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January 17, 2009

Death penalty colloquium next month at Tennessee College of Law

As detailed on this webpage, the University of Tennessee College of Law has a big death penalty event next month. Here are some particulars via an e-mail I received from one of the organizers:

The Tennessee Law Review is hosting an exciting colloquium entitled "The Past, Present, and Future of the Death Penalty." The Colloquium will take place next month, February 6-7, at the University of Tennessee College of Law.

Our lineup includes nationally known experts, such as Dwight Aarons, David Baldus, Hugo Adam Bedau, Steve Bright, Deborah Denno, Lyn Entzeroth, the Honorable Gilbert S. Merritt, and Penny White. The event's full schedule is available at this link, and registration is open there.

The Colloquium is free to the public, though we're asking everyone to register so we can estimate how many attendees to expect. For attorneys seeking CLE credit, the Colloquium has been approved for 6 hours of general credit, with registration at $150. 

Additionally, the Tennessee Law Review will publish articles from many of the Colloquium speakers in a special Spring 2009 Symposium Issue on the Death Penalty.

January 17, 2009 in Death Penalty Reforms | Permalink | Comments (10) | TrackBack

Did anything truly notable (or worth discussing) happen during the Holder hearings?

I was on the road for the last two days and thus had no opportunity to watch or even follow indirectly the Senate hearings for AG-nominee Eric Holder.  Based on press reports (collected here by How Appealing), it seems there was not much of great interest for sentencing fans beyond all the pedantic pardon talk.  But I would be eager and grateful if readers would use the comments to spotlight if anything really notable or worth discussing came up during the hearings.

Some posts on the Holder pick for Attorney General:

January 17, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (4) | TrackBack

Implementing the new crack guidelines retroactivity in Connecticut

The Connecticut Law Tribune has this new article detailing how the new crack guidelines have been implemented in the Nutmeg State.  Here are some excerpts:

According to statistics compiled by the Federal Public Defenders Office in Connecticut, 154 out of 410 potentially eligible inmates in Connecticut had their sentences reduced between March 2008 and the beginning of this month.  Eighty other petitions were denied, while about 50 more are still pending.

“The biggest problem was screening all the potential candidates and determining if they’re eligible,” said Connecticut Federal Defender Thomas Dennis. He said far more than 410 inmates contacted his office to inquire about their eligibility, even those without crack cocaine convictions....

According to Sarah Merriam, an assistant federal defender who has monitored every Connecticut challenge, 50 percent of the reductions were agreed to by both sides.  Merriam said that 60 of the 154 Connecticut defendants who had sentences reduced have been released....

Also, just because a defendant was eligible for a reduction did not mean a judge had to grant it.  Merriam said an inmate’s behavior in prison was taken into account.  However, the most common reasons for rejection were if the defendant was a career criminal or if they had a mandatory minimum sentence.  Merriam said the crack re-sentencing guideline was superseded by another sentencing guideline that applied to defendants who had committed two prior crimes.

“There are still some questions about eligibility,” said Dennis, noting that there are several appeals pending in U.S. District Court from defendants whose sentencing reductions were not granted. “I imagine it’ll take another year or so before all these issues get ironed out.”

One issue Dennis never expected amongst those eligible for an earlier release from prison -- inmates not wanting to leave early.  “A couple clients didn’t want us to file [a petition] on their behalf,” said Dennis. “I don’t know if they like it [in prison] but they didn’t want us to do anything. So we acceded to their request.”

January 17, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (4) | TrackBack

January 16, 2009

A request for a commutation for Weldon Angelos

Regular readers will recall the name Weldon Angelos; Angelos was sentenced nearly five years ago to a federal mandatory minimum sentencing term of 55 years in prison following three small hand-to-hand marijuana sales to a paid government informant.  I became directly involved in Weldon's case when his sister asked if I would help with his 2255 motion.  Aided by a great legal team working pro bono, we are continuing to litigate this motion.  And, as detailed in this new report in the Salt Lake Tribune, this team has also now filed a clemency petition requesting President George Bush to commute Weldon's extreme sentence.  Those interested in the clemency petition (which is very long because we added some court filings in the appendix) can download it below:

Download Angelos Clemency Petition (Bush)

Related posts providing some of the legal history of the Angelos case:

January 16, 2009 | Permalink | Comments (9) | TrackBack

Supreme Court takes up intriguing capital case involving mental retardation

As detailed in this SCOTUSblog post, the Supreme Court granted cert on six new cases this afternoon.  Though a number of the new cases involve criminal justice issues, the one case most likely to interest sentencing fans involves application of the death penalty to a potentially mentally retarded defendant.  Here is how Lyle Denniston describes the issue and case at SCOTUSblog:

Whether a state is constitutionally barred from challenging the claim of mental retardation of an individual it seeks to execute for crime, if a state court had once found the person to be retarded even while upholding a death sentence.  The case of Bobby v. Bies (08-598) involves an Ohio case that basically involves a “double jeopardy” question.  Specifically, it is whether it is unconstitutional double jeopardy if a state begins a new challenge to a convicted killer’s mental retardation, if a state court had previously found the individual to be retarded — thus possibly settling an ultimate issue so that it could not be pursued anew later.

Though the procedural history of this capital case leads me to suspect that some Justices were wearing their "error-correction" hats when deciding to take up the State of Ohio's complaints about the Sixth Circuit's reversal of a death sentence here.  But the interplay of Atkins and double jeopardy issues perhaps means this new case should go on my list of potential sleepers for this Term.

January 16, 2009 | Permalink | Comments (0) | TrackBack

Terrific commentary and assessment of the war on drugs

The site Culture11 has these three terrific new pieces concerning the war on drugs:

All three pieces are must-reads not only for persons concerned about drug policy and reform, but for anyone interested in the economy, civil rights, government power, health care, or really any other major public policy concern.  (I guess I am saying the entire Obama transition team ought to read all the pieces.) 

Here is the openning subtitles of each piece:

From Balko: "Prohibition militarizes police, enriches our enemies, undermines our laws, and condemns our sick to suffering."

From Freddoso: "Legalization won’t end the violence, but it will fry plenty of brains."

From Bartholomew: "America can’t afford marijuana prohibition – it’s a matter of dollars and sense."

January 16, 2009 in Drug Offense Sentencing | Permalink | Comments (11) | TrackBack

"Is it possible to feel sympathy in a child porn case?"

The title of this post is the title of this interesting commentary piece in the St. Louis Post Dispatch about an older defendant sentenced to 90 month in federal prison because of downloading child porn.  Here is a interesting snippet:

[P]eople who view this stuff generally get more time than the people who molest children.  That's because in a child-molestation case, the witness is the child, and most parents are reluctant to put the child through the additional trauma of a trial.  So if there is a plea agreement, the advantage is to the defense.  In a child porn case, the images themselves are the evidence, and no defendant wants the jury to see this stuff.  The advantage is to the prosecution, and the resultant plea agreements reflect the draconian nature of the laws.  Possession of child pornography carries a sentence of up to 20 years. Why so harsh?  It's a one-way argument.  What legislator is going to argue for lightening the penalties for possession of child pornography?

Some related recent federal child porn prosecution and sentencing posts:

January 16, 2009 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Gov pledges to do "everything" to abolish capital punishment in Maryland

As detailed through articles today in the Washington Post and in the Baltimore Sun, Maryland's governor has decided to really commit to getting the death penalty abolished in his state.  Here is the start of the Sun article:

Gov. Martin O'Malley said yesterday that he will do "everything in my power" to abolish the death penalty in Maryland this year and for the first time raised the possibility of allowing voters to decide the divisive issue through a constitutional amendment if legislative repeal efforts fail again.

"It's an issue with grave moral implications, certainly equal to the slots legislation," O'Malley said, referring to the casino gambling referendum that was approved by voters last year. "Maybe that's the way to go."

The governor, a Democrat, said he intends to sponsor a bill to repeal capital punishment, which would put more of his political capital behind the issue.  A longtime death penalty opponent, the governor has testified in favor of repeal legislation, but he has never offered his own initiative.  His effort comes a month after a gubernatorial commission voted to recommend abolishing capital punishment and issued a report outlining what it saw as fatal flaws in the application of the death penalty.

Some lawmakers and death penalty opponents said the administration's sponsorship could be enough to move a bill out of the Senate Judicial Proceedings Committee, where identical efforts have failed the past two years.  Sen. Lisa A. Gladden, a Baltimore Democrat who has sponsored those bills, said she was pleased when the governor told her Wednesday that repeal of the death penalty would be part of his administration's legislative package.

I wonder if Governor O'Malley really means he will do "everything" in his power to eliminate the death penalty in Maryland.  Though I am not sure about the full scope of executive powers in Maryland, I assume Governor O'Malley could do a lot more than just put forward a legislative repeal proposal. 

He could, I assume, seek to commute the death sentences of those right now on death row and also pledge to commute any future death sentences.  He could, I assume, issue a variety of executive orders that would formally or functionally make it harder for Maryland's prosecutors to pursue capital cases.  He could, I assume, propose a budget providing lots of funding for lawyers who represent murder defendants.  In other words, because Governors have lots of powers beyond just proposing legislation, it will be interesting to see if Governor O'Malley is really prepared to go to the mat on this issue.

January 16, 2009 in Death Penalty Reforms | Permalink | Comments (8) | TrackBack

January 15, 2009

Fifth Circuit laments, but affirms, another crazy-long mandatory federal sentence

The Fifth Circuit today affirms a very long mandatory federal sentence in US v. Sterling, No. 07-30001 (5th Cir. Jan 15, 2009) (available here), but the panel was clearly troubled by what it felt forced by the law to do.  The first two paragraphs of the opinion provide the startling basics:

We are required to affirm a conviction for offenses that led inexorably to a 99-year sentence of imprisonment for a young, addicted drug dealer.  This sentence exceeds, in this court’s experience, what has been meted out to some drug trafficking kingpins.  Why the Government chose to pile on its indictment against Sterling, especially after he pled guilty to the Mullins incident, is not ascertainable from the Pre-Sentence Report (“PSR”).  This court is obliged to apply the law, but we expect that the prosecutor’s nearly unfettered discretion will not be abused. Here, we are not so confident of that precondition to justice.

Based on his recanted confession, a jury convicted Justin Paul Sterling (“Sterling”) of three counts of distribution of cocaine base, three counts of possession of a firearm in furtherance of a drug trafficking crime, and one count of possession of a firearm with an obliterated serial number. Sterling appeals the drug trafficking and firearm convictions, arguing that his conviction rested solely on his uncorroborated confession.  He further argues that because under the Government’s theory he did not receive the firearms at the time he purchased them with drugs, he did not possess the firearms in furtherance of a drug trafficking crime.  Because other evidence corroborated Sterling’s confession and showed that he possessed firearms in furtherance of a drug trafficking crime, we AFFIRM.

January 15, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (11) | TrackBack

Will there be any federal sentencing or mass incarceration talk at the Holder hearings?

I will be on the road and off-line for much of today, but the President-elect and the Senate were kind enough to ensure sentencing fans will have something else to follow while this blog is quiet.  Specifically, the Senate confirmation hearings for Eric Holder, whom Barack Obama has nominated to be the next Attorney General of the United States, are scheduled to begin this morning at 9:30 am.  The hearings can be followed via webcast through this official webpage of the Senate Judiciary Committee, where one can also find lots and lots of documents and letters concerning AG-nominee Holder's background and professional history.

As regular readers know, I have done a lot of Holder-related posts in recent weeks (some of which are linked below).  These posts spotlight some of the sentencing-related issues that may (or may not) arise during the confirmation hearings.  I will be grateful to any readers who use the comments to note and discuss any sentencing topics that arise during the Holder hearings.

Some posts on the Holder pick for Attorney General:

January 15, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (1) | TrackBack

Death penalty news and notes

Here are a few death penalty headlines and stories from a variety of states that caught my eye this morning:




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

Interesting SCOTUS discussion of plea agreement breaches in Puckett

With so much else going on in the sentencing world these days, I have not given much attention to Puckett v. United States (07-9712), the case before the Supreme Court involving the government breach of a plea agreement regarding arguments to be made at sentencing.  I have not focused on Puckett much because the official question presented concerns appellate review standards: "Whether a forfeited claim that the government breached a plea agreement is subject to the plain-error standard of Rule 52(b) of the Federal Rules of Criminal Procedure."

But, upon reading the transcript of today's oral argument in Puckett, which is now available at this link, I was reminded of how rarely the Supreme Court has occasion to consider the many legal issues surrounding plea agreements.  And, in the Puckett argument, various Justices struggle with the question of whether the government really breached the plea agreement, whether any breach could be considered harmless, and what sorts of remedies might be justified and appropriate for the government's (iffy?) breach.

As detailed in some of the posts listed below, lower courts often struggle with various practical questions in the wake of the prosecutorial failures at sentencing to comply with plea promises.  Puckett could provide some guidance on these issues, but I am fearful the case's opaque facts and unusual procedural posture may keep it from shedding needed light in this arena.

Some related posts:

January 15, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (14) | TrackBack

January 14, 2009

A Philippino priest, an angry jury and a state judge meet at a white-collar sentencing

Though the title of this post might make a good opening line to some kind of bizarre joke, it actually provides the backstory for this interesting local story about a state judge imposing a sentence way below what a state jury had recommended.  Here are the details:

Former Catholic priest Rodney L. Rodis was sentenced yesterday to serve a prison sentence much shorter than the 200 years that a Louisa County jury recommended.  Yesterday, Judge Timothy K. Sanner, suspended 187 of the 200 years the jury wanted after it found the 52-year-old Rodis guilty of 10 counts of embezzlement from two Louisa churches.  The suspended sentence is contingent on Rodis paying back more than $400,000 in restitution to the Catholic Diocese of Richmond.

But Sanner said in court yesterday, that he never actually expects Rodis to repay the money he took because the former priest will be deported to the Philippines, his home country, after his release from prison. Sanner said this was the first time he reduced a jury’s recommendation.  The 200-year sentence was the maximum the jury could have recommended on the 10 convictions.

Rodis’ 13-year active sentence for the Louisa convictions will start after he finishes his current sentence in federal prison. Last spring, Rodis pleaded guilty in federal court to charges of money laundering and wire fraud in connection to the long-term theft of money from St. Jude and Immaculate Conception churches in Louisa. He was sentenced to serve five years on those charges.

Louisa Deputy Commonwealth’s Attorney Rusty McGuire said yesterday that authorities still believe Rodis stole as much as $1 million in the 13 years he served as the leader for the two churches.  After yesterday’s formal sentencing, McGuire said he never expected Sanner to uphold the jury’s recommendation because it was so extreme. In court, Sanner said he felt the jury was persuaded to sentence Rodis to such a large amount of time after members of the church spoke out against their former pastor at his October hearing.

January 14, 2009 in White-collar sentencing | Permalink | Comments (0) | TrackBack

More news about likely key players in Obama Administration's Justice Department

The Blog of Legal Times has this new post titled "More Names Emerge for Key DOJ Slots."  Here are snippets that should be of particular interest to those interested in key players for the federal criminal justice system:

We're getting a clearer picture of the new Justice Department’s top ranks, as Attorney General nominee Eric Holder Jr.’s confirmation hearings begin.

The leading candidate to head the Justice Department's Criminal Division, Lanny Breuer, who is Holder’s partner at Covington & Burling, was named by the The Washington Post last week. The BLT has learned of a few more frontrunners for top DOJ slots:...

Georgetown law professor Neal Katyal, who successfully argued the landmark detainee rights case Hamdan v. Rumsfeld before the Supreme Court, is the top pick for principal deputy solicitor general, the office’s No. 2 spot, the sources say.  From 1998 to 1999, Katyal (Yale Law) served as Holder’s national security adviser in the Justice Department.

I do not know Lanny Breuer, though his firm bioreveals that he has earned a strong reputation in white-collar criminal defense.  I do know Neal Katyal from way back when we clerked in successive years for Second Circuit Judge Guido Calabresi, and I have only good things to say about him and his considerable talents.

January 14, 2009 in Who Sentences? | Permalink | Comments (0) | TrackBack

Eighth Circuit reverses (again) reduced sentence in extreme sex offense case

The Eighth Circuit has yet another notable sentencing ruling today in a notable federal sex offense that has come before the circuit repeatedly.  The first few paragraphs and some of the concluding sentences of this new panel opinion provides the ugly basics of an ugly case (and I use the adjective ugly here without intending to opine in any way on the substantive merits of the ruling):

Ruth Kane (Kane) repeatedly restrained and compelled her nine-year-old daughter to submit to the sexual gratification of a pedophile in exchange for Kane’s receipt of $20.  This sexual abuse occurred approximately twice a week for more than 200 molestations.  A jury found Kane guilty of aggravated sexual abuse and conspiracy to commit aggravated sexual abuse.  The district court sentenced Kane to 210 months imprisonment.

Kane appealed.  We affirmed Kane’s conviction, but vacated her sentence and remanded for resentencing pursuant to United States v. Booker, 543 U.S. 220 (2005).  See United States v. Kane, 148 Fed. Appx. 565, 568 (8th Cir. 2005) (unpublished).   The district court resentenced Kane to 120 months imprisonment. The government appealed. We reversed, holding Kane’s 120-month sentence was unreasonable.  See United States v. Kane, 470 F.3d 1277, 1282 (8th Cir. 2006) (Kane II).  The Supreme Court vacated and remanded for reconsideration in light of Gall v. United States, 128 S. Ct. 586 (2007).  Having considered Gall’s impact on Kane’s sentence, we again vacate the sentence of the district court and remand for resentencing....

Given the horrifying nature of Kane’s conduct, the fact Kane repeated her offense against her daughter over 200 times, and Kane’s refusal to accept responsibility for her role in her daughter’s abuse, we have serious concerns about the substantive reasonableness of Kane’s 120-month sentence. We doubt the district court’s remaining “justification is sufficiently compelling to support the degree of the variance” for the district court’s deviation below the Guidelines range.  Gall, 128 S. Ct. at 597. However, because the district court procedurally erred by substantially basing Kane’s sentence on clearly erroneous factual findings, relying on Kane’s postsentence rehabilitation, and otherwise failing adequately to explain Kane’s unusually lenient sentence with sufficient justifications, we do not reach the issue of whether Kane’s sentence was substantively reasonable.

January 14, 2009 in Booker in the Circuits | Permalink | Comments (12) | TrackBack

Why did Justice Stevens, the author of Apprendi, vote to Ice Sixth Amendment jury rights?

There are lots of interesting and surprising aspects to the Supreme Court's Ice ruling today, ranging from the absence of opinions from Justices Breyer and Alito (the two Justices with the most criminal justice history) to the willingness of Chief Justice Roberts to join Justice Scalia's forceful dissent.  But the biggest surprise, in my view, is the vote of Justice Stevens to reject the application (or should I say extension?) of the Apprendi-Blakely principle in the consecutive sentencing setting. 

Justice Ginsburg, as evidenced by her vote for the Booker remedy, long ago showed her concerns about taking the logic and consequences of Apprendi-Blakely too far.  But Justice Stevens had never before shown any squishiness or squeamishness about giving full effect to the Sixth Amendment jury trial rights he championed in his Apprendi and Booker opinions for the Court.  But, with Ice presenting an important opportunity to continue the "Apprendi revolution" that Justice Stevens helped start, he joins an opinion that reflects, as Justice Scalia notes, many of the arguments of the Apprendi-Blakely dissenters.

Especially notable in this context is this (gratuitous?) paragraph of important dicta in the majority opinion in Ice:

Further, it is unclear how many other state initiatives would fall under Ice’s proposed expansion of Apprendi.   As 17 States have observed in an amici brief supporting Oregon, States currently permit judges to make a varietyof sentencing determinations other than the length ofincarceration.  Trial judges often find facts about the nature of the offense or the character of the defendant in determining, for example, the length of supervised release following service of a prison sentence; required attendanceat drug rehabilitation programs or terms of community service; and the imposition of statutorily prescribed fines and orders of restitution.  See Brief for State of Indiana et al. as Amici Curiae 11.  Intruding Apprendi’s rule into these decisions on sentencing choices or accoutrements surely would cut the rule loose from its moorings.

This paragraph goes a long way to ensuring that the Sixth Amendment rights championed in the Apprendi-Blakely line of cases are not going to avail many defendants in other sentencing settings in which judges have been given broad authority to conduct fact-finding to increase sentences.  I am especially surprised that Justice Stevens was willing to allow all this this anti-Apprendi dicta carry the day in Ice.

January 14, 2009 in Blakely in the Supreme Court | Permalink | Comments (2) | TrackBack

California board saying sex offender residency restrictions not working

The Los Angeles Times has this article, headlined "There's no evidence Jessica's Law works, California officials say," reporting on the apparent inefficacy of residency restrictions for sex offenders in California.  Here is how the article starts:

A state panel is urging the governor and legislators to change "Jessica's Law," saying its restrictions on where sex offenders can live are counterproductive and calling the nearly $25 million a year spent to house them a poor use of taxpayers' money.

The residency restrictions, passed by voters more than two years ago in Proposition 83, have never been shown to prevent new crimes and may reduce public safety, the panel says.

Since 70% of voters approved the initiative, "the availability of suitable housing has plummeted," the state's Sex Offender Management Board said in a report sent to lawmakers this week.

The state previously had more modest residency limits that applied only to certain sex offenders. Jessica's Law expanded the restrictions to all sex offenders and greatly reduced the locations where they could reside.

Barring sex offenders from living within 2,000 feet of schools, parks and other areas where children gather has driven many into homelessness, an unstable situation that can propel them back to crime, according to the board.

State corrections officials say they find housing and pay rent for about 800 who are on parole, but they cannot house them all; the number of homeless sex offenders on parole is 12 times as large as it was when the law was passed. "It seems unwise to spend such resources as a consequence of residence restriction policies which have no track record of increasing community safety," board members wrote.

January 14, 2009 in Sex Offender Sentencing | Permalink | Comments (11) | TrackBack

Some choice quotes from the two opinions in Oregon v. Ice

For reasons I will explain in future posts, the Supreme Court's work today in the Apprendi-Blakely Sixth Amendment case of Oregon v. Ice (basics here) is fascinating, surprising and ultimately disappointing.  Before I get to hard-core commentary, however, it is useful to pull out the key quotes from the two opinions.

Let's start with the majority opinion, authored by Justice Ginsburg:

The question here presented concerns a sentencing function in which the jury traditionally played no part: When a defendant has been tried and convicted of multiple offenses, each involving discrete sentencing prescriptions, does the Sixth Amendment mandate jury determination of any fact declared necessary to the imposition of consecutive, in lieu of con-current, sentences?...

[T]win considerations — historical practice and respect for state sovereignty — counsel against extending Apprendi’s rule to the imposition of sentences for discrete crimes....

[L]egislative reforms regarding the imposition of multiple sentences do not implicate the core concerns that prompted our decision in Apprendi.   There is no encroachment here by the judge upon facts historically found by the jury, nor any threat to the jury’s domain as a bulwark at trial between the State and the accused....

States’ interest in the development of their penal systems, and their historic dominion in this area, also counsel against the extension of Apprendi that Ice requests....

Members of this Court have warned against “wooden, unyielding insistence on expanding the Apprendi doctrine far beyond its necessary boundaries.”  Cunningham, 549 U. S., at 295 (Kennedy, J., dissenting). The jury-trial right is best honored through a “principled rationale” that applies the rule of the Apprendi cases “within the central sphere of their concern.” 549 U. S., at 295. Our disposition today — upholding an Oregon statute that assigns to judges a decision that has not traditionally belonged to the jury — is faithful to that aim.

Now let's hear from the dissent, per Justice Scalia:

The rule of Apprendi v. New Jersey, 530 U. S. 466 (2000), is clear:  Any fact — other than that of a prior conviction — that increases the maximum punishment towhich a defendant may be sentenced must be admitted bythe defendant or proved beyond a reasonable doubt to a jury. Oregon’s sentencing scheme allows judges ratherthan juries to find the facts necessary to commit defendants to longer prison sentences, and thus directly contradicts what we held eight years ago and have reaffirmed several times since.  The Court’s justification of Oregon’s scheme is a virtual copy of the dissents in those cases....

We have taken pains to reject artificial limitations upon the facts subject to the jury-trial guarantee....

The decision to impose consecutive sentences alters the single consequence most important to convicted noncapital defendants: their date of release from prison.  For many defendants, the difference between consecutive and concurrent sentences is more important than a jury verdict of innocence on any single count: Two consecutive 10-year sentences are in most circumstances a more severe punishment than any number of concurrent 10-year sentences.

To support its distinction-without-a-difference, the Court puts forward the same (the very same) arguments regarding the history of sentencing that were rejected by Apprendi....

The Court’s reliance upon a distinction without a difference,and its repeated exhumation of arguments dead and buried by prior cases, seems to me the epitome of the opposite [of a "principled rationale" for applying Apprendi].  Today’s opinion muddies the waters, and gives cause to doubt whether the Court is willing to stand by Apprendi’s interpretation of the Sixth Amendment’s jury-trial guarantee.

UPDATE:  On the topic of choice quotes, the post by Kent at C&C about this case has the best turn of phrase to describe the holding: "Apprendi Sprawl Frozen in Ice."

January 14, 2009 in Blakely in the Supreme Court | Permalink | Comments (17) | TrackBack

Fascinating SCOTUS split in rejecting Blakely's application to consecutive sentencing

The Supreme Court has today handed down its latest Blakely ruling with its decision in Oregon v. Ice.  Here is the early report from SCOTUSblog:

The Court has released the opinion in Oregon v. Ice (07-901), on whether judges may impose consecutive sentences based on facts neither found by the jury nor admitted by the defendant. The ruling below, which found for the defendant, is reversed and remanded. Justice Ginsburg wrote the majority opinion. Justice Scalia wrote a dissenting opinion, joined by the Chief Justice and Justices Souter and Thomas. The ruling is now available here.

The break down of the Justices in the 5-4 ruling is fascinating, and I am sure I will have a lot more to say about the Court's efforts here in future posts.

I suppose I need to start my commentary, however, by taking back this recent comment that the Supreme Court is most pro-defendant appellate court in the nation on sentencing issues.  But, of course, proving again that Blakely issues make for strange voting block, three supposedly liberal Justices (Breyer, Ginsburg and Stevens) are the key to the defendant's loss in Ice.

January 14, 2009 in Blakely in the Supreme Court | Permalink | Comments (16) | TrackBack

Madoff mania continues as government presses bail issue

This new Reuters piece provides the latest news in the still on-going saga of Bernard Madoff's bail situation. Here are the basics:

Accused swindler Bernard Madoff will be back in court on Wednesday as U.S. prosecutors again try to persuade a judge to end his house arrest at his luxury apartment and toss him in jail.  A hearing is scheduled for 2:30 p.m. in Manhattan federal court....

The government wants Madoff jailed pending trial or a guilty plea, saying he had sent at least $1 million in valuables, including diamond watches, to family and friends in violation of a court order....

A judge on Monday rejected the government's request to jail Madoff, but prosecutors have appealed that ruling. The appeal will be heard by a different judge, U.S. District Judge Lawrence McKenna. Madoff "should not be trusted with a second chance to dissipate assets," Assistant U.S. Attorneys Marc Litt and Lisa Baroni wrote in appeal papers filed late on Tuesday....

Madoff investors are fuming that he remains on bail and holed up in his luxurious home. But legal experts say white-collar defendants typically are granted bail pending trial as long as they are not risks of flight or dangers to the community.

Whatever ruling comes from Judge McKenna, I suspect that the losing party might take this issue all the way up to the Second Circuit.

January 14, 2009 in White-collar sentencing | Permalink | Comments (3) | TrackBack

New FAMMGram includes slate of federal sentencing recommendations

Families Against Mandatory Minimums has its latest newsletter, its Winter 2009 FAMMGram, available on-line at this link.  The FAMM newsletter is full of lots of interesting items, including this slate of federal sentencing recommendations (which are explained in full in the FAMMGram on page 5):

1.  NEAR TERM: Strategic reforms

2.  INTERMEDIATE: Create a mandatory minimum safety valve....

3.  LONG TERM: Remove mandatory minimums from the federal criminal code....

January 14, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (0) | TrackBack

January 13, 2009

How much will guns and drugs come up during the Holder hearings?

Confirmation hearings for Attorney-General nominee Eric Holder are scheduled to start this Thursday, and there is reason to believe these hearings will be worth watching.  This new Politico piece, headined "GOP setting up roadblocks for Holder," indicates that topics other than the ugly Clinton clemencies will be on the agenda:

Senate Republicans have invited the son of man killed in a 1975 Puerto Rican nationalist bombing as well as a former FBI agent who investigated two violent groups supporting Puerto Rican independence to appear at Eric Holder’s confirmation hearings. A third GOP witness is a pro-gun rights attorney from Virginia....

Holder’s commitment -- or lack thereof -- to the rights of gun owners and the Second Amendment has also become a talking point for Republicans opposing his confirmation. On that issue, they’ve arranged for the committee to hear from Stephen P. Halbrook, an attorney in Alexandria who specializes in gun-rights cases. He has made numerous appearances before congressional panels to argue an expansive view of the Second Amendment right to bear arms.

In addition to the interesting possibility of post-Heller gun talk, this TalkLeft post also highlights that some groups are eager to have Holder questioned on drug policy issues, including medical marijuana.  But, Holder fans should not fret: as this CNN entry details, the Senator Patrick Leahy, who will preside over the Holder hearings, is continuing "his public campaign on Holder's behalf Tuesday by producing two prominent Republicans who back his confirmation."

Some prior posts on the Obama transition and the Holder pick:

January 13, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (0) | TrackBack

Notable news from the US Sentencing Commission

Providing a useful follow-up to all my speculation about what's going on at the US Sentencing Commission, the USSC's webpage now has these two (exciting?) new press releases:

The news about regional public hearings is exciting in part because it seems the Commission has a broad vision of what can and should be discussed at these hearings:

At the hearings, the Commission expects to hear from a wide range of witnesses from across the nation, including the judiciary, law enforcement, prosecutors, defense attorneys, community interest groups, sentencing experts, and others interested in federal sentencing. The Commission is interested in any suggestions regarding changes to the Sentencing Reform Act and other relevant statutes, the federal sentencing guidelines and policy statements, and the Federal Rules of Criminal Procedure that, in the view of the witness, will further the statutory purposes of sentencing.

Some recent related posts about the US Sentencing Commission:

January 13, 2009 in Who Sentences? | Permalink | Comments (0) | TrackBack

Making the economic case for "letting go" of the death penalty

This new commentary by Richard Dieter, who is the Executive Director of the Death Penalty Information Center, develops an economic case for doing without the death penalty. The piece is titled "Letting Go of the Death Penalty," and here are snippets:

Most states are facing drastic cuts in vital services because of the recession.  Schools, health care, and law enforcement will have to get by with less.  Death penalty cases, however, stand out, demanding more money even as executions become less likely.  In this economic climate, they may be a luxury we can no longer afford....

California, for example, has 670 people on death row.  Each one of them costs the state about $90,000 per year over what it would cost to keep them in prison if they were condemned to permanent imprisonment instead. In total, the state is spending $138 million per year, but only executes less than one person every two years, according to a recent state commission report. In fact, it's been almost three years since the state carried out any executions.  California is now planning a new death row that will cost an additional $400 million. At the same time, the state is facing an unprecedented deficit of billions of dollars and is cutting many vital services.  The state commission called the death penalty system "broken," "dysfunctional," and "close to collapse." Only more expenditures, they said, could possibly save it.

Almost every state is facing a financial crisis and 36 states have the death penalty. In Maryland, a state commission heard testimony that the costs of the death penalty over the past 28 years amounted to $37 million per execution. In Florida, home to the second largest death row in the country, the cost estimates are $24 million per execution....

All of this expense and delay might be justified if there were some tangible benefit resulting from the death penalty.  But for many victims' family members and representatives of law enforcement, the frustration and uncertainty of the death penalty make the option of a sentence of permanent imprisonment more reasonable.  Only about 1% of the murders committed in this country result in a death sentence, and only a small percentage of those sentenced to death are ever executed many years later. Such a system makes little sense financially, or even retributively.

In the past, people were often scared into believing that the death penalty was needed to be tough on crime. Today, the death penalty is more like a bridge to nowhere -- an expensive government program that does not advance the general good. It may be time to let this extravagance go.

As regular readers know, I have long thought that the economic case against the death penalty is among the most potent and most likely to resonnate with those who are otherwise not morally opposed to capital punishment.  As we struggle with tough economic times, it will be interesting to see if and when such arguments start having more practical traction.

Some recent related posts:

January 13, 2009 in Death Penalty Reforms | Permalink | Comments (6) | TrackBack

Lots of notable sentencing action from the Eighth Circuit

By my quick count, the Eighth Circuit has already handed down nearly a dozen sentencing opinions this week.  And two of the rulings today are especially noteworthy because they deal with the constitutionality of prosecutions under the federal Sex Offender Registration and Notification Act and with the scope of a judge's authority in crack retroactivity proceedings.  Here are unofficial summaries these rulings from this official opinions page:

18 U.S.C. Sec. 2250, which provides for prosecution of anyone who fails to register under the Sex Offender Registration and Notification Act (SORNA) is a constitutional exercise of Congress's commerce clause powers; SORNA's registration provision is a constitutional exercise commerce clause power as it is an appropriate aid to the accomplishment of the goal of tracking the interstate movement of sex offenders; in defendant Howell's case, the district court did not err in concluding the Northern District of Iowa was the proper venue for his prosecution as his SORNA offense commenced in the district.

The Sentencing Commission's policy statement in Guidelines Sec. 1B1.10 which specifies that proceedings under 18 U.S.C. Sec. 3582(c) do not constitute a full resentencing and which directs that the sentencing court must not reduce the sentence of a defendant who was originally sentenced within the applicable guidelines range to a term that is less than the minimum of the amended guidelines range is constitutional and enforceable, and the district court correctly determined that it lacked the authority to further reduce defendant's sentence.

January 13, 2009 in Implementing retroactively new USSC crack guidelines, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Two opinions and two wins for criminal defendants from the Supreme Court

Continuing its trend of being the most pro-defendant appellate court in the nation on sentencing issues, the Supreme Court issued two opinions this morning and both involve wins for defendants.  Here are the basic details from Lyle Denniston in this helpful SCOTUSblog post:

The Court has released the opinion in Chambers v. United States (06-11206), on whether a failure to report to prison is the equivalent of escape for purposes of enhanced sentencing under the Armed Career Criminal Act.  The ruling below, which found for the government, is reversed and remanded.  Justice Breyer wrote the majority opinion.  Justice Alito filed an opinion concurring in the judgment, in which Justice Thomas joined. The opinion is available here.

The Court has released the opinion in Jimenez v. Quarterman (07-6984), on whether the reinstatement of an appeal under Texas law restarts the one-year deadline to file a habeas petition under federal law.  The ruling below, which found for the state, is reversed and remanded. Justice Thomas wrote the opinion for a unanimous Court. The opinion is available here.

Chambers is, of course, the more important opinion for federal sentencing fans, and I may have some commentary on the Court's recent significant ACCA work in future posts.

January 13, 2009 | Permalink | Comments (7) | TrackBack

"Sex offender wins $500,000 Alaska lottery"

The title of this post is the title of this new CNN piece.  Here are the basic details:

An Alaska lottery held to raise money for a group that helps sexual abuse victims had a surprise winner: a convicted sex offender.  Alec Ahsoak, who according to the state sex offender registry was convicted in 1993 and 2000 for sexual abuse of a minor, came forward Saturday with the winning ticket for the $500,000 Lucky Time Pull Tabs jackpot.

Proceeds of the lottery help Standing Together Against Rape in Anchorage, a nonprofit group that offers support to sexual assault victims among other services. "It's not how we had envisioned the story going," Nancy Haag, the group's executive director, told CNN Radio.

Alaska has the highest per capita number of rape cases in the United States, according to FBI statistics. "With a ranking that high, it's ironic that the person who wins is a convicted sex offender," Haag added.

Somewhere Alanis Morissette is tweaking her lyrics to this modern classic.  Come to think of it, isn't she perhaps driving in Alaska at the start of the original video for the song?

January 13, 2009 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Statutory interpretation at center of debate in SCOTUS clemency case

Adam Liptak has this article in the New York Times, headlined "Weighing Reach of Law in Appeals for Clemency," discussing the oral argument before the Supreme Court yesterday in Harbison v. Bell.  Here are excerpts:

In an unusually testy argument, the Supreme Court on Monday tried to make sense of a federal law that provides lawyers to poor inmates on state death rows when their cases move to federal court.  The question for the justices was whether the law also requires the federal government to pay those lawyers to present clemency petitions to governors and other state officials....

The law in question says lawyers handling federal capital cases must also be paid to represent their clients in “proceedings for executive or other clemency as may be available to the defendant.”

William M. Jay, an assistant to the solicitor general, said the law applies only to “federal proceedings before a federal officer.”  Dana C. Hansen Chavis, a federal public defender, told the justices that interpreting the law to apply only to federal clemency would render its language meaningless in many cases, as people convicted of state crimes are not eligible for federal clemency.

Everyone can read the full Harbison v. Bell transcript at this link.  Any predictions, dear readers?

January 13, 2009 in Clemency and Pardons | Permalink | Comments (1) | TrackBack

January 12, 2009

What might 2009 have in store for . . . the US Sentencing Commission?

I return to my 2009 "what's in store" series with a focus on the US Sentencing Commission, inspired by the fact that the USSC has its first public meeting of the year tomorrow morning.  As detailed in this official announcement, on the agenda is "Possible Votes to Publish Guideline Amendments and Issues for Comment."  I really have no idea what to expect for proposed guideline amendments, though I expect (and fear) that relatively technical concerns rather than any big bold initiatives will continue to dominate the Commission's work in near future.

That all said, the times are likely soon to be a-changing for the US Sentencing Commission.  It is my understanding from various reliable sources that there will be a new chair for the Commission in the months ahead (even though Judge Ricardo Hinojosa was confirmed in November to serve another term as a Commissioner).  In addition, back in November the Senate confirmed William Carr to start a term as a new Commissioner of the USSC (replacing the now retired John Steer). 

Of course, the new make-up of the USSC is not quite as dramatic as other changes in government personnel this month in DC.  And yet, a new President and new leadership throughout the executive branch (and especially at the Justice Department) will certainly have a profound echo effect inside the nation's one judicial branch agency.  Also, with Senator Jim Webb and perhaps other members of Congress eager to keep talking about sentencing reform, and with federal judges (including SCOTUS Justices) still working through all the implications of Booker, the US Sentencing Commission will surely have plenty to keep it busy throughout 2009.

Some related posts about the US Sentencing Commission:

Other posts so far in the 2009 "what's in store" series:

January 12, 2009 in Who Sentences? | Permalink | Comments (4) | TrackBack

A federal defendant prevails with a Second Amendment claim, sort of...

Thanks to this post by Eugene Volokh, I can not longer assert that every lower court has turned back every defendants effort to base a legal claim on Heller and the Second Amendment.  This post is titled, "The First (?) Post-Heller Case Holding a Gun Control Law Unconstitutional," and here are snippets from Eugene's effective reporting and analysis:

That's U.S. v. Arzberger. The gun control law is the part of 18 U.S.C. § 3142(c)(1)(B) that requires that when someone is charged with possessing child pornography (among other crimes) and is freed on bail, he be ordered not to possess any firearm....

This is formally a Due Process Clause holding, but it rests on a conclusion about the Second Amendment. Recall that the Due Process Clause (sometimes) entitles people to hearings only when there's a legally relevant factual dispute to be resolved. Persons "who assert a right to a hearing under the Due Process Clause must show that the facts they seek to establish in that hearing are relevant under the statutory scheme," or are made relevant by the Constitution....

[T]his is an important decision, though just from a magistrate judge.

I am not sure this ruling alone is all that significant from a Second Amendment perspective. But, against the backdrop of other lower courts' eagerness to reject Heller-based gun claims by any and all federal defendants, it is still noteworthy.  And, with luck, it will be the start of a trend.

January 12, 2009 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Should we celebrate Booker's fourth birthday?

After a day on the road, I return to e-mail with a friendly reminder from a friendly reader that four years ago today the Supreme Court handed down Booker and converted the federal sentencing guidelines from mandates to advice.  This same reader also sent along these questions:

Four years on, Professor Berman, and how "effectively advisory" are those guidelines?

How healthy is that Sixth Amendment jury buffer?

January 12, 2009 in Booker and Fanfan Commentary | Permalink | Comments (3) | TrackBack

"Online sex offender info rapidly expands"

The title of this post is the title of this effective article appearing at Stateline.org.  Here is how it starts:

Arizona parents who want to find out whether a suspicious e-mail has been sent by a registered sex offender now can check the sender’s e-mail address against the state’s database of convicted molesters.

Utah residents can sign up for e-mail alerts to notify them when a sex offender moves into their neighborhood. Wisconsin’s online registry provides maps to let users know exactly where the closest sex offender lives. And in Texas, the state’s sex offender registry — which includes more than 54,000 people — now features information ranging from offenders’ work addresses to their nicknames and even shoe sizes.

The four states are among more than two dozen that quietly have added a wide range of new services — and new categories of information — to their online registries of convicted molesters. All 50 states have publicly searchable sex offender registries, which are accessible through a national database kept by the U.S. Justice Department, a Web site that averages 2.3 million page views a day.

January 12, 2009 in Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Death slows in Ohio, bringing more LWOP sentences

This local AP article, headlined "Ohio death sentences declining: Crime rates are down; fewer criminals eligible," reports on the slow decline of the death penalty in Ohio.  Here are excerpts:

Ohio juries sentenced only three people to death last year, matching the lowest number since the state re-enacted capital punishment 27 years ago....  Records show the number of people indicted with capital crimes in Ohio is also lower than in past decades.  Ohio has 179 people on death row, the lowest figure in several years. The state has executed 28 defendants since 1999.

Prosecutors attribute the decline in death sentences to reduced crime rates and court decisions that have narrowed the eligibility for the death penalty. They also say the availability of a sentence of life without the possibility of parole is leading juries to sentence fewer people to death....

Ohio juries sentenced three people to death in 1982, the first full year the death penalty was in place following the state's enactment of a new capital punishment law the previous fall.  The number jumped to 16 in 1984 and hit a high of 24 in 1985.  Death sentences have been in the single digits in Ohio since 2003 when 12 sentences were handed out....

Death sentences in Ohio have been on a decline since 1996 when lawmakers gave jurors the option to sentence capital defendants to life without the possibility of parole.  In 2005, the law changed again, this time allowing prosecutors to seek a life without parole sentence without first seeking a death sentence.

That option made life without parole even more popular.  The prison system admitted 104 defendants serving life without parole from 2005 through 2008, a 38 percent increase over the four years before the law took effect.  Over the same time, prosecutors sought fewer death sentences to begin with in Ohio, from a high of 97 in 2004 to 69 last year, according to data analyzed by the Ohio State Public Defender's Office.

January 12, 2009 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Latest FSR issue, pondering USSC's future, now available on-line

I am pleased to report that, just in time for this week's public meeting of the US Sentencing Commission (basics here), the latest issue of the Federal Sentencing Reporter is available on-line.  The opening commentary, which I authored, is entitled "Pondering the U.S. Sentencing Commission's Future."  It can be downloaded at this link.  

The major articles of this latest FSR issue are listed below and can be accessed electronically here.  (A full subscription to the Federal Sentencing Reporter can be ordered on-line here.)

EDITOR'S OBSERVATIONS

ARTICLES

January 12, 2009 in Recommended reading | Permalink | Comments (0) | TrackBack

January 11, 2009

SCOTUS back in action with a busy criminal justice week

After a month-long break, the Supreme Court is back in action this week.  And, as detailed in this preview post at SCOTUSblog, more than half of the cases scheduled to be heard this coming week involve criminal justice issues.  Of the six criminal cases to be heard, these two seem most likely to cover matters of interest to sentencing fans:

I am also expecting that the Court will issue a few opinions from cases argued in the fall, and I am hopeful that some of the sentencing sleeper cases like Ice or Hayes might be among decisions handed down sooner rather than later.

January 11, 2009 in Who Sentences? | Permalink | Comments (0) | TrackBack

"Budget woes prompt states to rethink prison policy"

The title of this post is the title of this effective AP article.  Here is how it starts:

Their budgets in crisis, governors, legislators and prison officials across the nation are making or considering policy changes that will likely remove tens of thousands of offenders from prisons and parole supervision.

Collectively, the pending and proposed initiatives could add up to one of biggest shifts ever in corrections policy, putting into place cost-saving reforms that have struggled to win political support in the tough-on-crime climate of recent decades.

"Prior to this fiscal crisis, legislators could tinker around the edges -- but we're now well past the tinkering stage," said Marc Mauer, executive director of the Sentencing Project, which advocates alternatives to incarceration. "Many political leaders who weren't comfortable enough, politically, to do it before can now -- under the guise of fiscal responsibility -- implement programs and policies that would be win/win situations, saving money and improving corrections," Mauer said.

Some related posts: 

January 11, 2009 in Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Alaska's political leaders talking up a return of the death penalty

As detailed in this local article, a number of notable political leaders in Alaska are talking about trying to bring the death penalty back to the state.  Here are some of the details:

Incoming state House speaker Mike Chenault is pushing to reinstate the death penalty in Alaska, and Gov. Sarah Palin is all for it. So is state Rep. Jay Ramras, who says "hang 'em high," and that he would pass a death penalty bill out of the House Judiciary Committee, which he chairs.

But opponents, including influential members of the state Senate, say the death penalty is ineffective, expensive and racist....

Chenault's bill would allow the death penalty in cases of first-degree murder. But he has also talked about possibly including child molesters under it as well. The method of execution would be lethal injection under the bill....

Palin, a Republican, said in phone interview that she favors bringing the death penalty back to Alaska, particularly for cases where children are murdered. Someone who does that should not ever be able to again, she said. "Coming out of the chute, knowing that a lawmaker would pursue the death penalty in Alaska for murder, then I would support it," Palin said. "And then we'll see where he goes with the specifics."

January 11, 2009 in Death Penalty Reforms | Permalink | Comments (9) | TrackBack

Assailing the unjustified Second Amendment limits in Heller

As Randy Barnett notes here, "Nelson Lund has just uploaded to SSRN a new and important criticism of Justice Scalia's opinion in DC v. Heller ... [which] considers the exceptions to this right identified by Justice Scalia in dicta."  The new piece, titled "The Second Amendment, Heller, and Originalist Jurisprudence," is available at his link.  Here is part of the abstract:

[Heller] was a near perfect opportunity for the Court to demonstrate that original meaning jurisprudence is not just "living constitutionalism for conservatives," and it would been perfectly feasible to provide that demonstration.  Instead, Justice Scalia's majority opinion makes a great show of being committed to the Constitution's original meaning, but fails to carry through on that commitment.

In a narrow sense, the Constitution was vindicated in Heller because the Court reached an easily defensible originalist result.  But the Court's reasoning is at critical points so defective — and so transparently defective in some respects — that Heller should be seen as an embarrassment for those who joined the majority opinion.  I fear that it may also be widely (though unfairly) seen as an embarrassment for the interpretive approach that the Court purported to employ.  Originalism deserved better from its judicial defenders.

One section of Professor Lund's paper focuses on the the unjustified dicta assertion in Heller that Second Amendment rights could be completely eliminated for any and all felons.  As regular readers know, I have been troubled by that aspect of the Heller ruling from the very outset.

Some related Second Amendment posts:

January 11, 2009 in Second Amendment issues | Permalink | Comments (1) | TrackBack