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October 24, 2009

An appellate lawyer that every federal defendant should want for a sentencing appeal

This new piece by Tony Mauro in the National Law Journal, which is headlined "To Build Practice, Ex-Bush SG Embraces Liberal Clients," makes me hopeful that an old law school friend of mine might soon be representing some federal sentencing defendants.  Here are snippets from the piece:

Until this summer, Paul Clement had never been hugged by a client.  He'd been in George W. Bush's solicitor general's office for eight years, building a reputation as one of the most skilled appellate advocates of his generation as he argued the trickiest of cases before the U.S. Supreme Court and appellate courts.  But, he acknowledged wryly, "In government, your client tends to be abstract -- the United States of America.  Or, slightly less abstract -- the Securities and Exchange Commission."

Clement left as solicitor general in June 2008, before the presidential election that would have put him out of a job.  He returned to King & Spalding in November to build a Washington appellate practice in a souring economy, and before a Supreme Court that was still accepting only 75 cases per term.

So in one case he argued on Oct. 14, and another set for Nov. 4, Clement has taken on tough-to-win cases that are far from standard fare for a former law clerk to Justice Antonin Scalia and a Bush-era legal icon: In the first, he argued for enhanced fees for plaintiffs lawyers in a civil rights case, and, in the second, he represents a pair of men who were wrongly convicted in the murder of a retired Iowa police officer.  Which explains the hug....

Clement's former deputy, Thomas Hungar, who now works with Olson at Gibson, Dunn & Crutcher, cut Clement slack.  "The practice mix tends to change when you leave the government," said Hungar, who said Clement's latest cases appeared to be "quite a switch."

Still, some can't resist the irony of Clement's new clientele.  "Paul's invitation to join NACDL is in the mail," joked Jeffrey Green of Sidley Austin, who often works with the National Association of Criminal Defense Lawyers and argued against Clement's SG office in criminal cases.  "We all have tremendous faith in Paul's intellect and prodigious argument skills as a new member of the dark side."  More seriously, Green said that Clement's role in the Iowa case is another sign that "pro bono cases that no one wanted to touch a few years ago are now being fought over."

Clement argued Booker on behalf of the federal government and certainly helped convince the Court to adopt advisory guidelines in the Booker remedy opinion.  Here's hoping that Clement might find a couple federal defendants still trying to get the full benefit of the Booker ruling worth representing on appeal.  I suspect the NACDL would be happy to recommend some hot prospects for SCOTUS review even if he does not become a card-carrying member of the orgainzation.

October 24, 2009 in Who Sentences? | Permalink | Comments (1) | TrackBack

"Arizona May Put State Prisons in Private Hands"

The title of this post is the headline of this interesting New York Times article.  Here is how it starts:

One of the newest residents on Arizona’s death row, a convicted serial killer named Dale Hausner, poked his head up from his television to look at several visitors strolling by, each of whom wore face masks and vests to protect against the sharp homemade objects that often are propelled from the cells of the condemned.

It is a dangerous place to patrol, and Arizona spends $4.7 million each year to house inmates like Mr. Hausner in a super-maximum-security prison.  But in a first in the criminal justice world, the state’s death row inmates could become the responsibility of a private company.

State officials will soon seek bids from private companies for 9 of the state’s 10 prison complexes that house roughly 40,000 inmates, including the 127 here on death row.  It is the first effort by a state to put its entire prison system under private control.

The privatization effort, both in its breadth and its financial goals, demonstrates what states around the country — broke, desperate and often overburdened with prisoners and their associated costs — are willing to do to balance the books.  Arizona officials hope the effort will put a $100 million dent in the state’s roughly $2 billion budget shortfall.

“Let’s not kid ourselves,” said State Representative Andy Biggs, a Republican who supports private prisons.  “If we were not in this economic environment, I don’t think we’d be talking about this with the same sense of urgency.”

Private prison companies generally build facilities for a state, then charge them per prisoner to run them.  But under the Arizona legislation, a vendor would pay $100 million up front to operate one or more prison complexes.  Assuming the company could operate the prisons more cheaply or efficiently than the state, any savings would be equally divided between the state and the private firm.

The privatization move has raised questions — including among some people who work for private prison companies — about the private sector’s ability to handle the state’s most hardened criminals.  While executions would still be performed by the state, officials said, the Department of Corrections would relinquish all other day-to-day operations to the private operator and pay a per-diem fee for each prisoner.

I wonder if years from now we will be debating whether there needs to be a public option for prison care.

October 24, 2009 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Mental illness cited by lawyers as reason to grant clemency to DC sniper

This Washington Post article, which is headlined "Sniper's lawyers ask for clemency, saying he's mentally ill," reports on the efforts by lawyers to prevent the execution of a high-profile capital defendant in Virginia.  Here are the basics:

Attorneys for convicted sniper John Allen Muhammad said their client is mentally ill and they have asked Virginia Gov. Timothy M. Kaine (D) to spare his life.  Thirteen people were shot, 10 fatally, when Muhammad and accomplice, Lee Boyd Malvo, went on a random shooting rampage around the Washington region in 2002.

Muhammad's lawyers said in a statement they asked Kaine on Thursday to commute Muhammad's sentence to life in prison.  They said Muhammad's illness is "illustrated by brain damage, brain dysfunction, neurological deficits as well as his psychotic and delusional behavior."

The defense team said Muhammad's mental illness was exacerbated by his military service in the first Iraq war.  They presented Kaine with audio interviews of attorneys, mental health experts and a witness.

Muhammad, now 48, is scheduled to be executed Nov. 10.  His lawyers said they plan to file an appeal to the U.S. Supreme Court on Nov. 3.  The U.S. Supreme Court has banned executing the mentally ill.

I would be truly shocked if Muhammad was granted clemency, unless perhaps every member of every victim's family supported clemency.  And that itself would be shocking.

October 24, 2009 in Clemency and Pardons, Death Penalty Reforms | Permalink | Comments (4) | TrackBack

October 23, 2009

"Roman Polanski faces 2 years in prison if returned to L.A., Swiss officials say"

The title of this post is the headline of this new item from the Los Angeles Times.  Here are the details:

Swiss authorities said that director Roman Polanski could spend up to two years in prison if he was extradited back to the United States for sentencing in a sexual assault case. Officials said in a statement earlier this morning that U.S. officials formally asked Swiss officials to extradite the famed director, 76, to Los Angeles, where he sexually assaulted a 13-year-old girl more than 30 years ago. Polanski fled to Europe just before sentencing for that crime.

Los Angeles County prosecutors have refused to say what kind of sentence they would seek for Polanski if he returns to Los Angeles, and they could not immediately be reached for comment today.

Last month, prosecutors said the proceedings should pick up exactly where they left off in 1978 -- with a judge sentencing Polanski for a statutory rape charge. "He will appear before the court and the court will decide what his sentence is," said Sandi Gibbons, a spokeswoman for the district attorney's office, told The Times in late September, after Polanski was arrested in Zurich.

Legal experts, however, said Polanski has options beyond begging for leniency. There are a number of legal maneuvers, such as withdrawing his guilty plea, that could result in the case being dropped entirely or in a sentence of no prison time.

Recent related post:

October 23, 2009 in Celebrity sentencings | Permalink | Comments (1) | TrackBack

District judge and lawyers not sure what to do in Nacchio case after sentence reversal

This notable local report concerning a high-profile white-collar resentencing proceeding highlights an all too common problem after a circuit court reverses an initial sentence in a complicated case:

A re-sentencing hearing date could not be set for convicted ex-Qwest CEO Joe Nacchio on Friday after the judge and attorneys puzzled over the scope of the appeals court ruling that sent the case back to district court.

The U.S. 10th Circuit Court of Appeals tossed out Nacchio’s six-year sentence on insider trading in July. The ruling left him convicted on 19 felony counts but found that the lower court erred when it calculated the financial scale of Nacchio’s crime....

The 10th Circuit appeals court found that Nottingham incorrectly based his sentence on the total stock sale instead of just Nacchio’s financial gain connected to the information Nacchio did not make public. A smaller financial gain could, under federal sentencing guidelines, mean less prison time and a smaller fine for Nacchio.

U.S. District Court Judge Marcia Krieger, the prosecution and defense had different ideas Friday about how broadly Nacchio’s sentence could be reconsidered.

Federal prosecutors and Nacchio’s defense lawyers will have until Nov. 2 to reach agreement or file arguments on whether all factors in the case should be considered in resentencing Nacchio, or whether the 10th Circuit’s decision left Krieger a narrower set of factors to consider.

Krieger scheduled court dates out to Jan. 2, 2010, but didn’t set a sentencing hearing. Krieger said she can’t set a sentencing date without knowing whether hearings over evidence or witness testimony will be necessary.

October 23, 2009 in White-collar sentencing | Permalink | Comments (3) | TrackBack

"Medical Marijuana Muddle"

The title of this piece is the headline of this new commentaryfrom Jacob Sullum at Reason.  The piece is subtitled "The Obama administration’s new policy may not make much difference in practice," and here are snippets that explain Sullum's concerns:

This week's memo, which White House spokesman Robert Gibbs says merely describes what "has been administration policy since the beginning of this administration in January," helps explain these apparent inconsistencies.  It tells federal prosecutors in the 14 states that recognize cannabis as a medicine they "should not focus federal resources…on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana."

In California especially, that phrasing leaves a lot of wiggle room for federal meddling.  Last fall the California Supreme Court rejected the idea that medical marijuana suppliers are legal as long as their customers designate them as "primary caregivers."  Patients who are not up to growing marijuana on their own can still organize as "collectives" or "cooperatives," but local officials disagree with state officials and each other about what that means.  Los Angeles County District Attorney Steve Cooley, for example, maintains that state law does not permit over-the-counter sales, which would make virtually all of the 800 or so medical marijuana dispensaries in L.A. illegal.

Cooley’s position may be welcomed by the DEA and by like-minded officials in jurisdictions such as San Diego, but it conflicts with the views of more cannabis-tolerant officials in places such as Oakland and San Francisco.  It also contradicts guidelines issued last year by California Attorney General Jerry Brown, who says patient collectives may charge for marijuana, as long as they do not take in more revenue than is necessary to cover their overhead and operating expenses.  Until the law is clarified by the courts or the legislature, the federal government will have plenty of opportunities to continue interfering with the distribution of medical marijuana.

Some recent related posts:

October 23, 2009 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

A complete set of links to Smart Sentencing from the Missouri Sentencing Advisory Commission

I received this afternoon this helpful e-mail with links to some documents that should be useful for all sentencing fans:

The Missouri Sentencing Advisory Commission presents the latest in statistics, information, research findings and evidenced-based practice to help make informed decisions about how to punish criminal behavior.  The Commission launched Smart Sentencing, a periodic bulletin to keep judges, prosecutors, defense attorneys, probation officers and others concerned about sentencing issues current as to the latest information related to sentencing practices and their impacts...

The information in these bulletins is important and, we hope, useful.  We are grateful to the research staffs of the Department of Corrections and David Oldfield, its director of research, and the Office of State Courts Administrator and Anne Janku, its research director, for compiling the statistics and writing these bulletins, and to Beth Riggert, communications counsel of the Supreme Court, for editing assistance.  Here are the bulletins issued thus far:

October 23, 2009 in Recommended reading, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

New hate crimes bill requires US Sentencing Commission to complete mandatory minimum study

As detailed in this New York Times article, the "Senate voted Thursday to extend new federal protections to people who are victims of violent crime because of their sex or sexual orientation, bringing the measure close to reality after years of fierce debate."  Though this federal criminal justice development is probably of much more symbolic than practical importance, the hate crime bill includes a provision that requires the US Sentencing Commission to produce a new study on the impact of mandatory minimum sentences.

This statement from Senator Patrick Leahy provides some helpful background on the bill.  Here is how the statement starts and how it explains the mandatory minimum part of the story:

After more than a decade, Congress is finally set to pass the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 as an amendment to the National Defense Authorization Act, and I expect the President to sign it promptly. I am proud that Congress has come together to show that violence against members of any group because of who they are will not be tolerated in this country....

This legislation was carefully crafted to respect constitutional limits and differences of opinion. It will combat acts of violence motivated by hatred and bigotry, but it does not target speech, however offensive or disagreeable, and it does not target religious expression.

I wish there had been more Republican support for this important civil rights amendment. Nonetheless, in the Senate we worked to address bipartisan concerns and issues. We incorporated Republican amendments mandating guidelines for hate crimes prosecutions, further changing First Amendment protections, and creating a new criminal offense for attacks against service members because of their service.

I am disappointed that the service members provision contains a mandatory minimum sentence because I believe that mandatory minimum sentences can have unintended and unfortunate effects on sentencing and on our criminal justice system.  However, I was pleased that we were able to limit the provision to one modest mandatory minimum sentence and require the United States Sentencing Commission to study the effect of mandatory minimum sentences.  I am also glad that we were able to pass this bill without adding a new Federal death penalty, which would have needlessly inserted a divisive issue into this legislation.

October 23, 2009 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (10) | TrackBack

October 22, 2009

ABAJ coverage of SCOTUS cases on constitutionality of juve LWOP

In the November 2009 issue of ABA Journal magazine includes this article previewing the two juve LWOP cases to be heard by the Supreme Court next month.  The piece is headlined, "Adult Time for Adult Crimes: Is life without parole unconstitutional for juveniles?", and here are excerpts:

In a pair of cases from Florida, Graham v. Florida and Sullivan v. Florida, the court must determine whether Roper’s reasoning — that juvenile defendants are fundamentally different from adult defendants — extends from the death penalty to life without parole.  Arguments are scheduled for Nov. 9.

“Life without parole can be considered as death in prison and the penultimate sanction,” says Florida State University law professor Wayne A. Logan, who has written on juvenile life without parole.  “The court granting cert in two cases signals its concern about ju­venile justice, which is a welcome development.  Life without parole has become a live issue in the wake of the Roper case.”...

Numerous amicus briefs have been filed on behalf of Sullivan and Graham seeking to persuade the court to extinguish LWOP sentences for juveniles.  One of the more compelling comes from a group of former juvenile offenders who later achieved success, including actor Charles S. Dutton and former U.S. Sen. Alan K. Simpson.  Dutton stabbed a person to death in a street fight at age 17, while Simpson committed arson on federal property, punched a cop and — in his own words — “was a monster.”

“We tried to present the views of several individuals who had been involved in criminal offenses when they were juveniles — some of whom may have been eligible for LWOP under particular state laws — and to explain what that kind of severe sentence would have meant for them,” says Washington, D.C.-based attorney David W. DeBruin, who filed the brief.  “The individuals described in our brief had hope because they had the prospect of release. Knowing that they had a chance, they used the time in prison to resolve to do things differently and to obtain skills — and eventually they made outstanding contributions to society.”...

Roper was wrongly decided, but it is manageable if contained on the death penalty side of the firebreak,” says Kent S. Scheidegger, legal director of the Criminal Justice Legal Foundation, the Sacramento, Calif., group that supports crime victims.  But, he adds, Roper “should not be extended at all.  These are sentencing policy decisions to be made by the people of the several states through the democratic process.  Whether one agrees or disagrees with the decision, it is the people’s to make.  Nothing in the Constitution assigns that decision to the federal judiciary.”

But experts agree on the importance of the cases.  “There is a tremendous amount at stake in these cases when you consider that life imprisonment without the possibility of parole is almost equivalent to a death sentence and gives the offender no chance of relief or release or hope,” DeBruin says.

Some recent posts on juve LWOP and the Graham and Sullivan cases:

October 22, 2009 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics | Permalink | Comments (16) | TrackBack

"Were hundreds of criminals given the wrong sentences because lawyers messed up a basic work sheet?"

The title of this post is the sub-heading of this remarkable new Slate piece by Ray Fisman to which a helpful reader pointed me.  Here is the start of today's must-read piece:

In early 2005, Emily Owens was halfway through her Ph.D. thesis in economics at the University of Maryland.  Her topic: the deterrence effect of long prison sentences.  She had just received data from the Maryland State Commission on Criminal Sentencing Policy on tens of thousands of cases that had appeared in the state's courts over the previous years, cases she hoped would help her close out her dissertation.  But as she started working through the numbers, she came across thousands of inconsistencies and errors in the sentencing recommendations provided to judges by the commission.  The errors ultimately translated into extra months and years of prison time for unlucky convicts and light sentences for lucky ones.  What might have been a run of the mill economic analysis of crime and punishment turned into a shocking account of human error.

The particulars of this story are best understood by reading the full Slate piece.  But this concluding paragraph to the piece will likely resonate for lots of folks outside of the Old Line State:

One lesson from the case of Maryland's work sheet errors is that multiple levels of evaluation helped to undo some of the damage (though you might not see it that way if you spent an extra couple of months in the slammer because your attorney can't do arithmetic).  It's a crucial insight given that states around the country have limited or abolished the discretion of parole boards as a result of Truth in Sentencing laws.  More generally, crime and punishment in America remains rife with prejudice and inconsistencies.  The poor and uneducated are convicted at rates disproportionate to their crimes; jurists and judges alike are biased and sometimes outright irrational.  Keeping some checks and balances in place — like the moderating effects of parole boards — might help to keep the justice system a little more just.

October 22, 2009 in State Sentencing Guidelines, Who Sentences? | Permalink | Comments (14) | TrackBack

Rapper Lil Wayne cops a plea to New York gun possession charge

As detailed in this AP article, which is headlined "Lil Wayne pleads to attempted gun possession," New York's tough (and arguably unconstitutional) gun possession prohibition has brought down another celebrity.  Here are the basics:

The Grammy-winning rapper Lil Wayne pleaded guilty to attempted weapon possession on Thursday, and expects to receive a one-year jail sentence.  He previously had pleaded not guilty to illegal gun possession charges that carried at least 3 1/2 years in prison upon conviction.

Lil Wayne remains free on bail while awaiting his February sentencing. The somber-looking rapper did not speak as he left court.  Police said a gun was found on his tour bus in Manhattan in 2007....

Police pulled over Lil Wayne's tour bus in Columbus Circle on July 22, 2007. They said they had seen and smelled marijuana smoke wafting out the door before the bus left a concert venue minutes earlier.  Police said that as an officer approached, the rapper tossed away a Louis Vuitton bag containing a gun.

With so much legal uncertainty in the wake of the Supreme Court's Heller decision, I remain puzzled why prominent defendants like Plaxico Burress and Lil Wayne are apparently not even trying to press Second Amendment defenses before copping pleas that include significant jail time.  Though these defendants might not ultimately prevail on such claims, I do not fully see the down side of raising constitutional concerns in the hope of perhaps securing a more favorable plea deal.

Some related posts on the celebrity gun possession cases:

October 22, 2009 in Celebrity sentencings, Second Amendment issues | Permalink | Comments (3) | TrackBack

New York Times editorial calls for ignition locks for all drunk drivers

This morning's New York Times has this new editorial headlined "Progress on Drunken Driving."  Here are excerpts:

An enlightened measure signed this month by California’s Republican governor, Arnold Schwarzenegger, will require those convicted of drunken driving — including first-time offenders — to install special devices that prevent cars from operating if the driver is drunk.  The large pilot program, which covers the 14 million people living in Los Angeles, Sacramento and two other counties, adds important momentum to the national campaign by Mothers Against Drunk Driving to expand the use of the life-saving technology.

Mandating the ignition-interlock devices for all drunken-driving offenders is smart safety policy. Once installed, the vehicle will not start until the driver first blows into the device and registers an alcohol level below the legal limit. Offenders who commute to work by car can keep their jobs, but they cannot drink and drive....

There are 11 states that require both first offenders and repeaters to use ignition-interlock devices for an assigned period. Most programs were enacted in the past two years, and the data are still building. But for California, where recidivists make up more than a quarter of annual drunken-driving arrests, the dramatic results logged in New Mexico are encouraging.  Between 2004 and 2008, New Mexico experienced a 65 percent drop in drunken-driving recidivism.  Drunken-driving fatalities in the state dropped 35 percent.

California’s large-scale embrace of interlocks should help embolden lawmakers in states like New York, where similar proposals face predictable, shortsighted opposition from the alcohol industry. Congress should also take action by conditioning federal highway money on requiring ignition interlocks for all convicted drunken-driving offenders.

Like the NY Times, I am a big fan of this technocorrections approach to tackling the pernicious problems of drunk driving.  I hope that there will be continued positive results in jurisdictions like New Mexico that have been at the forefront of this form of technocorrections.

Some related posts on sentencing drunk drivers:

October 22, 2009 in Offense Characteristics, Technocorrections | Permalink | Comments (1) | TrackBack

Judge Sesssions confirmed as new Chair of US Sentencing Commission

I am pleased to be able to report this Senate confirmation news: "Senators have unanimously confirmed ... William Sessions to be Chair of the United States Sentencing Commission."  More details are available in this release from the USSC.

Because Judge Session was already a Vice-Chair of the USSC, this development is neither surprising nor likely to radically change the ways in which the USSC does business.  Nevertheless, it is still notable and important than an Obama appointee is now officially in charge of Sentencing Commission.

October 22, 2009 in Who Sentences? | Permalink | Comments (0) | TrackBack

"Court rejects governor's plan to solve prison overcrowding"

The title of this post is the headline of this report from the San Jose Mercury News.  Here are the basics on the latest twist and turn in the on-going saga of California prison reform:

A federal court Wednesday rejected Gov. Arnold Schwarzenegger's plan to solve California's prison overcrowding crisis, giving the state three weeks to devise an alternative or risk an order that seizes control of how more than 40,000 inmates are released from the prison system over the next two years.

In a seven-page ruling, a three-judge panel found the governor's plan for reducing prison overcrowding inadequate. The judges said it failed to comply with their August order requiring the state to come up with a proposal to remove about one-quarter of the more than 150,000 inmates now crammed into California's prisons.

Schwarzenegger and chief prison officials in September responded to the August order with a plan that would reduce the inmate population by only about 20,000 inmates over the next three years, less than half of what was sought by the judges. State officials maintain their plan balanced the need to reduce prison overcrowding with public safety concerns.

But 9th Circuit U.S. Court of Appeals Judge Stephen Reinhardt, San Francisco U.S. District Judge Thelton Henderson and Sacramento U.S. District Judge Lawrence Karlton found otherwise, and ordered the state to come back with a fresh plan in 21 days. Otherwise, the judges said they would consider alternative plans from lawyers for California's inmates and issue an order that will meet their goal of getting the inmate population down to 137 percent of the prison system's capacity.

Thanks to this post at How Appealing, one can find lots of other major media coverage of this development, as well as  this link to yesterday's order of the three-judge U.S. District Court for the Eastern and Northern Districts of California.

October 22, 2009 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

October 21, 2009

Fifth Circuit (properly) dodges whether federal prohibition on gun sale to a 19-year-old is constitutional

Thanks to this post at The Volokh Conspiracy, I see that the Fifth Circuit yesterday issued a brief ruling in US v. Bledsoe, 08-51217 (5th Cir. Oct. 20, 2009) (available here), in which a 19-year-old defendant had pled guilty to paying a third-party to purchase a gun for her from a licensed dealer because she was prohibited by federal law from buying a gun until age 21.  Here is the notable part of the opinion for Second Amendment fans:

Bledsoe, who was nineteen at the time of the purchase, argues that the proscription in § 922(b)(1) on the sale of handguns by federally-licensed dealers to people under twenty-one violates her Second Amendment individual right to keep and bear arms, as recently recognized in District of Columbia v. Heller, 128 S. Ct. 2783, 2822 (2008).  Bledsoe further argues that the overall age scheme in § 922 violates the equal protection component of the Due Process Clause of the Fifth Amendment.

We do not need to reach the substance of Bledsoe's arguments.  Bledsoe is not being charged with violating § 922(b)(1), but of conspiring to make a false material statement in the purchase of a firearm, which she admitted doing.  The Supreme Court has stated that "a claim of unconstitutionality will not be heard to excuse a voluntary, deliberate and calculated course of fraud and deceit.  One who elects such a course as a means of self-help may not escape the consequences by urging that [her] conduct be excused because the statute which [s]he sought to evade is unconstitutional."  Dennis v. United States, 384 U.S. 855, 867 (1966).

The Fifth Circuit ruling on the merits seems spot-on, but it also suggests that it is only a matter of time before a sympathetic 20-year-old (perhaps one who serves as a member of our military reserves) with a helpful lawyer makes a direct attack (perhaps in civil suit seeking a declaratory judgment) on the overall age scheme in § 922.  Indeed, I am a bit surprised that I've not seen this issue litigated before, though perhaps there are lower court cases that just have not yet produced a ruling.

Of course, the really hard broader question after Heller is what is the age at which the government can completely prohibit gun possession.  Though many cases hold in various settings that juveniles get reduced rights relative to adults, I do not think there are too doctrines which make an important constitutional right completely unavailable to teenagers.  At some point, the Supreme Court is surely going to have to address this issue (though probably not until most persons who were teenagers at the time of Heller are well into adulthood).

October 21, 2009 in Second Amendment issues | Permalink | Comments (3) | TrackBack

A potent pitch for decriminalizing marijuana

Ethan Nadelmann, the executive director of the Drug Policy Alliance, has this new Politico commentary titled "Now, let’s decriminalize marijuana."  The piece praises the new US Justice Department guidelines that discourage federal prosecution of persons complying with state medical marijuana laws (basics here), and the piece concludes with these notable insights, predictions and pitches:

A new Gallup Poll out Monday found that the proportion of Americans who favor making marijuana legal is now 44 percent — almost double what it was in the mid-1980s.  Among Democrats, support for legalizing marijuana jumped from 41 percent in 2005 to 54 percent now.  Obama’s drug czar, Gil Kerlikowske, thinks he’s protecting the president by repeatedly insisting that “marijuana legalization is not part of my vocabulary or the administration’s,” but it’s going to be increasingly difficult for him to maintain that posture if support for making marijuana legal continues to increase.

I don’t expect Obama to provide any sort of bold leadership on the marijuana issue, mostly because presidents rarely provide any sort of leadership on hot-button issues involving cultural conflict, personal behavior and morality.  Both the new guidelines, and the drug czar’s stated desire to avoid the marijuana issue as much as possible, suggest that the Obama administration prefers to let this issue play out at the state and local level, with little in the way of federal support or interference.

Neither the administration nor Congress is ready for a serious debate on medical marijuana, much less on ending marijuana prohibition, at this time.  The only members of Congress who have been willing to introduce marijuana decriminalization legislation are Rep. Barney Frank (D-Mass.) and libertarian Rep. Ron Paul (R-Texas).  Both know that many of their colleagues agree in principle, but no Republicans and only a handful of Democrats are ready to say so publicly.

It’s only a matter of time before marijuana is taxed, controlled and regulated in the United States. The tragedy is that tens of billions of dollars will continue to be wasted, and millions of people arrested and otherwise harmed by the marijuana laws, until that time . It’s up to us — as responsible citizens who care about freedom, justice and compassion — to ensure that this day comes sooner, not later.

Some recent related posts:

October 21, 2009 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (35) | TrackBack

"Facebook membership could prove costly for sex offender"

The title of this post is the headline of this notable local article from New York.  Here are some of the particulars from the start of the article:

A convicted sex offender is facing up to three years in prison for neglecting to disclose his past while joining the Facebook social networking site.  Angelo Oesch, 25, of Colonie, also faces 10 years post-release supervision for failing to register and violating his probation.

He admitted having two Facebook accounts during a Tuesday appearance before Judge Thomas Breslin in Albany County Court.  Oesch had also joined the eHarmony dating Web site, as well as the AIM instant messaging service for America Online.

Authorities say Oesch was convicted in June of committing a criminal sex act for having sexual contact with a person less than 15 years old.  He is a Level 1 offender, which is considered the lowest risk of the three tiers of offenders. He has been living in a motel on Central Avenue in Colonie, authorities said.

Though this particular defendant does not seem well positioned or interersted in bringing a constitutional challenge to these kinds of charges, I suspect it is only a matter of time before some sex offenders start claiming that broad prohibitions on their on-line activities raises First Amendment issues.

October 21, 2009 in Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Georgia carries out uneventful lethal injection execution

As reported in this local article, headlined "State executes pizza store killer," Georgia officials appeared to have no problem with a lethal injection protocol last night.  Here are the basics:

Condemned inmate Mark McClain was killed by lethal injection at 7:24 p.m. Tuesday in Jackson....

McClain did not issue a final statement.  When asked if he wanted a prayer said for him, he replied, "No, I'm fine."  He lay expressionless and made no eye contact with the attorneys, prison officials and members of the media who witnessed his execution.  As his death drew near McClain's ruddy complexion turned pale. His body lunged forward slightly as the potassium chloride raced through his veins, but otherwise his passing was quiet.  His execution, unlike most, kept to schedule....

McClain was sentenced to death by a Richmond County jury for the 1994 murder of the Domino's Pizza store manager. Brown, 28, was shot once in the chest for the $130 in his till.

McClain was at peace with his fate, said attorney Brian Kammer.  "Mark had become a person of deep religious faith, and he had a sense of equanimity through this whole process,"Kammer said. "He had hoped common sense would prevail."  McClain acknowledged shooting Brown, but claimed it was unintentional. Jurors sided with the prosecution, who labeled McClain an experienced criminal who "preferred to kill."...

McClain was the third person executed in Georgia this year and the 45th put to death since 1983, when the state resumed executions after the U.S. Supreme Court ruled them to be constitutional.

Georgia juries convicted 55 people of committing a murder during an armed robbery in 1995, the year McClain was sentenced.  Prosecutors sought the death penalty in 16 of those cases, but McClain was the only one condemned to die.  "It's a crime that would not garner the death penalty these days," Kammer said.

October 21, 2009 in Death Penalty Reforms, Offense Characteristics | Permalink | Comments (10) | TrackBack

Report on start of US Sentencing Commission regional hearing in Denver

The Denver Post has this new article, headlined "U.S. Sentencing Commission hears from judges, prosecutors in Denver," reporting on the start of the USSC's latest regional hearing. Here are some of the details:

A federal judge in Denver told the U.S. Sentencing Commission he is concerned about the treatment of war veterans in the criminal court system and the fairness of sentencing in some child-pornography cases.

The commission solicited testimony Tuesday from federal judges, prosecutors, probation officers and community groups during a public hearing at the Hyatt Regency hotel in downtown Denver. The hearing continues today with testimony from federal public defenders and more district judges....

U.S. Senior District Judge John L. Kane asked the commission for more clarity about why the federal sentencing guidelines are set to certain terms for various offenses. The judge said he has asked lawyers and probation officers why a particular sentence needs to be applied and often hears, "because the guidelines say so."

"It's not a matter of logic or a matter of reason," Kane said. "None of them could answer the following question — 'Why do the guidelines recommend that particular range?' "If, as a sentencing judge, I am to consider the advice of the guidelines and follow it, then the reason for the guidelines must be considered," Kane said. "Sometimes a reasoned argument can change a judge's mind, but otherwise what we have is an ideological food fight."

Colorado U.S. Attorney David Gaouette testified he is concerned judges are inconsistent in following the commission's sentencing guidelines. "Of the six federal judges in our district, three follow the guidelines, one sometimes does and two do not use the guidelines," he said. "One judge has told one of my (prosecutors) that the sentencing guidelines are arbitrary and would not be followed."

October 21, 2009 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

October 20, 2009

Federal sentence for receiving child porn includes forfeiture of home

This local article from Kentucky, which is headlined "Lexington man sentenced to 15 years, forfeits home in child the sentencing of a child porn case. Here are the details:

A Lexington man must spend more than 15 years in prison and forfeit his Chevy Chase home after pleading guilty to child pornography charges, a federal judge ruled Tuesday.

Joseph Robert Leitner, 62, pleaded guilty in June to one charge of receiving child pornography.  He admitted collecting child pornography for years and had computers and CDs that contained more than 30,000 images of child pornography, some involving children as young as 6, according to his plea agreement.  There were approximately 100 CDs and several computers seized during the search of Leitner's residence in June 2008.

Senior Judge Karl S. Forester sentenced Leitner Tuesday to 188 months in prison.  The federal government will also seize Leitner's home at 417 Cochran Road because of the high volume of images and the length of time Leitner used his home to download and view child pornography.

Leitner is the first defendant to forfeit his home because of a child pornography conviction in the Eastern District of Kentucky, according to the U.S. Attorney's Office for the Eastern District of Kentucky. Assistant U.S. Attorney Hydee R. Hawkins, who prosecuted Leitner, said the sentence sends a message to child predators that "we are going to take the very place you used to exploit children."

Leitner said during sentencing that he had not downloaded or watched child pornography since 2000. "They probably were dusty as the devil when you guys found them," Leitner said of the CDs seized from his home. "I hadn't watched them in years."...

A man who said he was molested by Leitner more than 50 years ago also testified during Tuesday's sentencing.  Another man said testified that Leitner molested him for six years, beginning when he was 3.

October 20, 2009 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

"White Collar Innocence: Irrelevant in the High Stakes Risk Game"

The title of this post is the title of an important and timely new piece by Professor Ellen Podgor.  Here is the abstract:

When one thinks of “wrongful convictions and reliability in the criminal justice process” one often thinks of street crime convictions of defendants later proven innocent through DNA or other scientific evidence.  But this Essay presents a new dimension to this issue— the white collar crime context. Three stories are considered here: Arthur Andersen LLP, Jamie Olis, and Jeffrey Skilling — all who proceeded to trial after criminal charges were brought against them; and contrasting these three with KPMG, Gene Foster, and Andrew Fastow, all who secured plea agreements or deferred prosecution agreements with reduced sentences and finite results.  The concern here is that innocence or guilt does not always frame the judicial process in white collar cases. 

The risk of trial becomes so great that in order to minimize the possible consequences, innocence becomes an irrelevancy.  Although the plea bargain to trial differential existed for many years in crimes outside the white collar crime context, the high sentences now being given to individuals and entities charged with white collar crimes place these crimes in comparable stead with street crimes.  This gives pause to whether the next phase of wrongful convictions might move beyond street crimes into the white collar world.

I am eager to hear reactions to her suggestions that "the next phase of wrongful convictions might move beyond street crimes into the white collar world."

October 20, 2009 in Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

"U.S. Support for Legalizing Marijuana Reaches New High"

Pot poll The title of this post is the headline of this new Gallup poll report.  Here are some of the very notable particulars: 

Gallup's October Crime poll finds 44% of Americans in favor of making marijuana legal and 54% opposed. U.S. public support for legalizing marijuana was fixed in the 25% range from the late 1970s to the mid-1990s, but acceptance jumped to 31% in 2000 and has continued to grow throughout this decade.

Public opinion is virtually the same on a question that relates to a public policy debate brewing in California -- whether marijuana should be legalized and taxed as a way of raising revenue for state governments.  Just over 4 in 10 Americans (42%) say they would favor this in their own state; 56% are opposed.  Support is markedly higher among residents of the West -- where an outright majority favor the proposal -- than in the South and Midwest. The views of Eastern residents fall about in the middle.

The new findings come as the U.S. Justice Department has reportedly decided to loosen its enforcement of federal anti-marijuana laws by not pursuing individuals who buy or sell small amounts of the drug in conformity with their own states' medical marijuana laws.  This seems likely to meet with U.S. public approval, as previous Gallup polling has found Americans generally sympathetic to legalizing marijuana for medical purposes. In 2003, 75% of Americans favored allowing doctors to legally prescribe marijuana to patients in order to reduce pain and suffering....

Most of the expansion in support for legalizing marijuana since Gallup last measured this in 2005 is seen among women, younger Americans, Democrats, moderates, and liberals.  By comparison, there has been little change in the views of men, seniors, Republicans, independents, and conservatives. Regionally, support has grown the most in the West and Midwest.

Among the most notable findings in this latest poll is the fact that 50% of persons between ages 18 and 49 are reported as favoring making marijuana legal.  Especially since I suspect that this number jump even higher for all voters under 30, I think it will not be long before politicians who are seriously interested in appealing to young voters will have to start showing serious interest in legalizing (or at least decriminalizing) some non-medical marijuana usage.

Some recent related posts:

October 20, 2009 in Drug Offense Sentencing | Permalink | Comments (25) | TrackBack

Federal sentencing in Mob case becomes life imitating art

Fans of the HBO TV series The Sopranos surely remember the fascinating character of Vito Spatafore, who was a subordinate of mob boss Tony Soprano and a closeted gay.  This New York Daily News article reports on a sentencing in federal court yesterday that has life imitating HBO art:

Mob hit man Robert Mormando stunned a veteran Brooklyn judge Monday when he renounced his membership in La Cosa Nostra and — for good measure — acknowledged he was gay.  "That's the first time I've heard this in court," Federal Judge Jack Weinstein said of the mobster's renunciation of his blood oath. "I've asked many Mafia members and they've always refused," added Weinstein who was appointed to the bench in 1967 by President Lyndon Johnson.

Mormando, 44, a divorced father of two sons, was being sentenced for participating in the shooting of Queens bagel store owner Angelo Mugnolo, who was wounded in the driveway of his Howard Beach home in 2003.  The rubout was ordered by Vincent Gotti, the younger brother of late crime boss John Gotti, who suspected the baker was fooling around with his wife. Mormando became a government informant shortly after the shooting....

Defense lawyer Nancy Ennis told the judge Mormando was given the contract a month after he was inducted into the crime family in 2002.  "He was summoned to perform an act that he found totally unacceptable afterward," Ennis said....

Ennis' biggest bombshell was announcing that Mormando is out of the closet.  "He has been openly gay since he left the mob," Ennis said.  Mormando's partner has refused to enter the witness protection program, but they have relocated and together they "live a peaceful working life," she said.

October 20, 2009 in Celebrity sentencings | Permalink | Comments (3) | TrackBack

Interesting little SCOTUS criminal justice action today

As detailed in posts from SCOTUSblog and Crime & Consequences, the biggest news coming from the Supreme Court today is its decision to take up a Gitmo case in Kiyemba, et al., v. Obama, et al. (08-1234), which concerns "whether judges may require the release of Guantanamo prisoners to live in the U.S. itself, which is a case with "broader implications for all issues surrounding release or transfer of detainees."  But, for day-to-day criminal justice fans, a little summary reversal and one sharp dissent from the denial of cert also are noteworthy.  Here is how Lyle Denniston at SCOTUSblog describes the criminal justice action:

Among other actions Tuesday, two Justices filed a strong dissent as the Court refused to hear a new case seeking to test the authority of police to stop a vehicle when they get an anonymous tip that an individual is driving while drunk, but the tip has not been backed up by the officers’ own observations.  Chief Justice John G. Roberts, Jr., joined by Justice Antonin Scalia, said the Court should have granted review of Virginia v. Harris (08-1385).  “The police should have every legitimate tool at their disposal for getting drunk drivers off the road,” Roberts wrote. The Court should have addressed, he said, whether police could stop a possibly drunk driver based on a tip they have not verified.  If that limitation on police is what the Constitution requires, the dissent argued, “the dangerous consequences of this rule are unavoidable…The effect of the rule below will be to grant drunk drivers ‘one free swerve’ before they can legally be pulled over by police.”  The Court’s order and the dissent can be found here.

The Court issued one summary ruling (found here), requiring the Seventh Circuit Court to allow a federal judge to rule on several challenges to the death sentence of an Indiana man, Joseph Corcoran, convicted of four counts of murder.  The Circuit Court had allowed Indiana to reinstate the death sentence for Corcoran even though no court had yet ruled on challenges other than the one that the Circuit Court explicitly rejected.  This was an error, the Justices said Tuesday in their unsigned opinion in Cocoran v. Levenhagen (08-10945). There were no noted dissents.

October 20, 2009 in Who Sentences? | Permalink | Comments (14) | TrackBack

New DPIC report assails costs (and opportunity costs) of death penalty administration

As detailed in this CNN report and this press release, the Death Penalty Information Center has released a new study on the costs of capital punishment administration.  The new study, which is available at this link, is titled "Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis." Here is the start of the report's executive summary:

“Smart on Crime” is a new report from the Death Penalty Information Center that explores the prospect of saving states hundreds of millions of dollars by ending the death penalty.  The report also serves to release a national poll of police chiefs in which they rank the death penalty at the bottom of their priorities for achieving a safer society.  The death penalty in the U.S. is an enormously expensive and wasteful program with no clear benefits.

All of the studies on the cost of capital punishment conclude it is much more expensive than a system with life sentences as the maximum penalty.  In a time of painful budget cutbacks, states are pouring money into a system that results in a declining number of death sentences and executions that are almost exclusively carried out in just one area of the country.  As many states face further deficits, it is an appropriate time to consider whether maintaining the costly death penalty system is being smart on crime.

The nation’s police chiefs rank the death penalty last in their priorities for effective crime reduction. The officers do not believe the death penalty acts as a deterrent to murder, and they rate it as one of most inefficient uses of taxpayer dollars in fighting crime.  Criminologists concur that the death penalty does not effectively reduce the number of murders.

Some recent related posts on the costs of capital punsihment:

October 20, 2009 in Death Penalty Reforms | Permalink | Comments (13) | TrackBack

US Sentencing Commission regional hearing in Denver starts today

As detailed in this prior post, the US Sentencing Commission has another one of its regional public hearings starting today. This fifth regional public hearing is taking place in Denver, Colorado, in Mineral Hall at the Hyatt Regency Denver.

As detailed in this official agenda, another fascinating group of invited witnesses are scheduled to testify regarding federal sentencing policy in this regional hearing.  Much of the written testimony is now linked through the agenda page, and it all looks like worthwhile reading. 

I have found the testimony of federal prosecutors especially interesting from these regional hearings.  Notably, the submitted written testimony from David M. Gaouette, the United States Attorney for the District of Colorado, and of B. Todd Jones, the United States Attorney from the District of Minnesota, both stress the post-Booker sentencing challenges in child porn downloading cases.

October 20, 2009 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

New stay means Ohio executions almost certain not to resume until at least 2010

This new New York Times article, which is headlined "Judge Delays Another Ohio Execution," highlights that my prediction that Ohio will not even close to executing anyone soon is looking pretty solid.  Here are the basics:

A federal judge has indefinitely delayed an execution scheduled for Dec. 8, the fourth execution to be postponed in Ohio since technicians failed for two hours last month to administer lethal drugs to a man convicted of murder and rape.

The execution of Kenneth Biros, 51, convicted of a 1991 murder and attempted rape, was stayed on Monday to allow the state attorney general and defense lawyers to gather more information about Ohio’s lethal injection protocol. The protocol has come under question since the failed execution of Romell Broom on Sept. 15. The judge, Gregory Frost, also indefinitely delayed the second effort to execute Mr. Broom....

Earlier this month, Gov. Ted Strickland postponed the executions of the two men scheduled to die before Mr. Biros, Lawrence R. Reynolds Jr. and Darryl Durr, until spring, to give corrections officials more time to develop backup procedures if another problem occurs in administering lethal drugs by the normal method of inserting intravenous lines into veins in a prisoner’s arms or legs. The state had expected to have new procedures in place in time to execute Mr. Biros on Dec. 8.

Richard Dieter, executive director of the Death Penalty Information Center in Washington, said the repeated postponements and rationale behind them effectively equaled a moratorium on executions in Ohio. “There has been a recognition from the courts and the governor that the issues to be resolved are complex and are going to take time and that no executions should occur until those issues are resolved,” Mr. Dieter said.

A spokeswoman for the governor said a review of execution procedures continued. A spokeswoman for Richard Cordray, the attorney general, said the state was reviewing its legal options.

Some related posts on Ohio lethal injection issues:

October 20, 2009 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

October 19, 2009

Should (and will) SCOTUS discuss standards of review for the Second Amendment when deciding incorporation?

The question in the title of this post is the question that I will be asking the students in my Second Amendment seminar tomorrow.  I think it is a good question without an obvious answer, and one that I suspect is being given some thought by some folks now working on merits or amicus briefs in the McDonald case.  Any astute thoughts, dear readers? 

A few related new and old Second Amendment posts:

October 19, 2009 in Second Amendment issues | Permalink | Comments (3) | TrackBack

Split Seventh Circuit declares that 3553(a) factors cannot be considered in Rule 35(b) reductions

Though the numerical provisions mentioned in the title of this post may only make sense to federal sentencing practitioners, the start of the majority and dissenting opinions in US v. Shelby, No. 08-2729 (7th Cir. Oct. 19, 2009) (available here), spotlights what's at issue in a split panel ruling handed down by the Seventh Circuit today.  Here is how Judge Posner's majority opinion gets started:

Rule 35(b)(2) of the federal criminal rules authorizes the district court, “upon the government’s motion made more than one year after sentencing,” to “reduce a sentence if the defendant’s substantial assistance” falls into specified categories.  The only question we are asked to decide is whether the rule allows the district judge to reduce the sentence on the basis of the factors that he would consider in initial sentencing under the Booker regime — namely the factors listed in 18 U.S.C. § 3553(a).

Here is how Judge Evans's dissent begins:

Judge Kocoras sentenced the then 26-year-old Gregory Shelby to serve 285 months back in 1996. At that time, the judge expressed regrets — the sentence was far too long, he lamented, but his hands were tied by mandatory guidelines that shackled his ability to impose a sentence that was fair and reasonable.  Today, the majority holds that Judge Kocoras overstepped his bounds when he recently reduced the now 40-year-old Shelby’s sentence to a term of 180 months.  Because I would affirm the judge’s well-reasoned decision, I respectfully dissent.

October 19, 2009 in Booker in the Circuits, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

"Attorney General Announces Formal Medical Marijuana Guidelines"

Pot picture The title of this post is the headline of this official press release from the US. Department of Justice.  Here are the highlights (heh, heh, dude, heh, heh, get it.... highlights!):

Attorney General Eric Holder today announced formal guidelines for federal prosecutors in states that have enacted laws authorizing the use of marijuana for medical purposes.  The guidelines make clear that the focus of federal resources should not be on individuals whose actions are in compliance with existing state laws, while underscoring that the Department will continue to prosecute people whose claims of compliance with state and local law conceal operations inconsistent with the terms, conditions, or purposes of those laws.

"It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana, but we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal," Holder said.  "This balanced policy formalizes a sensible approach that the Department has been following since January: effectively focus our resources on serious drug traffickers while taking into account state and local laws."

The guidelines set forth examples of conduct that would show when individuals are not in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking activity of potential federal interest, including unlawful use of firearms, violence, sales to minors, money laundering, amounts of marijuana inconsistent with purported compliance with state or local law, marketing or excessive financial gains similarly inconsistent with state or local law, illegal possession or sale of other controlled substances, and ties to criminal enterprises.

Fourteen states have enacted laws in some form addressing the use of marijuana for medical purposes.  A copy of the guidelines, in a memo from Deputy Attorney General David W. Ogden to United States Attorneys, can be found here.

ABC News has on-line this new story which reflects some of the early press coverage; the piece is headlined "Medical Marijuana Proponents Breathe Easier Under New Guidelines." 

There are, of course, lots of serious and important things to say about these new DOJ guidelines, but to begin let's have some run imagining alternative headlines for the DOJ press release or media coverage of this story.  I'll start with a few silly possibilities:  "Dude, Federalism Is Such A Trip!" or "New Health Care Reform Development for Grateful Dead Fans" or "Massive Breakout of Glaucoma Predicted in 14 States"

October 19, 2009 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Are Apprendi and Blakely Justice Stevens' most favorite opinions?

This morning's USA Today includes this lovely front-page articleby Joan Biskupic about Justice Stevens. The piece, which is headlined "Supreme Court's Stevens keeps cards close to robe; Long-serving justice, 89, a force behind the scenes," is a must-read for all SCOTUS fans.  But sentencing fans might take particular note of this line reporting on what Justice Stevens' said during Biskupic's recent interview:

On opinions he finds noteworthy, he cited cases in which he crafted a narrow majority to enhance the role of juries in criminal sentencing.

Of course, the cases referenced here have to be his own 2000 Apprendi decision and the 2004 Blakely decision (which was authored by Justice Scalia, of course).  

The fact that Justice Stevens would make special mention of Apprendi and Blakely in this recent interview leads me to two questions, one backward looking and one forward looking: (1) if Justice Stevens remains proud of his work in Apprendi andBlakely, just why did he end up providing the key fifth vote to limit the reach of this jurisprudence in last Term's Ice case?, and (2) in light of his apparent affinity for Apprendi and Blakely, might Justice Stevens work extra hard this Term (which likely will be his final Term) to reverse the Harris mandatory minimum exception to Apprendi?

Some related recent posts:

October 19, 2009 in Blakely Commentary and News, Blakely in the Supreme Court, Who Sentences? | Permalink | Comments (13) | TrackBack

"Arson case adds new twist to Texas candidates' death penalty stance"

The title of this post is the headline of this interesting new article from the Dallas Morning News, which spotlights just one of the echoes of the new questions surrounding the guilt of executed Texas defendant Cameron Todd Willingham.  Here is how it starts:

As the debate over whether the state executed an innocent man spills over into the governor's race, Rick Perryand Kay Bailey Hutchison are operating by a longtime rule of Texas politics: Don't mess with the death penalty.

Perry defends the execution of Cameron Todd Willingham and assures conservative voters who will decide the Republican primary that the state's system of capital punishment is sound. Hutchison's task is more complicated. She argued that Perry, by politicizing the investigation, poses a threat to the death penalty by casting a cloud over the system.

Recent related posts:

October 19, 2009 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

UK advocacy group urges motherhood as a sentencing consideration

This new BBC piece, which headlined "Courts 'should consider mothers'," reports on how an advocacy group across the pond is calling for consideration of family values at sentencing:

Magistrates and judges in Wales should take account of whether women are mothers when sentencing them, says a children's charity. Barnado's Cymru said courts "need to look at alternatives to custodial sentences" when dealing with mothers. They should know more about the impact of a sentence on a child, it says.

Laura Tranter said a woman should still face the full range of sentencing "but whether or not she needs to lose ties with her children is another issue". The children's charity said children in Wales who have a parent in prison need better support.

Its report, Every Night You Cry, says that failing to address their needs has a negative impact on their behaviour, claiming that "almost two-thirds of boys with a convicted father go on to offend" if no interventions are made. The charity says there are an estimated 160,000 children in the UK who have a parent in prison, more than twice the number of children in care and six times the number of children on the child protection register.

October 19, 2009 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Sentencing around the world | Permalink | Comments (1) | TrackBack

Should there be an age floor for when a sex offense requires registration?

In the Graham and Sullivan cases, the Supreme Court will be struggling with whether and how to set a constitutional floor on the age at which an offender can be given an LWOP sentence.  This local article, headlined "Group opposes sex-offender registry for youths," spotlights the question of whether there ought also be a floor for when a young sex offender is subject to registration requirements. Here are excerpts from the piece, which also discusses other aspects of state resistance to federal sex offender registration provisions:

Legislation that requires states to publish the names and photos of minors who have been convicted of sex-related offenses in a nationwide public registry is being discouraged by a Washington, D.C.-based group.

Some states already include minors as young as 14 in their own statewide sex-offender registries, but legislation known as the Adam Walsh Child Protection and Safety Act of 2006 is calling for all states to take up the practice for a national registry.  States that don't comply with the act risk a decrease in federal criminal justice funding.  Yet, only one state and one tribe have complied completely since Congress the act became law in 2006.

Local lawyers see a problem with lumping minors with adults in a public sex offender registry. "We're still hoping that part of the act doesn't get passed," said Chris Gardner, chief deputy public defender in San Bernardino County's Human Services Division.

Research does not support the stance that a minor convicted as a sex offender is going to do the same thing as an adult, Gardner said. Studies show the opposite, and the vast majority of kids don't reoffend, he said.  "If a kid's crime is tried in Juvenile Court, where the idea is rehabilitation, it doesn't make sense for there to be any kind of long-standing history or sex registry," Gardner said.

Justice Policy Institute recently reissued a report that details the harm that public registries have on minors, a demographic where criminal justice usually aims for rehabilitation. "It's extremely detrimental to the youth," said Nastassia Walsh, a research associate at JPI.  "It isn't proven to improve community safety at all. It can really harm a kid's chances of having a `normal life."'...

Other states have cited numerous reasons for not complying, including the cost and the need for more equipment, resources and personnel.  A Congressional Budget Office analysis from December 2005 reported the act to cost $1.5billion to enact between 2006 and 2011.

Besides cost, California cited other reasons for not complying with the act: statutory barriers, juvenile privacy issues and constitutional privacy protections, according to an April survey conducted by SEARCH, a national consortium for justice information and statistics.

The National Center for Missing and Exploited Children, which is behind the Adam Walsh Act, estimates there were about 670,000 registered sex offenders in the United States.  But about 100,000 are lost in the system....

Prosecutors say only a limited number of sex-related juvenile crimes in California even qualify for a stay in the Department of Juvenile Justice and publishing in a public registry.

Karen Bell, a deputy district attorney who handles juvenile offenses in San Bernardino County, said she didn't anticipate there would be much support in the state for the labeling of minors through a public registry. "I think the reaction of that of the Legislature of California, and certainly the bench and the bar would be very much against it," Bell said.

October 19, 2009 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

October 18, 2009

Reviewing Texas's recent record on capital clemency

The Houston Chronicle has this new article on capital clemency in Texas, which is headlined "Perry uses clemency sparingly on death row; Governor has never called off an execution on a claim of innocence." Here are some notable snippets:

In nearly nine years as Texas governor, Rick Perry has never spared a life based on a claim of innocence and only once delayed an execution in such a case, according to a Chronicle review of public records, clemency statistics and information from the governor's office.

During that same period, officials in other death penalty states granted clemency for humanitarian reasons at least 200 times — 171 based on questions of innocence in Illinois alone.

Texas has executed 200 convicts under Perry's watch, but he has spared just one condemned man's life in a case in which he was not compelled to do so by the U.S. Supreme Court.  In that case, the inmate Perry saved in 2007 was not a killer but the admitted driver of a getaway car, condemned alongside the triggerman in a joint trial under Texas' tough “law of parties.”...

Clemency — the use of executive power to reduce, forgive or delay a sentence — is considered the last fail-safe in the death penalty review process nationwide.  Yet in Texas, it is almost never granted.  In fact, at least 50 of the past 200 executions were carried out without any clemency board review at all, a Chronicle analysis of state execution and parole board statistics shows.  Other death row inmates' final pleas for mercy were rejected for arriving after the board's deadline....

In Texas, alone among the states that use parole boards for execution cases, the board never meets to review applications from the condemned. Instead, its members vote via fax. Efforts to reform the process have been unsuccessful....

Paddy Burwell, a retired Exxon geophysicist who served on the parole board from 1999-2005, recalled several troubling death row reviews when he said he received subtle pressure from other members to vote against clemency. “I don't think they care whether a person is guilty or not guilty,” Burwell said.

October 18, 2009 in Clemency and Pardons, Death Penalty Reforms | Permalink | Comments (5) | TrackBack

New report on mandatory minimum sentences from Pennsylvania Commission on Sentencing

The Pennsylvania Commission on Sentencing late last week released this important research report, which is titled "A Study on the Use and Impact of Mandatory Minimum Sentences."  The study was undertaken at the direction of the state legislature, and it examined 1) the extent to which mandatory sentences are imposed, 2) the processing of mandatory sentencing cases, and 3) the effectiveness of mandatory sentencing with respect to crime reduction.

This local press article, which is headlined "State commission says drug-free school zone law should be repealed," reports on some of the highlights:

In a 490-page report Friday, the Pennsylvania Commission on Sentencing recommended the repeal of the drug-free zone law that prosecutors invoked against Range. The report also advocated raising the threshold of cocaine needed to trigger enhanced penalties for trafficking -- from 2 to 5 grams -- and allowing more drug cases to go through intermediate punishment or boot-camp programs.

The recommendations, part of an overall study of mandatory minimums in the state, offer a change from the mid-1990s, when many of the beefed-up laws were enacted amid a popular mantra of get-tough-on-crime.

Critics say the laws are clogging prisons, breaking state budgets and failing to address the problems they aim to, prompting legislatures to reconsider the wisdom of warehousing offenders when studies show treatment is cheaper and produces less recidivism.

"This year in the budget process was the first year I've heard some serious discussion of the cost, and 'Let's look at those issues,'" said Mark Bergstrom, executive director of the Pennsylvania Commission on Sentencing, which advises the state on sentencing policy. "It's a rare time when I actually think there can be some progress moving forward with these recommendations."

But that may not prove to be the case, because school zones and other heightened penalties are popular among prosecutors and law enforcement officials.

Northampton County District Attorney John Morganelli is a supporter of the state's mandatory minimums, though he believes that more aren't needed. He said the minimums are a useful plea bargaining tool, because prosecutors can trade them for an admission of guilt. He said the goals of school zones are laudable. "It would be a mistake [to repeal them]," Morganelli said. "It would send a bad message that it's OK to deal drugs in school zones."

U.S. Rep. Charlie Dent, R-Lehigh, wrote Pennsylvania's school zone law in 1997 while serving in the state Legislature. He says it has helped keep drugs away from children. "The real issue is if these people were not in prison and on the streets, what would crime be then?" Dent asked.

The commission's report found school zones are "overbroad" and go beyond the goal of preventing drugs from being dealt to children. It also says the 1,000-feet parameter is problematic in dense urban areas and disproportionately affects minorities.

October 18, 2009 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Effective review of the decline of the criminal jury trial in Virginia and elsewhere

The News Virginian has this interesting and effective article, headlined "Number of juried trials slumps both in Virginia, nationwide," that spotlights a trend that many shrewd criminal justice observers have known for some time. Here are excerpts from the piece:

Jury trials remain a favorite of American film and literature but not of the criminal-justice system, where their use long has been in decline here and across the country. The trend has accelerated in recent decades as tougher sentencing laws leave more defendants unwilling to assert a right found in Magna Carta and the U.S. Constitution and that is recognized by all states.

In the year that ended June 30, 2008, little more than 1 percent of felony convictions in Virginia courts were at the hands of jurors. Nearly 90 percent were the result of guilty pleas and the rest in trials before judges.

Guilty pleas help keep courts running efficiently, but as relatively fewer people perform one of the most serious of civic duties, experts believe public confidence in the criminal-justice system, if not justice itself, might suffer.

Josh Bowers, a professor of law at the University of Virginia, said, “We’re already at what would seem to be almost a bare minimum of jury trials for a criminal-justice system that recognizes a jury trial right.” It did not happen overnight.

Thirty years ago, Albert Alschuler, a law professor at the University of Chicago, complained in Time magazine that “here we have an elaborate jury trial system and only 10 percent of the accused get to use it.” “That’s like solving America’s transportation problems by giving 10 percent Cadillacs and making the rest go barefoot,” he said. Reached by telephone recently, Alschuler said “things are much worse” these days.

“Trials and, especially, sentencing proceedings have become ever more complicated, and legislatures have made many additions to the prosecutors’ ‘tool kit,’” he said. The jury trial rate has been cut in half across the country — even more so in Virginia — since Alschuler’s complaint of 1978....

According to the Virginia Criminal Sentencing Commission, in the year that ended June 30, 2008, juries were responsible for just 1.3 percent of 27,195 felony convictions in Virginia — the lowest percentage yet recorded by the commission. Nationally, of the more than 1 million felony convictions in 2004, 95 percent were resolved by guilty pleas, with the remaining 5 percent in judge or jury trials, according to the U.S. Bureau of Justice Statistics.

Bowers, Alschuler and others believe that tough sentencing laws passed by Congress and the states in the 1980s and 1990s in response to rising crime — and predictions of rising crime — are a factor contributing to the national decline in jury trials....

Virginia is one of only a handful of states where juries sentence in addition to determining guilt. Also, since 1994, juries here have been told about a defendant’s prior criminal record when deciding on a sentence. Unlike judges, juries are not informed of the sentencing guidelines and must sentence within the minimum and maximum terms that remain in the state code.

So in cases where the state law calls for a minimum sentence of five years, five years is the best a defendant can hope to get from a jury.  If the defendant pleads guilty, however, a judge complying with the guideline can suspend four years of the five-year term.  Also, because the judge, defendant and the prosecution must all agree to waive a jury trial, by threatening to demand a jury, prosecutors are in a better position to negotiate, or force guilty pleas.

In the first full fiscal year after the 1995 truth-in-sentencing reforms, jury convictions in Virginia were cut in half — from 4 percent of all felonies to 2 percent. The number has risen and fallen since, to the most recent level of 1.3 percent. And since 1995, jury sentences tend to be far stiffer than those from judges.

In a 2004 study of jury sentencing in Virginia and two other states, two professors at the Vanderbilt University School of Law confidentially surveyed judges, prosecutors and defense attorneys. They found that jury sentencing is supported overwhelmingly by Virginia prosecutors — and among some defense attorneys — because they believe it deters jury trials....

John Douglass, a former federal prosecutor and dean of the University of Richmond School of Law, said, “It’s ironic — jury sentencing in Virginia is suppressing the right to jury trial.” “The notion that your opportunity for a jury trial should come at the cost of a significantly higher sentence is troubling,” he said. “It seems odd that a jury can be used as a threat, rather than a right, or an opportunity.”...

Bowers said the trend toward fewer juries was going on before tougher modern sentencing and the use of guidelines.  Long ago, he said, when there were far fewer procedural protections for defendants, there were far more jury trials. “It wasn’t uncommon for a court to hear 20 felony jury trials in a day in the 18th-century court.”...

The full jury trial of today, however, is expensive and time-consuming.  Douglass said heavy caseloads make it difficult to try many cases.  “So prosecutors and defense counsel are looking for an alternative, and it leads to plea bargaining,” he said.

October 18, 2009 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack