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February 4, 2009

Lots of (minor?) sentencing action in the circuits

Because so much else has been keeping me busy lately, I have not blogged about many notable circuit rulings handed down this week.  Specifically, the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth and Eleventh Circuits have all issued opinions this week that cover some consequential sentencing issues ranging from guideline interpretation (in the Second and Third Circuits) to Rule 35(a) modifications (in the Fifth Circuit) to crack retroactivity motions (in the Seventh and Eleventh Circuits).

Based on my quick reads, though all of these rulings have had blog-potential, none seemed major enough to merit its own post during an otherwise busy week.  My gauge of blog-worthy opinions, however, is often off-kilter during busy weeks.  Thus, I encourage anyone who thinks I might have overlooked an important aspect of a recent opinion to let me know what should not go unblogged.

February 4, 2009 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

Detailed local account of plea realities (and state/federal disparities)

The Iowa City Press Citizen has this notable piece discussing local plea practices. The piece, which is titled "Plea deals: Are they soft or necessary?", covers a story surely familiar to many practitioners, but one that is not often fully appreciated by the public (or many academics).  Here are some excerpts:

From 2002 to 2007, Iowa City police officers charged 74 people with second-degree robbery.  Sixty-one of those arrests -- or 82 percent -- resulted in pleas to or convictions of lesser offenses, according to a review of court records.  However, while that number might seem high, it's actually in line with national figures....

Tom Sneddon, interim executive director of the National District Attorney Association, said that doesn't mean 95 percent of cases are plea bargained, however.  Some criminals will plead as charged, he said.  You're talking clearly in the 80s (percent) where there was some kind of bargain struck," Sneddon said. "That is very, very common practice. It's the only way the court system survives."

While the disparity between charges filed by police and dispositions made in the court system might be surprising to many, neither the police nor the Johnson County Attorney said the plea bargain figures were unexpected.  "I think this is true, not just with robberies, but across the board with charges, period," Police Sgt. Troy Kelsay said.

Sgt. Mike Brotherton, who leads Iowa City's gang and drug team, said he sees the same disparity between charges and plea deals. While it is frustrating for officers, Brotherton said there are further reaching implications.  "What you don't see is what the consequences are," Brotherton said. "What's the end result? Very, very few go to prison."...

Brotherton has found at least one way to avoid this issue -- he takes cases to the federal court system.  However, it's not easy to elevate a case to that level, he said.  In drug cases, there must be sizeable quantities of drugs involved.  If a weapon is involved, the case can possibly go to the federal level as well.

These criteria are based on guidelines for crimes that are indictable at the federal level and ensure that the federal courts only get cases that are appropriate for their jurisdiction.  All types of robberies are prosecuted at the state level, but bank robberies often are prosecuted federally because of their federal protection.

This article is intriguing for many reasons, but I find especially interesting the willingness of a senior state police officer to state to a reporter that he actively "tries to make a federal case" out of some local crimes because of his concerns about undue leniency in the state sentencing system. 

February 4, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

New report from The Sentencing Project on the state of sentencing

I just received via e-mail this notice of a new report from the folks at The Sentencing Project:

A new report by The Sentencing Project highlights 17 states that enacted sentencing and corrections reforms in 2008.  The State of Sentencing 2008: Developments in Policy and Practice finds that a nationwide budget crisis coupled with widespread prison overcrowding has led many states to address critical challenges in the areas of sentencing, drug policy, parole revocation, racial justice, felony disenfranchisement, juvenile justice, and higher education in prison.... 

In the report, The Sentencing Project urges state policymakers and practitioners to reconsider sentencing policies that result in lengthy terms of incarceration; invest in strategies proven to reduce recidivism; and expand diversion and treatment programs beyond first-time and non-violent offenders.

February 4, 2009 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

After fast work on excessive pay, now how about similar work on excessive sentences?

As detailed in this CNN piece, President Obama and his administration is responding quickly to last week's news that corporate executives handed out $18 billion in bonuses in 2008.  While I am disinclined to opine on the specifics of such matters, I am pleased the new folks in DC are concerned about how my tax dollars are being spent on Wall Street.  Now, with the new Attorney General in place, the new administration should start showing similar concern for how taxpayer dollars are being spent on Main Street.

Specifically, as highlighted in many prior posts (examples here and here), states are struggling with tight budgets and are having to make hard choices about the prison economy.  Along the way, many states are asking for taxpayer dollars from the federal government (here is a piece about Ohio's eagerness for stimulus dollars).  Just as President Obama is seeking to limit excessive corporate pay for any company requesting monies from the feds, how about also seeking limits on excessive and costly imprisonment terms for any state requesting monies from the feds?

There is significant precedent for tying federal aid to state sentencing reform efforts: during the Clinton years, the feds required states to eliminate parole in order to get certain funds; during the Bush years, the feds required states to change sex offender registration laws to get certain funds.  For so many reasons, the feds ought to try this method again, but do so in ways that encourage states to make more sensible choices concerning short and long-term corrections spending. 

Sadly, other than perhaps Senator Jim Webb, I doubt any other politician inside DC has the insight and the courage to even consider such a bold idea to these festering prison economy problems.  Still, this kind of prison economy reform would not have to have a legislative push to get started.  President Obama could jump-start cost-oriented sentencing reforms by just granting a few clemencies to non-violent first offenders while stressing the savings from no longer having to use federal tax-payer dollars to continue housing and feeding offenders who clearly pose no threat to public safety.

Some recent related posts:

February 4, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (2) | TrackBack

Is golden boy Michael Phelps going to be charged with a state drug crime?

Michaelphelps_bush This latest news from South Carolina suggests that criminal justice authorities are seriously working up criminal charges against record-breaking Olympian Michael Phelps:

Olympic superstar Michael Phelps could face criminal charges as part of the fallout from a photo that surfaced showing the swimmer smoking from a marijuana pipe at a University of South Carolina house party. Mike & Mike in the Morning

A spokesman for Richland County Sheriff Leon Lott, who is known for his tough stance on drugs, said Tuesday the department was investigating. "Our narcotics division is reviewing the information that we have, and they're investigating what charges, if any, will be filed," said Lt. Chris Cowan, a spokesman for the agency....

"The bottom line is, if he broke the law, and he did it in Richland County, he's going to be charged," Cowan said. "And there's no difference between Michael Phelps and several other people that we arrest for the same type of a charge everyday."

Under South Carolina law, possession of one ounce or less of marijuana is a misdemeanor that carries a fine up to $200 and 30 days in jail for the first offense.  Possession of paraphernalia is a $500 fine.

The Richland County sheriff has long sought to fight drug crimes. He rose from patrol officer to captain of the narcotics division in the early 1990s, after the television series "Miami Vice" made its splash. Lott played the part well. He wore stylish suits and had long hair then. He drove a Porsche seized from a drug dealer and even worked undercover with federal agents in Florida.

February 4, 2009 in Drug Offense Sentencing | Permalink | Comments (10) | TrackBack

"The Plea Jury"

The title of this post is the title of this really intriguing new article by Laura Appleman available via SSRN. Here is the abstract:

For over thirty years, scholars, courts, defense attorneys and prosecutors have been deeply troubled by the guilty plea procedure, concerned about the sacrifice of rights and due process for cheap efficiency.  Although many legal players seem to dislike the plea, few have taken on its reform.

With the Supreme Court's recent iteration of the jury's constitutional rights and powers in criminal adjudication, however, a way to meaningfully reform the guilty plea has finally arisen.  I propose incorporating the community into the guilty plea process through the use of a plea jury.  With a plea jury, a lay panel of citizens would listen to the defendant's allocution and determine the acceptability of the plea and sentence, reinvigorating the community's right to determine punishment for offenders.

My goal in this piece is to restore the community jury right to its proper place by envisioning its integration into the guilty plea, theoretically as well as procedurally.  In doing so, I will illustrate not only how a standard jury would be incorporated, but also why the critical norms embedded into jury participation will help improve the existing guilty plea procedure.

February 4, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

Virginia legislature working on cost-saving sentencing reforms

The Washington Post has this report from Virginia on the latest local sentencing reforms being driven by prison economy realities.  The article is headlined "Nonviolent Inmates Could Get Out Early: Va. Senate Drafts A Budget Assist Worth $50 Million," and here are excerpts:

Leaders in the Virginia Senate are drawing up plans to overhaul the state's criminal sentencing policies so that hundreds, perhaps thousands, of inmates can be released from prison early, a politically risky move aimed at saving tens of millions of dollars.

Under the proposal being drafted by Senate leaders from both parties, Virginia would expand its use of home monitoring and make it easier for nonviolent offenders to be released after they complete drug treatment programs.

The state would then close one or two prisons, which would free up at least $50 million to help address a $3 billion budget shortfall.... "In talking to my constituents, they are not interested in spending $25,000 a year to incarcerate these people when we are talking about cutting higher education, public education and health care," said Sen. Janet D. Howell (D-Fairfax)....

Senate leaders say the budget shortfall is forcing them to look for savings within the state's prison system. Virginia operates 41 correctional facilities. The typical facility has 1,024 beds and costs $25 million annually to operate. In December, Kaine proposed that four prisons be closed as part of ongoing budget cuts. Howell said the Senate would like to add to that list....

According to a working draft of the Senate plan, some nonviolent offenders would be sent home with electronic monitoring equipment to complete their sentences.  But before anyone is released, the state would have to complete an aggressive risk assessment.  Only those inmates who are deemed unlikely to reoffend would be eligible for early release.   Virginia already conducts electronic monitoring of about 4,000 probationers. The state does not use the devices as an alternative to incarceration, said P. Michael Leininger, a legislative liaison for the Department of Corrections.

Some recent related posts:

February 4, 2009 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

February 3, 2009

More on whether and how criminal justice records should be on-line

In this recent post, I wondered aloud "Should all federal plea agreements be generally available on-line?".  A helpful reader pointed me to this forthcoming article by Caren Myers Morrison, titled "Privacy, Accountability, and the Cooperating Defendant: Towards a New Role for Internet Access to Court Records," which addresses related issues.  Here is the abstract:

Now that federal court records are available online, anyone can obtain criminal case files instantly over the Internet.  But this unfettered flow of information is in fundamental tension with many goals of the criminal justice system, including the integrity of criminal investigations, the accountability of prosecutors and the security of witnesses.  It has also altered the behavior of prosecutors intent on protecting the identity of cooperating defendants who assist them in investigating other targets.  As prosecutors and courts collaborate to obscure the process by which cooperators are recruited and rewarded, Internet availability, instead of enabling greater public understanding, risks degrading the value of the information obtained.

There is a growing body of scholarship considering the privacy implications of electronic access, but the literature has not yet addressed these issues from the perspective of the criminal justice system.  This Article begins to fill that gap by focusing on the skittish responses of prosecutors and courts to the expanding availability of information that had always been public, but was traditionally hard to obtain.  Such evasion is particularly troubling in the context of cooperation, an important law enforcement tool that is essentially unregulated and susceptible to capricious application.  The Article proposes an approach that pairs limitations on online access with systematic disclosure of detailed plea and cooperation agreements in their factual context, but divorced from identifying data.  This proposal would protect privacy and security, while enabling the public and press to engage in genuine government oversight.

Some related posts with related questions:

February 3, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Fourth Circuit limits reach of ACCA in light of Begay

The Fourth Circuit today holds in US v. Thornton, No. 08-4251 (4th Cir. Feb. 3, 2009) (available here), that statutory rape is not a violent felony under Armed Career Criminal Act. Here is the start of the opinion:

A jury convicted Michael Ray Thornton of possessing a firearm and body armor in violation of 18 U.S.C. §§ 922(g)(1) and 931.  During his sentencing, the district court classified Thornton as an armed career criminal subject to a sentence enhancement based in part on a 1986 statutory rape conviction. At issue on appeal is whether Virginia’s statutory rape offense, which makes it a crime to "carnally know[ ], without the use of force, a child" between thirteen and fifteen years of age, is a "violent felony" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B). Because we find that Virginia’s carnal knowledge offense does not constitute a violent felony under the ACCA as interpreted by Begay v. United States, 128 S. Ct. 1581 (2008), we are constrained to reverse.

February 3, 2009 in Offender Characteristics | Permalink | Comments (0) | TrackBack

Interesting time for Time's discussion of death's demise

Time magazing has this new piece on death penalty developments, headlined "The Tide Shifts Against the Death Penalty."  Here are a few excerpts:

If there were such a thing as a golden age of capital punishment in America, it peaked in 1999. There were 98 executions in the U.S. that year, the highest number since 1976, when the Supreme Court, which had overturned all death penalty laws in 1972, began approving them again. For most of the 1990s the number of death sentences handed down annually by courts had been humming along in the range of 280 to 300 and above.  And it had been years since the Supreme Court had done much to specify whom states could execute and how they could do it.

A decade later, capital punishment has a lot less life in it.  Last year saw just 37 executions in the U.S., with only 111 death sentences handed down.  Although 36 states and the Federal Government still have death penalty laws on the books, the practice of carrying out executions is limited almost entirely to the South, where all but two of last year's executions took place.  (The exceptions were both in Ohio.)  Even in Texas, still the state leader in annual executions, only 10 men and one woman were sentenced to death last year, the lowest number since the death penalty was reinstated in 1976.  In recent years the Supreme Court has voted to forbid the execution of juveniles and the mentally retarded, and it banned using the death penalty for crimes that did not involve killings....

Even more significantly, where states once hurried to adopt death penalty laws, the pendulum now appears to be swinging in the other direction.  In 2007 New Jersey became the first state in 40 years to abolish its death penalty.  In that same year repeal bills were narrowly defeated in Montana, Nebraska and New Mexico, all of which are revisiting the issue this year.  Now the focus is on Maryland.  After years of failed attempts by death penalty opponents to bring a repeal bill to a vote in the state legislature, Maryland Governor Martin O'Malley is personally sponsoring this year's version, promising that he will fight to have the legislature pass it during the current 90-day session.

As regular readers know, I have been documenting the death penalty's decline for quite sometime.  But this Time article comes out, coincidentally, when death is making a bit of a comeback.  The last few weeks of January 2009 brought seven executions (five of which were in Texas), the most in any concentrated period since June 2007.  In addition, there are two executions scheduled for tomorrow (one in Tennessee and one in Texas).  Also, Virginia's legislature recently voted to expand that state's death penalty law.

In addition, today was the swearing in of Eric Holder as Attorney General.  Though AG Holder's track record on the death penalty is mixed, he was deputy AG in the Clinton Administration during what Time calls "the golden age of capital punishment in America."  Though lots of forces contributed to the death penalty's rise in the 1990s and its more recent decline, our new Attorney General may not be nonplussed if execution rates and death sentences return to rates of the so-called golden age.

Some recent related posts:

UPDATE:  As detailed in this local article, Tennessee executed Steve Henley early Wednesday morning.  Here is the start of the local coverage:

Convicted murderer Steve Henley met his death at the hands of the state with a smile on his face and maintained his innocence even in his final moments amid the cries and prayers of his family.  “As I have said ever since this happened, I didn’t kill them,” Henley said during his final words of his victims, Fred and Edna Stafford. “I hope they can rest easier after this procedure is done.”

February 3, 2009 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

New York commission calling for major drug sentencing reforms

As detailed in this official press release, a "bi-partisan panel that spent nearly two years studying New York State’s sentencing statutes today called for further reforms to the state’s drug laws and provided the Governor, Legislature and Judiciary with several different options for historic reform."  Here is more from the press release:

The Commission on Sentencing Reform agreed on five major principles of drug law reform:

  • Community-based drug treatment, especially when required in a criminal justice setting where the offender faces clearly defined sanctions for program failure, works and should be an available option in every region of the state.
  • The state’s network of existing diversion programs and drug courts has been effective for thousands of drug-addicted offenders, and any new diversion model must be structured so as not to undermine these programs.
  • New York should adopt a comprehensive plan to provide statewide access to substance abuse treatment programs.
  • New York must continue to reserve costly prison resources for high-risk offenders and make greater use of alternatives to incarceration for non-violent offenders while not jeopardizing the state’s significant gains in public safety.
  • While New York has a large network of successful drug treatment courts and prosecutor-based diversion programs..., these programs are not always made available to deserving offenders in need of treatment. The result is a “hit-or-miss” system that leaves many non-violent, drug-addicted offenders – and particularly persons of color – without access to this potentially life-changing alternative. To help close this gap, the Commission supports the adoption in statute of a uniform statewide drug diversion model.

Though the official press release in conjunction with the release of full report devotes the focused attention on drug sentencing reforms, the full report (available hereand running 326(!) pages) covers many more topics.  The report has an effective executive summary starting at page 27 of the pdf, and everybody following modern debates over sentencing law and policy should make the time to read at least the executive summary ASAP.

Newsday provides here the first press coverage of the report, but I expect there will be (as there should be) a lot more attention given to the terrific work of the New York Commission on Sentencing Reform in the days ahead.

UPDATE:  The Albany Times Union has this blog report on a negative letter from Sheldon Silver, the Speaker of the New York State Assembly, to the chair of the Commission on Sentencing Reform in response to the report.  Here is a snippet:

I write to express my deep disappointment with the final report of the Commission on Sentencing Reform.  Unfortunately, the Commission’s report represents a historic missed opportunity to advance meaningful reform of New York’s antiquated “Rockefeller-era Drug Laws”....

I am troubled that the Commission’s report fails to address a system that has ignored, and still ignores, the health and societal implications of drug abuse, and has ignored the failed laws that have led to African- Americans and Latinos constituting 90% of those incarcerated in our state prisons for drug offenses.  This profound discriminatory impact is even more shocking when the rates of illicit drug use are 8.1 percent for Whites, 7.2 percent for Latinos and 8.7 percent for African-Americans.

MORE:  This New York Times article suggests that the Commission's report is generally getting a warm reception from most state policy-makers:

Legislative leaders said they saw the report as the first step toward broader reform of New York’s drug penalties.  The subject is expected to be revisited in the coming weeks as newly empowered Democrats, who now control both chambers of the Legislature and the governor’s mansion, move to put their imprint on the state’s social policy.

February 3, 2009 in Drug Offense Sentencing | Permalink | Comments (2) | TrackBack

Taking stock of President George W. Bush's clemency record

Though perhaps not providing the truly final word on the clemency efforts of our 43rd president, former Pardon Attorney Margaret Love has created (and allowed me to post) a terrific review of President George W. Bush's clemency record.  Here are snippets of her effort, which can be downloaded in full below:

The final figures on President Bush’s clemency record establish that he granted fewer pardons and commutations than any two-term president since Thomas Jefferson, and fewer per term than any full-term president since John Adams, with the exception of his father. Statistically, he is tied with his father for the lowest favorable grant rate for pardon petitions (9.8%), and his grant rate for commutations barely registers (.012%). While he pardoned fairly regularly through out his two terms, 76 of his 189 pardons and seven of his eleven commutations were granted in his final year.

President Bush received more clemency petitions than any president since FDR (not counting petitions received pursuant to general grants of amnesty), and he denied more. In eight years, he denied almost 7500 commutation and 1800 pardon requests, three times the number denied by Bill Clinton....

The disappointing shortage of grants at the end of President Bush’s term, like the torrent of irregular pardoning at the end of Clinton’s, is traceable to a chronically dysfunctional pardon advisory system, dominated by the perspective of prosecutors, which can take years to process an application and produces very few favorable recommendations.  The difference in the end-games for the two presidents is attributable to their very different personal inclinations to dispense forgiveness. But neither president was well-served by a Justice Department whose pardon office has become a place where petitions for presidential mercy go to die. If President Obama wants to make the most of his constitutional pardon power as an instrument of government, he will have to ensure that there is a strong and independent program for administering it, with a staff committed to the enterprise and the resources necessary to carry it out.

Download Margy Love's Bush Pardons Profile

Some recent related posts:

February 3, 2009 in Clemency and Pardons | Permalink | Comments (2) | TrackBack

The changed timing of executions

Triggered by the fact that Tennessee has an execution scheduled for the middle of the night, the AP has this new piece headlined "States shift away from holding midnight executions."  Here are a few snippets from an interesting article: 

Many states have adjusted their schedules in recent years, and the vast majority of U.S. executions now occur during daylight or early evening hours when courts are more accessible, according to an Associated Press review.  Of the 34 states where the death penalty has been carried out since 1976, 15 states still execute inmates in the middle of the night.

One of them is Tennessee, where double-murderer Steve Henley is to die by injection at 1 a.m. CST Wednesday at Riverbend prison in Nashville.  The late hour has some victims' advocates in the state upset.  "It's a very long, stressful day. It just puts you completely off any routine. It's exhausting and really not necessary," said Verna Wyatt, executive director of You Have the Power, a Nashville-based crime victim advocacy group that has asked Tennessee corrections officials to give up midnight executions.

Corrections officials in states that still schedule executions between midnight and 3 a.m. argue that inmates are less likely to protest or become violent.  The state also has more time to fight late challenges....  Those issues haven't greatly complicated daytime or evening executions, according to victims' advocates and states that prefer those times. "We know other states are not facing extreme difficulties doing it (earlier)," Wyatt said. "So why not make it easier for everyone?"

Four of the five states that have carried out the most executions — Texas, Virginia, Florida and Oklahoma — set afternoon or evening times, while Missouri is the only state to still schedule executions at midnight, the AP found.

Texas changed its execution time in 1995, moving it from midnight to 6 p.m. or later to ease the pressure on lawyers filing late appeals and the judges who must rule on them, said Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice.... Ohio quit midnight executions in 2001 partly to save thousands of dollars in overtime to prison workers.

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

February 2, 2009

"A Life Term for Rape at 13: Cruel and Unusual?"

The question in the title of this post is the headline of this latest piece by Adam Liptak in the New York Times.  The article is focused on this case of Joe Sullivan, whose cert petition I posted in this recent entry.  Here are excerpts from the Times article:

In 1989, someone raped a 72-year-old woman in Pensacola, Fla. Joe Sullivan was 13 at the time, and he admitted that he and two older friends had burglarized the woman’s home earlier that day. But he denied that he had returned to commit the rape....

The trial lasted a day and ended in conviction. Then Judge Nicholas Geeker, of the circuit court in Escambia County, sentenced Mr. Sullivan to life without the possibility of parole. “I’m going to send him away for as long as I can,” Judge Geeker said.

Mr. Sullivan is 33 now, and his lawyers have asked the United States Supreme Court to consider the question of whether the Eighth Amendment’s ban on cruel and unusual punishment extends to sentencing someone who was barely a teenager to die in prison for a crime that did not involve a killing.

People can argue about whether the punishment in Mr. Sullivan’s case is cruel. There is no question that it is unusual. According to court papers and a report from the Equal Justice Initiative, which now represents Mr. Sullivan, there are only eight people in the world who are serving sentences of life without parole for crimes they committed when they were 13. All are in the United States.

And there are only two people in that group whose crimes did not involve a killing. Both are in Florida, and both are black. Joe Sullivan is one; Ian Manuel, who is in for a 1990 robbery and attempted murder, is the other.

Some related posts on juve LWOP and the Sullivan case:

February 2, 2009 in Offender Characteristics | Permalink | Comments (27) | TrackBack

Eric Holder confirmed as Attorney General

This AP article has the news about the confirmation of the nation's new top cop:

Eric Holder won Senate confirmation Monday as the nation's first African-American attorney general, after supporters from both parties touted his dream resume and easily overcame Republican concerns over his commitment to fight terrorism and his willingness to back the right to keep and bear arms. The vote was 75-21.

Some posts on the Holder pick for Attorney General and related issues:

February 2, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (1) | TrackBack

Departure patterns as a guide to whether guidelines are balanced

GUIDELINES_graphic_COLOR_thumb This effective local article about judicial departure rates from Virginia's state sentencing guidelines provides a terrific reminder about what judicial decisions can tell us about balances (and imbalances) in an advisory sentencing system.  Here are some statistical snippets from the article:

According to the Virginia Criminal Sentencing Commission’s 2008 annual report, judges in the 16th Circuit sentenced criminals in felony cases within sentencing guidelines 76.9 percent of the time.  They strayed from sentencing guidelines for more serious consequences in 13.7 percent of 642 cases while opting for lighter sentences in 9.3 percent.

In fiscal 2007, 16th Circuit judges followed the guidelines for 80.6 percent of 568 total cases. The judges in the circuit ... chose more severe sentences 8.8 percent of the time and lighter sentences 10.6 percent of the time....

The most recent commission report also detailed statewide compliance to sentencing guidelines in certain crimes.  Judges across Virginia stuck to sentencing guidelines 63.4 percent of the time in 232 total homicide cases, choosing more serious sentences 21.6 percent of the time and less severe sentences 15.1 percent of the time. 

Morris said he wasn’t surprised that judges strayed from the guidelines more often in violent crimes.  “That is where judges are really considering punishment and removing the person from the community for a lengthy period of time,” Morris said.

Of the 551 sexual assault cases in fiscal 2008, 20.5 percent of sentences were higher than the guidelines suggested, while 13.2 percent were lower than the recommendation. However, 22.8 percent of 202 total rape cases had less severe sentences, while 8.9 percent of sentences were more severe. Officials explained that disparity might have to do with the number of charges that falls into the sexual assault category, potential factual issues in rape cases and certain factors, such as age, that can worsen the recommended sentences.

In fiscal 2008, judges stuck to the guidelines more often in fraud, high abuse-risk drug and larceny cases, with 84.5 percent, 83.3 percent and 82.8 percent in compliance, respectively.

These data (as well as those reflected in the chart reprinted here) showcase that Virginia state judges are, generally speaking, as likely to find a guideline-recommended sentence to be too lenient as too harsh.  In sharp contrast, in the federal system, sentencing judges are roughly 10 times more likely to sentence below the guidelines than above the guidelines.  (In drug trafficking case, this ratio goes even higher; judges conclude that the federal guideline range is too harsh roughly 20 times more often than they conclude the federal guideline range is too lenient.)

Though a perfectly equal amount of upward and downward departures does not necessarily shows that a guideline system is perfectly balanced, a departure pattern like what we see in Virginia seems much sounder than what we see in the federal system.  And, what is especially troubling is that, both before and after Booker, despite departure patterns suggesting the federal guidelines are already way too harsh, the vast majority of US Sentencing Commission guideline amendments call for making the guidelines even harsher.

February 2, 2009 in Advisory Sentencing Guidelines, Federal Sentencing Guidelines, State Sentencing Guidelines | Permalink | Comments (3) | TrackBack

Should all federal plea agreements be generally available on-line?

I just saw this fascinating article from The National Law Journal, headlined "Federal judge defies DOJ wishes, orders all plea agreements to be posted online."  Here is how it starts:

Chief Judge Federico Moreno of the Southern District of Florida, bucking the wishes of the U.S. Department of Justice, has ordered all plea agreements to be posted online.

In an order issued on Jan. 22, Moreno stated that as of Feb. 20, all plea agreements "will be public documents, with full remote access available to all members of the public and the bar, unless the Court has entered an order in advance directing the sealing or otherwise restricting a plea agreement." Moreno's order rescinds a previous order of April 2007 taking all plea agreements offline and making them accessible for physical viewing only at the courthouse.

The issue of whether plea agreements should be publicly available, able to be viewed electronically through the PACER system, is a controversial one, pitting prosecutors against defense lawyers and First Amendment advocates. In 2007, the Justice Department asked the Judicial Conference to restrict electronic access to plea and cooperation agreements in order to keep information about cooperating witnesses secret.

This is a dynamic and important issue that implicates a lot more interests and concerns than even DOJ and defense attorney often acknowledge.  A recent student note (discussed here) spoke to some of these issues, and also generated some terrific comments.  Perhaps readers will use the comments to this post to continue an on-line dialogue about on-line plea agreements.

Some related posts with related questions:

February 2, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (12) | TrackBack

California Supreme Court finds Cunningham retroactive to Blakely

Providing perhaps a fitting judicial celebration of Groundhog Day, the Supreme Court of California has decided today that the Supreme Court's ruling in Cunningham must be applied retroactively to state cases that become final on direct appeal between Blakely and Cunningham.   The unanimous decision in In re Sotero Gomez, S155425 (Cal. Feb. 2, 2009) (available here), starts this way:

This case presents the question whether Cunningham v. California (2007) 549 U.S. 270 (Cunningham) applies on collateral review of a judgment that became final before Cunningham was decided but after Blakely v. Washington (2004) 542 U.S. 296 (Blakely) was decided.  We conclude that Cunningham does apply in these circumstances, and reverse the contrary decision of the Court of Appeal.

February 2, 2009 in Cunningham coverage | Permalink | Comments (3) | TrackBack

Why I fear change will not come quickly to federal sentencing policy and practice

The headline of this new article in the New York Times, "Justice Dept. Under Obama Is Preparing for Doctrinal Shift in Policies of Bush Years," might make sentencing fans hopeful that change may be coming soon to federal sentencing policy and practice as new personnel and new philosophies take over the top positions at the Justice Department.  But, as these snippets highlight, issues other than traditional federal criminal justice enforcement top the new DOJ's agenda:

Eric H. Holder Jr., whom the Senate is expected to confirm on Monday as the nation’s 82nd attorney general, plans to take the oath of office that evening to demonstrate a quick start, which will include overseeing the creation of a new detention policy for terrorism suspects.

Mr. Holder will have to contend with that and other issues rapidly. Lawyers inside and outside the department say he will face crushing time constraints. Chief among them is a pledge by President Obama to close the detention facility at Guantánamo Bay, Cuba, within a year. Mr. Holder and a department task force must find a solution to the question of what to do with the remaining prisoners there and any apprehended in the future....

“I can’t imagine a more challenging time to come in as attorney general,” said Walter Dellinger, a legal scholar who was an acting solicitor general in the Clinton administration. “The number of legal issues left behind to be resolved is really staggering.”

In the Justice Department, there is considerable restiveness as employees await new direction. The civil rights division, which had been reshaped in a conservative direction under President George W. Bush, is ripe for sharp change, administration officials said. “Many of us cannot wait for the changes,” said one career lawyer in the division, who spoke on the condition of anonymity to describe the atmosphere.

As this article documents, the triage plan for change at DOJ starts with terrorism policies and then turns to civil rights issues.  And though I view many ugly aspects of federal criminal justice law and policy to be the most pressing of civil rights issues, I doubt that the new personnel making key decision in the Obama Administration are focused first and foremost on acquitted conduct enhancements or inconsistent application of mandatory minimum sentencing statutes.

In other words, with so much else to do under extraordinary conditions, I fear that the status quo of federal sentencing policy and practice will seem good enough for the time being even to the most change-oriented of the new DOJ decison-makers.  And, even if new DOJ appointees might be eager to change course on various federal criminal justice policies, I fear that advisors will formally assert or informally suggest that the Obama Administration ought not risk spending political capital on any potentially hot-button criminal justice reforms when so many other issues are vying for attention.

The fact that we have not seen any clemency action in the first two weeks of the Obama presidency (which, as noted here, puts him behind the historical pace of presidential pardoning) confirms my instinct that change will not come quickly to federal sentencing policy and practice.  Though this comes as no surprise, my deeper concern is whether change will come at all in this arene of justice.

Some recent related posts:

February 2, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (1) | TrackBack

"Michael Phelps, Hypocrisy, and American Drug Policy"

The title of this post is the title of this effective new commentary by John Santore at the Huffington Post.  The piece reflects some of my own reactions to the hub-bub over the news, detailed here at CNN, concerning the published picture of Olympic champion Michael Phelps smoking a marijuana pipe.  Here are two potent paragraphs from the commentary:

While marijuana laws have changed over time, and while past administrations have attempted to show that the situation isn't as dire as it appears to be, drug policy in the United States is immensely hypocritical and destructive.  Today, public figures justify past drug use as "youthful indiscretions" and the matter is dropped.  But huge numbers of ordinary Americans are introduced to the jail system because of minor drug offenses, and as the records show, the overwhelmingly disproportionate nature of drug arrests creates a justified perception of injustice and both economic and racial bias.

Will Michael Phelps have to go to court for his actions? No. (Nor should he have to.)  Will any law enforcement jurisdiction in America conduct a systematic raid of a college dorm at a prominent university with the goal of arresting everyone in possession of marijuana? Of course not.  If such an action was taken on a broad scale, the arrests would likely be in the thousands.  At the same time, will poor Americans, overwhelmingly minority in ethnicity, continue to be arrested by local police for the possession of small amounts of pot? Absolutely.

February 2, 2009 in Drug Offense Sentencing | Permalink | Comments (8) | TrackBack