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January 24, 2009

Revised article keeping up with all the SORNA litigation

Corey Yung notes here that he has a new draft available here via SSRN of his article, "One of These Laws is Not Like the Others: Why the Federal Sex Offender Registration and Notification Act Raises New Constitutional Questions."  This draft has been updated the article to reflect all of the district and circuit court opinions that have addressed SORNA issues recently.  Here is the abstract:

In 2003, the United States Supreme Court issued its only two opinions regarding the constitutionality of sex offender registration and notification statutes. The two opinions, Smith v. Doe ("Smith") and Connecticut Department of Public Safety v. Doe ("DPS"), upheld the Alaska and Connecticut registry and notification laws against Ex Post Facto Clause and due process challenges. Three years later, the federal Sex Offender Registration and Notification Act ("SORNA") was passed as part of the Adam Walsh Child Protection and Safety Act.  The federal statute was very different from the state statutes that the Court reviewed. Most notable among the differences was the creation of the federal crime of "failure to register" which was punishable by up to ten years imprisonment.  Despite the significance of the disparities between the state and federal laws, district courts across the country have virtually rubber stamped the criminal provisions of SORNA as constitutional. The district courts' reasoning has been almost entirely based upon superficial, mechanical applications of the Court's decisions in Smith and DPS.  This article contends that most district courts have been severely misguided in reading the two Court opinions and the statutory provisions of SORNA.  Consequently, this article concludes that either Congress should amend SORNA or courts should strike down portions of SORNA on Ex Post Facto Clause, due process, and Commerce Clause grounds.

January 24, 2009 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

January 23, 2009

Effective review of Spears ruling

Though it has been an historic week, I am pleased to be able today to remind sentencing fans of perhaps the most surprising event in the last few days: the summary reversal victory by a federal sentencing defendant in Spears.  Helpfully, local coverage here and here of the role played by Baylor Law Professor Mark Osler ensures that this important sentence story does not get completely lost in all the week's other exciting happenings.

Recent related posts:

January 23, 2009 in Kimbrough reasonableness case | Permalink | Comments (0) | TrackBack

Circuit Judge Troy Bolton Wilkinson urges an HSM approach to judicial appointments

200px-HighschoolmusicalCD The entire Obama family, as detailed here and here, is obviously quite familiar with Disney Channel productions and surely knows well (perhaps even too well) all the musical stylings of Troy and Gabriella and all the East High Wildcats of High School Musical fame.  Thus, I cannot help but speculate that Fourth Circuit Judge J. Harvie Wilkinson III was somehow hoping to tap into the HSM vibe when he put together this op-ed concerning judicial appointments that appears today in the Washington Post

Specially, the entire Wilkinson op-ed reads like an effort to try to encourage President Obama not to be too ideologically cliquey when making his judicial picks.  (An anti-clique message is, of course, at the heart of the whole HSM message).  And, as the excerpts below reveal, the closing line of the Wilkinson op-ed has now ensured that I will have the closing number of HSM I stuck in my head all afternoon.

Congress put federal circuit judges on panels of three for a reason -- namely, so that we could listen as well as talk, give as well as take and make the accommodations (more narrow rulings, less strident opinions) without which appellate courts cannot function.  The 4th Circuit has never prided itself on ideology but on the collegiality that takes minds out of concrete and prevents personal animosities from clouding and distorting the essential act of judgment....

To be sure, there will be change and disagreement on the 4th Circuit, but I pray that coming appointments to our court will not cause the doors of communication and compromise to slam shut.  A polarized 4th Circuit would bring no discernible public benefit.  At the end of the day, it's not lines of battle; it's not us and them.  Americans are in this together, and that includes the courts.

Sing it with me all you East High Wildcats on the federal judiciary:

Together, together, together every judge
Together, together, come on lets have some fun
Together, no lines of battle or getting uptight
Together, together, come on lets do this right

Here and now its time for judge appointments
I finally figured it out (yeah yeah)
That all our rights have no limitations
That's what its all about

Every judge is special in their own way
We make each other strong (each other strong)
Were not the same
Were different in a good way
Together's where we belong

Some related posts:

January 23, 2009 in Who Sentences? | Permalink | Comments (5) | TrackBack

Second Circuit uses lenity principles to interpret broadly judicial authority to grant crack reductions

The Second Circuit today in US v. McGee, No. 08-1619 (2d Cir. Jan. 23, 2009) (available here), works through the particulars of whether and when a defendant may be able to get the benefit of the new crack guidelines.  The opinion's methodology, as well as its result, may hearten a lot of defendants and counsel who have not been able to get all the relief they seek through crack reduction motions.  Here are the key concluding sections of the McGee ruling:

We acknowledge that U.S.S.G. § 1B1.10 can be read to permit a reduced sentence only where the defendant’s pre-departure sentencing range is found within the crack cocaine guidelines. However, “the meaning of language is inherently contextual [and] the [Supreme] Court has always reserved lenity for those situations in which a reasonable doubt persists about a statute’s intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute.” United States v. Dauray, 215 F.3d 257, 264 (2d Cir. 2000) (alteration and quotation marks omitted); see also United States v. Simpson, 319 F.3d 81, 86-87 (2d Cir. 2002) (holding that the rule of lenity applies to Sentencing Guidelines).  Here, we conclude that there is ambiguity as to whether the Sentencing Commission intended to exclude defendants such as McGee, who were clearly sentenced based on the crack cocaine guidelines and were disadvantaged by the 100-to-1 sentencing disparity that the crack amendments sought to correct, from the reach of the amendments....

We conclude that a defendant who was designated a career offender but ultimately explicitly sentenced based on a Guidelines range calculated by Section 2D1.1 of the Guidelines is eligible for a reduced sentence under 18 U.S.C. § 3582(c)(2) and the crack amendments.

January 23, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack

What do "our ideals" say about mass incarceration or LWOP for juves or acquitted conduct or the death penalty or GPS tracking or....

lots of other distinctive aspects of the modern American criminal justice system?  I ask this question because I keep thinking about these two sections of President Obama's Inaugural Address:

On this day, we gather because we have chosen hope over fear, unity of purpose over conflict and discord.  On this day, we come to proclaim an end to the petty grievances and false promises, the recriminations and worn-out dogmas that for far too long have strangled our politics.  We remain a young nation.  But in the words of Scripture, the time has come to set aside childish things.  The time has come to reaffirm our enduring spirit; to choose our better history; to carry forward that precious gift, that noble idea passed on from generation to generation: the God-given promise that all are equal, all are free, and all deserve a chance to pursue their full measure of happiness....

As for our common defense, we reject as false the choice between our safety and our ideals.  Our Founding Fathers, faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man -- a charter expanded by the blood of generations.  Those ideals still light the world, and we will not give them up for expedience sake. 

I strongly believe that the most disturbing aspects of modern criminal justice systems reflect choices by many in government to choose fear over hope and to readily give up "our ideals" concerning freedom and liberty because doing so seems expedient in light of "false promises" and "worn-out dogmas" of purported perils that threaten "our safety." 

Ironically, some of our ideals concerning freedom and liberty still light the world even though they have been given up at home.  No other country in the world incarcerates nearly as many people as does the US, and many nations in Western Europe take pride in their low imprisonment rates.  Many countries reject as inhumane the punishment of life without parole for any offender, while the US continues to condemn even juvenile offenders to never having a chance to live outside a cage.  Sadly, I could go on and on, but let me here just encourage readers to add more examples of criminal justice choices that seem to sacrifice our ideals in the name of safety.

Valuably, we have already seen President Obama's commitment to give meaning to his words through his executive orders that, as described in this article, will "close the Guantanamo Bay detention camp within a year, permanently shut the CIA's network of secret overseas prisons and end the agency's use of interrogation techniques that critics describe as torture."  But, now that the President and his Administration have showcased a commitment to our ideals in the face of foreign threats, I hope he will turn at least some attention toward what our ideals and "our better history" means for domestic crime and punishment.

As I have suggested before, President Obama could give effect and impact to his inspiring words about "out ideals" through a few clemency grants or an executive order calling for a review of the massive increase in the size and costs of the federal criminal caseload (which, as discussed here, was recently documented by the US Sentencing Commission).  A little action to back up his rhetoric on the home front would go a long way toward giving me hope that false promises,  worn-out dogmas and fear are among the childish things that the new President is truly prepared to put away.

Some related recent posts:

January 23, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (22) | TrackBack

Important insights concerning our intuitions about moral blameworthiness and punishment

Thanks to this post by Larry Solum, I discovered this new paper on SSRN titled "Intermediation Reduces Punishment."  Here is the abstract:

This research experimentally identifies the belief that an action is less blameworthy when separated from the outcome by another actor.  Contrary to current economic models of fairness, keeping money at the expense of a poorer player is punished less when done through an intermediary, even when the intermediary is not at all responsible.  Even subjects who believe intermediation leads to unfair outcomes and subjects who believe others intermediate to avoid punishment, punish intermediation less.  This suggests they are not confused or lacking thoughtfulness, but rather consciously believe intermediating is the less blameworthy thing to do. The resulting profit-maximizing strategy is to intermediate and choose a selfish allocation. Consequently, in treatments when an intermediary is available, the minimum payoff (and equity) decreases substantially.

Though focused mostly on moral psychology and experimental economics, this little paper could have profound implications for punishment theory, especially concerning how we assess and value retributivist intuitions.  Consider these additional insights from the paper:

The punishment patterns [documented here find the] best explanations from Moral Psychology. Moral judgment has been shown to be an emotional, intuitive response rather than a conscious, reasoned process; we judge something to be wrong because it just feels wrong and only try to justify with reasoning after the judgment has been made... [and] the emotional part of the brain is a significant factor in moral judgment.  Subsequently, it has been suggested and demonstrated that judgment and punishment is guided by outrage rather than the outcomes or intentions.

January 23, 2009 in Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

Can and will judges, defense attorneys and academics now get lots of sentencing data from BOP, DOJ and the USSC?

I was pleased to discover at WhiteHouse.gov the text of this memorandum from President Obama, titled "Transparency and Open Government." Here are some snippets:

My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government....

My Administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use. Executive departments and agencies should harness new technologies to put information about their operations and decisions online and readily available to the public....

Executive departments and agencies should offer Americans increased opportunities to participate in policymaking and to provide their Government with the benefits of their collective expertise and information. Executive departments and agencies should also solicit public input on how we can increase and improve opportunities for public participation in Government....

Executive departments and agencies should use innovative tools, methods, and systems to cooperate among themselves, across all levels of Government, and with nonprofit organizations, businesses, and individuals in the private sector. Executive departments and agencies should solicit public feedback to assess and improve their level of collaboration and to identify new opportunities for cooperation.

This important new memo is both inspiring and especially important to the operation of the federal criminal justice system.  I have heard from many judges and defense attorneys that many federal agencies and departments have resisted requests for information concerning prosecution and punishment policies and practices.  In light of this new memorandum, judges and defense attorney and academics should now feel empowered to expect and demand much greater transparency and openness from institutions like the Bureau of Prisons, the Justice Department, and the U.S. Sentencing Commission.

To its credit, the Sentencing Commission has been a lot better with transparency and openness and collaboration over the last five or six years.  Yet there is still a lot more that can and should be done to fully effectuate the goals and principles of this new memorandum.  And, in sharp contrast, the Bureau of Prisons and the Justice Department have had a very poor record recently when it comes to transparency and openness and collaboration.

I stress these points, and start to become more optimistic about the future of federal criminal justice, largely because of this terrific article entitled "The Black Box" by Professors Marc Miller and Ron Wright just out in the Iowa Law Review.  Consider these passages from the start and end of the article:

We believe that the internal office policies and practices of thoughtful chief prosecutors can produce the predictable and consistent choices, respectful of statutory and doctrinal constraints, that lawyers expect from traditional legal regulation. Indeed, we believe that internal regulation can deliver even more than advocates of external regulation could hope to achieve....

Whatever precise form it takes, greater transparency in a prosecutor’s office bodes well for the quality of internal regulation. The obligation to explain and the aspiration to make consistent and principled decisions can both thrive in an environment that embraces transparency in many forms. These can become our hopes when the black box of prosecutorial choices becomes more translucent.

Some related recent posts:

January 23, 2009 in Who Sentences? | Permalink | Comments (0) | TrackBack

Lots of executions in the US and Iran (and other death penalty news)

Barack Obama has been President for less than three full days, but already there have been three executions in the United States during his time in office.  This AP article, headlined "Two convicted killers executed in Texas, Oklahoma," provides the latest US execution news.  Intriguingly, I believe all three defendants executed this week were African-American.

Intriguingly, another country has also had a busy week with executions.  This New York Times article provides the basic details: "Iran hanged 22 convicted criminals in mass executions on Tuesday and Wednesday in Tehran and a few other cities, official news media reported."

Staying at the international news desk, this BBC report discusses a major mixed ruling from Uganda on the death penalty in that country: "Uganda's Supreme Court has ruled in a case involving more than 400 death row inmates that the death penalty is constitutional.... [But it] also said it was unreasonable to keep convicts on death row for more than three years [which] means most of the prisoners involved in the case will have their sentences commuted to life in prison."

Going even further East, this China Daily story recaps the various sentences given to defendants involved in that country's tainted milk scandal: "Capital punishment for two, a suspended death penalty for one, life imprisonment for three, 15-year jail terms for two and varying sentences for the 13 other accused."

January 23, 2009 in Death Penalty Reforms | Permalink | Comments (5) | TrackBack

January 22, 2009

A great letter urging the USSC to think big in its future work

I had the great pleasure of receiving from one of my old bosses, Judge Jon O. Newman of the Second Circuit, a copy of a brief letter he sent a few months ago to USSC Chair Judge Ricardo Hinojosa.  With permission, I have posted the letter below and here is the heart of its pitch:

I write to suggest that the Sentencing Commission begin in the very near future to plan for a major reconsideration of the Sentencing Guidelines to mark the 25th anniversary of the Guidelines, which will occur in 2012.

I have in mind a thorough reexamination of the principles, theories, and premises that underlay the original set of Guidelines and that have been virtually unchanged ever since. Understandably, the Commission has been preoccupied with a series of hundreds of amendments, dealing with new statutes and refinements to existing Guidelines.  But the “evolutionary” process forecast in the Introduction to the Guidelines (“The Commission emphasizes, however, that it views the guideline-writing process as evolutionary”) has not been realized.

Download Judge Newman letter to USSC Judge Hinojosa

Some related recent posts:

January 22, 2009 in Federal Sentencing Guidelines | Permalink | Comments (1) | TrackBack

When will President Obama start making judicial nominations to the lower courts?

According to this official accounting, there are currently 55 federal judicial vacancies (13 in the circuits, 42 in the district cours).  And, as detailed here, 18 of these vacancies constitute "judicial emergencies."  With lots else to do during his first week, I am not yet ready to complain about the pace at which President Obama is looking to fill these vacancies.  But I have been hoping that he would hit the ground running in this arena, and thus I am curious if anyone (insiders or outsiders) has ideas or educated speculations about when the new President will start nominating some new judges.

Some related posts:

January 22, 2009 in Who Sentences? | Permalink | Comments (11) | TrackBack

Split First Circuit opinion addressing broad sex offender supervised release conditions

An opinion released yesterday by the First Circuit, US v. Perazza-Mercado, No. 07-1511 (1st Cir. Jan. 21, 2009) (available here), covers the (now often litigated) issues surrounding broad conditions of supervised release placed on a federal sex offender. The start of the majority opinion sets out the basic issues:

This case requires us to address the validity of two conditions of supervised release imposed on a defendant convicted of unlawful sexual contact with a minor. The first condition prohibited the defendant from having any access to the internet at home during the fifteen-year supervised release period. The second condition prohibited the possession of pornography generally.

The start of the partial dissent (per Judge Howard) provides a basic summary of what the majority decided in Perazza-Mercado:

I agree that the supervised release condition banning all home internet use is too broad.  I dissent in part, however, because I believe the second supervised release condition -- prohibiting Perazza-Mercado from possessing "pornographic materials" -- survives plain error review.

January 22, 2009 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

US Sentencing Commission publishes proposed guidelines amendments

I just noticed on the US Sentencing Commission's website that there is now this link providing access to the 112-page(!) official notice of the USSC's proposed guideline amendments for this coming amendment cycle.  As highlighted by this official summary, readers might want to make sure they have a big cup of coffee before sitting down to try to take in all the proposed amendments:

The proposed amendments and issues for comment in this notice are as follows:

(1) a proposed amendment in response to the Identity Theft Restitution and Enforcement Act of 2008, title II of Pub. L. 110–326...;

(2) a proposed amendment in response to the Ryan Haight Online Pharmacy Consumer Protection Act of 2008, Pub. L. 110–465...;

(3) a proposed amendment in response to the Drug Trafficking Vessel Interdiction Act of 2008, Pub. L. 110–407...;

(4) an issue for comment in response to the Court Security Improvement Act of 2007, Pub. L. 110–177, regarding the guidelines’ treatment of homicide, assault, and threat offenses;

(5) an issue for comment in response to the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. 110–457, regarding the guidelines’ treatment of alien harboring and human trafficking offenses;

(6) a proposed amendment in response to miscellaneous issues arising from legislation recently enacted and other miscellaneous guideline application issues, including proposed changes to the guidelines’ treatment of offenses involving contempt, consumer product safety, interest rate limitations, domestic violence, child soldiers, veterans’ grave markers, child pornography, firearms, threats, and copyright infringement and the guidelines’ treatment of probation and supervised release, and related issues for comment;

(7) a proposed amendment to §2A3.2 ... and §2G1.3 ... in response to a circuit conflict regarding application of the undue influence enhancement in those guidelines, and a related issue for comment;

(8) a proposed amendment to §3C1.3 (Commission of Offense While on Release) in response to an application issue regarding that guideline;

(9) a proposed amendment in response to a circuit conflict regarding the guidelines’ treatment of counterfeiting offenses involving "bleached notes", including a proposed change to §2B5.1 (Offenses Involving Counterfeit Bearer Obligations of the United States); and

(10) a proposed amendment in response to certain technical issues that have arisen in the guidelines.

January 22, 2009 in Federal Sentencing Guidelines | Permalink | Comments (1) | TrackBack

New proposals from CSG's Justice Center for how Michigan can cut correction costs

As some readers may know, The Council of State Governments has a Justice Center project called "Justice Reinvestment" (website here), which produces for states a set of reports and analyses of the fiscal and public safety impact of criminal justice policies.  As detailed in this new piece from the Detroit Free Press and in this official press release, this project has just produced a bunch of new materials for the good folks of Michigan.  The newspaper article is headlined, "Study: Michigan could save millions with early release: Yearlong analysis cites high costs, harsh punishments," and here are excerpts:

The State of Michigan could save $262 million in prison costs by 2015 by bringing parole policies in line with other states – and releasing thousands of prisoners earlier – according to a yearlong analysis of crime and punishment conducted by national policy center.

The analysis by the Justice Center at the Council of State Governments, presented at the state Capitol today, found that Michigan suffers from high rates of violent crime, has fewer police officers and lower conviction rates than other states, but tends to imprison convicted felons longer.

The key recommendation, to require most prisoners to be released after serving 120% of their minimum sentence, was endorsed by Republican and Democratic lawmakers and representatives of Gov. Jennifer Granholm, who have been working with the center on the analysis.

Also included in the group’s potential remedies are beefed-up law enforcement and crime lab capabilities, and increased training and job placement for offenders and disconnected young people. Those initiatives would presumably be paid for with savings in the prison system, especially the accelerated parole of convicted criminals.

More background on the Justice Reinvestment project in Michigan can be found here, and the reports referenced in this above article can be accessed at this link.

January 22, 2009 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Seventh Circuit covers a lot of 3582(c) crack sentencing reduction issues

A new per curiam opinion today from the Seventh Circuit, US v. Foreman, No. 08-2177 (7th Cir. Jan. 22, 2009) (available here), goes over a lot of law concerning efforts by defendants to get the benefit of the new crack guidelines.  Here is how the opinion begins:

Late last year the Sentencing Commission reduced the base-offense levels for crack-cocaine offenses and made the changes retroactive.  SeeU.S.S.G. § 2D1.1(c); U.S.S.G., Supp. to App. C 226-31 (2008) (Amendment 706). Since then scores of convicted crack offenders have returned to the district courts to request sentence reductions under 18 U.S.C. § 3582(c)(2).  But not everyone is eligible; we have consolidated for decision five appeals, each from a denial of a motion under § 3582(c)(2), that illustrate several common barriers to sentence modification.

The opinion generally does not appear to break much (if any) new ground, though I did notice this summary rejection of an issue that is being litigated in other lower courts:

As for the denial of Forman’s motion to appoint additional counsel, there is no right to counsel when bringing a motion under § 3582(c)(2).

Notably, in support of this assertion, the Seventh Circuit does cites case a roughly decade old or older.

January 22, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Commentary on how celebrity status effects clemency commitments

I am pleased to see this notable new commentary about Orrin Hatch's celemency commitments by Rebecca Walsh in today's Salt Lake Tribune. Here are highlights:

After reading People and Us magazine, I know that I'd serve more time for a DUI than Paris Hilton or Nicole Richie. Justice is usually softer for celebrities.

Weldon Angelos just isn't a big enough star.  He's the forgotten Utah hip-hop producer serving 55 years for carrying a gun while selling 24 ounces of marijuana. Condemned by minimum-mandatory sentencing guidelines, Angelos also has been forsaken by his elected representative -- music-loving Sen. Orrin Hatch.

Hatch called "the appropriate people" at the Department of Justice when he learned of rapper John Forte's plight: A record producer who worked on The Fugees' Grammy-winning album "The Score," Forte was arrested in 2000 at Newark airport with 31 pounds of liquid cocaine.  He was sentenced to another minimum-mandatory sentence of 14 years....

Despite his love for rap producers, Hatch is unmoved by Angelos' story: The 29-year-old father of two young children was caught selling three 8-oz. baggies of pot in a series of stings.  His first offense.  In exchange for reduced sentences, informants testified he brandished a gun.  Angelos disputes their stories.  When he wouldn't plead guilty, prosecutors tacked on additional gun charges, ratcheting his sentence up....

His attorneys aren't asking for a pardon, just reasonable punishment.  Angelos has served five years. He's likely to die before he leaves prison.  Bush left office this week without acting on his request for clemency.

Hatch could lobby the new president, but he won't.  He doesn't seem bothered by his own haphazard, fame-driven intervention policy.  Angelos is a drug user, the senator argues, but Forte was not.  The difference between $1.4 million in liquid cocaine and $1,050 in marijuana seems just as lost on Hatch as it was on prosecutors.

Of course, I am biased in this matter because I am one of the attorneys for Weldon hoping to secure "reasonable punishment" through executive clemency (and I am quoted in this commentary).  But, biased or not, I am hopeful that the new President will not need Senator Hatch's input to understand reasons why clemency for Weldon Angelos would be justified. 

After all, this new President said in his Inaugural Address that our country was built on " the noble idea passed on from generation to generation:  the God-given promise that all are equal, all are free, and all deserve a chance to pursue their full measure of happiness."  Given that Weldon has already spent five years in federal prison for offenses that usually net a first-offender less than a year in jail, I continue to hope that the new President will seek to operationalize in the criminal justice system his grand rhetoric about equality, freedom and providing even persons who (like him) got involved in drugs when young another "chance to pursue their full measure of happiness."

Some recent related posts:

January 22, 2009 in Clemency and Pardons | Permalink | Comments (9) | TrackBack

First execution of the Obama era carried out in Texas

There has been intriguingly little discussion of the death penalty at the national level in recent months(perhaps because, as suggested here and here, the Bush Administration may have been secretly supporting a moratorium on federal executions).  But, of course, the administration of capital punishment in Texas rarely takes a holiday: as detailed in this CNN story, the state executed a double-murderer last night. 

The CNN story notes that the defendant executed in Texas yesterday claimed he killed in self defense.  But, unable to get others to agree, the defendant ended up having the (historic?) distinction of being the first person executed during the first term of the first black President.  For readers eager to track death penalty trivia, this executed Texas defendant's name was Frank Moore.

Some recent related posts:

January 22, 2009 in Death Penalty Reforms | Permalink | Comments (4) | TrackBack

January 21, 2009

An insider's reaction to the SCOTUS summary reversal in Spears

I asked Professor Mark Osler, who was counsel of record for the defendant who secured a surprise summary reversal win from the Supreme Court today in Spears, to write up his immediate reaction to the decision for posting.  Here was his thoughtful reply:

While today’s Spearsopinion at times reads like a WWE Sentencing Smack-down hosted on the Food Network, with the majority’s description of the Eighth Circuit’s opinion as “a smuggled-in dish that is indigestible” and the dissent’s reference to the “bitter medicine” of summary reversal, the Court’s clarification of Kimbrough may end up having real significance.

Fundamentally, the Court’s opinion makes very clear that Booker requires that judges be allowed to categorically reject sentencing guidelines with which they disagree on policy grounds. In so doing, the Spears majority encourages judges to articulate personal sentencing guidelines in a sense, by concretely defining the alternatives they are choosing. The Court properly and succinctly recognized that unless sentencing judges are allowed to define their alternative scorings categorically and honestly, there are only two possible outcomes: Either the guidelines are essentially mandatory, or judges lie about their reasoning, which is “institutional subterfuge.”  As the Court asserted, “Neither is an acceptable sentencing practice.”

This newly clarified principle may have a few very immediate uses.  First, this principle will quickly be tested outside crack cases.  For those of us in Texas, for example, Spears invites strong challenges to the 16-point enhancement for an aggravated felony in an illegal re-entry case, since that enhancement is no more “scientific” than the 100-1 powder/crack ratio.  Judges can, and perhaps should, develop categorical alternatives to this enhancement.

Second, and just as importantly, Spearsshould encourage the Obama administration to pro-actively use its power of commutation to lessen the sentences of those who are serving unduly harsh crack sentences.  This would especially include those who were sentenced under the wrong interpretation of Kimbroughembraced by three circuits, which was rejected today. It is not flaming liberals who would provide the moral impetus to these commutations.  Rather, it would be Justice Scalia, who likely authored Spears and at the least joined in the majority.  Through Spears, Scalia urged not only that categorical alternatives be allowed, but that this be made known “at once,” and that the Eighth Circuit’s interpretation needed to be removed from the debate “promptly.”  Seemingly, this urgency was one reason the case was decided per curiam.  If Justice Scalia feels that justice must be done in this area with alacrity, certainly President Obama should agree and warm up the essential executive commutation power President Bush had left out in the cold.

Recent related posts:

January 21, 2009 in Kimbrough reasonableness case | Permalink | Comments (14) | TrackBack

"Compassionate Conservatism, My Ass"

The title of this post is the title of this impassioned critiqueby Jacob Sullum of former President George W. Bush's pitiful record on clemency grants in the wake of his decision earlier this week to make the Border Agents the only recipients of executive grace.  Of course, I share Jacob's frustration, and I hope he will join me in urging President Obama to make up for his predecessor's failing by granting some (perhaps many) clemencies in the days and weeks ahead.

Though President Obama has now been in office only about 30 hours, he has had time to halt the GTMO trials.  Though I am not yet ready to start complaining about his failure to use his clemency power, I continue to hope there will be at least one or two symbolic clemency gestures in the days ahead to show that the new President really means for the criminal justice system what he said in his Inaugural Address about our commitment to placing "hope over fear," about the need to "choose our better history," and about the importance of rejecting "as false the choice between our safety and our ideals."

Some recent related posts:

January 21, 2009 in Clemency and Pardons | Permalink | Comments (1) | TrackBack

Racist(!?!?!) remarks by state sentencing judge leads to reversal

We all know thanks to Art Linkletter and Bill Cosby that kids say the darndest things.  But today brings a new state appellate case from Wisconsin that reminds us that some sentencing judges also say the darndest things, and those darn things can sometimes demand a reversal.  Here is the story from the Milwaukee Journal-Sentinal:

A Milwaukee man convicted of selling cocaine will get a new sentencing hearing because the judge who sentenced him referred to the man's "baby mama" and asked him where "you guys" find women to support them while they stay home, the state Court of Appeals has ruled.

In a 2-1 opinion released today, the court found that then-Circuit Judge Joseph Wall, who is no longer on the bench, did not intend his comments to be offensive and did not intentionally engage in racial stereotyping.  "What concerns us is the reasonable perception of an African-American defendant, or an observer, that the sentence was imposed at least in part because of race." Judge Joan Kessler wrote for the majority.

Judge Patricia Curley was harsher and said the remarks were contrary to the Code of Judicial Conduct.   "The trial court's intemperate sentencing remarks," Curley wrote in a separate concurring opinion, "were sarcastic and demeaning, the antithesis of 'patient, dignified and courteous.' As is evident by the many sentencing transcripts that cross my desk, it is possible for a sentencing judge to mete out stiff (and often well-deserved) sentences without belittling the offender."

In dissent, Judge Kitty Brennan, who was the chief judge in Milwaukee until joining the appellate court last year, said she did not believe a new hearing is required because there was no racial subtext in Wall's remarks.

Wall, who left the bench in 2007 to rejoin the U.S. attorney's office in Milwaukee, called the majority's opinions convenient and opportunistic.  "The comments, reasoning, and conclusion of these two judges are legally incorrect and shameful, and are a transparent stretch to appear politically correct at a politically correct moment," he wrote in an e-mailed reply to a reporter seeking comment.

January 21, 2009 | Permalink | Comments (2) | TrackBack

Will a commitment to "transparency and the rule of law" extend to DOJ in the new administration?

This report from CNN about commitments and comments made by President Obama has me very excited about possible reforms of the federal criminal justice system. Here is the start of the article that has me to excited:

Promising "a new era of openness in our country," President Barack Obama signed executive orders Wednesday relating to ethics guidelines for staff members of his administration.  "Transparency and the rule of law will be the touchstones of this presidency," Obama said.

As regular readers know well, "openness" and "transparency and the rule of law" have never been the hallmark of the Justice Department when it comes to prosecutorial data and sentencing policies.  

I have long suspected that DOJ has lots of important internal data about its disretionary charging and bargaining and sentencing advocacy practices. But on topics like fast-track pleas or substantial assistance discounts or other critical system-wide concerns, DOJ it has rarely made public or been transparent about its discretionary decision-making.  I am hopeful that the "new era of openness in our country" will include lots of new information from the Justice Department on all crime and punishment concerns. 

January 21, 2009 | Permalink | Comments (1) | TrackBack

Republicans force delay of confirmation of Eric Holder to be Attorney General

CNN has this new report on the political wrangling that surrounds the now-delayed confirmation of Eric Holder as the next Attorney General:

The initial confirmation vote for Eric Holder, President Barack Obama's pick for attorney general, was postponed for a week Wednesday after a rancorous meeting of the Senate Judiciary Committee.

Republicans, who want to question Holder about his role in a controversial presidential pardon when he worked in the Clinton administration, used a procedure that allows them to put off the vote. Senate rules allow for a one-week delay if a panel member requests it.  In this case, all the Republicans wanted the delay, according to their ranking member.

A clearly agitated Sen. Patrick Leahy, a Democrat and chairman of the committee, slammed his gavel and walked out after acknowledging that Republicans had the right to ask for the delay.... 

The balking Republican lawmakers indicated that they want additional answers from Holder, who appeared before the panel Thursday. That prompted a strong reaction from Leahy. "It would look like a horrible double standard for those who enthusiastically voted unanimously for Alberto Gonzales to turn down the first African-American or hold up the first African-American to be attorney general," he said....

Meanwhile, acting Attorney General Mark Filip, who served as deputy attorney general under President George W. Bush, has taken the reins at the Justice Department pending Holder's confirmation. Filip and a cadre of career lawyers kept a low profile as they ran the wide-ranging functions of the dozens of Justice Department divisions and offices Wednesday.

January 21, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (6) | TrackBack

One measure of the impact of the ACCA ruling in Chambers

As noted here, last week the Supreme Court held in Chambers that a “failure to report” for penal confinement is not a “‘violent felony’” within the terms of the Armed Career Criminal Act.  For one measure of the import of that ruling, check out today's order list fromt the Supreme Court. 

I count 27 cases that are GVR'ed today based in part on Chambers.  And if there are that many cases that already made it into the SCOTUS cert pile, there must be dozens (perhaps hundreds) more cases in the pipeline that could be impacted by Chambers.

January 21, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (0) | TrackBack

Dueling with Spears (aka digesting Spears)

I remain surprised and excited that a majority of the Supreme Court thought it appropriate to use, as the Chief put it, "the bitter medicine of summary reversal" in Spears (opinion here) to reiterate for all circuit courts that they should not --- indeed, must not --- second-guess the work of sentencing courts if and when a district judge has provided a thoughtful explanation for her or his sentencing choices.  I am also pleased and excited that the Justices used such engaging words to talk up their differing assessments of whether a summary reversal was appropriate in this case.

Specifically, Chief Justice Roberts ends his dissent in Spears with these fascinating assertions: 

We should not rush to answer a novel question about the application of a one-year-old decision in the absence of a pronounced conflict among the circuits.

Apprendi, Booker, Rita, Gall, and Kimbrough have given the lower courts a good deal to digest over a relatively short period.  We should give them some time to addressthe nuances of these precedents before adding new ones.  As has been said, a plant cannot grow if you constantly yank it out of the ground to see if the roots are healthy.

But, in direct response the per curiam opinion for the Court (which certainly has the ring of an opinion from the pen of Justice Scalia) gives as good as it gets:

The dissent says that “Apprendi, Booker, Rita, Gall, and Kimbrough have given the lower courts a good deal to digest over a relatively short period.”  Post, at 3.  True enough — and we should therefore promptly remove from the menu the Eighth Circuit’s offering, a smuggled-in dish that is indigestible.

January 21, 2009 in Kimbrough reasonableness case | Permalink | Comments (3) | TrackBack

Lots of criminal justice action from SCOTUS, including a sentencing per curiam

With all the executive branch excitement this week, I forgot that the courts are still the place to go for the best criminal justice action.  And, to my pleasure and surprise, as reported here and hereat SCOTUSblog, the Supreme Court has lots of this action with arguments in some criminal justice cases and the release of a number of decisions in previously argued cases.

But what has me most excited is the release of a per curiam opinion in Spears v. United States(08-5721), a sentencing case up from the Eighth Circuit that did not have argument.  Here are the basics on the ruling from Lyle Denniston:

The Court also released a per curiam opinion in Spears v. United States (08-5721), a sentencing guidelines case.  The opinion is here. The Chief Justice wrote a dissenting opinion, joined by Justice Alito. Justice Thomas dissented without opinion. Justice Kennedy would have granted the petition for certiorari.

I will have a lot more to say about Spears when I get a chance to digest the Justices' collective work.

January 21, 2009 in Booker and Fanfan Commentary | Permalink | Comments (10) | TrackBack

Intriguing HLR note on the history of punishment and the Eighth Amendment

The latest issue of the journal that our new President once ran includes an intriguing Note titled, "The Eighth Amendment, Proportionality, and the Changing Meaning of 'Punishments'."  This Note discusses punishment history, a topic I always find interesting, in service of an argument about the appropriate way to interpret the Eighth Amendment for monder times.  Here is a key paragraph from the Note's first few pages:

This Note insists ... that one cannot effectively discuss the Eighth Amendment in terms of original intent without examining the word that follows “cruel and unusual” in the constitutional text.  The system of “punishments” that existed at the time of the Founding was fundamentally different from that which exists today.  The Cruel and Unusual Punishments Clause was written in the context of a system that relied to a large extent on public participation in punishments.  Critically, this system of primarily “public” punishments was one in which true proportionality was neither a realistic possibility nor a theoretical imperative.  Not long after the Founding, however, this system began to collapse and was gradually replaced by a new system that depended on different methods and a different logic — and that ultimately developed into the system of punishments that exists today.  This new system employed as its primary means a markedly nonpublic method of punishment, incarceration, that could be made eminently proportional.  Additionally, the system relied on the notion that punishment must be proportional in order to be effective.  The gap in meaning between “punishments” at the time of the Founding and “punishments” under the system that subsequently developed make problematic Justice Scalia’s claims about the intention of the Framers as to proportionality in punishments generally.  The Framers may have intended not to ban disproportionality in the existing system of public punishments.  But it is doubtful that this gives us any direct evidence on the intention of the Framers regarding proportionality in the new system of nonpublic punishments.

January 21, 2009 in Recommended reading | Permalink | Comments (1) | TrackBack

A creative musical approach to alternative punishment

220px-BarryManilowA kind reader sent along this interesting aternative sentencing story, headlined "He writes the rules that make their eardrums ring."  Here is the start of an enjoyable article:

The guiding principle in Municipal Judge Paul Sacco's courtroom is an eye for an eye. Or rather, an ear for an ear.

So when teenagers land in front of him for blasting their car stereos or otherwise disturbing the peace in this small northern Colorado city, Sacco informs them that they will spend a Friday evening in his courtroom listening to music -- of his choosing.  No, they can't pay a fine instead, he tells them. So, he adds with a snicker, ever heard of Barry Manilow?

For the last decade, Sacco, 55, has administered a brand of justice somewhere between "cruel" and "unusual."  Young people in Fort Lupton know that if they're caught, they're in for a night that could begin with the "Barney" theme song, move on to an opera selection and end with Boy George's "Do You Really Want to Hurt Me."

Sacco's answer to that last question: Yes, he does.  Or rather, he wants a little payback to the scofflaws blaring their tunes without regard for their neighbors -- a vexing habit in this blue-collar community of about 8,000, said Police Chief Ron Grannis.

For a while, Sacco -- a part-time judge who also has a law practice -- issued tickets, $95 apiece, to the noise violators.  But one day, as he ordered a teenager to pay a fine, he realized the kid's parents, flanking him, would probably just pay it for him.  "It just seemed I was a rubber-stamper," he said. "I hate that."

What he really wanted to do, Sacco thought, was give the kid a dose of his own medicine.  And the "music immersion" sentence was born.  The concept was simple: Stick the kids in a room -- on a night they'd rather be out socializing -- and turn up the volume.

Manilow immediately came to Sacco's mind.  Not because he disliked Manilow, but because he knew they would. But the playlist also features other artists, mostly selected for their ability to annoy the younger set.

January 21, 2009 in Criminal Sentences Alternatives | Permalink | Comments (3) | TrackBack

January 20, 2009

Washington legislature considering chip implants for sex offenders

Among lots of good new posts at Sex Crimes is a link to this local story reporting on legislative consideration of going one technocorrections step beyond GPS tracking of sex offenders.  The piece is headlined "Lawmakers consider implanted chips for tracking sex offenders," and here is how it starts:

Lawmakers are considering a controversial bill that would outfit sex offenders with a surgically-implanted device that tracks their movement.

The devices would replace the ankle bracelets that are currently used to track offenders. The bracelets have been criticized as a lacking device as offenders have successfully removed them in the past before disappearing off of the radar.

"(The devices would) be a little more difficult to take off," said Rep. Maralyn Chase, D-Edmonds.

January 20, 2009 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Is it time now to get serious again about a Booker fix (or even an SRA fix)?

In the immediate wake of the Supreme Court's decision in Booker, there was much talk and debate about possible legislative "fixes" to the new sentencing system created by the Booker advisory guideline remedy.  As detailed in this post from fall 2006, the Booker fix buzz even found expression in the introduction of a Bookerfix bill by then-House Judiciary Committee Chairman, F. James Sensenbrenner, Jr.  That bill, HR 6254, proposed what was then known as the "topless guidelines" fix to Booker, and the bill that is formally called the "Sentencing Fairness and Equity Restoration Act of 2006." 

Though there seemed to be a serious possibility that a Booker fix proposal might have legs when the Republicans still controlled Congress, the reality of divided government after the 2006 election quickly ended serious talk of a Booker fix.  In addition, because circuit courts were still rigorously reviewing (and often reversing) below-guideline sentences, the full import and impact of the Booker ruling remained somewhat muted at least until the Supreme Court's decisions in Gall and Kimbrough in December 2007.  And by that time, the Department of Justice was in a bit of policy disarray in the wake of the departure of former Attorney General Alberto Gonzales (who had been an advocate of a Booker fix).

As of this afternoon, there is no longer divided government in Washington DC.  Democrats now control both houses of Congress and the White House.  And, with lots of new personnel with new energy and perspectives in the Justice Department (as detailed here at The BLT blog), it may be time to start thinking not just days and weeks ahead, but also years and decades ahead, concerning the federal system of crime and punishment.

Notably, this past Sunday marked the 20th anniversary of the Mistretta v. United States, the Supreme Court's decision that gave constitutional blessing to the institutional structure of the Sentencing Reform Act of 1984 (SRA).  As noted here last week, Booker has now been the law of the land for four years, and the Booker remedy has made even more difficult to make a crisp and sober assessment of whether the entire federal sentencing structure is working effectively. 

Add all this up, and maybe it is time to start talking about not just a Booker fix, but about a possible revision of the entire structure and content of the SRA.  After all, we have leaded a lot about sentencing law and policy over the last quarter-century, and the size of the federal criminal justice system has grown enormously during this period.  Perhaps, as we get really serious about fixing federal programs and policies that do not work, we ought to consider whether the entire SRA (and/or the Booker remedy) comprising a federal system in need of fixing.

January 20, 2009 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

The Obama Administration moves forward (on-line) with its "change" agenda for criminal justice

A helpful reader suggested I take note of the fact that the criminal justice issues previously identified as part of the Obama-Biden agenda on the old change.gov website (noted here in November 2008 with what are now "dead" links) has now migrated to the new WhiteHouse.gov website.  Specifically, under the Agenda section and in this civil rights subdivision of WhiteHouse.gov, one now finds these commitments:

Since it is now only four hours since he took office, I suppose I cannot and should not yet expect action on all these fronts today.  But these (relatively tepid) promises really can and should become priorities in the first 100 days of the new Administration (and just a few symbolic and strategic clemencies in the next few days might go a long way toward energizing all the public policy groups working these important areas).

January 20, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (4) | TrackBack

Is it too early to start demanding President Obama use his clemency power?

Barack Obama has been President of the United States for barely an hour, but he has already issued his first official proclamation.  Here are some notable snippets:

On this Inauguration Day, we are reminded that we are heirs to over two centuries of American democracy, and that this legacy is not simply a birthright -- it is a glorious burden. Now it falls to us to come together as a people to carry it forward once more.

So in the words of President Abraham Lincoln, let us remember that: "The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature."

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by the authority vested in me by the Constitution and laws of the United States, do hereby proclaim January 20, 2009, a National Day of Renewal and Reconciliation, and call upon all of our citizens to serve one another and the common purpose of remaking this Nation for our new century.

Sounds good to me.  And if the new President really is committed to renewal and reconciliation, if he is really committed to the belief in the ability of everyone, even those who have committed crimes in the past, to be "again touched ... by the better angels of our nature," he ought to celebrate today by using his clemency power aggressively to help many of the offenders who got an undeserved cold shoulder from former President George W. Bush.

January 20, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (18) | TrackBack

Inaugural rhetoric about freedom and liberty in prison nation

I am about to sign off to go watch the inauguration activities on television, but I feel obliged to first remind everyone that soaring inaugural rhetoric does not necessarily translate into improved practical realities.  And I stress this point with a particular focus on our leaders' tendency to talk big about freedom and liberty in America, even while the United States continues to be a world leader in incarceration rates and extreme terms of imprisonment.

Against this backdrop, it bears noting that out-going President Bush started his second term with an Inaugural Address in 2005 that mentioned freedom 27 times and mentioned liberty 15 times.  Included in that 2005 speech were the inspiring assertions that "The best hope for peace in our world is the expansion of freedom in all the world" and "In the long run, there is no justice without freedom, and there can be no human rights without human liberty."  Yet despite that rhetoric, during his second term in office, President Bush presided over the continued expansion of the number of persons with their freedom and liberty by their confinement in federal and state prison and jail facilities.  And, stunningly, perhaps the only form of executive power that President Bush did not use aggressively was his clemency power, which the Framers fully expected and wanted Presidents to use to enhance the freedom of offenders who no longer needed to have their liberty severely restricted.

For these reasons, though I will be listening for references to freedom and liberty in President-elect Barack Obama's speech today, I care a lot more about his actions to expand human liberty and freedom int he days ahead.  In particular, I am hoping (though not really expecting) that the new President will have the courage to take at least a few symbolic steps during his first 100 days to highlight that he understands it is both an embarrassment and disgrace that a nation "conceived in Liberty," as President Lincoln put it at Gettysburg, is now a country that restricts liberty at home more than any other nation on the globe.

Some recent related posts: 

January 20, 2009 in Scope of Imprisonment | Permalink | Comments (3) | TrackBack

"The folly of native sentencing circles"

The title of this post is the title of this interesting commentary from Canada's National Post. Here is a provocative excerpt:

One often hears sentencing circles spoken of as if they were an ancient feature of aboriginal civilization. In fact, the term was popularized only in the 1990s, when academics and government officials began blaming high rates of native criminality on a "white" criminal justice system that alienates natives with its focus on Western abstractions such as "justice," "guilt" and "punishment."

In 1996, the federal government began funding sentencing circles as part of its newly announced Aboriginal Justice Strategy, and amended the sentencing provisions of the Criminal Code to provide special treatment for aboriginals -- later justified by the Supreme Court of Canada on the dubious basis that "many traditional aboriginal conceptions of sentence emphasize the notions of community-based sanction and restorative justice."

"[An] emphasis on healing rather than punishment is very much in harmony with traditional notions of native justice," wrote one academic in a typically earnest, award-winning report on the subject. "The aboriginal concept of the medicine wheel teaches that everything is interrelated and evolves in a circular pattern. An aboriginal community is a circle that is broken when a wrong is committed."

Like so much else that is written about natives, this is high-flown noble-savage nonsense -- part of an ongoing intellectual campaign by white researchers and jurists to project their own utopian reveries on dimly understood native cultures. Not surprisingly, sentencing circles have done nothing to help alleviate native suffering: The order-of-magnitude over-representation of natives among Canada's criminal class is more or less unchanged since the adoption of reforms in the 1990s.

Some prior posts about sentencing circles:

January 20, 2009 in Criminal Sentences Alternatives | Permalink | Comments (2) | TrackBack

January 19, 2009

Split outcome in World Court assessment of US death penalty involving foreign nationals

This AP article provides the highlights of a new ruling from the World Court concerning the administration of the death penalty in the US.  Here are the details:

The International Court of Justice ruled Monday that the United States defied its order last year when authorities in Texas executed a Mexican convicted of rape and murder.

The U.N.'s highest court said the U.S. remains obliged to review the cases of about 50 other Mexicans on death row because they were denied access to their consulate after they were arrested. But it rejected Mexico's request that Washington guarantee that each case will be reviewed and reconsidered.

Both Mexico and the United States said they were satisfied with elements of the decision. "It was a mixed result," said John Bellinger III, the legal adviser to the U.S. State Department.

He said the court refused Mexico's main request to spell out the U.S. obligations toward the arrested Mexican nationals, which likely would have led to heightened demands on the U.S. courts. But he was "disappointed" the tribunal declined to acknowledge efforts by the Bush administration to comply with international law and with the court's order.

The Mexican government applauded the ruling in a statement and urged U.S. President-elect Barack Obama to "take concrete actions" to comply with the ruling and "respect the rights of all Mexican nationals."

Thanks to this post at How Appealing, everyone can access at this link the press release that the International Court of Justice issued today, and can access today's ruling at this link.

UPDATE:  Lyle Denniston has this post about the ruling, titled "World Court: U.S. execution broke global law."

January 19, 2009 in Death Penalty Reforms | Permalink | Comments (3) | TrackBack

Informed perspectives on the closing clemencies of the Bush Administration

Former pardon attorney Margaret Colgate Love sent me this little commentary via e-mail to wrap up President Bush's decision to wrap up the exercise of his clemency power with two final commutations to Border Patrol agents Ignacio Ramos and Jose Alonso Compean:

I think it is significant that the Pardon Attorney apparently never weighed in on the Border Patrol agent cases (and evidently was never asked to weigh in), though the cases have been a clemency "item" for several years.  This, together with the botched Toussie grant and the more than 4000 denials in the past 12 months, confirms for me that the Justice Department pardon program has ceased to serve any useful function.  If these final grants provide the occasion for a top-to-bottom review of the clemency system, Bush will have done us all a favor.

In addition, there are lots and lots of old and new insights worthy of consideration at Pardon Power.

January 19, 2009 in Clemency and Pardons | Permalink | Comments (2) | TrackBack

Are the Border Agents the only federal offenders for whom President Bush feels compassion?

I have soooo many reactions to the commutation of the extreme mandatory sentences of former Border Patrol agents Ignacio Ramos and Jose Alonso Compean (basics here).  As regular readers know, I am generally opposed to long mandatory prison terms imposed pursuant to 924(c), and the long mandatory terms for Ramos and Compean were especially troublesome given that, had they been willing to forego their rights to claim innocence at trial, they would not have likely gotten more than months in prison as part of a plea deal.  Thus, on the merits (and for reasons detailed more fully in lots of prior posts), I am pleased by the news that the Border Agents will be getting out of federal prison soon.

But I am very displeased by the reports coming from the White House that this latest commutation grant by President Bush is to be the final act of clemency during his administration.  This Newsweek piecereports that specifically that "White House press spokesman Tony Fratto told Newsweek 'you should not expect any more' pardons and commutations from Bush before he leaves office Tuesday.  Another senior official, who requested anonymity discussing sensitive matters, confirmed that no more pardons would be granted."

So, a President who claimed to be a compassionate conservative, could only find two defendants to whom to show compassion on his way out the door and managed to commute the sentence of only 11 federal offenders (including his pal Scooter Libby) over his eight years in office.  This despite the fact that there are now well over than 200,000 individuals in federal prison facilities, thousands of whom have been subject to extreme mandatory sentences on par or even more severe than those given to the Border Agents.

In short, this final act of clemency by President Bush will leave me with the annoying feeling that, even when he did something praiseworthy, he often did far too little of a good thing.

Some prior posts about the Border Agents case:

Some recent (and not-so-recent) related clemency posts:

January 19, 2009 in Clemency and Pardons | Permalink | Comments (1) | TrackBack

President Bush commutes sentences of Border Agents

CNN has the news here, and I hope to have time for comments later today.

UPDATE: Here is more press coverage from the New York Times and the AP and Bloomberg.

I found this (official?) announcement issued through a press release by the Department of Justice. No official word appears yet on the White House website.

MORE: Additional major press coverage on the commutation is collected here at How Appealing.

January 19, 2009 in Clemency and Pardons | Permalink | Comments (35) | TrackBack

Indiana debating prison expansion plans proposed by Governor

Another interesting story in prison economy nation is reported in this AP article from Indiana, headlined "Daniels' proposed prison expansions draw doubts."  Here are a few details:

Faced with tight budgets and prison overcrowding, states across the nation are considering whether to release prisoners early.  But in Indiana, the Daniels administration is looking to add space to existing prisons to help keep the growing number of inmates behind bars.

The lean budget proposed by Republican Gov. Mitch Daniels includes just two new building projects over the next two years -- expansions of the Miami Correctional Facility near Peru and the Wabash Valley Correctional Facility near Sullivan.  Each would be expanded by 600 beds, and the state would make $3 million in bond payments to cover the $40 million in construction.

Daniels says public safety must be one of government's top priorities. "We are not going to turn felons out of prison early where they can prey on the public," Daniels said. "That's happening in other states, and we're not going to let it happen here."

Democrats who control the House have questioned whether the prison expansions are really necessary, especially since the proposed budget doesn't contain any new money for K-12 education and would make cuts in many state agencies and higher education.  Some say the state should be investing in education and alternative sentencing programs that could help people avoid prison in the first place. "It's the wrong emphasis," said Rep. Vernon Smith, D-Gary.  "We need to rethink what we're doing in this state."...

Indiana's prisons are currently at about 99 percent of capacity, according to department officials. The state's prison population of about 27,000 grows by about 4 percent a year, or about 1,000 inmates.  At lower-security prisons, some inmates are already sleeping in triple-stacked bunk beds to save space.... By 2010, the state will be about 2,000 beds short in prisons with higher security levels...

Indiana's growing prison population stems from several factors, [Department of Correction Commissioner Edwin] Buss said, such as crime rates and mandatory sentencing laws.  The increasing number of prisoners hasn't stopped lawmakers from considering proposals that would keep people behind bars even longer. In past legislative sessions, Republicans have proposed requiring inmates to serve 85 percent of their sentences, rather than potentially earning a day off for each day of good behavior.  Democrats questioned what the cost would be and how much more prison space would be needed, and the proposals didn't pass. "We continue to want to get tough on crime," said Rep. Dennis Avery, D-Evansville. "It costs money."

Daniels points out that Indiana is better financial shape than many other states, and has not had to turn to drastic measures such as releasing prisoners early.  Other states are considering early release or are already implementing such programs.

California Gov. Arnold Schwarzenegger wants to eliminate parole for some offenders, divert more petty criminals to county jails and grant early release to more inmates. In Kentucky, even some murderers and other violent offenders are benefiting from a temporary cost-saving program that has granted early release to nearly 2,000 inmates. Virginia and New York are also considering early release programs for thousands of inmates.

January 19, 2009 in Scope of Imprisonment | Permalink | Comments (20) | TrackBack

January 18, 2009

"Katyal Tapped as Principal Deputy in SG's Office"

The BLT Blog has this report on the significant news concerning who will be second banana in the Office of the Solicitor General.  Here are the details:

Legal Times has confirmed that Georgetown law professor Neal Katyal, who successfully argued the landmark detainee rights case Hamdan v. Rumsfeld before the Supreme Court, will serve as principal deputy solicitor general, the office’s No. 2 spot, starting Tuesday.

Katyal's appointment is another strong signal of President-elect Barack Obama's intentions to depart sharply from the terrorist detention and interrogation policies of the Bush administration....

The pick also means the Justice Department's Office of the Solicitor General could be led by two lawyers who have argued a combined two cases before the Supreme Court. Earlier this month, Obama announced the nomination of Elena Kagan, the dean of Harvard law School, to be solicitor general. Kagan, who has never argued before the high court, has received broad support in the legal community. A date for Kagan's confirmation hearings has not been set....

The principal deputy is also known as the the "political deputy," though, as Legal Times pointed out in this 2005 story, the exact nature of the job is a matter of dispute.  Some principal deputies have been pegged for White House moles, while others have defended the office's positions when they were at odds with the administration's.

So, if it is now clear that the new Administration through the SG's office  is going to depart sharply from the Bush Administration terrorism policies, can or should I be hopeful that they might also depart sharply from the Bush Administration on other criminal justice policies with constitutional dimensions?  Might there be a real chance that the SG's views on acquitted conduct enhancements or the application of Booker or mandatory minimums might change in the months and years ahead?  One can only hope, though one also should fear the impact of status quo biases even as a new set of lawyers take over the reins of power.

UPDATE:  Over here at LSI, I suggest that this appointment of another prominent academic in a key SG position provides yet another indication that the disjunction between the legal academy and the practicing bar is likely to shrink in the new Obama Administration.  (Regular readers may recall that, in the wake of his work in Hamdan, Neal wrote a terrifically interesting Harvard Law Review comment encouraging the legal academy to go practice.)

Some recent related posts:

January 18, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (6) | TrackBack

Lots of clemency news and notes

The coming week ought to be an exciting one for clemency fans, as I think we can and should expect President Bush to do one last batch of clemencies on his way out of office.  I heard a rumor that some clemencies will be announced as early as Monday (perhaps to give the President a final day to take back any mistakes).  I have not heard any rumors about who might be on the final clemency list, but the Pardon power has this great list of cases to watch.

For anyone eager to get up to speed on clemency law, the Congressional Research Service, has produced this effective new CRS Report titled, "An Overview of the Presidential Pardoning Power."  The document is only six pages, but provides just about everything one needs to know about federal clemency legal issues. 

For some anticipatory excitement about possible players, clemency/sports fans should check out this piece at ESPN, headlined "Will Bush throw a pardon to Clemens?".  Also, highlighting why these issues should stay hot even after Tuesday, Jason Flom at the Huffington Post has this effective new commentary titled "New Year, New Administration, More Clemency."

Some recent (and not-so-recent) related posts:

UPDATE:  Over at Politco, Josh Gerstein has this new piece headlined "10 Bush pardons to watch for."

January 18, 2009 in Clemency and Pardons | Permalink | Comments (0) | TrackBack

Should the value of property stolen drive sentencing outcomes?

A new piece I noticed on SSRN indirectly speaks to an issue that arises in the toughest fraud and white-collar cases.  The piece, available here, is titled "Community Perceptions of Theft Seriousness: A Challenge to Model Penal Code and English Theft Act Consolidation." Here is the abstract:

In the middle of the 20th century, criminal law reformers helped pass laws that consolidated previously distinct common law offenses such as larceny, embezzlement, false pretenses, extortion, blackmail, and receiving stolen property into a unified offense of theft, imposing uniform punishments for a diversity of methods of stealing and a diversity of types of property that could be stolen.  The result was a "consolidated" scheme of theft, with a single broad definition of property (typically, "anything of value") and a single scheme of grading (based, roughly, on the value of the thing stolen).

In this study, participants were given two sets of scenarios — one involving variations in the means by which a theft was committed, the other involving variations in the type of property stolen — and asked to rate these thefts in terms of blameworthiness and punishment deserved.  They drew sharp distinctions across both means of theft and type of property, not adopting a consolidated view.  Under the principle of fair labeling — the idea that criminal law offenses should be divided and labeled so as to represent widely felt views about the nature and magnitude of law breaking — such data provide the basis for a significant challenge to modern theft law.

January 18, 2009 in Offense Characteristics | Permalink | Comments (1) | TrackBack

Another local account of crack sentence reductions

This local story from Alabama provide a southern perspective on the impact and implementation of the new federal crack sentencing guidelines.  Here are the details:

Alabama federal inmates who have petitioned the courts to reduce their prison sentences on crack cocaine offenses were successful two-thirds of the time, shaving an average 2½ years off their terms. That's the highest success rate of the three states making up the 11th U.S. Circuit, according to an analysis of statistics in a recent report by the U.S. Sentencing Commission....

By the thousands, inmates are petitioning federal courts for reduced sentences. According to the sentencing commission's report, 17,168 applications have been filed nationwide, and 12,119 - 70 percent - had been granted through Dec. 8, the latest statistics available. Inmates nationwide also are getting an average reduction of 2½ years.

According to the sentencing commission's report, 402 of the 602 applications filed in Alabama federal courts, 66 percent, have been approved. Georgia was next with 65 percent of its applications granted. Florida, which had the most applications filed with 1,895, granted 55 percent, the analysis by The Birmingham News showed.

"A majority of who were eligible for relief, got it," said Cynthia McGough, chief federal probation officer in Birmingham. "Only a few were turned down on merit where a judge reviewed the facts of the case and thought the person should not get relief. Some were released from prison because, after the reduction, they got credit for time served."...

January 18, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack