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May 1, 2010

Lots of interesting questions in upcoming sentencing proceeding for hacker of Sarah Palin's e-mail

As detailed in this story from InformationWeek, which is headlined "Hacker Of Sarah Palin's E-Mail Found Guilty: Palin calls violating the law for political gain 'repugnant'," a high-profile federal computer crime case is now ready to shift into a sentencing phase.  Here are the basics:

David C. Kernell, the former University of Tennessee-Knoxville student linked in 2008 to the hacking of Sarah Palin's Yahoo Mail account, was found guilty on Friday afternoon of a felony and a misdemeanor.  A federal jury in Knoxville, Tenn., convicted Kernell, 22, of obstruction of justice, a felony, and unauthorized access to a computer, a misdemeanor.

The jury deadlocked on a charge of identity theft and acquitted Kernell on a charge of wire fraud. The obstruction of justice charge carries a maximum sentence of 20 years. The misdemeanor charge carries a one year maximum sentence. Based on federal sentencing guidelines, Kernell's sentence is likely to be less than two years.

Kernell obtained access to Palin's e-mail account when Palin was running as the Republican candidate for vice president by guessing her password, "popcorn." He then posted screenshots of his findings on an Internet forum.

Wikileaks subsequently posted some of the data that Kernell had obtained, stating that it had done so because "Governor Palin has come under criticism for using private e-mail accounts to conduct government business and in the process avoid transparency laws."

The whistle blowing site posted five screenshots of Palin's Yahoo Mail account, three text files with contact information and related data culled from the account, and two photos of Palin's family. "The list of correspondence, together with the account name, appears to re-enforce the criticism," said Wikileaks.

The case generated intense media interest in part because Kernell is the son of Tennessee Democratic state Rep. Mike Kernell, a link that convinced many Republican supporters that the hack was politically motivated.

In a statement posted to her Facebook page, Sarah Palin expressed gratitude to the jury for its verdict and likened the account break-in to the Watergate scandal.

"Besides the obvious invasion of privacy and security concerns surrounding this issue, many of us are concerned about the integrity of our country's political elections," she wrote.  "America's elections depend upon fair competition.  Violating the law, or simply invading someone's privacy for political gain, has long been repugnant to Americans' sense of fair play.  As Watergate taught us, we rightfully reject illegally breaking into candidates' private communications for political intrigue in an attempt to derail an election."

Though the involvement of Sarah Palin is principally what gives this case its high-profile status, I see lots of interesting and important computer crime sentencing issues raised by this case.  For example:

1.  Does Palin qualify as a victim of David Kernell's crimes under the CVRA so as to provide he with special statutory rights during the sentencing proceedings?  Relatedly, will Palin opine formally about what sort of sentence she wants Kernell to receive?

2.  Should the politics surrounding this matter serve as an aggravating or mitigating factor at sentencing?  On the one hand, illegal hacking for political advantage seems to make these computer crimes, in Palin's words, more "repugnant to Americans' sense of fair play."  But, on the other hand, the important and valid public interest in knowing about public figures perhaps makes "political figure" hacking more understandable.

3.  Should Kernell's age be an aggravating or mitigating factor at his sentencing?  On the one hand, retributivists might argue that he is less culpable because young people these days really do not understand fully the significance of on-line privacy.  But, on the other hand, consequentialists might argue that he should be punished more severely to send an especially strong message to young people about the importance of respecting on-line privacy.

I could go on and on: e.g., is this case one that may uniquely justify prison alternatives and/or shaming sanctions and/or community service?  is the recommended guideline range really likely to speak to any of the special factors involved in this case?  Is it entirely appropriate for Palin to be using Facebook to tell the world how awful she thinks the defendant's crimes are (especially given that he was acquitted on two counts)?

May 1, 2010 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Victims' Rights At Sentencing | Permalink | Comments (6) | TrackBack

April 30, 2010

Why the proposed new federal guideline amendments are symbolically important

There are lots of practical and technical reasons why the proposed new federal guideline amendments released today by the US Sentencing Commission (basics here) are quite important and potentially very consequential for the day-to-day work of litigants and judges in the federal sentencing system.  But, the ivory-tower academic in me cannot help but suggest that folks note and reflect upon the symbolic importance of these new amendments.  Let me explain.

First, these amendments are really the first set of changes to the US Sentencing Guidelines that fully and formally reflect the import and impact of the Supreme Court's decision in Booker.  It is pretty crazy and sad that it has taken the USSC more than five years to fully deal with Booker as the law of the land, but it is also quite significant and telling that the Commission is now making sure that the guidelines expressly take account of post-Booker realities.

Second, and even of greater symbolic import, virtually all of the Commission-driven proposed amendments in this cycle are intended to (and are likely to) reduce applicable sentencing ranges and the overall severity of the guidelines.  Through the first 20+ years of guideline sentencing, the vast majority of proposed amendments have called for increases in applicable sentencing ranges and the overall severity of the guidelines.  This set of amendments thus reflects a quite tangible (and perhaps enduring) change in focus and direction of the Commission's on-going guideline-revision work.

This second point, critically, also prompts an important practical and technical issue (assuming Congress allows these new proposed guideline to become effective): will the US Sentencing Commission later this year vote to make any of its new guideline-reducing amendments retroactive for the benefit of already-sentenced defendants now in federal prison?

April 30, 2010 in Federal Sentencing Guidelines, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Interesting split Eleventh Circuit ruling on whether ADA applies to a private prison

Because I am not an expert on the American with Disabilities Act, I cannot readily assess the merits of the split ruling by the Eleventh Circuit today in Edison v. Douberly, No. 08-15819 (11th Cir. 2010) (available here).  But the majority's holding and the forceful dissent have me thinking the case implicates not just the procese issue of whether just the ADA applies to a private prison, but also whether and how private prison operators can be sued by the prisoners they manage.  Moreover, this concluding sentiment by the dissent cannot help but invoke a little sympathy for the losing litigant here:
In light of the fact that Edison is legally blind, his case raises novel issues of law, and he did not benefit from the assistance of counsel during the district court proceedings, the case should be remanded with the opportunity for Edison to amend his complaint. Leaving the majority’s holding on the ADA aside, it is an injustice to leave a blind, incarcerated litigant without any legal recourse in this complex litigation because his request for counsel was wrongfully denied during the district court proceedings.

April 30, 2010 in Prisons and prisoners, Who Sentences? | Permalink | Comments (4) | TrackBack

"Convicted Felon Sues State Over Right To Bear Arms"

The title of this post is the headline of this notable press story sent to me by a helpful reader.  Here is how the piece starts:

A Franklin man is suing the state of Tennessee for not honoring a pardon allowing him the right to bear arms. David Scott Blackwell received a felony charge for drug possession in 1988, when he was 20 years old.

"I was young and dumb and moved from a small town in Mississippi and got involved with the wrong crowd in Atlanta," said Blackwell. "I'd sold some cocaine to an undercover officer. Boom - I went to prison, went to jail."

After serving his sentence and earning a bachelor's degree in nursing, the father said he petitioned the state of Georgia for a pardon, including the restoration of the right to bear arms, which was granted on August 11, 2003.

Blackwell ran into a problem in Tennessee. "Wanted to go hunting about two years ago and went to purchase a little .22 rifle for my son, and was denied," said Blackwell.

After two years of going back and forth with the Tennessee Bureau of Investigation and the Attorney General's office, Blackwell decided to file a declaratory relief lawsuit against the State of Tennessee, Governor Phil Bredesen and Attorney General Bob Cooper.

The lawsuit was filed in Davidson County Chancery Court on Thursday morning, and served to the state later that afternoon. Cooper's office had no comment on the lawsuit, but said they are in the process of reviewing it.

"It is just amazing to me that if you have a pardon, a full pardon that specifically gives you restoration of rights that the attorney general can say 'no, you're not a person. You have no rights. You don't have the same rights as anyone else,'" said Blackwell's attorney David Raybin.

"According to the attorney general, even if the governor of Tennessee pardoned a person in Tennessee, that wouldn't help them," continued Raybin. "Under the attorney general's opinion, there's no power on the planet that can restore his right to have a firearm and I reject that. I think that's wrong."

"We call it a Department of Corrections, not a Department of Punishment," said Blackwell. "We all want people to be corrected in their behavior, but there has to be that touchdown, that goal line that somebody can attain to become a citizen again."

A few related Second Amendment posts:

UPDATE:  Thand to Blackwell's attorney David Raybin, I have a copy of the complaint filed in Blackwell v. Bredesen, which can now be downloaded here:

Download Blackwell_v_Bredesen_FILE_STAMP_copy

April 30, 2010 in Clemency and Pardons, Second Amendment issues | Permalink | Comments (10) | TrackBack

US Sentencing Commission posts full text of its significant new guideline amendments

I am very pleased to report that the US Sentencing Commission now has posted on its website the full text of its new "Amendments to the Sentencing Guidelines, Policy Statements, and Official Commentary." Here is how this technical document is officially described:

Pursuant to section 994(p) of title 28, United States Code, the United States Sentencing Commission hereby submits to the Congress the following amendments to the sentencing guidelines and the reasons therefor. As authorized by such section, the Commission specifies an effective date of November 1, 2010, for these amendments.

Though there are a lot of important and interesting aspects to all the amendments, the first five amendments are especially significant and all could be hugely consequential.  Of particular interest because it potentially impacts every federal sentencing proceeding, is the second amendment concerning changes to the language about departures based on certain offender characteristic.  Specifically, the proposed amendment eliminates the guidelines long-standing assertion that certain key offender characteristics are "not ordinarily relevant" to a departure decision.  Now, as this document explains:

As amended, these policy statements generally provide that age; mental and emotional conditions; and physical condition or appearance, including physique, "may be relevant in determining whether a departure is warranted, if [the offender characteristic], individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines."

Though arguably not too much more than a tweak in how the guidelines call for these offender characteristic to be considered, I suspect many (all?) defense counsel and some (many?) sentencing judges will view this tweak to be very significant in some (many? all?) cases.

April 30, 2010 in Federal Sentencing Guidelines, Offender Characteristics, Who Sentences? | Permalink | Comments (4) | TrackBack

Is California finally getting closer to bringing its death chamber back on line?

As detailed in this Los Angeles Times article, which is headlined "California revises execution guidelines," the state with the largest death row has finally taken a critical step forward in its long-stalled efforts to revise its execution protocol in response to constitutional litigation:

California moved a step closer to resuming executions Thursday when corrections officials announced new lethal injection procedures, beating a May 1 deadline by one day. The proposed changes in the death chamber procedures, though mostly minor, are intended to address concerns expressed by a federal judge in 2006 that the state's earlier three-drug sequence may have exposed some of those who were executed to unconstitutionally "cruel and unusual punishment."

Although the new procedures could get final approval by mid-June, executions are unlikely to resume soon because federal and state judges must first review the changes and decide whether they address the constitutional questions and procedural complaints brought by death penalty opponents. Those reviews are likely to extend at least through the end of the year, and other pending legal challenges could keep the current moratorium in effect for months or years....

California has 702 inmates on death row. Despite having the nation's largest population of condemned prisoners, there has not been an execution in the state since convicted killer Clarence Allen was put to death in January 2006.  At least six death row inmates have exhausted all appeals and could be scheduled for execution as soon as the legal reviews are completed, said Kent Scheidegger of the Criminal Justice Legal Foundation that supports the resumption of executions.

Terry Thornton, spokeswoman for the California Department of Corrections and Rehabilitation, said Thursday's submission of the protocols was the final step for the agency in the "rule-making process." She declined to predict when executions might resume, noting the involvement of other state agencies and the courts.

Thanks to C&C, I saw that the California Department of Corrections and Rehabilitation has this new document titled "Timeline of Lethal Injection Protocol Regulations," which details why it has take the state moreso long to revise effectively its execution protocol.

April 30, 2010 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (4) | TrackBack

New Florida bill to criminalize sex offenders coming with 300 feet of places where children congregate

This new local article, which is headlined "Fla. Senate to vote on restricting sex offenders from within 300 feet of schools, parks," indicates that Florida is soon to have a new restriction on the conduct of sex offenders. Here are the basics:

Senators are set to vote Friday on a bill that would ban convicted sex offenders and predators from loitering or prowling within 300 feet of places where children congregate, such as schools, parks and playgrounds.

The proposed new law (HB 119), sponsored by Rep. Richard Glorioso, R-Plant City, would be enforceable 24 hours a day, statewide. A convicted sex offender or predator caught within the buffer zone would be subject to a first-degree misdemeanor, punishable by up to a year in jail.

House members unanimously passed the bill, 115-0, earlier this month.  Broward County commissioners unanimously approved an identical law Tuesday. The county ordinance is punishable by 60 days in jail or a $500 fine. Miami-Dade County approved the same zones earlier this year.

The move in Broward comes on the heels of outrage earlier this year over reports that a confessed child killer was hanging out in Stranahan Park, next to the main library in downtown Fort Lauderdale....

Sen. Dave Aronberg, D-Greenacres, had sought to include a provision in his version of the bill (SB 1284) that would repeal some of the restrictive residency requirements, which make it increasingly difficult for convicted sex offenders and predators to find places to live.

State law does not allow convicted sex offenders and predators to live within 1,000 feet of schools, playgrounds and parks, but many cities and counties have extended the areas to 2,500 feet. The result has created a statewide patchwork of restrictive zones. Two dozen Broward cities have passed their own residency ordinances.

Aronberg reluctantly withdrew his residency provision, which would have established a statewide 2,500-foot residency ban around schools and day care centers. The goal was to set a consistent standard and stop municipalities from expanding the restriction even more.  Sex offenders unable to find a legal place to live move onto the streets and fail to report their whereabouts to state authorities, Aronberg said.  "Sex offenders have been pushed underground," Aronberg said. "They go homeless, don't report and they roam our streets. This is a very dangerous situation. We need more standardization and we need to keep our streets safer."

April 30, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (20) | TrackBack

Federal prosecutors now seeking 25-year prison term for Rubashkin

This AP article, which is headlined "25-year term sought in Iowa slaughterhouse case," provides a recap of the conclusion of the two-day sentencing hearing in a high-profile white-collar case in Iowa. Here are some of the details:

Prosecutors asked a federal judge on Thursday to sentence a former kosher slaughterhouse executive to 25 years in prison, less than the life sentence they have said they were entitled to request.

Former Agriprocessors Inc. manager Sholom Rubashkin, who was convicted of 86 counts of financial fraud in November, gave a tearful, halting speech at the end of his sentencing hearing in U.S. District Court in Cedar Rapids. He was charged following a May 2008 immigration raid at the former Agriprocessors slaughterhouse, where 389 workers were arrested on immigration charges.

Rubashkin told the court he had made mistakes and was remorseful. In a thick Brooklyn accent, he reiterated that he was sorry for his actions, and that he was put in a position by his family of running the operations of a large plant for which he had no training or interest....

Prosecutors had added up the charges in pre-sentencing documents and the total came to a life sentence. But assistant U.S. Attorney Pete Deegan said Thursday in court that the government would seek 25 years and not life, which is "usually reserved for violent criminals."

"Here you have a defendant who had everything: family, love and support," Deegan said. "And he's asking for a lesser sentence because of it."

Defense attorney Guy Cook, who had requested a six-year sentence, said the request for 25 years would essentially be a life sentence for the 50-year-old Rubashkin. Cook asked that he serve it at a facility in Otisville, N.Y., which better caters to the needs of Hasidic Jews. "He only has about 25 or 26 years left on this earth," Cook said. "Twenty-five years is a life sentence."

U.S. District Court Judge Linda Reade says she'll issue a ruling on May 27....

Deegan said there were many victims in the case: the banks who lost money to Rubashkin because of the fraud, the cattle sellers who had to take out loans to avoid closure, and the citizens of Postville, who watched their largest employer fall into bankruptcy and their town's economy crumble. Deegan said Rubashkin wasn't some far-removed corporate officer who "sets (fraud) in motion," but rather a hands-on executive who personally broke the law and directed others to do the same.

But Cook said he had gotten to know Rubashkin since he took on the case, and found him to be a deeply religious man who put the needs of others in front of his own. "It was not a Ponzi scheme, it was not a Madoff scheme," Cook said. "He made mistakes and he compounded those mistakes. And he felt trapped and didn't know how to get out."

Related posts on the Rubashkin case:

April 30, 2010 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (9) | TrackBack

April 29, 2010

"The Stability of Case Processing and Sentencing Post-Booker"

The title of this post is the title of this notable empirical paper that I just noticed via SSRN.  The piece is  authored by Jeffery Todd Ulmer and Michael Thomas Light, and here is the abstract:

In January of 2005, the U.S Supreme Court ruled in United States v. Booker and Fanfan that in order to be constitutional, the federal guidelines must be advisory rather than presumptive. The uncertainty regarding how Booker may change sentencing practices has been a major discussion among legal scholars.  The wake of Booker/Fanfan may bring decreased uniformity and consistency in sentencing between District Courts, and also increased unwarranted disparity based on the social status characteristics of defendants. This is one of the first empirical studies to examine if and how Booker has changed federal sentencing.

We first review the Booker/Fanfan decision and its importance and aftermath, and then review what is known from previous studies of disparity in federal sentencing pre-Booker/Fanfan.  Using survey data taken from judges, lawyers, and probation officers in federal courts, we examine how practices in courts may have changed post-Booker.  We then examine several of the central questions surrounding whether Booker has increased disparity using USSC data on federal sentencing outcomes from three time periods: prior to the 2003 PROTECT Act, the period governed by the PROTECT Act, and the post-Booker/Fanfan period (2006-2007).  The results from the survey data show that while some sentencing practices have changed slightly, Booker has not dramatically altered them.  And from the USSC data we find that while federal judges in general sentence more leniently post-Booker, extralegal disparity and interdistrict variation in the effects of extralegal factors on sentencing have not increased post-Booker.  Thus, allowing judges greater freedom to exercise discretion does not necessarily result in increased extralegal disparity.

April 29, 2010 in Booker in district courts, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack

Intriguing little Ninth Circuit ruling rejecting various challenges to denial of parole

For anyone too quick to assume that defendants always win in the Ninth Circuit with novel constitutional claims, consider checking out today's panel ruling in Moor v. Palmer, No. 07-16045 (9th Cir. Apr. 29, 2010) (available here).  In Moor, a Ninth Circuit panel rejects a variety of intriguing constitutional complaints from a Nevada state prison complaining in a habeas petition about the denial of his parole.  I do not think the ruling breaks any significant new jurisprudential ground, but it does effectively review the array of (often not successful) constitutional claims that can be raised in this setting.

April 29, 2010 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Researchers requesting information on attorney plea and jury selection strategies

I have been contacted by a doctoral student in legal psychology at the John Jay College of Criminal Justice, who has kindly asked for me to post the following formation about research she and a colleague are doing on attorney judgment strategies in plea negotiations and during jury selection:

Plea Bargaining Research Study (prosecutors and defense attorney participants needed): Researchers at the John Jay College of Criminal Justice are conducting a study investigating the factors that influence attorneys' plea bargaining decisions.  The study is conducted online and takes approximately 20 minutes to complete.  Participants will receive $30 for their participation, payable by check or PayPal.  Participants will be asked to assume the role of an attorney in a robbery case.  Participants will receive case information (police reports, witness statements) and will be asked questions about how they would proceed with plea negotiations.  The results of this study will be disseminated in academic journals and in presentations at academic conferences.  We will share the results of the study with participants when it is completed.  If you are interested in participating in the study, please contact Caroline Crocker at psychlaw.research@gmail.com to receive a link to the online study and a personal identification number.  This study is funded by a grant from the National Science Foundation and is supervised by Dr. Steven Penrod.

Jury Selection Decision Making Study (prosecuting attorney participants needed): Researchers at John Jay College of Criminal Justice are conducting an online study on jury selection funded by the National Science Foundation.  The study takes approximately 20 minutes to complete and pays $35.  We are recruiting attorney participants from all over the country.  This study is being supervised by Dr. Margaret Bull Kovera.  Results of this study will be disseminated in peer reviewed psycholegal journals, such as Law and Human Behavior, and results will be published as aggregate data; attorneys' names will never be linked to their data.  Attorneys who participate in the study will be asked to read a short trial summary and a potential juror profile, and then asked to answer some brief questions about the potential juror. Interested attorneys can contact the researcher for this study, Julia Kennard, at juryselection@gmail.com.  We will share the results of the study with participants when the study is completed.

April 29, 2010 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Of interest from The BLT

The Blog of Legal Times has a number of new (and lengthy) posts this week that may be of interest to various sentencing fans for various reasons:

April 29, 2010 in Recommended reading | Permalink | Comments (1) | TrackBack

Any fresh thoughts about President Obama's pending SCOTUS nomination decision?

In addition to being a bit (unjustifiably?) annoyed that it is taking quite some time for President Obama to name a replacement for Justice Stevens, I am annoyed that the same usual suspects keep getting talked up on the usual short lists.  For example, this Newsweek featurehas an array of intriguingly different commentors discussing the same old short list candidates (with the possible exception of Elizabeth Warren, who is championed by Jonathan Alter).  Similarly, SCOTUSblog prognosticator Tom Goldstein had this long post earlierthis week saying all the politics have changed and thus he is now predicting the selection of... Elana Kagan, the same person he predicted would be selected way back in February.

Consequently, looking for some fresh names and fresh thoughts if only for the joy of discussion, I wonder if any readers have come across or come up on their own with any truly original possibilities for the next Justice.

Some related SCOTUS short-list posts (both recent and distant):

April 29, 2010 in Who Sentences? | Permalink | Comments (6) | TrackBack

President Obama nominates Judge Patti Saris to take over as Chair of USSC

As detailed in this press release from the White House, yesterday "President Obama nominated Judge Patti B. Saris as Commissioner and Chair of the United States Sentencing Commission and Dabney Langhorne Friedrich as Commissioner on the United States Sentencing Commission."

I had heard rumors that Judge Saris, who has served since 1994 on the District Court for the District of Massachusetts, would be taking over the Chair position from outgoing Chair Judge William Sessions.  And the reappointment of Commissioner Dabney Friedrich, who was first appointed to the USSC by President Bush and was counsel to Senator Orrin Hatch back when he was chair of the Senate Judiciary Committee, is likely part of an overall plan to help ensure that these nominations do not face any confirmation problems.

Because outgoing USSC Chair Sessions is concluding his lengthy tenure on the Commission with a set of proposed guideline amendments that could be extraordinarily consequential, and because DOJ under AG Eric Holder is likely soon to announce its conclusions from its own internal sentencing policy review, Judge Saris is due to take over the USSC at an especially dynamic and important (and challenging) time. I wish her the very best of luck.

April 29, 2010 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack

April 28, 2010

Is anyone still preserving Apprendi/Blakely challenges to judge-determined restitution awards?

Thanks to the Supreme Court deciding only civil cases this week, I have finally found time to read the argument transcript from last week's SCOTUS oral argument in Dolan v. US (which is available at this link).  There are lots of interested aspect of the Dolan transcript ranging from frequent discussion of what is a final sentence to the potential impact of the 3553(a)'s requirement that district judges consider the need for restitution. 

But one particular line from the start of one of Justice Scalia's questions to the Government prompts my question in the title of this post.  Specifically, on page 31 of the Dolan transcript, Justice Scalia starts a line of questioning by saying "I think it's bad enough to have the issue of whether this victim suffered $100,000 damages decided by the judge...."  In addition, on pages 51-52 of the Dolan transcript Justice Scalia suggest with another line of questions that he is troubled by the fact that "it's the judge who finds that the victim suffered so much money" and that the judge does not use a beyond a reasonable doubt standard when making this finding.

In other words, it appears that Justice Scalia remains quite concerned that the constitutional requirements imposed on sentencing determinations in Apprendi and Blakely are not being applied with respect to the fact-finding involved in the setting of criminal restitution awards.  Thus, despite the fact that every circuit has rejected arguments to apply Apprendi and Blakely to restitution awards, there is at least one Justice (and perhaps there are more) who might be eager to give some new life to these kinds of claims.

I fear that few defendants even try to preserve Apprendi/Blakelychallenges to judge-determined restitution awards since these claims never got any real traction in lower courts after Blakely.  But the Dolan transcript suggests that perhaps these claims ought still be preserved and pressed all the way up to the Justices.

April 28, 2010 in Blakely Commentary and News, Blakely in the Supreme Court, Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (9) | TrackBack

Ninth Circuit to review en banc whether Washington's disenfranchisement of felons violates the VRA

As detailed in this prior post, back in January a split Ninth Circuit panel in Farrakhan v. Gregoire, No. 06-35669 (9th Cir. Jan. 5, 2010) (available here), ruled that Washington's felon disenfranchisement law violates the federal Voting Rights Act.  At the time of the opinion, I opined that this was "a ruling that surely will not be the last word on the topic," and I felt "confident predicting that this notable and important ruling will be subject to en banc review by the Ninth Circuit and/or to Supreme Court review."  As detailed in this order, today the Ninth Circuit made me a prognostic savant by formally ordering that Farrakhan v. Gregoire be reheard en banc.

April 28, 2010 in Criminal Sentences Alternatives, Who Sentences? | Permalink | Comments (2) | TrackBack

Interesting probation condition claim in (novel?) "couple sentencing" rejected by Seventh Circuit

The Seventh Circuit has an interesting sentencing ruling today in US v. Diekemper, No. 09-2081 (7th Cir. Apr. 28, 2010) (available here), which caught my eye particularly because of a novel claim is a (perhaps) novel sentencing deal involving a couple involved in fraud conspiracy . Here is how the Diekemper opinion starts:

Joseph Diekemper pled guilty to conspiracy to commit bankruptcy fraud, conspiracy to commit mail fraud, making false statements for the purpose of influencing the United States Department of Agriculture (“USDA”) Commodity Credit Corporation, and perjury. Diekemper’s wife and co-conspirator, Margaret Diekemper, was sentenced first and received two years’ probation for her involvement in the conspiracy. As a condition of that probation, Mrs. Diekemper was prohibited from all contact with her husband during those two years. Diekemper was sentenced subsequently, and after receiving a four-level enhancement for his leadership role, he received a within-guidelines sentence of 120 months’ imprisonment.

Diekemper appeals his sentence, alleging that (1) his wife’s probation condition violates his fundamental right to a marital relationship; (2) the district court judge’s failure to recuse himself for bias violates Diekemper’s right to due process; (3) the district court’s application of the sentencing enhancement was in error; and (4) the district court’s failure to weigh all of the sentencing factors in 18 U.S.C. § 3553 was in error. We affirm.

April 28, 2010 in Booker in the Circuits, Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (9) | TrackBack

Effective USA Today coverage of President Obama's clemency stinginess

Clemencyx Yesterday's edition of USA Today had a pair of pieces (and this reprinted graphis) discussing federal clemency realities, which effectively stressed the significant fact that President Obama has received a huge number of clemency requests while having granted not a single one during his first 16+ months in the Oval Office.  One piece, which is headlined "Record number seek president's clemency," starts this way:

President Obama has received more petitions for pardons and shorter prison sentences than previous presidents at this point in office, and he hasn't approved a single one. 

Obama has already logged 2,361 clemency petitions, according to the Justice Department.  He also faces a backlog of 2,173 old requests, a legacy of a system that civil rights groups and conservative jurists say has fallen into disuse.

A related piece, which is headlined "Convict petitions Obama to reduce crack penalty," highlights the story of, Kenneth Harvey, just one of thousands of offenders hoping that President Obama will give his pledge of hope and change a little more meaning in this context. Here is a brief segment from that piece:

Harvey's family wants him back home — and they thought when Barack Obama got elected president, they'd have a shot. Now, they're not so sure.

Obama has not approved a single request for a pardon or a shorter prison sentence since he took office, despite having more petitions before him — 2,361 according to the Justice Department — than any previous president at this point in his term.

The White House won't discuss the issue, other than to say Obama has asked Justice to review how it processes petitions and makes recommendations.

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 (as evidenced by some of the posts linked below).  Though I remain deeply disappointed at the lack of action by the President in this setting, I am perhaps even more disappointed by the lack of criticism concerning the Obama Administration's failings in this historically significant setting.

Some related posts:

April 28, 2010 in Clemency and Pardons, Criminal justice in the Obama Administration | Permalink | Comments (6) | TrackBack

Federal sentencing hearing starting in high-profile Rubashkin white-collar case

As detailed in this Des Moines Register article, which is headlined "Stage set for arguments over Rubashkin sentence," anyone interested in debates over white-collar sentencing ought to be following events in an Iowa federal district court this week:

A fierce debate over Sholom Rubashkin's prison sentence begins in federal court today with arguments over the former slaughterhouse manager's role in a bank fraud scandal, his past, and a chorus of supporters who say the possible life sentence would be too harsh.

Rubashkin, 50, faces sentencing today for his conviction last year on 86 financial fraud charges. Defense attorneys have asked for a prison term no greater than six years; prosecutors argue that Rubashkin's combined actions merit a life sentence.

Rubashkin's supporters have mounted an aggressive letter-writing and public relations campaign to push for a lighter sentence. Defense lawyers also presented Chief Judge Linda Reade with a letter signed by 24 prominent government officials, including former U.S. Attorneys General Janet Reno, Ramsey Clark and Edwin Meese III.

Prosecutors describe the campaign as an orchestrated effort to distract attention from Rubashkin's crimes. The U.S. attorney's office in Cedar Rapids has received more than 1,300 e-mails from Rubashkin supporters with "consistent threads of misinformation," spokesman Bob Teig said.

Teig, who usually declines to comment about Rubashkin and the Agriprocessors Inc. case, said misconceptions have grown so widespread that prosecutors decided to respond. "The focus has really been skewed, trying to paint the defendant as a victim," Teig said.

Rubashkin's backers have shown continued support for the former executive since his November conviction in Sioux Falls, S.D. Their efforts include a "Justice for Sholom" website, press releases from a New York public relations firm and prayer vigils in major U.S. cities.

In interviews, several Rubashkin supporters insisted that the campaign was a grass-roots effort. Busloads of supporters are expected to arrive in Cedar Rapids today from Chicago, Detroit, Brooklyn, N.Y., and other cities, said Rabbi Pinchos Lipschutz, a Rubashkin family friend from New York.

Related posts on the Rubashkin case:

April 28, 2010 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (11) | TrackBack

"Jailbirds Order Up Hot Wings"

The title of this post is the headline of this fascinating article about a modern new development in the economics of prison food from yesterday's Wall Street Journal.  Here is how the piece starts:

In a bid to raise cash and keep the peace in crowded jails, wardens nationwide are offering inmates the chance to order meatball subs, cheeseburgers, chicken parmesan — even a "Pizza and Wings Party Pack," complete with celery, blue cheese and a Pepsi.

The program goes beyond the old-fashioned prison commissary, with its cup-a-soups and bags of chips, and it can be quite lucrative for corrections departments.  "We have to be creative in tough fiscal times," said Edwin G. Buss, commissioner of Indiana's Department of Correction.

But critics worry the service will trigger jealousies, promote unhealthy diets and coddle prisoners.

The service, launched in 2006 by food-service giant Aramark Corp., took off in the past two years amid the recession. Inmates — or, more often, their relatives — place orders on Aramark's "iCare" Web site. The company tailors its menus to each jail's rules.  Prices generally run $7 to $12 for a hot meal and $20 to $100 for a junk-food box filled with beef jerky, iced cookies, vanilla cappuccino or other goodies not available in the commissary.

The Indiana state prison system is on track to make more than $2 million this year on sales from the service. In San Antonio, Texas, the Bexar County jail, which makes 45 cents on every dollar in sales, projects its revenue could hit $500,000.

Advocates say the deliveries give guards a potent disciplinary tool: Be good or you won't get your jalapeno poppers.

Revenue from the meals has saved prison programs, such as parenting classes, wardens say. And in some institutions, inmates get job-training credit for preparing the hot meals in the jail kitchen and packaging the junk-food boxes.  Plus, said Deputy Chief Debra Jordan, who runs detention programs in Bexar County, given the "very humble" quality of prison food, letting an offender's mom buy him a club sandwich now and then "is an act of kindness."

Critics, however, fear the deliveries will inspire envy, violence and extortion. "It's like with kids — you don't bring cookies to school unless you've got enough for everyone," said Gordon Crews, a criminal-justice professor at Marshall University.

Wardens who have tried the program say that hasn't been a problem.  Many prisons have long let well-behaved inmates order goods such as CD players, sneakers and mini-TVs.  "Jails are always run better when your inmates are happy," said Capt. Richard Fisher, the jail administrator in Rock Island County, Ill.

April 28, 2010 in Prisons and prisoners, Who Sentences? | Permalink | Comments (7) | TrackBack