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June 6, 2009

"Luck or Law? The Constitutional Case Against Indeterminate Sentencing"

The title of this post is the title of this provocative new abstract by Professor Dan Markel now up at at SSRN.  Here is the abstract:

In the majority of states indeterminate sentencing schemes prevail — under which the decision for whether a person serves anywhere from one year to a life in prison for a given crime is left largely to the unfettered discretion of a judge.  Indeed, ever since the Supreme Court decided Booker v. United States and thereby rendered the federal sentencing guidelines “effectively advisory,” many state courts have read Booker to lend an imprimatur upon their indeterminate sentencing schemes.  Thus, in many jurisdictions, virtually no restraints upon judicial and/or executive discretion exist to ensure that similarly situated offenders convicted of similar criminal conduct will, within the same sovereign jurisdiction, receive punishments that are roughly similar to each other.

This Article examines the case for, and the implications of, a finding that indeterminate sentencing schemes are impermissible under the federal Constitution.  Looking at the history of the Framing Period and selected areas of the Supreme Court’s jurisprudence over the last forty years, this Article explicates the constitutional restraints on arbitrary and/or discriminatory distributions of penalties, and finds little persuasive basis for the continued survival of indeterminate sentencing schemes.  To the extent the Supreme Court is reluctant, as a matter of institutional competence, to make that finding explicit, the Article urges legislators at the federal and state levels to shoulder their co-equal burden of implementing the Constitution’s commitment to restraining the random, arbitrary, or discriminatory imposition of substantial punishment.

I look forward to getting a chance to read Dan's full article, though I am a bit troubled by his use of the term "indeterminate sentencing" for what I think ought to be called "discretionary sentencing."  Most (though not all) sentencing folks use the term "indeterminate sentencing" to describe sentences that include the possibility of later parole, but I do not think that is what Dan means to reference in his criticisms of what most describe as "discretionary sentencing." 

June 6, 2009 in Sentences Reconsidered | Permalink | Comments (13) | TrackBack

Manson family member still seeking parole 40 years later

This new report from CNN provides the latest interesting sentencing news concerning a defendant involved in one of the most famous crime sprees in history:

The woman who stabbed pregnant actress Sharon Tate to death will be considered for parole from prison a month after the 40th anniversary of the killings that cast a shadow of fear over southern California. Susan Atkins, 61, has been denied parole in 17 previous hearings, but the former "Manson Family" member now is terminally ill with brain cancer and is paralyzed.

Charles Manson used his hypnotic powers to direct Atkins and other "family" members to kill seven people, including the pregnant Tate, in a two-night rampage that terrorized the city of Los Angeles, California, in August 1969..... In July of last year, Atkins — California's longest-serving female inmate — was denied a compassionate release in a unanimous decision by the California Board of Parole Hearings. She has repeatedly been described as a model prisoner who has accepted responsibility for her role in the slayings, and she now shuns Manson.

By her own admission, Atkins held Tate down as she pleaded for mercy and stabbed the pregnant woman 16 times. In a 1993 parole board hearing, Atkins said Tate "asked me to let her baby live. ... I told her I didn't have any mercy on her." After stabbing Tate to death, according to historical accounts of the murders, Atkins scrawled the word "pig" in blood on the door of the home Tate shared with her husband, director Roman Polanski.  Polanski was not home at the time, but three of Tate's house guests were also slain by the killers, as was a teenager who was visiting the home's caretaker in his nearby cottage.

A Web site maintained by her husband and attorney, James Whitehouse, says Atkins is now paralyzed over 85 percent of her body and cannot sit up in bed or even be moved into a wheelchair.  However, despite her declining condition and her impressive prison record, the site says, "there is still a very real chance the Parole Board will nonetheless insist her release would be a danger to society."

Atkins' compassionate release was opposed by Tate's sister, Debra, Los Angeles County prosecutors and California Gov. Arnold Schwarzenegger, among others.  However, the former prosecutor who won her conviction, Vincent Bugliosi, said he supports Atkins' request for release. "She has paid substantially, though not completely, for her horrendous crimes," Bugliosi told the Los Angeles Times last year....

Debra Tate told CNN in an e-mail in March that she does not believe any Manson family member convicted of murder should ever be set free, saying the slayings were "so vicious, so inhumane, so depraved, that there is no turning back." "The 'Manson Family' murderers are sociopaths, and from that, they can never be rehabilitated," Debra Tate said. "They should all stay right where they are — in prison — until they die. There will never be true justice for my sister Sharon and the other victims of the 'Manson Family.'  Keeping the murderers in prison is the least we, as a society who values justice, can do."...

Manson and those convicted along with him in the murders — Atkins, Patricia Krenwinkel, Leslie Van Houten and Charles "Tex" Watson — have been in California prisons for more than three decades. All were initially sentenced to death, only to have their sentences commuted to life in prison when the Supreme Court struck down death penalty laws in 1972, establishing a four-year moratorium on executions. Van Houten was released for six months after her conviction was overturned, but was reconvicted.

June 6, 2009 in Sentences Reconsidered | Permalink | Comments (1) | TrackBack

"U.S. May Permit 9/11 Guilty Pleas in Capital Cases"

The title of this post is the headline of this article in today's New York Times. Here are a few highlights from an article that highlights the fascinating interplay of capital punishment and plea practicies:

The Obama administration is considering a change in the law for the military commissions at the prison at Guantánamo Bay, Cuba, that would clear the way for detainees facing the death penalty to plead guilty without a full trial.

The provision could permit military prosecutors to avoid airing the details of brutal interrogation techniques.  It could also allow the five detainees who have been charged with the Sept. 11 attacks to achieve their stated goal of pleading guilty to gain what they have called martyrdom.

The proposal, in a draft of legislation that would be submitted to Congress, has not been publicly disclosed. It was circulated to officials under restrictions requiring secrecy.  People who have read or been briefed on it said it had been presented to Defense Secretary Robert M. Gates by an administration task force on detention.

The proposal would ease what has come to be recognized as the government’s difficult task of prosecuting men who have confessed to terrorism but whose cases present challenges.  Much of the evidence against the men accused in the Sept. 11 case, as well as against other detainees, is believed to have come from confessions they gave during intense interrogations at secret C.I.A. prisons.  In any proceeding, the reliability of those statements would be challenged, making trials difficult and drawing new political pressure over detainee treatment.

Some experts on the commissions said such a proposal would raise new questions about the fairness of a system that has been criticized as permitting shortcuts to assure convictions.  David Glazier, an associate professor at Loyola Law School in Los Angeles who has written about the commission system, said: “This unfortunately strikes me as an effort to get rid of the problem in the easiest way possible, which is to have those people plead guilty and presumably be executed.  But I think it’s going to lack international credibility.”

The draft legislation includes other changes administration officials disclosed last month when President Obama said he would continue the controversial military commission system with changes that would increase detainees’ rights.  It is not known whether the White House has approved the proposed death penalty provision.  A White House spokesman declined to comment.

The provision would follow a recommendation of military prosecutors to clarify what they view as an oversight in the 2006 law that created the commissions.  The law did not make clear if guilty pleas would be permitted in capital cases.  Federal civilian courts and courts in most states with capital-punishment laws permit such pleas.

But American military justice law, which is the model for the military commission rules, bars members of the armed services who are facing capital charges from pleading guilty. Partly to assure fairness when execution is possible, court-martial prosecutors are required to prove guilt in a trial even against service members who want to plead guilty.

June 6, 2009 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

June 5, 2009

Governor Rell officially vetoes effort to repeal Connecticut's death penalty

Living up to her promise, Connecticut's Gov. Jodi Rell vetoed legislation that would have abolished the death penalty.  This AP story provides the basics, and her statement on the veto is available at this link. Here are a few excerpts from her statement:

As I have stated previously, I understand and sympathize with the anguish and pain of those families who have lost a loved one due to a cruel and heinous crime. These are the crimes forever embedded in our minds, haunting us long after they have been committed. They cause us to lose our innocence relative to the world around us. The death penalty is, and ought to be, reserved for those who have committed crimes that are revolting to our humanity and civilized society.

The death penalty sends a clear message to those who may contemplate such cold, calculated crimes. We will not tolerate those who have murdered in the most vile, dehumanizing fashion. We should not, will not, abide those who have killed for the sake of killing; to those who have taken a precious life and shattered the lives of many more....

There is no doubt that the death penalty is a deterrent to those who contemplate such monstrous acts. The statistics supporting this fact, however, are not easily tabulated.  How do we count the person who considered the consequences of the crime and walked away?  We cannot, but we know that this occurs. We have a responsibility to act to prevent these heinous crimes and to ensure that criminals will not harm again.

I also take note of the concerns expressed by some regarding the tremendous financial cost to the state, the perception that the death penalty is inconsistently sought for certain crimes, the lengthy appellate process that is involved and the roles that race, gender and economics play when seeking the death penalty.

These very questions, and more, were the basis of a death penalty study commissioned by P.A. 01-151 and analyzed in a comprehensive report submitted to the Legislature on January 8, 2003. The report made significant and thoughtful recommendations that have been largely ignored by the Legislature, including training for public defenders and prosecutors. The goal of the report is to ensure that each decision to seek the death penalty is based upon the facts and law applicable to the case and is set within a framework of consistent and even-handed application of the sentencing laws, with no consideration of arbitrary or impermissible factors such as the defendant’s race, ethnicity or religion.

The co-chairmen of the legislature’s Judiciary Committee have asked that I submit a proposal for “fixing” the death penalty statute. I believe that the current law is workable and effective and I would propose that it not be changed. If the co-chairmen are seeking suggestions, however, I would urge them to review the above-referenced report, which has been largely ignored since its issuance.

June 5, 2009 | Permalink | Comments (10) | TrackBack

The challenging economics of death causing problems in Chicago

This local public radio segment from Chicago, headlined "State's Attorney Will Continue Seeking Death Penalty," provides a windy city perspective of the challenges of death penalty administration during tight economic times. Here is the lead in to the segment:

Prosecutors in Cook County say they will continue seeking the death penalty. That's in response to a request from the public defender's office to take the option of capital punishment off the table. The public defender says his office has run out of money used specifically to defend clients facing the death penalty. Sally Daly is with the state's attorney's office. She says a lack of money is no reason to change the judicial process.

Some recent related posts on the costs of capital punsihment:

June 5, 2009 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Noting differences in sentences for intra- and extra-family sex abuse

This local article from Minnesota, headlined "Justice is unequal in sex abuse: Those who molest family members get lighter sentences than outsiders, data show," documents a sentencing story that I suspect is not uncommon in most jurisdictions.  Here areis how the effective (and long) article starts:

A young woman in Hennepin County accuses her father of sexually abusing her since she was 12 and impregnating her at age 18. A 13-year-old Ramsey County girl tells a school counselor that her father had been touching her while her mother was in the hospital. A 15-year-old Anoka County boy reports to police that his stepfather, convicted of a sex offense years earlier, committed sex acts with him, once in exchange for help with a video game.

In each case, Minnesota sentencing guidelines called for a seven-year or 12-year prison sentence. Instead, each defendant pleaded guilty and was sentenced to a year or less in jail and a long probation.

Such lighter sentences are given more often to defendants abusing children in their own families or households than to those who abuse outside their families, a Star Tribune analysis of nearly 1,500 child sex abuse cases shows.

From 2001 to 2007, 33 percent of family or household child sex abuse defendants facing prison time ended up with probation, compared with 26 percent of those abusing outside their families. In the most serious cases where victims were between 13 and 15 years old, the difference was even greater: 37 percent versus 24 percent.

That sentencing disparity troubles some legislators and advocates for victims. "It's really unfortunate because ... girls and boys who have experienced incest are somehow valued less than girls and boys who have experienced abuse at the hands of neighbors and coaches and teachers and other people," said Elizabeth Saewyc, a nursing professor in Canada who studies abuse victims in research with Children's Hospital of St. Paul.

Even family members who initially agreed to lighter sentences for abusers -- to protect children from having to testify or to keep a family wage earner working -- sometimes come to feel probation sentences aren't enough as they watch the effect of abuse on the child victim play out for years.

But others in the justice system say family relationships make the cases extra difficult to prosecute. Sending a defendant to treatment with decades of probation is still a tough penalty and often right for the family in the long run, they say. "When you come down to trying to figure out what to do with these cases, you have to get realistic and you have to be pragmatic," said Pat Diamond, deputy Hennepin County attorney.

June 5, 2009 in Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Will Judge Sotomayor make SCOTUS less friendly to criminal defendants?

The question of this post is prompted by the this new article from the Wall Street Journal, which is headlined "Nominee's Criminal Rulings Tilt to Right of Souter."  Here are excerpts:

While Judge Sonia Sotomayor stands in the liberal mainstream on many issues, her record suggests that the Supreme Court nominee could sometimes rule with the top court's conservatives on questions of criminal justice. 

She "has contributed greatly to law enforcement in New York" as a judge, said Leroy Frazer Jr., first assistant district attorney in Manhattan and a former colleague of Judge Sotomayor.  After Yale Law School, Judge Sotomayor joined the Manhattan district attorney's office. She spent five years at the office, and handled high-profile murder and child-pornography cases.  New York criminal-defense lawyers say she is surprisingly tough on crime for a Democratic-backed appointee -- a byproduct, they believe, of her tenure as a prosecutor.

"The reputation of Sotomayor was that sentencing was not an easy ride," says Gerald Shargel, a criminal-defense attorney. In a 1997 trial, Mr. Shargel asked Judge Sotomayor to show leniency in sentencing William Duker, a prominent New York lawyer who had pleaded guilty to overbilling the government.  Mr. Shargel wanted Mr. Duker to be sent to an alcohol treatment program, in lieu of prison. The judge, however, sentenced the attorney to 33 months in prison, in line with the federal sentencing guidelines.

Following recent Supreme Court precedent, Judge Sotomayor tends to see relatively few grounds to overturn criminal convictions, says John Siffert, a New York attorney who taught an appellate advocacy class with the judge at New York University School of Law from 1996 to 2006.  On the trial bench, he says, "she was not viewed as a pro-defense judge."

To be sure, Judge Sotomayor has at times shown leniency toward criminal defendants. In 2001, after she had become an appellate-court judge, she agreed to preside over the drug-conspiracy trial of Sandra Carter.  The jury convicted Ms. Carter, but Judge Sotomayor sentenced her to six months in prison, far below the term that she could have drawn under the sentencing guidelines, says Edward O'Callaghan, the prosecutor in the case.  Judge Sotomayor, he says, took into account the fact that the defendant was a first-time offender who made far less money than other conspiracy participants.

Michael Bachner, a New York defense lawyer who has handled trials and appeals before Judge Sotomayor, senses a divide in her criminal jurisprudence. She can be "very tough" on white-collar defendants from privileged backgrounds, but is "more understanding of individuals who grew up in a tougher circumstance."

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

June 5, 2009 in Who Sentences? | Permalink | Comments (11) | TrackBack

June 4, 2009

Interesting materials from the hearing surrounding impeachment of Judge Kent

Anyone following the sad saga of the crimes and punishment of former federal Judge Sam Kent will want to check out some of the materials linked at this House Judiciary website relating to yesterday's "Hearing to Consider Impeachment of Samuel B. Kent of the Southern District of Texas." Of particular note are the statements from the victims of Kent's sexual misconduct here and here.

Based on the victim's accounts of the crimes they endured, I continue to believe that federal prosecutors and the federal sentencing judge went much too easy on this repeat sexual offender.

Related posts on the Kent proceedings:

June 4, 2009 | Permalink | Comments (0) | TrackBack

If you enjoy conversing about criminal law...

Clc be sure to get yourself a copy of this new publication from Oxford University Press, Criminal Law Conversations.  This book, to which I contributed a chapter and some additional commentary, was put together skillfully by Professors Paul Robinson, Stephen Garvey, and Kimberly Ferzan.  Here is the publisher's description of the effort:

Criminal Law Conversations provides an authoritative overview of contemporary criminal law debates in the United States.  This collection of high caliber scholarly papers was assembled using an innovative and interactive method of nominations and commentary by the nation's top legal scholars.  Virtually every leading scholar in the field has participated, resulting in a volume of interest to those both in and outside of the community.  Criminal Law Conversations showcases the most captivating of these essays, and provides insight into the most fundamental and provocative questions of modern criminal law.

June 4, 2009 | Permalink | Comments (10) | TrackBack

"Judge jails woman until baby is born"

A helpful reader pointed me to this fascinating article that bears the headline that is the title of this post.  Here are the particulars:

A woman from the African nation of Cameroon could give birth in a federal prison because she is HIV-positive. U.S. District Judge John Woodcock last month sentenced Quinta Layin Tuleh, 28, to 238 days in federal prison for having fake documents. Woodcock said the sentence would ensure that Tuleh’s baby, due Aug. 29, has a good chance of being born free of the AIDS virus.

Both the federal prosecutor and the defense attorney urged the judge to sentence Tuleh to 114 days, or time served, according to a transcript of the sentencing hearing. Woodcock instead ignored the federal sentencing guidelines and calculated her sentence to coincide with her due date.  Federal prosecutors have appealed the sentence to the 1st U.S. Circuit Court of Appeals in Boston. The court has agreed to deal with the case on an expedited schedule and could hear oral arguments in late July.

Woodcock told Tuleh at her sentencing on May 14 in U.S. District Court that he was not imposing the longer prison term to punish her further but to protect her unborn child.  He said that the defendant was more likely to receive medical treatment and follow a drug regimen in federal prison than out on her own or in the custody of immigration officials. The judge also said that his decision was based entirely on her HIV status.  If Tuleh were pregnant but not infected with the AIDS virus, he would have sentenced her to time served.

The Maine Civil Liberties Union criticized Woodcock’s decision when informed of it by the Bangor Daily News. “We are enormously sympathetic to the desire to ensure that Ms. Tuleh receives adequate health care, including prenatal care,” Zachary Heiden, legal director for the MCLU, said in an e-mail. “Federal immigration law has developed in truly arbitrary and punitive ways.  Here, even a federal judge could not get assurances that Ms. Tuleh would not be deported before the end of her pregnancy.  He could not get assurances she would not have her medical care arbitrarily cut off. That is wrong.

“Judges cannot lock a woman up simply because she is sick and pregnant,” he said. “Judges have enormous discretion in imposing sentences, and that is appropriate.  But jailing someone is punishment — it is depriving them of liberty. That deprivation has to be justified, and illness or pregnancy is not justification for imprisonment.”

The reader who sent this story my way added these astute comments: "The judge's rationale for the extended sentence seems to fly in the face of 3553(a), as well as the statute that states that judges shouldn't incarcerate for the sake of rehabilitation. It is also striking that the government is appealing the sentence as too long." 

Because I am not familiar with all the facts, I am inclined to withhold judgment about whether this sentence flies in the face of 18 USC 3553(a).  After all, 3553(a)(2)(D) does require a judge the consider the need for the sentence imposed "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner."

June 4, 2009 in Offender Characteristics | Permalink | Comments (15) | TrackBack

NRA quickly petitions SCOTUS for Second Amendment incorporation

As detailed in this post at SCOTUSblog, only one day "after losing a major test case in an appeals court on the scope of the Second Amendment, the National Rifle Association — the nation’s leading advocate of personal gun rights — asked the Supreme Court on Wednesday to apply the Amendment to state, county and city government laws that seek to regulate firearms."  The NRA's cert. petition can be accessed at this link (via The Volokh Conspiracy), and here are a few notable snippets:

The First, Second, and Fourth Amendments all refer to “the right of the people” to do certain things or be free from certain governmental restraints.  The Second Amendment has a purpose clause clarifying that exercise of the right makes possible a well regulated militia, which is “necessary to the security of a free state.”

There is a strong presumption that an explicitly-guaranteed substantive right is fundamental....

Heller held as a matter of law that “the inherent right of self-defense has been central to the Second Amendment right.” 128 S. Ct. at 2817.  The right to have arms allows one to protect life itself, and the Second Amendment declares its purpose to be “the security of a free state.”...

“A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.” Duncan, 391 U.S. at 155-56.  The Second Amendment also prevents oppression: “when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.” Heller, 128 S. Ct. at 2801....

The Second Amendment does not represent an inferior right which a court may subjectively relegate as beneath the usual rules of incorporation.  “To view a particular provision of the Bill of Rights with disfavor inevitably results in a constricted application of it.  This is to disrespect the Constitution.” Ullmann v. United States, 350 U.S. 422, 428-29 (1956).  No constitutional right is “less ‘fundamental’ than” others, and “we know of no principled basis on which to create a hierarchy of constitutional values . . . .”  Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 484 (1982).

I am pleased to see the NRA move so quickly and aggressively to encourage the Supreme Court to take up and resolve whether the Second Amendment applies to the states.  But all this strong language in the cert petition makes my again annoyed and troubled that the NRA and other Second Amendment fans have been so slow and passive in response to post-Heller rulings that have rejected gun rights for nearly everyone ever convicted of a crime.

Obviously, one does not completely and permanently lost all their First or Fourth Amendment rights, or their rights to a jury trial, just because one is convicted of any felony or the wrong type of misdemeanor.  But, since Heller, courts have regularly upheld federal gun possession convictions for all felons and certain misdemeanants.  And, to my knowledge, neither the NRA nor other Second Amendment groups have expressed one bit of concern about these developments. 

The NRA in this cert petition asserts that the "Second Amendment does not represent an inferior right." But the NRA's own unwillingness to raise concerns about the denial of this right to those who are politically unpopular (i.e., those convicted of any crime, even non-violent crimes) reveals to me that even the NRA and other gun groups feel compelled to concede that the Second Amendment is an inferior right to other rights protected by the Constitution.

Some related Second Amendment posts:

June 4, 2009 in Second Amendment issues | Permalink | Comments (11) | TrackBack

"Fairness and the Willingness to Accept Plea Bargain Offers"

The title of this post is the title of this new article that is soon to be published in the Journal of Empirical Legal Studies.  Here is the abstract:

In contrast with the common assumption in the plea bargaining literature, we show fairness-related concerns systematically impact defendants' preferences and judgments. In the domain of preference, innocents are less willing to accept plea offers (WTAP) than guilty defendants and all defendants reject otherwise attractive offers that appear comparatively unfair.  We also show that defendants who are uncertain of their culpability exhibit egocentrically biased judgments and reject plea offers as if they were innocent.  The article concludes by briefly discussing the normative implications of these findings.

June 4, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Examining Judge Sotomayor's years as a New York state prosecutor

This morning's Washington Post has this interesting article on Judge Sotomayor's early work as a lawyer headlined "Gritty First Job Shaped Nominee; Years as N.Y. Prosecutor Gave Sotomayor Firsthand Look at Crime and Punishment." Here are snippets:

The five years Sotomayor spent in the Manhattan district attorney's office, say several friends and colleagues, shaped her as a criminal prosecutor and helped form her worldview as a judge. The experience, combined with her later years as a trial judge, would make her unique among her new colleagues at the Supreme Court should she be confirmed and would bring a firsthand exposure to the court's consideration of criminal procedure and sentencing.

As a federal judge for 17 years at the district and circuit court levels, Sotomayor has written thousands of opinions, which now are receiving renewed scrutiny. The early examinations tell little about her jurisprudence on capital punishment, because it is rarely imposed in the states covered by the Court of Appeals for the 2nd Circuit, but so far have shown her as a middle-of-the-road jurist who, like most judges, rules most often in favor of the prosecution.

"She toes the line in terms of following what the law is, and in that respect [her opinions] come out as more pro-government," said Ellen S. Podgor, a law professor at Stetson University who has reviewed about 100 of Sotomayor's appellate rulings in white-collar cases....

Over time, Sotomayor saw that both the victims and the defendants in her cases were coming from poor neighborhoods. "I had more problems during my first year in the office with the low-grade crimes -- the shoplifting, the prostitution, the minor assault cases," she told a writer for the New York Times in 1983. "In large measure, in those cases you were dealing with socioeconomic crimes, crimes that could be the product of the environment and of poverty. Once I started doing felonies, it became less hard. No matter how liberal I am, I'm still outraged by crimes of violence."

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

June 4, 2009 in Who Sentences? | Permalink | Comments (3) | TrackBack

June 3, 2009

Two notable new death penalty papers

These two new papers from SSRN concerning the death penalty look worthy of some attention:

Science and the Death Penalty: DNA, Innocence, and the Debate over Capital Punishment in the United States by Jay Aronson & Simon A. Cole

Abstract: The death penalty debate in the United States has recently undergone a fundamental shift. The possibility of executing the innocent has emerged as some abolitionists’ most salient argument, displacing debates over such issues as fairness, deterrence, and cost. Innocence has managed to move to the fore of the debate in part because of the epistemological certainty attached to one particular kind of postconviction exoneration, one vouched for by the authority of DNA evidence.  We suggest that such rhetorical moves draw upon the epistemic authority of science as lever with which to challenge law’s claims to truth-making authority.  A few abolitionists and other scholars have expressed misgivings about the abolitionist embrace of the innocence argument. We push this concern further, suggesting that both abolitionists and death penalty reformers, who seek to promote a “scientific” death penalty centered on DNA evidence, draw upon a mythologized notion of “science” as a producer of epistemic certainty. Paradoxically, this association of science with certainty is inconsistent with contemporary notions of science as characterized by efforts to measure, manage, but always acknowledge, uncertainty.

The Deterrent Effect of Expansions in Death Penalty Eligibility Criteria by Michael Frakes & Matthew Harding

Abstract: Homicides must possess certain characteristics before they become eligible for capital punishment. Over the last several decades, virtually every state has added to its list of possible eligibility criteria. We draw on this rich set of eligibility-law variation to identify the deterrent effects ensuing from expansions in the reach of capital punishment.  Eligibility expansions may deter future homicides through two channels: (1) by paving the way for more death sentences and executions and (2) by providing prosecutors with greater leverage to secure enhanced sentences (capital or non-capital). The former channel is only rarely implicated, confounding the ability to identify deterrent forces.  The latter channel, on the other hand, is likely to be triggered on a fairly common basis.  We focus on the provision most responsible for the within-state variation in eligibility laws and estimate that the adoption of a law making child murders specifically eligible for capital punishment is associated with an approximately 19% reduction in the rate of homicides of youth victims.  In two key falsification exercises, we find no evidence to suggest that this estimate is reflective of a differential trend between treatment and control states that originated in the period prior to the eligibility expansions and we estimate no corresponding association between child-murder eligibility laws and adult homicide rates.  We estimate deterrence findings of similar magnitude when we turn to the estimation of an empirical specification that draws on variations in the full set of eligibility criteria and that parameterizes general eligibility statutes using a simulated measure of the propensity of each state to extend capital eligibility to a given murder. However, the findings of this general deterrence investigation are relatively noisy and are not robust to the exclusion of the child-murder factor from the simulation analysis.

June 3, 2009 in Death Penalty Reforms | Permalink | Comments (5) | TrackBack

"Probation for Michigan official in sidewalk sex"

The title of this post is the headline of this local story. Here are the particulars:

A married Oakland County official who police say was caught having sex with another woman on a sidewalk in the Detroit suburb of Novi has been sentenced to two years' probation.

District Judge Dennis Powers on Wednesday also ordered 56-year-old Kim Capello to perform 50 hours of community service and undergo intensive outpatient substance-abuse counseling. Capello pleaded guilty to indecent exposure. The misdemeanor charge may be dismissed if he successfully completes his sentence.

Police say officers on April 18 found an unclothed man and woman apparently having sex against a wall. The couple said they'd been drinking.  The Republican county commissioner said Wednesday in court he was urinating and not having sex.

This additional local coverage provides even more of the explanation of how urinating and having sex might be confused in this sentencing setting.

June 3, 2009 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

A "bleg" for information about crazy-long prison sentences for white-collar criminals

A Forbes reporter contacted me in her effort to "compile a list of longest federal sentences for white-collar criminals, specifically financial criminals."  I told her that I was not aware of any such list, but that I was willing to ask around via this forum. So, here is how the reporter, who can be reached via this e-link, described what she is seeking:

Looking for information/stories on long federal prison sentences given those convicted of white collar crimes, specifically financial crimes. Time frame I'm looking at is 1985 to the present. And by long, I mean way beyond normal, like 330 years for a $56 million investment scam.

June 3, 2009 in White-collar sentencing | Permalink | Comments (10) | TrackBack

California appellate court upholds 27-year three-strikes sentence for DUI offense

A helpful reader, perhaps aware of my concern that many drunk drivers do not get harsh enough sentences, forward to me this local article from California reporting on the affirmance of a very harsh DUI sentence.  Here are some of the details:

A state appellate court has upheld a long sentence for a Lincoln man convicted of driving under the influence. Jeffrey Charles Wren, 38, of Lincoln, had appealed a 27-year sentence for DUI after his conviction in 2008 by a Placer County jury.

A Placer County prosecutor, however, says that though the sentence is severe, it is proper. Wren has a long record of criminal offenses and DUI convictions. He was given the long prison stretch under the state's "three-strikes" felony sentencing guidelines. "Based on his repeated criminal conduct, he posed a great danger to society with his drinking and driving," said Todd Kuhnen, Placer County deputy district attorney.

Wren argued that one of two previous strikes on his criminal record should not be counted and that the long prison sentence was unconstitutional because it represented cruel and unusual punishment for drunken driving.  But the Third District Court of Appeal stated in its opinion that Wren had three prior convictions for DUI, that he was out on bail when his last offense occurred and that he was convicted in 1991 on two felony counts of child molestation.

A news release from the Placer County District Attorney's Office recounted Wren's lengthy record, starting with a 1992 incident where he was found drunk in the restroom of a Folsom restaurant, a loaded gun in his pocket. While that case was pending, he violated probation by fleeing the state. Wren then was apprehended in 1995 in Montana for DUI and received an eight-year prison sentence. In 2000 he failed to register as a sex offender and in the next two years violated parole for alcohol-related reasons. He also was convicted of DUI in 2003, 2004 and 2006. In 2006 he was arrested on a felony charge of possessing methamphetamine. He was free on bail when he was arrested by the California Highway Patrol near Lincoln for driving under the influence.

With three prior DUI convictions within 10 years, the new charge was a felony.  Also, his prior strikes made him subject to the three-strikes law and a candidate for a 25-years-to-life prison sentence.

The full opinion from the Third District Court of Appeal, which discusses California's standards for "a defendant who wishes to showthat a sentence is cruel or unusual under the state Constitution," can be found at this link.

June 3, 2009 in Scope of Imprisonment | Permalink | Comments (10) | TrackBack

Fifth Circuit rebukes effort to give a lot more bite to reasonableness review

The Fifth Circuit has just released an important little opinion in in US v. Duarte, No. 08-50902 (5th Cir. June 1, 2009) (available here). The ruling covers a lot of important ground in only a few pages, and here are some of the most notable passages:

Citing language from the Supreme Court’s judgment in Kimbrough that highlighted a lack of empirical support for crack versus powder cocaine sentencing disparities as a factor supporting the district judge’s discretionary downward departure in that case, Duarte claims that an examination of a Sentencing Guideline’s empirical basis is now indispensable before appellate courts can apply a presumption of reasonableness to within-Guidelines sentences imposed by district judges.  In essence, Duarte asks us to remove the presumption of reasonableness as to this and other allegedly non-empirically-grounded provisions of the Guidelines....

Duarte argues with some force that the sixteen-level enhancement provided for illegal re-enterers who commit certain crimes can lead to excessive sentences for some defendants. He does not, however, point to any law suggesting how this possibility of unjust sentences  — a persistent possibility under any system of sentencing and, more to the point, under any form of appellate review of sentencing — gives us authority to overturn the presumption of reasonableness that this court applies to within-Guidelines sentences.

Intervening Supreme Court guidance, of course, could provide an avenue for our panel to revisit court precedent, but Duarte rests too much on the thin reed of Kimbrough, particularly reading Kimbrough in light of Rita, which expressly approves circuit courts’ presumption of reasonableness for Guidelines sentences.  It is true that the Kimbrough Court “recognized that certain Guidelines do not take account of empirical data and national experience,” but absent further instruction from the Court, we cannot read Kimbrough to mandate wholesale, appellate-level reconception of the role of the Guidelines and review of the methodologies of the Sentencing Commission.  Whatever appropriate deviations it may permit or encourage at the discretion of the district judge, Kimbrough does not force district or appellate courts into a piece-by-piece analysis of the empirical grounding behind each part of the sentencing guidelines.  To the contrary, rather than aggrandizing appellate courts and sanctioning analysis from on high, the thrust of recent Supreme Court decisions has been to affirm the traditional entrustment of sentencing to the discretion of district courts, close to the ground and more cognizant of the details of offender and offense that should be determinative of sentence.  Indeed, the very district court cases that Duarte cites in his critique of the re-entry sentencing guidelines are exemplary of how district courts use their discretion to apply guidelines to particular facts.

June 3, 2009 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

"Restorative Justice and Child Sex Offences: The Theory and the Practice"

The title of this posts is the title of this recent article from the British Journal of Criminology, which is now available here via SSRN.  Here is the abstract:

Restorative justice advocates have made a number of claims about the effectiveness of restorative justice in relation to sexual assault crimes, such as its ability to defuse power relations between the parties and heal the harm.  This article examines whether or not restorative justice is one of the ways forward in the difficult area of prosecuting child sex offences by re-analysing some of the data reported in Daly (2006) and comparing restorative justice with other reforms to the sexual assault trial.  It concludes that there is insufficient evidence to support the view that there are inherent benefits in the restorative justice process that provide victims of sexual assault with a superior form of justice.

June 3, 2009 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Guest post: "The Uses of Revenge, Redux"

A colleague, W. David Ball, wrote me an interesting e-mail that I asked him to tweak into a guest post.  Here is what he sent my way:

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The Uses of Revenge, Redux

Last week, the ALI voted to withdraw Section 210.6 of the Model Penal Code — the section which provides a framework for the imposition of the death penalty — because of the "current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment."  This decision gave me occasion to revisit Anders Walker's excellent article (posted here a few months ago) about Herbert Wechsler, the Reporter of the first Model Penal Code: American Oresteia: Herbert Wechsler, the Model Penal Code, and the Uses of Revenge.  What I found particularly fascinating was the idea that Wechsler, himself a utilitarian, nevertheless saw some benefit in retributivism: it satisfied the public's nature for revenge in a way that prevented the "degredation of criminal codes."  Wechsler specifically thought that keeping the death penalty in a criminal code "had utilitarian value for criminal law, if for no other reason then as a prophylactic against legislative backlash."

After a particularly heinous crime, the availability of the death penalty created a kind of safety valve for popular outrage.  But

"[I]n an abolition situation, what you have is an outraged populace turning to the Legislature and denouncing the law and a very real danger that you may end up worse off than you started.”  Wechsler’s allusion to being “worse off” alluded to the corruption of criminal codes that occurred when elected representatives got votes by promising to boost sentences and invent new crimes. To him, this degradation of criminal codes had little to do with the inherent nature of the legislative process, but a great deal to do with popular desires for revenge stoked by liberal attempts to cabin popular will (internal citations omitted).

It is interesting, then, that yesterday the California Supreme Court affirmed Richard Allen Davis's death sentence.  Davis — better known as Polly Klaas's killer — was responsible for the crime that "became the catalyst for California's "three strikes" law."  Wechsler's theory, then, fails to account for perhaps the most punitive response to a sensational crime in the last 50 years: even though Davis got the death penalty, the public demanded — and got — a much more punitive criminal code.  And yet I can't help but think that there's something to Wechsler's theory (or perhaps just Walker's writing). 

So was Wechsler just wrong?  Have times changed?  Are we that much more manipulable — or bloodthirsty — now?   Please share your thoughts in the comments.

June 3, 2009 in Death Penalty Reforms | Permalink | Comments (8) | TrackBack

June 2, 2009

A (significant?) uptick in below-guideline sentences in latest data run from USSC

The US Sentencing Commission has some notable new sentencing data now up on its website. The USSC's latest data report, which can be accessed here, is described this way:

Second Quarter FY09 Quarterly Sentencing Update:   An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced through the second quarter of fiscal year 2009 [which runs through March 31, 2009].  The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published June 1, 2009)

The new data perhaps suggest a trend that I tentatively predicted in this post right after President Obama's election in which I suggested that the incoming administration might impact federal sentencing practice before we see any formal changes in policy.  Notably, though the new data run pre-dates the Obama Administration's announcement of a new attitude about crack sentencing policy and any other formal discussion of policy changes, this data run shows a (small but seemingly significant) uptick in below-guideline sentences imposed by judges.  Specifically, in the two quarters just before President Obama's election, judges decided on their own to impose a below-guideline sentence in roughly 13.8% of all cases.  In the two quarters since then, judges decided on their own to impose a below-guideline sentence in roughly 15.3% of all cases. 

Of course, it remains the case that most below-guideline sentences still result from prosecutors requesting a below-range sentence (this happens in roughly 25% of all cases). And, as has always been the reality in the federal sentencing system both before and since Booker, one can identify a number of large inter-circuit and inter-district variations in how many sentences fall within or outside calculated guideline ranges.

June 2, 2009 in Detailed sentencing data | Permalink | Comments (2) | TrackBack

Seventh Circuit resists extending Second Amendment to the states

The Seventh Circuit (per Judge Easterbrook) today ruled that, in light of existing Supreme Court precedent, the Second Amendment is not applicable to the states in NRA v. City of Chicago, No. 08-4241 (7th Cir. June 2, 2009) (available here). Here are just a a few of the many intriguing passages with cite omitted) from an amusing (and quixotic?) ruling:

Thus far neither the third nor the seventh amendment has been applied to the states — nor has the grand jury clause of the fifth amendment or the excessive bail clause of the eighth.  How the second amendment will fare under the Court’s selective (and subjective) approach to incorporation is hard to predict....

It is dangerous to rely on Blackstone (or for that matter modern European laws banning handguns) to show the meaning of a constitutional amendment that this nation adopted in 1868.  Blackstone also thought determinate criminal sentences (e.g., 25 years, neither more nor less, for robbing a post office) a vital guarantee of liberty.  That’s not a plausible description of American constitutional law....

Self-defense is a common-law gloss on criminal statutes, a defense that many states have modified by requiring people to retreat when possible, and to use non-lethal force when retreat is not possible.  An obligation to avoid lethal force in self-defense might imply an obligation to use pepper spray rather than handguns.  A modification of the self-defense defense may or may not be in the best interest of public safety — whether guns deter or facilitate crime is an empirical question — but it is difficult to argue that legislative evaluation of which weapons are appropriate for use in self-defense has been out of the people’s hands since 1868.  The way to evaluate the relation between guns and crime is in scholarly journals and the political process, rather than invocation of ambiguous texts that long precede the contemporary debate....

[T]he municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule.  Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.  How arguments of this kind will affect proposals to “incorporate” the second amendment are for the Justices rather than a court of appeals.

June 2, 2009 in Second Amendment issues | Permalink | Comments (7) | TrackBack

Eighth Circuit reverses broad supervised release conditions

The Eighth Circuit today issued an interesting new opinion concerning broad supervised release conditions in US v. Bender, No. 08-2899 (8th Cir. June 2, 2009) (available here082899P.pdf).  Here is the unofficial summary of the ruling from the court's website:

Ban on use of computer and internet was no greater than necessary and was not vague; requirement that defendant submit to lifestyle restrictions imposed by his therapist was not an improper delegation of judicial authority as the court retained control; ban on any sexually stimulating materials was not supported by particularized findings, and that condition is vacated and remanded for further findings of fact and resentencing; ban on use of public libraries, while related to the facts, was not sufficiently tailored, and the condition is vacated and remanded for resentencing; condition that defendant could only be at places minors frequent with prior approval and with a supervising, responsible adult present imposed a greater restriction on liberty than is necessary, and there is no basis for a movement restriction requiring the presence of a supervising adult; this condition is vacated, and the matter remanded for further findings of fact and resentencing.

June 2, 2009 | Permalink | Comments (0) | TrackBack

NJ legislators fear going "soft" on drug offenders after going "soft" on aggravated murderers

New Jersey has made news for sentencing reform in recent years by being the first state in the modern death penalty era to legislatively abolish capital punishment for aggravated murder. But, as highlighted by this local piece, headlined "NJ maintains its strict drug sentences despite changes elsewhere," there are other notable stories of sentencing reform in the Garden State:

Darius Bolden [who has been imprisoned for three years for possessing drugs near a school] is one of 5,596 state prison inmates -- about 20 percent of New Jersey's total -- serving a mandatory minimum sentence for a drug offense.

Such laws are being loosened across the nation as critics contend decades of strict sentencing requirements for drug offenses clog prisons, unfairly target minorities and don't prevent crime. Louisiana and Michigan have relaxed policies on certain drug offenses.  A month ago, New York, one of the first states to implement mandatory minimums for drug crimes with its famous "Rockefeller laws," rolled back some of its strictest provisions.

In New Jersey, however, similar efforts have been stalled for nearly a year. "It hit the wall at 90 miles an hour and imploded," said Bruce Stout, a former member of the state Commission to Review Criminal Sentencing, one of two panels that suggested school zones be shrunk to 200 feet -- something backed by Gov. Jon Corzine, the attorney general, prison officials and prosecutors.

Last June, the Assembly passed a bill to give judges more leeway with drug offenders caught in school zones.  But Senate President Richard Codey (D-Essex) will not put the bill up for a vote in the upper house, saying the public does not want it. "What's the impression you're sending our young ones?" Codey asked.

Sen. Paul Sarlo (D-Bergen), chairman of the Senate Judiciary Committee, said he is "keeping an open mind" but worries about the potential effect on the state's reputation. "I am concerned that it does have the appearance of being soft on crime," Sarlo said....

Bennett Barlyn, former executive director of the Commission to Review Criminal Sentencing, said it's the wrong policy. "Years from now, we'll look back on that law with an understanding of just how damaging and unproductive it was," he said.

New Jersey's state prison population has almost doubled in the last two decades to nearly 27,000. Todd Clear, a professor at John Jay College of Criminal Justice in New York, said that's a direct result of mandatory minimums.  Even though the crime rate has dropped and the number of arrests in the state remained steady, the prison population continued to rise because inmates stay behind bars longer, he said.

Since 1987, the percentage of inmates with mandatory minimums increased from 41 percent to 68 percent.  Lydell Sherrer, deputy commissioner for the Department of Corrections, said the increase required the addition of modular units, which resemble housing trailers without the wheels, for low-risk inmates.  

Advocates criticize the laws as unfair to urban minorities because school zones often blanket much of a densely populated city, unlike more sprawling suburban areas.  The commission reported 96 percent of people incarcerated for violations in drug-free school zones are black or Hispanic.

In my view, it is sad and telling that a state legislature so willing to abolish a rarely-used discretionary punishment for aggravated murderers is so unwilling to reform an over-used mandatory punishment for drug offenders.  And it is perhaps even more sad and telling that lots of anti-death penalty advocates likely view New Jersey as a progressive state because of its (essentially symbolic) decision to abolish the death penalty, when in fact its abject failure to reform its drug sentencing laws is so "damaging and unproductive" to the core interests that most modern progressives claim to champion.

Often when I complain about excessive obsession with the death penalty among certain criminal justice reformers, I am told (as in this comment threat) "Help us abolish the death penalty, then we can get to the things you think are important."  Sadly, it seems that even after the abolition of the death penalty in New Jersey, few are giving needed time and attention to all the other sentencing issues that are so much more consequential (but less high-profile) than the operation of the death penalty.

Some related posts:

June 2, 2009 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Why exactly has former Gov. Spitzer avoided criminal prosecution for his many crimes?

As detailed in local coverage here and here, the last sentencing for those prosecuted for running Emperor’s Club VIP, the high-priced call-girl ring frequented by former New York Governor Eliot Spitzer, took place yesterday in federal court.  And, as detailed in this New York Times article, Spitzer’s extensive involvement with the ring’s prostitutes were revealed as part of the hearing:

Mr. Spitzer, according to the documents and the lawyer’s comments, met regularly with Emperor’s Club prostitutes, sometimes in cities outside New York and Washington, over 18 months to 2 years, using a variety of aliases and paying with postal money orders....

The records unsealed on Monday at the sentencing of the booker, Temeka Rachelle Lewis, 33, included the prosecution’s letter detailing her “substantial assistance” to their investigation and her defense lawyer’s sentencing memorandum.

In the memorandum, Ms. Lewis’s lawyer, Marc Agnifilo, wrote that she “provided the government with the names of hotels, the approximate dates of meetings, the names of women the governor saw, different names the governor utilized and different ways the governor paid for these sessions.”

The information, he wrote, also included the cities where the liaisons occurred, the period during which they occurred, the regularity with which they occurred and how he wanted the hotel rooms to be booked and reserved, “presumably to conceal his involvement.”

Ms. Lewis pleaded guilty in United States District Court in Manhattan on May 14, 2008, to conspiring to promote prostitution and to helping launder the rings proceeds. On Monday, Ms. Lewis told Judge Shira A. Scheindlin that she deeply regretted her decision to break the law, calling it “a thoughtless, careless, selfish decision.” “It was wrong,” she added, saying that she “was solely responsible for the situation.”

Judge Scheindlin responded by saying, “Thank you, Ms. Lewis; nicely put.” The judge then sentenced her to one year of probation.

After the hearing, Mr. Agnifilo spoke to reporters in the courthouse hallway and elaborated on the memorandum and his comments in court.  He said that over 18 months to 2 years, the governor had arranged “several different liaisons” with women working for the Emperor’s Club.  The assignations, he said, took place in cities other than New York or Washington, and the governor paid using postal money orders, a method he called “relatively unsophisticated” and an indication that Mr. Spitzer was spending his own money.

He said information his client had provided helped prosecutors determine that Mr. Spitzer had not used government or campaign money to pay for sex, and thus helped lead to the government’s decision not to charge him.

My understanding is that jurisdictions frequently decide to prosecute only those persons who run prostitution rings and not all of its customers.  Nevertheless, if prosecutors hope to deter this economic crime, I think a lot of good could have come from going after a high-profile, repeat customer like Spitzer. 

If the evidence showed that Spitzer had only "experimented" with the Emperor’s Club, then I suppose this prosecutorial declination would seem more reasonable.  But, given the evidence that Spitzer was a repeat long-time customer who traveled far and wide to commit his crimes, I am troubled by his ability to avoid all criminal liability.  In the end, then, I cannot help but now see this case as yet another prominent example of prosecutorial bias enabling a rich and powerful white guy to escape formal legal consequences for his egregious criminal behavior.

June 2, 2009 in Celebrity sentencings | Permalink | Comments (6) | TrackBack

Two great commentaries from the legal blogosphere

Because there is too much great legal commentary in the blogosphere these days to keep up with it all, I have to highlight two recent posts that should not escape the eyes of sentencing fans. 

First, this post at Judging Crimes has lots of great things to say about the importance of Judge Sotomayor's experience as a district judge (and other great insights).  Here is one amusing snippet:

Appellate judges who don't first serve as trial judges are prone to stupid decisions.  Not because the judges themselves are stupid, of course, but because they literally don't know what they're doing. Example: Scalia insisting that his 2006 Davis decision imposed a constitutional test that was "objective and quite 'workable'." 

After three years, that test has come to mean something different in every state -- literally, without exaggeration, different in each of the 50 states.  It produces contradictory results on a daily basis.  It's become a constitutional Rorschach test, revealing judges' biases with hi-res fidelity.

So was Scalia lying?  Of course not.  How could he have known enough to be able to lie about what he was doing?  He's never been a trial judge, never practiced criminal law, and hasn't practiced any kind of law since 1967.  He was just guessing.

Trial court experience is far more important than appellate experience to a nominee's success as a justice.  More is at stake than the difference between pondering an evidentiary question after reading exhaustive appellate briefs versus making a decision during a whispered bench conference, though of course that's a lot. 

Second, this post at Pardon Power justifiably calls out President Obama for failing to give any attention to clemency matters while being able and eager to do so much else.  Here is the start and end of the post:

132 days into his administration Barack Obama continues to distinguish himself as one of the slowest presidents in history when it comes to the use of federal executive clemency. With the number of clemency applications soaring, prison populations booming and increased concern over issues such as mandatory minimum sentences, the Obama Department of Justice cannot account for a single pardon or commutation of sentence. In the Republic's 220 years, only seven administrations have been slower.  Among modern presidents, Obama is in an even smaller class -- with Eisenhower (R), Nixon (R), George H.W. Bush (R), George W. Bush (R) and Bill Clinton (D).  Obama will pass Eisenhower in just a couple of months. See chart here.

Too much on the plate?  Hard to imagine Lincoln, Wilson and FDR had it easy.  Not to mention they didn't have nearly as many career employees in the federal bureaucracy to assist them.  Remember, Obama is conspicuously proud of his supposed ability to "do more than one thing at a time."...

What to expect?  At this point, there is really very little reason to expect anything different from Obama.  Pardons and commutations will come, eventually.  Indeed, for all we know, Mr. Obama may wind up granting more pardons than any president in history.  But the fact remains that the longer he waits to exercise the pardon power, the more of an afterthought it will appear to be.  And, if he decides to spit out pardons in the month of December and in the last year of the term, clemency will continue to be viewed as a "gift," especially for partisan supporters, cronies and those with access to the White House in the chaotic last days of an administration.

June 2, 2009 in Recommended reading | Permalink | Comments (5) | TrackBack

June 1, 2009

Latest news on impeachment process for former Judge Kent

This new story from the Texas Lawyer, headlined "House Task Force to Hold Hearing on Impeachment of Federal Judge," provides the latest news on the status of former judge, and now felon, Samuel Kent. Here is how the story starts:

Samuel B. Kent is set to report to federal prison on June 15, but even before the disgraced retired U.S. district judge begins to serve a 33-month sentence, the U.S. House will crank into high gear proceedings that could lead to Kent's impeachment.

The House Judiciary Committee Task Force on Impeachment has scheduled an evidentiary hearing on Kent's impeachment for Wednesday in Washington, D.C.  Kent as well as Cathy McBroom and Donna Wilkerson -- the two former staff members he has admitted to sexually assaulting, as part of pleading guilty to obstruction of justice -- will testify, according to two Republican staff counsel for the committee. Arthur Hellman, a professor at the University of Pittsburgh School of Law who is an expert on judicial discipline, also is scheduled to testify about the impeachment process, the staff counsel say.

Related posts on the Kent proceedings:

UPDATE:  This new article in the Texas Lawyer reports that Kent has now submitted a formal resignation to President Obama (but effective June 1, 2010!), apparently in the hope that impeachment proceedings will not take place:

One of the reasons the House is moving quickly to impeach Kent is because he is still receiving his $174,000-a-year judicial salary, two Republican staff counsel for the House Judiciary Committee told Texas Lawyer last week.  The only way to stop his salary is through impeachment or through Kent's voluntary resignation, they said.

[Kent's lawyer Dick] DeGuerin say Kent decided to resign "to try to save the embarrassment that these useless hearings would have. That's embarrassing for the judicial system as well as everybody involved."

An official with the House Judiciary Committee who requests anonymity says the June 3 hearing will go on as scheduled and the impeachment process will be swift.

House Judiciary Committee Ranking Member Lamar Smith, R-San Antonio, says "Judge Kent's own actions continue to prove that he is unworthy of public service.  By choosing to resign effective a year from now, Judge Kent is attempting to secure a year's salary, paid for by the American taxpayers, while he sits in a prison cell as a convicted felon.  This is an outrageous abuse of authority and defies the very principles of justice Judge Kent swore to uphold.  Ensuring that a corrupt judge does not receive another penny of taxpayer dollars is one of the most important jobs for this Congress and a priority for the Judiciary Committee."

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

Interesting local sentencing story implicating racial and free press issues

I just came across this interesting local sentencing story that seems to involve a lot more than just sentencing law and policy.  Here are the basics:

Diane Bukowski, a reporter for the African-American owned Michigan Citizen newspaper, was given one year of probation, 200 hours of community service and ordered to pay $4,000 in fines Monday morning after being convicted of two felony counts of police obstruction last month.

Bukowski was arrested at the scene of a fatal high-speed police chase crash in northeast Detroit last November.  Her conviction has been seen as a political attack from the office of Wayne County Prosecutor Kym Worthy because of Bukowski’s dogged reporting of police brutality and related justice issues in Detroit.  Bukowksi has criticized the Wayne County prosecutor’s office for not responding to these incidents or investigating police officers who were accused of violence and rape.

Early during the sentencing, Wayne County Circuit Court Judge Michael Hathaway said he would not give Bukowski jail time. Seconds before announcing his sentence, Hathaway said he was being fair: “I’m very comfortable with the result of this case and with the sentence that I am about to impose,” he said.

Hathaway briefly touched on the issue of the case being retribution for her reporting.  “If the defense could show that any trooper knew who she was it could perhaps explain a motive,” he said. “We kept politics out of this case and I’m gonna keep politics out of the sentencing.”...

The courtroom which was packed with Bukowski supporters including grassroots coalition Call ‘Em Out leader Agnes Hitchcock and Detroit School Board member Marie Thornton. Bukowski told Michigan Messenger in an interview after the sentencing that she was glad she didn’t get jail time but she had other concerns. “This type of thing will happen to other journalists,” she said. “I’m very concerned about the state of the First Amendment.”...

During the sentencing, one state trooper who assisted in Bukowski’s arrest, Andrea Barber, accused the reporter of not only crossing police lines but threatening public safety. “Ms. Bukowski walked 150 feet into crime scene and put innocent citizens at risk because of crowd control,” she said in her statement. “It took three troopers [who would have been on crowd control] to constrain Ms. Bukowski … luckily we all made it home safe.”...

Prosecutor Tom Trizinski also called for hard sentencing. Since the judge said early on that he would not give Bukowski jail time, Trizinski suggested that she get five years probation and be ordered to enroll in journalism ethics classes at Wayne State University.  “She made [the state troopers'] jobs 100 percent harder that day.”  He said. “She doesn’t have a journalistic ethics background at all.”

June 1, 2009 | Permalink | Comments (0) | TrackBack

How exactly do transitions impact the SCOTUS docket and cert grant decisions?

As regular readers know from various posts on docket dynamics and a recent article, I believe how the Supreme Court sets its docket and decides what to decide is often more important than just whatit actually decides.  This may be especially true in the criminal justice arena, where the Court receives thousands of (paid and unpaid) petitions from criminal defendants raising an array of criminal justice issues in an array of factual and legal settings.  Consequently, as we all have been thinking about the on-going transition from Justice Souter to (in all likelihood) Justice Sotomayor, I have been thinking lately about how transitions impact the SCOTUS docket and cert grant decisions.

For starters, I must state my strong personal belief that the presence of a new Chief Justice and Justice Alito has so far had a very positive impact on the Supreme Court's criminal law docket.  In my recent article, I complained that the Rehnquist Court in its later years devoted extraordinarily too much of its scarce time and energy to reviewing death penalty cases and adjudicating the claims of death row defendants.  Though the Roberts Court has recently decided a few very high-profile capital cases (Baze and Kennedy and Medellin), it ultimately has taken up relatively few other capital cases in the last few Terms while also finding time to consider a relatively large number of noncapital federal sentencing issues and non-sentencing federal criminal law issues.  I suspect that Justice Alito, who came to the bench after having significant experience in the federal criminal justice system, may deserve particular credit for appreciating that federal prosecutors and federal defendants benefit from having more clarity and certainty concerning (lower-profile) federal criminal laws and issues.

I suspect and hope that these nascent trends will continue with a new transition from Justice Souter to Justice Sotomayor.  Based on Judge Sotomayor's experiences as a state prosecutors and as both a district and circuit judge, I suspect she is also especially attune to the reality that criminal justice litigants and lower court benefit from having more day-to-day criminal justice issues addressed by the Supreme Court. 

A related (but short-term) question in this context concerns whether Justice Souter's (and others Justices') cert votes may right now be impacted by Justice Souter's pending departure.  This particular issue has my attention because of a notable post-Booker case being conferenced later this week, which SCOTUSblog lists here on its "Petitions to Watch."  The case is Tankersley v. US (Ninth Circuit opinion here), and it presents an interesting setting for the Justice to address guideline departures and reasonableness review after Booker.  In part because I provided some help to the lawyer for the defendant during the appeal, and in part because the legal status of departures remains opaque after Booker, I am hoping that the Justices might think about granting cert in Tankersley as a kind of welcoming gift for the new incoming Justice.

Some related posts:

June 1, 2009 in Who Sentences? | Permalink | Comments (0) | TrackBack

Want to support legalizing pot, there's an app for that...

Thanks to this post at TalkLeft, I saw this local story reporting on the creation of an "iPhone application focusing on the legalization of marijuana."  Here is more:

CHRONIC-les was released for sale May 21 and has had more than 1,000 downloads, ranking it at number seven under the Lifestyle section in the iTunes App Store.  The app features the laws and consequences for possession in each state, facts and figures supporting why marijuana should be legal and a pre-written letter to President Obama that can be sent by pushing a button, described by [co-creator David Gregory] as “petition on the go.”  It can also locate the nearest NORML chapter.

June 1, 2009 | Permalink | Comments (2) | TrackBack

Ninth Circuit finds another within-guideline sentence substantively unreasonable!!

I am excited to report that, only about 4.5 years after the Booker ruling, the Ninth Circuit has managed to find a second within-guideline sentence to be substantively unreasonable.  Regular readers may recall the Ninth Circuit was the first to find an unreasonable within-guideline sentence in the unpublished Paul case a few years ago (basics here), and this time around the Ninth Circuit went to the trouble of making sure its ruling is published.  The ruling comes in US v. Amezcua-Vasquez, No. 07-50239 (9th Cir. June 1, 2009) (available here), and here is how the panel decision begins:

Javier Amezcua-Vasquez (“Amezcua”), a native and citizen of Mexico, appeals his 52-month prison sentence for attempting to reenter the United States unlawfully in violation of 8 U.S.C. § 1326.  Nearly fifty years after becoming a permanent resident and more than twenty years after completing a four-year sentence for assault with great bodily injury and attempted voluntary manslaughter, Amezcua was deported to Mexico as an alien convicted of an aggravated felony.  Shortly thereafter, he was apprehended re-entering the United States.  He was indicted and pled guilty to one count of illegal reentry in violation of 8 U.S.C. § 1326.  The district court applied a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), which was predicated on Amezcua’s twenty-five-year-old convictions, and imposed a Guidelines sentence of 52 months imprisonment.  We vacate Amezcua’s sentence as substantively unreasonable under United States v. Booker, 543 U.S. 220 (2005), and remand the case to the district court for resentencing.

Notably, two of the three judges on the panel that decided Amezcua-Vasquezare appointees of Republican presidents, and thus folks should resist the urge to assume that this important ruling reflects the judgment of just the more liberal members of the Circuit.

As the start of this post highlights, I am not especially amazed or impressed that the Ninth Circuit managed to find a second within-guideline sentence substantive unreasonable.  Rather, I remain amazed and depressed that no other circuit has managed to find a single within-guideline sentence unreasonable as we approach the fifth anniversary of Booker and reasonableness review.  Whether applying a presumption or not, it seems clear that nearly all the circuits continue to embrace the basic (and highly questionable and largely self-serving) notion that any within-guideline sentence is surely a reasonable application of the sentencing factors Congress set out in 3553(a).

June 1, 2009 in Booker in the Circuits | Permalink | Comments (5) | TrackBack

Notable ruling on procedural reasonableness from Second Circuit

The Second Circuit today has a notable ruling in US v. Timewell, No. 07-4587 (2d Cir. June 1, 2009) (available here), that discusses post-Booker review for procedural unreasonableness at some length. Here is hope the opinion starts:

Defendant-appellant Gregory Timewell appeals from a Memorandum and Order entered on October 4, 2007, in the United States District Court for the Eastern District of New York (Platt, J.) denying his application to be resentenced following a remand for further proceedings in conformity with United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). United States v. Timewell, 124 F. App’x 55 (2d Cir. 2005).  Timewell was convicted, upon a guilty plea, of conspiracy to import 1,000 kilograms or more of hashish and marijuana, in violation of 21 U.S.C. §§ 960(a)(1), (b)(1)(G), 963, and of making false statements to federal agents in violation of 18 U.S.C. § 1001.  On March 5, 2004, he was sentenced principally to a prison term of 275 months and a 5-year term of supervised release.  In the Memorandum and Order determining that it would adhere to the sentence originally imposed, the District Court took into account, inter alia, the government’s customary practice of rescinding cooperation agreements breached by defendants.  For the reasons that follow, we vacate the sentence and once more remand for further proceedings.

June 1, 2009 in Booker in the Circuits | Permalink | Comments (2) | TrackBack

SCOTUS completely its capital case error-correction in Bobby v. Bies

As documented by the fact that not a single amicus brief was filed in the capital case Bobby v. Bies (08-598), it seemed that the Supreme Court took up the case merely to correct what it perceived to be an erroneous reversal of a death sentence by the Sixth Circuit.  As detailed in this SCOTUSblog post, this stark example of capital case error correction was completed by the Justices this morning:

The Court has released the opinion in Bobby v. Bies (08-598), on double jeopardy protections in post-conviction hearings on an inmate’s mental competency.  The decision below, which held for the capital defendant, is reversed and remanded in a unanimous opinion by Justice Ginsburg, available here.

When I get a chance to review the opinion, I may have more to say about the Court's work and its initial decision to take up the case.  In the meantime, here are links to my prior coverage for those who might want to get a running start on the commentary:

UPDATE:  The title of this post at C&C about the ruling here perfectly capture the tone of the opinion: "Smackdown."  Indeed, though the outcome was not at all surprising in light of what happened at oral argument, the lashing given to the Sixth Circuit's panel work was.  At Volokh, Orin Kerr has these fitting comments:

The Sixth Circuit denied rehearing en banc,with the author of the original panel opinion stating that the original opinion was not only correct, but that it was "an easy case."  Judge Sutton disagreed, authoring what I thought was a strong dissent from denial of rehearing en banc.  Today the Supreme Court reversed in a unanimous opinion authored by Justice Ginsburg.  Justice Ginsburg's decision is unusually brief for an RBG opinion, and the four-page analysis section cites Judge Sutton's dissent four times.

June 1, 2009 in Death Penalty Reforms | Permalink | Comments (13) | TrackBack

Do letters from the public — often or ever — influence sentencing judges?

This local story from Florida, headlined "Fans, foes of Mary McCarty flood sentencing judge with suggestions for her fate," prompts the question in the title of this post.  The local story includes quotes from letters to a federal sentencing judge concerning how to sentence a local corrupt politician, and here is the basic backstory:

With the fallen county commissioner set to be sentenced Thursday, U.S. District Judge Donald Middlebrooks is receiving a welter of missives from the public — some urging the maximum five-year sentence spelled out in her plea deal, some advocating no more than community service.

McCarty, 54, a Delray Beach commissioner and then an 18-year county commissioner, pleaded guilty in March to misdeeds that included votes on bond deals that benefited herself and her underwriter husband, Kevin. That made her the third county commissioner to fall since 2006 in a federal probe of what a state grand jury recently dubbed "Corruption County."

Dozens of people have written to Middlebrooks to weigh in on McCarty's fate, with many expressing anger at the extent of public officials' crimes. "The corruption here is everywhere," wrote one resident, Ken Eddowes. "Mary McCarty is guilty of much more and much worse than she's accused of in this case."

Added Marvin Pesses of Delray Beach: "Public officials must be held to high standards and punished severely when they dishonor their positions and the trust which we peasants have placed in our political aristocracy."

Other letters, including some from longtime friends and supporters, speak of her contrition and her years of service to help children, animals and charities. Tens of pages of such letters arrived at the court in a package submitted by her attorney in the past two weeks. "Even criminals of our society many times just get probation for the first offense," wrote Delray builder Fred Griffin, calling her crimes minor infractions. "After all it is not that Mrs. McCarty did anything to hurt the citizens of this community."

The other disgraced ex-commissioners, Tony Masilotti and Warren Newell, got five-year prison terms. Newell's subsequent cooperation against McCarty and other officials won him a judge's consent Friday to a two-year sentence reduction.

McCarty's attorney, David Bogenschutz, has urged Middlebrooks to sentence her to less time than her former colleagues, arguing that her acts were little more than ethics violations. Prosecutors are expected to counter that her crimes were far more extensive than the lone count on which she made a quick guilty plea.

In addition to those arguments, Middlebrooks is allowed to consider public sentiment as outlined in the letters.

I suppose it is accurate to say that US District Judge Donald Middlebrooks is "allowed to consider public sentiment as outlined in the letters," but it is an interesting question just how the sentiments in the letters fit into the statutory sentencing standards of 18 USC 3553(a). I suppose consideration of community sentiment could be viewed as part of the judge's requirement in 3553(a)(2)(A) to impose a sentence that will "reflect the seriousness of the offense" and "promote respect for the law."  Also, to the extent public letters discuss the offender and her crime, they can help the judge consider under 3553(a)(1) "the nature and circumstances of the offense and the history and characteristics of the defendant."

But, beyond the legal issue of just how public sentiment can be considered, there is descriptive question that titles this post.  Do these kinds of public letters often influence sentencing judges?  Do they ever?  And is there any way that researchers or policy-makers can ever know?

UPDATE:  An interested reader sent me this spot-on response to my inquiry in this post:

There is a case call Gall v. United States where the sentencing judge referred to a "flood" of letters regarding the defendant.  The Supreme Court likewise referred to those letters in discussing the trial judges sentence in that case.  To me, this is at least some "judicial notice" that these letters can and do influence sentencing outcomes.  [Also]  the administrative office has recently suggested amending rule 32 to provide that these letters must be provided to the government.  I know many local rules now provide for each side to get copies of any letters that are sent to the judge.

June 1, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

May 31, 2009

Examining Judge Sotomayor's criminal justice record

Among the extraordinary number of article about Judge Sotomayor linked at How Appealing, I just discovered this pieceby Michael Doyle of McClatchy Newspapers headlined "Sotomayor's record reveals she's far from soft on crime."  Here are some notable excerpts:

Before her Supreme Court nomination, Sonia Sotomayor put some crooks in prison and cut others some slack. 

She's confronted killers and empowered police. She has also sympathized with inmates and challenged prosecutors. While tilting liberal in some areas, Sotomayor's five years in the Manhattan district attorney's office and 17 years on the federal bench appear to place her near the center in criminal law matters.  "She's a moderate," said Judge Guido Calabresi, a colleague on the 2nd Circuit Court of Appeals.

Like her colleagues, Sotomayor faced her share of sketchy prisoner appeals and complaints about lengthy sentences. More often than not, she agreed with the government's position. On substantive law enforcement powers, too, she's pleased police with rulings that, for instance, have upheld certain warrantless searches.

A McClatchy review of Sotomayor's appellate decision-making reveals her criminal-law inclinations.  Of 90 criminal law-related cases considered by an appellate panel on which Sotomayor has served since January 2002, she's sided with the government 65 times and prisoners and defendants 25 times.

More telling may be the company she keeps.  Whether she's ruling for prosecutors and prison officials or for inmates and defendants, Sotomayor is nearly always in the majority. Among the cases McClatchy reviewed, Sotomayor dissented on a defendant's behalf only once. Overall, she's a team player on criminal law matters — undercutting one potential Republican line of attack.  "She's the opposite of an activist judge," Calabresi said.

If Judge Sotomayor truly is "the opposite of an activist judge" in the criminal justice arena, she may end up battling Justice Scalia in major non-capital criminal cases.  As highlighted by his work for the Court in case ranging from his 2004 double doozy of Blakely and Crawford to his more recent work in Heller and Montejo, Justice Scalia probably should be seen as the poster-child of an activist judge in the criminal justice arena.

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

May 31, 2009 in Who Sentences? | Permalink | Comments (8) | TrackBack

Two stories on different types of sex offenders

One of many reasons that sex offender law and policy is so messy and controversial is because the term sex offender can mean so many different things in some many different contexts.  These two promientn MSM stories about different types of sex offenders brings this reality into sharp relief:

The Time story is especially interesting because it tries to unpack whether and why Florida might have an unusually large number of these unusual teacher-student sex crimes:

But why should Florida seem to be experiencing an especially high number of such cases?  Are those women, and for that matter the hormonally charged boys they target, somehow egged on by the state's more sexually relaxed atmosphere, with its sultry climate and scantily clad beach culture? (California also has a high rate of teacher sexual misconduct.) Or are Floridians simply reporting more cases like Hernandez's?  It is a crime in Florida, as in most states, not to; but perhaps the tabloid publicity of the Lafave case has prodded Sunshine State denizens to be more vigilant, to no longer be in denial about cases like these or take them so lightly.

And yet paradoxically, says [local state prosecutor Michael] Sinacore, it might also be engendering more cases. As potential female predators see more and more headlines about teachers like themselves bedding boys, it can seem more acceptable behavior in their eyes — especially when they see that offenders like Lafave get relatively light sentences. (That might be changing, however: a Florida judge recently slapped a two-year prison term on a 28-year-old female teacher in Pensacola convicted of unlawful sexual activity with a 15-year-old male student.)

May 31, 2009 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

"Madoff's $lick Try"

The title of this post is the headlines of this New York Post report on Bernie Madoff's hiring of a well-known sentencing consultant.  Here are the details:

Mega-fraudster Bernard Madoff has hired a leading prison consultant to help him try to weasel out of a maximum 150-year term for his $65 billion Ponzi scheme.

"Mitigation specialist" Herbert Hoelter -- who's helped celebrity jailbirds such as Martha Stewart and Michael Vick -- got court permission to visit Madoff in the Metropolitan Correctional Center, where Bernie is awaiting sentencing on June 29.

Hoelter's Baltimore-based firm, the National Center on Institutions and Alternatives -- which has worked with Stewart and Vick -- specializes in "sentencing advocacy," including "arguments for downward departure from the sentencing guidelines."

May 31, 2009 in White-collar sentencing | Permalink | Comments (4) | TrackBack