

Some related posts:

May 29, 2009 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

A few ruminations about judging without empathy (and sentencing by computers)

TennisWhile some SCOTUS nominee "empathy" discussion has been silly, the basic debate over the role of empathy in judging has a number of interesting facets.  The folks at The Volokh Conspiracy, for example, have been talking through the issue in interesting ways in these recent posts:

Though I do not want to jump too deeply into the whole "empathy" debate, I cannot help but ruminate a bit on whether we would find it appealing to have judges without any empathy.  Specifically, I am wondering if most folks would be comfortable and content being judged in various settings by a sophisticated computer rather than by a human being.  Candidly, I do not have a certain answer or strong instinct about whether I would generally prefer being judged by sophisticated computers rather than by smart humans.  Like all good questions, my answer to this query might just be "It depends."

Usefully, sports provide an interesting example of one setting in which judging by computers seems preferable to judging by humans.  As tennis fans know, disputed line calls in high-profile events are now judged by Hawk-Eye, a sophisticated ball-tracking system that reports whether a shot was in or out.  My sense is that, because the criteria are objective and simple, having judging done by sophisticated computers is an improvement over judging done by humans in tennis line-calls.

But, of course, most legal decisions are not as simple as the in/out call in tennis.  To continue the sports metaphor, we might say legal decisions are more like pass interference calls in football, with multiple dynamic (and subjective?) factors often in play (e.g., who initiated contact, was the contact excessive, was the ball catchable).  In addition to being unsure if NFL officials should have empathy for certain players or teams — the Detroit Lions could sure use help —  I am also unsure if I would want a computer making pass interference calls from a skybox rather than the human ref on the field.

To give this all a sentencing spin, recall some interesting comments by Judge Marvin Frankel nearly 40 years ago when he was complaining about judicial sentencing disparity.  In Criminal Sentences: Law without Order (1972), Judge Frankel called for the creation of a "code of penal law" to "prescribe guidelines for the application and assessment" of the "numerous factors affecting the lengthy or severity of sentences." (p. 113.)  In so doing, he raised the specter of sentencing by computers in this nuanced way (at pp. 114-115):

It is not necessary, or desirable, to imagine that sentencing can be completely computerized.  At the same time, the possibility of using computers as an aid toward orderly thought in sentencing need not be discounted in advance....  [T]his does not envisage the displacement of people by machines.  The need for delicate and difficult judgments will remain for as long as a future as is now imaginable.  What will change, we might hope, is the uncharted expanse in which such judgments are now undertaken.

In light of the empathy debate, I find its still timely to wonder if we would want any arena of judging under the law to become "completely computerized."  And, in light of decades of state and federal experiences with guidelines designed to influence "delicate and difficult" sentencing judgments, it is also timely to wonder more energy might now be put toward Judge Frankel's suggested "possibility of using computers as an aid toward orderly thought in sentencing."

May 29, 2009 in Who Sentences? | Permalink | Comments (13) | TrackBack

Conrad Black appeals to Justice Stevens for bail pending SCOTUS ruling

In this post last week on right after the Supreme Court granted cert on Conrad Black's criminal appeal, I asked "Should Conrad Black (and Jeff Skilling and others) be set free pending SCOTUS action?".  My query prompted a spirited debate in the comments, and now it may prompt a spirited debate in Justice Stevens' chambers.  This new AP article explains why:

Former media executive Conrad Black is seeking his release from prison, at least until the Supreme Court decides whether to uphold his fraud conviction.

Black has served nearly 15 months of a 6 1/2-year prison term following his conviction in July 2007. In early May, the high court agreed to hear an appeal from Black and two other former executives of the Hollinger International media company who were convicted in connection with payments of $5.5 million they received from a Hollinger subsidiary.

The court probably won't hear arguments until late this year and a decision is unlikely before late winter. In the meantime, the judge who presided over the trial has said one of the men, John Boultbee, can be released on bond. 

The government did not oppose Boultbee's release, said Miguel Estrada, Black's Washington-based lawyer.  But it "steadfastly refuses to consent to bail for Mr. Black," Estrada said in a court filing he directed to Justice John Paul Stevens.  Stevens handles matters that come to the court from Illinois.

May 29, 2009 in White-collar sentencing | Permalink | Comments (2) | TrackBack

"Cocaine Cases in Limbo as End Looms for Sentencing Disparity"

The title of this post is the title of this interesting article in today's New Jersey Law Journal. Here are excerpts:

The Obama administration's call for the elimination of mandatory jail terms for certain crack-cocaine offenders is beginning to filter down to U.S. Attorneys' Offices, but not fast enough for defense lawyers.

The administration announced in April that it favors reform of a 20-year-old law that mandates a sentence of at least five years for possession of 500 grams of powder cocaine with intent to distribute and the same penalty for five grams of crack cocaine.... Bills to end the disparity have been introduced in Congress and [Assistant Attorney General Lanny] Breuer told the legislators that the administration also will develop recommendations....

Some defense lawyers say the Justice Department doesn't need to wait for legislation to end the disparity.  Yet it is impossible to tell from the Justice Department's guidance to U.S. attorneys whether anything has changed in the trenches.  And while the government figures out what it wants to do, a request for adjournments of sentencings may be one of the defense strategies....

The chief issue is what the Justice Department had in mind when it sent guidance to U.S. attorneys after Breuer's April 29 testimony, at a Senate judiciary subcommittee hearing, calling for an end to the disparity.  Justice Department spokesman Ross Weingarten declines to discuss what the department told U.S. attorneys beyond saying the instructions were in keeping with Breuer's testimony.  And there isn't much meat in the version that U.S. Attorneys' Offices are circulating to defense counsel either in memo form or in conversation....

Michael Nachmanoff, the federal public defender in Alexandria, Va., who testified before Congress last year on behalf of his colleagues around the country, says prosecutors can put the policy into effect, particularly in its charges in cases involving 50 or more grams of crack. Conviction with that amount requires a 10-year minimum sentence, the same as for more than 5,000 grams of powder cocaine. "Lanny Breuer said point blank that the ratio should be 1-to-1," Nachmanoff says. "Prosecutors around the country today could start charging on a 1-1 ratio and avoid the mandatory minimums."

Cases in the pipeline would be more difficult, but when it comes time to sentence those offenders, prosecutors could seek to vacate the conviction with the idea of following with an information charging possession of lesser amount that don't trigger the mandatory sentences, he says. "Unfortunately, there is a gap between the expression of a changed policy on the part of the assistant attorney general and what is happening in the field," he says.

He says that in talking to defense lawyers around the country, "what we see is there is a huge amount of variation in the way prosecutors are handling these cases, even within a district to district." "In some parts of the country, prosecutors are telling a judge the 1-1 ratio is the way to go, but it sounds like prosecutors in New Jersey or other states maybe aren't saying that clearly or acting that way," Nachmanoff says.

In the meantime, defense lawyers are attaching copies of Breuer's testimony to their sentencing pleadings "and telling judges, 'this is the position of the Justice Department, whatever the people in the field are saying,' " Nachmanoff says.

Some related recent posts on crack sentencing debates:  

May 29, 2009 in Drug Offense Sentencing | Permalink | Comments (2) | TrackBack

What is working so well when it comes to crime and punishment in the Netherlands?

If (when?) Senator Jim Webb is able to get a national crime and punishment commission created, I hope that figuring out what is working in the Netherlands becomes an immediate focus of of the commission's attention.  That's because, as this recent article forwarded to me by a helpful reader shows, the Netherlands is having to close prisons because of a lack of criminals:

The Dutch justice ministry has announced it will close eight prisons and cut 1,200 jobs in the prison system. A decline in crime has left many cells empty. During the 1990s the Netherlands faced a shortage of prison cells, but a decline in crime has since led to overcapacity in the prison system. The country now has capacity for 14,000 prisoners but only 12,000 detainees....

The overcapacity is a result of the declining crime rate, which the ministry's research department expects to continue for some time.

Some reprieve might come from a deal with Belgium, which is facing overpopulation in its prisons. The two countries are working out an agreement to house Belgian prisoners in Dutch prisons. Some five-hundred Belgian prisoners could be transferred to the Tilburg prison by 2010. The Netherlands would get 30 million euros in the deal, and it will allow the closing of the prisons in Rotterdam and Veenhuizen to be postponed until 2012.

In this post at Opposing Views, Bruce Mirken has this notable reaction to these developments:

For years prohibitionists, including our own Drug Enforcement Administration, have claimed — falsely — that the tolerant marijuana policies of the Netherlands have made that nation a nest of crime and drug abuse. They may have trouble wrapping their little brains around this: The Dutch government is getting ready to close eight prisons because they don’t have enough criminals to fill them. Officials attribute the shortage of prisoners to a declining crime rate.

Just for fun, let’s compare the Netherlands to California. With a population of 16.6 million, the Dutch prison population is about 12,000.  With its population of 36.7 million, California should have a bit more than double the Dutch prison population.  California’s actual prison population is 171,000.

So, whose drug policies are keeping the streets safer?

May 29, 2009 in Sentencing around the world | Permalink | Comments (19) | TrackBack

Notable criminal law perspectives on Justices old and new

Around the blogosphere are some interesting new posts on some criminal law work by current and likely future Supreme Court Justices.

First, David Oscar Markus explains in this interesting post why he views Justice Scalia as "by far the most friendly Justice to criminal defendants."   I think David's perspective is a bit too skewed by Justice Scalia's strong rhetoric when he (only sometimes) votes for a criminal defendant, David makes this sound point on the interesting topicof criminal law and stare decisis:

I'm happy when Justice Scaliaisn't a prisoner to stare decisis.  If he was, we wouldn't have Crawford, Blakely, Gant, etc. I'm glad he's questioning cases that have been on the books for years because the law is more pro-government right now than it has ever been. The pendulum has started swinging back the other way, and it's due in part to Justice Scalia.  Yes, criminal defendants are going to lose some too -- like Michigan v. Jackson -- but I'll take the above cases with that one.

Second, Kent Scheidegger has this helpful posttitled "Judge Sotomayor and AEDPA."  Here are some  highlights Kent's review of the SCOTUS nominee's record in this arena:

I decided to focus on this statute for several reasons. Decisions by federal judges under this law involve important questions of federalism. The Supreme Court's docket has been heavy with AEDPA cases ever since it was enacted.

The law is bitterly resented by many federal judges precisely because it was enacted to curtail their ability to lord it over state courts and because it rejected the notion that their judgments are inherently superior. Many, many federal judges have attempted to evade it, and a few have gone so far as to declare it unconstitutional. All of the latter have been reversed.  Reversing the evasions has been a major part of the Supreme Court's workload, although, as one judge boasted, they can't reverse them all....

Throughout [Judge Sotomayor's]  opinions, I do not see the hostility to AEDPA that I have seen in so many opinions in the lower federal courts. The statute is largely applied as written and as intended....  On the whole, these are well-considered, well-written opinions that apply the language of the statute and the precedents of higher courts, easily within the limits in which reasonable people may differ. 

Prior posts on the SCOTUS nomination and record of Judge Sotomayor:

May 29, 2009 in Who Sentences? | Permalink | Comments (12) | TrackBack

"New Casey Anthony attorney is death-penalty expert"

The title of this post is the headline of this local article providing some interesting sentencing-related news in a high-profile murder case.  Here are the particulars:

The newest attorney to join Casey Anthony's defense team is a death-penalty expert from Chicago who has tried more than 130 homicide cases, her legal team announced today. Professor Andrea D. Lyon is a clinical professor of law at the DePaul University College of Law in Chicago, where she also directs the law school's Center for Justice in Capital Cases, according to a news release.

"Professor Lyon has tried over 130 homicide cases. A former Cook County Public Defender in Illinois, she served as chief of the public defender's homicide task force," the statement said. "In 1990 she founded the Illinois Capital Resource Center and served as its director until joining the University of Michigan Law School faculty in 1995."

Anthony's defense team needed to bring on a new attorney because her lead attorney, Jose Baez, is not qualified to try death-penalty cases under state law.

According to a profile published in the Chicago Lawyer magazine in August 2007, Lyon had a perfect record of winning life sentences in each of the capital cases she's taken through the penalty phase, which at that time was 19.

In the magazine profile, Lyon described herself as a "'naturally dramatic person.'" Lyon noted a death-penalty case she tried in which the prosecution filed a motion to preclude her from crying in front of the jury, and also from making the jury cry.

Lyon said she sees the death penalty as a "'failed program,'" the article said. "'It does not deter crime. It costs more, not less,'" Lyon was quoted as saying. "'It doesn't do any of the things it promises to do. If it brought people back to life, I could see the point of it. If it could fix something, I could see the point of it. But it doesn't fix anything. It just makes us all more barbarous.'"

Lyon has a book slated to be published in January titled "Angel of Death Row: My Life as a Death Penalty Defense Lawyer," according to her Web site. "This is my story -- the story of the first woman in the nation to serve as lead attorney on a death penalty case. And it is also the story of my clients -- their lives, not just the acts they were charged with," the Web site states.

May 29, 2009 in Celebrity sentencings | Permalink | Comments (10) | TrackBack

May 28, 2009

Fourth Circuit rejects intriguing arguments against federal child porn conviction

The Fourth Circuit today has an interesting discussion of a variety of issues in an appeal of a federal child porn conviction and sentence in US v. Malloy, No. 08-4136 (4th Cir. May 28, 2009) (available here). Here is the start of the opinion and one section noting some interesting sentencing aspects of the case:

Appellant Michael Malloy challenges his conviction and sentence under 18 U.S.C. § 2251(a) for producing a videotape of himself and another adult having sex with a 14 year-old girl ("S.G."). Among other issues, Malloy contends that the statute is constitutionally infirm unless we interpret it to incorporate a reasonable mistake of age defense. For the reasons that follow, we affirm Malloy’s conviction and sentence....

Although Malloy’s advisory sentencing guidelines range was 324 to 360 months, the court sentenced him to the statutory mandatory minimum of 15 years (180 months). In doing so, the court rejected Malloy’s argument that the mandatory minimum was grossly disproportionate to the crime committed in violation of the Eighth Amendment.

This appeal followed. Malloy presents four issues on appeal: (1) that the district court erred by refusing to allow a reasonable mistake of age defense; (2) that that there was a constructive amendment to the indictment under which he was charged; (3) that § 2251(a) as applied to him was not a valid exercise of Congress’s Commerce Clause power; and (4) that his 15-year mandatory minimum sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment.  We consider each in turn.

May 28, 2009 | Permalink | Comments (11) | TrackBack

Passing prisoners (and the health-care buck) to nursing homes in Ohio

I recently posted here on efforts by state officials in California to divert state prisoners to county jails in order to impose the economic costs of prisoner confinement on to localities.  This story from my local paper, headlined "Nursing homes may get ailing inmates: Prisoners would be in no condition to threaten residents, state says," highlights how state officials in Ohio are trying to pass the economic costs of prisoner confinement in other ways.   Here are the fascinating details:

Besieged by high medical costs and overcrowding, Ohio prison officials are turning to nursing homes to care for inmates who are medically incapacitated or terminally ill.

Few prisoners will be placed in nursing homes, perhaps 20 to 40 statewide, said Michael Randle, assistant director of the Ohio Department of Rehabilitation and Correction. "These are some of the most expensive inmates we have," Randle said. "If they are released as if they are on parole, they will become eligible for Medicaid or Medicare."

Peter Van Runkle, head of a group of nursing-home owners called the Ohio Health Care Association, urged caution in evaluating and screening inmates because of safety concerns and public perception. "We would have to be careful about it, what the person did and what they're capable of doing," he said....

Randle said patients and their families would have nothing to fear because the prisoners essentially would be bedridden. "I understand their concerns," he said. "But the level of incapacitation means these people are not a threat to the public. These are people who are in need of 24-hour-a-day, skilled nursing care. "They're not capable, because of their medical condition, of taking care of themselves or committing a crime."

A law (House Bill 130) that took effect March 6 allows prison officials to submit cases of prisoners who meet medical criteria to the Ohio Parole Board for possible early parole. The board recommendation must be approved by Gov. Ted Strickland as part of the executive clemency process.

There are numerous exclusions: inmates under sentences of death or life without parole, those serving time for aggravated murder, and first- and second-degree felons. The law does not specifically prohibit sex offenders, but they would be banned anyway, Randle said.

That leaves nonviolent offenders serving time on third-, fourth- and fifth-degree felonies and misdemeanors. If an offender recovers while in a nursing home, he or she can be returned to prison....

Prison officials have been struggling with a system that is 32 percent over design capacity and plagued by skyrocketing medical costs. The graying prison population is contributing to the financial stress. While the average age of all inmates is 35, one-third of them are 40 or older and more than 1,300 are 60 or older. The oldest prisoner is 88.

Randle said several nursing-home operators across the state have expressed interest in the parole program. State officials will contact the sentencing judge, prosecutor and crime victim before considering the release of a prisoner to a nursing home, Randle said. If there is opposition, the parole board could conduct a public hearing.

Some related posts:

May 28, 2009 | Permalink | Comments (7) | TrackBack

"Nebraska lawmakers approve lethal injection bill"

The title of this post is the headline of this local article sent my way by a helpful reader.  Here are the specifics:

Nebraska lawmakers approved a bill Thursday that’s designed to give the state the legal means to carry out its death penalty. Governor Dave Heineman signed the bill on Thursday afternoon.

The bill (LB36) would change the state’s method of execution from electrocution to lethal injection. It passed 34-12; three senators didn’t vote.

Nebraska has been without a means of execution since February 2008, when the state Supreme Court ruled the electric chair was unconstitutional because it amounted to cruel and unusual punishment. Nebraska was the only state with electrocution as its sole means of execution. There are 11 men on Nebraska’s death row; the last execution was in 1997....

The Nebraska bill was modeled on a Kentucky law that withstood the scrutiny of the U.S. Supreme Court. The bill doesn’t lay out a procedure for how the death penalty will be carried out. According to the bill, the Department of Correctional Services would be responsible for creating and maintaining execution protocol.

May 28, 2009 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Judge Sotomayor on textualism and voting rights in Hayden v. Pataki

Folks can find lots and lots of interesting SCOTUS nominee Sotomayor blogging on various topics at The Volokh Conspiracy and SCOTUSblog and elsewhere.  Here I will continue to keep the focus on criminal justice issue, while also stressing that a close review of Judge Sotomayor's work in criminal justice cases might provide the best window into her various perspectives on law and judging.

Today I enourage everyone to consider Judge Sotomayor's comments in her one-page separate dissent in the en banc case, Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006), which concerned felon voting rights.  The full Second Circuit opinion is available here and here is the full text of Judge Sotomayor's dissent (which appears on page 100 of the 103-page pdf!):

SOTOMAYOR, Circuit Judge, dissenting.

I join in Judge Parker's dissent, and write this separate opinion only to emphasize one point.  I fear that the many pages of the majority opinion and concurrences — and the many pages of the dissent that are necessary to explain why they are wrong — may give the impression that this case is in some way complex.  It is not.

 It is plain to anyone reading the Voting Rights Act that it applies to all "voting qualification[s]." And it is equally plain that § 5-106 disqualifies a group of people from voting.  These two propositions should constitute the entirety of our analysis.  Section 2 of the Act by its unambiguous terms subjects felony disenfranchisement and all other voting qualifications to its coverage.

The duty of a judge is to follow the law, not to question its plain terms.  I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created.  The majority's "wealth of persuasive evidence" that Congress intended felony disenfranchisement laws to be immune from scrutiny under § 2 of the Act,  Maj. Op. at 322, includes not a single legislator actually saying so.  But even if Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to the results test of § 2, I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it.

I respectfully dissent

If I were told this opinion was from a Supreme Court Justice rather than from a lower court, I would likely guess that it came from the pen of Justice Scalia.  The commitment to textualism reflected in this short opinion in Hayden, not to mention the poke at other judges for adding complexity to an issue she thinks simple, suggests that in some ways we may find that Sotomayor may be a version of Scalia cooked with a Latin salsa instead of Italian gravy.

Prior post on the SCOTUS nomination of Judge Sotomayor:

May 28, 2009 in Who Sentences? | Permalink | Comments (12) | TrackBack

All the news that's fit to link from How Appealing

Thanks to the always terrific How Appealing, I can through links keep up with some interesting criminal justice developments:

Also, among a huge number of How Appealing links to coverage of the new SCOTUS nominee, these particular links caught my eye:

May 28, 2009 | Permalink | Comments (0) | TrackBack

Poll indicates Connecticut voters still strongly support death penalty

This article from the Hartford Courant shows that the people of the Nutmeg State are bigger fans of the death penalty than are the state's legislators, who passed a bill last week to repeal capital punishment in Connecticut: 

By a two to one margin, Connecticut voters once again say the state should keep the death penalty. A Quinnipiac University poll released this morning found that 61 percent support the death penalty, while 34 percent believe it should be replaced with life in prison without the possibility of parole.

The survey of 1,575 registered voters comes on the heels of a historic vote in the legislature to repeal capital punishment in the state. Gov. M. Jodi Rell has vowed to veto the measure. The latest poll is consistent with previous surveys that showed a similar level of support for capital punishment.

And that support holds across party lines: 77 percent of Republicans favor the death penalty as do 50 percent of Democrats and 64 percent unaffiliated voters. "While the Democratically-controlled state legislature passed the bill to eliminate the death penalty, our poll found that Democrats support keeping the death penalty," Doug Schwartz, director of the Quinnipiac poll, said in a statement announcing the results.

By a 68 to 28 percent margin, men want to keep the death penalty, compared with a 55 to 39 percent margin among women.

In an open-ended question, allowing for any answer, 23 percent of Connecticut voters who support the death penalty cited "retribution and or fair punishment" as their primary reason, while 22 percent said the death penalty is needed for "severe or heinous crimes," the poll found.

Among those opposed to the death penalty, 23 percent said their belief is rooted in the conviction that "no one has the right to take a human life.'' Fifteen percent cited "the fear of executing an innocent person." Both of those arguments were listed again and again over the past month, as lawmakers debated abolishing the death penalty.

May 28, 2009 in Death Penalty Reforms | Permalink | Comments (6) | TrackBack

May 27, 2009

Noting early unpublished sentencing opinions from Judge Sotomayor

Alabama law prof David Patton, who was a federal defender in SDNY before heading south, sent me this report on a few unpublished sentencing opinions by Judge Sotomayor from the days before Booker:

I thought I'd point out two unreported sentencing opinions from Judge Sotomayor.

The first, US v. Moreno, 2000 WL 1843232, I find interesting for two reasons 1) it's a good look at her pre-Blakely/Booker take on Apprendi; and 2) it demonstrates a willingness to impose a very severe sentence in a drug case -- using consecutive sentences on multiple counts to do what she could not do directly after Apprendi (imposing a 45 year sentence based mostly on the quantity of crack at issue).

The other, US v. Sheldon, 1997 WL 793050, is a little less flashy, but offers a good look at the thoroughness of her work. In Sheldon she remanded a Magistrate Judge's sentencing on procedural grounds (a rarity) finding that the defendant had not been afforded due process where the Magistrate may have based the sentence on a disputed fact without proper fact-finding.

Prior post on the SCOTUS nomination of Judge Sotomayor:

May 27, 2009 in Who Sentences? | Permalink | Comments (27) | TrackBack

Constitutional criminal procedure doctrine and the force of stare decisis

Wine The import and force of stare decisis is often discussed in the context of Roe and other hot-button non-criminal constitutional rulings.  But, in a fascinating little concurring opinion authored by Justice Alito (which Justice Kennedy joined) in yesterday's ruling in Montejo v. Louisiana, the import and force of stare decisis is discussed in the context of criminal procedure doctrine.  Toward the end of Justice Alito's opinon, he gets in this particularly amusing swipe at the Montejo dissenters' emphasis on stare decisis:

I can only assume that the dissent thinks that our constitutional precedents are like certain wines, which are most treasured when they are neither too young nor too old, and that Jackson, at 23, is in its prime, whereas Belton, at 28, had turned brownish and vinegary.

Though Justice Alito's concurring opinion in Montejo seems mostly intended to call others to task for now finding stare decisis religion, the fundamental story is the Supreme Court's recent work overruling two significant constitutional criminal procedure rulings (both Jackson and Belton).  That reality has me thinking a bit more about whether, descriptively or normatively, stare decisis is of different (and lesser?) nature and force in the arena of constitutional criminal procedure doctrine.

Turning these issues toward sentencing doctrine, I suspect I am not the only sentencing fan who might hope that stare decisis might be given less weight in the arena of constitutional criminal procedure.  For example, I wish the Court might be willing to reconsider its now 60-year-old sentencing due process ruling in Williams v. New York (as well as more recent variations on Williams in McMillian and Watts).  And I suspect some other sentencing fans might want and wish the Supreme Court to be willing to reconsider the much younger rulings like Blakely and Booker.  I have little doubt that different folks have different views as to which constitutional criminal precedents seem now to have turned brownish and vinegary.

May 27, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (10) | TrackBack

Notable Tenth Circuit ruling on restitution awards under the MVRA

The Tenth Circuit has a significant ruling today concerning restitution awards in US v. Dolan, No. 08-2104 (10th Cir. May 27, 2009) (available here).  Here is the start of the opinion:

Brian Dolan viciously attacked a hitchhiker, leaving his victim by the side of the road bleeding, unconscious, with a great many broken bones.  Eventually, officers found the hitchhiker and rushed him to a hospital.  He survived, but his medical expenses topped $100,000. When it came time to sentence Mr. Dolan for his assault, the district court ordered him not only to serve 21 months in prison but to pay $250 monthly in restitution.  Before us, Mr. Dolan doesn’t challenge his prison sentence but does say his victim should get nothing. He contends that the district court’s restitution order is void because it was entered too late, after a statutory deadline passed. Even if the district court had the power to enter an untimely restitution award, Mr. Dolan argues, $250 per month is more than he can afford.

We reject both arguments. The district court’s restitution order was undoubtedly late, coming after the deadline prescribed by the Mandatory Victims Restitution Act.  But a tardy restitution order is not an invalid one. Rather than creating a jurisdictional bar to untimely restitution orders, the MVRA’s deadline seeks to prod the government into ensuring victims swift compensation. Sometimes, of course, the government is not so easily prodded. When that happens — when the MVRA’s deadline passes without a restitution order entered — the affected victim may well have cause to complain, and may even seek a mandamus order compelling action.  But the defendant does not get off the hook. Neither can we say that the district court abused its discretion in pegging Mr. Dolan’s monthly restitution payments at $250, given the record before us.

May 27, 2009 in Criminal Sentences Alternatives | Permalink | Comments (0) | TrackBack