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.