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July 15, 2009

"Sex Offender Begs For More Jail Time"

The title of this post is the headline of this new piece from ABC News that discusses sex offender residency restrictions and other challenges that sex offenders now face as they seek a return to society.  Here is how the article starts:

Florida sex offender Raphael Marquez was just released from an eight-year prison term, but now he's begging the judge to send him back.

Marquez is one of many sex offenders who have run afoul of a patchwork of laws designed to protect the public from sexual predators.  These laws require offenders to register with the communities in which they live and stay away from schools and playgrounds, leaving some who have served their time and are trying to comply with the law homeless.

Marquez was released June 20, but the only legal and affordable option he could find was a rat-infested overpass in Broward County next to a park filled with 100 other sex offenders.  "This is a very nasty crime, but I deserve a second chance," said the 38-year-old former cabinet maker who was charged with sexual battery of a 12-year-old relative.  "I am positive I won't do this again, but I need all the support and help I can get," Marquez told ABCNews.com. "I am willing to risk my life on it."

Marquez is just one of hundreds of sex offenders who are unable to find work or housing in Broward County.  One local blogger describes his plight as being "under house arrest without a home."  And the problem isn't just there.  In Miami, a legal battle has erupted over a growing colony of sex offenders who have been forced under the Julia Tuttle Causeway.  The vagrants live in shacks, creating a national dialogue over the unintended consequences of residency laws.

The headline of the article comes from the fact that Marquez realizes it will be easier (and cheaper) for him to be law-abiding in jail than on the outside:

"I'd rather be here than violate my probation and run," said Marquez, stressed and losing weight in the Broward County Jail.

July 15, 2009 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Robust legislative debate over NC Racial Justice Act

As detailed in this local article, which is headined "Death penalty bill provokes a battle: Measure moves in fractious House," legislators in North Carolina are engaged in a robust debate over a bill seeking to prevent racial bias from infecting the operation of the death penalty. Here are some excerpts:

Judges would be allowed to consider whether racial bias played a role in the decision to seek or impose the death penalty, according to a bill on which the N.C. House voted Tuesday evening after a long and emotionally charged debate.  "This is a fairness bill," said Rep. Larry Womble, the Forsyth Democrat who helped champion the bill. "If we're going to kill people, we must be as fair and objective as we can.  This allows one more chance for justice to be blind. ... It's not a get-out-of-jail free card for anybody."

Democrats cited studies showing blacks are far more likely to be sentenced to death in North Carolina than whites.  Further, a defendant is 3.5 times more likely to face the death penalty when the victim is white than when the victim is black.

Republicans strongly oppose the measure, saying its passage will clog the courts with frivolous appeals, cost millions and impose a de facto moratorium on executions. "This bill is not really about race," said Rep. Paul Stam of Wake County, the minority leader. "It's about the death penalty."

The N.C. Racial Justice Act passed its second reading in the House 61-55, with every Republican and four Democrats voting no.   A final House vote could come today, and the bill would then return to the Senate, where it may have a difficult time gaining approval and may require a compromise. That's because the House version left out a section of the Senate bill designed to help remove obstacles that have effectively halted executions for two years.  Senate leaders said that provision must be included for the Racial Justice Act to pass that chamber....

On Tuesday, Rep. Dan Ingle, a Republican from Alamance County and former law enforcement officer, dramatically threw a thick law book into his waste basket to illustrate that approving the bill would be the equivalent of trashing the state's criminal code....

Stam read an e-mail from Locke Bell, a prosecutor in Gaston County, who said that only one black man was on death row from his district, while all the rest were white. If the law were approved, the prosecutor complained, white defendants could make a good case they were being discriminated against. "I would have to seek execution of more black men to balance things out," Locke wrote.

Stam, a lawyer, attempted to make the same point using gender, saying that men are proportionally far more likely to face the death penalty than women and suggesting more women be killed for the sake of fairness.  He also raised concerns about the bill being retroactive, which would allow current death row inmates to appeal convictions that may have occurred decades ago.

July 15, 2009 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

July 14, 2009

State senator Fumo gets below-guideline sentence of 55-months imprisonment on corruption charges

FumoI got this great graphic here and the breaking news concerning the federal sentencing outcomes from state senator Vince Fumo thanks to live-blogging here from folks in Philly.  After what appears to have been a full-day sentencing hearing, Fumo should now be full of thanks toward both the US District Judge Ronald Buckwalter and his defense attorney after receiving a sentence of less than five years for his crimes of fraud and corruption. 

According to press reports, the original sentencing recommendation from in his presentence report calculated a guideline sentencing range of 21 to 27 years in prison, but this range was cut in half by an initial guideline calculation ruling.   Prosecutors, in turn, argued for the imposition of an above-guideline sentence, but the district judge apparently though 55 months behind bar was "sufficient, but not greater than necessary" under these circumstances.   Though I have not followed the particulars of this case closely, I sense that it now stands as a testament to effective defense advocacy.

This early story from the Philadelphia Inquirerprovides some more the crime and punishment details, including the amusing suggestion from one sentencing witness that life in prison may be less stressful than life on the outside:

Assistant U.S. Attorneys John J. Pease and Robert A. Zauzmer had asked Buckwalter to impose a prison sentence of more than 15 years, while defense lawyers sought a sentence substantially shorter than the 11 to 14 years that could be imposed under the sentencing guidelines calculated by the judge.

They also asked the judge to fashion a sentence that would not be tantamount to death for Fumo, who they said has a shortened life expectancy because he suffers from heart problems, diabetes and other medical issues.  A lengthy prison term, they said, would in all likelihood mean that Fumo would die in prison.

Before today's sentencing, John Menenti, a Bureau of Prison's physician, challenged that assertion and suggested that prison would be a less stressful environment than the outside world of deadlines and cell phones.

You heard it here first: if you really need to book a special, get-away-from-it-all, less-stress vacation, be sure contact the travel agents at federal Bureau of Prison.  I know on good guideline authority that if one packs effectively — e.g., extra crack instead of powder, a gun along with the sunscreen — the government will try to send you to this "less stressful environment" (with all expenses paid) for quite a long time.

July 14, 2009 in White-collar sentencing | Permalink | Comments (12) | TrackBack

Might Judge Sotomayor think the Second Amendment "deserves to be on equal footing with the First Amendment" for ex-cons?

The question in title of this post is drawn from a line from this commentary at FOXNews authored by Ken Blackwell and Ken Klukowski, which carries the headline "Sotomayor, Civil Rights and Guns."  The piece is focused principally on whether the Second Amendment should apply to the states, but it leaves me wondering whether and how the authors and others urging Second Amendment incorporation justify excluding former felons and misdemeanants from the Second Amendment:

Over the next two weeks, one of the critical issues will be your civil rights on guns.  Senators could benefit from context to understand the importance of this civil right to protect families, especially racial minorities....

When slavery ended in America after the Civil War, no civil right was more important for black Americans than the right to keep and bear arms.  We passed an amendment to the Constitution to make that possible....  History makes clear that our post-Civil War leaders considered no civil right more important in 1868, when they ratified the Fourteenth Amendment, than the Second Amendment right to keep and bear arms....

But shortly after the Fourteenth Amendment was passed, the Supreme Court held that the Second Amendment did not apply to the states, and did so twice again just a few years later.  Judge Sotomayor relied on one of these cases when she said that people have no gun rights when it comes to state or city laws.  Her supporters laud this opinion, saying that it proves she upholds precedent.

But not all precedents should be upheld.  The cases that Judge Sotomayor relied on also state that our revered First Amendment doesn't apply to the states, either.  Thankfully, the Supreme Court has long since rejected that idea.  None of Judge Sotomayor's boosters seem willing to discuss the fact that these precedents she relied on denied free speech and religious liberty against cities and states....

Clearly, sometimes precedent must be overruled.  Specifically, precedent should be overruled when doing so fulfills the original intentions of the Founding Fathers to make people free, as those intentions are found in the Constitution's text.   The Second Amendment deserves to be on equal footing with the First Amendment.

As regular readers may know, I have often embraced viewing the Second Amendment as a civil right that should "on equal footing with the First Amendment." It is this perspective that makes me so troubled by certain federal prosecutionsand severe sentences imposed on felons and some misdemeanants merely for seeking to exercise their "civil rights on guns." 

To my knowledge, it would be unconstitutional for Congress to criminalize the exercise of any First Amendment rights by all felons and some misdemeanants.  And yet, despite all the concerns expressed about Judge Sotomayor's regard for the Second Amendment, few have had the courage to even acknowledge how existing federal felon-in-possession laws undermine this "civil right" for tens of millions of Americans.  Though the Second Amendment is starting to get some play in Day 2 of the Sotomayor hearing, it seems that the truly challenging questions raised by a serious committment to Second Amendment rights are still being avoided by everyone.

Some related Second Amendment posts:

July 14, 2009 in Second Amendment issues | Permalink | Comments (3) | TrackBack

Can concerns for dollars and cents finally bring sense to federal mandatory minimum sentencing statutes?

As previously previewed here, the House Judiciary's Subcommittee on Crime, Terrorism, and Homeland Security this morning held a hearing this morning on "Mandatory Minimums and Unintended Consequences."  I cannot yet find any press reports on the hearing, but all of the written testimony from the five witnesses can be found at this House webpage

All the written testimony is worth checking out, but I found these written remarks of Grover G. Norquist, who is President of Americans for Tax Reform, to be the most refreshing.  It highlights the latest way in which the economic of harsh sentencing helps create a new push for needed reforms.  Here are excerpts from his Norquist's written testimony:

To begin with, [the] pedigree [of mandatory minimum sentencing laws] makes them highly suspect. As with so many other federal programs, mandatory minimums were hatched by the Left, later embraced by the Right, and have been maintained by a bipartisan majority....

We should know by now to beware of easy solutions.  As H.L. Mencken said, “There is always an easy solution to every human problem — neat, plausible, and wrong.”  Today, a generation later, it is increasingly clear that adoption of mandatory minimums, while a neat and plausible response to sentencing disparities, was the wrong solution....

The biggest problem from the perspective of the taxpayer, however, is that mandatory minimum sentencing policies have proven prohibitively expensive.  In 2008, American taxpayers spent over $5.4 billion on federal prisons, a 925 percent increase since 1982.

This explosion in costs is driven by the expanded use of prison sentences for drug crimes and longer sentences required by mandatory minimums.  Drug offenders are the largest category of offenders entering federal prisons each year.  One third of all individuals sentenced in federal courts each year are drug offenders.  And these convicts are getting long sentences.  In 2008, more than two-thirds of all drug offenders receive a mandatory minimum sentence, with most receiving a ten-year minimum.

The jump in corrections costs at the state level has been equally dramatic.  State corrections spending has ballooned from $6 billion in 1982 to over $50 billion in 2008.  These skyrocketing costs are hitting states at a time when they are already being forced to cut back due to the bad economy.

The benefits, if any, of mandatory minimum sentences do not justify this burden to taxpayers. Illegal drug use rates are relatively stable, not shrinking.  It appears that mandatory minimums have become a sort of poor man’s Prohibition: a grossly simplistic and ineffectual government response to a problem that has been around longer than our government itself.

Yet all is not lost.  Center-right governors like Rick Perry of Texas are trying new approaches.  A couple of years ago, Texas started sending low-level, first-time felony drug users to mandatory drug treatment rather than prison.  Before Governor Perry, it was Republican Governor — John Engler of Michigan — who signed into law the first major repeal of state mandatory minimum sentences.  Engler’s action saved Michigan taxpayers $40 million in prison costs without jeopardizing public safety.

In closing, I want to note that questioning the wisdom of mandatory minimums has nothing to do with being soft on crime.  I believe in strong and swift punishment when appropriate. I support the death penalty for murderers.  But the government has a responsibility to use taxpayer money wisely.  Viewed through the skeptical eye I train on all other government programs, I have concluded that mandatory minimum sentencing policies are not worth the high cost to America’s taxpayers.

The folks at Families Against Mandatory Minimums have this new press release about the House hearings; it makes much of Norquist's written testimony and is headed "FAMM, Unusual Allies Call for Sentencing Reform."

Some related old and new posts:

July 14, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (5) | TrackBack

Big break given to prominent former judge/prosecutor for back-end cooperation

A helpful reader alerted me to this local story of a notable white-collar defendant getting a huge back-end sentencing break for cooperation.  Here are the details:

Sam Currin, a former judge, federal prosecutor and state Republican Party chairman, was ordered released from prison after serving a fraction of a nearly six-year sentence for money laundering and obstruction. Senior U.S. District Judge W. Earl Britt made the order Monday.

Federal prosecutors recommended in May that Currin, imprisoned since 2007, have his original 70-month sentence cut in half following his testimony against a co-conspirator, David A. Hagen.

Thomas Walker, one of Currin's defense attorneys, argued in court Monday that the fallen federal prosecutor and former state judge should be granted the kind of leniency he often opposed for criminals.  Walker asked the judge to reduce the sentence to 29 months to allow Currin, 60, to be home in Raleigh in time to see his son graduate from law school next year. "He has suffered greatly," Walker said. "We're begging for the court's mercy."

Britt, who handed down Currin's original sentence and presided over the Hagen trial, went even further, commuting Currin's sentence to time served.... Under the original terms of his sentence, Currin was not due for release until April 2013.  He has been held at the Federal Medical Center at Fort Devens, Mass., though the reason he has been in the hospital has not been made public.

A conservative Republican and close aide of the late U.S. Sen. Jesse Helms, Currin served from 1981 to 1987 as the U.S. attorney for the Eastern District of North Carolina, a jurisdiction that sweeps from Raleigh to the coast.  He was a Superior Court judge from 1987 to 1990 and elected as the state's GOP chairman in 1996, serving until 1999.  At his sentencing in 2007, Currin admitted to laundering $1.3million on behalf of Hagen, an e-mail spammer who authorities said ran one of the most prolific spamming operations in the world, peddling everything from mortgages to stock picks...

In his decision Monday, Britt cited Currin's extensive cooperation with federal prosecutors.  But he also echoed Walker's observation that Currin has visibly declined while in prison.  Currin's defense attorney said both his physical health and mental condition deteriorated while staying in the Mecklenburg County jail during Hagen's two-week trial.

Picking up on the legal themes of the week, this DailyKos diary entry provides this description of the story: "Empathy explosion releases money-laundering Republican judge from prison."

July 14, 2009 in Offender Characteristics | Permalink | Comments (2) | TrackBack

Intriguing Sixth Circuit ruling on victim access to PSR

A little opinion from the Sixth Circuit yesterday In re Siler, No. 08-5215 (6th Cir. July 13, 2009) (available here), should be reviewed by any and everyone interested in victims' right to access presentencing reports and/or in defendants' rights to keep PSR's private.  Here is how the interesting opinion gets started:

This appeal arises in the context of the defendants’ criminal trial, although the issue now before us is unrelated to the merits of the Government’s case against the defendants.  Petitioners Lester and Jenny Siler sought access to the defendants’ Presentence Reports (PSRs).  The defendants were Campbell County law enforcement officers who violated Lester Siler’s constitutional rights while arresting him.  The defendants pled guilty to federal charges for their actions, and the Silers subsequently sued them for civil damages.  Following discovery in the civil case, the Silers moved the district court in each of the defendants’ criminal cases to release the defendants’ PSRs to them.  The district court denied the motions, correctly we conclude. There is no apparent authority for the release of such documents in this context.  But even if the district court did have authority to entertain the Silers’ motions, it did not abuse its discretion in denying the Silers’ motions because PSRs are confidential, nonpublic documents, and the Silers did not show that they had a special need to have access to them.

July 14, 2009 in Victims' Rights At Sentencing | Permalink | Comments (7) | TrackBack

SCOTUS grants stay in Virginia capital case raising intriguing double jeopardy claim

I noted here last week the notable case of Powell v. Kelly, a capital case from Virigina raising a notable double jeopary claim.  This Washington Examiner article reports on the latest development in the case:

The U.S. Supreme Court halted the execution of a Prince William County man who was set to die tonight so the justices could consider whether to hear arguments that Paul Warner Powell was unconstitutionally tried twice for killing a 16-year-old Manassas girl.

The order came as Virginia corrections officers were practicing electric chair procedures for the 31-year-old Powell, who in 1999 drove a knife into the heart of teenager Stacie Lynn Reed before raping and stabbing her 14-year-old sister, Kristie.

Related prior post:

July 14, 2009 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

More notable sentencing reform talk from Attorney General Holder

Yesterday, Attorney General Eric Holder gave this talk at the NAACP’s Centennial Convention. Here are the sections that speak to sentencing issues:

[W]e must keep working to build a more effective, more efficient, more equitable system of criminal justice.  A system of justice that focuses not just on punishing criminals, but also on preventing crime.  A system of justice that focuses not just on locking people away, but also on integrating former offenders back into their communities so they can build productive, law-abiding lives. And, a system of justice that applies the same penalties for offenses involving cocaine – regardless of its form.

I have seen first-hand the effect that disparities in drug sentences have had on our communities.  In my career as a prosecutor and judge, I saw too often the cost borne by the community when promising, capable young people sacrificed years of their futures for non-violent offenses.  Let me be clear: the Department of Justice will never back down from its duty to protect our citizens and our neighborhoods from drugs, or from the violence that all-too-often accompanies the drug trade.  But we must discharge this duty in a way that protects our communities as well as the public’s confidence in the justice system.

It is not justice to hand down disparate prison sentences for materially similar crimes.  It is not justice to continue our adherence to a sentencing scheme that disproportionately affects some Americans, and some communities, more severely than others.  Our goal is simple: to ensure that our sentencing system is tough and predictable, but also fair.

Some related old and new posts:

July 14, 2009 in Who Sentences? | Permalink | Comments (8) | TrackBack

July 13, 2009

Dreier gets 20-year federal prison sentence

As detailed in this Bloomberg article, "Marc Dreier, the New York law firm- founder, was sentenced to 20 years in prison for defrauding hedge funds of more than $400 million and stealing money from his clients."  Here are more details from the sentencing:

U.S. District Judge Jed Rakoff in Manhattan today sentenced Dreier, 59, to a term far shorter than the 145 years sought by prosecutors. Dreier’s lawyers asked for a sentence of as few as 10 years. Dreier was also ordered to pay $387.7 million in restitution....

“Mr. Dreier’s crimes, despicable though they may be, pale in comparison to Mr. Madoff’s,” Rakoff said, referring to investment manager Bernard Madoff who pleaded guilty in March to a $65 billion Ponzi scheme. “But one must still be appalled” by his crimes, he said. “This is a huge fraud by any standards,” the judge said....

Rakoff said that Dreier, who he said had a life expectancy of 80 years, was not “beyond redemption.” The judge said he was surprised that Dreier’s letter showed an “understanding” of his crimes. Letters that victims wrote to the judge depicted Dreier as “arrogant, condescending and cruel,” Rakoff said.

UPDATE: The New York Law Journal provides additional coverage of the Dreier sentencing in this piece, headlined "Dreier Gets 20 Years for 'Betrayal of Trust'."

July 13, 2009 in White-collar sentencing | Permalink | Comments (8) | TrackBack

"The Unexceptionalism of Evolving Standards"

The title of this post is the title of this new article from Professor Corinna Lain.  It looks like an interesting and important and timely piece with the SCOTUS confirmation hearing now on-going and the big SCOTUS juve LWOP cases on the horizon.  Here is the abstract:

Conventional wisdom is that outside the Eighth Amendment context, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the 'evolving standards of decency' doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely, and explicitly, bases constitutional protection on whether a majority of states agree with it. This Article examines the Supreme Court’s reliance on the majority position of the states to identify constitutional norms, then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While the past few years have seen an explosion of constitutional law scholarship demonstrating the Supreme Court’s majoritarian tendencies, the most powerful evidence of the Court’s inherently majoritarian nature has been right under our noses all along: its widespread use of explicitly majoritarian doctrine.

July 13, 2009 in Recommended reading | Permalink | Comments (1) | TrackBack

"States Seek Less Costly Substitutes For Prison"

The title of this post is the headline of this article from today's Washington Post.  Here is how the piece gets started:

Cash-strapped states are increasingly turning to alternative sentencing methods and to streamlined probation and parole as a way to keep low-level offenders out of prison and in their communities.

The alternative sentencing methods have been in limited use for years, often with little funding and less publicity. But recently they have gained in popularity across the country and have attracted interest from lawmakers. The measures include drug courts, which allow low-level drug offenders to avoid prison time through treatment and intense, personal, weekly intervention by a judge, and at least 500 courts for people arrested for driving while intoxicated. Drivers avoid jail by attending regular alcohol-treatment classes and by submitting to random tests.

States have also begun to shorten probation and to reduce the number of people sent to prison for technical violations, such as missing appointments. Some states are also more readily granting parole to prisoners as they become eligible, reversing a trend that kept even parole-eligible inmates locked up longer.

These trends are showing up almost everywhere as a direct response to governors and state legislatures looking with alarm at prison costs eating up increasing shares of their budgets. According to Adam Gelb, director of the Public Safety Performance Project for the Pew Center on the States, more than half the states and the District are trying to reduce the growth in their prison populations through alternative sentencing and through new probation and parole procedures.  "The economy is bringing a lot of states to the table," Gelb said, "and the research has pointed to a path for them to more public safety at less cost."

July 13, 2009 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Eighth Circuit en banc ruling finally affirms big variance after Gall GVR

The Eighth Circuit today handed down an important en banc ruling today in US v. Feemster, No. 06-2059 (8th Cir. July 13, 2009) (avaialable here).  Here is the unofficial summary of the ruling from the circuit's website:

Judge Smith, Author for the Court En Banc: For the court's prior opinions in the matter, see United States v. Feemster, 435 F.3d 881 (8th Cir. 2006) and United States v. Feemster, 483 F.3d 583 (8th Cir. 2007).  On remand from the Supreme Court for further consideration in light of Gall v. United States, 128 S.Ct. 586 (2007).  The district court provided substantial insight into   the reasons for its sentencing decision, and the government's argument  that the court failed to adequately explain its chosen sentence is rejected; district court's justification for imposing a 120-month sentence rests on precisely the kind of defendant-specific determination that are within the special competence of the sentencing courts, and the court could not say that the district court abused its discretion or imposed an unreasonable sentence.  Judge Riley, concurring.  Judge Colloton, concurring.  Judge Beam, dissenting.

Though Judge Riley's concurrence is really tantamount to a dissent, it is notable that only two judges on the Eighth Circuit ultimately resisted signing off on what was a very big variance in Feemster.  Also, as a helpful reader wrote in an e-mail, "Judge Colloton’s concurrence on unwarranted sentencing disparity and the inability of the Circuits to correct it [is] particularly interesting."

July 13, 2009 in Booker in the Circuits | Permalink | Comments (11) | TrackBack

Should we expect (or hope) any Sotomayor surprises this week?

As detailed in this latest Washington Post piece, everyone inside the Beltawy is "geared up this morning for a historic Supreme Court confirmation battle as Sonia Sotomayor prepared to take her seat in front of the 19 members of the Senate Judiciary Committee."  I plan to watch some of the festivities, though I fear they will prove to be a bit boring.  Indeed, I am worried that I will be watching like a sometimes NASCAR fan, more interested in seeing some fiery wrecks rather than a lot of smooth driving. 

I am not rooting for, or in any way expecting, Judge Sotomayor to hit a wall as she navigates through these confirmation hearings (indeed, I signed a letter supporting her confimation).  Rather, I am principally rooting for the "judicial activism" attack to become engulfed in flames as Judge Sotomayor gets pressed by Republicans for why she was not more eager to declare unconstitutional a New York restriction the popular gang weapon known as a nunchaku (the Maloney case) or public hiring plans (the Ricci case).  I am also kind of hoping some Senator gets really mixed up when trying to ask a question about Booker or the Eighth Amendment or some other sentencing topic.

Some of my major pre-hearing coverage of Judge Sotomayor and her criminal justice record:

UPDATE:  The first "crash" did not take long to happen, as reported on this live-blog of the hearings from the New York Times:

We’ve Now Been Interrupted | 10:45 a.m. A man who appears to be anti-abortion shouted loudly while Senator Dianne Feinstein was speaking: “Senator, What about the unborn?” He was escorted out the room, and Chairman Leahy is now warning everyone not to interrupt the proceedings. Senator Sessions concurs.

July 13, 2009 in Who Sentences? | Permalink | Comments (24) | TrackBack

Whither the Webb reform bill ... does it weather or wither?

I just discovered this long piece from last week's Washington Post discussing Senator Jim Webb and his on-going efforts to engineer some effective criminal justice reforms.  The piece is headlined "Structuring Sentences: Jim Webb Puts His Writerly Skills to Work in a Modest Proposal: Reform The Nation's Prisons — And Drug Laws," as these passages of the article prompts the question of this post's title:

When he decided to propose a massive reexamination of U.S. prisons and criminal laws this past spring, he gave the usual floor speech. Whereas other senators may get confined to that usually empty chamber and its daytime C-SPAN audience, Webb went on from there to state his case by writing a Parade magazine cover story titled "Why We Must Fix Our Prisons," talking directly to its 30 million-plus Sunday readers....

On its face, Webb's proposal is bolder in rhetoric than in practice, to put it mildly.  He wants to — brace yourselves — form a bipartisan commission!  (The proposal is included in a bill that has attracted more than two dozen co-sponsors, but has yet to be voted on.)  The commission is supposed to, among other things, come up with recommendations for reducing the overall incarceration rate, decreasing prison violence and improving treatment of mental illness inside and outside prisons....

Little public opposition has emerged, though that might have more to do with the bill's uncertain status than anything else.  In the meantime, Webb says he's been contacted about his proposal by the president and Supreme Court Justice Anthony Kennedy, both of whom gave encouraging signals. And he is quietly amassing an eclectic band of supporters, ranging from the influential — Senate Majority Leader Harry Reid of Nevada — to the surprising — conservative Republican Sen. Lindsey Graham of South Carolina.

Because Webb's bill is styled in a way that should make it relatively non-controversial, I am not surprised that little public opposition to the bill has emerged.  I am a bit surprised, however, that four months after its introduction, it seems to lack any of the momentum needed to become a reality anytime soon.

For various reasons, I think the current sentencing reform talk coming from the Justice Department (basics here and here) has much more short-term potential to impact sentencing law and policy than does Webb's bill.  Still, the status and future of Webb's bill may serve as a useful window on current crime and punishment politics.

Some related old and new posts:

July 13, 2009 in Who Sentences? | Permalink | Comments (1) | TrackBack

A week worth watching from a white-collar sentencing perspective

Late monday afternoon is the scheduled federal sentencing of lawyer Marc Dreier in New York City, who might be viewed as a kind of mini-Madoff.  As detailed in prior posts here and here, there are lots of interesting elements to the Dreier case that make it the first post-Madoff must-watch event for white-collar sentencing fans.

But the Dreier case just gets the white-collar sentencing action started this week.  As detailed in this new article from The Legal Intelligencer, which is headlined "Judge's Calculation May Reduce Fumo's Sentence," there is also a notable political corruption case due to be sentencing this week in Pennsylvania.  Here is how this article sets up the sentencing excitement in this other notable white-collar sentencing case:

A two-page order handed down on Friday was the first piece of good news in a long time for former state Sen. Vincent J. Fumo -- whose sentencing on fraud and obstruction of justice charges is set for Tuesday -- as U.S. District Judge Ronald L. Buckwalter effectively slashed Fumo's sentencing recommendation in half. But by the end of the day, prosecutors had filed a 58-page brief that said Fumo, 66, should be hit with a longer prison term than the federal guidelines recommend because his crimes rocked the public's confidence in the integrity of public officials and because of his perjury at trial and his "exceptionally egregious" cover-up scheme.

The original recommendation from a probation officer said Fumo's sentence should be in the range of 21 to 27 years in prison. But the new calculation announced by Buckwalter, once it is finalized, could reduce the recommendation to a range of nine to 12 years.

It's still impossible to guess what Fumo's ultimate sentence will be because Buckwalter has yet to decide whether to grant downward departures from the guidelines range for Fumo's "good works," although the judge has ruled out any departure based on Fumo's ailing health. And since the guidelines are now "merely advisory," Buckwalter has the freedom to decide for almost any reason to grant a "variance" and impose a term either above or below the guidelines range.

July 13, 2009 in White-collar sentencing | Permalink | Comments (1) | TrackBack

"America's Jail Crisis"

The title of this post is the headline of this effective new piece in Forbes.  Here are excerpts:

Amid budget crises, falling tax revenue and national unemployment approaching 10%, jails — usually city- or county-run holding facilities for those serving short sentences or awaiting trial — saw their populations grow nearly twice as fast as state and federal prison populations during the first half of the decade, according to a 2008 report by the Justice Policy Institute. The report says that local governments spent $97 billion on criminal justice in 2004, up 347% since 1982, while detention expenses climbed 519% to $19 billion.

Between 2006 and 2008, Harris County's jail population grew 21%, adding 1,900 more mouths to feed three times a day. In 2000, there were 621,149 people in America's local hoosegows; by midyear 2008 there were 26% more, or 785,556 inmates housed at an average 95% of rated capacity....

The National Association of Counties is calling on communities to invest more into pretrial services so that people charged with non-violent offenses who don't need to be confined can be quickly vetted for community programs and the mentally ill can be put under health care services or, if needed, placed in a secure health facility.  In Harris County, for instance, some people are detained for speeding tickets, yet potentially could be among those who cost about $485 a day for a bed in a local hospital.

"Many people are in jail because they are too poor to post bail," says Donald Murray, senior legislative director for justice and public safety for the association.  "If you have a first-class pretrial program, a county is often in a better position because they can carefully analyze the individual, can figure out better what needs to be done."

The Justice Policy Institute says eight out of 10 people in jail earned less than $2,000 a month before they were locked up.  Nearly two-thirds of the people behind bars are waiting for trial, while the length of pretrial detention has increased.  Meanwhile, between 1986 and 2005, violent crime arrests climbed 25%, while drug arrests jumped 150%, 82% of them in 2005 for possession (about half for marijuana).  And an estimated six out of every 10 jail inmates have a mental disorder, compared to 1-in-10 in the general population....

As states operate in a drastic budget climate, jails and prisons stand to face cutbacks, despite harsher sentencing guidelines passed in the 1980s and '90s that have glutted cellblocks.  In 2008, the total jail and prison population reached 2.3 million, topping for the first time the ratio of one in every 100 adults.  Meanwhile, in the past 25 years, the number of people on probation and parole has increased from 1.6 million to 5 million.  Many are caught in a revolving door: 40% of probationers don't complete their obligation successfully and more than half the number of parolees land back in jail after three years of being released.  Yet the cost differences in 2008 are clear: $78.95 a day for a prisoner compared to $3.42 for supervising a probationer.

July 13, 2009 in Scope of Imprisonment | Permalink | Comments (2) | TrackBack

July 12, 2009

House hearing on "Mandatory Minimums and Unintended Consequences"

Though nearly all eyes this week will be on the Senate Judiciary Committee as the confirmation hearings for Judge Sotomayor get started, sentencing fans should be sure to take note of a hearing scheduled for Tuesday in the House. Specifically, as detailed here, on Tuesday morning the House Judiciary's Subcommittee on Crime, Terrorism, and Homeland Security will hold a hearing on "Mandatory Minimums and Unintended Consequences."

Though no official witness list has yet been posted, this item from FAMM indicates that FAMM president Julie Stewart is scheduled to testify.  I hope and expect that some representative from the Department of Justice will also be testifying, though I am not quite sure what to hope and expect to hear from DOJ on mandatory minimums. 

Though AG Holder recently gave a fairly progressive speech on criminal justice issues (details here), he has previously express at least modest support for some mandatory minimum sentencing laws.  And, though President Obama has expressed concerns about mandatory minimums, his Administration has to date largely avoided expressly condemning or condoning such laws.  Perhaps something consequential might get said by the DOJ rep at this upcoming hearing.

July 12, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (6) | TrackBack

A few confirmation questions for criminal justice fans from Senator Cornyn

As explained here, in the run up to Judge Sotomayor's confirmation hearing, Texas Senator John Cornyn for the last few weeks has been posting questions about Judge Sotomayor's record and her views on the law and the Constitution  The full list of questions can be found at this link, and here are a few of Senator Cornyn's 20 questions that might be of special interest to criminal justice fans:

Question 9: Are judges supposed to update the law to reflect changing social policy?

Question 10: What did Judge Sotomayor mean when she agreed that the Second Amendment does not protect a fundamental right?

Question 14: Has the Supreme Court made any missteps in the last fifty years that might justify public skepticism about lawyers and the courts?

Question 16: Should the Constitution be interpreted to allow the death penalty, and if so, under what limitations?

Obviously, only Question 16 is a "pure" criminal justice question.  But Question 9 seems especially relevant to modern Eighth Amendment doctrine, which is implicated by the big juve LWOP cases on the Supreme Court's docket.  And, as regular readers know, I think a declaration that the Second Amendment protects a fundamental right could have profound implications for criminal justice administration.  And I could imagine lawyers and judges of all political stripes coming up with criminal-justice-related answers for Question 14 (which is the most intriguing question of this bunch).

July 12, 2009 in Who Sentences? | Permalink | Comments (2) | TrackBack

Noticing some gendered realities of death penalty administration

This local article from Alabama, headlined " Death row-worthy crimes largely committed by men," spotlights a couple of issues about death penalty administration that I always find notable.  Here are snippets:

If a Franklin County judge overrides a jury's recommendation and sentences Christie Michelle Scott to die by lethal injection, she would be the first woman in the county to receive the death penalty.

Franklin Circuit Court Judge Terry Dempsey will impose her sentence Aug. 5. The jury who convicted her of killing her 6-year-old son, Mason, recommended Friday that she be sentenced to life in prison without parole.  Dempsey is not obligated to accept the jury's recommendation and could instead sentence her to death.

A death sentence for Scott, who was convicted of three counts of capital murder Wednesday, would also make her one of a few women in Alabama ever to be sentenced to die for a crime.

Since 1973, only 10 women have received death sentences in Alabama, said Richard Dieter, director of the Washington, D.C.-based Death Penalty Information Center, a nonprofit that tracks capital punishment in the United States. Only one of those women, Lynda L. Block, who was convicted in 1994 for killing an Opelika policeman, has been executed. She was executed May, 10, 2002, and since then no other woman has been executed in Alabama, according the Alabama Department of Corrections.

Only four women have been executed in Alabama since 1927, according to state corrections statistics. During that same period, 192 men have been executed. There are 199 men and four women on Alabama's death row.

Bryan K. Fair, a professor of law at the University of Alabama, said the wide margin between the number of men and women being sentenced to death is not a result of courts being more lenient on women. Instead, it's a result of fewer women committing crimes that meet the criteria for capital punishment, such as a homicide committed during a robbery or rape. "The kinds of offenses that can be punished by death are typically committed by men," Fair said. "In our society in general, violent crimes are committed most often by men."

Dieter said Alabama is not alone in having far fewer women than men on death row.  "Most of the women who are on death row were convicted of killing their husband or someone they knew," Dieter said. "Women rarely kill a stranger, such as during a robbery, because women do not typically commit violent crimes."

Franklin County District Attorney Joey Rushing calls the crime Scott committed the most heinous ever in the county. "There's nothing worse than a mother murdering a child for insurance and because they didn't want him," Rushing said at trial....

Because of the heinous nature of the child's death, Rushing said he will ask Dempsey to consider the death penalty at Scott's Aug. 5 sentencing hearing.  He said five of the 12 jurors supported sending Scott to death row.

This article not only raises issues of gender, but also the role of judicial overrides to correct biases in the administration of the death penalty.  Should Franklin Circuit Court Judge Terry Dempsey feel a special obligation to impose a sentence of death if he believes that the jury recommended a life sentence only or primarily because the defendant here was a woman?

July 12, 2009 in Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (9) | TrackBack