July 11, 2009
Execution chambers starting to heat up for the dog days of summer
The nation's execution chambers were pretty quiet through the month of June: after a single execution in Ohio and another in Texas at the very start of the month, there was only one more execution (in Alabama) before the calender turned to July. This past Thursday, however, Oklahoma executed a double murderer (details here from the AP), and five more executions are on tap for the next two weeks (schedule here via DPIC).
If all five of the executions scheduled for the next two weeks take place, there will have already been more executions in 2009 than took place in all of 2008. That notable fact is mostly the result of the Baze litigation, which blocked all executions through May of 2008. Nevertheless, if the pace of roughly six executions per month continues through the end of 2009, it is possible that the first year of the Obama Administration could end up having more executions nationwide than did any single year during the two term served by President Bush.
Some related posts:
- What might 2009 have in store for . . . the death penalty in the US?
- Noting the quicker pace of executions in Texas
- DPIC releases year-end report on state of death penalty in 2008
- Notable second-term Presidential execution realities
"Prolonged Solitary Confinement and the Constitution"
The title of this post is te title of this new piece by Jules Lobel now available via SSRN. Here is the abstract:
This Article will address whether the increasing practice of prolonged or permanent solitary confinement constitutes cruel and unusual punishment in violation of the Constitution, and whether it violates the due process rights of the prisoners so confined. It will not only look at United States case law, but at the jurisprudence of international human rights courts, commissions, and institutions. As the U.S. Supreme Court has noted, international jurisprudence can be helpful in determining the scope and meaning of broad terms in our Constitution such as “cruel and unusual punishments” or “due process,” as those terms ought to be understood in the context of what has been deemed unacceptable by the world community. This practice of long-term solitary confinement constitutes cruel and unusual punishment and violates the due process rights of prisoners, yet the unfortunate trend in the United States has been to downplay and ignore the cruel and inhuman effects of psychological abuse to prisoners where there is no long-term physical injury.
Some related posts:
July 10, 2009
What questions should Judge Sotomayor be asked in her confirmation hearing?
The WSJ Law Blog has this timely new entry, titled "Sotomayor: A Guest’s Perspective On What Senators Should Ask The Judge." In what appears to be part of a developing series, Professor Heather Gerken in this post suggests that Senators look beyond headline-making cases to probe methodology:
If you really want to know what a judge is like, don’t ask about highly visible decisions; ask about the invisible work habits that produce them. Ask Judge Sotomayor simple, even mundane questions about daily life on the bench. Ask her how she prepares for a case.
How much time a judge spends on preparation is a pretty good proxy for identifying judges who care only about outcomes. A judge who spends a lot of time reading the briefs and reviewing the case law is the kind of judge who decides one case at a time.
I hope Senators go beyond the headline-making cases in their questions to Judge Sotomayor, though I doubt we would get too many surprising answers from truly mundane questions about preparation methods. That said, the kinds of simple questions a child might ask – e.g., "What is your favorite part of being a judge?" or "What cases to you find most difficult (or most fun)?" – would be kind of cool to hear.
Returning to matters of substance, I am of course hoping that criminal justice and sentencing issues get some extended play during next week's Senate hearings. But, I am hoping Senators do much more than ask the inevitable questions about the death penalty and the Second Amendment. For example, it might be interesting and useful to ask Judge Sotomayor to compare and contrast her experiences with state and federal criminal justice systems. Or maybe she should be asked about Justice Kennedy's 2003 speech to the ABA in which he asserted boldly that now America's "resources are misspent, our punishments too severe, our sentences too long."
Any weekend thoughts and ideas for the Senators, dear readers? (One never knows what blogs a staffer might be reading, so let's try to keep it real – and, yes, I am talking to you, Supremecy Claus.)
Is real fundamental, structural change on the horizon for the federal sentencing system?
As detailed in this report about the US Sentencing Commission regional hearing in New York this week, a number of federal judges are urging the USSC to work on big, structural sentencing reform. In the words of Judge Dearie: "It is not a time to tinker ... it is time for fundamental reform.... If necessary, start all over. The truth is, you may be our only hope. Raise your voice or voices. We must rely on each of you to think outside the box."
Of course, federal judges (as well as academics) have been urging fundamental, structural changes to the federal sentencing system for quite some time. But, now a passage this recent speech by Attorney General Eric Holder suggests that the Justice Department may soon be urging some big changes:
Although this Administration is still young, we have already started to put into practice what I believe is a data-driven, non-ideological, post-partisan approach to crime. For example, I have asked attorneys throughout the Department to conduct a comprehensive, evidence-based review of federal sentencing and corrections policy. Specifically, the group is examining the federal sentencing guidelines, the Department’s charging and sentencing advocacy practices, mandatory minimums, crack/powder cocaine sentencing disparities, and other racial and ethnic disparities in sentencing. The group is also studying alternatives to incarceration and strategies that help reduce recidivism when former offenders reenter society. We intend to use the group’s findings as a springboard for recommending new legislation that will reform the structure of federal sentencing.
I have added the emphasis and bold to the end of this passage because I think AG Holder's reference to reforming the structure of federal sentencing is quite significant and could portend big changes on the horizon. (Or, maybe I am just a bit giddy on hope-and-change talk on a sunny Friday afternoon.)
"21-month sentence for man who beat fellow golfer with 6-iron"
The title of this post is the headline from this local sentencing story that seems to provide a great setting for a little friday frivolity. First, here are the basics:
A Puyallup man who assaulted a fellow golfer with a 6-iron last summer was sentenced this morning to 21 months in prison.
Nicholas Shampine, 34, was found guilty of second-degree assault during a jury trial in May. King County Superior Court Judge Deborah Fleck sentenced Shampine, who has no prior criminal convictions, to a high-end sentence at the Maleng Regional Justice Center this morning.
Shampine attacked James Compton at the Auburn Golf Course last July 13 after Compton's golf party complained to the greens marshal that Shampine's party was taking too long at each hole, according to court charging paperwork. Members of Shampine's group were also upset at Compton's group for being too noisy, authorities said.
A shoving match broke out and Shampine struck Compton in the left temple with the golf club, prosecutors said. Compton fell to the turf in convulsions, bleeding heavily and was taken to Harborview Medical Center. Shampine told Auburn police that he attacked Compton, 46, to protect his brother, who was golfing with him.
King County Senior Deputy Prosecutor Dan Soukup said that Compton still suffers memory loss and confusion. Compton and his wife spoke at the sentencing today and asked Fleck to give Shampine the maximum sentence.
Now, golf fans, it is time for the frviloity: though this story is sad and serious, it also seems like the set-up for some possible golf and/or sentencing jokes. Let's see if I can get the (golf) ball rolling: "Maybe the defendant should have asked the judge for a mulligan." Lame, I know, which is why I hope readers can do better while I sit at my computer and wish I was golfing.
Cross-posted at The Golf Blog.
Legal challenge to Washington's lethal injection methods turned away
This new AP story, headlined "Judge affirms Wash. lethal injection method," provides details on another failed challenge to a state execution protocol. Here are th basics:
A judge has affirmed Washington state's procedures for executing prisoners by lethal injection, turning aside complaints that condemned inmates could be partially conscious when fatal drugs flow into their veins.
In a ruling released Friday, Thurston County Superior Court Judge Chris Wickham said that the inmates presented no evidence that the state "intended to impose punishment that was 'cruel.'" "The procedure to be used by defendants, although not fail-safe, appears to have been designed to administer the death penalty in a way that is humane for the inmate and the observers," Wickham wrote. "It is an attempt to provide some dignity to this most grave event."
The inmates are likely to appeal the ruling.... The lawsuit [turned away here] argued that Washington's lethal injection procedures are so sloppy and inconsistent that inmates might be partially conscious when fatal drugs flow into their veins.... The lawsuit alleged a long list of shortcomings in the state's lethal injection methods: No supervision by doctors or nurses, inadequate training and rehearsals for the execution team, and lack of medical qualifications for everyone involved.
Important and heartening new speech from AG Eric Holder
Attorney General Eric Holder delivered this speech at the Vera Institute of Justice last night. There are too many notable sections of this long speech to cover here, so I will just call the whole speech a must-read. Here is an excerpt highlights key themes from the start of the speech:
The Vera Institute of Justice has been an extraordinary partner to government in the administration of justice.... Your practical, rational, data-driven, results-oriented approach can best be described as post-partisan. In the five months that I have served as Attorney General, I have tried to take that same approach, and that is what I would like to talk about this evening: how we can move past politics and ideology in order to get smart on crime.
Getting smart on crime requires talking honestly about which policies have worked and which have not, without fear of being labeled as too hard or, more likely, as too soft on crime. Getting smart on crime means moving beyond useless labels and instead embracing science and data, and relying on them to shape policy. And it means thinking about crime in context – not just reacting to the criminal act, but developing the government’s ability to enhance public safety before the crime is committed and after the former offender is returned to society.
It is imperative that we get smart on crime now, for much has changed since some of our basic, governing assumptions about criminal law enforcement were developed. In the middle years of the twentieth century, America went through an historic increase in crime and illegal drug use. In the 1960s and 70s, the overall crime rate increased more than five-fold. Violent crime nearly quadrupled. The murder rate doubled. And heroin, cocaine and other illegal drug use surged.
Many lawmakers in the 1980s responded by declaring, in rhetoric and in legislation, that we needed to get tough on crime. States passed truth-in-sentencing and three strikes and you’re out laws. Some state parole boards became more cautious, while other states eliminated discretionary parole altogether. The federal government adopted severe mandatory minimum sentencing laws, eliminated parole, and developed the federal sentencing guidelines.
The federal government and states spent billions of dollars in new prison construction. The result was dramatic: the number of inmates in American prisons has increased seven-fold since 1970. Today, one out of every 100 adults in America is incarcerated – the highest incarceration rate in the world.
Few would dispute that public safety requires incarceration, and that imprisonment is at least partially responsible for the dramatic drop in crime rates nationwide in recent decades. By 2007, the nation’s violent crime rate had dropped by almost 40% from its peak in 1991. But just as everyone should concede that incarceration is part of the answer, everyone should also concede that it is not the whole answer. Simply stated, imprisonment is not a complete strategy for criminal law enforcement.
To begin with, high rates of incarceration have tremendous social costs. And, of course, there also is the matter of simple dollars and cents, and the principle of diminishing marginal returns. Every state in the union is trying to trim budgets. States and localities are laying off teachers and canceling sanitation department shifts, but in almost all cases, spending on prisons continues to increase. Not only is this unsustainable economically, but it is also not proving to be effective at fighting crime. For while prison building and prison spending continue to increase, public safety is not improving. Since 2003, spending on incarceration has continued to rise, but crime rates have flattened. Indeed, crime rates appear to have reached a plateau, and no longer respond to increases in incarceration.
So what can we do to lower the crime rate further, to make American communities safer, to get smarter on crime? We need new tools – and one way to develop new tools is to look several steps past getting people into prison, and to consider what happens to people after they leave prison and reenter society.
Some related old and new posts:
- My latest (academic?) musings about progressive punishment perspectives
- Are we on the verge of a new changed era concerning federal sentencing law and policy?
- Why I fear change will not come quickly to federal sentencing policy and practice
- Will AG Holder really lead a "new birth of freedom" in prison nation?
- Senator Jim Webb continues his important campaign for serious sentencing and prison reforms
- Senator Jim Webb takes his concerns about prison nation to the next level
- Making an economic case for cost-oriented sentencing and prison reforms
- Important (though incomplete) op-ed on mass incarceration and mercy
- Senator Jim Webb continues his important campaign for serious sentencing and prison reforms
- The state of cost problems in the states of prison nation
Of note and interest around the blogosphere
As is often the case, a quick tour of the blogosphere reveals lots of interesting and notable reading from some of my favorite blogs:
From Crime & Consequences here, "Sex Offender Assessment Tool Held Inadmissible"
From Grits for Breakfast here, "Oversight: Why so little MSM coverage after Texas abolished LWOP for juveniles?"
From PrawfsBlawg here, "Reconsidering the Punishment of Violent Crime"
From Simple Justice here, "Dreier and The Bernie Scale"
From TalkLeft here, "Justice Ginsberg on Judicial Diversity"
Effective and fascinating report on USSC regional hearing in NYC
I was pleased to see this report from Bloomberg news, headlined "Judges Call on U.S. to Simplify Sentencing Guidelines," covering yesterday's first day of the US Sentencing Commission's regional hearing in New York City. Here are extended excerpts from an effective and interesting article:
The U.S. Sentencing Commission should work to simplify federal guidelines and keep them advisory, rather than return to a mandatory system, a group of federal judges said. The judges spoke today at the U.S. Court of International Trade in New York, where the commission is holding the third in a series of public hearings on policy issues.
The seven-member commission should work with Congress to create a “politically viable” plan to simplify the sentencing rules, which are “ridiculed” in other countries, said Jon Newman, who sits on the appeals court in New York. Several other judges said they agreed with him....
Denny Chin, a district judge in Manhattan, praised the Supreme Court for its Booker decision. “Most if not all of my colleagues in the Southern District of New York would agree the system is better post-Booker,” Chin testified today. “We have more flexibility to do what we are supposed to do -- to judge -- and we are not limited to merely applying mechanical rules and doing mathematical calculations.” Last month, Chin sentenced Bernard Madoff to 150 years in prison for a decades-long fraud that cheated investors of billions of dollars.
Richard Arcara, a district judge in Buffalo, New York, also praised the Booker decision for returning sentencing discretion to judges. “Booker has improved the quality of the sentencing jurisprudence,” Arcara testified. However, the new system is even more time-consuming for judges, Arcara said. In addition to performing guideline calculations, resolving objections and addressing motions for a reduced sentence, they must also now address motions for a sentence outside the advisory range, elaborately justifying each sentence, he said.
The lone dissenter was Judge Brett Kavanaugh, who serves on the appeals court in Washington.... Acknowledging that Booker is “here to stay,” Kavanaugh argued that the Supreme Court’s Booker decision has increased disparities and that it invites judges to improperly apply personal and policy views when imposing a sentence.
William Carr, a vice chair of the Sentencing Commission, singled Kavanaugh out. “Judge Kavanaugh, you are unusual in longing for a return to the mandatory system,” Carr said. “Most district judges are happy with the advisory system.” Kavanaugh proposed a remedy that would be a hybrid of the mandatory and advisory systems. Newman said that he could live with that, as long as the proposed Congressional reform reduced the infinite calculations in the current system.
The reporter filing this story, Cynthia Cotts, kindly just provides me via e-mail "some new material that you are free to post on your blog." Specifically, "Raymond Dearie, a district judge in the Eastern District of New York, gave an impassioned speech this morning." Here are excerpts from that speech by Judge Dearie:
"The post-Booker era presents a magnificent opportunity for the commission and Congress, and I urge you to take the lead.
We have created -- all of us -- a culture of incarceration. We incarcerate more people for longer periods than any country in the world, at a cost of $50 billion annually. One out of every 9 black men between the age of 20 and 34 in this land of the free is in jail. The number of drug offenders in prison has increased by 1100 percent since 1980, the vast majority of whom are small-time, non-violent offenders.
There are other ways to address this problem. It is not a time to tinker. I agree with Judge Newman and others that it is time for fundamental reform. We have not achieved truth in sentencing. I do not agree that the commission is powerless to do anything about mandatory sentencing. Simplify the guidelines. Give us broad, empirically-based ranges with limited review if the sentence falls outside the range. Give us more tools to fashion sentences that work for everyone. If necessary, start all over. The truth is, you may be our only hope. Raise your voice or voices. We must rely on each of you to think outside the box."
According to this new report, "Judge Dearie said that he is confident his sentiments are shared by most, if not all of his colleagues in the Eastern District." I am confident that I share his sentitment 100% and I am really pleased and gratified that the US Sentencing Commission is hearing these potent points.
"Prosecutors Resort to Wealth Porn in Dreier Case"
The title of this post is the title of this entry at the WSJ Law Blog discussing the latest filings from the parties in the upcoming sentencing of Marc Dreier (basics here). Here is the setting which a grand new term gets coined:
We turn back to Marc Dreier, who yesterday filed a motion asking that he be sentenced to no more than 12 ½ years for running a Ponzi scheme. Now we return to the government’s response, also filed yesterday, in which asks New York federal judge Jed Rakoff to sentence Dreier to 145 years, in line with the federal sentencing guidelines.
The most interesting thing about the government’s filing was its inclusion of what we’ll call, for a lack of a better term, wealth porn: glossy photos of Dreier’s lavish lifestyle, including images of his yacht, beach front house in the Hamptons, and his $207,043.29 Aston Martin DB-9 convertible....
Our personal favorite is the image of the bedroom in his yacht, which features replete with wood and leather that appears mighty soft to the touch. Obviously, the government is using the power of the image to try to claim Dreier was consumed by greed ─ a point Dreier virtually conceded in yesterday’s court filing ─ and deserving of no leniency in sentencing.
All of the filings in the Dreier case are really interesting, and I thought the arguments by Dreier's lawyers in this memorandum for a relatively "moderate" sentence (in the range of 10 to 12 years in prison) were especially thoughtful. In light of nature and scope of Dreier's crimes, however, I think the over/under on his sentence has to be in the range of 20 years.
The audacity of having hope and dreams inside the Supermax walls
Here is a new AP report that seems likely to make Shawn Hannity, Rush Limbaugh and Michael Savage all smile. The piece is headine "Supermax prison: Obama's books objectionable," and here are snippets:
The federal government's most secure prison has determined that two books written by President Barack Obama contain material "potentially detrimental to national security" and rejected an inmate's request to read them.
Ahmed Omar Abu Ali is serving a 30-year sentence at the federal supermax prison in Florence, Colo., for joining al-Qaida and plotting to assassinate then-President George W. Bush. Last year, Abu Ali requested two books written by Obama: "Dreams from My Father" and "The Audacity of Hope."
But prison officials, citing guidance from the FBI, determined that passages in both books contain information that could damage national security. A prison spokeswoman referred questions to the FBI, where a spokeswoman was looking into the matter Thursday evening.
The documents detailing the prison's rejection of Obama's books are included in court papers for a resentencing hearing scheduled later this month for Abu Ali, a U.S. citizen.... Abu Ali requested the books in August, before Obama was elected. In a short, handwritten note on a prison complaint form, Abu Ali argues that the two rejections "violate my 1st amend. rights."...
Prison officials cite specific pages -- but not specific passages -- in the books that they deem objectionable. They include one page in Obama's 1995 book, "Dreams from My Father," and 22 separate pages in his policy-oriented 2006 book, "The Audacity of Hope." It was not immediately obvious what passages might have been deemed problematic, though nearly half of the pages cited are in a chapter devoted to foreign affairs....
Abu Ali will be resentenced July 27, following an appellate court ruling that U.S. District Judge Gerald Bruce Lee improperly deviated from sentencing guidelines that recommended a term of life in prison.
July 9, 2009
"Madoff won't appeal 150-year sentence, attorney says"
The title of this post is the headline of this new story from CNN. Here are a few more details:
"We are not going to appeal," Madoff attorney Ira Lee Sorkin told CNN on Thursday. Sorkin said he met with Madoff this week at the Metropolitan Correctional Center in Lower Manhattan. "Even if the Court of Appeals sends it back, certainly a guidelines sentence under the circumstances would give him a life sentence," he added.
Citing crimes that were "extraordinarily evil," U.S. District Judge Denny Chin on June 29 sentenced Madoff to the maximum 150-year term for the 11 criminal counts to which Madoff pleaded guilty, including securities fraud, investment adviser fraud, mail fraud, wire fraud and money laundering.
The official estimate of investor losses suffered from Madoff's scheme stands at more than $13 billion, but that amount ultimately may be more. Chin said the severity of the sentence would be symbolic, important in a case where the "fraud was staggering" and the "breach of trust was massive."
Sorkin said he differs with Chin's focus on symbolism. "I don't think the guidelines talk about symbolism. People are not symbols. They are sentenced under a reasonable standard," the attorney said. But Sorkin added, "The judge made the decision. We respect his decision."
Split Ninth Circuit ruling reversing a jury verdict in a prisoner lawsuit
A Ninth Circuit panel splits today in the prisoner litigation case of Norwood v. Vance, No. 07-17322 (9th Cir. July 9, 2009) (available here). The dispute at issue is summarized in the first sentence of the majority opinion: "We consider when prison officials may be held liable for depriving inmates of outdoor exercise."
Because of the reputation of the Ninth Circuit, readers may be surprised at who prevails in this opinion. And, because of the reputation of the Ninth Circuit, I would not be too surprised if this case goes on to get en banc consideration.
Fascinating new TRAC report on Judge Sotomayor's sentencing record
The folks at the Transactional Records Access Clearinghouse (TRAC) hav produced a fascintaing report on the sentencing patterns of Judge Sotomayor when she was a district judge. This TRAC press release describes the report as a "first-of-its kind analysis of the sentences imposed by Judge Sonia Sotomayor during her six years as a federal trial judge," which was developed based on "records concerning more than 7,000 cases handled by the 52 federal judges who served in the Southern District of New York (Manhattan) from FY 1993 to FY 1998."
The full report is available at this link, and here is how it starts:
A case-by-case examination of the sentences imposed by Judge Sonia Sotomayor during her six years as a trial judge in the Southern District of New York has determined that she was more likely than her colleagues to send a person to prison. As shown in Figure 1, this was particularly true for convicted white-collar criminals.
This chart provides more of the statistical particulars, and it confirms my sense that the relatively leniency of all white-collar sentences from FY1993 to FY1998 is even more notable than the fact that Judge Sotomayor was, on average, slightly tougher at sentencing than her Southern District colleagues.
Specifically, the TRAC data indicate that during this period, the median white-collar sentence was no prison time(!) and roughly 90% of all white-collar offenders in the Southern District of New York got a sentence of less than two-years imprisonment. In contrast, the median drug sentence during this period was four years in prison and nearly 70% of all drug offenders in this district got a sentence of more than two-years imprisonment.
Interesting split Tenth Circuit ruling on ineffectiveness assistance at plea stage
Yesterday the Tenth Circuit handed down an interesting little ruling in Williams vs. Jones, No. 06-7103 (10th Cir, July 8, 2009) (available here), concerning the rules and remedies surrounding ineffective assistance of counsel at the plea stage of a criminal case. Here is how the per curiam majority opinion starts:
Petitioner-Appellant Michael Williams appeals from the district court’s denial of his habeas corpus petition brought pursuant to 28 U.S.C. § 2254. The only issue before us is whether, having determined that Mr. Williams received ineffective assistance of counsel in rejecting a plea offer, the Oklahoma Court of Criminal Appeals (“OCCA”) fashioned a constitutionally permissible remedy. Our jurisdiction arises under 28 U.S.C. § 1291, and we reverse and remand. On remand, the district court should impose a remedy that comes as close as possible to remedying the constitutional violation, and is not limited by state law.
Here is how the lengthy dissent from Judge Gorsuch gets started:
The Sixth Amendment right to effective assistance of counsel is an instrumental right designed to ensure a fair trial. By his own admission, Michael Williams received just such a trial, at the end of which he was convicted of first degree murder by a jury of his peers. We have no authority to disturb this outcome. The majority says that counsel’s deficient performance in the plea bargain process denied Mr. Williams a lesser second degree murder conviction, and that this justifies voiding the result of Mr. Williams’s fair trial. But the due process clauses of the Constitution’s Fifth and Fourteenth Amendments do not encompass a right to receive or accept plea offers. As the Supreme Court has repeatedly held, plea bargains are matters of executive discretion, not judicially enforceable entitlement; due process guarantees a fair trial, not a good bargain.
Without challenging any of this, the majority nonetheless recognizes a constitutional right to accept a plea offer grounded in the Sixth Amendment’s guarantee of effective assistance of counsel, creating indirectly what the Supreme Court’s precedents preclude it from recognizing directly as a matter of due process under the Fifth and Fourteenth Amendments. The practical upshot? So long as a defendant can claim his lawyer mishandled a plea offer, he can take his chances at a fair trial and, if dissatisfied with the result, still demand and receive the benefit of the forgone plea. The majority’s holding has already been rejected by a number of other courts and been the subject of a grant of certiorari (later dismissed when the parties mooted the question). See Hoffman v. Arave, 455 F.3d 926, 942-43 (9th Cir. 2006), cert. granted, 128 S.Ct. 532, 532-33 (2007), vacated as moot, 128 S.Ct. 749 (2008). Respectfully, I dissent.
Seeking reports from today's NYC regional Sentencing Commission hearing
As noted in this recent post and as detailed in this brief public notice, the US Sentencing Commission starts today another of its terrific regional public hearings. This third regional public hearing is in New York City; this official agenda now not only details the fascinating and diverse group of invited witnesses, but also links fomr of the witnesses' written testimony.
As I said before, I am hopeful (though not really optimistic) that this regional hearing might get a little extra press because it is taking place in New York. Moreover, because I am eager to provide whatever coverage I can from afar in this forum, I hope that any and everyone involved with the hearing might send me information or reports on the event (or use the comments to talk about what's happening).
UCLA Law Review symposium on Heller and the Second Amendment
Thanks to this post at Concurring Opinion, I see that the UCLA Law Review has now published a terrific (and large) issue devoted to "The Second Amendment and the Right to Bear Arms After D.C. v. Heller." This issue, which has more than a dozen cutting-edge pieces, looks like a must-read for not only gun gurus, but also folks interesting in modern debates over constitutional interpretation and public-safety regulations.
As regular readers know, I am very interested in examining if and when Heller and the Second Amendment will (1) impact prohibitions on gun possession for felons and misdemeanants, and (2) impact severe gun sentences. Consequently, I will be grateful to anyone who helps me see if and where the articles in this issue speak to these matters.
A few related Heller and Second Amendment posts:
- First(?) significant(?) Second Amendment ruling favoring a federal criminal defendant
- District Court rejects Second Amendment claim from misdemeanant
- Another (too?) brief opinion rejecting misdemeanant's Second Amendment claim
- SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
- Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
- The lack of originalist justification for excluding felons from the Second Amendment
- Assailing the unjustified Second Amendment limits in Heller
- Notable new Alaska appellate decision on denying gun rights to non-violent felons
- "Why Can’t Martha Stewart Have a Gun?"
- What might 2009 have in store for . . . Second Amendment jurisprudence?
July 8, 2009
Are quirky supervised release conditions getting out of hand?
A little unpublished per curiam opinion from the Eighth Circuit today in US v. Lacey, No. 07-2436 (8th Cir. July 8, 2009) (available here), prompts the question in the title of this post. In Lacey, the defendant "pleaded guilty to possession of child pornography ... and the district court sentenced him within the unobjected-to Guidelines range to 115 months in prison and 15 years of supervised release." As the brief opinion reveals, this sentence included a "special supervised-release condition banning [Lacey] from gambling or entering any casino upon being released."
The opinion does not explain how or why this quirky condition was added to the defendant's term of supervised release. The Laceyopinion merely states that though "this condition may have been overbroad or unrelated to Lacey’s circumstances, we find its imposition did not amount to plain error requiring reversal." Also, the opinion adds this cite: "United States v. Silvious, 512 F.3d 364, 371 (7th Cir. 2008) (recognizing as overbroad and arbitrary certain special conditions of supervised release, including ban on gambling where there was no evidence that defendant had gambling problem, but finding no plain error because there was no showing that conditions affected defendant’s substantial rights, and conditions were readily modifiable at defendant’s request)."
The Lacey case leads me to these (and other) questions:
- Does anyone know how or why a quirky anti-gambling condition is now being added to some supervised release terms?
- Does this condition mean the defendant in Lacey cannot even participate in a neighborhood poker game (or an NCAA pool or a fantasy baseball league) for 15 years after he is released?
- Are there other similar quirky supervised release conditions showing up in more cases these days?
This inquiring blogger not only wants to know about this case, but also whether quirky supervised release conditions present a federal sentencing issue worthy of greater attention and concern.
The "Bernie benchmark" already brought to bear in Dreier case
Right after last week's sentencing of Bernie Madoff, I explained here why I thought Judge Chin's decision to impose a sentence of 150 years really mattered for the federal sentencing system. As I explained in this post, "though the choice of this magic sentencing number of 150 years — as opposed to 30 years or 50 years or 100 years — really means very little to Bernie Madoff, it could end up meaning a lot to the government and to some future defendants as a new white-collar sentencing benchmark."
This new article from Reuters, which is headlined "U.S. seeks 145-year sentence for NY lawyer," suggests I do not have too long to say "told ya." Here are the basics:
U.S. prosecutors on Wednesday asked a judge to sentence high-profile New York lawyer and admitted fraudster Marc Dreier to 145 years imprisonment or a term that ensures he spends the rest of his life in prison. Dreier, 59, pleaded guilty in May to running a $400 million investment fraud involving fake promissory notes and he was released into house arrest until his sentencing on July 13.
While the size of the fraud is dwarfed by comparison with the estimated $65 billion disgraced financier Bernard Madoff admitted to swindling, prosecutors asked for a similar term of incarceration, the highest allowed by sentencing guidelines. Madoff, 71, was sentenced to 150 years in prison on June 29.
In a memorandum to U.S. District Court Judge Jed Rakoff, prosecutors wrote that Harvard and Yale educated Dreier, despite his advantages "decided to seek vast personal riches and prestige through a life of fraud and through dishonor to his profession."
The memorandum concluded that "a reasonable sentence in this case would be the guidelines' sentence of 145 years, or alternatively, a term of years that would assure that Dreier will remain in prison for life and forcefully promote general deterrence."
Dreier's lawyer Gerald Shargel suggested the judge give his client between 10 years and one month and 12 years and seven months in prison as an appropriate sentence. Dreier is "profoundly remorseful" and has done what he can to make amends for his crimes, Shargel said in his sentencing memorandum.
Law professor letter supporting Judge Sotomayor with lots of signatures
This press release from Columbia Law School, which is titled "Nearly 1,200 Law Professors Unite to Back Sotomayor Nomination to Supreme Court," reports on an effort to which I have devotes a bit of time and energy. Here are the details from the press release:
Daniel Richman, professor of law at Columbia Law School, announced today that 1,181 law professors from across the country have signed a letter sent to the Senate Judiciary Committee in uncharacteristically unified support of the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court.
The letter, which the Committee received today, concludes: “Judge Sotomayor will bring to the Supreme Court an extraordinary personal story, academic qualifications, remarkable professional accomplishments and much needed ethnic and gender diversity. We are confident that Judge Sotomayor’s intelligence, her character forged by her extraordinary background and experience, and her profound respect for the law and the craft of judging make her an exceptionally well-qualified nominee to the Supreme Court and we urge her speedy confirmation.”
Richman, a former chief appellate attorney and assistant U.S. attorney for the Southern District of New York, is one of many legal scholars throughout the country who helped gather signatures. He said that getting signatories was easy, citing “broad support in law schools for this historic nomination.”...
As suggested by prior posts like this one and this one, I am supporting of Judge Sotomayor's confirmation not only because her professional history suggests she will be attentive and and helpful to the criminal justice side of the SCOTUS docket, but also because I have been deeply impressed by Judge Sotomayor's commitment to the craft of judging as demonstrated by her extraordinary work in the recent Cavera opinion and in some of her other sentencing opinions.
Two (very?) important rulings on sentencing authority from the Sixth Circuit
Today the Sixth Circuit published two important sentencing opinions: a long new one covering lots of issues in US v. Herrera-Zuniga, No. 08-1540 (6th Cir. July 8, 2009) (available here), and a short older and previously unpublished one in US v. Perez-Vasquez, No. 07-6390 (6th Cir. April 30, 2009) (available here). I think both are today's must-reads even for federal sentencing practitioners outside the Sixth Circuit.
In both Herrera-Zuniga and Perez-Vasquez, the Sixth Circuit panel rejects defendants various claims that their sentences are unreasonable. In so doing, however, both opinions include passages discussing the nature and scope of the discretion of district judges at sentencing than seem likely to make federal defense attorneys happier than federal prosecutors.
As the title to this post is meant to suggest, I am confident when I describe both opinions as important. But I will need a bit more time to review and reflect on whether either or both are VERY important. Perhaps federal sentencing practitioners both inside and outside the Sixth Circuit can help me figure this out.
In praise of Texas justice (and shame on the press and public policy activists) on juve LWOP
Thanks to a comment to this post, Scott of Grits for Breakfast informed me that "Texas abolished life without parole for juveniles this year legislatively. The Governor signed it. It's now a 40-year minimum for juveniles convicted of capital murder in TX. Here's the legislation." In addition to being quite pleased and impressed that Texas passed legislation to reduce sentences for certain juvenile killers, I was troubled that I had completely missed this interesting and important story about a change to Texas justice.
I then spent some time this morning looking for press reports about this new legislation and/or materials about this notable Texas reform from various public policy groups that focus on juvenile justice issues. Disappointingly and aggravatingly, I could not find ANY significant media coverage or materials from public policy groups about this reform to Texas justice. (Grits had a few helpful posts on bill here and here and here, but these posts only confirmed my sense that this Texas story deserves a lot more attention.)
The troublesome silence about the Texas reform is especially notable because many folks are now focused on juve LWOP issues because of the Supreme Court's decision to consider the constitutionality of two non-murder) juve LWOP cases from Florida. And, as death penalty fans know, state legislative developments are central to the Supreme Court's modern Eighth Amendment jurisprudence. I sure hope that folks writing briefs in the SCOTUS cases of Graham and Sullivan are aware of this recent important reform in Texas justice even though it has been overlooked and ignored by the media and public policy groups.
Because I am eager to know a lot more about this Texas reform to severe juve sentencing, I hope anyone and everyone with additional information and/or materials concerning this legislative change will send stuff my way (or provide links in the comments to this post).
What are proper sentencing considerations for forty-year-old crimes?
This article, headlined " Elderly Man Appeals Sentence On Historic Sex Charges," present is an interesting sentencing story from New Zeland:
Neville Earnest Hearling, then 76, from Wanganui, was sentenced in March to three years and three months in prison. He was convicted of performing indecent acts on several boys, aged between nine and 15, when he was a softball and rugby league coach in the 1960s and 1970s.
When interviewed for a pre-sentence report Hearling claimed he could not be held responsible for his actions as he had a mental illness, prosecutor Nick Webby said. "I may have offended but I am not taking full responsibility for it because of my illness," Hearling told a probation officer.
In the Court of Appeal today defence counsel Jonathan Wiles said the starting point for the sentence was too high. Justice Forrest Miller said there had been no evidence provided that Hearling did in fact suffer from mental illness.
Mr Wiles then produced a doctor's report in which Hearling was diagnosed with depression and possible early signs of dementia.... Mr Wiles then drew attention to Hearling's age and described him as, "a frail old man" who would struggle in jail.
Crown prosecutor Megan Inwood told the court Hearling had already received a "generous" discount of nearly 50 percent on his sentence for those reasons plus his guilty plea.
Justice Randerson said it was a difficult case to consider as if the victims had complained sooner, Hearling would not have enjoyed such a discount for his age. Justice Ellen France said Hearling had also benefited from more lenient sentencing guidelines introduced after his offending. The court reserved its decision.
This report makes unclear whether the defendant here claims that he had a mental illness at the time of his crimes or just now as he finally is to pay for his crimes. Whatever the particulars, it is hard to disagree with the sentiment of the Justice who called this a "difficult case" because so many decades elapsed between the time of the crime and the time of sentencing.
July 7, 2009
"Sotomayor Seen As Moderate On Criminal Justice"
The title of this post is the headline given to this segment that ran this afternoon on NPR's All Things Considered. Here is how the segment is described:
Analysts see Judge Sonia Sotomayor as a moderate whose decisions in criminal cases rarely differ from those of her colleagues on the federal bench. Some say her experience as a prosecutor and her record on the bench might make her more conservative than Justice David Souter on criminal justice issues.
Some recent posts about Judge Sotomayor's criminal justice record:
- Will Judge Sotomayor make SCOTUS less friendly to criminal defendants?
- 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
- Notable background parallels between Judge Sotomayor and Justice Alito
- Any predictions on how a Justice Sotomayor would approach capital cases?
- Examining Judge Sotomayor's years as a New York state prosecutor
- Examining Judge Sotomayor's criminal justice record
Gearing up for the SCOTUS juve LWOP cases on the horizon
I was pleased to receive word this week that the Institute of Bill of Rights Law had chosen one of the two juve LWOP cases, Sullivan v. Florida, for its moot court event as part of its Supreme Court Preview 2009-2010. The Institute's decision to moot this juve LWOP case confirms my instinct that Sullivan (and the companion case Graham) are perhaps the most important and interesting cases on the Supreme Court's current docket.
Adding to my excitement, today I came across this effective new piece about Graham and Sullivan from the online magazine Miller-McCune.com. The piece is titled "Should Minors Ever Face Life Without Parole?," and here are a few excerpts:
In the term beginning this October, the Supremes will hear two cases — one involving a 13-year-old sex offender, the other a 17-year-old probation violator present when a felony murder occurred — both aiming to challenge life-without-parole sentences for juveniles (known by the unwieldy acronym JLWOP). Concurrently, the House Subcommittee on Crime, Terrorism and Homeland Security has been gathering testimony on a bill that would mandate parole hearings for JLWOP prisoners. The bill covers federal cases and gives states a financial incentive to comply with its terms.
"There is so much attention on this issue right now," says Baylor Law School professor Mark Osler, who has testified in favor of the proposed House bill, H.R. 2289. "I think in part it's because you have groups doing a good job advocating on it, and the idea is becoming more and more prevalent — that instead of wholesale change, we are smoothing off the rougher edges of the justice system, and that includes a focus on children."
Opponents to a change suggest that a focus on the prisoners as children, and not offenders, is wrong-headed and ahistorical. In its brief before the Supreme Court in the 13-year-old sex offender case, the State of Florida Attorney General's Office wrote, "Outside the context of the death penalty, this Court has always examined whether a sentence is grossly disproportionate under the Eighth Amendment by examining the sentence in relation to the offender's instant offense and prior offenses, not the individual characteristics of offender, such as age or mental capacity."...
The United States is one of the few countries that hand out JLWOP sentences. A 2005 Amnesty International study found that life without parole for juveniles is theoretically available in a dozen countries, but besides the U.S., only three others actually had teens serving such sentences — Israel with seven, South Africa with four and Tanzania with one.
In contrast, Sentencing Project Executive Director Mark Maurer noted in his testimony before the House subcommittee that 2,500 U.S. teenagers are incarcerated with no hope of release, most of them people of color. A majority of these — as many as 60 percent — are first-time offenders, and more than one quarter were convicted of felony murder, meaning they were participating in a crime when a murder occurred, but didn't do the actual killing.
Other recent posts on juve LWOP and the Graham and Sullivan cases:
- NYTimes coverage of very young lifers
- Does Roper suggest young juve LWOP is unconstitutional?
- Juves serving life terms
- The next issue in sentencing of juveniles?
- New HRW report assailing juve LWOP in California
- LDF report documents disparities in juve LWOP in Mississippi
- SCOTUS grants cert in Sullivan, juve LWOP case
- The (unpreserved?) procedural issues in Graham juve LWOP case
- What might (and should) DOJ and other potential amici say about Graham and Sullivan?
- Analyzing the cert grants in both Graham and Sullivan
- House hearing on bill to eliminate juve LWOP sentences
Defense attorneys arguing for lower sentence because Travis Henry was "duped" into drug crime
This new story from USA Today, headlined "Lawyers: Travis Henry 'duped,' deserves light sentence," indicates that another NFL player in trouble with the law is hoping to run to sentencing daylight with a notable sent of legal moves:
Attorneys for Travis Henry say the former NFL running back deserves a light sentence in his federal cocaine trafficking case because he was "duped" by friends in the drug trade.
Federal agents have described Henry as the "money guy" in an operation that moved cocaine between Denver and Billings before it was busted up last year. Henry, of Frostproof, Fla., pleaded guilty in April to trafficking at least 11 pounds of cocaine and faces a possible 10 years or more in federal prison.
His attorneys say Henry was taken advantage of by his co-defendants — at a time when he was under "severe emotional and mental distress" following his release from the Denver Broncos last year. Sentencing is set for July 15, before U.S. District Judge Richard Cebull in Billings.
Ninth Circuit discusses consideration of state-federal disparities after Booker
In a narrow little opinion today in US v. Ringgold, No. 06-10492 (9th Cir. July 7, 2009) (available here), the Ninth Circuit discusses the consideration of state-federal disparities after Booker. Here is how the opinion starts:
This appeal concerns the question whether, after United States v. Booker, 543 U.S. 220 (2005), a district court abuses its discretion by declining to consider the disparity between a recommended Guidelines sentence and the maximum sentence a defendant would receive if convicted of the same conduct in state court. Under the circumstances presented by this case, we hold that the district court did not abuse its discretion or commit procedural error in declining to consider such a disparity. Additionally, we hold that the sentence imposed by the district court was not substantively unreasonable.
Important research that could help with reentry efforts
This new article in USA Today, which is headlined "Study could ease concerns over hiring ex-offenders," provides a report on a new study that has the potential to help reentry efforts for ex-offenders. Here are the basics:
A study funded by the Justice Department concludes that over time accused robbers, burglars and batterers pose no greater risk to employers than job candidates in the general population.
In a review of 88,000 arrestees in New York state, Carnegie Mellon University investigators found, for example, that after about 7 1/2 years the "hazard rate" for an 18-year-old first-time arrestee for robbery declined to the same rate as an 18-year-old in the general population. For 18-year-olds arrested for aggravated assault, it took about four years to reduce the risk. Hazard rates are calculated based on the time the suspect remains free from re-arrest. The calculation also accounts for the fact that risk of arrest generally declines with age.
"We believe that our analysis provides the criminal justice community with the first scientific method for estimating how long is long enough for someone with a prior record" to no longer be considered a special risk, according to the study authored by Carnegie Mellon criminologist Alfred Blumstein. Blumstein and other criminal justice analysts say the ongoing research could ease employers' concerns about hiring former offenders and perhaps spark new legislative proposals to limit the liability for employers who do hire them....
The Society for Human Resource Management estimates that 80% of U.S. employers perform background checks. An estimated 74 million criminal records were contained in automated databases across the U.S., according to the Bureau of Justice Statistics. "Computerized criminal records can have long memories, and this (study) is intended to provide guidance for imposing some limits to that memory," Blumstein says.
The study focused on three offenses — robbery, burglary and aggravated assault — because they represented some of the largest sample numbers. Murder was not included in the report and will not be part of future reports, because, Blumstein says, "nobody fully redeems a murderer."
"People are finally starting to get it. They would rather see people working, than to shut people out," says Veronica Ballard, a vice president of the Safer Foundation, which helps ex-offenders find work.
Rep. Danny Davis, D-Ill., a sponsor of the Second Chance Act legislation designed to re-integrate offenders back into society, says any measure that might encourage potential employers to hire ex-offenders is a "powerful" tool.
"Improving Prison Oversight to Address Sexual Violence in Detention"
The title of this post is the title of a new "Issue Brief" by Melissa Rothstein and Lovisa Stannow being distributed by the American Constitution Society. The issue brief can be downloaded at this link, and here is the ACS's description of the paper:
In 2003, Congress focused national attention on the problem of sexual violence in our prisons, jails, and detention facilities when it passed the Prison Rape Elimination Act (PREA). A commission created under the law just completed a comprehensive, five-year process that resulted in recommended national standards designed to address the problem, and Attorney General Eric Holder has one year to review the recommended standards and adopt final binding national standards. When adopted, the standards will immediately apply to all federal detention facilities, and states will have one year to certify their compliance or risk losing 5% of their federal corrections-related funding. Rothstein and Stannow argue that the national standards "have the potential to dramatically improve the safety of corrections facilities nationwide for officers and inmates alike."
In their Issue Brief, Rothstein and Stannow discuss the urgent need for national standards addressing sexual abuse in detention, in addition to a strong monitoring system to improve safety in detention facilities. The authors detail the problem of sexual violence in detention and its systemic and managerial underpinnings. They then discuss the recommended national standards, and examine the need for improved corrections oversight and the vital role that the national standards can play. Finally, Rothstein and Stannow conclude by urging the Attorney General to ratify the recommended standards, as well as establish a strong, independent mechanism for measuring compliance.
Recent related posts:
- Major report on combatting prison rape finally released
- Prosecuting prison rape
- New York Times editorial on combatting prison rape
A worldly perspective on different execution methods
This BBC article, headlined "Top Indian court upholds hangings," highlights that, outside the United States, not everyone believes that lethal injection is the only way to carry out an execution:
India's Supreme Court has rejected a petition to replace hanging with lethal injection as the country's sole method of execution. The court said there was no evidence to suggest that hanging was less painful. Activist Ashok Kumar Walia had argued that hanging was a "cruel and painful" method of execution and should be replaced by lethal injection.
Indian authorities say the death penalty is rarely carried out and is usually reserved for serious cases. Apart from a single execution in 2004, there have been no executions in the country for the past 10 years.
"How do you know that hanging causes pain? And how do you know that injecting the condemned prisoner with a lethal drug would not cause pain?" Chief Justice KG Balakrishnan was quoted by the Times of India newspaper as saying.
Justice Balakrishnan and Justice P Sathasivam said that experts believe that hanging - meant to dislocate the neck and sever the spinal cord -- caused instant death. "Many countries, still practising death penalty, have various methods of execution -- death squad which guns down a condemned prisoner from close range, hanging by the neck, electric chair and by injecting a lethal drug. "In India, we have a very, very liberal sentencing system based on a humane law. The courts in the rarest of the rare cases award death sentence," the newspaper quoted the judges as saying.
"Open to the public: U.S. Supreme Court should allow broadcast of oral arguments"
The title of this post is the headline of this editorial from my local Columbus Dispatch. Here are a few excerpts:
Watching and listening as America's top jurists and leading advocates hash out the fine points of the most important issues facing the nation would greatly enhance public understanding of the court. Broadcasting the oral arguments -- about 75 per year, typically lasting an hour or so -- would open a window into what is probably the least understood part of federal government.
The all-government, all-the-time cable network C-SPAN has been pushing for camera coverage of court proceedings since 1988. Pennsylvania Sen. Arlen Specter, formerly a Republican, also has urged cameras in the courtroom, twice unsuccessfully introducing legislation to require the court to allow cameras.... Specter, a member of the Senate Judiciary Committee, has put Sonia Sotomayor, President Barack Obama's nominee to replace Souter, on notice that he'll be asking in her confirmation hearing about her views on the matter.
Law and logic are on the side of openness in courts. The Constitution requires most court proceedings to be open to the public; in the age of electronic communication, little reason exists for limiting the public to those who can fit into the physical space of the courtroom.
Most state courts, including those in Ohio, have been open to cameras for many years. The Ohio Supreme Court has been broadcasting its own oral arguments since moving into the renovated Ohio Judicial Center in 2004, and Ohio's Chief Justice Thomas J. Moyer considers it a major success, for allowing a greater public understanding of how the court works.
He strongly supports the idea of broadcasting U.S. Supreme Court arguments, calling it "a marvelous educational opportunity" that would impress viewers with the quality of arguments put before the court and questions asked by justices. "People come from around the world to study our system of justice," Moyer said. "We should be proud of it and show it off."
Speaking as both a law professor and a law blogger, I remain terribly disappointed that the Justices continues to prevent public access to the nation's highest court. I am hopeful that Senator Specter pushes hard on this front and that Judge Sotomayor becomes a vocal supporter of allowing broadcasting of Supreme Court arguments.
Of interesting around the blogosphere
Here are just a few of the great recent posts which ought to be of interest to sentencing fans that I noticed around the blogosphere:
From Concurring Opinions here, "Truthseeking and Criminal Procedure in the Supreme Court’s Last Term"
From Crime & Consequences here, "The 5-4 Cases in Crim. Law"
From PrawfsBalwg here, "Mass Imprisonment: The Birth of a Social Problem"
July 6, 2009
Will bad facts doom a double jeopardy claim brought to SCOTUS in capital case?
This new article in the Washington Post, headlined "Va. Inmate's Lawyers Argue Double Jeopardy," raises the age-old question of whether bad facts often make for bad law. Here are the basic details (which read almost as if they created by a screen-writer in Hollywood):
Lawyers for a Virginia inmate scheduled to die next week for killing a 16-year-old -- then bragging about it to prosecutors when he thought he couldn't face the death penalty -- are asking the U.S. Supreme Court to stop the execution.
Paul Warner Powell's lawyers argue that he was unconstitutionally convicted twice for the 1999 murder and attempted rape of Stacie Reed. Powell, 31, was convicted in 2000 of killing Reed and raping and trying to kill her 14-year-old relative. He was sentenced to die for Reed's murder.
The Virginia Supreme Court overturned Powell's capital conviction, saying that Prince William County prosecutors failed to prove Powell tried to rob or rape Reed. In order to face capital punishment, defendants must commit other crimes against the victim or meet other aggravating circumstances.
Thinking he could no longer face the death penalty, Powell wrote a profanity-laced, taunting letter to prosecutors offering graphic detail of how he tried to rape Reed before he stabbed her three times and stomped on her throat until she quit breathing. "Do you just hate yourself for being so stupid and for (messing) up and saving me?" he wrote to Commonwealth's Attorney Paul Ebert in 2001.
Ebert threw out Powell's earlier indictment and charged him with killing and attempting to rape Reed. Powell was convicted again in 2003 and given the death penalty.
Powell's lawyers asked the U.S. Supreme Court to block the execution until it can decide whether his second capital murder charge violated the Fifth Amendment's protection against being tried twice for the same offense. They argue that convicting Powell the second time "sets a dangerous precedent in which prosecutors now may pursue multiple attempts to secure a sentence of death."
State and federal courts have repeatedly rejected Powell's double jeopardy argument, saying that the original charge was different because he was not accused of attempting to rape Reed.
A divided federal appeals court panel once again denied Powell's claim in April, with Justice Roger L. Gregory dissenting. Gregory called Powell's crime "atrocious" but said his second conviction amounted to double jeopardy.
"Given the explicit details revealed by Powell in his letter to the Commonwealth's attorney, one understands the strong inclination to prosecute Powell for those heinous acts," he wrote. "Yet, it is in these very cases that we must be most vigilant in protecting our long-standing constitutional guarantees."
Ebert said he didn't think the court would stop the execution because Powell was tried for two separate crimes. "The two things have entirely different elements, entirely different facts, entirely different victims," he said. "It's not double jeopardy."
The Fourth Circuit's split decision in Powell v. Kelly, No. 08-3 (4th Cir. April 15, 2009), can be accessed at this link.
A high-profile case providing a Canadian perspective on white-collar sentencing
This Bloomberg news article, headlined "Prosecutor Seeks 8-10 Years for Ex-Broadway Producers," provides an interesting comparative perspective on white-collar sentencing debates. Here are a few excerpts:
Garth Drabinsky and Myron Gottlieb, once Broadway producers with hits like “Ragtime,” should spend 8 to 10 years in prison for defrauding investors of millions of dollars, prosecutor Alex Hrybinsky said today at the start of a sentencing hearing in Toronto.
Drabinsky, 59, and Gottlieb, 65, were charged by police in October 2002 with lying about finances at the defunct theater producer Livent Inc. for nine years as they raised about C$500 million ($431 million) to buy theaters in Toronto, Chicago and New York and paid for increasingly lavish productions, including “Fosse” and “Phantom of the Opera.” “This is an enormous fraud,” Hrybinsky said at the hearing. “A sentence of 8 to 10 years is merited.”...
Drabinsky’s lawyer Edward Greenspan urged the judge to consider his client’s contribution to Canadian theater, Toronto’s economy and to use compassion in sentencing considering Drabinsky has suffered from the effects of polio since the age of 4 that left him partially disabled and in pain. “It makes incarceration more difficult,” Greenspan said. “In a practical sense, it makes it more punitive.” Greenspan suggested that Drabinsky should be given a conditional sentence of two years, less a day, of which a year could be served under house arrest and three years probation....
Drabinsky and Gottlieb are fugitives from U.S. law, having being indicted in 1999 on similar fraud charges by a federal grand jury in New York. They have refused to appear in a U.S. court. The U.S. has an extradition request on hold, pending the outcome of the trial in Toronto. Their case has been compared with that of Conrad Black, the former chairman of newspaper publisher Hollinger International Inc. Black was sentenced to 6 1/2 years in prison following a trial in Chicago where he was convicted of defrauding company shareholders of $6.1 million and obstructing justice.
“Conrad Black’s sentence would have been somewhat more lenient if he were prosecuted in Canada,” said Alan Mark, chairman of the Toronto Litigation Group at Ogilvy Renault, who wasn’t involved in the Livent case. “There was a lot of tension between sentencing practices in Canada and the U.S. in Hollinger.”
Interesting case, eh?
Hoping criminal justice issues get attention in upcoming SCOTUS confirmation hearing
The National Law Journal has this new piece, headlined "A dozen themes frame Sotomayor hearing," that should help whet appetites for the upcoming Senate confirmation hearing for Judge Sotomayor's elevation to the Supreme Court. Disappointingly, though not surprisingly, the piece does not mention either Sotomayor's past as a state prosecutor or the current importance (and flux) of huge areas of criminal law jurisprudence as a theme to watch.
It is notable (and probably worthy of some extended analysis) that members of Congress seem so eager to make much of crime and punishment issues in some settings, but then often seem eager to completely ignore these issue in modern confirmation battles. Of course, the obviously explanation is political: bringing up issues during confirmation hearing concerning, say, Blakely and Crawford Sixth Amendment jurisprudence or Booker and the future of federal sentencing does not score any obvious political points with any obvious constituencies.
I can and will continue to hope that at least a few Senators might look past short-term political concerns and consider asking questions that might prompt Sotomayor to engage publicly with criminal justice issues that are likely to be of critical importance for many SCOTUS terms to come. As detailed in some prior posts below, these issues extend beyond the obvious topics of the death penalty and mandatory minimums to "brave new world" topics like GPS tracking and other technocorrections.
Some recent and older posts about Judge Sotomayor and SCOTUS sentencing topics:
- Will Judge Sotomayor make SCOTUS less friendly to criminal defendants?
- 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
- Notable background parallels between Judge Sotomayor and Justice Alito
- Any predictions on how a Justice Sotomayor would approach capital cases?
- Examining Judge Sotomayor's years as a New York state prosecutor
- Examining Judge Sotomayor's criminal justice record
Potent DOJ response to ABA Journal article about federal child porn sentencing
As noted in this post last month, the June issue of the ABA Journal includes this long article on the debate over federal child porn sentencing titled, "A Reluctant Rebellion." I just learned about this extended response to the article coming from Alexandra Gelber, the Assistant Deputy Chief of Child Exploitation and Obscenity Section of the Criminal Division of the US Department of Justice. Here is how the extended response starts:
I write in response to Mark Hansen’s article “A Reluctant Rebellion,” which appeared in the June 2009 issue of the ABA Journal. Although Mr. Hansen’s article raises questions about the child pornography sentencing guidelines, his piece speaks to a much more fundamental question about the legitimacy of the crime at issue. While Mr. Hansen does not explicitly argue that the collection, trade, viewing, and possession of images depicting the sexual exploitation and abuse of children should be legal, he does strongly question whether the crime should be treated as seriously as it currently is under federal law. Indeed, he writes, “Critics say the mandatory and recommended penalties for child porn offenses under the guidelines far exceed the seriousness of the crime committed by the typical offender who is swapping and downloading child porn online with other like-minded individuals in the presumed privacy of his own home.”
Mr. Hansen’s article perpetuates fundamental misunderstandings about the nature of the crime, the offenders, and the law. When properly understood, the substance and structure of the criminal provisions and sentences for these pernicious crimes show an appropriate response to an exploding crime problem.
Some related federal child porn prosecution and sentencing posts:
Should we feel good or bad about feeling good about how bad Madoff got punished?
A helpful reader sent along this intriguing little piece discussing the virtues and vices of human instincts for imposing "altruistic punishment." The piece is titled "Are humans cruel to be kind?" and here is a snippet:
Our sense of fairness and our willingness to inflict damage on one another combine to encourage contributions to the common good and deter people from cheating. Researchers call this altruistic punishment. "But at the end of the day, it's still spite," says economist Benedikt Herrmann of the University of Nottingham, UK. The benefits of this constructive spite might not be immediate, but they are real -- in the long run, we all benefit more if we can ensure others in society toe the line.
Our brains are certainly wired to respond positively to this constructive form of spite. Although we might lose out financially, scans show that a region called the striatum, which responds to rewarding experiences, lights up during altruistic punishment. So, problem solved. Spite is in our own best interests and our brains reward us for it, so we should welcome it, right?
Not quite. The problem is that it's not only doing bad things to bad people that makes us feel good. Recent studies have shown how the striatum responds in the same way to schadenfreude, when we take a morally dubious pleasure in others' misfortunes. Adolescent boys with aggressive conduct disorder show similar brain activity when they watch a video of someone hurting another person.
Sadism aside, it is easy to imagine why evolution might have wired us up like this, according to Hidehiko Takahashi of the National Institute of Radiological Sciences in Chiba, Japan, leader of the schadenfreude study. "Altruistic punishment might bring an indirect benefit to us from society, and schadenfreude a direct benefit from a rival." But it also suggests that the line between the cooperative and competitive prompts for spiteful behaviour is blurry and subjective. If the prospect of bankrupting a few fat cats gives us a twinge of pleasure, it is hard to say whether that is because we believe they have robbed society, or because we are envious of their wealth and success and happy to see them toppled.
Though this article was published a few month ago, it is especially interesting to consider in the wake of last week's sentencing of Bernie Madoff. Specifically, I wonder whether it is good or bad to feel good about the book getting thrown at Madoff.
Most recent Madoff sentencing posts:
- Madoff gets sentenced to max of 150 years in federal prison!
- A new white-collar benchmark: the main reason the number 150 matters in Madoff
- Should Bernie Madoff bother to appeal his sentence?
- "Is 150 Years Appropriate, or Just Silly?"
UPDATE: A commentor has suggested that "Frank Rich's column in the Sunday NYT was the best reflection of the Bernie Madoff sentence. That column, headlined "Bernie Madoff Is No John Dillinger," can be accessed here and starts this way:
The judge condemned Bernie Madoff’s crimes as “extraordinarily evil.” The New York Daily News, whose publisher was a Madoff victim, chose “The Pariah” as its front-page headline and promised that the dastardly villain would suffer “everlasting consumption in the jaws of the devil.” The Times declared that the Madoff case, by attaching a human face to a financial meltdown that produced fear, panic and loss, had “put an entire era on trial.”
But for all this rhetorical thunder, Madoff’s 150-year sentence still seemed an anticlimax, as if the trial of the century had ended without a verdict. There was no national catharsis. The news landed with something of a thud. On the most-watched network newscast, “NBC Nightly News,” it received second billing to Day Four of updates on Michael Jackson’s death.
July 5, 2009
"When Governments Kill: A conservative argues for abolishing the death penalty"
The title of this post is the heading for this notable commentary by renown conservative Richard Viguerie, which appears in the July 2009 issue of Sojourners Magazine. Here are snippets (with emphasis in the original):
The fact is, I don’t understand why more conservatives don’t oppose the death penalty. It is, after all, a system set up under laws established by politicians (too many of whom lack principles); enforced by prosecutors (many of whom want to become politicians — perhaps a character flaw? — and who prefer wins over justice); and adjudicated by judges (too many of whom administer personal preference rather than the law).
Conservatives have every reason to believe the death penalty system is no different from any politicized, costly, inefficient, bureaucratic, government-run operation, which we conservatives know are rife with injustice. But here the end result is the end of someone’s life. In other words, it’s a government system that kills people.
Those of us who oppose abortion believe that it is perhaps the greatest immorality to take an innocent life. While the death penalty is supposed to take the life of the guilty, we know that is not always the case. It should have shocked the consciences of conservatives when various government prosecutors withheld exculpatory, or opposed allowing DNA-tested, evidence in death row cases. To conservatives, that should be deemed as immoral as abortion.
The death penalty system is flawed and untrustworthy because human institutions always are. But even when guilt is certain, there are many downsides to the death penalty system. I’ve heard enough about the pain and suffering of families of victims caused by the long, drawn-out, and even intrusive legal process. Perhaps, then, it’s time for America to re-examine the death penalty system, whether it works, and whom it hurts.
US Sentencing Commission holds regional hearing in New York City this week
As detailed in this brief public notice, the US Sentencing Commission has another one of its regional public hearings on tap for this week. This third regional public hearing is scheduled for July 9-10, 2009, in New York City will be held in the Ceremonial Courtroom at the US Court of International Trade.
As detailed in this official agenda, a fascinating and diverse group of invited witnesses are scheduled to testify regarding federal sentencing policy. I am hopeful that all the witnesses' written testimony will soon be made available on-line, and I am especially intrigued to see on the witness list folks like: my very first boss after I graduate law school, Second Circuit Judge Jon O. Newman; the judge who sentenced Bernie Madoff to the max, SDNY District Judge Denny Chin; the judge who write lots of great sentencing opinions, Mass District Judge Nancy Gertner; the Professor who writes lots of great structural sentencing articles, Rachael Barkow; and top cops in NYC and Newark, Raymond W. Kelly and Garry F. McCarthy.
I am hopeful (though not really optimistic) that this regional hearing might get a little extra press because it is taking place in New York. Of course, I will provide whatever coverage I can from afar in this forum.
"In Prisoners’ Wake, a Tide of Troubled Kids"
The title of this post is the headine of this effective article in the New York Times, which discusses some social science research starting to document some of the long-term consequences and lurking costs of mass incarceration. Here are excerpts:
The chances of seeing a parent go to prison have never been greater, especially for poor black Americans, and new research is documenting the long-term harm to the children they leave behind. Recent studies indicate that having an incarcerated parent doubles the chance that a child will be at least temporarily homeless and measurably increases the likelihood of physically aggressive behavior, social isolation, depression and problems in school — all portending dimmer prospects in adulthood.
“Parental imprisonment has emerged as a novel, and distinctly American, childhood risk that is concentrated among black children and children of low-education parents,” said Christopher Wildeman, a sociologist at the University of Michigan who is studying what some now call the “incarceration generation.”
Incarceration rates in the United States have multiplied over the last three decades, in part because of stiffer sentencing rules. At any given moment, more than 1.5 million children have a parent, usually their father, in prison, according to federal data. But many more are affected over the course of childhood, especially if they are black, new studies show.
Among those born in 1990, one in four black children, compared with one in 25 white children, had a father in prison by age 14. Risk is concentrated among black children whose parents are high-school dropouts; half of those children had a father in prison, compared with one in 14 white children with dropout parents, according to a report by Dr. Wildeman recently published in the journal Demography.
For both blacks and whites, the chances of parental incarceration were far higher than they were for children born just 12 years earlier, in 1978.
Scholars agree that in some cases children may benefit from a parent’s forced removal, especially when a father is a sexual predator or violent at home. But more often, the harm outweighs any benefits, studies have found.
If a parent’s imprisonment deprives a struggling family of earnings or child support, the practical consequences can be fairly clear-cut. While poor urban children had a 3 percent chance of experiencing a period of homelessness over the previous year, those with an incarcerated parent had a 6 percent chance, one study found.
Quantifying other effects of parental incarceration, like aggressive behavior and depression, is more complex because many children of prisoners are already living in deprived and turbulent environments. But researchers using newly available surveys that follow families over time are starting to home in on the impact.
Among 5-year-old urban boys, 49 percent of those who had a father incarcerated within the previous 30 months exhibited physically aggressive behaviors like hitting others or destroying objects, compared with 38 percent of those in otherwise similar circumstances who did not have a father imprisoned, Dr. Wildeman found.
While most attention has been placed on physical aggression, a study by Sara Wakefield, a sociologist following children in Chicago, found that having a parent imprisoned was a mental-health tipping point for some. Thus, while 28 percent of the children in her study over all experienced feelings of social isolation, depression or anxiety at levels that would warrant clinical evaluation or treatment, about 35 percent of those who had an incarcerated parent did....
With financial woes now forcing many states to rethink the relentless expansion of prisons, “this intergenerational transfer of problems should be included as an additional cost of incarceration to society,” said Sarah S. McLanahan, a sociologist at Princeton University and director of a national survey of families that is providing data for many of the new studies.
Heather Mac Donald, a legal expert at the Manhattan Institute, a conservative research group, agreed that everything possible should be done to help the children of people who were incarcerated. But Ms. Mac Donald said that it was hard to distinguish the effects of having a parent in prison from those of having a parent who is a criminal, and that any evaluation of tough sentencing policies, which she supports, had to weigh the benefits for the larger community. “A large portion of fathers were imprisoned on violence or drug-trafficking charges,” she said. “What would be the effects on other children in the neighborhood if those men are out there?”
Why should a serial killer be offered a deal to avoid any real punishment for multiple murders?
I find this local story from California, headlined "I-5 Strangler suspect Kibbe offered plea deal," quite troublesome:
A prosecutor said Thursday that he would allow Roger Kibbe, accused of being the so-called I-5 Strangler, to plead guilty to six murders and serve life in prison rather than face the death penalty at trial. San Joaquin County Deputy District Attorney Kevin Mayo said in court that he is preparing a plea deal he will give to the judge and the defense for 70-year-old Kibbe by the next court hearing, set for Aug. 17. "If we can reach an agreement, we will likely resolve this before trial," Mayo said.
Kibbe stands accused in the rapes and murders of six women whose bodies were dumped along the Interstate 5 corridor between Sacramento and Modesto, including at least one in San Joaquin County. The crimes date back to 1977.
Before the new charges surfaced, Kibbe was serving a prison sentence of 25 years to life on a first-degree murder conviction for killing a 17-year-old runaway in 1987 whose body was found dumped in El Dorado County. He was pulled from state prison last year and charged with killing six others: Lou Ellen Burleigh, Lora Heedick, Barbara Ann Scott, Stephanie Brown, Charmaine Sabrah and Katherine Kelly Quinones.
San Joaquin County Superior Court Judge George Abdallah in earlier hearings has urged attorneys to settle the case rather than make the victims' relatives endure the death penalty process and long appeals. He welcomed Mayo's gesture to settle. "This case has been before the court for some time," he said. "It's rather old."
Because Kibbe is already serving a life term, this proposed plea deal functionally means that he will escape any real punishment for raping and murdering six women. Especially since a mass murderer like Kibbe seems like the poster child for capital punishment, the willingness of the prosecutor (and the apparent eagerness of the judge) to resolve this case through a plea strikes me as very misguided.
If all of the relatives of all the women murdered by Kibbe are truly eager to have this case resolved via a plea, then perhaps the deal offered here would be more understandable (though I still do not think fully justified). But, as presented in this press report, I am concerned that it is principally the local judge and prosecutor who do not want the bother of a capital trial, and they are willing and perhaps eager to nullify the decision of Californians to have the death penalty a part of the state's criminal justice system.