Sentencing Law and Policy

Wondering about the state and fate of the federal death penalty

A high-profile federal death penalty case that concluded earlier this week in Detroit, which is covered in this local piece headlined "Legal experts say no death penalty is no surprise: Doubtful Detroit jurors didn't put killer in the 'worst of the worst' category," got me to thinking about the current state and future fate of the federal death penalty.

Notably, there has been only three federal execution in the modern death penalty era, and none since 2003.  However, federal death row continues to grow, having roughly doubled in size over the last decade.  (Info at DPIC here and here.)

A few notable medical marijuana headlines

These two major media headlines about medical marijuana developments caught my eye this afternoon:

• From CBS News here, "Pot, Chronic Pain Relief: New Study Says Marijuana Can Help"

• From CNN here, " Medical Marijuana Ad on Television"

Two little and notable Ninth Circuit sentencing opinions

The Ninth Circuit handed down two notable little sentencing opinions this afternoon.  Here are links to the unanmious panel rulings, along with snippets from the decisions:

United States v. Wipf, No. 09-50291 (9th Cir. Aug. 31, 2010) (available here):

Appellant argued that the district court had discretion under 18 U.S.C. § 3553(a) to impose a sentence below the mandatory minimum, and that it should do so given her particular circumstances. She contended that there was a conflict between § 3553(a )— which requires district courts to impose the lowest sentence possible to achieve Congress’s sentencing goals — and the ten-year mandatory statutory minimum....

We have never addressed explicitly the question of whether 18 U.S.C. § 3553(a) permits a district court to impose a sentence below a mandatory statutory minimum.  Every other circuit to have done so has held that § 3553(a) does not confer such authority.  We reach the same conclusion.

United States v. Armstrong, No. 09-30395 (9th Cir. Aug. 31, 2010) (available here):

Richard C. Armstrong was convicted by a jury of participating in a racially motivated assault against an African American man.  Armstrong now appeals his sentence.  He contends that the district court erred in imposing two enhancements: one for selecting a victim on the basis of race and one for obstruction of justice.  Additionally, he argues that the sentence as a whole was procedurally flawed and substantively unreasonable.  We address whether a defendant may avoid an enhancement for selecting a victim on the basis of race if his co-defendant selected the victim before he did.  We decide that he may not.  Because we also disagree with Armstrong’s other two contentions, we affirm the sentence imposed by the district court.

NC's local prosecutors urging full audit of suspect state criminal lab work

There's lots of interesting and important criminal justice action and debate in North Carolina these days.  In addition to racial disparity debates roiling the administration of the death penalty, there is a broader on-going controversy involving the state's criminal justice lab.  This local article from this past weekend, which is headlined "DAs demand full SBI audit," provides some of the basics:

The N.C. Conference of District Attorneys wants a thorough accounting of all the problems at the State Bureau of Investigation crime lab. The district attorneys say they want an independent audit of all sections of the forensic lab so they might feel confident of the work they are presenting to juries.

"Restoring the public's confidence not only in the SBI lab, but our entire system of justice, is our paramount concern, and a full scale audit of the lab is a step in the right direction," said Seth Edwards, president of the conference and the district attorney in Beaufort County.

The request signals some tension between the district attorneys and Attorney General Roy Cooper, who has not called for a full-scale audit of the SBI, which he supervises. For years, Cooper and district attorneys have enjoyed close relations and have worked in tandem on many policy issues.

This month, the SBI has been attacked for delivering shoddy, unscientific work to prosecutors across the state. The News & Observer reported in a series that analysts pushed past the bounds of accepted science to deliver answers that prosecutors needed to secure convictions.

Last week, Cooper released an audit of the lab's blood analysis unit which highlighted a widespread practice of withholding critical test results that may have robbed defendants of a fair trial. Auditors highlighted 230 cases tainted by the practice. Already, legislators and defense attorneys have been calling for an independent lab, out of the hands of the SBI and the attorney general.

Senate majority leader Marc Basnight said Friday that the financial implications of sorting through all of the issues with the SBI won't be a problem or a concern for legislatures. Their priority: making it right. "I'm worried about the person who is locked up who may be innocent," Basnight said.

Edwards said the serology audit is not enough to fully understand problems across the lab. He said that "every case involving the SBI will be scrutinized unless and until a full-scale audit of the lab is performed."

Conference of district attorney officials sent their request to Cooper's office Friday morning.  A spokeswoman for the SBI said they have called for an audit of the firearms unit in addition to the DNA section.  New SBI director Greg McLeod said a new lab director will enhance the agency's performance. The conference also appealed to legislators to come up with whatever money is needed to pay for such an audit.

District attorneys across the state have worried about how to defend the reputations of their star witnesses — SBI analysts — after the public has heard about bad work at the lab.  Some, such as Union County District Attorney John Snyder, launched their own review of all homicide cases in their districts.

Notably, as detailed in this AP article headlined "NC DA: Death penalty moratorium OK in some cases," these matters are also starting to haunt the state's application of the death penalty:

The president of a district attorneys' group in North Carolina says he supports a moratorium on the execution of any death-row prisoners whose cases include evidence from the State Bureau of Investigations crime lab.

Serial knife slasher gets 433 years in prison PLUS 11 life sentences

If anyone ever wonders what kind of sentence the villians in slasher movies might face, this CNN report on a real case from California provides some clue.  Here are the details:

A transient, who was nicknamed "the box cutter," was sentenced to more than 400 years in prison for a knifing rampage against several California women.  Charles Juan Proctor was convicted this month of 22 charges including robbery and attempted murder in connection with the slashing spree, the Los Angeles County District Attorney's office said.

On Monday, Long Beach Superior Court Court Judge Gary Ferrari sentenced the 45-year-old man to 433 years plus 11 life sentences.  Proctor was also ordered to pay about $58,000 in restitution to two women he knifed in the throat, prosecutors said.

In all, there were six women who were attacked, prosecutors said. Most of Proctor's victims were shop owners attacked at their places of business, authorities said.  The remaining victims were shop employees....

"You are a violent and dangerous human being. Your conduct toward these victims is absolutely despicable," the judge told Proctor during the sentencing....  "It's unconscionable what you did to these women.  You shouldn't be on any street in the city of Long Beach.  In fact, you shouldn't be on any street in this country."

So, barring any reductions for good behavior, Procotor will begin serving his first (of eleven) life sentences in the year 2444.  At least that will be an easy number for him to remember as he rots away in prison.

Quantifying the "Worst of the Worst" in Alabama

I just came across this interesting looking empirical piece by Jennifer Leigh Adger, which is titled "Quantifying the ‘Worst of the Worst’: Victim, Offender and Crime Characteristics Contributing to ‘Heinous, Atrocious, or Cruel’ Findings in Alabama." Here is the abstract:

This study focuses on capital sentencing in Alabama.  Specifically, it will attempt to identify characteristics of homicides that distinguish cases with “heinous, atrocious, and cruel” (HAC) findings from those homicides that do not have this finding.  Critics of HAC assert that it lacks a clear statutory definition, and is, as a result, particularly vulnerable to being applied inconsistently. HAC is found in approximately forty percent of the cases in which an individual is sentenced to death in Alabama and is one of the most highly litigated aggravating circumstances across the country.

In order to examine how Alabama trial courts have been applying the HAC aggravating circumstance this study gathered data from all 414 individuals sentenced to death in Alabama from 1976 to 2008. Information was collected about procedural aspects of the cases, perpetrator and victim characteristics, and characteristics of the homicide.  I examined the relationship between HAC findings and various crime characteristics using a logistic regression model.  Even though the results of this analysis indicated that some case characteristics may be statistically relevant in predicting whether a particular case will result in a HAC finding, this study’s overall quantitative and qualitative examination was unable to identify a unifying set of characteristics that categorically distinguish the cases in which HAC is found from those where it is not.  Because of these results, it appears that Alabama’s construction of HAC does not result in a consistent application of this aggravating circumstance.

"Obama Takes a Crack at Drug Reform"

The title of this post is the headline of this notable new piece appearing the The Nation by Ethan Nadelmann that discusses the Fair Sentencing Act and related issues.  Here are excerpts:

For those of us who fought long and hard to reform the notorious 100-to-one crack/powder cocaine disparity in federal law, the Fair Sentencing Act, signed by President Obama on August 3, is at once a historic victory and a major disappointment. It's both too little, too late and a big step forward....

What is the broader significance of the new law?

First, it's one more indication that Obama is making good on his commitment to roll back the drug war. Few reformers, including myself, would have bet that Obama would deliver — in fair measure, and within eighteen months — on all three of the pledges he made while running for president. He said he'd reverse the government's antagonism to state medical marijuana laws — and he did, with the Justice Department announcing last fall that it would essentially defer to local authorities in determining whether medical marijuana facilities were operating legally. He also said he'd support ending the ban on federal funding for needle exchange programs to reduce HIV/AIDS — and he did. And he said he'd push to repeal the crack/powder disparity — which he did....

To be sure, the Obama administration has been disappointing on other aspects of drug policy.... There's plenty of work left, but at least Obama made good on his specific commitments.

The victory also showed that traditional civil rights leaders are finally beginning to prioritize criminal justice reform.... Some would argue that sentencing reform is still a low priority for most civil rights organizations, but at least African-American leaders are beginning to own the issue....

Change is clearly afoot. Black legislators are often at the forefront of sentencing and other drug policy reform efforts in state capitals. Michelle Alexander's powerful new book, The New Jim Crow, in which she calls out civil rights organizations for failing to grasp that the drug war is accomplishing what Jim Crow once did, is stirring up much-needed debate. And the endorsement of California's marijuana legalization initiative, Proposition 19, by both Alice Huffman, the influential head of the California NAACP, and the National Black Police Association proves that courageous leadership is possible....

So what's next on the agenda? The immediate priority is to make the crack/powder reform retroactive so that those already serving harsh sentences will be treated the same as those sentenced in the future. The second priority will likely be broader reform of mandatory minimum drug laws.

The third priority, I would argue, has to be national reform of marijuana prohibition laws.  Arrests for marijuana possession, typically of tiny amounts, account for 44 percent of drug arrests nationwide and disproportionately affect African-Americans.  Few are being sentenced to long prison terms, but most are acquiring criminal records that will handicap them for life.  Forty percent of Americans, possibly more, now believe that marijuana should be legally regulated and taxed. (The same cannot be said of most other illicit drugs.)  If California voters approve Prop 19 in November, the country will quickly find itself in the midst of an intense debate on marijuana policy.  But even if they don't, the issue will continue to pop up on ballot initiatives and in state legislatures and Congress.  As my colleague Jasmine Tyler said regarding the next frontier of drug policy reform and racial justice, "It's time to make marijuana 'the new crack.'"

Roger Clemens in federal court to be arraigned today

This AP article, headlined "Clemens heads to DC, this time for court," reports on today's (legal) sports news. Here is how it starts:

On this trip to Washington, Roger Clemens will be in a courtroom, not in Congress. His defiant stance is expected to remain the same, even if his statement is much shorter. Something along the lines of, "Not guilty." The seven-time Cy Young Award winner is scheduled to be arraigned Monday in the nation's capital on a six-count indictment alleging he lied to Congress when he said he never used steroids or human growth hormone.

In what should be a short court appearance, Clemens will appear before U.S. District Judge Reggie Walton. If convicted on all charges, he could face up to 30 years in prison and a $1.5 million fine, though under U.S. sentencing guidelines, he would probably face no more than 15 to 21 months in prison.

All signs point toward him fighting. He came to Congress after being mentioned repeatedly in the Mitchell Report — the damning breakdown of the sport's steroid problem released in 2007.

In front of a House committee the next year, Clemens said: "Let me be clear. I have never taken steroids or HGH." Before his indictment was handed down Aug. 19, Clemens was offered a plea deal that he turned down, and afterward, he showed no signs of backing down.

"I look forward to challenging the Governments accusations, and hope people will keep an open mind until trial," Clemens wrote on Twitter after the indictment. "I appreciate all the support I have been getting. I am happy to finally have my day in court."

A potent attack (from a US Sentencing Commission lawyer) on the make-up and commitments of law professors

Thanks to notable (and mostly positive) buzz at law-prof blogs like Professor Bainbridge, TaxProf, Law Librarian, and PrawfsBlawg, I just came across this notable paper on SSRN, by Brent Newton, which it titled "Preaching What They Don't Practice: Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy." Here is the abstract:

In response to decades of complaints that American law schools have failed to prepare students to practice law, several prominent and respected authorities on legal education, including the Carnegie Foundation for the Advancement of Teaching, recently have proposed significant curricular and pedagogical changes in order to bring American legal education into the twenty-first century.  It will not be possible to implement such proposed curricular and pedagogical reforms if law schools continue their trend of primarily hiring and promoting tenure-track faculty members whose primary mission is to produce theoretical, increasingly interdisciplinary scholarship for law reviews rather than prepare students to practice law.  Such impractical scholars, because they have little or no experience in the legal profession and further because they have been hired primarily to write law review articles rather than primarily to teach, lack the skill set necessary to teach students how to become competent, ethical practitioners.  The recent economic recession, which did not spare the legal profession, has made the complaints about American law schools’ failure to prepare law students to enter the legal profession even more compelling; law firms no longer can afford to hire entry-level attorneys who lack the basic skills required to practice law effectively.  This essay proposes significant changes in both faculty composition and law reviews aimed at enabling law schools to achieve the worthy goals of reformists such as the Carnegie Foundation.

Though this paper caught my attention principally because of its (reasonable, though somewhat strident) attack on modern law professor pedigrees and elite law school commitments, the bio of the author (as set forth in the piece's first footnote) ought also be of interest to readers of this blog:

Deputy Staff Director, United States Sentencing Commission; Adjunct Professor of Law, Georgetown University Law Center and Washington College of Law, American University.... The opinions expressed here are my own and should not be attributed to any of them or to the United States Sentencing Commission.  My perspective on legal education has been informed by having taught 32 law school courses – both doctrinal courses and “practical” courses – as an adjunct professor or lecturer while working as a full-time practitioner (including as a public defender for sixteen years).

"Prosecutors seek to revoke swindler's bond for lying about cancer"

The title of this post is the headline of this amusing (though still serious) story from last week's Chicago Tribune.  Here are the details:

The government is asking a federal judge to revoke the bond of David Hernandez, saying he attempted to delay his sentencing on a fraud conviction by fabricating a letter from a doctor that said he was starting treatment for cancer.

Hernandez, of Downers Grove, pleaded guilty in January to a Ponzi-style scheme that bilked more than 200 people of their savings.  The swindle allegedly garnered $6.3 million for Hernandez, who bankrolled a now-defunct Chicago sports-talk radio station and made personal purchases.

Federal prosecutors say the fake letter indicates Hernandez is a flight risk, citing a previous case against Hernandez in which he threatened to flee.  In addition to the letter, which indicated that he would undergo several months of cancer treatment, including radiation, chemotherapy and surgery, Hernandez failed to show up in court for a status hearing Aug. 19 after his wife claimed he had a stroke, according to court documents.

A pretrial services officer said they were able to verify that Hernandez was in the hospital but not that he had a stroke, court documents indicate.  Hernandez said test results were negative and no follow-up appointments were scheduled, according to the officer....

Umang Patel, a doctor at the Woodridge Clinic who had allegedly signed the letter saying Hernandez had cancer, told a federal agent his signature had been forged and that Hernandez did not have cancer.

A thoughtful call for Congress to slightly increase federal good-time credit

Steve Sady, the public defender who for years argued for a defendant-friendly interpretation of the federal statute providing for 15% good time credit for prisoners, has this new commentary in the National Law Journal.  The piece is headlined "Too much time in prison," and here is how it starts and ends:

On June 7, my federal public defender office had the disturbing experience of losing Barber v. Thomasin the U.S. Supreme Court, a case that — if the outcome had been different — would have prevented up to 36,000 years of federal overincarceration, saving taxpayers up to $951 million.  The issue was whether the federal statute that allowed federal prisoners to earn up to 54 days of good-time credits for each year of their sentences meant that a prisoner could reduce the sentence imposed by up to 15%.  This sounds like an easy figure to calculate (54/365), but the federal Bureau of Prisons (BOP), based on time served, came up with a complex formula that works out to 12.8% of the prisoner's sentence, or only 47 days per year of the sentence imposed.  In light of the Court's majority ruling approving the BOP's interpretation of 12.8%, Congress should now amend the good-time credit statute to require the 15% rate against the sentence imposed that has received bipartisan support in previous legislation and that provides the basis for the federal guidelines' sentencing ranges....

Although the Supreme Court has made its decision, the result is bad public policy.  It is now up to Congress and the administration to step up and correct the problem.  Congress can fairly and safely lower incarceration rates for well-behaved prisoners, thereby reducing prison overcrowding and preserving public resources, by amending the federal good-time statute to ensure that prisoners can receive good-time credits of up to 15% of the sentence imposed.  By doing so, Congress would reaffirm the value our society and Constitution place on human freedom, while reinforcing good behavior by federal prisoners.

Pennsylvania still trying to decide how to implement Atkins

This local article details that, nearly a decade after the SCOTUS Atkins decision making mentally retarded defendants ineligible for execution, Pennsylvania is still trying to decide how to implement the ruling.  The piece is headlined "Should a jury or judge determine whether a murderer is mentally retarded?," and here are excerpts:

Eight years ago, the U.S. Supreme Court ruled that a murderer who is mentally retarded cannot face the death penalty because it's cruel and unusual punishment. But the ruling allowed states to decide how to handle such cases, and in Pennsylvania, officials are still debating whether a judge or a jury should determine whether a defendant is mentally retarded.

State senators voted 45-2 last year in favor of a bill that would allow a judge to determine whether a defendant is mentally retarded before a trial begins. The House Judiciary Committee is now debating the issue.

In the community, prosecutors, defense attorneys and advocates for the mentally disabled differ on whose role it is to make the call. Some cite financial concerns as part of their argument. Local defense attorney Jeffrey Marshall, who is certified to handle death-penalty cases,

said he sees it as an eligibility issue and thinks a judge should make the decision before trial. It's similar to a judge determining whether a defendant is competent to stand trial. "I see it as a separate issue," Marshall said.

Otherwise, a jury would have to make the determination after the defendant is found guilty of first-degree murder. He questioned whether the jury would have a separate hearing on the issue before considering the aggravating and mitigating circumstances for the death penalty phase....

Others, however, think a jury should determine whether a murderer is mentally retarded. The Pennsylvania District Attorneys Association is one. "We have a strong tradition in Pennsylvania in putting our faith in juries, and they have served us well for over 200 years," executive director Richard Long said.

Juries listen to the evidence and make difficult decisions -- including whether a defendant is guilty -- and they do it well, he said. It's an "elitist move" to say that a jury is not capable of coming to a proper decision, Long said.

Of course, as highlighted in this AP article, which is headlined "Pa.'s death penalty exists in name only," it is not clear whether any Pennsylvania capital defendant will face the prospect of execution anytime soon.

Paris Hilton perhaps facing hard time after arrest in Nevada for cocaine possession

Thanks to Paris Hilton, we now have a party girl successor to Lindsay Lohan in another criminal justice tangle to follow on this blog.  Here are the details via this new CBS News story: 

Celebrity heiress Paris Hilton was arrested Friday night and booked into the Clark County Detention Center for possession of a controlled substance, described by Las Vegas Metro Police as cocaine.  CBS News legal analyst Lisa Bloom says a conviciton would probably mean more time behind bars for Hilton.

She was a passenger in a car when Metro conducted a traffic stop around 11:30 p.m. Friday in front of the Wynn Hotel and Casino on the famed Las Vegas Strip, according to Officer Marcus Martin, public information officer, who spoke with CBS affiliate KLAS-TV.

During the course of the traffic stop, police say, they conducted a search and found an undisclosed amount of cocaine in Hilton's purse.  An officer indicated to KLAS that a possible odor of marijuana was initially detected, requiring further interaction with police.

Hilton was charged with possession of a controlled substance.  A clerk at the Clark County Detention Center indicated early Saturday morning that Hilton "had been booked and released." Further details were not available from the jail....

Hilton was arrested this summer after the Brazil-Netherlands World Cup match in Port Elizabeth, South Africa, on suspicion of possession of marijuana.  The case was then dropped at a midnight court hearing.

Hilton also pleaded no contest in 2007 to alcohol-related reckless driving and was sentenced to 45 days in jail.  After spending about 23 days in jail, Hilton told U.S. television host Larry King that the experience caused her to re-evaluate the role partying played in her life.  She said she wanted "to help raise money for kids and for breast cancer and multiple sclerosis."

Lisa Bloom told "Early Show on Saturday Morning" co-anchor Chris Wragge she thinks Hilton is "probably" staring at more jail time if she's convicted.  "In Nevada," Bloom explained, "the sentence for a conviction of a Schedule 2 narcotic, which is what cocaine is, is probation-to-four years if it's a relatively small amount.  If it's a larger amount, four grams or more, it could be up to 20 years in state prison.  Assuming it's a small amount, I don't think she would get probation this time. ... She has a prior conviction in California.  We remember the reckless endangerment charge. And she violated her probation twice in California.  So, if she's convicted, I expect her to do some time on this."

"Nevada is a cvery tough law and order state, notwithstanding Las Vegas' reputation.  Judges are very tough there on drug crimes," Bloom added.... Not only that, said Bloom, but, "Judges do not want to appear soft on a celebrity. We saw that with Lindsay Lohan going to jail, and now we're gonna see that with Paris Hilton (if she's convicted)."

"Anesthesia shortage may delay executions"

The title of this post is the headline of this new USA Today piece.  Here are excerpts:

A nationwide shortage of several anesthesia drugs has left several states scrambling to find enough doses to carry out lethal injections — potentially delaying executions well into next year.

Kentucky announced this week that it would not be able to carry out two executions, despite pending death warrants, because the state has only enough sodium thiopental, also known as Pentothal, to perform a single lethal injection. "We have reached out to some other states, but that has not been fruitful," said J. Michael Brown, secretary of the Justice and Public Safety Cabinet. "We've had other states call us trying to find it."

Oklahoma has also been forced to delay an execution after a federal judge said a hearing needs to be held before the state could substitute a drug for the state's remaining dose of sodium thiopental. That dose "wasn't at the quality we wanted," said Jerry Massie, a spokesman for the state Department of Corrections.

Ohio prison officials have been closely watching the nationwide shortage after they feared they may not be able to carry out a lethal injection last spring because of limited supplies, according to Ohio corrections spokeswoman Julie Walburn.

Hospira, based outside Chicago, the sole U.S. manufacturer of sodium thiopental, says manufacturing problems have hindered production of the drug, though spokesman Dan Rosenberg declined to elaborate. "We are working to get it back on the market as soon as possible," Rosenberg said.

Rosenberg said Hospira won't have more of the drug available until sometime in the first quarter of 2011....

Of the 35 states that allow the death penalty, nearly all use sodium thiopental as part of the lethal cocktail administered, according to the Death Penalty Information Center. New Mexico voted to abolish the death penalty in 2009, but the repeal was not retroactive, leaving two people on the state's death row, according to the Center's Web page. Both Ohio and Washington use a one-drug protocol using the sodium thiopental.

Second Circuit holds Apprendi precludes increased fine based on judicial fact-finding

Today the Second Circuit handed down an interesting Apprendi decision in US v. Pfaff, No. 09-1702 (2d Cir. Aug. 27, 2010) (available here), a case which, as the Pfaff panel notes, has been called "the largest criminal tax case in American history."  Perhaps size really does matter, because this big case produces a notable per curiam ruling which starts this way:

Defendants-Appellants Robert Pfaff, Raymond J. Ruble, and John Larson appeal from judgments of conviction, and Larson from his sentence, entered in the United States District Court for the Southern District of New York (Kaplan, J.).  Following a ten-week jury trial, Appellants were convicted of tax evasion for designing, implementing, and marketing fraudulent tax shelters.

In a separate summary order filed today, we AFFIRM the Appellants’ convictions as well as Larson’s term of imprisonment, the only term challenged on appeal.  Here, we address a single question: whether the district court plainly erred by fining Larson $6 million, pursuant to 18 U.S.C. § 3571(d), based on the court’s finding that Larson caused a pecuniary loss in excess of $100 million, when the maximum fine absent such a finding would have been $3 million, pursuant to 18 U.S.C. § 3571(b)(3).  We hold that the district court’s fine violated Apprendi v. New Jersey, 530 U.S. 466 (2000), and that it constituted plain error.  Therefore, we VACATE and REMAND for the district court to reconsider Larson’s fine.

Animal abuser registry proposed by county lawmaker in New York

This local story reports on a novel proposal to expand the use of criminal registries to animal abusers.  The piece is headlined "Suffolk law would place animal abusers on registry: Public could access names, photos of those convicted," and starts this way:

A county lawmaker is looking to create a public registry of convicted animal abusers in a move that would make Suffolk County the first municipality in the nation to create such a list to shame abusers and prevent them from adopting animals....

If passed, the names, aliases, addresses and photographs of animal abusers would compiled in a searchable database, much like the state's sex offender registry.

The convicted abusers would pay a $50 annual fee for upkeep of the registry, and those who fail to register would be charged $1,000 or face jail time.  The bill would also require pet stores and animal shelters to check the registry before allowing anyone to purchase or adopt an animal, and would prohibit giving an animal to a convicted abuser.

Debate in Hawaii over how tough to get on drunk drivers who kill

This local story from our 50th state, which is headlined "Prosecutors, defense attorneys spar over sentencing of deadly drivers," highlights that sentencing judges are sometimes inclined to give a break to drunk drivers even when they kill. Here are excerpts:

Honolulu prosecutors on Wednesday unsuccessfully sought a 15-year prison term for the driver responsible for a deadly crash in Mokuleia four years ago. It was the latest in a string of sentencing disappointments for them and the families of crash victims.

We've seen it many times now -- a tearful plea by a person whose loved one was killed in a crash involving drunken driving and/or excessive speeding. "I really wish you would think really hard on the sentence," Joyce Somera, victim's sister, told the judge at a sentencing Tuesday.

Often, a family's loss is compounded by a seemingly lenient sentence for the driver responsible. Keanan Tantog killed a person and injured another, and received probation and a one-year jail term.

Tyler Duarte took two lives, and was sentenced to probation and 18 months in jail.  Billy Lamug -- who wasn't intoxicated but was excessively speeding -- killed two people and injured a third.  He was sentenced to probation and community service.

"Each one of these families have lost somebody that they've loved forever," Douglas Chin, acting city prosecutor, said. "What's too bad is it seems like the court is more often taking into consideration what's happening for the defendant."

A judge sitting on a standard second-degree murder case has no discretion.  It's a mandatory life sentence for that intentional killing. But in a vehicular homicide, whether negligent or reckless, a judge has discretion and must consider several factors, including the defendant's criminal history.  If there's no prior record, the driver will likely sidestep the maximum prison term -- even if alcohol was involved in the deadly crash.

"In these cases, a judge is faced with a situation where a good person is dead, but a good person's life now also hangs in the balance," Victor Bakke, defense attorney, said. "The judge's job is not revenge."

"The argument that they've never done it before, it's never happened, doesn't hold much water with me because the fact is they've done it now," Sen. Sam Slom, Senate Judiciary Committee member, said. Slom says a decade ago, very few of these drivers went to jail at all.  But since then, the laws have become tougher.  In light of the recent sentences being handed down, he says the committee should revisit the issue next session.

Pepper providing a bit of spice to SCOTUS sentencing docket

Here at the National Law Journal,  Marcia Coyle has a new piece on the Pepper federal sentencing case on the Supreme Court's docket for the upcoming term.  The piece is headlined "Brief of the Week: Conflict over rehabilitation and resentencing," and here are excerpts:

The [Pepper] case offers the justices an opportunity to provide some guidance to sentencing judges about how much weight to give an offender's successful rehabilitation if he or she must be resentenced following appeals....

Pepper ... actually sought prison time in order to get into a 500-hour drug treatment program offered at a federal prison in Yankton, S.D. The judge sentenced him to 24 months in prison so he could qualify for the drug program. In 2005, he finished his prison sentence and began five years of supervised release.

In the meantime, however, the government appealed the 24-month sentence. In 2009, after three resentencing hearings, four reviews by the U.S. Court of Appeals for the 8th Circuit, another appeal by the government and an appeal by Pepper, Pepper was ordered back to prison by a different sentencing judge for an additional 41 months.

At the time of that last sentencing, Pepper had turned 29, had been married for two years to a woman with a 7-year-old daughter and was their primary support. He also was attending college full-time and was a Sam's Club overnight assistant manager who had been named associate of the year.

In Pepper's case, the 8th Circuit said, "We commend Pepper on the positive changes he has made in his life. However, the law of our circuit is clear. '[E]vidence of [a defendant]'s post-sentence rehabilitation is not relevant and will not be permitted at resentencing because the district court could not have considered that evidence at the time of the original sentencing.'"

Pepper's counsel, Alfredo Parrish of Kruidenier Dunn Boles Gribble Parrish Gentry & Fisher in Des Moines, Iowa, contends that the circuits are split on whether judges may consider post-sentencing rehabilitation in granting a downward departure from a guideline-recommended sentence....

Parrish relies in part on Gall v. U.S., a 2007 decision in which the justices rejected the 8th Circuit's policy that sentencing judges must justify downward departures with findings of extraordinary circumstances. The Gall case involved post-offense rehabilitation. "There appear to be hints in Gall that considering post-offense and post-sentencing rehabilitation in extraordinary circumstances is permissible at sentencing," Parrish said in his petition.

In a twist in the Supreme Court, the government now agrees with Pepper that post-sentencing rehabilitation is a factor to be considered. In its brief in opposition to Pepper's petition, then Solicitor General Elena Kagan wrote: "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.'"

The government had urged the court to vacate the 8th Circuit's judgment and remand the case for consideration of the government's latest views and recent case law. But the justices decided to hold arguments.

The justices appointed Adam Ciongoli, a former clerk to Justice Samuel Alito Jr. and now general counsel of Willis Group Holdings, to defend the 8th Circuit judgment.

And on July 22, the district judge who added the 41 months to Pepper's sentence — Chief Judge Linda Reade of the Northern District of Iowa — approved his release from prison pending the decision in the Supreme Court.

This is one of 11 cases from which now Justice Kagan has said she will recuse herself because of her involvement in the case. The Court has not scheduled arguments yet.

"Blagojevich: Focus on Sentencing, Not a Retrial"

The title of this post is the headline of this intriguing commentary by attorney Lonna Saunders at the Huffington Post providing advice to US Attorney Patrick Fitzgerald.  Here are excerpts:

Memo to US Attorney Patrick Fitzgerald: You won.  Due to your legal team's efforts, former Illinois Governor Rod Blagojevich is a convicted felon.  Remember how they got Al Capone, another Chicagoan?  Not on racketeering nor on his mob-related activities. He was thrown in jail for his IRS woes.

Instead of preparing for a retrial, focus your time and talent on Blagojevich's sentencing hearing for lying to the FBI.  That is where you should focus your efforts.  That is what you should be discussing with Judge James Zagel-- a date for the sentencing hearing.  It is not as sexy as some of the other counts, but it is the meat and potatoes of what your office does . And let's face it.  The City of Big Shoulders, is a meat and potatoes type of town.

The entire nation has Blagojevich battle fatigue.  We can't take it any more.  Despite Blago's effing golden remark captured on the government's wiretaps of his conversations, President Barack Obama's US Senate seat was not sold to the highest bidder.  For if it had been, Rod Blagojevich's campaign war chest would have been six million dollars richer. But it wasn't....

This isn't just one woman writer's humble opinion.  It is a consensus of opinion from around the horn. It is rare to see the editorial boards of such politically disparate publications as The Wall Street Journal and The Washington Post, agree on anything.  Yet after the Blagojevich jury verdict was announced, both papers editorialized that your office should skip a retrial even though it is your right to seek one.  Ditto Republican consultant Mary Matalin and Democratic TV talker Roland Martin as well as political commentator David Gergen who has worked both sides of the aisle, most recently for the Clinton White House.  All three were on CNN last week, opining against a retry of the Blagojevich brothers.

So, are you listening? To repeat. Mr. US Attorney, sir, you got what you sought. Rod Blagojevich is now a convicted felon. You won.

On behalf of the people of the state of Illinos and the nation, let's put our money and mouthpiece on the penalty phase.  Will Blago serve time in prison?  If so, at which facility?  For how long?  Will he pay a fine?  How much?  Will he be required to do community service? What and for how long?  Will he be required to make restitution?  Will he be confined to his home with an ankle bracelet?  Will he get to keep his hair or be forced to trim it?  Just kidding on that last one.  But for a guy who spent thousands on a single business suit, the mere thought of having to wear an orange jumpsuit every day, could be punishment enough.  OK, just kidding on that one, too....

Let's move forward, US Attorney Patrick Fitzgerald, and spend the public's limited tax dollars and limited resources on catching some other bad guys.  You did what you said you would do. Another former governor is a convicted felon.  Hey, maybe George Ryan and Blago could even share a cell together.  Stranger things have happened.

Please accept the jury's verdict and move on. Thank you for your consideration.

In related news, this AP story reports that only one of the Blago brothers is facing a retrial after a court hearing today: "Former Illinois Gov. Rod Blagojevich is set to go back on trial in early January, but he will stand alone as a defendant this time after prosecutors dismissed all corruption charges against his brother on Thursday. U.S. District Court Judge James Zagel said Rod Blagojevich's retrial will start the week of Jan. 4, but he did not set a specific date."

Does everyone agree that USA Fitzgerald ought to forget about a retrial?  Does anyone think that forcing Rod Blagojevich to shave his head and to go on a reality shown with an ankle bracelet might be a fitting shaming sanction?

Two long and notable Eighth Circuit sentencing opinions

One hallmark of the Eighth Circuit's sentencing work is its tendency to produce short and sweet (and usually pro-government) opinions.  For this reason, in addition to the substantive analysis, two lengthy (and divided) opinions handed down today seem especially noteworthy.  Here are unofficial summaries of the rulings (with links) from the Eighth Circuit's website:

United States v. Durham, No. 09-2951 (8th Cir. Aug. 26, 2010) (available here):

The court erred in applying a two-level enhancement for distribution of child pornography under Guidelines Sec. 2G2.2(b)(3)(F) as the court erred in finding defendant was knowledgeable about the Limewire file-sharing software and that he knowingly used the program to distribute child pornography; on remand, the court should consider whether the record supports imposition of an enhancement under Guidelines Sec. 2G2.2(b)(1); no error in imposing special conditions of supervised release which allow the probation office to track defendant's whereabouts, prevent his access to child pornography and limit his other access to the Internet; Judge Beam, concurring in part and dissenting in part.  Judge Gruender, concurring in part and dissenting in part. (Judge Gruender's opinion announces the judgment of the court with respect to imposition of the condition limiting Internet access.)

United States v. Anderson., No. 09-1733 (8th Cir. Aug. 26, 2010) (available here):

District court did not in imposing an enhancement under Guidelines Sec. 2D1.1(b)(1) for possession of a firearm in connection with the drug offense; sentence was not unreasonable. Judge Kornmann, concurring.