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April 28, 2010

Latest FSR issue, "Booker at Five," now available on-line

I am overdue in reporting that the latest issue of the Federal Sentencing Reporter, which is full of analysis and primary materials assessing federal sentencing law and practice five years after the Booker decision, is available on-line.  This issue bears the simple title "Booker at Five," and an array of professors and practitioners discuss various of current state of the post-Booker sentencing landscape.  The Table of Connects for this latest FSR issue can be accessed at this link, and the full issue and/or a full subscription to the Federal Sentencing Reporter can be ordered on-line here.) 

FSR editor Paul Hofer played a central role in this timely FSR issue; Paul and I co-authored the issue's Editors' Observations, which is available here and is titled "A Look at Booker at Five."  Here is how our introduction gets started:

The old saw “time flies when you’re having fun” does not quite capture the five years since the Supreme Court’s decision in United States v. Booker.  To most observers, at least those outside the Department of Justice and perhaps a few circuit courts, the advisory guideline sentencing system created by the Booker remedial opinion is an improvement over the rigid mandatory guidelines system that the Booker merits opinion declared unconstitutional.  Yet the U.S. Bureau of Prisons still runs the largest prison system in the United States, which is itself the nation with the highest incarceration rate in the world. And even district judges and defense attorneys, who may be the biggest fans of the post-Booker federal sentencing system, would surely agree that many aspects of the current system are far from perfect.

Though not everyone may be having “fun,” there has been no shortage of federal sentencing activity to keep everyone busy thinking about the ruling and its consequences and impact. In this time, more than 350,000 defendants have been sentenced under the effectively advisory guidelines.  The Supreme Court has handed down five additional opinions clarifying implications of the Booker decision (with more in the works), and both district and circuit courts have grappled with issues left unanswered, with varying degrees of success (and expressions of frustration).  Almost as noteworthy is what has not happened. Congress has not picked up the ball hit into its court by the Supreme Court’s Booker remedy, and the U.S. Sentencing Commission has barely acknowledged that the guidelines are advisory in its Guidelines Manual — plus, no major guideline revisions can be attributed to the decision.

In this issue of Federal Sentencing Reporter, we have solicited a range of authors to provide their perspective on what has and has not changed in the federal sentencing system after Booker.  And, in these Editors’ Observations, we seek to spotlight how these perspectives provide a deeper understanding of whether the changes wrought by the Booker decision and its aftermath are the sort that those interested in sentencing justice should believe in.

Other recent FSR issues:

April 28, 2010 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Recommended reading | Permalink | Comments (0) | TrackBack

Federal district judge rejects corporate plea deal

This New York Times story, which is headlined "Judge Rejects Plea Deal on Guidant Heart Device," reports on an interesting development in a notable federal corporate prosecution. Here are the basics:

A federal judge in Minnesota on Tuesday rejected a plea agreement between the federal government and the Guidant Corporation, saying that the deal did not hold the company sufficiently accountable for an episode in which it sold potentially flawed heart defibrillators.

The ruling was a setback for the Justice Department, which had characterized the agreement as a demonstration of its get-tough approach to corporate crime. The deal called on Guidant to plead guilty to two misdemeanors and pay a $296 million fine, described as the largest by a medical device company.

But in his opinion, the judge, Donovan W. Frank of United States District Court said the provisions of the agreement were “not in the best interest of justice and do not serve the public’s interest because they do not adequately address Guidant’s history and the criminal conduct at issue.”

The case results from disclosures in 2005 that Guidant did not alert doctors and patients that some of its defibrillators had a defect that might cause them to fail when needed to interrupt an erratic and possibly fatal heart rhythm. At least six patients who got the devices died.

Judge Frank said that prosecutors should have sought probation for Guidant and its parent, Boston Scientific. Probation would have required the companies to take certain steps, like helping to rebuild public confidence in the safety of heart devices, in addition to paying a fine.

The judge also outlined other provisions that might be suitable in a new plea deal, including charitable activities by Guidant to improve heart device safety and improve medical care among minority patients.

After a hearing this month, several doctors and patients wrote to Judge Frank urging him to reject the deal and arguing that former Guidant executives should be criminally charged in the case. But Judge Frank noted in his ruling that it was up to prosecutors, not a court, to decide who should be prosecuted....

At the hearing this month before Judge Frank, both government prosecutors and a Guidant lawyer testified that the deal was fair. Also, under questioning by Judge Frank, prosecutors defended their decision not to seek probation, saying it was not necessary because, among other things, the company created to enter Guidant’s plea, Guidant LLC, existed only on paper.

In his ruling, Judge Frank took direct aim at that argument, suggesting it contradicted the Justice Department’s own public statements about the case. He noted that a department news release said Guidant’s plea deal was “about accountability.” Judge Frank wrote, “The interests of justice are not served by allowing a company to avoid probation simply by changing their corporate form.”

The judge also noted complaints by others, including Dr. Hauser and Dr. Maron, that Guidant had violated the law in the past without much consequence and that Boston Scientific, while not responsible for Guidant’s behavior, could still be held accountable. “The court believes that a period of probation would likely benefit, rather than harm, Guidant and Boston Scientific’s public image,” he wrote.

April 28, 2010 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

April 27, 2010

"FAMM Condemns Mandatory Life Sentence for NV Woman"

The title of this post is the heading of this new press release from the folks at Families Against Mandatory Minimums in response the the remarkable Nevada sentencing story discussed in this prior post.  Here is an excerpt from the press release:

According to published news reports, a jury convicted Ms. Taylor, 34, of lewdness with a minor under 14 for forcing a 13-year-old boy to touch her breast through her clothing and soliciting him for sex.  Conviction for lewdness with a minor under 14 carries a mandatory life sentence in Nevada with parole eligibility after 10 years.

"Based on what we've learned so far, we believe the life sentence handed to Ms. Taylor is a total travesty of justice," said Julie Stewart, FAMM founder and president.  "FAMM does not condone criminal behavior, especially where a minor is the victim, but no reasonable person can believe that the punishment fits the crime in this case.  Life sentences are usually reserved for murderers and repeat violent offenders."

"FAMM opposes mandatory minimum sentencing laws that carry disproportionate one-size-fits-all sentences and enormously expensive penalties.  Keeping Ms. Taylor in jail for the rest of her life could cost Nevada taxpayers well over $1 million.  This seems like a terrible waste of a life, and limited taxpayer resources," concluded Stewart.

April 27, 2010 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

"Fixing the Prison Health Care System Through Changes in Punishment"

The title of this post is the title of this new piece on SSRN that might be of special interest to policy-makers and prison officials in California who are trying to get out from under various court-ordered requirements to improve prison health care conditions.  Here is the abstract:

Something must be done to improve access to health care in America’s prisons.  A prison sentence today imposes an illegitimate burden of poor quality medical care on prisoners. The prison system neither treats inmate fairly nor effectively, and exacerbates and spreads disease. Existing pathways to reform have failed.  Legislative fixes have been mired in losing political battles.  Efforts at litigating for change have been derailed by hostility both from the judiciary and legislatures.  Finally, common-sense prison based remedies have been stymied by extraordinarily rare application.  The best hope for improving conditions comes through a radical expansion of sentencing and early-release initiatives.  These proposals limit the sentences of sick inmates at the outset, and provide for early release of sick inmates who are already incarcerated.  These measures serve as a safety-valve for the overburdened prison health-care system, while avoiding the problems of other measures.

April 27, 2010 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Interesting Padilla echo in Second Circuit ruling

The Second Circuit has an interesting ruling today in US v. Cerna, No. 09-1170 (2d Cir. Apr. 27, 2010) (available here), which seems to reflect the echoes of the Supreme Court's important recent ruling in Padilla concerning effective assistance to noncitizen defendants. Here is how the Cerna opinion begins:

This case gives us occasion once again to take note of the exceptionally poor quality of representation often provided by attorneys retained by aliens as they attempt to negotiate the complexities of our immigration law. See Aris v. Mukasey, 517 F.3d 595, 596 (2d Cir. 2008).  Here, despite the fact that the immigration judge (“IJ”) specifically found that the defendant was eligible for relief from deportation in the form of a waiver of inadmissibility under former § 212(c) of the Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1182(c) (repealed 1996), and despite the fact that the defendant’s counsel indicated that he would file an application for such relief, no application was ever filed.   We hold today that the district court committed clear error when it found that the defendant knowingly and intelligently waived his right to contest the deportation order that was subsequently issued. Because the district court’s determinations that the defendant did not meet the requirements of § 1326(d)(2) and (3) either were predicated on this erroneous factual conclusion or were legally erroneous, its decision cannot stand on these additional findings.  We further hold that ineffective assistance of counsel may be grounds to excuse the requirement of 8 U.S.C. § 1326(d)(1) that a defendant charged with illegal reentry who brings a collateral challenge to the prior deportation order must have exhausted administrative remedies in the immigration proceeding.

For non-citizens at risk of deportation the consequences of inadequate counsel can be devastating. Because such incompetence undermines the fair and effective administration of justice, courts must be ever vigilant.  We cannot countenance the circumstance in which the failure of counsel to meet the most basic professional standards denies the alien a meaningful opportunity for judicial review. Cf. Padilla v. Kentucky, No. 08-651, 559 U.S. ___, slip op. at 6 (2010) (“The importance of accurate legal advice for noncitizens accused of crimes has never been more important.”).  Accordingly, we vacate the judgment of the district court and remand for further proceedings consistent with this opinion.

April 27, 2010 in Collateral consequences, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Eleventh Circuit rejects various constitutional challenges to federal child porn convictions

The Eleventh Circuit has a notable ruling today in US v. Paige, No. 09-13067 (11th Cir. Apr. 27, 2010) (available here), which rejects various constitutional challenges to various federal child porn convictions. Here is how the opinion begins:

Robert D. Paige appeals his convictions for permitting his minor child to engage in sexually explicit conduct for the purpose of producing child pornography, in violation of 18 U.S.C. § 2251(b); and possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). He also appeals his 180- month total sentence.  Paige argues that § 2251(b) is facially unconstitutional, because Congress exceeded its Commerce Clause authority in enacting the statute.  He also argues that both §§ 2251(b) and 2252A are unconstitutional as applied in his case, because of an insufficient nexus between his conduct and interstate commerce.  Finally, Paige argues that applying 18 U.S.C. § 2251(e)’s 15-year statutory minimum sentence violated the separation of powers doctrine. For the reasons set forth below, we affirm.

April 27, 2010 in Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

With more SCOTUS opinions coming this week, will April include a sentencing blockbuster?

The Supreme Court has announced that it will be handing down new opinions this morning (and tomorrow morning), which means we could be getting one or more decisions in some of the big criminal cases still pending.  Because I will be on a plane and thus off-line most of this morning, Murphy's Law suggests that the Justices will issue blockbuster sentencing opinions this morning in Graham and Sullivan, the two big juve LWOP Eighth Amendment cases from Florida.

When I get back on-line this afternoon, I will be quick to report on any notable SCOTUS action.  In the meantime, all criminal justice fans can and should head over to SCOTUSblog and How Appealing for all the Supreme Court news as it breaks.

UPDATE:  The Justices kept it "civil" with their rulings today, so it appears that last chance for an April criminal justice blockbuster is Wednesday.

April 27, 2010 in Who Sentences? | Permalink | Comments (1) | TrackBack

Triple-digit sentence for child molester

In case anyone was concerned that only white-collar offenders received triple-digit sentences, this local story about a state sentencing of a child molester should provide a useful reality check.  Here are excerpts of note from the story:

Receiving what could be one of the longest non-homicide sentencings in Bedford County history, Greg Allen Gibbs Sr., 32, was sentenced Monday to 120 to 240 years in prison for committing sexual offenses against children.

Bedford County District Attorney William Higgins said he was "very happy" with Monday's sentencing. "This is a chance where the judge took advantage of an opportunity to take a child sex offender off the streets," Higgins said.

Gibbs, formerly of Mercer, was found guilty of 29 charges in December after a two-day trial and two hours of deliberation. According to testimony from Gibbs' wife, Tammy, she and her husband demonstrated sexual acts to three children, all younger than 10, and instructed the minors in how to perform explicit sexual acts with each other.

Bedford County President Judge Daniel Howsare also found Gibbs to be a sexually violent predator under Pennsylvania's Megan's Law. Howsare made the ruling upon the recommendation of Herbert Hays, a member of the Pennsylvania Sexual Offenders Assessment Board....

Tammy Gibbs pled guilty in 2008 to three counts of endangering the welfare of children and served time in the Bedford County Prison from August 2007, when the pair was arrested, to February 2009. She aided in her husband's prosecution.

Higgins argued against concurrent sentences, saying Gibbs should be punished for each of the 29 separate and distinct criminal offenses. "The defendant should not be afforded a bulk discount for the multitude of depraved acts," Higgins said.

The maximum sentence recommended by the prosecution was 482 years.  Higgins was pleased nonetheless.  "The bottom line is that this sexually violent predator, Greg Gibbs, will never have access to children again, and absent a medical miracle, he will die behind bars," he said.

Though the crimes involved here are horrible, I cannot help but be a bit amused by the reporting of this sentencing.  That the sentence of 120 to 240 years in prison was less than half of what the prosecution requested is remarkable, as is the prosecutor's off-handed suggestion that the defendant here might outlive his triple-digit prison sentence with the help of a medical miracle.

April 27, 2010 in Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

April 26, 2010

"More Former AGs Question Sentence Sought in Bank Fraud Case"

The title of this post is the headline of this new item over at The Blog of Legal Times, which is reporting on some of the latest news involving a high-profile upcoming sentencing. Here are some of the details:

More former Department of Justice officials are voicing concern over the potential life sentence facing Sholom Rubashkin, the kosher slaughterhouse manager in Iowa whose sentencing on federal bank fraud and money laundering charges is set for this week.

On April 21, former attorneys general Nicholas Katzenbach and Edwin Meese III submitted a letter to Chief Judge Linda Reade of the U.S. District Court for the Northern District of Iowa that expressed concern about the guideline sentence proposed in the Rubashkin case. Former Deputy Attorney General Larry Thompson, who is now general counsel at PepsiCo Inc., and eight former U.S. attorneys also signed the letter. Click here for a copy.

Nathan Lewin, a lawyer for Rubashkin, said today that several more former DOJ officials —including former attorneys general William Barr, Janet Reno and Richard Thornburgh — have signed the letter submitted to Reade.  Former Deputy Attorney General Jamie Gorelick and former Solicitor General Seth Waxman are also signatories, said Lewin of Washington's Lewin & Lewin.  Gorelick and Waxman are partners in the Washington office of Wilmer Cutler Pickering Hale and Dorr. Thornburgh is of counsel in the Washington office of K&L Gates, and Barr serves on the Time Warner board of directors.

Rubashkin was convicted in November on 86 financial crime and related counts for his role in a scheme to defraud a bank that provided a $35 million line of credit to the Rubashkin family-owned Agriprocessors Inc., a kosher slaughterhouse in Postville, Iowa.  At trial, Rubashkin, 51, admitted making mistakes regarding the loan; he denied any criminal wrongdoing. He has been jailed pending sentencing.

The lead prosecutor, Assistant U.S. Attorney Peter Deegan Jr., who called Rubashkin's fraud "extraordinary," noted in the government’s sentencing memo that Rubashkin faces a potential life sentence. Rubashkin’s lawyers argue that the guideline should not be followed. The attorneys say a six-year prison term, at most, is just punishment. A two-day sentencing hearing is set to begin April 28 in Reade’s courtroom.

The court has received more than a thousand letters and e-mails that support leniency for Rubashkin.

I have not recently blogged about the sentencing debate swirling around Sholom Rubashkin, in part because I was asked earlier this month to play a small role in aid to Mr. Rubashkin's defense team.  Specifically, and in the interest in full disclosure, I had a hand in helping to draft the above-referenced letter to Chief Judge Linda Reade that has now been signed by many former US Attorneys General and former senior Justice Department official.  The full letter with the names of the signors can be downloaded here: Download Former AGs letter about Rubashkin sentencing 

As evidenced by the post at The BLT and by this new ABC News story, it seems that this letter is further raising the profile of a sentencing that is already getting plenty of attention from lots of different folks.

April 26, 2010 in Federal Sentencing Guidelines, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

House bill to create "National Criminal Justice Commission" to be rolled out tomorrow

This new press release from the office of Representative Bill Delahunt (D-MA) reports on a notable legislative development to be formally annouced at a press conference tomorrow. Here are the details:

U.S. Reps Bill Delahunt (D-MA), Darrell Issa (R-CA), Marcia Fudge (D-OH), and Tom Rooney (R-FL) will hold a press conference on Tuesday April 27, 2010 at 11:30AM in Room 2255 of the Rayburn House Office Building to announce the introduction of the National Criminal Justice Commission Act of 2010.

The National Criminal Justice Commission Act of 2010, was introduced in the Senate as S. 714 by Senators Jim Webb. The bill has received widespread bipartisan support and has 37 cosponsors in the Senate, including Chairman of the Senate Judiciary Committee Senator Patrick Leahy (D-VT), Chairman of the Subcommittee on Crime and Drugs Senator Arlen Specter (D-PA) and Ranking Member Senator Lindsey Graham (R-SC), and Judiciary Committee member Senator Orrin G Hatch (R-U).

It will create a blue-ribbon bipartisan commission charged with undertaking an 18-month comprehensive review of the Nation’s criminal justice system.  The Commission will study all areas of the criminal justice system, including federal, state, local and tribal governments’ criminal justice costs, practices, and policies.  After conducting the review, the Commission will make recommendations for changes in, or continuation of oversight, policies, practices, and laws designed to prevent, deter, and reduce crime and violence, improve cost-effectiveness, and ensure the interests of justice.  The bill has been endorsed by approximately 100 organizations.

A copy of the bill will be available at the press conference.

I think much good could come from having a new "blue-ribbon bipartisan commission charged with undertaking an 18-month comprehensive review of the Nation’s criminal justice system," especially if this National Criminal Justice Commission is effectively staffed and funded.  But I am fearful that the creation of a new study commission, who won't issue recommendations until probably 2012 or beyond, could become a distraction from the critical important federal criminal justice reform work that could and should be getting done right now.

Indeed, this very press release has me wondering (again!) about the status of crack/powder sentencing reform in the House.  It has now been more six weeks since 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.  I had heard rumors that similar compromise legislation might get through the House in April, but these rumors now seem unlikely to become a reality. 

In light of this background, I am not especially excited by House members getting all excited about the introduction of the National Criminal Justice Commission Act of 2010.  I do not think this development is itself a reason for criticism, but it does remind me of how important it is for those interested in serious criminal justice reform to keep their eyes on the prize.

Some related recent and older posts:

April 26, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

"California Case Spotlights Dysfunctional Death Penalty"

The title of this post is the headline of this new ABC News piece providing a follow-up to the plea bargained resolution of the high-profile Chelsea King prosecution.  Here is how the piece starts:

Chelsea King's parents reluctantly agreed to a sentence of life in prison for their daughter's rapist and killer, calling the death penalty in California "an empty promise."

The Kings join a growing list of victims' families, law enforcement officials and other capital punishment proponents who have grown disillusioned with California's death penalty. The decision to forego capital punishment for registered sex offender John Gardner, who this month admitted killing Chelsea King and another teen girl, has once again thrust the gridlocked system into the spotlight.

Five more inmates joined California's death row this year, pushing the population past a record 700 inmates, by far the nation's largest. Florida is second with 394 inmates on death row, and Texas is third with 333, but both of those states regularly carry out executions.

Legal challenges over how lethal injections are administered to condemned prisoners in California have halted executions in the state since Clarence Ray Allen was put to death Jan. 17, 2006. The lawsuits are far from being resolved, and most observers believe it could be years before another execution takes place at San Quentin Prison.

Even before the suspension, only 13 condemned inmates have been executed from the time capital punishment resumed in the state in 1977 until February 2006, when U.S. District Court Jeremy Fogel halted executions until prison officials revamped their lethal injection process....

California Chief Justice Ron George told the California Commission on the Fair Administration of Justice that the state's capital punishment system is "dysfunctional." Death penalty appeals account for 25 percent of the high court's workload, he has said.

If the only goal and value of having the death penalty on the books is to have lots of murderers executed, then it is fair to call California's capital punishment system is "dysfunctional."  But, if the total number of executed persons is the critical metric here, then nearly every state's capital punishment system except Texas and Oklahoma and Virginia (and Ohio lately) should be deemed "dysfunctional."  Also, the federal death penalty would also be very dysfunctional if judged merely by an execution metric.

In contrast, if one useful goal and value of having the death penalty on the books is to have lots of murderers sentenced to death, then California's capital punishment system is significantly more functional that those of lots of other states.  Indeed, as this recent story out of California highlights, there may be many cases in which a prosecutor and the victim's family care more about getting a death sentence imposed than about having an execution take place.

Further, as I explained in this post, the California's capital punishment system may have been the key (functional) factor that helped bring the Chelsea King murder case to a relatively satisfying conclusion in relatively short order.  As I have stressed recently in this post, a critical function of a capital punishment system is to help process via pleas some really awful murder cases.  It seems that this function is still working in California.

I raise all these points largely because I suspect that relatively few Americans would take pride in a capital punishment system that regularly resulted in lots of murderers executed.  Just to catch up with the current death row "backlog," there would need to be ten executions each and every week until 2016.  I suspect that such a strong and steady pace of US executions, especially if the firing squad becomes fashionable, would not be welcomed even by most person who support the death penalty (though maybe I underestimate the affinity for executions among ardent supporters of capital punishment).

Some related posts:

April 26, 2010 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7) | TrackBack

New litigation laboratory for criminal justice federalism with Arizona immigration law

The big news lately in the debate over immigration from from Arizona thanks to its recent passage of a controversial immigration-enforcement bill.  Based on what I have seen and read, the new law almost reads like a law professor's exam question, and this Arizona Republic article ably reviews some of the major legal issues that are sure to be hotly litigated in the weeks and months ahead.  The article is headlined "Court fight looms on new immigration law; Legislation vulnerable to challenge, says expert; supporters argue it's legally sound," and this particular passage caught my attention:

Kris Kobach, a law professor at the University of Missouri-Kansas City School of Law who counseled [Arizona State Senator Russell] Pearce when he was writing Senate Bill 1070, said Arizona simply is taking action on what Congress already has deemed illegal, so the state is not infringing on federal authority or running afoul of the supremacy clause.

"The bill basically makes it a penalty under state law to do what is already a crime under federal law," he said.  "If the state is concurrently prohibiting the same behavior that the federal government is, then the state is not preempted and is acting consistently with Congress' objectives."

Because I am not an expert on either immigration law or federalism jurisprudence, I cannot readily assess whether Professor Kobach's argument here is compelling.  But I can readily assert that the litigation which will unfold in Arizona over this new state criminal law is must-watch-closely material for everyone interested in modern criminal justice debates. 

In various traditional criminal justice settings  e.g., in the always on-going fight against illegal gun, drug and sex trafficking  "cooperative federalism" is often praised and championed as the best way for different sets of police and prosecutors to take on challenging crime problems.  Professor Kobach's claim here is essentially that Arizona is merely trying to be a cooperative criminal justice partner with the feds in enforcing illegal immigration laws.  But, as all the media buzz highlights, lots of different folks seem deeply concerned with Arizona's chosen approach to "cooperative federalism" in this context.

April 26, 2010 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

SCOTUS to examine California law banning sale of violent video game to minors

As detailed in this new SCOTUSblog post, the Supreme Court this morning announced that it will review the constitutionality of another law that seek to prohibit access to certain forms of violent "speech."  Here are the details thanks to Lyle Denniston's reporting:

The Supreme Court agreed Monday to rule on the constitutionality of a state law banning the sale or rental of violent video games to minors.  The Court accepted for review an appeal by the state of California, urging the Court to adopt a new constitutional standard that would enable states to ban such games for those under age 18. The case is Schwarzenegger v. Video Software Dealers Association (08-1448).

The Court apparently had been holding the case until it decided another First Amendment case involving violence — U.S. v. Stevens (08-769). In that ruling, the Court struck down a federal law that banned the depiction of animal cruelty in videotapes.  In that ruling, the Justices refused to create a new exception to the First Amendment free speech right.  The Court could have opted to send the California case back to the Ninth Circuit Court to weigh the impact of the Stevens decision.  Instead, it simply granted review; the case will be heard and decided in the Court’s next Term, starting Oct. 4.

As with the Stevens case, this new case does not have SCOTUS directly examining sentencing-related issues.  But, as with the Stevens case, there are an array of potential criminal justice implications that could result from the Court's ultimate resolution of this new case.

UPDATE:  I just learned from this new AP article, which is headlined "Court to hear appeal in guard's sexual assault," that the Justices' cert grant in Ortiz v. Jordan (09-737),  a case focused on civil appellate procedure, has an especially notable criminal justice backstory:

The Supreme Court has agreed to consider reinstating a $625,000 judgment against Ohio prison officials who did nothing to prevent a guard's sexual assault of an inmate and then punished the victim.

The justices said Monday they will review a federal appeals court that threw out the award to Michelle Ortiz. The lower court had said the prison officials did not violate her constitutional rights. Another federal judge called the appellate decision a "legal travesty."

Ortiz was serving 12 months at the Ohio Reformatory for Women in November 2002 when she reported that a male guard fondled her breasts and warned, "I'll get you tomorrow, watch." He did, returning when Ortiz was asleep to molest her again. When Ortiz discussed the attacks with other inmates, she was shackled and sent to solitary confinement.

She filed a federal civil rights lawsuit against the officials and won a jury verdict. But the appeals court in Cincinnati found by a 2-1 vote that one official, Paula Jordan, could not be held liable even though she did not take immediate action when Ortiz reported the first incident. The court said the other official, Rebecca Bright, did not violate Ortiz's rights by sending her to solitary confinement.

Bright and Jordan tried to get the case against them dismissed before the trial. A judge refused to do so and they did not appeal then. The legal issue in the case is whether they could wait until after the trial to appeal the judge's ruling.

April 26, 2010 in Who Sentences? | Permalink | Comments (0) | TrackBack

"Trial Penalties in Federal Sentencing: Extra-Guidelines Factors and District Variation"

The title of this post is the title of this new must-read empirical work available via SSRN and in print in Justice Quarterly. Here is the abstract:

The guarantee of the right to a jury trial lies at the heart of the principles that underlie the American criminal justice system’s commitment to due process of law. We investigate the differential sentencing of those who plead guilty and those convicted by trial in U.S. District Courts.  We first investigate how much of any federal plea/trial sentencing differences are accounted for by substantial assistance to law enforcement, acceptance of responsibility, obstruction of justice, and other Guideline departures.  Second, we investigate how such differences vary according to offense and defendant characteristics, as well as court caseloads and trial rates. We use federal sentencing data for fiscal years 2000-2002, along with aggregate data on federal district court caseload features.

We find that meaningful trial penalties exist after accounting for Guidelines-based rationales for differentially sentencing those convicted by guilty plea versus trial.  Higher district court caseload pressure is associated with greater trial penalties, while higher district trial rates are associated with lesser trial penalties.  In addition, trial penalties are lower for those with more substantial criminal histories, and black men.  Trial penalties proportionately increase, however, as Guideline minimum sentencing recommendations increase. We also supplement our analysis with interview and survey data from federal district court participants, which provide insights into the plea reward/trial penalty process, and also suggest important dimensions of federal court trial penalties that we cannot measure.

April 26, 2010 in Detailed sentencing data, Procedure and Proof at Sentencing | Permalink | Comments (17) | TrackBack

Should sentencing fans be rooting for a non-judge replacement for Justice Stevens?

The question in the title of this post is prompted by this effective new piece in The National Law Journalby Tony Mauro, which is headlined "Pressure Grows to Pick a Nonjudge for the High Court: All nine justices on the current U.S. Supreme Court hail from the federal appellate bench."  Here is how the piece starts:

So where, exactly, is the "judicial monastery" that Washington keeps talking about these days? And why do so many people want President Barack Obama to steer clear of it when picking a replacement for U.S. Supreme Court Justice John Paul Stevens?

More than any other time in recent memory, the drumbeat of politicians and pundits alike against naming another federal appeals court judge to the Supreme Court is running high.

With nine former federal appellate judges on the current Court, some are saying: Enough already. Even if Obama ultimately puts a federal judge on the Court — as all his predecessors have done since Ronald Reagan named state judge and former legislator Sandra Day O'Connor in 1981 — the push for more background diversity on the Supreme Court is likely to intensify in advance of the next vacancy.

Invoking the likes of O'Connor, Earl Warren and William Rehnquist — all noted justices who joined the Court with no federal judicial experience — politicians, academics and others say the current Court needs to be leavened with justices who bring different experiences to the bench.

Because I am a fan of all flavors of background diversity, I think I am rooting for President Obama to appoint a non-judge to replace Justice Stevens. But I think it is reasonable to worry that a non-judge (especially one without any prior criminal justice experience) might not be able to effectively engage with other Justices on important sentencing issues.

April 26, 2010 in Who Sentences? | Permalink | Comments (9) | TrackBack

April 25, 2010

Tough in juves, but very soft on repeat drunk drivers in Florida

If one only follows the docket of the Supreme Court, where the Justices are now considering the constitutionality of two Florida life without parole sentences for teenagers who did not kill, one might think that Florida is the toughest sentencing state in the nation.  But as documented by this local article, which is headlined Lee "County drunken drivers get plenty of shots: Repeat offenders are undeterred," even recidivist drunk drivers get mere slaps on the wrist in Florida.  Here are some of the details:

The penalties for being convicted of driving under the influence has not stopped almost 10,000 Lee County motorists from committing the crime twice or more. Some were so undeterred, they drove drunk again the same year they were convicted of an earlier DUI charge.

In 2009, 24 drunken or high drivers were convicted, then arrested for another DUI — some within a week of each other. Two others picked up their 10th DUI charge last year.

The number of repeat drunken drivers worries local judges and prosecutors, but sentences focus on rehabilitation and prevention instead of lengthy jail time. That likely won’t change soon. Any proposal that would send more people to jail or prison would probably be rejected in the Legislature because of budgetary concerns, one state senator said.

“Any bill that has a fiscal impact — more prison beds — is dead on arrival,” said Sen. Dave Aronberg, D-Greenacres. “If you tighten the penalties, it won’t go through.”...

Some believe rehabilitation and treatment are key to addressing substance abuse. Incarceration is guaranteed to keep drunken drivers off the streets and the Lee County Jail offers substance abuse programs, but being locked up may not address inmates’ alcohol dependency.

A study of 353 DUI court defendants by The Century Council, a nonprofit anti-drunken driving organization, revealed 80 percent said they believe more severe sanctions for their first drunken-driving conviction would have prevented subsequent arrests and convictions.

Lee County judges John Duryea Jr. and James Adams said they recognize letting off a defendant with a light sentence could lead to them being back on the road, possibly endangering others.

In Lee County last year, alcohol was involved in 611 crashes and 21 traffic fatalities, according to preliminary statistics from the Florida Highway Patrol. From 2004 to 2008, an average of more than 22,000 alcohol-related crashes were reported statewide, while about 1,100 people die in alcohol-related accidents each year in Florida.

Florida legislators have changed the law year after year, Duryea said, by doubling and tripling fines, making probation mandatory and lowering the requirement of the ignition interlock device — a device that requires a sober person to blow in order to start a vehicle — from a blood-alcohol level of .20 to .15 on first offense.  The device is required for those convicted of two or more DUIs.

“They’ve probably significantly changed that statute every year since I’ve been a judge,” Duryea said. “I think the trend is to get harder penalties, absolutely.”

Of the 24 convictions of three-time offenders in 2009, 19 were charged with felonies. Eighteen of the 24 were convicted as charged, instead of a lesser charge, and the average stay behind bars was a little more than four months. Two who were charged with misdemeanors weren’t sentenced to any incarceration.

I am pleased to learn that Florida is getting tougher on drunk drivers and that ignition interlock devices are to be used more.  But the contrast here to Florida's tough treatment of juvenile offenders still sticks in my mind.  I am certain that teenagers do not kill 1,100 people each year in Florida, and I would bet they do not even kill more than 100 people each year.  And yet Florida is eager to defend its authority to lock up certain kids and throw away the key at the same time that they keep giving the keys back to drunk drivers who pose a much larger threat to innocent life.

April 25, 2010 in Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (12) | TrackBack