April 21, 2010
Fascinating report on backstory behind presidential pardon problemsThis new post at Main Justice, which is headlined "Despite Efforts, Pardon System Still Unchanged," provides some new and notable details about discussion and debate over pardon policy inside the Obama Administration. Here are excerpts:
Behind closed doors Justice Department and White House officials have been considering changes to the system since the start of the Obama administration, though the White House appears to have scaled back its ambitions after key personnel changes.
Former White House Counsel Greg Craig, now a partner at Skadden, Arps, Slate, Meagher & Flom, led a push for major reforms before stepping down last November, according to two people with knowledge of the discussions. He received support from then-Deputy Attorney General David Ogden, who recently returned to his practice at Wilmer Cutler Pickering Hale and Dorr LLP, the individuals said.
Attorney General Eric Holder — whose involvement in the controversial pardon of fugitive financier Marc Rich at the end of the Clinton administration threatened his career — also expressed interest in making the clemency program “more systematic,” said one of the individuals.
The Justice Department’s Office of the Pardon Attorney receives clemency applications and makes recommendations to the White House via the Office of the Deputy Attorney General. A steep backlog in the pardon office coupled with fewer clemency grants in recent years has driven applicants to reach out to the White House directly.
Some critics say the current system is obsolete because it provides the president with no assurances that his grants will be free of political consequences. Meanwhile, they say, the tool used in the past to “correct injustices that the ordinary criminal process seems unable or unwilling to consider,” as Justice Anthony Kennedy once wrote, has fallen into disuse.
An idea favored by Craig was the creation of a blue-ribbon commission or an advisory process inside the Justice Department but apart from the pardon attorney, the people said. After he stepped down in November, however, discussions turned to developing criteria under which clemency petitions should be granted in the existing program.
“Like every administration, we are updating the policy guidance for DOJ on requests for executive clemency,” a White House official said. Craig and Ogden declined to comment. A Justice Department spokeswoman declined to comment while the policy was under review.
The clemency issue gained attention after the Supreme Court heard arguments last month in Dillon v. U.S., a case brought by a federal prisoner who was sentenced in 1993 to 27 years behind bars for trafficking in crack cocaine.
Percy Dillon, described as a model prisoner, asked the court to decide whether the U.S. Sentencing Commission erred in limiting federal judges’ discretion in new sentencing hearings under Congress’ 2007 reduction in the crack guidelines. A federal judge had called his original sentence “unfair” and “entirely too high.”
At one point, Justice Kennedy asked the government’s lawyer whether the Justice Department ever recommends clemency for prisoners like Dillon. He also questioned whether the lack of commutations last year and the five the year before signaled that “something is not working in the system.”
It is quite sad (and perhaps quite telling) that the two official inside the Obama Administration who were most forcefully pushing for clemency reforms are now out of the Administration. And, of course, it is even sadder and even more telling that we are now deep into the Obama era and have yet to see any tangible evidence of significant hope and change in this setting or in many other federal criminal justice contexts.
As regular readers know, I have been urging President Obama to exercise his clemency power with vigor since literally his very first day in the Oval Office:
- Is it too early to start demanding President Obama use his clemency power?
- Historical evidence that it is NOT too early to start demanding clemencies from President Obama
- When will President Obama start acting like President Lincoln when it comes to the clemency power?
- Commentary on how celebrity status effects clemency commitments
- Inaugural rhetoric about freedom and liberty in prison nation
- "Grandmother Will Mark President's Day By Petitioning Obama To Commute Her 27-Year Prison Sentence For Non-Violent Crime"
- Obama as Scrooge: no Christmas clemency grants
- Fitting complaints about an ugly clemency scoreboard: "Turkeys 2, humans 0"
- The true sentencing turkeys on this Thanksgiving eve
- Justified complaints that Obama's first pardon will be of a turkey
- "President Barack Obama proving stingy with his pardon power"
- Notable press stories noting Obama's lack of clemency action
- A simple plea for Prez Obama: grant at least a single clemency in your first 100 days
- "Obama should exercise the pardon power"
April 20, 2010
"Did Michael Douglas' Son Get Celeb Treatment With Reduced Sentence?"The title of this post is the headline of this hard-hitting report from the folks who are not afraid to ask the tough questions at E! Online. Here's more:
Sure, having a movie star father might have contributed to getting Cameron Douglas into this legal mess. But it also seems to have helped get him out of it.
Michael Douglas' son was sentenced to five years in prison today, just half of what is otherwise (like, for offenders without famous relatives) a minimum — yes, minimum — 10-year term. It's unclear why at this point, but earlier today all parties agreed, on the record, that Douglas was not bound by mandatory minimums.
U.S. District Judge Richard Berman said the sentence was the 31-year-old's "last chance to make it," and the decision came down after papa Michael, gramps Kirk Douglas and stepmom Catherine Zeta-Jones each penned personal letters to the court asking for leniency. Guess it worked!
So, dear knowledgeable readers, what say you in response to the question posed by the folks at E!?
Some related posts:
- Does having celebrity "a-listers" ask for leniency help a defendant's cause at sentencing?
- District Judge rejects defense request to keep private next week's sentencing of Cameron Douglas
- Cameron Douglas sentenced to five years for federal drug offense
SCOTUS discusses restitution deadlines in DolanAs a fan of sentencing options beyond just incarceration, I am probably one of a very small group of sentencing geeks excited to find time this evening to read the transcript from today's SCOTUS oral argument in Dolan v. US. The transcript is available at this link, and this press report about the argument suggests that some pretty interesting jurisprudential issues are in play:
The Supreme Court heard arguments Tuesday on whether a judge had the authority to order restitution more than 90 days after sentencing in the case of a hitchhiker's attacker. "The victim gets nothing because the judge waited too long," Justice Samuel Alito said, paraphrasing the appeal. "Do you think that is what Congress had in mind?"
For the first time since 1990, the justices agreed to interpret federal restitution law in the case of Brian Dolan, who beat up a hitchhiker and left him on the side of the road, bleeding, unconscious and with several broken bones. He racked up more than $100,000 in medical bills with the Indian Health Service.
Nolan was sentenced to one year and nine months in prison, with restitution to be determined later, "pending the receipt of additional information." He was later slapped with a $104,650 restitution order, nearly six months after the 90-day deadline established in the Mandatory Victims Restitution Act.
Attorney Pamela Karlan urged the justices to overturn the restitution order, saying the lower court lacked the authority to extend the 90-day window. Toby Heytens, arguing for the government, acknowledged that the judge missed the deadline, but said it's up to Congress -- not the courts -- to set the consequences of a court's failure to act.
Of course, I welcome any and all fellow sentencing geeks to use the comments to make me feel less strange for getting excited about finding time to read the Dolan transcript. (Alternatively, readers can tap into a different dimension of my multi-faceted geekdom by watching tonight's notable installment of ESPN's 30 for 30 series.)
Cameron Douglas sentenced to five years for federal drug offenseThis New York Daily News report and this New York Times piece provide some noteworthy details from today's celebrity federal sentencing in NYC. From the Daily News:
Cameron Douglas -- son of Michael Douglas and grandson of Kirk Douglas -- is going to prison for more than four years despite the pleas of his famous family.
As he sentenced the Hollywood scion, Federal Judge Richard Berman said Tuesday that too many of the letters he received treated him like a victim. "Get over that idea," he said.
Still, he knocked a big chunk off the 10 years the admitted junkie could have faced for conspiring to distribute crystal meth and cocaine. He gave the 31-year-old 60 months in prison, with credit for the eight months he's already served....
From the Times:
Cameron Douglas, the 31-year-old son of the actor Michael Douglas, was sentenced to five years in prison on drug-related charges in Federal District Court in Manhattan on Tuesday.
In January, Mr. Douglas, a D.J. and an aspiring actor, pleaded guilty to charges that he distributed large quantities of methamphetamines and cocaine over a three-year period. He also pleaded guilty to possession of heroin, a charge that was brought while he was on house arrest and awaiting trial.
Judge Richard M. Berman also sentenced Mr. Douglas to five years of supervised release; the judge said that he was not obligated to follow federal sentencing guidelines, which normally would call for a 10-year sentence for such charges. Federal prosecutors did not challenge the sentence.
Also, anyone interested in getting a sense of the media circus surrounding this celebrity sentencing, TMZ has video of Cameron Douglas's parents leaving the federal courthouse building where their son was sentenced.
Seeking advice on how best to "celebrate" 4/20 day as a law professorAs perhaps many readers may already know, today is so-called 4/20 day , which is described this way on Wikipedia:
April 20 ("4/20" in U.S. date notation) has evolved into a counterculture holiday, where people gather to celebrate and consume cannabis. In some locations this celebration coincides with Earth Week. Some events may have a political nature to them, advocating for the decriminalization of non-medical cannabis in the United States.
This webpage at NORML details how this marijuana legalization group is celebrating its favorite day:
[T]his '4/20' celebration in 2010, as is NORML tradition, is a combination of both the serious and silly!
There will be dozens of major 4/20 ‘protestivals’ today from New York City to Seattle, to the expected largest one in the nation I’m speaking at in Denver Colorado. Major newspaper articles and stories on TV will abound by day’s end. In fact whole television networks such as G4, Comedy Central, Spike and Current TV will devote some or all of their programming today to celebrating cannabis and, implicitly, the herb’s reform.
Also today, NORML launches a new advertisement for 4/20 on Times Square’s largest electronic billboard calling out New York City politicians and law enforcement for having one of the highest — and most racially disparate — cannabis arrest rates in the United States. The advertisement will run 18 times a day until late May, and will be seen by an expected 1.5 million Times Square visitors.
These protestivals and public celebrations of cannabis culture in North America is a greatly anticipated and celebratory annual event at NORML since the mid 1990s, but the serious political message of this wonderfully creative day (beyond the obvious one of ‘re-legalize cannabis now!’) for this specific year is to direct as much NORML membership and public attention as possible to donate and support the voter initiative on the ballot in California this very November that will effectively legalize cannabis for adult use, cultivation and sales. Going into our 40th year, NORML’s staff and board of directors have made the passage of California’s voter initiative to legalize cannabis the number #1 political priority for the organization.
As I have suggested in some prior posts, I view the economic and related utilitarian/libertarian argument for legalizing marijuana to be fairly strong these days. At the very least, I think it important and valuable for serious people in serious settings to have serious conversations about whether and how pot prohibitions should be scaled back. Thus, I plan to "celebrate" 4/20 day by raising these issues (indirectly) in my Criminal Procedure class this afternoon. But, as my post title suggests, I welcome other advice concerning how best to mark this day.
Some related older and more recent posts:
- Great coverage of "Marijuana & Money" at CNBC
- "The Virginia debate: Should marijuana be decriminalized? legalized?"
- "Changing Marijuana Laws Could Save Millions"
- What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
- "Sarah Palin, Marijuana Law Reformer?"
- "U.S. Support for Legalizing Marijuana Reaches New High"
- A potent pitch for decriminalizing marijuana
- Republican governor signals openness to legalizing marijuana
- "Marijuana Nation: The New War Over Weed"
- More calls for an end to the drug war and legalization of marijuana
- New poll has majority saying alcohol is more dangerous than marijuana
- Should and will California's voters legalize marijuana in that state this November?
Third Circuit finds (way) below-guideline crack sentence unreasonable
In a lengthy opinion that covers lots of reasonableness review topics, a Third Circuit panel today in US v. Merced, No. 09-1844 (3d Cir. Apr. 20, 2010) (available here), reverses a 60-month sentence given to a crack offender with a long criminal history whose guideline range was 188 to 235 months. Here is a key concluding paragraph from the main opinion:
In summary, we hold that the District Court committed two errors. First, it may have sentenced Merced pursuant to a personal policy disagreement with the Guidelines; specifically, disagreement with the scope of the career offender provision of U.S.S.G. § 4B1.1. While granting a variance on such grounds may be permissible, the District Court must, at the very least, explain itself more thoroughly than it has so far. On remand, the District Judge should clearly explain whether he is granting a variance based on a policy disagreement with § 4B1.1. If so, he must justify that decision to the extent required by our precedents. Second, the District Court failed to analyze a highly relevant sentencing factor, § 3553(a)(6). The Court’s choice of sentence may have created a risk of unwarranted disparities between Merced and similarly situated recidivist crack cocaine dealers. The Court should have considered this issue, and addressed the government’s argument that a Guidelines sentence was necessary to promote uniformity in sentencing.
Does a key line in Stevens foreshadow the demise of "honest-services" fraud statute?
I found Chief Justice Roberts opinion for the Supreme Court in the Stevens "animal porn" case (basics here) to be a pleasure to read for a number of reasons (including my discovery that my new iPad is great for reading SCOTUS slip opinions). But one particular sentence jumped out as an indication that there may be other forthcoming SCOTUS rulings that notable federal criminal statutes are constitutionally problematic. Specifically, this sentence in the Court's discussion of prosecutorial discretion struck me as a harbinger of rulings to come:
We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.
If I recall oral arguments correctly, I remember that a key part of the US Government's defense of the broad "honest services" fraud statute at issue in the Black case and some other pending SCOTUS cases (including Skilling) was its assertion that federal prosecutors would always and only use the statute responsibly. This line from the Stevens decision today suggests that such a promise does not comfort eight out of nine of the Justices. (In this context,I think it extra notable and telling that the lone dissenter in Stevens, Justice Alito, is also the lone former federal prosecutor on the Court.)
Ohio completes another successful one-drug lethal injection executionAs detailed in this local press report, which is headlined "Teen's killer executed as victim's mother watches," Ohio completed this morning what I believe is its fifth "uneventful" execution using its one-drug lethal injection protocol. Here are the basic detail:
As his victim's mother watched, Darryl Durr was executed this morning for abducting and murdering 16-year-old Angel Vincent of Elyria. Durr, 46, was pronounced dead at 10:36 a.m. after being injected with a single, large dose of thiopental sodium, a powerful anesthetic.
Durr's legal team threw up a flurry of last-minute appeals, claiming he might have a severe allergic reaction to the killing drug and that it has not been approved for executions by the U.S. Food and Drug Administration. The American Civil Liberties Union of Ohio filed a suit as well, arguing that Durr was illegally prevented from obtaining a DNA test on the dead girl's necklace that could have produced evidence showing he was not guilty of the crime.
State and federal courts rejected all the appeals, however, clearing the way for Durr's execution -- Ohio's fourth in as many months and 37th since 1999. Gov. Ted Strickland rejected Durr's clemency request yesterday.
The condemned man contended to the end that he was innocent not only of killing Vincent, but of committing rapes of other young women with which he was also charged.
SCOTUS affirms unconstitutionality of federal "animal porn" prohibition in Stevens
In the only opinion handed down this morning, the Supreme Court today in United States v. Stevens, No. 08-769 (available here), affirmed the Third Circuit's judgment that 18 U.S.C. § 48, which criminalizes certain depictions of animal cruelty, is unconstitutional. The vote was 8-1, with Chief Justice Roberts writing the opinion for the Court and with Justice Alito writing a lengthy dissent.
The opinions appear to engage significantly with the Supreme Court's 30-year-old ruling in Ferber that child porn is not subject to First Amendment protections, though I will need some time to digest the opinion before seeing if there is anything in Stevens that could really impact day-to-day federal criminal justice policy or practice.
New coverage of FSR at the website of the Vera Institute of JusticeI am pleased to be able to spotlight that the terrific Center on Sentencing & Corrections at the Vera Institute of Justice has created this new webpage featuring the work of the Federal Sentencing Reporter. Alison Shames, the Associate Director of the Center on Sentencing and Corrections, provides this kind introduction to this new web locale:
Vera and the Federal Sentencing Reporter share an approach to policy change that relies on information, analytical examination, and innovation. Rare among scholarly journals, the Federal Sentencing Reporter focuses — in its authorship and readership — on academics as well as practitioners. In its pages, conversations take place among judges, lawyers, policy makers, and scholars. The publication is an intellectual resource that people in the field turn to for solutions and that academics rely on to propose, learn about, and discuss new ideas. Each issue offers in-depth analysis on a wide range of topics related to sentencing policies and practices.
The Federal Sentencing Reporter is published five times a year. For each issue, Vera posts the “Editor’s Observations” (a regular feature that highlights the themes of the issue), a select article, and the table of contents on its website. Other articles, subscription services, and archives are available through University of California Press.
Is seeking a fourth death sentence a sound use of limited state resources?
The question in the title of this post is prompted by this effective local story out of California, which is headlined "Mounting costs to try killer Duncan for slaying of Beaumont boy fuel debate since death sentence awaits Duncan elsewhere." Here are parts of the fascinating on-going story:
The death penalty trial of Joseph Edward Duncan III already has cost Riverside County more than $167,000, and legal experts say the murder trial could total several million dollars by the time it's completed.
Since January 2009, the Riverside County district attorney's office has been prosecuting Duncan, who has already been sentenced to death for murders in Idaho, in the 1997 killing, torture and sexual assault of 10-year-old Anthony Martinez of Beaumont.
The district attorney extradited Duncan, 47, to face murder charges in Indio for Anthony's death after Duncan was convicted of murdering a family of four in Idaho. He was sentenced by an Idaho federal and state court to three death sentences and nine life terms.
Riverside County so far has been billed at least $167,665, according to documents detailing expenses for the defense, jail housing and transportation of Duncan. Those numbers do not include prosecution or defense attorney hours or district attorney investigation costs.
Martinez's mother, Diana Gonzales, who lives in Kansas, said she supports the district attorney prosecuting the case. Gonzales said her family and the community of Beaumont have waited more than 13 years for her son's killer to be sent to trial and find justice for Anthony....
Duncan has confessed to killing Anthony and is representing himself. Since he has refused an attorney, he is prohibited by state law from pleading guilty. He is spending his days at the Indio Jail and has a tentative Sept. 1 trial date, but Duncan has said he may need another one to three years to prepare his defense.
Duncan was transferred from federal death row in Terre Haute, Ind., to California in an agreement with federal prosecutors that he would be returned immediately if an order for execution is issued. He will return to federal custody if convicted in Riverside County.
Riverside County Public Defender Gary Windom has questioned why Duncan is being prosecuted here, when he already has been convicted and sentenced in another case and the county is in a fiscal crisis. The public defender's office represented Duncan until he was allowed to act as his own attorney in September.
"No matter how you slice it, it's an expensive commodity," Assistant Public Defender Robert Willey said. "There's absolutely no reason to try this case here. We're dedicating courtroom time and a trial whenever it may go. And at any given point in time, the federal authorities could call and say, 'We're ready to execute him.' "
District Attorney Rod Pacheco has stood by the decision to prosecute Duncan to achieve justice for Anthony Martinez. "The reason we feel this is important is a 10-year-old boy was kidnapped, tortured and murdered in our county and it's important to us that that child gets justice," district attorney's spokesman Michael Jeandron said. "We're not going to tell a 10-year-old child and his family that their case is not important enough to prosecute."
The average death penalty trial can cost $3 million to $7 million, said Michael Radelet, a University of Colorado sociology professor and death penalty expert. "What goal is accomplished for spending several million on this case when we know the prosecutor will look tough on crime?" Radelet said. "It's not about whether this case is worth it. It's about whether it's worth it compared to other ways to spend the money and keep schools open."...
Jeandron said the case has not had any significant impact on the county's budget. In response to the case being politically motivated, he said the case is being pursued to ensure justice for Anthony. "Whether or not Anthony Martinez deserves justice is not an issue of whether it's financially acceptable. We're not in a position to say if it's too expensive to consider that," Jeandron said. "What we're doing will double lock the door so a serial killer and rapist is sentenced to death, whether it be in Idaho or California. We're making sure his fate is sealed."...
Anthony's mother said her family and the community of Beaumont have paid taxes for purposes like Duncan's trial. "The time is now to ask the government to use our money to put Joseph Duncan on trial for Tony's kidnapping and murder," Gonzales wrote. "How much is a person's life worth? How do we as a society say that it is too expensive to give justice to a 10-year-old boy that was kidnapped at knifepoint and dumped like garbage? Do we dare put a price tag on justice? My son's life was worth every cent that is being spent on prosecuting the monster that took his life!!!" she wrote.
Noting SCOTUS disinterest in juve priors as basis for enhanced adult sentenceThe fact that the Supreme Court could soon announce new constitutional principles for sentencing juvenile offenders in in the pending Graham and Sullivan cases makes extra interesting the Justices' decision to deny cert in a case concerning juve priors and an Apprendi challenge from California. This piece from the San Francisco Chronicle, which is headlined "'Three strikes' can count juvenile convictions," provides the details:
The U.S. Supreme Court on Monday upheld California judges' authority to count adult felons' convictions in juvenile court in determining whether to sentence them to life in prison under the state's "three strikes" law.
The court denied a San Jose man's appeal of his 2005 sentence for possessing a gun as a convicted felon. Vince Nguyen's sentence was doubled, to 32 months, based on his assault conviction in a 1999 juvenile court proceeding, when he was 16. Under the three strikes law, he could have been sentenced to 25 years to life in prison if his record had included a second such conviction as a juvenile.
The 1994 three strikes law, the nation's toughest sentencing measure for repeat offenders, requires a sentence of 25 to life for anyone convicted of a felony at age 18 or older who has committed at least two serious or violent felonies in the past. With one such previous conviction, the normal sentence for the new crime is doubled.
Unlike most states with repeat-felon laws, California classifies convictions for serious or violent crimes in juvenile court, at age 16 or 17, as strikes.
Nguyen claimed that increasing a sentence based on a juvenile conviction violated a U.S. Supreme Court ruling in 2000 entitling defendants to a jury trial on any facts used to lengthen their sentences beyond the usual maximum term. The California Supreme Court ruled against Nguyen in July 2009, saying the use of his juvenile conviction to increase his sentence as an adult did not violate his right to a jury trial.
April 19, 2010
Great coverage of "Marijuana & Money" at CNBCCNBC has a huge new special report on marijuana now appearing on it website. The Editor's Introduction to the coverage, which includes links to lots of articles on lots of legal (and non-legal issues), starts and ends this way:
The legalization of marijuana is no longer the unthinkable.
On a state level, in California, for instance, it could be a reality later this year. Some 56 percent of people polled there already support the regulation and taxation of marijuana, ahead of a November public referendum to do just that.
Medical marijuana is now legal in California and 13 other states, while more are considering it. The drug has been decriminalized in 12 states, and in Denver voters opted to legalize a small amount for personal consumption for those over 21 years-old, even though Colorado law says otherwise.
All of this is creating a legal thicket involving jurisdictional authority because on a federal level marijuana is not legal in any way, shape or form. As the legal debate grows louder, so do other ones about what is already one of the nation's biggest cash crops....
CNBC's "Marijuana & Money" explores the concept of legalization in largely an economic context, which is why you'll find ample representation of critics and opponents--both in and out of government--who say marijuana remains the "gateway drug" and the cost-benefit analysis of legalization has been greatly simplified....
"Marijuana & Money" explores virtually every angle and aspect of the marijuana debate, from the economics of taxation and law enforcement, the likely business models of production and consumption; the lobbying effort and public health debate, professional and workplace issues, and, of course, the rapidly evolving world of legalized medical marijuana. Much of this you can track through individual state pages and a state-by-state tables.
In some three dozen articles, videos and slideshows — and another dozen, diverse commentaries (pro, con and neutral) from major players and thoughts leaders in the arenas of politics and government, law, medicine, sociology, religion and entertainment — "Marijuana & Money" catches a country in clear transition and a debate in high gear.
Marijuana is something many Americans know about — to one degree or another. (By one government estimate, 10.1 percent of the population admitted to using marijuana in 2007). It's part of American history, culture and our economy.
Kudos to CNBC for giving this important issue the coverage it needs and deserves (and thanks to the reader who alerted me to this new resource).
Fascinating little expungement ruling concerning Second Amendment rights from the Sixth CircuitThe Sixth Circuit has a fascinating little ruling today concerning expungement and gun rights today in US v. Carey, No. 09-3399 (6th Cir. Apr. 19, 2010) (available here). Here is the heart of the defendant's argument in Carey as explained by the panel:
Carey argues that the Second Amendment to the United States Constitution gives him a fundamental right to possess or carry a firearm, and that the denial of his expungement motion for his valid conviction denied him this fundamental right, resulting in a violation of his Equal Protection and Due Process rights under the Fifth Amendment. Essentially, Carey contends that, because expungement of his conviction would allow him to regain his Second Amendment rights, a court’s denial of expungement infringes upon his fundamental right.
The panel ruling quotes the well-worn dicta from Heller about laws prohibiting felons from possessing guns, and then rejects Carey's claim this way:
After Heller, this Court affirmed that prohibitions on felon possession of firearms do not violate the Second Amendment. United States v. Frazier, 314 F. App’x 801 (6th Cir. Nov. 19, 2008). In short, Heller states that the Second Amendment right is not unlimited, and, in fact, it is specifically limited in the case of felon prohibitions. Heller, 128 S. Ct. at 2816-17. Because Congress’s prohibition on felon possession of firearms is constitutional, it follows that the burdens associated with the congressionally-created expungement exception in 18 U.S.C. § 921(a)(20) do not violate the Second Amendment. Accordingly, the district court did not abuse its discretion in denying Carey’s motion for expungement.
Because of both the posture of the case and the nature of the panel's ruling, the Carey decision arguably raises more questions than it answers. Specifically, in the course of concluding merely that the district court did not abuse its discretion by denying the motion to expunge, the panel implicitly suggests that the district had discretion to grant the motion within its equitable jurisdiction. Moreover, it is unclear if the defendant here contended that he needed and wanted to be able to possess guns in conjunction with self-defense of his home; such an assertion would implicate the core of Heller and would perhaps satisfy the Sixth Circuit standard of "compelling and extraordinary circumstances for a Court to grant" a motion for expungement.
In other words, though affirming the denial of the expungement motion in Carey, the Sixth Circuit has perhaps indicated that the right defendant making the right showing might be able to get the right judge to grant such a motion. Whether such a defendant will find such a judge in the Sixth Circuit remains to be seen.
New USSC amendments expanding prison alternatives and addressing certain offender characteristicsAs detailed in this just posted official press release, the United States Sentencing Commission has "voted to promulgate sentencing guideline amendments that expand the availability of alternatives to incarceration and address the relevance of certain specific offender characteristics in sentencing." Here's more of the details from the press release:
The Commission also voted to promulgate guideline amendments on additional topics including hate crimes, the calculation of a defendant’s criminal history, and sentencing corporate offenders.
The amendment on sentencing alternatives has several key components. First it informs courts that departures from the guidelines may be warranted in situations where an offender’s criminal activity is related to a treatment issue such as drug or alcohol abuse or significant mental illness and sentencing options such as home or community confinement or intermittent confinement would serve a specific treatment purpose. The Commission also recommends in a new application note that courts take into consideration the effectiveness of residential treatment programs as part of their decision to impose community confinement. Second, the Commission voted to increase the availability of alternative sentencing options by expanding by one offense level Zones B and C in the guidelines’ sentencing table. According to the guidelines, offenders in Zones B and C are eligible, in the court’s discretion and subject to statutory limitations, for alternatives to straight imprisonment such as split sentences, home or community confinement....
The Commission also voted to amend guideline policy statements regarding age, mental and emotional conditions, physical condition, and military service recognizing that these factors may be relevant to the sentencing process courts undertake. Previously, these factors were deemed as “not ordinarily relevant” in determining whether a sentence outside the guidelines was warranted. The amended policy statement provides that these factors may be relevant if they are relevant to an unusual degree and distinguish the case from the typical case. This amendment reflects the Commission’s extensive review of offender characteristics that included reviewing case law and relevant literature, receiving public comment and hearing testimony, and conducting extensive data analyses....
Any amendments made by the Commission to the guidelines must be submitted to Congress on or before May 1 of each year and become effective on November 1 if not disapproved by Congress.
Kudos to the USSC for moving on these important federal sentencing fronts. Though I want to see the exact language of the amendments to figure out if mondo-kudos are meritted, the Commission is to be complimented for (finally!) taking a more dynamic approach to some key issues that called for additional attention in the wake of Booker.
What's the status of crack/powder sentencing reform in the House?
As detailed in this post, just over a month ago 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 it does so by keeping powder sentences the same and by 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. Consequently, as I flagged in this follow-up post, the next big question was whether the House will adopt this compromise so that it can become law. Now, a full month later, we are still awaiting news on this critical question.
I have heard rumors from various sources that the House was likely to go along with the Senate compromise, and that this might get done in April. But I have yet to hear any official word on this front, and I am wondering if (and worrying about) inertia and competing priorities might be preventing the House from getting this done.
Helpfully, as we await further legislative developments, the folks at FAMM have a new FAQ (frequently asked questions) about pending federal legislation to reform crack cocaine laws at this link. The FAQ includes a detailed response to this notable and challenging question: "If a person is in jail and has not been sentenced yet, should he postpone sentencing until a crack reform bill becomes a law?".
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?
- Different editorial perspectives on crack reform compromise
- Questions about the "when" and "now what" for crack/powder sentencing reform
An intriguing week on tap for SCOTUS and sentencing fans
The Supreme Court is back from its latest break today, and this SCOTUSblog post details the Justices' basic agenda for hearing arguments. Of the four arguments on tap for this week, at least two should be of special interest for criminal justice fans:
City of Ontario v. Quon (08-1332) — right of privacy for public employee’s text messages by government-issued pagers
Dolan v. United States (09-367) — federal judges’ power to order restitution for crime victims
Because Dolan involves a technical timing issue, I am not expecting a big ruling in a case that obviously deals directly with sentencing matters. In contrast, though Quon involves at Fourth Amendment issue, I am expecting the Supreme Court's first foray into the digital world to have inevitable echo effects into a lot of cybercrime and punishment matters.
In addition, as noted in this post late last week, SCOTUS has announced that it will be handing down opinions on both Tuesday and Wednesday, and I am hoping one (or more) of the big sentencing cases still pending could be among the cases decided this week.
Serious talk of a broad drug dealer registry in MassachusettsThis interesting local article, which is headlined "Registry for drug dealers debated," suggests there is some serious support for a broad registry for certain drug offenders in Massachusetts. Here are the details:
Legislation proposing to create a registry for convicted drug dealers is meeting with positive reviews across the state, according to state Rep. Demetrius Atsalis, who introduced the proposal last year.
Some law enforcement authorities say the proposal, modeled after the state's sex offender registry, could help police identify and track convicted drug dealers, who often bring drug-related violence into a community. And some education professionals say it could better ensure safety through the school community.
"It would definitely be good to know that you're not establishing a bus stop directly outside the home of a narcotics distributor," said Arthur Dulong, assistant director of the state Secondary Schools Administrators Association, which reviewed the proposal at a recent meeting. "There could definitely be some benefits," echoed Cape and Islands District Attorney Michael O'Keefe, who is considering the matter. "It's worth looking into."
The proposal, which would not affect convicted drug users, is set to go to the House Judiciary Committee, though it's unlikely to go to a vote during the current legislative session, said Atsalis, who plans to reintroduce the matter next year. But some legislators and human rights advocates contend such registries infringe on convicts' personal freedoms, and the proposal should be quickly dismissed.
Drug registries — Minnesota and Tennessee, among other states, have launched methamphetamine databases — can stigmatize reformed dealers, making it more difficult for them to find work or housing as they seek to rehabilitate, according to officials from the Massachusetts branch of the American Civil Liberties Union....
Atsalis has amended his proposal — designed in a three-tiered system, like the sex offender registry — to include limits on how long offenders will be registered, so long as they don't re-offend.... A cross the state, there were 6,086 arrests for the sale or manufacturing of drugs in 2008 — the most recent figures available, according to Federal Bureau of Investigation records.
The time limits included under Atsalis' proposal fail to address the broader question of the slippery slope, according to [Christopher] Ott, of the ACLU. If it's implemented, a narcotics registry could lead eventually to a property crime or motor-vehicle crime registries, Ott wrote to the Times. "Do we want to create retroactive registries for anyone ever convicted of shoplifting ... or people who get a lot of speeding tickets?" he wrote. "It's wrong in principle."...
"The public has a right to know who are the convicted drug dealers," state Rep. Jeffrey Perry, R-Sandwich, said in reference to Atsalis' proposal. "But I would take it a step further. The public has a right to know who all serious criminals are. ... If you had a neighbor who's been convicted four times of assault and battery ... wouldn't you want to know about that?"
The notable contrast in Arizona and Texas prison population trendsYesterday's Arizona Republic had this long and effective article on prison populations, which was headlined "Ariz. aims to cut prison costs; in Texas, a new approach." Here is how it gets going:
While the U.S. prison population is declining for the first time in nearly 40 years, Arizona is headed in the opposite direction.
Unlike in some other states, mandatory-sentencing laws keep Arizona inmates in prison for nearly all of their sentenced time. And state lawmakers say rewriting sentencing guidelines to grant shorter prison terms is politically unlikely.
Amid a historic budget shortfall, some lawmakers are intent on finding ways to reduce the $880 million bill taxpayers foot each year for locking up convicts, nearly 10 percent of the state's $8.9 billion budget. A look at other states with similar challenges shows some ways prison populations — and costs — can be cut.
With changes made over the past five years, Texas has reduced its prison population and halted plans for a huge prison expansion. New approaches to incarceration have saved money without taking the teeth out of the criminal-justice system, says a Republican Texas lawmaker who had a hand in the changes.
"Suicide watch stepped up for Death Row inmate"
The title of this post come from the headline of this story in this morning's Columbus Dispatch. Here are the details as I am contemplate whether I should be concerned that perhaps more of my tax dollars are now being spent by Ohio officials to ensure a condemned inmate does not kill himself before the state gets to kill him tomorrow:
The next inmate to be executed in Ohio is under heightened security as the state tries to avoid another suicide attempt on Death Row. In response, a civil-liberties group suggested the new policy goes too far.
Serial rapist Darryl Durr, who is scheduled to die Tuesday by lethal injection for strangling a 16-year-old girl a suburb of Cleveland in 1988, is under a 72-hour watch at a state prison in Youngstown.
The watch has been standard procedure. But now his cell includes a Plexiglas-like door so guards can keep him under better surveillance, prisons spokeswoman Julie Walburn said. Also, his bed lacks springs, which he could use to harm himself, and he can't have physical contact with visitors.
Mental-health staff members will evaluate whether Durr, 46, can have certain personal items, including shoestrings, or leave his cell for recreation, Walburn said.
The moves follow the March 7 suicide attempt of Lawrence Reynolds, an inmate who overdosed on an antidepressant hours before he was to be sent from Youngstown to the Southern Ohio Correction Facility in Lucasville, site of the state's death chamber.