Sentencing Law and Policy

In the Kagan hearings, were any core criminal justice issues been discussed?

The formal and direct questioning of SCOTUS nominee Elena Kagan wrapped up this afternoon.  Based on media reports, it seems that the death penalty and gun rights are the only criminal justice issues that were at any point discussed during the two days of Q+A between the Senators and Kagan.  I suppose this is not really all that surprising, but it is certainly disappointing given that dozens of cases come before the Supreme Court each Term dealing with core criminal justices issues ranging from police practices to criminal trial procedures to sentencing law.  Oh well.

I hope readers will let me know if I missed any noteworthy discussion of criminal justice issues during the hearings dealing with criminal justice issues other than death and guns.  I also hope readers will report on anything they think could still get in the way of Elena Kagan becoming Justice Kagan in short order.

UPDATE:  A helpful reader reported to me this exchange on federal crack/cocaine sentencing:

Here is what Kagan said in response to a question from Sen. Durbin on crack cocaine:

“Crack cocaine issue is one of the things I’ve had the most to do with as a policy matter. We suggested a 10-1 ratio because we thought that it was the practical approach to take. As a judge, the only thing that would matter would be the statute; unless and until Congress changes it, the current statute would apply.”

Interesting details about the first(?) post-McDonald suit brought in North Carolina

This local story out of North Carolina provides some of the interesting details surrounding the first high-profile challenge to a state gun law in the wake of the McDonald Second Amendment ruling earlier this week:

The same day the U.S. Supreme Court issued a ruling that gun rights advocates saw as an open door to challenge the constitutionality of firearms restrictions, a lawsuit was filed in federal court in North Carolina seeking an injunction against the governor and others from declaring states of emergency that restrict who can carry guns in public.

The suit was filed Monday by Second Amendment Foundation, Grass Roots North Carolina and three individuals against Gov. Bev Perdue, Reuben F. Young, secretary of the state Department of Crime Control and Public Safety, Stokes County and the City of King....

The North Carolina case, filed in the state's eastern federal district, questions whether state laws limiting who can carry guns in states of emergency are overreaching.  The suit also contends that government officials, under the state of emergency law, are allowed to prohibit the purchase, sale and possession of firearms and ammunition — actions the plaintiffs describe as violations of their Second Amendment rights.

Paul Valone, president of Grass Roots North Carolina, a gun rights advocacy group, said the suit was filed, in part, to test whether the state can impose such restrictions in times of emergency. "Not only will it get to that," Valone said Tuesday. "It will set binding precedent."

Under North Carolina law, the governor can declare states of emergency as can municipalities and counties.  Since Sept. 1, 2004, according to the lawsuit, at least a dozen states of emergency have been declared by a North Carolina governor.  All but one were weather-related — for hurricanes, tropical storms, snow and ice.  One was for the 2008 wildfire that swept through Hyde, Tyrell and Washington counties.

In some towns and cities, though, states of emergency are declared when large crowds are expected to gather in small places.  In such circumstances, law enforcement officers are able to confiscate weapons.

King, a Stokes County town of about 4,700 people nearly seven miles north of Winston-Salem, was named in the suit because in February, the mayor declared a state of emergency after a fierce winter snow and ice storm felled trees and damaged properties.  The mayor did so, according to city administrators, so that King could be a candidate for federal funds to help with the cleanup after the storm....

State law enforcement advocacy groups and North Carolinians Against Gun Violence, an advocate for gun controls, declined to comment about the specifics of the case.  "We want to wait for more input from law enforcement," said Roxane Kolar, executive director of North Carolinians Against Gun Violence.

Some old and new recent related posts on state litigation and McDonald: 

• Effective review of state gun laws likely to be challenged after McDonald
• The "Silent Six" states worth watching for post-McDonald Second Amendment litigation
• North Carolina Supreme Court finds state constitutional right for some felons to bear arms
• Notable new Alaska appellate decision on denying gun rights to non-violent felons
• SCOTUS decides Second Amendment applies to the states in 5-4 opinion
• The likely state criminal litigation impact of McDonald and state applications of the Second Amendment
• Puzzling through the doctrine and dicta of McDonald on the Second Amendment's limits

Notable new district court opinion addressing effort to defend child porn sentencing guidelines

Regular readers know well the robust on-going debate in the federal courts concerning the federal sentencing guidelines and appropriate sentencing for child porn offenses.  Though most detailed written sentencing opinion on the subject have assailed the operation and severity of the federal guidelines for child porn downloading offenses, earlier this year US District Judge John Adams issued a thoughtful opinion in US v. Cunningham, No. 1:09CR154 (N.D. Ohio Jan. 26, 2010) (discussed here) provided a detailed defense of the federal child porn guidelines.  Now I have received a new opinion from US District Judge Lynn Adelman, US v. Diaz, No. 09-CR-302 (E.D. Wisc. June 30, 2010) (available for download below), which takes on the reasoning of Cunningham and "respectfully disagree[s] with the court’s observations." Here is a snippet of this disagreement:

[T]he Cunningham court argued that the fact that certain enhancements apply on a frequent basis does not serve as a basis for negating the guidelines. Id. at 852-53.  But where, as here, the imposition of those enhancements results in sentences approaching the maximum in criminal history category I, the approach developed by the Commission breaks down. Specifically, the Commission developed the criminal history axis of the Grid based on its conclusion that a defendant’s past record of criminal conduct was directly relevant to the four purposes of sentencing: a defendant with a record is more culpable than a first offender and thus deserving of greater punishment; deterrence requires that a message be sent that repeat criminal behavior will aggravate the need for punishment with each recurrence; to protect the public, the likelihood of recidivism must be considered; and repeated criminal behavior is an indicator of a limited likelihood of successful rehabilitation.  See U.S.S.G. ch. 4 introductory commentary.  If even a first offender approaches the maximum based on the offense level alone, chapter four becomes irrelevant, and a first-time offender is treated similarly to a recidivist.  That is not what the Commission (or the Sentencing Reform Act) intended.

Download Diaz written sentencing memo

The academic in me who is interested in robust sentencing debate is especially intrigued and excited to see these district judges issuing dueling sentencing opinions providing thoughtful and thorough written accounts explaining just how and why they decided to exercise their sentencing discretion in a particular way.  But the citizen in me who is generally interested in federal defendants facing similar sentencing realities for similar criminal conduct is wondering if and when federal appellate courts or the Sentencing Commission or Congress will try to start herding the district court sentencing cats that continue to stray because the current sentencing guidelines appear to most participants to be providing very poor guidance in the vast majority of child porn downloading cases.

Some related prior federal child porn prosecution and sentencing posts:

• Fascinating data on recent trends and circuit specifics for federal child porn sentences
• Thorough and thoughtful district court defense of federal child porn guidelines
• "Federal judges argue for reduced sentences for child-porn convicts"
• ABA Journal covers the controversies over federal child porn sentences
• "Judge Weinstein Takes On Child Pornography Laws"
• Effective local reporting on realities and debates surrounding federal sentencing guidelines for child porn
• The latest (beneficial?) litigation front in child porn downloading battles
• Noting the latest data showing reduced (but disparate) federal sentences for child porn downloaders
• Strong sentencing opinion noting disparities in federal child porn downloading cases
• Yet another notable written opinion in a federal child porn downloading case
• More examples of sentencing uncertainty surrounding federal child porn cases

Fascinating Ninth Circuit ruling on whether prisoners have medical privacy rights

The Ninth Circuit issued an interesting ruling today concerning the medical privacy rights of a prisoner in Seaton v. Mayberg, No. 05-56894 (9th Cir. June 30, 2010) (available here). Here is how the main panel opinion starts and ends:

We address a claim to privacy rights in his medical records of a prisoner being evaluated for civil commitment....

One who goes to a physician in order to obtain medical benefit to himself or his family has substantial privacy interests that may or may not be constitutionally protected. One who is compelled to submit to medical examination for the benefit of the public, to determine whether because of mental disease he is likely to engage in sexually predatory behavior, does not.

Former NC lottery commissioner first(?) to get released based on Skilling honest service ruling

A helpful reader sent me an order entered yesterday in Geddings v. US (available for download below), in which a district court has ordered the release of a former North Carolina lottery commissioner based on the new narrowed interpretation of the federal honest services fraud statue set forth in last weeks Skilling decision. Here is a key snippet from the order:

On June 24, 2010, the court orderedthe United States to submita memorandum of law not later than June 29, 2010, addressing whether this court should grant post-conviction relief to Geddings.  On June 29, 2010, the United States submitted a memorandum acknowledging that under Skilling:

it is no longer a federal crime for state public officials to corrupt their public offices by engaging in undisclosed self-dealing. The new interpretation of Section 1346 does not cover the undisclosed self-dealing that Geddings committed in connection with his service as a North Carolina Lottery Commissioner. Consequently, the Government concedes that Geddings is entitled to have his conviction vacated.

Govt. Mem. 1.  The government also contends that Geddings is not entitled to relief under 28 U.S.C. § 2255 or 28 U.S.C. § 1651, but is entitled to relief under 28 U.S.C. § 2241. See id. at 2, 10-12 (citing In re Jones, 226 F.3d 328, 332 (4th Cir. 2000)).  The government moves the court "to release Geddings, as soon a practicable, pending the resolution of the Section 2241 process."  Govt. Mem. 2, 12-13.

Download Geddings Order 6-29-10 -- Release

I hope somebody will end up keeping track of how many convictions end up vacated as a result of the Skillingruling, as well as what sentences were imposes/served based on convictions that end up vacated.  Notably, Kevin Geddings got sentenced to 48 months in May 2007and was denied bail pending appeal in June that same year.

Split Second Circuit panel reverses death sentence for NYC double cop killer

As detailed in this New York Times report, which is headlined "Death Sentence Is Voided for Killer of 2 N.Y.P.D. Officers," the Second Circuit today has reversed a high-profile federal death sentence. Here are the basics:

A panel of federal judges has overturned the death sentence given to a Staten Island man convicted of killing two undercover New York City police detectives in 2003. In January 2007, when a federal jury sentenced the man, Ronell Wilson, to die by lethal injection for killing the detectives, the verdict was praised by prosecutors and the president of the Detectives Endowment Association.

Relatives of the two detectives — each shot in the back of the head in a car on a dead-end street on Staten Island in 2003 after posing as gun buyers — called out “God bless” after the jury foreman ordered sentences of death on five counts, the first successful federal capital punishment prosecution in New York State in more than 50 years.

But, a little more than three years later, a three-judge panel of the United States Court of Appeals for the Second Circuit overturned the death sentences on Wednesday. The judges ruled that federal prosecutors violated Mr. Wilson’s constitutional rights.

Here is a key section from the start of the majority opinion in US v. Wilson, No. 07-1320 (2d Cir. June 30, 2010) (available here):

[W]e vacate the death sentences, and remand, because two arguments made to the jury by the prosecution — both bearing on the critical issues of remorse, acceptance of responsibility, and future dangerousness — impaired Wilson’s constitutional rights.  The government argued: [i] that Wilson put the government to its proof of guilt rather than plead guilty; and [ii] that Wilson’s allocution of remorse should be discredited because he failed to testify notwithstanding the fact that “[t]he path for that witness stand has never been blocked for Mr. Wilson.”  As to the first argument, although a guilty plea may properly be considered to support a sentence mitigation for acceptance of responsibility, the Sixth Amendment is violated when failure to plead guilty is treated as an aggravating circumstance.  As to the second, it is a fair argument for the prosecution to say that an allocution of remorse is unsworn and uncrossed, but the Fifth Amendment is violated when the defendant is denied a charge that limits the Fifth Amendment waiver to that which is said in the allocution and the jury is invited to consider more generally that the defendant declined to testify.  These constitutional violations were not harmless beyond a reasonable doubt.

Judge Livingston dissents from this portion of the panel's ruling, say this at the end of her opinion:

I conclude that if there was Fifth Amendment error here — and I find it doubtful — such error had no impact on the jury that sentenced Wilson.  With regard to the Sixth Amendment, there is simply no error to review. Having reached these conclusions, I believe the death sentences should be affirmed.

As the dissent highlights, these constitutional issues are not clear cut, which makes en banc review by the Second Circuit and/or a cert grants by the Supreme Court quite likely.  In other words, this legal battles over the defendant's death sentence have likely only just begun.

Effective review of state gun laws likely to be challenged after McDonald

The AP has this effective new piece, headlined "Gun law challenges likely after high court ruling," which reviews the state gun restrictions that might soon be subject to post-McDonald litigation. Here is the article's list:

Among other laws already facing lawsuits or expected to be challenged:

• Age limits that bar people younger than 21 from buying or owning guns
• Lockbox and trigger-lock requirements to keep guns away from children
• One-gun-a-month purchase limits in California, Maryland, New Jersey and Virginia
• Georgia's prohibition on carrying guns into churches
• Bans on guns in bars
• California's outlawing of certain handguns
• Assault weapons and ammunition bans
• Federal and state prohibitions aimed at keeping domestic violence offenders from having guns.

I would be interested in hearing reader views on which of these laws seem most likely and least likely to survive Second Amendment challenges.

Texas about to conduct back-to-back executions

As detailed in this AP article, the execution chamber in Texas is due to be busy this week:

Condemned prisoner Jonathan Green faces lethal injection for the abduction, rape and strangling of a 12-year-old girl near Houston 10 years ago. Green is scheduled to die in the Texas death chamber in Huntsville on Wednesday evening. The 42-year-old inmate would be the 14th killer Texas has executed this year and the first of two on consecutive nights in the nation's most active death penalty state.

Assuming these executions are conducted, there will have been already 31 execution in the US in 2010, nearly as many as the number of executions that were conducted in all of 2008.  As revealed by this yearly execution data at DPIC, 2010 may be on pace to have as many or more executions than any other year in nearly a decade.

Fascinating racial justice debate on California pot legalization proposition

This AP article, which is headlined "Calif NAACP to back pot legalization initiative," provides an interesting example of how California's November ballot proposition that would decriminalize marijuana is already dividing some usual bedfellows:

The NAACP's California chapter pledged its support on Tuesday for a marijuana legalization ballot measure, saying current laws are unfairly used to target minorities. The group highlighted findings it says show the arrest rate among blacks for low-level marijuana crimes far exceed those of whites in the state's largest counties....

The NAACP's announcement outraged a Sacramento preacher who is leading opposition to the measure. International Faith-Based Coalition president Ron Allen said African-American leaders are distressed that one of the country's most respected civil rights organizations would disregard the harm caused by illicit drugs among blacks. "The NAACP does not represent the African-American community when it comes to legalizing marijuana," Allen said.

Drug legalization advocates hailed the endorsement as a major step forward in broadening the coalition of groups who support the reform of marijuana laws. Opponents of current drug prohibitions frequently point to the issue of race and drug arrests as evidence of a flawed national policy.

"There have not been high profile organizations or elected officials within African-American communities to say enough is enough, we have to end marijuana prohibition. This is really a first," said Stephen Gutwillig, California director of the Drug Policy Alliance.

Some related posts on pot policy and politics:

• Should and will California's voters legalize marijuana in that state this November?
• "Legalizing marijuana not really a dopey idea"
• Might Sarah Palin's sensible points about pot get Tea Party types to push for sensible drug reforms?
• Thoughtful academic thoughts on ending marijuana prohibitions
• Green tea party: will Glenn Beck or Sarah Palin or other professed liberty lovers support ending pot prohibition in California?
• Do "mama grizzlies" have a particular approach to crime and punishment issues?
• NPR's interesting coverage of "The New Marijuana"
• How can and should we assess the "success" of medical marijuana and pot prohibition reform efforts?
• This is Fox News on drugs ... lots of questions

Kagan confirmation comedy club

This AP article, which summarizes some aspects of Day 2 of the confirmation hearings for SCOTUS nominee Elena Kagan, highlights some of her amusing answers to questions from the Senate Judiciary Committee:

She cracked up senators and the audience alike when she was asked about her whereabouts on Christmas Day, when there was an attempted airplane bombing, telling the committee: "You know, like all Jews, I was probably in a Chinese restaurant."

Kagan's humor got a thumbs-up from Sen. Arlen Specter, D-Pa., one of her most cantankerous questioners. Talking about television coverage of the courts, Kagan told Specter: "It means I'd have to get my hair done more often."

That left him momentarily speechless. Then he offered: "Let me commend you on that last comment, and I say that seriously. You have have shown a really admirable sense of humor, and I think that is really important."

Sen. Chuck Schumer, D-N.Y., later predicted Kagan would give Justice Antonin Scalia, who gets the most laughs on the high court, a run for his money.

On a more serious note, here are some headlines and links from various sources providing some substantive highlights of today's confirmation festivities:

• Kagan sidesteps empathy question, says 'it's law all the way down'
• Kagan Takes Gun Off Table, Calls Recent SCOTUS Cases 'Good Precedent'
• Kagan insists she didn't block military at Harvard
• Kagan indicates support for limiting corporate spending on elections

Because I lacked the time or the energy to watch much of the hearings, I would be grateful if readers use the comments to report on anything they found particular noteworthy from the interchanges to so far.

A few final wins for criminal defendants on the final day of the SCOTUS Term

Though yesterday felt like the final day of the October 2009 Supreme Court Term, the Justices actually released today a final set of orders.  And, as effectively described in this SCOTUSblog post, this final set of orders included some notable victories for a few criminal defendants:

The Court sent back to lower courts for another look the convictions of the former Alabama governor and a top health industry executive on charges of arranging large campaign contributions in return for official favors on state health policy.  The lower courts are to reexamine those cases under the Court’s decision last week in Skilling v. United States — a ruling that significantly narrowed the federal fraud law as it applies to corruption schemes.   The returned cases are Scrushy v. U.S. (09-167), involving Richard M. Scrushy, founder and CEO of HealthSouth Corp., and Siegelman v. U.S. (09-182), involving former Gov. Don Eugene Siegelman. [SL&P addition: This order list also includes five other Skilling GVR's]...

Also sent back to a lower court was Maloney v. Rice (08-1592), a case in which Justice Sonia Sotomayor, when she was a member of the Second Circuit, had also ruled that the Second Amendment does not apply to state and local government levels.  The Maloney case did not involve guns, but rather tested a New York state law that bans personal possession of a martial arts device — a nunchaku — that also can be used as a weapon.   Justice Sotomayor did not take part in the Maloney order Tuesday.

Over the objection of four Justices, the Court issued a summary decision in a highly unusual death penalty case, in which the defense attorney had sought to win favor with the jury by portraying the individual’s childhood as stable, loving, and “essentially without incident” as a way to show that a death sentence would devastate the individual’s family, who wee shocked and dismayed by the crime.  But, the Court concluded Tuesday, that strategy backfired, and prosecutors used that background evidence. suggesting that the individual had led a “privileged” life,  in their closing argument and obtained a death sentence.  The majority said that the defense lawyer’s choice of that theory led to a completely inadequate investigation of a childhood that was immersed in parental abuse, and the youth had suffered head injuries that doctors deemed significant enough to impair his capacity.  The case involved Demarcus Ali Sears, convicted of murder in Georgia — a woman was kidnapped in Georgia, and killed in Kentucky.  Sears was sentenced to death.  The Court’s ruling came in an unsigned (“Per Curiam”) decision, apparently on a 5-4 vote.  Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., noted that they would have denied review.  Justice Antonin Scalia dissented, joined by Justice Clarence Thomas.  The case was Sears v. Upton (09-8854).

The substantive Sears ruling spotlights that there are still five votes to summarily reverse in those capital cases in which the affirmance of a state death sentence bothers the liberal wing of the Court. 

Especially in light of the historic role that Justice Stevens played in the evolution of the Court's capital jurisprudence, it is fitting that Justice Stevens engineered a final win for a capital defendant on his way off the Court.  And it is now useful and interesting to speculate as to whether likely future Justice Elena Kagan will be just as willing and eager to side with death row defendants in future Terms.

The "Silent Six" states worth watching for post-McDonald Second Amendment litigation

Back in October 2009 the Supreme Court accepted cert in the McDonald case, I asked in this post "What state and local issues will be litigated the most if (when?) Heller is incorporated?".  Though that post did not generate many responses, I suspect this question is now on the minds of many government lawyers who may be tasked with having to defend state and local gun regulations against new Second Amendment attacks in the wake of McDonald.

Though a diverse array of gun regulations will likely be subject to a diverse array of post-McDonald Second Amendment attacks in lower courts, I will be watching most closely how Second Amendment litigation unfolds in the six states that lack any state constitutional provisions concerning arms or gun rights: California, Iowa, Maryland, Minnesota, New Jersey and New York.  (Professor Eugene Volokh long ago created on-line this terrific list of state constitutional provisions concerning arms.)  Here are at least three reasons why these states — which I will call the "Silent Six" (or should it be Silencer Six) —  seem worth watching extra closely after McDonald:

1.  Lack of any controlling state constitutional law precedents.  In states with constitutional provisions concerning arms, there will be some judicial precedents that state judges can consider and reference when sorting through new Second Amendment claims.  But in the "Silent Six," state judges will be working on a mostly blank jurisprudential slate.  These state judges can and surely will look for guidance from gun rulings from other jurisdictions.  Still, the state judges in the "Silent Six" states will have a unique freedom (and unique necessity) to develop Second Amendment jurisprudence without any existing law to restrict or guide them.

2.  Large, diverse states with urban and rural settings.  Most of the "Silent Six" states are, relatively speaking, pretty big with big populations spread diversely around the state.   There are many rural parts of New York and California, for example, that are likely to be favorable to gun rights and to have local judges sympathetic to an expansive view of gun rights.  But there are also many urban centers in these states that tend to be hostile to gun rights and likely have local judges who reflect local attitudes.  Especially if and when early Second Amendment challenges are brought in these "Silent Six" states, early outcomes may turn on just where in the state a challenge is initially brought (and on which local judges are most eager to rule quickly on these claims).

3.  Mostly blue and politically important, dynamic states.  Most of the "Silent Six" tend to vote for Democrats, though Minnesota and New Jersey right now have high-profile Republican Governors.  Meanwhile, California, Maryland and New York have important state-wide elections taking place this November, and Iowa is where all Presidential campaigns get started.  These realities could make early constitutional litigation over state's gun regulations a hot political topic in the months (and years) ahead in the "Silent Six."  Against the backdrop of developing Second Amendment litigation, I wonder if former federal prosecutor and now Republican NJ Governor Chris Christie will continue to defend strict NJ gun control as he seemed to do in this interview with Sean Hannity back in October.  Similarly, as California laws get challenged, I wonder if Republican candidate Meg Whitman will stick with this reported statement last year that she "believes tough gun laws like assault weapon bans and handgun control are appropriate for California."

Some old and new recent related posts on state litigation and McDonald: 

• North Carolina Supreme Court finds state constitutional right for some felons to bear arms
• Notable new Alaska appellate decision on denying gun rights to non-violent felons
• SCOTUS decides Second Amendment applies to the states in 5-4 opinion
• The likely state criminal litigation impact of McDonald and state applications of the Second Amendment
• Puzzling through the doctrine and dicta of McDonald on the Second Amendment's limits

High-profile below-guideline political corruption sentence headed to Third Circuit

As detailed hereand in other posts linked below, last summer brought lots of discussion and debate over the 55-month prison sentence imposed on Pennsylvania state lawmaker Vincent Fumo for his convictions on various corruption charges.  Because Fumo was convicted at trial of many charges involving lots of corruption, most commentary assailed his below-guideline sentence as too lenient.  And now, as these newspaper reports highlight, this high-profile federal sentencing debate is going to be heading to the Third Circuit:

• From the Legal Intelligencer here, "Federal Prosecutors Get OK to Appeal Former Senator's Fraud Sentence"
• From the Philadelphia Inquirer here, "Prosecutors get go-ahead to appeal Fumo sentence"

Because Fumo is in his late 60s and because the Sentencing Commission has new proposed amendments that indicate that age now is a potentially relevant departure factor, this case may be extra interesting in its briefing and argument concerning reasonableness review.  That said, I suspect the government's appeal will stress what it views as procedural errors that it will say played a role in the sentence Fumo got from the district court.

Related prior posts on Fumo sentencing:

• State senator Fumo gets below-guideline sentence of 55-months imprisonment on corruption charges
• Comparing white-collar apples and drug dealing oranges at sentencing
• "Feds seek to appeal 'unreasonable' Fumo sentence"
• Continued buzzing about the (soft?) sentence given to Fumo

"Civil, Criminal, or Mary Jane: Stigma, Legislative Labels, and the Civil Case at the Heart of Criminal Procedure"

The title of this post is the title of this new piece on SSRN by Professor W. David Ball. David always has interesting stuff to say about the Supreme Court's Apprendi jurisprudence, and the abstract to this article spotlights this fact:

In criminal cases, any fact which increases the maximum punishment must be found by a jury beyond a reasonable doubt.  This rule, which comes from Apprendi v. New Jersey, looks to what facts do, not what they are called; in Justice Scalia’s memorable turn of phrase, it applies whether the legislature has labeled operant facts “elements, enhancements, or Mary Jane.”  Civil statutes, however, can deprive an individual of her liberty on identical facts without needing to meet the beyond a reasonable doubt standard of proof.  If Apprendi is, indeed, functional, why is it limited to formally criminal cases?  Why does it not apply to all punishments, no matter whether they are called civil, criminal, or Mary Jane?

One often-proposed answer is that Apprendi derives its holding exclusively from the Sixth Amendment, and the Sixth Amendment applies only to “criminal prosecutions.”  Apprendi is not, however, just a Sixth Amendment case.  Its “beyond a reasonable doubt” requirement comes from due process -- specifically, from a formally civil case, In re Winship, which explicitly rejects the idea that civil labels can insulate a state from heightened procedural obligations.  Apprendi’s application cannot, therefore, be limited on formal grounds to criminal cases.  To determine the limits of its application, one must instead return to the interests that both Winship and Apprendi identify as worthy of protection: the imposition of stigma and the deprivation of liberty.

This Article examines the due process roots of the Apprendi line and proposes that stigma is the substantive concern that separates retribution from regulation, punishment from public safety.  Using sociology’s modified labeling theory, I provide a substantive definition of stigma and explore how a unified due process approach, with stigma at its heart, might provide a more meaningful way to separate punishment from risk management.  This approach would move judicial discourse away from empty, taxonomic arguments about legislative labels towards an examination of the effects laws have on the lives of those subjected to them, a conversation which would more accurately and comprehensively address the values and interests at the heart of the justice system.

A few notable capital cert denials in yesterday's SCOTUS action

As detailed in these local stories from Missouri and Texas, there were a few noteworthy denials of cert by the Supreme Court in capital cases within the order list released yesterday: 

• From MissouriNet here, "SCOTUS will not hear MO lethal injection case, Koster wants executions scheduled again"

• From the Houston Chronicle here, "US Supreme Court upholds Texas death convictions"

"The Case for Treating Drug Addicts in Prison"

The title of this post is the headline of this interesting new piece in Newsweek.  Here is an excerpt:

Of the 2.3 million inmates in the U.S., more than half have a history of substance abuse and addiction. Not all those inmates are imprisoned on drug-related charges (although drug arrests have been rising steadily since the early 1990s; there were 195,700 arrests in 2007). But in many cases, their crimes, such as burglary, have been committed in the service of feeding their addictions....

Over the last few years, some in the justice system have warmed to the idea of treating drug addicts in addition to (or instead of) incarcerating them.  In some states, most notably Ohio, almost all first-time drug offenders and many second-timers are offered treatment. That is by no means the case nationally. According to a report released last year by the National Institute on Drug Abuse, just one fifth of inmates get some form of treatment.  That number may be lower in the near future: tight budgets are forcing many states to cut back or close down their existing treatment programs.  Kansas and Pennsylvania have already done so; California and Texas may follow suit in the next few months.

The irony here is that by lowering recidivism, the programs themselves save money in the long run.  The NIDA report released last year cited a remarkable statistic: heroin addicts who received no treatment in jail were seven times as likely as treated inmates to become re-addicted, and three times as likely to end up in prison again.  For every dollar spent, the programs save $2 to $6 by reducing the costs of re-incarceration, according to Human Rights Watch.  Looked at another way, the programs can save the justice system about $47,000 per inmate.

So why would prisons target their own treatment programs in an effort to cut costs?  Part of the reason is that pharmacological treatment — such as giving heroin addicts methadone to help them through withdrawal — requires a lot of regulation, and thus it’s expensive in the short run.... [P]oliticians may oppose treatment (at least publicly), especially if they’re worried about being seen as soft on crime. And even if they support the idea, with state budgets under a crunch, treatment can start to look expendable.

Puzzling through the doctrine and dicta of McDonald on the Second Amendment's limits

As regular readers know, I have always had a hard time squaring the Heller opinion's doctrinal embrace of an individual Second Amendment right to keep and bear arms for self-defense with its dicta suggesting that former felons can still be criminally punished (sometimes severely) for gun possession.  The Supreme Court's explanation today in its McDonald opinion as to why and how Heller now applies to the states continues to puzzle me concerning the linkage of Second Amendment doctrine and dicta.

As for doctrine, Justice Alito's chief opinion calls self-defense "a basic right" and explains that "in Heller, we held that individual self-defense is 'the central component' of the Second Amendment right. Slip op.at 19 (emphasis in original).  In addition, Justice Alito's opinion repeatedly describes Second Amendment rights as "fundamental," and it expressly rejects the Respondents' arguments that "in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause."  Slip op. at 33.  In short, individual gun rights are "fundamental," they help safeguard another "basic right,"  and they must not be treated as "second-class [and thus] subject to an entirely different body of rules than the other Bill of Rights guarantees." 

But can anyone think of any other "fundamental" right, which fosters another "basic" right and is a "Bill of Rights guarantee," that legislatures can categorically and forever prohibit former felons from exercising?  Consider the First Amendment: would it be constitutional to prohibit former felons from writing a newspaper op-ed or from attending a church after they have fully completed their lawfully imposed punishment?  Or consider the Fifth Amendment: would it be constitutional to prohibit former felons from receiving just compensation when their property is taken?   (Of course, allowing former felons to retain some Second Amendment rights could pose a threat to public safety, but Justice Alito rightly notes that many constitutional rights have "controversial public safety implications."  Slip op. at 35-36.)

And yet, toward the end of his opinion, Justice Alito in dicta "repeats [Heller's] assurances" that the Court's Second Amendment rulings do "not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons'."  Slip op. at 39-40.  But doesn't this dicta essentially connote that the Second Amendment really is going to exist as "a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees"?

Some older posts on the Heller and felon gun rights:

• Justice Scalia sells out felon gun rights, but on what basis exactly?
• The lack of originalist justification for excluding felons from the Second Amendment
• Former SG Ted Olson suggests Heller could impact broad prohibitions on felon gun rights
• Assailing the unjustified Second Amendment limits in Heller
• "Convicted Felon Sues State Over Right To Bear Arms"
• Fascinating little expungement ruling concerning Second Amendment rights from the Sixth Circuit
• North Carolina Supreme Court finds state constitutional right for some felons to bear arms
• SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
• Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
• The lack of originalist justification for excluding felons from the Second Amendment
• Heller's impact on felon-in-possession crimes finally starting to generate attention
• Notable new Alaska appellate decision on denying gun rights to non-violent felons
• "Why Can’t Martha Stewart Have a Gun?"
• SCOTUS decides Second Amendment applies to the states in 5-4 opinion
• The likely state criminal litigation impact of McDonald and state applications of the Second Amendment

The Pepper cert grant and post-sentencing rehabilitation as a sentencing factor

As noted in this earlier post, this morning the Supreme Court granted cert in Pepper v. United States (docket here), which will call for a review of this Eighth Circuit opinion.  Though I have not yet tracked down the cert petition in Pepper, a helpful reader sent me the opposition to cert from the Solicitor General's office, and here are the questions presented appearing in this cert op (which can be downloaded below):

1. Whether, at petitioner’s resentencing following the government’s appeal, the district court was required to apply the same percentage departure from the Guidelines range for substantial assistance that had been applied at petitioner’s initial sentencing.

2. Whether post-sentencing rehabilitation is an impermissible basis for varying downward at resentencing from the advisory Guidelines range under 18 U.S.C. 3553(a).

Download Pepper_Cert_Op

Interestingly, though the SG's cert op in Pepper says the Eighth Circuit got Question 1 right, the SG concedes that the Eighth Circuit got Question 2 wrong.  Here is what the SG (none other that now-SCOTUS-nominee Elena Kagan) says on this front:

No provision in Section 3553(a) prohibits a court from considering at resentencing a defendant’s efforts at rehabilitation undertaken after his initial sentencing. On the contrary, Section 3553(a) specifically instructs sentencing courts to consider “the history and characteristics of the defendant.” 18 U.S.C. 3553(a)(1).  That phrase encompasses a defendant’s rehabilitative efforts, whether they occur before or after his original sentencing. Consideration of a defendant’s rehabilitation after his original sentencing may also be relevant to “the need for the sentence imposed” on resentencing “to protect the public from further crimes of the defendant,” another Section 3553(a) factor.  18 U.S.C. 3553(a)(2).   Accordingly, the court of appeals erred in concluding that, under the advisory Guidelines regime, postsentencing rehabilitation is never a permissible factor to consider in varying downward under Section 3553(a) from the advisory Guidelines range.

The SG in the Pepper cert op goes on to suggest that a GVR rather than plenary review is all that is needed to correct the Eighth Circuit's error here.  But obviously, the Justices decided that it wanted to give Pepper plenary review.

"Nightmare of federal sentencing guidelines"

The title of this post is the headline of this new commentary by Bob Barr in the Atlanta Journal Constitution. Here are a few excerpts which highlight how Barr uses a recent high-profile white-collar sentencing to make his points about federal sentencing laws and practices:

Last week I was in Cedar Rapids, Iowa, where I attended a hearing in federal court at which a 50-year old man was sentenced to 27 years in federal prison –- in effect, a life sentence. The defendant, Sholom Rubashkin, is not a murderer, serial rapist or child molester; he is not a drug king pin and he did not bilk hundreds of innocent investors out of billions of dollars. Rubashkin is a first-time offender who was convicted late last year of a number of white-collar offenses stemming from his management of a large kosher slaughterhouse and meat packing plant. For this, he received what amounts to a life sentence.

While I did not represent Rubashkin at his trial, I will be assisting in the appeal of his case. Among the likely grounds for appeal are the 27-year sentence he received and the calculations by which the judge determined the length of that sentence. My purpose here has not to do with the case itself, but rather with how this one incident illustrates major flaws in how those who run afoul of any of more than 4,000 federal criminal laws, are sentenced. It ought to worry everyone....

What the average, non-lawyer citizen –- and perhaps even many lawyers who do not practice federal criminal law –- probably fails to realize, is that ... men and women found guilty of white collar crimes far less severe than a Bernie Madoff’s can be sentenced for crimes alleged by the government to have been committed, but for which they were found innocent or which were actually dropped by the government....

Most Americans understand that individuals cannot be forced to testify against themselves in criminal proceedings. What the public likely does not know, however, is that if a defendant elects to testify at his own trial and is subsequently convicted, the fact that he asserted his innocence can be used against him in order to increase his sentence.... In [addition], the government can manipulate or control the amount of a victim’s “loss” so as to permit a judge to then increase a defendant’s sentence.

These circumstances represent the tip of an iceberg that has long infected sentencing procedures in federal court; a system in which complex and, in many respects, arbitrary calculations of “sentencing guidelines” can result in punishments that are not only unfair but truly absurd. It is a system that cries out for reform.

Related posts on the Rubashkin case:

• "More Former AGs Question Sentence Sought in Bank Fraud Case"
• Can and should religious considerations influence bail decisions?
• Federal sentencing hearing starting in high-profile Rubashkin white-collar case
• Federal prosecutors now seeking 25-year prison term for Rubashkin
• Kosher plant chief Sholom Rubashkin sentenced to 27 years imprisonment
• Supporters decry while prosecutor defends stiff sentence given to Sholom Rubashkin

Fourth Circuit opinion reverses sentence when district judge refused to consider acquitted drug conduct

A notable circuit sentencing opinion today from the Fourth Circuit in US v. Young, No. No. 08-4117 (4th Cir. June 28, 2010) (available here), provides a little twist on the usual circuit approval of sentencing consideration of acquitted conduct. Here is how the Young opinion starts and some key passages of its analysis:

Darnell Young was convicted of drug-related charges and received a within-Guidelines sentence of 136 months’ imprisonment. Young appeals his convictions and sentence, and the government cross-appeals the sentence imposed by the district court. We reject Young’s challenges, but we agree with the government that the district court erred when it concluded that the drug-quantity determinations made by the jury prevented the court from finding a different quantity at sentencing. Accordingly, we affirm Young’s convictions, vacate his sentence, and remand for resentencing....

By determining that the evidence presented at trial established that Young’s crimes involved between 500 grams but less than five kilograms of cocaine, the jury in this case effectively acquitted Young of involvement with the distribution of more than five kilograms.  The district court was free to consider, as it would with any other acquitted conduct, whether the government could establish a higher quantity under a preponderance of the evidence standard.

To the extent that Young suggests the government was estopped from establishing a higher drug quantity at sentencing because it elected not to present that evidence at trial, the argument is without merit. The government at sentencing properly sought to establish as relevant conduct the total quantity of drugs attributable to Young.  "Relevant conduct" under the Guidelines, of course, often includes a broader range of conduct than the conduct underlying the offense of conviction.  See, e.g., United States v. Newsome, 322 F.3d 328, 339 (4th Cir. 2003).  This is particularly so in drug cases, where relevant conduct is defined to include "all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2).

The government’s decision to limit the evidence it presented at trial necessarily affected the jury’s drug-quantity determination, but that trial decision did not tie the hands of the government, or the district court, at sentencing.  There is no requirement that the government present its relevant conduct evidence at trial, nor is the district court at sentencing bound by the evidence presented at trial when determining drug quantity or other relevant conduct.