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February 28, 2009

Great reading around the blogosphere

Lots of interesting reading around the criminal justice blogosphere this weekend:

February 28, 2009 | Permalink | Comments (3) | TrackBack

Lots of big (though really little) congressional sentencing activity

Thanks to a series of entries by the folks at The Sentencing Project, I can review lots of recent and upcoming congressional sentencing news through a few links to its website:

All of this news is welcome and notable, but all if it has the feel to me of a few good efforts to empty an ocean of federal criminal justice problems with a bucket.  Here's why:

1.  A "crime summit" dedicated to exploring "smart on crime" proposals is surely welcome (and this formal announcement details all the great speakers).  But, especially with the national mood all about cost-effective new programs, it is high time for less talk and more action on serious federal criminal justice reform.  I hope that the summit includes serious discussion of the need to demand President Obama and AG Holder to make criminal justice reform a real institutional priority.

2.  Last time I checked, the US Constitution still required equal protection under the law, which makes me wonder if the "Justice Integrity Act of 2009" (more details here from the Brennan Center) should really be a top priority for criminal justice reformer.  And the particulars of the Act seem to ensure more government bureaucracy to produce more government reports to confirm problems already evident from reports already produced by the US Sentencing Commission and other government agencies.

3.  Though federal reentry monies are always useful, this $133 million appropriation constitutes less than .05% of the monies committed through the recent stimulus bill.  Even though reentry initiatives are likely good for the economy are likely to result in long-term criminal justice expenditure savings, a lot more money could and should be invested reentry programming at the federal level.

February 28, 2009 in Who Sentences? | Permalink | Comments (0) | TrackBack

The latest chapter in the amazing sentencing story of Patrick Lett

Regular readers may recall the amazing sentencing story of my client Patrick Lett.  This local press account reports on the latest amazing news in his amazing case:

Patrick Lett walked out of a federal courtroom in Mobile Friday as a free man.  Considering the twists and turns that his case has taken over the last 3.5 years, that was no small event.

The Army veteran from Pascagoula watched in April 2006 as U.S. District Judge William Steele handed down a five-year prison sentence.  Within days of the hearing, Steele entered a judgment amending the sentence to the 11 days Lett had spent in jail, trying to correct what the judge, himself, now calls a mistake.

But the U.S. Attorney's Office in Mobile appealed, and the Atlanta-based 11th U.S. Circuit Court of Appeals ruled that Steele could not change his mind.  That sent the case back to Mobile, where it appeared all but certain that Lett would be sentenced to prison for five years.

But Steele on Friday agreed with the defense that a decision by the U.S. Sentencing Commission to change advisory guidelines for certain crack cocaine offenders gave him newfound discretion to reduce the five-year prison term. Steele sentenced Lett to time served — the sentence that the judge felt that Lett deserved all along....

Steven Butler, the chief of the appellate division for the prosecutors' office in Mobile, objected that the short sentence was "procedurally and substantively unreasonable" and argued that the judge exceeded his authority. Prosecutors could take the case back to the appeals court, although Butler on Friday gave no indication of his next move.

Lett, 40, is a veteran of both the first Gulf War and the current Iraq war. He left the Army in 2004 when he began selling crack cocaine in Monroe County for his cousin, Michael Lett.  After about five weeks that fall, Patrick Lett quit peddling drugs and rejoined the Army.  He was back in uniform by the time a federal grand jury indicted him.

Steele said he was impressed by Lett's military service, the testimony of his fellow soldiers and his reform, which was unprompted by an encounter with the criminal justice system.  The judge said he sees many a defendant who tells him he has repented and changed his ways.  "But the difference between them and Mr. Lett is that all of them repented after they had been caught," he said.

Though I have been proud to have a chance to represent Patrick Lett in various appellate proceedigns, both Patrick and I were especially lucky to have the pro bono help of former Ohio State Solicitor Douglas Cole (who is now at Jones Day).  Doug Cole deserves more credit than me for helping to secure this outcome for Patrick.

Some related posts on the Lett case:

February 28, 2009 | Permalink | Comments (10) | TrackBack

NY Times editorial notes Second Amendment silence in Hayes

While praising the Supreme Court's work in Hayes week, this New York Times editorial highlights the fact that the Second Amendment dog did not bark at all in the first SCOTUS gun control ruling since Heller:

The Supreme Court brushed past flimsy arguments by the gun lobby this week to uphold an important restriction on gun ownership that protects public safety.

The 7-to-2 decision upheld a broad reading of a 1996 federal law written by Senator Frank Lautenberg, Democrat of New Jersey, that bars people convicted of crimes involving domestic violence from owning guns.  A narrow interpretation of the law, excluding domestic abusers convicted of a generic charge of battery, would have rearmed thousands of dangerous people.

The ruling was the court’s first on guns since last year’s landmark decision striking down the District of Columbia’s ban on possessing handguns in the home.  It was an encouraging sign that the court sees no blanket constitutional barrier to common-sense regulation of firearms. It is notable that not even the two dissenters in the case — Chief Justice John Roberts and Justice Antonin Scalia — asserted that depriving domestic abusers of guns raises a Second Amendment issue.

It is worth noticing that this Times editorial goes out of it way to avoid mentioning that the persons being convicted under the law at issue in Hayes were guilty of only committing a misdemeanor.  Perhaps there were thousands of dangerous misdemeanants that were just waiting to go on shooting sprees if Hayes came out differently, but this kind of talk about dangerousness reminds me of some of the rhetoric often used by the "tough-on-crime" types eager to resist efforts to reduce extreme sentence.

Other recent posts on the Hayes decision:

February 28, 2009 in Second Amendment issues | Permalink | Comments (2) | TrackBack

February 27, 2009

Efforts to kill death penalty in Maryland appear to be dying

The latest news out of Maryland would seem to suggest that the Governor's efforts to kill the state's death penalty are proving not so potent.  Here are details from the Baltimore Sun in this blog entry headlined "Death penalty debate could end with fizzle":

Today, the Senate Judicial Proceedings Committee rejected a bill that would repeal the death penalty. Like two years ago, the effort failed on a 5-5 tie vote (a majority is needed for passage).

For most legislation, that would be the end of the story. But not this bill. Not this year. Gov. Martin O’Malley has said he would do “everything in my power” to end capital punishment in Maryland this year. He’s calling for a full vote in the Senate, and Senate President Thomas V. Mike Miller says that will happen – as soon as next week....

“This is a bill of some importance,” Miller, a death penalty supporter, said this morning before the committee action. “A bill that the public reads about and expects their legislators to take a stand.”  Miller supports the death penalty. And no one knows the thinking of the other 46 members of the Senate better than him.  “I don’t anticipate a long, protracted debate,” Miller said yesterday. “I think I know where the votes will be.” 

That sounds like the Great Death Penalty Debate of ’09 could end wth a fizzle. A Baltimore Sun survey of senators showed that majority want to keep capital punishment.  So after next week the Assembly could put the death penalty behind it for another year, and get back to talking about just how bad the state budget is.

February 27, 2009 in Death Penalty Reforms | Permalink | Comments (4) | TrackBack

Alaska Supreme Court rejects Blakely retroactivity claim

Thanks to a helpful reader, I learned that the Alaska Supreme Court today issued a big ruling reversing a lower court determination that Blakely should be given retroactive application.  Here is how the opinion in Alaska v. Smart, No. S-12493 (Ak. Feb. 27, 2009) (available here) gets started:

The question presented in these two cases is whether the right to a jury trial announced in Blakely v. Washington should be retroactively applied to two state defendants, Troy Smart and Henry Douglas, whose sentences were final before June 24, 2004, when Blakely was decided.  Blakely requires that any fact — except a fact admitted by the defendant or the fact of a prior conviction — necessary to increase a sentence above the statutory presumptive maximum be proved to a jury beyond a reasonable doubt.  We decline to give Blakely full retroactivity.  We conclude that the purpose of Blakely does not raise serious questions about the accuracy of past sentences and must be weighed against the state’s reliance on the old rule for over twenty years and the administrative burden of implementing the new rule retroactively.  We therefore reverse the rulings of the court of appeals in these two cases and remand.

February 27, 2009 in Apprendi / Blakely Retroactivity , Blakely in the States, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Notable legislative response to Hayes in Wyoming

Though I have been troubled by the lack of a robust public dialogue about gun rights in the wake of the Supreme Court's ruling in in the Hayes case, I am intrigued to see a legislative response in Wyoming.  This local story provides the details:

Wyoming residents accused or convicted of domestic violence may find it easier to regain their federal gun rights thanks to recent action by the state Legislature.

"For those that want their guns back, it's good," Suzan Pauling, public policy director of the Wyoming Coalition Against Domestic Violence and Sexual Assault, said of the changes to Wyoming law. "I think for domestic violence victims, it's not very good."

Congress in 1996 expanded the law that bans convicted felons from owning guns to apply to people convicted of misdemeanor domestic violence. Wyoming, where hunting and gun ownership are cherished ways of life, has been trying to find a way around the domestic violence provision for years. "Judges in the state seem to be hesitant to take away gun rights because it's such a huge thing in Wyoming," Pauling said. "Having your gun in Wyoming is kind of like being a Wyomingite."

Gov. Dave Freudenthal on Thursday signed House Bill 106.  It will allow Wyoming residents who have been convicted of domestic violence to apply to the court to expunge their record and regain their gun rights.

It requires them to wait at least five years following the conviction before they apply to court and limits them to one expungement. Freudenthal said he's comfortable that judges will be able to review people's conduct for five years after a conviction before considering their expungement requests. "I think that gives you a pretty good chance to look at it, and evaluate their conduct," he said Thursday.

As the story suggests, this legislation was obviously in the works before this week's Hayes ruling.  But I suspect the Hayes case may have help move the legislative process along in some way.

Other recent posts on the Hayes decision:

February 27, 2009 in Second Amendment issues | Permalink | Comments (6) | TrackBack

An effort to address juve LWOP in California

This local story from California, headlined "Senator takes aim at juvenile prison terms," provides encouraging news about an effort to address one type of extreme sentence:

Juveniles convicted of crimes should still risk being sentenced to life in prison without parole but have their terms reviewed after 10 years for possible re-sentencing, according to the San Francisco state senator who is taking a second stab at decreasing the number of minor convicts without hope of freedom.

Sen. Leland Yee, D-San Francisco/San Mateo, introduced Senate Bill 399 which, if passed, would not offer the complete overhaul he suggested last year but tweak current law so those convicted under age 18 have a second shot at release from custody.

“Children have a greater capacity for rehabilitation than adults,” said Yee. “The neuroscience is clear; brain maturation continues well through adolescence and thus impulse control, planning and critical thinking skills are still not yet fully developed.”...

Approximately 200 juveniles in the state are currently serving life without a parole — the alternative to capital punishment for first-degree murder and special circumstances, according to Yee.  In comparison, only 12 juveniles in the world outside of the United States are serving the term, he said.

Though I am not sure about the numbers set forth in this final paragraph, it is certainly accurate that America's affinity for juve LWOP puts us far out of the international mainstream a lot more than America's affinity for capital punishment.  And yet, precious few politicians and public policy advocates are vocal and persistent critics of this kind of extreme sentencing, even through there are plenty of politicians and public policy advocates who are are vocal and persistent critics of the death penalty.

Some related posts on juve LWOP:

February 27, 2009 in Scope of Imprisonment | Permalink | Comments (10) | TrackBack

Latest notable news surrounding former judge (now felon) Sam Kent

Thanks to Mary Flood at the Houston Chronicle, there is lots of good reporting on all the latest developments in the wake of the felony plea entered earlier this week by now-former federal district judge Samuel Kent (basics here).  Here are the headlines and links:

The second of these stories provides an early preview of what will become chief topics of interest in Kent's sentencing proceedings this spring:

Judge Samuel Kent is a psychologically broken man who served well on the bench for 18 years and deserves mercy and his pension, his lawyer said Thursday.

In the first interview he gave on the Kent case since a gag order was imposed last fall, Kent’s lawyer Dick DeGuerin told the Houston Chronicle that he would not discuss the particulars of the case but he would talk about the plight of his client. “The truth is he’s been a walking basket case for several years,” DeGuerin said. “He’s not the same man since his wife, Mary Ann, died a long and tragic death.  He probably should have taken off a year and gotten psychological help.”  Kent’s first wife of more than 30 years had a brain tumor and died in 2000.

DeGuerin, able to discuss the case because the gag order was lifted Thursday, said Kent threw himself into his work. “Any conduct he’s accused of in this case happened since then,” said DeGuerin.

Kent pleaded guilty Monday to obstruction of justice for lying to a judicial committee investigating an allegation he sexually harassed an employee. Kent also acknowledged that he’d had unconsensual sexual contact with two female employees between 2003 and 2007. DeGuerin said he hopes the sentencing judge will consider all the good Kent has done when it comes time to decide whether to follow the prosecutor’s suggestion he be sent to prison for three years.

Rusty Hardin, whose client Cathy McBroom was one of the women Kent made unwanted advances toward, said his client and other women will wait until sentencing to tell their stories. “But what he put these women through is all that should really be considered,” Hardin said. “During those 18 years he claims to have served, it should also be noted that he made life miserable for a legion of litigants in his court.”

Related posts on the Kent proceedings:

February 27, 2009 in Celebrity sentencings | Permalink | Comments (2) | TrackBack

Useful reading for technocorrections fans (or foes)

As I have noted in prior posts (many linked here), the future of crime and punishment will include all sort of technocorrections for economic reasons if not for lots of others.  Thus, it is important for both theorists and practitioners to be thinking proactively now about the future of technology and criminal punishment, whether one is a fan or foe of technocorrections.  Such thinking can be aided by this interesting book chapter appearing on SSRN, titled "Crime Control Technologies: Towards an Analytical Framework and Research Agenda." Here is the abstract:

The substantive focus of this chapter — crime control technologies — can be stated simply enough, but this simplicity is deceptive for several reasons.  Firstly, technology — which we define as the application of scientific knowledge, materials, techniques, systems, methods of organisation and the use of electronic and mechanical devices — is ubiquitous in contemporary criminal justice, as it is in many other spheres of human activity. Therefore the range of types of technical devices that we might write about is extremely wide.  Secondly, as Marx suggests, throughout history crime control has been a motor for technological innovation in many apparently unrelated areas; therefore the boundaries of the field are fuzzy.  Thirdly, the range of technological applications in the criminological field is incredibly wide and includes the management and communication of information, physical defence against crime, surveillance, public order maintenance, crime prevention and detection, criminal justice administration, and punishment.

We have, it seems, carved out an impossibly wide brief and can do little more here than to provide a descriptive overview of the technological applications studied by criminologists, to describe the legal framework within which crime control technologies are developing, to raise some questions about the ways in which technology is changing the criminal justice system as a system and make some suggestions for inter-disciplinary research.

February 27, 2009 in Technocorrections | Permalink | Comments (0) | TrackBack

February 26, 2009

"Shaming and scaring johns into becoming average joes"

The title of this post is the headline of this interesting article in today's Los Angeles Times.  The sub-title of this article describes the basics: "L.A. tests a program for men caught soliciting prostitutes, giving them some reasons not to reoffend. It's like traffic school, but the stakes are higher and the presentations are squirm-inducing."  Here are snippets from the story:

This is john school, a new effort by law enforcement officials to stem prostitution in Los Angeles. Built on the belief that a heavy dose of in-your-face shame and scare tactics can do more to dissuade men from looking to the streets for gratification than traditional punishment, the class -- think traffic school with higher stakes -- offers first-time offenders leniency in exchange for a promise that they will change their ways. It is the latest example of how prosecutors and police around the country are rethinking their strategies in the age-old battle against prostitution.

"I've arrested hundreds of street walkers and busted countless tricks," said Margolis, who spent nearly three decades working in the Los Angeles Police Department's vice squad. "All those years, we'd send them to court, they'd pay a fine, spend maybe a day or two in jail and then be on their way.

"We're never going to arrest our way out of this problem and we're never going to stop it altogether. But we can try to educate johns about the dangers to themselves and about the violence the women face. Hopefully we can reduce the demand."

Launched recently by the Los Angeles city attorney's office, the Prostitution Diversion Program currently targets only those johns nabbed by the LAPD along a cheerless stretch of Figueroa Boulevard pockmarked by liquor stores and cheap motels -- one of the city's epicenters for street-walking prostitutes. There are tentative plans to expand the class citywide if the pilot program proves successful, said Sonja Dawson, the no-nonsense city prosecutor who helped start the program.

If this approach works effectively for those who seek illegal sex, perhaps someone smart will consider  expanding the program to also bring in those who seek illegal drugs and  illegal rock-and-roll.

February 26, 2009 in Criminal Sentences Alternatives | Permalink | Comments (5) | TrackBack

After winning SCOTUS battle, Danforth loses state retroactivity war

As habeas fans know, last year the Supreme Court held in Danforth that state courts were not obligated to apply the federal habeas standards of Teague when deciding whether to give constitutional rulings retroactive effects.  This important victory for defendant Stephan Danforth has proved to by temporary, because today in this split ruling, the Minnesota Supreme Court chose to adopt the Teague rule for state retroactivity purposes even though it now knows it does not have to. 

Here are snippets from the majority opinion in this round of Danforth:

Some states have found Teague too narrow or strict, or out of place where a state court is reviewing its own convictions. See, e.g., Colwell v. State, 59 P. 3d 463, 471 (Nev. 2002) (adopting modified version of Teague).  Since the Danforth ruling freed states to fashion their own retroactivity standards, only one state appears to have considered the question, and that state opted to retain TeagueSee Ex Parte Lave, No. AP-75,912, 2008 WL 2512820, at *2 (Tex. Crim. App. June 25, 2008) (concluding that “[a]lthough not required by the United States Supreme Court to do so, we adhere to our retroactivity analysis . . . that Crawford does not apply retroactively to cases on collateral review in Texas state courts.”).

Danforth argues that we should abandon Teague....  We elect to retain Teague. While we acknowledge that one of the policy concerns underlying Teague – that federal habeas courts not excessively interfere with state courts – is absent when a state court is reviewing state convictions, we continue to share the other policy concern behind Teague, which is the finality of convictions.  Finality of state convictions is a matter that States are “free to evaluate, and weigh the importance of.”  Danforth, 552 U.S. at __, 128 S. Ct. at 1041.

The dissent makes a pitch for a modified approach: "I would not adopt Teague in total, rather I would, as the Nevada Supreme Court has done, adopt the basic approach set forth in Teague but with some significant qualifications.  See Colwell v. State, 59 P.3d 463 (Nev. 2002)."

February 26, 2009 in Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Looking for hope and change in the DOJ part of the Obama budget

Via whitehouse.gov, I discovered that the full text of the budget for Fiscal Year 2010 is on the website of the Office of Management and Budget.  And here is a link to a few pages discussing funding for the Department of Justice, which starts this way:

The President’s Budget for the Department of Justice (DOJ) is $26.5 billion.  The Budget addresses the key priorities of the President and the Attorney General, including those for National Security and crime fighting programs in the FBI and other DOJ components, to include resources for combating financial fraud and protecting the public interest.  The Budget funds the Community Oriented Policing Services (COPS) hiring program, ensures that prison and detention programs are adequately funded, to include prisoner reentry programs, reinvigorates Federal civil rights enforcement, and increases border security.

Here is the specific discussion of reentry funding in the DOJ document:

Expands Prisoner Reentry Programs. The Budget includes $109 million for prisoner reentry programs, including an additional $75 million for the Office of Justice Programs to expand grant programs authorized by the Second Chance Act that provide counseling, job training, drug treatment, and other transitional assistance to former prisoners.

Because I have never been a budget maven, I am not sure whether or how these numbers might reflect "change we can believe in."  But, since all the hope and change talk has been slow to come to discussions of the federal criminal justice system, I doubt this budget portends any significant changes from the status quo with regard to federal crime and punishment issues.

February 26, 2009 in Reentry and community supervision | Permalink | Comments (0) | TrackBack

Great new (though still dated) examination of the death penalty and plea bargaining

Regular readers know that I often note the failure of others to note and consider the potential impact of the death penalty on plea practices.  Excitingly, Kent Scheidegger of the Criminal Justice Legal Foundation has now focused attention on this issue through this new working paper, titled "The Death Penalty and Plea Bargaining to Life Sentences."   Here is the paper's abstract:

This study examines the disposition of murder cases in a sample of large urban counties to determine if there is a connection between the availability of the death penalty and the number of cases that are disposed of by guilty plea with a life sentence or a long term of years.  Consistently with expectations, significantly more defendants plea bargain to a life or long sentence in states where the death penalty is available.  The average county with the death penalty disposes of 18.9% of murder cases with a plea and a long sentence, compared to 5.0% in counties without the death penalty.  The difference is statistically significant at the p<.05 level. Implications for the claim that repeal of the death penalty will save substantial public funds in trials are discussed.

As the last line of this abstract highlights, one interest aspect of this paper is the suggestion that the death penalty may savemoney by prompting more pleas and avoiding costly trials.  The CJLF's official press release about this report (available here) stresses this point:

Legislatures expecting a large savings in trial costs from repealing the death penalty may be in for a disappointment, according to a study released today by the Sacramento-based Criminal Justice Legal Foundation.  The most widely cited estimates ignore or minimize an important cost-saving effect of having the death penalty available.

In states where the death penalty is the maximum punishment, a larger number of murder defendants are willing to plead guilty and receive a life sentence.  The greater cost of trials where the prosecution does seek the death penalty is offset, at least in part, by the savings from avoiding trial altogether in cases where the defendant pleads guilty.  Although this effect is well known to people working in the field, there appears to be no prior study to determine the actual size of this effect. 

Any and everyone seriously interested in the realstory of the death penalty and its impact can and should read this new CJLF report.  Unfortunately, as the report itself acknowledges, the data used for the analysis in the CJLF report are for 1988 murders and prosecutions.  There are reasons to suspect (and hope? or fear?) that plea practices are much different in capital cases two decades later.  Because of this, we all can and should be wary about using long-ago past performance to predict future realities.

Some related posts on the death penalty and plea bargaining:

Some recent related posts about death penalty costs:

February 26, 2009 in Death Penalty Reforms | Permalink | Comments (12) | TrackBack

Deafening silence from the gun rights crowd about Hayes

With the Supreme Court's Hayes gun possession decision now a few days old, I cannot help but note that none of the prominent gun rights groups or pundits have said boo about the decision.  Whenever there is talk of a new or expanded gun control effort, I can typically count on seeing comments (usually critical) from prominent gun groups like the National Rifle Association or Second Amendment Foundationor from prominent legal bloggers/pundits like David Kopel and Glenn Reynolds at Instapundit and other folks at The Volokh Conspiracy and at Pajamas Media.  Yet, I am still awaiting a single word from any of these folks on the Supreme Court's work in Hayes.

I am not especially surprised that prominent gun rights activists are disinclined to support domestic abuser like Randy Hayes even when he is being federal prosecuted simply for having a rifle in his home.  Nevertheless, I find it notable and telling that, while many traditional First Amendment advocates will vocally defend the speech rights of neo-Nazis, none of the traditional Second Amendment advocates will defend the gun rights of a misdemeanant.  And the conspicuous silence on the Hayes case shows that gun advocates would like to just completely avoid talking about any of the hard political and legal questions raised by the Heller decision.

Other recent posts on the Hayes decision:

February 26, 2009 in Second Amendment issues | Permalink | Comments (8) | TrackBack

Justice Breyer talking up Rule of Lenity when interpreting statutes with mandatory minimum sentencing terms

As detailed in this recent post, the Supreme Court yesterday heard oral argument in Flores-Figueroa v. United States, which deals with the reach of the federal aggravated identity theft statute.  When first scanning the oral argument transcript, these comments from Justice Breyer jumped off the page:

In the case of mandatory-minimum sentences, there is a particularly strong argument for a Rule of Lenity with bite.  And that is because mandatory minimums, given the human condition, inevitably throw some people into the box who shouldn't be there.  And if this person should be there and we put him outside, the judge could give him the same sentence anyway.

So the harm by mistakenly throwing a person outside the box through the Rule of Lenity to the government is small.  The harm to the individual by wrongly throwing him into the box is great.  The Rule of Lenity is, therefore, limited to a very small subset of cases where it has particular force, but this is one of them.

Oral argument transcript in Flores-Figueroa at 42. 

I sure hope these sentiments make their way into whatever opinion is written in Flores-Figueroa.  I have long thought that various defendant-oriented statutory canons and constitutional principles should have more force and impact in cases involving mandatory minimum sentencing terms.  It is nice to see Justice Breyer articulate this point at oral argument, and it would be very valuable to have this idea find expression in the Court's jurisprudence.

How Appealing has at this link some of the major press coverage of the entire argument in Flores-Figueroa.

February 26, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (1) | TrackBack

February 25, 2009

"Time For Marijuana Legalization?"

The title of this post is the question being asked here by CBS News analyst Andrew Cohen.  Cohen picks up on the latest discussion of the costs of the death penalty to take the idea of criminal justice reform in tough times one step further.  Here are snippets:

After generations of defending capital punishment and marijuana possession laws on moral, ethical and religious grounds, after years of declaring that the death penalty acted as a deterrent against violent crime and that pot smokers were more dangerous to society than, say, alcohol consumers, all of a sudden thanks to our economic crisis more and more mainstream powerbrokers are considering dramatic changes to our criminal justice system....

These declarations, from the political and legal arena, are not just isolated voices shouting into the wilderness.  Consider the late, great Milton Friedman, the Nobel Laureate, former Reagan advisor, and esteemed scholar associated with the very conservative Hoover Institution.  He was among hundreds of important economists who argue that pot should be legalized and taxed - and that the income from such taxation could generate billions in new revenues and billions more in enforcement savings.  If you live in California,  what would you rather have?  Pot smokers whose cases are tying up the legal system?  Or better health care and roads thanks to a marijuana tax. I’m just asking the question— and others are too.

Friedman and his colleagues first made these arguments years ago — before the economy tanked. Is it time to take his view more seriously with states facing huge budget shortfalls that threaten to curtail vital projects and policies?  It is such a great leap from releasing prisoners from prison early to save money and not sending them there at all to save more?  I would suspect a survey of police officials and prosecutors, and a survey of state budget officials, would indicate that the matter is being taken more seriously today than it ever has been.

Some recent related posts:

February 25, 2009 in Drug Offense Sentencing | Permalink | Comments (26) | TrackBack

New York's highest court rejects again Sixth Amendment challenge to its persistent felony offfender law

A helpful reader alerted me to a new opinion from the New York Court of Appeals, which turns down yet again a Sixth Amendment attack on New York's persistent felony offender sentencing scheme.  Here is how the unanimous opinion in NY v. Quinones, No. 14 (N.Y. Feb. 24, 2009) (available here), gets started:

This appeal presents another Apprendi challenge to New York’s discretionary persistent felony offender sentencing scheme. The primary issue before us is whether, in light of Cunningham v California (549 US 270 [2007]), this sentencing scheme violates Apprendi and defendant’s due process and Sixth Amendment rights.  We again uphold the constitutionality of New York’s discretionary persistent felony offender sentencing scheme and further hold that defendant’s constitutional rights were not violated.

Significantly, this latest Quinones ruling from the New York Court of Appeals does not address or even mention the federal habeas ruling in Portalatin v. Graham, No. 06 CV 5002 (EDNY Mar. 22, 2007) (available here), in which EDNY District Judge John Gleeson essentially disagreed with a New York's state court decision that the state's discretionary persistent felony offender statute is constitutionally sound (discussed here). 

In Portalatin, Judge Gleeson concluded that the Supreme Court's work in Cunningham confirmed the unconstitutionality of New York's law.  But in Quinones the New York Court of Appeals reads Cunningham and Ice to confirm its prior conclusion that there are no constitutional problems with New York's sentencing structure.  Assuming the defendant in Quinones seeks cert., it is interesting to speculate as to whether this state/federal split of authority might lead the Justices to make yet another trip into the crazy mixed-up world that is Apprendi-land.

February 25, 2009 in Blakely in the States | Permalink | Comments (3) | TrackBack

En banc Tenth Circuit reinstates insider trading conviction of former Qwest CEO Nacchio

Though not technically a sentencing ruling, the white-collar sentencing world should surely take note of the Tenth Circuit's decision today, via a 5-4 en banc ruling, to reinstate Joe Nacchio's federal criminal insider trading conviction.  This post from the WSJ Law Blog provides some details (noting some sentencing realities) and useful links:

In a squeaker of a decision, the full Tenth Circuit earlier today upheld former Qwest CEO Joseph Nacchio insider trading conviction, offering another setback to the former telecom high flyer’s attempt to reverse a jury’s decision in 2007.  The court also revoked his bail, so Nacchio is likely headed to prison in the near future. Click here for the ruling; here for the Denver Post’s account.

Nacchio was convicted nearly two years ago of 19 counts of insider trading for selling off Qwest’s stock even as he knew the Denver-based telecom company’s finances were heading south.  Since then he’s been fighting the conviction, with the help of his high-profile attorney, Latham & Watkins’s Maureen Mahoney.  Nacchio has been free on a $2 million bond since then, and has spent toggling between his New Jersey and Florida homes.

In a 5-4 vote, the appeals court overturned an initial three-judge panel’s decision to grant Nacchio a new trial....  Former U.S. Attorney Troy Eid, who oversaw the case but recently left to become partner at Greenberg Traurig, was ebullient about the decision. “It’s a tremendous day for the United States government,” he said. “I couldn’t be happier.”

Maureen Mahoney [has now said]: “We are profoundly disappointed by the Court of Appeals’ closely divided en banc decision. . . . We are optimistic that the Supreme Court of the United States will review the case, not just to resolve the conflicts but to correct what the chief judge of the Court of Appeals described as a ‘draconian decision’ to deprive Nacchio of his fundamental right to a defense. . . ”

February 25, 2009 in White-collar sentencing | Permalink | Comments (3) | TrackBack

Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?

The failure of any Justice to even mention the Second Amendment or Heller or the statutory interpretation canon of constitutional doubt in Hayes (basics here and here) has me wondering how far jurisdictions can go in categorically criminalizing gun possession by certain types of persons. 

For example, can a jurisdiction interested in gun control (like DC and other cities) draw from Hayes the idea that it could and should categorically prohibit and criminalize gun possession by anyone and everyone ever convicted of any type of misdemeanor?   Could (and might) a jurisdiction criminalize gun possession by anyone guilty of a moving violation traffic offense or even by anyone with an arrest record?

For various reasons, there is good reason to believe that some jurisdictions will be eager to evade whatever constitutional limits on gun control emerges from Second Amendment or Heller.  I am blogging so much about Hayes in part because I think it helps create a ready blueprint for such evasion.

Other recent posts on the Hayes decision:

February 25, 2009 in Second Amendment issues | Permalink | Comments (12) | TrackBack