« January 11, 2009 - January 17, 2009 | Main | January 25, 2009 - January 31, 2009 »

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