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January 21, 2009

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