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.
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.
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.
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:
- My latest (academic?) musings about progressive punishment perspectives
- A telling and troubling gubenatorial veto in New Mexico after death's repeal
- Why I obsess over courts and others obsessing about the death penalty
- Two (long) reports on problems administering the death penalty
- Was the ABA's Ohio death penalty report just a big capital waste?
- Death slows in Ohio, bringing more LWOP sentences
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.
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 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:
- Judge Kent takes a deal (and now becomes the latest, greatest topic for sentencing debate)
- "Is Kent getting off easy?"
- More questions and fall-out following Judge Kent's guilty plea
- Latest notable news surrounding former judge (now felon) Sam Kent
- Any predictions on former Judge Sam Kent's sentence? UPDATE: 33 months
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."
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.”
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:
- Justice Alito jumping out of the cert pool!!
- Roberts, the cert pool, and sentencing jurisprudence
- New Justices content with their dip in the pool
- Why is the cert pool so beloved?
- More on the SCOTUS deadly, but still shrinking, docket
- Solving the SCOTUS docket mystery
- Additional SCOTUS docket dissection
- Looking ahead to SCOTUS docket dynamics
- My (already dated) musings on the SCOTUS criminal docket (with a link to my recent articleon the SCOTUS docket)
- Final version of my article on the SCOTUS death docket
Want to support legalizing pot, there's an app for that...
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.
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).
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.
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:
- Supreme Court takes up intriguing capital case involving mental retardation
- Early report on Bies oral argument
- The little SCOTUS capital case that could...?
- What's up with all the SCOTUS capital case cert grants from the Sixth Circuit?
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.
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.
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:
- Some very early, very brief sentencing reflections on Judge Sotomayor
- A quick thought on Judge Sotomayor's sentencing work in Cavera
- Noting early unpublished sentencing opinions from Judge Sotomayor
- Judge Sotomayor on textualism and voting rights in Hayden v. Pataki
- President Obama to nominate Judge Sonia Sotomayor for Supreme Court
- Notable background parallels between Judge Sotomayor and Justice Alito
- Any predictions on how a Justice Sotomayor would approach capital cases?
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:
- From CBS News here, "Targeting Teens For Sexting"
- From Time magazine here, "A Florida Epidemic: Female Teachers Sleeping with Their Students"
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.)
"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."