February 7, 2009
"The Myths and Realities of Correctional Severity"
The title of this post is the partial title of this fascinating new article by John Pfaff appearing at SSRN. The full title is "The Myths and Realities of Correctional Severity: Evidence from the National Corrections Reporting Program on Sentencing Practices," and here is the abstract:
Though the growth in US prison populations over the past three decades-from 300,000 inmates in the 1970s to 1.6 million today-is well known, its causes are not. This paper examines one potential source of growth that has received surprisingly little rigorous attention: changes in time actually served in prison. Using offender-level data from the National Corrections Reporting Program, this paper demonstrates that median and 75th percentile times to release have not risen dramatically, and have even declined in some jurisdictions-although some of the decline appears to be caused by states increasingly incarcerating minor offenders who may not have been admitted in earlier years. In general, the results indicate that changes in admissions practices, rather than time served following admission, have played the dominant role in prison population growth. This paper also examines how offender-level traits have shaped the probability of release. The young, the Hispanic, and the violent are less likely to be released in any given period, and those over forty more likely to be so. Blacks, women, and property and drug offenders are no less likely to be released than their counterparts.
Another federal sentence for another athlete lying about steroid use
Joining the federal sentencing sporting alums Marion Jones and Tammy Thomas, former NFL player Dana Stubblefield was sentenced yesterday for lying to investigators about steroid use. This San Francisco Chronicle story provides the basics:
Former San Francisco 49er and Oakland Raider Dana Stubblefield was fined $5,000 and placed on two years' probation Friday for lying to a federal agent about steroid use, a sentence prosecutors recommended because of his cooperation in an investigation of drugs in pro football....
He admitted lying when he denied to [an IRS] agent that he had taken the steroid THG, known as "the clear," or the oxygen-boosting drug EPO, and when he said he had not received those substances from Victor Conte, founder of the Bay Area Laboratory Co-Operative in Burlingame.
Conte and four others later pleaded guilty to illegally distributing drugs to athletes through BALCO. Former San Francisco Giants star Barry Bonds is scheduled to go to trial next month on charges of lying to the grand jury that investigated BALCO by denying he had ever knowingly used steroids.
Is it only a matter of time before Barry Bonds and Roger Clemens join the list of the steriod sentenced? Has Alex Rodriguez ever lied under oath or to federal investigators about his apparent steroid use?
Two different pieces about different justice problems inside the Beltway
The Washington Post has two terrific recent pieces about two terrifically different concerns about the operation of justice systems inside the Beltway. Both of these piece are must-reads for very different reasons:
Study on sex offender registration in New Jersey suggests its ineffectiveness
This new story from New Jersey, headlined " Report finds Megan's Law fails to reduce sex crimes, deter repeat offenders in N.J.", ought to impact the debate over sex offender registration laws. I doubt it will, in part because (as the article shows) politicians eager to show how tough they are rarely worry much about the true effectiveness of the laws they support. Still, for those authorities more interested in sound policy than popular rhetoric, this news should give everyone something to think about:
Megan's Law, the landmark legislation that brought a new level of scrutiny to convicted sex offenders, has failed to deter sex crimes or reduce the number of victims since its passage 15 years ago, a new study concludes.
The federally funded study, conducted by the state Department of Corrections and Rutgers University and focused solely on New Jersey, suggests the growing cost of carrying out the law -- estimated at $5.1 million statewide in 2007 -- "may not be justifiable."
"Despite wide community support for these laws, there is little evidence to date, including this study, to support a claim that Megan's Law is effective in reducing either new first-time sex offenses or sexual re-offenses," the researchers wrote in a 44-page report.
The study is the latest in a string of efforts to measure the effectiveness of Megan's Law, which has been adopted in all 50 states and the District of Columbia. Those earlier studies also found the measure does not act as a deterrent.
Defense lawyers and civil libertarians, who have long opposed the law and who have fought in court to overturn it, seized on Friday's findings, calling on lawmakers to dismantle what has grown into an elaborate system for tracking sex offenders and notifying communities of their presence.
Megan's Law supporters pushed right back, calling the measure a vital tool for parents to protect their children. State Sen. Bill Baroni (R-Mercer), said the study "completely misses the objective" of the law. "Any attempt to use this study to weaken or erode Megan's Law will never succeed," he said.
February 6, 2009
Am I crazy to dream about a "Liberty Recovery Advisory Board"?
As detailed in this Politico entry, today President Obama signed an executive order creating a new Economic Recovery Advisory Board. This press release and this official blog entry at the White House website provides more background, as well as the text of the President's remarks at the signing. This news and event got me to thinking about what might happen if Americans were as concerned about the sorry state of liberty in the United States as they are about the sorry state of the economy.
With these crazy ideas in mind — namely the idea that Americans and its political leaders might be just as concerned about human liberty as they are about economic prosperity — I have imagined a different version of some of the President's remarks today:
I have just had the opportunity to welcome the members of my Liberty Recovery Advisory Board. And I'm grateful that I will have the counsel of these extraordinarily talented and experienced men and women in the challenging months to come.
If there's anyone, anywhere, who doubts the need for wise counsel and bold and immediate action, consider the very troubling news we just received. The Department of Justice just adjusted their imprisonment numbers for 2008, and now report that we've got nearly 2.5 million individuals lock up in prison or jail in this county.
That's 2.5 million individuals who wake up every day without the liberty to decide what to do that day and unable to be with family or friends who might need them. That's 2.5 million individuals who cost hard-working taxpayers trillions of dollars through the costs of housing and feeding people who may be able to get off the government dole and lead more productive lives.
Now is the time for Congress to act. It's time to pass an Liberty Recovery and Reinvestment Plan to restore our commitment to human liberty. This is not some abstract debate. It is an urgent and growing crisis that can only be fully understood through the unseen stories that lie underneath each and every one of those 2.5 million individuals now confined to cages.
It's very important to understand that, although we hit record incarceration rates every year, the problem is accelerating, not decelerating. It's getting worse, not getting better. These aren't my assessments -- these are the assessments of independent criminologists. If we don't do anything, millions more will lose their liberty.
Americans did not choose more of the same in November. They did not send us to Washington to get stuck in partisan posturing, to try to score political points. They did not send us here to turn back to the same tried and failed approaches that were rejected, because we saw the results. They sent us here to make change, with the expectation that we would act.
Now, I have repeatedly acknowledged that, given the magnitude and the difficulties of the problem we're facing, there are no silver bullets and there are no easy answers. Public safety may require denying liberty to some number of hardened criminals. But many Western nations have incarceration rates only 1/5 or even 1/10 of ours without sacrificing public safety concerns. That is what America needs. It will take months, even years, to renew our liberty, but every day that Washington fails to act, a nation that President Lincoln noted was "conceived in liberty" fails to live up to its founding principles.
Now, we also know that no single act can meet the challenges of this moment. This process is just the beginning of a long journey back to being the free society we like to think it is. Given the scope of this crisis, we'll need all hands on deck to figure out how we are going to move forward. And that's why we took the unique step of creating the new institution whose members have gathered here today. Put simply, I created this liberty recovery board to enlist voices to come from beyond the Washington echo chamber, to ensure that no stone is unturned as we work to get able-bodied people out of cages, in order to these put people back to work and help get our economy moving.
I'm not interested in groupthink, which is why the board reflects a broad cross-section of experience and expertise and ideology. We've recruited Republicans and Democrats, people who come out of prison as well as those who have put people in prison. Not everyone is going to agree with each other, and not all of them are going to agree with me -- and that's precisely the point, because we want to ensure that our policies have the benefit of independent thought and vigorous debate.
And we're also going to count on these men and women to serve as additional eyes and ears for me as we work to reverse modern mass incarceration. Many of them have ground-level views of the changes that are taking place, as they work across different sectors of the criminal justice system and different regions of the country, and they can help us see the trends that are not fully formed, the trouble that may be on the horizon, and the opportunities that have yet to be seized. I look forward to relying on their input and recommendations on specific questions as we jumpstart liberty recovery and pursue strong and stable communities.
Sadly, I know that, despite all the talk of hope and change, we should not expect to hear a speech like from any national political leader anytime soon (save perhaps Senator Jim Webb). But I really do believe the founders of this country would have hoped and expected that modern Americans and its leaders would remain just as committed to liberty as they are to the pursuit of happiness. Sadly, as the US prison population continues to grow as we continue to be world's modern leader in locking people in cages, I fear we have not lived up to the Framers hopes and expectations.
Some recent related posts:
- Inaugural rhetoric about freedom and liberty in prison nation
- My latest (academic?) musings about progressive punishment perspectives
- The state of cost problems in the states of prison nation
- When will President Obama start acting like President Lincoln when it comes to the clemency power?
- Historical evidence that it is NOT too early to start demanding clemencies from President Obama
- What do "our ideals" say about mass incarceration or LWOP for juves or acquitted conduct or the death penalty or GPS tracking or....
"Alternative Sentencing in the Federal Criminal Justice System"
The title of this post is the title of this important new document now appearing on the US Sentencing Commission's website. Here is how the USSC's describes its contents:
This publication provides an in-depth analysis of alternative sentences for federal offenders. It explains the types of alternative sentences available to sentencing courts under federal law, and the extent to which courts impose those sentences. The publication focuses on those offenders who are eligible for alternative sentences and the demographic and offense characteristics of the offenders who receive these sentences.
Though more descriptive than normative, this new USSC document concludes with this very valuable paragraph (that perhaps can and should be cut-and-pasted into many defense sentencing submissions):
Effective alternative sanctions are important options for federal, state, and local criminal justice systems. For the appropriate offenders, alternatives to incarceration can provide a substitute for costly incarceration. Ideally, alternatives also provide those offenders opportunities by diverting them from prison (or reducing time spent in prison) and into programs providing the life skills and treatment necessary to become law-abiding and productive members of society.
Friday forum for prosecutors: Has Michael Phelps now been punished enough?
The sports page of USA Today is asking here, "Is Michael Phelps' latest punishment fair?" Here is how they set up the inquiry:
We see that USA Swimming has brought the hammer down on Michael Phelps. The organization has suspended him for three months after a photo of him smoking marijuana appeared in a British tabloid.
In addition, Kellogg's, one of his biggest sponsors, has dropped him, saying his image was not consistent with the breakfast cereal....
USA Swimming will also withhold Phelps' training grant money, which for the multi-gold medalist is probably more symbolic than punitive. Although they also decided to make Phelps' latest problem more of a punitive moment than a teaching one.
Phelps, who told the Baltimore Sun yesterday that he is re-thinking everything, including the 2012 Olympics, said he plans to swim in the world championships in July.
The superstar swimmer has apologized for his actions numerous times since the photo appeared. So the question this morning is, is Phelps reaping what he sowed or are we punishing a guy too strictly because of his fame?
As the title of this post suggests, I want to refine this question by asking actual or would-be prosecutors whether all this extra-legal punishment for Phelps would or should influence their decision whether to bring charges against him for a state drug crime.
As detailed here, South Carolina authorites have already talked up the possibility of a state drug charge. Practically speaking, I think extra-legal factors often play a huge role in prosecutors' charging and bargaining choices, though these extra-legal factors rarely are the subject of open discussion. For today's forum, I hope the comments become a place for such an open discussion, with golden boy Phelps as our subject du jour.
- Is golden boy Michael Phelps going to be charged with a state drug crime?
- "Michael Phelps, Hypocrisy, and American Drug Policy"
- Should those seeking drug policy reform hope that Micahel Phelps get prosecuted?
- Michael Phelps punished by USA Swimming with suspension
Some state and international perspectives on child porn prosecutions
As detailed in posts linked below, I have blogged a lot about seemingly disparate prosecutorial charging and judicial sentencing decisions in how the federal criminal justice system is dealing with child porn downloading cases. Thanks to a helpful reader, I saw two new stories providing a state-level and an international perspective on these issues.
At the state level, consider this sentencing story from California: "A Granada hills-based attorney who pleaded no contest to possessing child pornography on his computer was sentenced Wednesday to five years supervised probation and 1,000 hours of community service."
At the international level, consider this enforcement story from Canada, headlined "Child porn scourge creates more suspects than can be arrested." This article tries to put a number on how many people may be involve in trading child porn images:
Officials estimate there are at least 65,000 people in Canada — and up to 600,000 in the United States — trading pictures and videos of the sexual abuse of children. “There’s just not enough manpower to go and identify and arrest these 65,000 individuals,” said [Paul] Gillespie, [former head of Toronto police’s groundbreaking child exploitation unit and] now president and CEO of the Kids’ Internet Safety Alliance....
The Ontario Provincial Police special child pornography unit always has a backlog of cases. “The OPP is arresting about 75 of these offenders a year, when we know there are tens of thousands of them,” said Insp. Andy Stewart. “We’re never going to be in a position to arrest our way out of this.”
Stewart called the 65,000 a “very conservative” estimate for the number of Canadians collecting, trading and selling child pornography. The provincial force is trying to identify criteria that they can use to properly triage child pornography cases to make sure they’re going after the ones who pose the biggest threat to children, he added....
Police estimate child pornography is a $2- to $3-billion industry, with over 20,000 new images posted on the Internet every week. The ease with which digital photographs and videos can be shared online has meant police are discovering huge collections of child pornography when they make arrests.
“Years ago a large seizure might be 1,500 to 2,000 images, but with the electronic sharing of images,” Stewart said. “The average is now 100,000 images, and we’ve had seizures with well over 1,000,000 images and 1,200 videos.”...
Sentences for possessing and manufacturing child pornography vary widely, but rarely is maximum term of 10 years ever handed out in Canada unless there are additional charges such as sexual assault.... In the U.S., the Supreme Court last year let stand a 200-year prison term for an Arizona teacher who had been convicted of possessing 20 images of child pornography.
Some related recent federal child porn prosecution and sentencing posts:
Dueling editorials about the death penalty debate in Maryland
The two major papers in Washington DC have these two dueling editorials about the on-going debate in Maryland concerning possible repeal of the state's death penalty:
- From the Washington Post here, "A Vote Against Cruelty"
From the Washington Times here, "Demagoguery vs. capital punishment"
Some related recent posts:
- Maryland commission urges abolition of state's death penalty
- As goes Maryland, so goes the nation on capital punishment?
February 5, 2009
Michael Phelps punished by USA Swimming with suspension
Though extra-legal and thus not a traditional sentencing, this AP story details that Michael Phelps is already being punished for being caught taking a bong hit:
Michael Phelps has been suspended from competition for three months by USA Swimming, the latest fallout from a photo that showed the Olympic great inhaling from a marijuana pipe. The sport's national governing body also cut off its financial support to Phelps for the same three-month period, effective Thursday.
"This is not a situation where any anti-doping rule was violated, but we decided to send a strong message to Michael because he disappointed so many people, particularly the hundreds of thousands of USA Swimming member kids who look up to him as a role model and a hero," the federation said in a statement. "Michael has voluntarily accepted this reprimand and has committed to earn back our trust."
Some related posts:
- Is golden boy Michael Phelps going to be charged with a state drug crime?
- "Michael Phelps, Hypocrisy, and American Drug Policy"
- Should those seeking drug policy reform hope that Micahel Phelps get prosecuted?
UPDATE: The New York Times has more coverage here of the Phelps photograph fallout, as well as a long piece here about a sum wrestler in Japan getting even more grief for admitting marijuana use. It seems that reefer madness is not just an American syndrome.
Latest faith-based executive order briefly mentions prisoner re-entry
As detailed in this CNN piece, President Barack Obama issued this executive order today to rename and rework the White House's faith-based office. I was heartened to see the order included this little shout-out (highlighted by me below) for faith-based re-entry programming in the "policy" section of the executive order:
Faith-based and other neighborhood organizations are vital to our Nation's ability to address the needs of low-income and other underserved persons and communities. The American people are key drivers of fundamental change in our country, and few institutions are closer to the people than our faith-based and other neighborhood organizations. It is critical that the Federal Government strengthen the ability of such organizations and other nonprofit providers in our neighborhoods to deliver services effectively in partnership with Federal, State, and local governments and with other private organizations, while preserving our fundamental constitutional commitments guaranteeing the equal protection of the laws and the free exercise of religion and forbidding the establishment of religion. The Federal Government can preserve these fundamental commitments while empowering faith-based and neighborhood organizations to deliver vital services in our communities, from providing mentors and tutors to school children to giving ex-offenders a second chance at work and a responsible life to ensuring that families are fed.
I hope that, in addition to recognizing the valuable role played by faith-based re-entry programming, the Obama Administration will also voice support for the faith-based prison movement.
Some related posts on faith-based prison programs:
- Is faith the best thing to happen to prisons since ... the faithful started prisons?
- Interesting Ohio report on correctional faith-based initiatives
- Another report tentatively praising faith-based prisons
- The virtues of faith-based prisons
- Interesting examination of faith-based prison movement
- A thoughtful, but disappointing, attack on a faith-based prison program
- Religion, sentencing and corrections
- Having faith in prisons
- Say hallelujah for new faith-based prison scholarship
- Will the Obama Administration embrace and promote the faith-based prison movement?
Notable AWA and CVRA rulings
Thanks to the fine bloggers at The Volokh Conspiracy, I can cover two interesting rulings under two interesting federal criminal statutes by links to their posts:
- By Paul Cassell here, "Crime Victim's Victory in the Sixth Circuit"
By Eugene Volokh here, "Another Case Holding a Gun Control Provision of the Adam Walsh Act Unconstitutional"
Terrific piece on constructions of equality in criminal law in first JLA issue
The first issue of a notable new law review, the Journal of Legal Analysis, is available here. This new review is notable in part because it is faculty-edited and peer-reviewed, because it has an all-star editorial team and board, and because it is "dedicated to the best legal scholarship from all disciplinary perspectives and in all styles, whether verbal, formal, or empirical." The first issue of JLA is notable for sentencing fans because it includes this great article by James Q. Whitman, titled "Equality in Criminal Law: The Two Divergent Western Roads." Here is the abstract:
Every western society embraces the ideal of equality before the criminal law. However, as this article observes, that ideal is understood differently in the United States and Continental Europe. American law generally demands that all citizens face an equal threat of punishment, while continental European law generally demands that all citizens face an equal threat of investigation and prosecution. This contrast raises a sharp normative challenge: Is it better to think of equality before the criminal law as pre-conviction equality or post-conviction equality? The article makes the case that pre-conviction of the Continental kind is normatively superior. It then asks why American law has opted for what seems a normatively inferior solution, identifying a variety of factors in American culture and the common law tradition that have encouraged the belief that true equality lies in the equal threat of punishment rather than in the equal threat of prosecution.
The economic case against the death penalty getting more and more attention
Regular readers should not be surprised that one echo effect of hard economic times is that opponents of capital punishment are finding it easier to argue against the death penalty because of the extraordinary expense of properly administering the punishment of death. Here are just a few recent newspaper pieces reflecting these realities:
From Kansas here, "Death penalty opponents introduce bill to abolish executions based on cost"
From Montana here, "From a financial perspective, the death penalty fails"
From Virginia here, "Expanding the death penalty is fiscally irresponsible"
From the mountain states here, "One state looks to cut the death penalty, put money elsewhere"
Fascinating "personal prison" offer considered in prominent white-collar case
The New York Law Journal has this fascinating new piece headlined, "Bid to Create 'Private Prison' at Issue in Dreier Bail Determination." Here is the first part of a long article:
For two months, attorney Marc S. Dreier has been jailed without bail at the Metropolitan Correctional Center. But if he gets his way, he soon will be released to less spartan accommodations -- his own midtown luxury apartment. First, however, Dreier has to convince Southern District Judge Jed S. Rakoff it would be fair to allow the lawyer to create his own "private prison" with financial resources available to him.
According to his attorney, Gerald Shargel, Dreier's sister and brother-in-law have offered to pay $70,000 a month for round-the-clock security guards to ensure that Dreier does not flee before charges that he bilked investors of $400 million are adjudicated.
Judge Rakoff is expected to rule today or tomorrow on the bid of Dreier, the founder and sole equity partner of Dreier LLC, to be released on bail.
At a bail hearing before Rakoff on Monday, Shargel argued that his client was "penniless" after being stripped of all his assets in the wake of his Dec. 2 arrest in Toronto and his Dec. 7 arrest in New York City and does not pose a flight risk.
At the Metropolitan Correctional Center, Dreier lives in a small cell with a bunk mate, and has limited contact with the outside world. He is permitted to meet once a week with his ex-wife and teenage daughter and his 19-year-old son, Spencer Dreier. He receives an allotment of 320 minutes per month for phone calls, which includes calls to his lawyer. He can see Shargel every day.
Shargel contends the 1984 federal Bail Reform Act, 18 U.S.C. §3142(c)(1)(B), requires the court to release Dreier, provided a set of conditions exist that will "reasonably assure" his appearance and the safety of the community. House arrest with armed guards stationed inside Dreier's apartment would meet those requirements, Shargel said Monday night at the bail hearing.
How glorious to be an American citizen. In so many countries, the rights of citizens are not worth the paper they are printed on. But here, any citizen – good, bad, indifferent, famous, infamous, or obscure – may call upon the courts to vindicate his constitutional rights and expect that call to be honored.
Here, citizen Marc Dreier, whom the Government accuses of colossal criminality, calls upon the Court to fulfill the pledge of the Eighth Amendment to the Constitution that “Excessive bail shall not be required.” He argues that the bail set by Magistrate Judge Eaton, which required, among much else, that he post $10 million in cash to secure his release, is excessive, because all his funds have already been frozen by orders previously obtained by the Securities & Exchange Commission and by the U.S. Attorney’s Office. The Government, for its part, argues that no conditions of bail can reasonably assure against what it considers to be a high risk of flight, and accordingly urges that bail be denied altogether. Following substantial briefing and a lengthy hearing, this Court, reviewing the matter de novo, see United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985), concludes that such risk of flight as exists can be so minimized by the by the imposition of conditions that Dreier may likely meet as to warrant his release.
"Ginsburg is hospitalized with pancreatic cancer"
Because the Justices are in the midst of a long break, I did not expect much significant SCOTUS news this month. But, as detailed in this AP report, the health of the only current female Justice is now making headlines:
Supreme Court Justice Ruth Bader Ginsburg had surgery Thursday after being diagnosed with pancreatic cancer, the court said.
Ginsburg, 75, had the surgery at the Memorial Sloan-Kettering Cancer Center in New York. She will remain in the hospital for seven to 10 days, said her surgeon, Dr. Murray Brennan, according to a release issued by the court. The court announcement said the cancer is apparently in the early stages.
Is hope and change coming to the issue of medical marijuana?
The Washington Times has an interesting report on a high-profile drug reform issue in this article, headlined "DEA continues pot raids Obama opposes:President vowed to end policy." Here is how it starts:
Drug Enforcement Administration agents this week raided four medical marijuana shops in California, contrary to President Obama's campaign promises to stop the raids.
The White House said it expects those kinds of raids to end once Mr. Obama nominates someone to take charge of DEA, which is still run by Bush administration holdovers. “The president believes that federal resources should not be used to circumvent state laws, and as he continues to appoint senior leadership to fill out the ranks of the federal government, he expects them to review their policies with that in mind," White House spokesman Nick Shapiro said.
UPDATE: Over at The Volokh Conspirary, this news gets some significant love in this notable post by David Kopel:
Hurray for President Obama! The White House affirms that he will end the Bush/Clinton policy of raiding medical marijuana providers who are operating within the parameters of state law. A victory for patients, for the Tenth Amendment, and for responsible use of federal law enforcement resources, as Mike Krause and I argued in 2001.
US Sentencing Commission's regional hearings to start next week
I am please to see that the US Sentencing Commission now has posted to its website this official press release and this agenda concerning its first of a series of regional hearings. Here are the basic details from the press release:
The United States Sentencing Commission will hold in Atlanta on February 10-11, 2009, the first of a series of regional public hearings on federal sentencing policy. The Commission is holding these public hearings to gather feedback on federal sentencing practices and the operation of the federal sentencing guidelines. The regional hearings coincide with the 25th anniversary of the Sentencing Reform Act of 1984....
At the hearings, the Commission expects to hear from a wide range of witnesses from across the nation, including the judiciary, law enforcement, prosecutors, defense attorneys, community interest groups, sentencing experts, and others interested in federal sentencing. The Commission is interested in any suggestions regarding changes to the Sentencing Reform Act and other relevant statutes, the federal sentencing guidelines and policy statements, and the Federal Rules of Criminal Procedure that, in the view of the witness, will further the statutory purposes of sentencing.
As this press release suggests and as the hearing agenda highlights, the USSC seem genuinely eager to consider broadly and dynamically about how the next generation of federal sentencing law and policy should unfold. Though the USSC has not been at the forefront of bold sentencing reforms in recent years, perhaps it is time for those troubled by federal sentencing realities to be a bit more optimistic concerning the possibility of hope and change finding expression in the USSC's coming work.
Some related recent posts:
- The revised make-up of the US Sentencing Commission
- Notable news from the US Sentencing Commission
- How a new administration is likely to impact federal sentencing practice
- The revised make-up of the US Sentencing Commission
- Why federal sentencing reformers must focus on the USSC and lower courts
- Are we on the verge of a new changed era concerning federal sentencing law and policy?
- What might 2009 have in store for . . . the US Sentencing Commission?
Should those seeking drug policy reform hope that Michael Phelps gets prosecuted?
Over at Reason, Jacob Sollum and Radley Balko are talking about whether Michael Phelps might get charged with a drug crime in the wake of the picture of his bong hit. This final point in Balko's commentary caught my eye:
[T]he spectacle of seeing a world class athlete like Phelps frog-marched in handcuffs, tried, and given a few days in the county jail might do wonders toward enlightening the public to the fact that the most dangerous thing about marijuana doesn't come from smoking it, but from what the government will to you if it catches you.
This sentiment reminds me a bit of all the death penalty opponents who keep hoping to find conclusive evidence that an innocent defendant has been executed. Balko thus taps into a sad but true aspect of many sentencing law and policy debates: one high-profile case is often an essential catalyst for long-urged reforms.
February 4, 2009
Is six months about typical for the amount of time between a federal trial conviction and sentencing?
Paul Cassell over here at The Volokh Conspiracy asks, "Is a Three Year Delay in Sentencing Too Long?". Here is the factual background prompting Paul's query:
According to this interesting article, a federal judge has recently set the sentencing date for four plant managers convicted of environmental and safety crimes on April 26, 2006. The sentencings are now set for April 24, 2009 — nearly three years later.
It is not clear what has caused the delay. Federal prosecutors filed a motion in December to speed things up. They argued that the sentencing delay affected public perception of justice. They also cited the Crime Victims' Rights Act, which promises crime victims that they have a right to a trial "free from unreasonable delay." The case involves a forklift accident at a foundry that killed a plant worker.
I would generally consider a three-year delay between conviction and sentencing to be extreme and problematic for various reasons. Then again, in an extreme and problematic case in which the applicable guideline range and the scope of a judge's sentencing authority and discretion is being hotly contested, it can often take a long time to "paper-up" important pre-sentencing issues.
In light of this case, I thought it useful to see if practitioners agree with my rough estimate that, in an average case (whatever that means), about six months will elapse between the time of a trial conviction and a sentencing hearing in the federal system. In cases involving a plea, I suspect the timeline tends to be a bit shorter (especially in fast-track cases, of course), and in particularly complicated cases I suspect the pre-sentencing timeline is a bit longer. I ask this question not only to confirm my own (ivory tower?) sense of federal sentencing timelines, but also to provide some context for a fair assessment of whether the three-year delay in the case noted above is truly extreme.
UPDATE: The comments below and additional feedback I have received via e-mail suggest that three to four months is more typical as the standard period between conviction and sentencing.