March 20, 2010
"Rethinking Sex Offender Laws for Teenage Texting"The title of this post is the headline of this new New York Times article. Here is an excerpt:
In most states, teenagers who send or receive sexually explicit photographs by cellphone or computer — known as “sexting” — have risked felony child pornography charges and being listed on a sex offender registry for decades to come.
But there is growing consensus among lawyers and legislators that the child pornography laws are too blunt an instrument to deal with an adolescent cyberculture in which all kinds of sexual pictures circulate on sites like MySpace and Facebook.
Last year, Nebraska, Utah and Vermont changed their laws to reduce penalties for teenagers who engage in such activities, and this year, according to the National Council on State Legislatures, 14 more states are considering legislation that would treat young people who engage in sexting differently from adult pornographers and sexual predators.
And on Wednesday, the first federal appellate opinion in a sexting case recognized that a prosecutor had gone too far in trying to enforce adult moral standards. The opinion upheld a block on a district attorney who threatened to bring child pornography charges against girls whose pictures showing themselves scantily dressed appeared on classmates’ cellphones.
“There’s a lot of confusion about how to regulate cellphones and sex and 16-year-olds,” said Amy Adler, a law professor at New York University. “We’re at this cultural shift, not only because of the technology, but because of what’s happening in terms of the representation of teen sexuality as you can see on ‘Gossip Girl.’”
March 19, 2010
Questions about the "when" and "now what" for crack/powder sentencing reform
Though there is still much to say about the virtues and vices of this week's compromise bill passed by the Senate to cut the quantity ratio of powder to crack triggering statutory mandatory minimums to roughly 18:1 (basics here and here), I have lately been thinking about when this compromise bill will be considered by the House and about now what happens to crack sentences while the legislative debate (and subsequent guideline revisions) develop. Specifically, here are some of the questions kicking around my head, many of which are inspired by the fact that, on average, more than 100 crack sentences are imposed every week in federal courts:
1. Could and will the House take up this issue as soon as the pending health care vote takes place or will we have to wait lots of weeks and months for the House to act?
2. Will the US Sentencing Commission be able to pass new crack guidelines within the 90 day specified in the Senate bill? In other words, could we possible have all new crack guidelines in place before Independence Day?
3. Are defendants now facing crack sentencing all moving for postponements in the hope of taking advantage of the (likely?) new lower guidelines that could be law by the second half of 2010?
4. Can defendants now make new and stronger arguments that any and all sentence imposed pursuant to the old crack guidelines are unreasonable because the Senate has unanimouslydeclared, in essence, that those old guidelines are too severe and unfair?
I would be grateful to hear comments that are specifically directed to any of these practical issues or related when and now what questions in the wake of this week's Senate action.
Some related recent posts:
- Unanimous(!!) vote by Senate Judiciary Committee to reduce (but not eliminate) crack/powder disparity
- Varied reactions to the crack/powder reform work of the Senate Judiciary Committee
- Full Senate passes bill to reduce (but not eliminate) crack/powder disparity
- Will and should House adopt the crack/powder reform compromise passed by Senate?
Growth and costs of federal prisons lamented in House hearingAs detailed in this Courthouse News Service report, which is headlined "Prisons Swollen by Foreigners, Druggies," the size and nature of the national (and federal) prison population was a topic of discussion during a House hearing yesterday. Here are some of the particulars:
The U.S. has more prisoners per capita than any other nation while the federal prison populationalf of it made up of drug offenders s swollen by growing numbers of women and foreign inmates. They are stretching the seams of institutions that are nearly 40 percent over capacity, said prison director Harley Lappin. At a Thursday hearing, Committee Chairman Alan Mollohan asked, "Where in the world are you going to put these people?"
The federal government holds 210,000 people in prison. Roughly 18 percent of the inmates are housed in private prisons run by contractors. The other 172,000 inmates are squeezed into government facilities that only have a listed capacity of 126,000 beds, which means the buildings hold 37 percent more prisoners than their designs allow.
In his testimony on Thursday, prison director Harley Lappin said the prison population is expected to grow by an additional 7,000 members next year.
"It's clear that the bureau of prisons is heading down an unsustainable path," West Virginia Democrat Mollohan said as chair of the Commerce, Justice, Science and Related Agencies Subcommittee as it reviews the Federal Prison Bureau's fiscal year 2011 $6.1 billion budget request, which is roughly $6 million more than this year's budget.
The United States already imprisons more people per capita than any other nation and its prison population continued to grow by 7,091 inmates in 2009, with 7,000 more expected by the end of this year, and again next year. Each inmate costs taxpayers $27,000 a year.
"We're number one. That's not very good," Virginia Ranking Member Frank Wolf said. Lappin said the phenomenon is "tragic" and blamed the growth on a variety of factors, pointing to the exponential growth in women prisoners as one. They currently make up 6.5 percent of the prison population.
The United States has also seen a 45 percent increase in the last two years of people booked for immigration crimes and Lappin noted that countries like Vietnam and Cuba refuse to take back their convicted citizens, leaving the United States to hold the foreigners indefinitely. More than a quarter of the federal prisoners are non-citizens, numbering 55,000.
"Polanski lawyers appeal, demand sentencing in absence"The title of this post is the headline of this Reuters piece reporting the latest news in the Roman Polanski legal saga. Here are excerpts from the piece:
Lawyers for Roman Polanski filed an appeal on Thursday demanding the fugitive film director be sentenced in California for a decades-old sex crime even as he remains under house arrest in Switzerland. They said Polanski was entitled under California law to be sentenced without returning in person to Los Angeles on a charge of having unlawful sex with a 13-year-old girl in 1977....
A Los Angeles judge in January rejected Polanski's request to be sentenced in absentia, and insisted he appear in court. Polanski's lawyers have been fighting to have the unlawful sex case dropped, alleging judicial misconduct in the original legal proceedings when the judge considered sentencing.
Until this newest legal salvo, it was believed that those allegations were first revealed in a 2008 film documentary about Polanski. But Polanski's attorneys said recent testimony from a key player in 1977 reveals prosecutors knew of the misconduct from the start and concealed it from the defense.
March 18, 2010
Virginia electrocutes murderer who taunted prosecutors after first death sentence was reversedAs detailed in this local article, "Paul Warner Powell, whose taunting letter to prosecutors led to his conviction, was electrocuted tonight at 9:09 for the 1999 murder of a 16-year-old girl in her Manassas-area home." Here are more details:
Powell's first capital-murder conviction was thrown out on appeal. Believing he no longer could face a death sentence, he wrote Prince William County Commonwealth's Attorney Paul B. Ebert an abusive letter in which he admitted he attempted to rape Stacie and boasted about the crimes in detail. The letter provided grounds for Powell to be tried again for capital murder and sentenced to death....
Powell chose to die in the electric chair instead of by injection. Virginia death row inmates were given the choice on Jan. 1, 1995. If an inmate refuses to choose, injection becomes the default means. Two cycles of electricity are used in executions, each lasting 90 seconds with a pause between them. Since the choice was made available, 76 inmates have died by injections and now six by electrocution.
The execution was the 106th in Virginia since the U.S. Supreme Court allowed the death penalty to resume in 1976. Powell's death leaves 12 men and one woman sentenced to death in the state.
Will and should House adopt the crack/powder reform compromise passed by Senate?
As detailed in this post, late yesterday the full US Senate unanimously approved legislation to reduce (but not eliminate) the notorious 100:1 ratio in the amount of powder cocaine versus crack cocaine that trigger statutory mandatory minimum sentences. This compromise legislation as passed by the Senate cuts the ratio to roughly 18:1 and does so by keeping powder sentences the same and essentially reducing the severity of the mandatory minimums for crack offenses. As I have noted in prior posts, most advocates for crack/powder sentencing reform view this Senate compromise as an improvement over the status quo, but a lot less than was sought/hoped by reform advocates.
The next big question, then, is whether the House will adopt this compromise so that it can become law (and, relatedly, whether the most vocal advocates for more significant reform will urge the House to adopt or reject this Senate passed reform). Thought I can make lots of strong arguments for why the House should not be content with what has passed in the Senate, I also think that getting even some little reform done ASAP is now a lot more important than getting the best possible reform.
In short, to answer the normative question in the title of this post, I think the House should adopt the crack/powder reform compromise in the exact form that was passed by Senate yesterday. (I reach this view in part because, as I will explain in future posts, the US Sentencing Commission could and should "enhance" the impact of this reform through subsequent guideline amendments.) But I am not sure if the House will, or if others agree that the (less-than) half-a-loaf crack fix passed by the Senate is good enough for now.
Lots of interesting little sentencing rulings from the Sixth Circuit
This morning brings a lot of notable little sentencing rulings from the Sixth Circuit, all of which practitioners should make sure to review if they have a pending matter related to these issues:
- Application of the safety-valve guideline sentencing adjustment (defendant loss in this case)
- Habeas relief from long state sentence based on problematic priors (defendant loss in this case)
- Defense authority to file a second habeas position raising new ex post facto claim (defendant win in this case)
Oklahoma legislature moving forward with capital child rape billAs detailed in this article in Tulsa World, an Oklahoma Senate panel "on Wednesday passed a measure calling for the death penalty for certain sex offenders despite concerns that the legislation runs afoul of a recent U.S. Supreme Court ruling." Here's more:
House Bill 2965 would allow for the death penalty for someone convicted of raping a child age 6 or younger if the perpetrator had been convicted of a felony previously for which the punishment included a term of 10 years or more in prison.
The measure would not apply to a parent, guardian or someone who has custody of a child. Rep. Rex Duncan, R-Sand Springs, the measure's House sponsor, said that in child-custody cases, all sorts of things can be alleged. The exclusion was designed to prevent people involved in custody cases from facing the death penalty based on possibly false accusations.
Sen. Richard Lerblance, D-Hartshorne, said the measure runs counter to a U.S. Supreme Court decision that struck down a Kentucky law that imposed the death penalty for the rape of a child. In that 2008 decision — in Kennedy v. Louisiana — the court held that a death sentence for someone who raped but did not kill a child and who did not intend to assist another in killing the child was unconstitutional.
Lerblance said that although raping a child is "dastardly," the nation's high court has ruled on the issue. He said the bill is plainly unconstitutional and that lawmakers have sworn to uphold the U.S. Constitution. "How in good conscience can you ask us to vote on a bill like this?" he asked.
Sen. Anthony Sykes, R-Moore, the measure's Senate sponsor, said the makeup of the court has changed since the 2008 decision. Duncan added that the measure is more narrowly written than a 2006 Oklahoma law that also was struck down by the 2008 high-court ruling.
I have no problem with the Oklahoma legislature or any other elected body continuing to try make certain forms of child rape subject to the death penalty despite the Supreme Court's ruling in its 2008 Kennedy v. Louisiana decision. I do not think the changed composition of the Supreme Court since the 2008 fully justifies such action; rather, the fact that the Supreme Court has persistently asserted that the Eighth Amendment is responsive to "evolving standards of decency" supports and justifies elected bodies expressing through legislation and other means their current view of these constitutionally significant standards.
Indeed, I think the passage by Oklahoma and a number of other states of focused capital child rape legislation ought to prompt the Supreme Court to reconsider its Kennedy ruling. After all, the Supreme Court has repeatedly reversed prior precedent to narrow the reach of the death penalty when more state legislatures have enacted laws that narrow their own capital statutes. Both logic and sound constitutional jurisprudence suggests that the Court should be prepared to reverse prior precedent to expand the reach of the death penalty when more state legislatures have enacted laws that expand their own capital statutes.
Some local coverage of the new prison numbers from Pew
The report on state prison populations released yesterday by the folks at Pew (covered here) has prompted lots of notable and valuable local coverage of state prison realities. Here is a sampling:
- Alabama inmate numbers on rise
- California's prison population falls for the third straight year
- Florida's prison population grew in last year
- MI sees 2nd-highest drop in prisoners
- Report: NH State Prisons Show Decline in Inmate Numbers
Full Senate passes bill to reduce (but not eliminate) crack/powder disparity
As detailed in this AFP report, the full "US Senate Wednesday unanimously approved legislation to reduce 20-year-old sentencing disparities for offenders caught with crack cocaine versus the drug in its powder form." Here are more of the basics:
The bill, which must still pass the House of Representatives before President Barack Obama can sign it into law, cuts the 100:1 ratio in the amount of powder cocaine versus crack cocaine that trigger the same sentence.
The legislation as introduced would have cut the ratio to 1:1, but dealmaking to ensure its passage resulted in a compromise ratio of 18:1.
This statement from FAMM President Julie Stewart provides more of the (compromise) story and explains why even those eager to see more done on this front are still likely to favor final passage of this (partial) sentencing reform:
After 24 years on the books, 15 years of trying, 7 Congresses, 10 hearings, three Sentencing Commission reports, and 75,000 defendants sentenced...today, the U.S. Senate voted -- unanimously -- to make crack cocaine penalties fairer....
If the bill that left the Senate on its way to the House today becomes law, it will take 28 grams of crack cocaine to trigger the five-year sentence and 280 grams to hit the 10-year penalty. And people sentenced for simple possession of crack cocaine will no longer be subject to a five-year mandatory minimum.
This is a big improvement over current crack sentencing penalties. It could lower sentences for almost 3,000 people each year. However, the bill is not retroactive and would not help anyone who is already in prison serving a crack cocaine sentence. So, after working on this issue for almost as long as FAMM has been in existence, I'm not thrilled that this is all we got....
[G]iven the politics of the day (and the past 15 years) the Senate bill is likely to be the best we can get. To their credit, there were a number of Democrats and Republicans who supported an even better version of this bill, but not enough. It was clear that nothing short of this compromise would actually make it out of the Senate. Without a Senate bill, crack sentencing reform would be dead once again.
The bill now goes to the U.S. House of Representatives where it will meet some obstacles. But because the Senate unanimously approved the bill, it increases its chances that it might make it out of the House. We'll be working closely with House members to see if we can improve the bill....
Since 1995, when Congress killed the reform of the crack sentencing guidelines, nearly 75,000 people have received federal crack cocaine sentences. We will not allow another 75,000 to be sentenced at the current unjustifiable levels.
To prevent that, however, we will accept some compromises that are hard to swallow. I don't look forward to that, but I won't let the perfect be the enemy of the good. Too many people have already suffered, which is why we will support this imperfect bill.
Some related recent posts:
- Unanimous(!!) vote by Senate Judiciary Committee to reduce (but not eliminate) crack/powder disparity
- Varied reactions to the crack/powder reform work of the Senate Judiciary Committee
March 17, 2010
Notable split Fourth Circuit ruling rejects various challenges to federal death sentence
The majority of a Fourth Circuit panel today in US v. Caro, No. 07-5 (4th Cir. Mar. 17, 2010) (available here), rejects various challenges to a federal death sentence. And, as detailed in this first paragraph of the dissent by Judge Gregory, at least one Eighth Amendment aspect of the ruling is controversial:
Today the majority blesses with constitutional imprimatur a death sentence that could only have been imposed after the jury found that Carlos Caro had previously been convicted of relatively minor, nonviolent drug offenses. If his sentence is ultimately carried out, Caro might well be the first, and as yet only, defendant executed after a jury found him death-eligible solely due to this type of nonviolent conduct. To reach this result, the majority applies the wrong test for deciding whether eligibility factors sufficiently narrow the class of defendants who can be executed and renders an important step in capital jurisprudence virtually useless. In doing so, my colleagues uphold statutory provisions that distinguish those who live from those who die in a wholly arbitrary and capricious way. I respectfully dissent.
Third Circuit upholds bar on sexting prosecution threatened by state DAThe National Law Journal has this new piece, headlined "3rd Circuit Bars Prosecution Threat for Teen 'Sexting': Panel also found former DA had violated parents' rights by usurping their roles," which reports on this notable ruling today from the Third Circuit. Here is how the piece starts:
In the first case ever to challenge the constitutionality of prosecuting teens for "sexting," a federal appeals court has upheld an injunction that barred a Pennsylvania prosecutor from bringing child pornography charges against girls who refused to attend a class he had designed to educate youths about the dangers of sexting.
In Miller v. Mitchell, a unanimous three-judge panel concluded there was no probable cause to bring any charges against the girls who had appeared in various states of undress in photos shared among a group of teens. Missing from the prosecutor's case, the court said, was critical evidence about who exactly had transmitted the images.
As a result, the court said, any decision to prosecute the teens after they refused to take the class would therefore be retaliation against them for asserting their First Amendment rights.
Significantly, the panel also found that former Wyoming County District Attorney George Skumanick Jr. had violated the rights of parents by usurping their roles.... "An individual district attorney may not coerce parents into permitting him to impose on their children his ideas of morality and gender roles," 3rd Circuit Judge Thomas L. Ambro wrote in an opinion joined by Judges Michael A. Chagares and Walter K. Stapleton.
UPDATE: How Appealing provides here lots of links to lots of media coverage in Miller v. Mitchell.
"Prosecutors want Nacchio to attend June resentencing"
Th title of this post is the headline of this interesting Denver Post piece. Here is how it begins:
I cannot recall a case in which the defendant waive a right to appear but the government wanted the defendant to be there.
New Pew report indicates that state prison populations declined in 2009As detailed in this New York Times article and this piece from Stateline, a new report from the folks at Pew indicates that "state prison populations, which have grown for nearly four decades, have begun to dip ... largely because of recent efforts to keep parolees out of prison and reduce prison time for nonviolent offenders." Here is more from the NYT piece:
State prisons held 1,403,091 people as of Jan. 1, nearly 6 percent fewer than a year before, the report said. Prison populations have fallen in 27 states in that period, while they have risen in 23.
“It’s too early to tell whether this is a tap of the brakes or a shift into reverse,” said Adam Gelb, the director of the public safety performance project of the Pew Center on the States in Washington, which produced the report. Still, Mr. Gelb said, seeing the state prison numbers dip for the first time since 1972 “took us a little bit by surprise,” he said.
In the same period, the population in federal prisons increased by nearly 7 percent.
The results broaden the conclusions in a report issued this month by the Sentencing Project, a research and advocacy group in Washington that looked at efforts to reduce the prison populations in Kansas, Michigan, New Jersey and New York. That report found that all four states had achieved reductions, with New York reaching a 20 percent reduction and New Jersey 19 percent over a decade.
Marc Mauer, the executive director of that group, said the reduction was actually overdue, since crime rates have declined for some 15 years. “That’s the puzzling piece — why did this take so long?” he asked. The lag, he said, was partly the result of longer sentences and partly because of tough standards in many states for revoking parole.
The Pew report noted that while the squeeze on state and local budgets had contributed to efforts to reduce prison populations, “financial pressures alone do not explain the decline.” At least part of the fall-off resulted from changes like California’s decision to reduce the number of low-risk people on parole returning to prison because of technical violations, and Texas’ decision to step up its residential and community-based treatment programs. “If you had to single out the most common reform that we’re seeing,” Mr. Gelb said, “it’s various strategies to hold parole violators accountable, short of jamming them back into a $25,000-a-year, taxpayer-funded prison cell.”
The full 10-page Pew report, which includes a state-by-state accounting of prison population changes, can be accessed at this link.
March 16, 2010
New academic piece discussing child porn sentencing in an internet ageProfessor Jelani Jefferson Exum has this notable new piece up on SSRN under the title "Making the Punishment Fit the (Computer) Crime: Rebooting Notions of Possession for the Federal Sentencing of Child Pornography Offenses." Here is the abstract:
Sexual exploitation of children is a real and disturbing problem. However, when it comes to the sentencing of child pornography possessors, the U.S. federal system has its problem as well. This Article adds to the current, heated discussion on what is happening in the sentencing of federal child pornography possession offenses, why nobody is satisfied, and how much the Federal Sentencing Guidelines are to blame. At the heart of this Article are the forgotten players in the discussion – the computer and the internet – and their role in changing the realities of child pornography possession. This Article argues that the computer and internet are important factors in understanding both the victimization of the children portrayed in the illegal images and the formulation of appropriate punishment for those who view and possess such images. However, little attention has been paid to the effect computer behavior and the internet have on the actual manner in which offenders possess child pornography and little thought given to what punishment is warranted given the characteristics of that possession. While some district judges are thinking about these issues when they sentence, they have little guidance from experts in the fields of punishment and sexual crimes because sentencing guidance provided to judges has largely been restricted to the Federal Sentencing Guidelines. Unfortunately, in promulgating Guidelines for child pornography possession offenses, the United States Sentencing Commission has largely treated child pornography possession offenses as traditional possession crimes, and has been increasingly influenced by Congress’ response to political pressure to severely punish such offenders without regard to the stated purposes of punishment. Now that the Guidelines are no longer mandatory, many judges are forgoing the Guidelines’ advice when it comes to sentencing the possessors of child pornography and forging out on their own. Critics say that those judges are being too lenient. While there may be truth to that argument, what is even more apparent is that judges are ill-equipped to respond to the punishment needs of this group of offenders, critics of lenient sentences are discounting the faults in the Guidelines, and the computer and internet have been causing all of the controversy without being a big part of the discussion. A system reboot is in order.
This Article recognizes that child pornography possessors should be punished for the harm and danger that the offense creates and the exploitation that the offense represents. Ultimately, though, this Article argues that any enhancements to child pornography possession sentences should reflect aspects of the offense that actually make the offender more harmful than the typical child pornography possessor. To make this argument, the Article will introduce the genuine problem of the sexual exploitation of children that this country faces. It will explain the specific federal crime of child pornography possession and the methods taken to commit the crime. Further, the Article discusses the sentencing of child pornography possessors, explaining the current Federal Sentencing Guidelines approach, the rebellion of district judges against the Guidelines’ advisory sentencing ranges, as well as the criticism levied at those judges. After exposing the system failure that requires a rebooting of the sentencing approach, the Article proposes a new manner of thinking about child pornography possession as a computer crime that is very different from ordinary possession crimes. This new approach seeks to understand the internet and computer in order to develop a system of punishment that will at least move toward achieving the congressionally-identified goals of punishment. Ultimately, it is not the purpose of this article to suggest an appropriate range of sentences for child pornography possession; nor is the goal necessarily to have the Guidelines ranges for child pornography possessors reduced. Rather, this Article emphasizes that finding a method of giving meaningful guidance to district judges in order to appropriately punish child pornography possessors is necessary, and that this is impossible to do without making the punishment fit the realities of internet and computer crimes.
Some related prior federal child porn prosecution and sentencing posts:
- "Federal judges argue for reduced sentences for child-porn convicts"
- Thorough and thoughtful district court defense of federal child porn guidelines
- Effective local reporting on realities and debates surrounding federal sentencing guidelines for child porn
- Effective new opinion discussing restitution in federal child porn possession cases
- Another thoughtful and notable district court opinion on restitution in child porn sentencing
- The latest (beneficial?) litigation front in child porn downloading battles
- Noting the latest data showing reduced (but disparate) federal sentences for child porn downloaders
- More examples of sentencing uncertainty surrounding federal child porn cases
Seventh Circuit rules for deadbeat dad (and creates circuit split) on double-counting argumentLots of different federal defendants have contended in lots of different settings that some set of guideline enhancements results in impermissible "double-counting." Though defendants rarely (if ever) prevailing on this kind of argument, one did today in the Seventh Circuit in US v. Bell, No. 09-2555 (7th Cir. Mar. 16, 2010) (available here). Here are the basics taken from the panel opinion:
In 2008, a grand jury returned a one-count indictment charging Maurice Bell with willful failure to pay child support from February 2000 to June 2007, in violation of the Deadbeat Parents Punishment Act of 1998 (DPPA), 18 U.S.C. § 228(a)(3).... After a jury trial, Bell was convicted and subsequently sentenced to a term of 24 months’ imprisonment and ordered to pay restitution in the amount of $83,890.37....
Bell complained that [a guideline] enhancement for a violation of a court order was impermissible double counting because Bell’s violation of the order was an element of the offense of conviction. The district court disagreed and explained that the Sentencing Commission must have been aware that § 2B1.1(b)(8)(C) would apply to every violation of § 228 and intended that result. The district court noted that even though a violation of a court order is an element of the offense, the applicable guideline would not take this conduct into account absent the enhancement. In addition, it followed the reasoning of the Eleventh and Second Circuits allowing the enhancement because the additional two levels punished Bell separately for the distinct harms imposed on the child and his family as well as on the court system for violation of a court order....
Under our circuit precedent, [which as explained above differs from the Second Circuit's], the district court engaged in double counting by applying the cross-reference for § 228 and then enhancing it for conduct that constitutes an element of the offense — violation of a court order. Consequently, to apply both the cross-reference for § 228 and the enhancement for violation of a court or administrative order is impermissible double counting.
New scholarship complaining that reasonableness review is now quite unreasonableNow appearing on SSRN is this notable forthcoming article discussing the mess that is reasonableness review of federal sentences in the circuits. The piece is titled "When ‘Reasonableness’ is Not so Reasonable: The Need to Restore Clarity to the Appellate Review of Federal Sentencing Decisions after Rita, Gall, and Kimbrough," and here is the abstract:
Judges, like anyone else who works for a living, need standards. Judges need to know what rules to apply, when to apply them, and who to apply them to. And judges, just like you or I, want to know how their work will be reviewed. Unfortunately, in many circuits, federal district court judges do not know how, or even if, their work will be reviewed by appellate courts in the context of criminal sentencing decisions.
Booker completely changed the sentencing landscape in the federal court system, but it left many questions as to what standards appellate courts would apply in reviewing sentencing decisions. The Supreme Court issued three opinions in 2007, Rita, Gall, and Kimbrough, in an attempt to resolve several of the circuit splits that resulted when the Supreme Court repealed the mandatory sentencing guidelines in Booker. Practically speaking, these decisions failed to clarify what authority appellate courts wield in the sentencing process, and how appellate judges should exercise that authority.
This Article examines how the contradictory language from Rita, Gall, and Kimbrough not only failed to provide clarity, but created new inter- and even intra-circuit splits. This Article argues that these problems can only be resolved by articulating clear and practicable standards that prioritize the sentencing factors contained in 18 U.S.C. § 3553(a), rather than continuing to weigh them all equally. Specifically, the Supreme Court could require district court judges to take advantage of the wealth of sentencing data being collected by the U.S. Sentencing Commission to justify particular sentences for defendants by reference to those given to similarly situated defendants across the nation. This solution has the potential to achieve the balance that has thus far eluded the Court between both Congress’ legislative intent behind the original enactment of the mandatory sentencing guidelines, and the Court’s Sixth Amendment concerns raised in Booker.
"Killer executed 1 week after suicide attempt"The title of this post is the headline of this breaking news from the Columbus Dispatch. Here are the essentials:
Lawrence Reynolds died from an overdose this morning -- one legally administered by the state of Ohio. The convicted killer from Akron, who unsuccessfully tried to take his own life with an overdose of a prescription medication on March 7, was declared dead at 10:27 this morning at the Southern Ohio Correctional Facility near Lucasville. The cause of death: a large, intravenous dose of thiopental sodium, a powerful anesthetic.
Reynolds, 43, was convicted and sentenced to death for the Jan. 11, 1994, slaying of 67-year-old Loretta Foster, a widow who was one his neighbors in Cuyahoga Falls, an Akron suburb. Reynolds tried to sexually assault Foster before beating her with a wooden tent pole and strangling her.
Reynolds' suicide attempt and brief hospitalization prompted Gov. Ted Strickland to use his executive clemency power to grant a one-week reprieve....
He was the fourth person executed -- and the third this year -- using Ohio's one-drug protocol.
Georgia Supreme Court upholds sex offender registration for non-sex convictionsThanks to How Appealing, I see that the Supreme Court of Georgia, in Rainer v. Georgia, No. S09A1900 (Ga. Mar. 15, 2010) (available here), yesterday upheld a provision of the state's sex offender registry law that requires the registration of certain persons not convicted of sex crimes. This Atlanta Journal-Constitution article explains:
The law, said to be one of the toughest in the nation, allows the state to keep a tight leash on child molesters, rapists and other sexual predators after they have served their prison time. But it also requires anyone convicted of kidnapping or false imprisonment of a minor to register as a sex offender regardless if a sexual act was committed.
The challenge was brought by Jake Rainer, who committed a drug robbery in Gwinnett County in May 2000. Rainer and his co-defendants picked up a 17-year-old girl who was going to sell them some marijuana. Instead of making a deal, they drove her to a cul-de-sac, took the pot and abandoned her.
Rainer pleaded guilty to robbery and false imprisonment. Because of the latter conviction, he now has had to register as a sex offender. This means he cannot live or work within 1,000 feet of places where children congregate, such as parks, schools and swimming pools.
Writing for a 5-2 majority, Justice Harold Melton rejected arguments that the provision, as applied to Rainer, was cruel and unusual punishment. Sex offender registry laws, Melton wrote, "are regulatory, not punitive, in nature." "Because the registration requirements themselves do not constitute punishment, it is of no consequence whether or not one has committed an offense that is 'sexual' in nature before being required to register," Melton wrote....
Writing in dissent, Chief Justice Carol Hunstein said that although registration as a sex offender may not be considered punishment, "it is no mere administrative formality or minor inconvenience." Hunstein added that an offender who commits a sex crime while kidnapping or falsely imprisoning a victim "would clearly be covered" by other provisions of the registry law.
Department of Corrections records show there are dozens of offenders like Rainer who must register as a sex offender even though they committed no sex crime.
Legislation making its way through the state House may give such offenders a way to be released from the law's tough residency and employment restrictions. House Bill 571, which has the support of key lawmakers, allows offenders to petition Superior Court judges to remove them from the registry.
I am thinking that maybe Jeff Foxworthy ought to consider doing some public service announcements in Georgia that are a variation of his famous "You might be a redneck..." routine. Specifically, I think Foxworthy might help get the word out with lines like:
- "If you are picking up teenagers in your car in Georgia while trying to score some pot, you might be a sex offender....."
- "If you beat up and lock your younger brother in his Georgia bedroom, you might be a sex offender....."
- "If you pick up your grandkid from a Georgia school when it was your former son-in-law's turn, you might be a sex offender....."
Sixth Circuit panel splits over procedural reasonableness and plain error reviewThe Sixth Circuit has a notable and divided discussion of procedural reasonableness and plain error review today in US v. Wallace, No. 07-2230 (6th Cir. Mar. 16, 2010) (available here). The start of Judge McKeague's partial dissent provides a useful synopsis of the sentencing review issues on which the panel is dividing in Wallace:
I concur in the majority’s conclusion that defendant Barbara Wallace’s conviction must be affirmed. I also concur in the determination that because defendant did not properly preserve her objection in the district court, her present claim that the sentence is procedurally unreasonable is subject to review only for plain error. I concur in the majority’s formulation of the four-part standard that governs our plain error analysis. Yet, despite the majority’s considerable efforts, I remain unpersuaded that the sentencing court’s procedural error, in failing to adequately explain its sentencing decision, either affected defendant’s substantial rights or affected the fairness, integrity, or public reputation of the judicial proceedings. Hence, although I am not unsympathetic with Wallace’s request for leniency, it is evident that she has not carried her burden of meeting the third and fourth prerequisites to relief for plain error. I respectfully dissent, therefore, from the decision vacating the sentence and remanding for re-sentencing.
As many federal practitioners may know, these kinds of procedural review issues have roiled the Sixth Circuit (and other circuits) in recent years. It will be interesting to see if this case might get reviewed by the full Sixth Circuit, given that the issues in play here have gotten the full court's attention in the past.