February 14, 2009
Does the stimulus bill allow further prison growth in incarceration nation?
Over at TalkLeft in this effective post, Jeralyn identifies roughly $4 billion in the passed version of federal the stimulus bill which she calls "grants to law enforcement for lock em up programs." Though within the context of the the huge spending bill, $4 billion might not seem like a lot of money, but I think it amounts to more than 20 times the amount of money that Congress has spent on the re-entray programs related to the Second Chance Act.
Just another telling statistic for another notable day in incarceration nation.
A deadly month leading up to Friday the 13th and Valentine's Day
With executions in Texas and Alabama on Thursday (details here), which followed two other executions earlier in the week, the United States brought to a close one of the deadly months in the administration of capital punishment in recent history. As detailed in this DPIC list, a total of 13 murderers were executed in the month leading up to February's Friday the 13th and Valentine's Day. (This is a ghoulish way to note these holidays, but it accords with Hollywood's murderous approach.)
In part because many states seek to avoid setting executions during the end-of-year holiday period in November and December, it is quite common for late January and early February to be a period with a large number of executions. But anyone who is adamantly against the death penalty and also is a triskaidekaphobe must be really bumming these days.
Capturing the essence of the USSC's report on prison alternatives
As noted here, last week the US Sentencing Commission issued a new report providing an in-depth analysis of alternative sentences for federal offenders. The essence of that report is effectively discussed in this recent article by Marcia Coyle in The National Law Journal, which is headlined "New Report Shows Sharp Rise in Prison Time for Federal Offenders." Here are excerpts from the article:
The rate at which federal offenders are being sentenced to prison time has increased by 10 percentage points in the past 10 years — from 75.4 percent to 85.3 percent since fiscal year 1997 — while the use of alternative sentences, such as probation and probation with confinement, has decreased over the same period.
White, older citizens convicted of fraud, larceny or other white-collar crimes have a higher likelihood than other offenders of getting an alternative sentence, but they still are sentenced primarily to prison time, according to a new report by the U.S. Sentencing Commission....
The decline in the use of alternative sentences, according to the commission report, is largely due to noncitizen offenders who must be confined while awaiting deportation. In fiscal year 2007, more than one-third (37.4 percent) of offenders were noncitizens, the overwhelming majority of whom were illegal aliens. "The citizen/noncitizen issue is no small issue in terms of sentencing outcome," said Ryan King of the Sentencing Project. "If the offender is here illegally, the court is not going to release him."
Interesting reading on focused corrections and sentencing issues
Now available on SSRN are these two pieces that, though focused on relatively narrow issues, provide lots of food for sentencing thought:
- Do No Harm: An Analysis of the Legal and Social Consequences of Child Visitation Determinations for Incarcerated Perpetrators of Extreme Acts of Violence Against Women by Dana Harrington Conner
- Disputed Deductions: Delfino and the Fourth Circuit's Prudent Adoption of the Restrictive Approach to Tax Evasion Sentencing by Timothy J. Coley
February 13, 2009
Seventh Circuit reverses sentence based on insufficient evidence of "precrime" of attempted murder
The Seventh Circuit today in US v. England, No. 08-2440 (7th Cir. Feb. 13, 2009) (available here), suggests that we do not (yet) live in a Minority Report world in which special government agents can punish persons for crime they are predicted to commit. Specifically, the Seventh Circuit in England finds error in a district court's decision to increase a defendant's sentence significantly based on the "court’s belief that the defendant would have committed the crime" of attempted murder if given the opportunity to be free on bond. England, slip op. at 13. (emphasis in original).
The England opinion is fascinating for many reasons, and here is one particularly interesting passage discussing a sentencing judge's discretion (with some cites omitted):
We grant sentencing courts discretion to draw conclusions about the testimony given and evidence introduced at sentencing. Yet, this discretion is neither boundless nor is the information upon which a sentencing court may rely beyond due process limitations. To the contrary, we recognize that due process requires that sentencing determinations be based on reliable evidence, not speculation or unfounded allegations. United States v. Santiago, 495 F.3d 820, 824 (7th Cir. 2007); see also United States v. Berry, 2009 WL 22890, at *8 (3d Cir. Jan. 6, 2009) (“A defendant cannot be deprived of liberty based upon mere speculation.”). Indeed, the Supreme Court has long recognized that “[n]o individual or body of men has a discretionary or arbitrary power to commit any person to prison.” Hurtado v. California, 110 U.S. 516, 537 (1884). If the district court relied on unreliable or inaccurate information in making its sentencing decision, we return the case to the district court for a new sentencing hearing.
Interestingly (and somewhat disturbingly), though the Seventh Circuit reverses the sentence in this appeal, it hints that the real problem was just that the district court did not have enough evidentiary support for its conclusion that the defendant would have committed attempted murder. Consider how the England opinion ends:
[W]e respectfully — and with a degree of reluctance considering the district court’s diligence in attempting to arrive at the correct disposition in this matter — vacate England’s sentence and remand to the district court for resentencing....
In arriving at our decision, we want to underscore that we do not pass judgment on the reasonableness of the 210-month sentence imposed by the district court. As noted above, the able and experienced district court judge conducted a thorough and meaningful § 3553(a) analysis and the sentence that he imposed very well may be reasonable. The district court need not repeat this analysis at resentencing; it can adopt the § 3553(a) findings arrived at during the June 2, 2008 hearing. We only require that the district court make its sentencing determination without reliance on a finding that England would have attempted murder if out on bond unless further evidence is adduced which would justify such a conclusion.
So, by my reading, if the prosecution can come forward with more evidence to support the claim that the defendant here would have committed attempted murder, the Seventh Circuit would be fine with the sentence imposed. Perhaps some of those weird psychic precogs can come testify at the next sentencing hearing against the defendant to make sure he does not get away with his "precrime" of attempted murder.
Written testimony from US Sentencing Commission hearing in Atlanta now on-line
I am pleased to see that the US Sentencing Commission has now posted a lot of the written testimony that was submitted in conjunction with the USSC's first (of many?) regional hearings about the federal sentencing system (background here and here). All of the testimony available on-line can be found through this link, and all of the testimony I have reviewed looks amazing and quite insightful.
Some related recent posts:
- On-the-scene report on the US Sentencing Commission regional hearings in Atlanta
- US Sentencing Commission's regional hearings to start next week
- Gearing up for US Sentencing Commission's regional hearing in Atlanta
- How a new administration is likely to impact federal sentencing practice
- 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?
State judges plead guilty to sending juves to jail for moolah
A number of readers have sent me various links to an incredible story from Pennsylvania. The New York Times coverage in this article is headlined "Judges Plead Guilty in Scheme to Jail Youths for Profit"; a local paper has this article headlined "Pa. judges accused of jailing kids for cash." Here is the basic story from the NYTimes:
Mark A. Ciavarella Jr., and a colleague, Michael T. Conahan, appeared in federal court in Scranton, Pa., to plead guilty to wire fraud and income tax fraud for taking more than $2.6 million in kickbacks to send teenagers to two privately run youth detention centers run by PA Child Care and a sister company, Western PA Child Care.
While prosecutors say that Judge Conahan, 56, secured contracts for the two centers to house juvenile offenders, Judge Ciavarella, 58, was the one who carried out the sentencing to keep the centers filled.
“In my entire career, I’ve never heard of anything remotely approaching this,” said Senior Judge Arthur E. Grim, who was appointed by the State Supreme Court this week to determine what should be done with the estimated 5,000 juveniles who have been sentenced by Judge Ciavarella since the scheme started in 2003. Many of them were first-time offenders and some remain in detention....
If the court agrees to the plea agreement, both judges will serve 87 months in federal prison and resign from the bench and bar. They are expected to be sentenced in the next several months. Lawyers for both men declined to comment.
Though I do not know the particulars of the plea agreement or all the facts surrounding the defendants' crimes, I think both offenders should consider themselves very lucky that federal prosecutors were willing to agree to a sentence of only about seven years of imprisonment. Based on the apparent nature and scope and consequences of the judges' crimes here, I certainly could make a strong argument based in the 3553(a) factors that these defendants should be serving a MUCH longer sentence than the average low-level drug dealer or downloader of child porn.
This case, in my view, presents a particularly interesting set of issues with respect to the federal Crime Victims Rights Act. I think all of the 5,000 juveniles sentenced by Judge Ciavarella (and perhaps also their parents) could reasonably seek to assert rights under the CVRA. I wonder how many will seek to address the district court at sentencing.
February 12, 2009
Notable new scholarship on therapeutic jurisprudence
I just noticed via SSRN this interesting new paper from David Wexler, titled "Therapeutic Jurisprudence, Legal Landscapes, and Form Reform: The Case of Diversion." Here is the abstract:
This essay, prepared for a therapeutic jurisprudence workshop at the Florida Coastal Law School, will be published in the Therapeutic Jurisprudence Review of the Florida Coastal Law Review. It discusses several therapeutic and antitherapeutic legal landscapes operative in diversion, sentencing, and corrections, such as sentence credit for presentence confinement, the relevance of post-offense and post-sentence rehabilitation on sentence imposition, and the absence of motivational power in the federal mechanism of supervised release. Finally, it discusses in detail the federal diversion program, and the pretrial diversion form and related procedures as detailed in the US Attorneys Manual. The essay concludes by conceptualizing the Manual as part of the federal "legal landscape" of interest to the field of therapeutic jurisprudence, and suggests "form reform" as an important new direction of scholarship.
Notable sentencing news from Ohio
My home state is lately full of sentencing news, and here are two afternoon headlines providing signs of the sentencing times:
- From the Cleveland Plain Dealer here, "Death Row inmate Jeffrey Hill's sentence commuted by Gov. Strickland"
- From the AP here, "Ohio prisons chief urges sentencing changes before inmate population soars"
What does Prez Obama's pick for drug czar suggest for possible drug policy reform?
As detailed in this Seattle Times article, "Seattle Police Chief Gil Kerlikowske has accepted a job as the nation's drug czar in the Obama administration, according to a source in Washington, D.C., who is familiar with the administration's plans." This Seattle Post Intelligencer article, which is headlined "Kerlikowske seen as a progressive," suggests advocates for drug policy reform are relatively pleased with the decision:
Many people, including those traditionally at odds with government policies, were "cautiously optimistic" about Kerlikowske, who became police chief in 2000.
"He's likely to be the best drug czar we've seen, but that's not saying much," said Ethan Nadelmann, executive director of the Drug Policy Alliance, a national nonprofit group focused on changing drug policies.
Nadelmann called Kerlikowske, 59, a "blank slate" because of his notable absence in drug-policy debates. But he was encouraged by the chief's ability to thrive in a city famous for its drug courts, needle exchanges, methadone vans and annual Hempfest celebration. "At least we know that when we talk about needle exchanges and decriminalizing marijuana arrests, it's not going to be the first time he's heard about them," he said.
Over at TalkLeft, Jeralyn in this post quotes some other reactions to the pick and expresses some faint praise.
Some recent related posts:
- Should we be worried or hopeful about the Obama Administration and the drug war?
- Terrific commentary and assessment of the war on drugs
- Interesting reflections on Obama appointees from drug policy reformers
- Will any Prez candidate promise to get us out of a failed war ... on drugs?
- The state of cost problems in the states of prison nation
- "Real commander needed for the war on drugs"
- "America's Forgotten War"
- What might 2009 have in store for . . . drug sentencing law and policy?
Another notable story of paralysis and prosecution for child porn
Regular readers may recall this post from December discussing a remarkable case from Buffalo in which federal prosecutors decided not to press charges against a quadriplegic who downloaded a lot of child porn. Now this local story from Alabama, headlined "Judge delays sentencing in porn case involving paralyzed man," suggests that we may need to develop a jurisprudence of paralysis and porn. Here are a few details from the article:
[A] federal judge in Mobile on Wednesday said she needs more information from prison officials before sentencing the man, who admitted to secretly videotaping young girls who used his bathroom. Under advisory sentencing guidelines, Robert Vezendy faces at least 14 years in prison on the charge he pleaded guilty to: receipt of child pornography.
But defense lawyer Dennis Knizley contended that anything longer than the five-year statutory minimum would be a "death sentence" for a 43-year-old man who has been paralyzed since an accident that occurred when he was 17....
Vezendy, seated in a wheelchair before the judge, apologized for downloading the child porn and making the secret videos. He said he never would have harmed the children, but offered little explanation for his conduct. "There's really no good reason why I made them," he said. "I have a lot of regret. I was just curious."
A doctor testified that Vezendy has no movement from about the middle of his back down. She said he has limited use of his hands and arms and can perform basic tasks, such as writing and eating, only with the assistance of special splints on his arms....
Susan Wardell, a mitigation and alternative sentencing specialist from Atlanta, testified that imprisoning Vezendy would be costly for the government as well as the defendant. She said her inquiries to prison officials revealed that Vezendy would not be allowed to have his splints, which would render him virtually helpless.
Wardell said prison authorities also told her they do not have trained medical personnel who would be able to take care of him around the clock. Instead, she said, the responsibility would fall to fellow inmates. "It's cruel and unusual punishment," she said.
UPDATE: Over at The Faculty Lounge here, Dan Filler has a number of interesting comments about these paralysis and porn cases.
Fascinating pitch for serious SCOTUS reforms
Marcia Coyle has this fascinating new piece in The National Law Journal, headlined "Law Profs, Former Judges, Attorneys Urge Major Reforms for Supreme Court." Here is how it starts:
A group of 33 law professors, former state supreme court justices and practitioners are urging the attorney general and the heads of the Senate and House judiciary committees to consider four changes in the operation of the U.S. Supreme Court, including regular appointment of justices and the involvement of appellate judges in the selection of cases to be decided on the merits.
The group sent the proposals in draft legislative form and noted that all of its members do not support all of the proposals, but are "unanimous" that it is time for Congress to reconsider the law applicable to the Supreme Court, "a subject it appears not to have seriously considered for at least 70 years."
The proposals grew out conversations among the group's members over a period of years, said professor Paul Carrington of Duke Law School. Although the members are not unanimous on all four proposals, Carrington added, "All of them have one background thought -- the Supreme Court has gotten a little too big for its britches and it would be good for Congress to enact a law or two that says, 'You're part of an enterprise that we have some power over.' "
February 11, 2009
On-the-scene report on the US Sentencing Commission regional hearings in Atlanta
Professor Ronald Wright, who testified Wednesday during the second day of the US Sentencing Commission's regional hearings in Atlanta (background here and here), was kind enough to send along this terrific on-the-scene report of his experiences:
I could not attend the first day of the hearings, which had a full and interesting agenda. The Day One sessions involved appellate judges, probation officers, defense attorneys, and state and local law enforcement. Based on my quick perusal of the written comments from Day One (all available at a welcoming table out front), I can especially recommend pages 7-11 from the comments of Greg Forest, the Chief U.S. Probations Officer from the Western District of NC.
The first panel on Day Two was devoted to four federal trial judges: Chief Judge Bob Conrad (WD NC), Judge Gregory Presnell (MD FL), Chief Judge Robert Hinkle (ND FL), and Chief Judge William Moore (SD GA). On the whole, the judges seemed satisfied with the basic structure of the guidelines in the post-Booker world. They all expressed concerns about some particular provisions that were still creating injustices in particular cases (the child pornography guidelines were mentioned several times), and of course all four judges were critics of mandatory minimum statutes. Chief Judge Conrad made an eloquent plea for a less active Commission: invoking an image used by Chief Justice Roberts in Sears, he believes that the Commission should stop pulling the plant out of the ground so often to see if the roots are healthy. The courts need time to sort out so many recent developments.
The Commissioners were all engaged and seemed quite interested in the views of the sentencing judges (just as they should be!). The room itself was deadly: 180 seats, occupied by a crowd ranging between 12 and 16 people, not counting the 5 staffers and 2 sound engineers in the room. The speakers were certainly not feeding off the energy from the crowd.
I appeared on the second panel, devoted to the views of academics. Rod Engen (NC State, Criminology) talked about the need to advocate for smaller prison populations and to collect prosecutor data; Gordon Bazemore (Florida Atlantic, Criminology) talked about restorative justice. I suggested that the commission should radically de-emphasize its efforts to control judicial discretion and should re-fashion its role as a source of study and information about sentencing practices, both federal and state. I argued, based on state experience, that judges will reach a natural equilibrium of compliance with guidelines, regardless of the details of the guidelines or the precise standards of appellate review.
The Commissioners were polite, and asked some very smart follow-up questions. Still, I don’t think the academic panel spoke to the current mind-set of the Commission. For reasons that I can certainly understand, the Commissioners seemed more engaged with the judicial suggestions about concrete system improvements than the more removed and less practical agendas of the academics.
So there’s one view of the hotel ballroom for you.
Lots of mixed messages from the latest death penalty headlines
A scan of newspaper headlines this week provides lots of different messages about the status of the death penalty in the United States these days. When in comes to executions, as these stories show, the death penalty seems quite "in" at least in some states:
- Texas executes man tied to 'bathtub slayings'
- Florida executes rapist who strangled Tampa girl
- Alabama AG Opposes Delaying Bradley Execution
- Houston killer set to be executed on Thursday
But when it comes to legislative reforms, as these stories show, the the death penalty seems quite "out" in some other states:
- Senate panel advances bill to abolish death penalty (from Montana)
- Legislator works to repeal state's death penalty (from New Hampshire)
- Proposal to abolish the death penalty draws almost no opposition (from Washington)
UPDATE: The DPIC has this little item noting all the legislative activity afoot in the arena of capital punishment:
Several states have recently introduced legislation to abolish or limit the death penalty. Bills to end capital punishment have been introduced in at least eight states: Nebraska, Colorado, New Mexico, Montana, New Hampshire, Maryland, Washington, and Kansas. For some of these states, the high costs of the death penalty has been an important factor in the legislative debates. For example, Colorado’s bill to abolish the death penalty specifies that the money saved from not pursuing executions could be used for solving cold cases.
Other states, such as Virginia and Georgia, have proposed legislation that would expand the use of capital punishment.
One notable economist's reaction to the California prison litigation
In this column, famed economist Steven Levitt has these fascinating responses about the recent federal court "tentative opinion" calling for a massive reduction of California's prison population:
[A] prisoner’s rights group won a preliminary decision against the state of California’s prison system. Consistent with my earlier [research], the lawsuit already seems to have had some impact on California’s prison population. For instance, in 2007 California’s prison population shrunk by about 1 percent, whereas the overall U.S. prison population grew by nearly 2 percent. It will take a few years before a final court decision is handed down, but the likely outcome is that five or six years from now there will be 25,000 fewer inmates than there otherwise would have been.
What does this mean for crime? If my estimates are correct, ultimately violent crime will be roughly 6 percent higher in California than it would have been absent the lawsuit. That is roughly 150 extra homicides a year, 500 additional rapes, and 4,500 more robberies.
While those crime numbers sound bad, according to my estimates, letting out the prisoners is more or less a wash from a societal cost-benefit perspective. The money we save from freeing the prisoners is on the same order of magnitude as the pain and suffering associated with the extra crime.
I do have one very specific policy recommendation to the state of California. If they do a mass release of prisoners, it should be done with strings attached. Namely, if the released prisoner gets convicted of a crime again in the future, his sentence the next time around should be whatever it normally would be plus all of the time that he should have served on his current sentence that gets cut short because of the early release.
This rule would strengthen the incentives for the ex-cons to stay straight. Italy enforced such a policy after a mass release, and it appears to have been quite effective.
Some related prior posts:
- "Judges indicate they may order prison population reduced by 58,000"
- Next stop SCOTUS (or settlement) for California prison litigation?
Sixth Circuit panel reinstates federal death sentence
This afternoon, I begin the death penalty unit in my sentencing class, and the Sixth Circuit this morning has provided me with a new case to discuss. In US v. Lawrence, No. 06-4105 (6th Cir. Feb. 11, 2009) (available here), the panel reverses a district judge's determination that a federal death sentence could not stand. Here is the start of the Sixth Circuit's opinion:
Defendant Daryl Lawrence was convicted of armed bank robbery, attempted armed bank robbery, murder, and firearms charges. Two of the counts, Counts Seven and Eight, charged death-eligible offenses. The jury returned a verdict of life imprisonment on Count Seven and a verdict of death on Count Eight. Ruling on defendant’s motion for new trial, the district court held that the jury’s verdicts on Counts Seven and Eight were inconsistent. The court vacated the verdict of death on Count Eight and ordered a new sentencing hearing. The government appeals, contending the verdicts are not inconsistent. Lawrence has moved for dismissal of the government’s appeal as premature.
For the reasons that follow, we deny Lawrence’s motion to dismiss the government’s appeal, vacate the district court’s order partially granting the motion for new trial, and thereby reinstate the sentence of death originally imposed by the district court on Count Eight.
Because few death sentences get resolved without lots and lots of litigation, I can safely predict that there will be en banc debate and cert petitions in the future of this case.
Notable due process ruling from Massachusetts high court about detaining dangerous juves
Thanks to this post at How Appealing, I discovered yesterday's notable due process ruling coming from the Supreme Judicial Court of Massachusetts. This article from the Boston Globe provides a useful summary of the ruling:
The highest court in Massachusetts struck down a law yesterday that allows the state to keep juvenile offenders who are slated to be released at 18 in custody for three more years if they are believed to be dangerous....
In yesterday's decision, [the court] wrote that the court warned the Legislature in 2004 that it had "grave concerns" about the constitutionality of the statute because of its failure to adequately define dangerousness, and "invited it to correct the deficiencies." However, the Legislature did not change the law.
The court found that the current law has "potential for abuse of unlimited discretion." The DYS first makes a determination of dangerousness and then submits its recommendation to civil court, where a judge or jury ultimately decides whether the teenager should remain in custody.
Though limited to a specific factual setting, the court's expressed concerns about vagueness and limited procedural protections in the assessment of "dangerousness" could have implications in lots of other settings. And, importantly, the court here made clear that its ruling was that the state "statute violates substantive due process" under the 14th Amendment. Anyone concerned with the very concept of "substantive due process" may be concerned with the implications of how this court justified its holding.
The persistent problems with fast-track disparity after Booker and Kimbrough
One (of many) persistent post-Booker jurisprudence hot-spots concerns whether defendants who are not within so-called "fast-track" districts should be eligible for comparable early plea reductions when their cases are factually similar to those who get the benefit of such reductions in "fast-track" districts. Before Kimbrough, the circuits had generally ruled that district court's lack discretion to provide such reductions without the blessing of the government. After Kimbrough, this issue has divided the circuits.
As evidenced by a recent district court opinion sent my way be a helpful reader, at least one district judge seems eager to have this issue reviewed with greater focus in light of current jurisprudential and fast-track realities. The opinion in US v. Sanchez-Gonzalez, No. 08 CR 609 (N.D. Ill. Feb. 9, 2009) (available for download below), concludes this way:
Galicia-Cardenas and Martinez-Martinez are, of course, binding on this Court. Mr. Sanchez-Gonzalez argues, however, that the Supreme Court’s intervening decision in Kimbrough v. United States, 128 S. Ct. 558 (2007), permits the Court, despite the Seventh Circuit’s decisions, to consider fast-track disparities as unwarranted within the meaning of section 3553(a)(6). The Court disagrees. The Supreme Court concluded in Kimbrough that a district court may base an outside-the-Guidelines sentence on its disagreement with the Sentencing Commission’s policy decisions. The Court did not conclude, however, that a district court may base its sentence on its disagreement with Congressional directives. Indeed, the Court took some pains in Kimbrough to point out that the policy decision at issue there – the Sentencing Commission’s adoption, in the Guidelines for narcotics cases, of a 100-to-1 ratio treating every gram of crack cocaine as the equivalent of 100 grams of powder cocaine – was not the result of an express legislative directive, id. at 570-71, or even an implied legislative directive, id. at 572-73.
This Court continues to believe, as a matter of policy, that it is unjust to permit sentencing disparities based on the fortuity of the judicial district in which a defendant in an illegal reentry case is charged. And one can legitimately take issue with the proposition that all fast-track reductions in illegal reentry cases are the product of Congress’ policy statement in the PROTECT Act and the companion legislative report cited by the Seventh Circuit. As this Court pointed out in Medrano-Duran, and as reemphasized by the data defense counsel have submitted in the present case, a number of so-called fast-track reduction programs operate outside the bounds of Congress’ directive to the Sentencing Commission and Sentencing Guideline § 5K3.1. See Medrano-Duran, 386 F. Supp. 2d at 946-47. That was part of the basis for this Court’s determination in Medrano-Duran that it was appropriate to consider such disparities in determining whether to impose a below-Guidelines sentence.
One might also legitimately argue that nothing in the PROTECT Act nor the legislative report cited in Martinez-Martinez amounts to express or implied legislative disapproval of deviation from the Sentencing Guidelines based on inter-district disparities resulting from the Department of Justice’s determination to adopt fast-track programs in some districts but not others. See United States v. Rodriguez, 527 F.3d 221, 229 (1st Cir. 2008). But the Seventh Circuit has taken a different course, and until it or the Supreme Court concludes otherwise, the choice is not one this Court is permitted to make.
For these reasons, the Court concludes that it is not permitted to consider, in imposing sentence in this case, the fact that a fast-track or early disposition program is not available in this District.
"Deregulating Guilt: The Information Culture of the Criminal System"
The title of this post is the title of this interesting new paper from the always interesting Professor Alexandra Natapoff. Here is the abstract:
The criminal system has an uneasy relationship with information. On the one hand, the criminal process is centrally defined by stringent evidentiary and information rules and a commitment to public transparency. On the other, largely due to the dominance of plea bargaining, criminal liability is determined by all sorts of unregulated, non-public information that never pass through the quality control of evidentiary, discovery, or other criminal procedure restrictions. The result is a process that generates determinations of liability that are often unmoored from systemic information constraints. This phenomenon is exemplified, and intensified, by the widespread use of criminal informants, or "snitching," in which the government trades guilt for information, largely outside the purview of rule-based constraints, judicial review, or public scrutiny. With a special focus on the Supreme Court's decision in United States v. Ruiz, this Article explores the criminal system's putative stance towards the proper use of information in generating convictions, in contrast with actual information practices that undermine some of the system's foundational commitments to accuracy, fairness, and transparency. It concludes that the evolution of this deregulated information culture is altering the functional meaning of criminal guilt.
More ugliness revealed in prosecution of former Senator Ted Stevens
This New York Times article provides more fascinating details concerning more of the ugliness surrounding the federal prosecution of former Alaska Senator Ted Stevens:
An F.B.I. agent who worked on the investigation of Senator Ted Stevens of Alaska, who was convicted on ethics charges, has said in a stunning formal complaint that a fellow agent and prosecutors contrived to improperly conceal evidence from the court and the defense.
Among the startling accusations in the statement by the agent, Chad Joy, is that another agent maintained an inappropriate relationship with the prosecution’s star witness. Mr. Joy said his colleague, Mary Beth Kepner, almost always wore pants but on the day the witness, Bill Allen, took the stand, Ms. Kepner donned a skirt, which Mr. Joy said she described as “a present” to Mr. Allen....
Judge Emmet G. Sullivan, who presided over the Stevens trial in Federal District Court here, has called a hearing Friday to consider a request by Mr. Stevens’s lawyers for a new trial based on Mr. Joy’s complaint.
If this is what goes on even in a high-profile case when everyone knows their actions are likely to be scrutinized, imagine what might possibly take place in the thousands of other cases involving less prominent and powerful defendants. I now remain truly sorry that Stevens lost his re-election bid because this experience might have turned him into a prominent critic of excessive prosecutorial power and a crusader for criminal defendants' rights.
Some related posts:
- Senator Stevens convicted on all counts
- Some sentencing questions after Senator Stevens conviction
- How should (and will) Senator Stevens' political past and future impact his sentencing?
- Prosecutorial misconduct or just standard operating procedures in Senator Stevens' prosecution?
- Plot thickens in allegations of prosecutorial misconduct in Senator Stevens' case
- A sentencing approach to dealing with prosecutorial misconduct
- District Court embraces a sentencing approach to dealing with prosecutorial misconduct (and highlights the impact of effective scholarship)