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May 8, 2010

Notable (and justified?) attack by old Maryland governor on current governor concerning death penalty

I found very interesting this new piece discussing Maryland death penalty issues in today's Washington Post.  The piece is headlined "Ehrlich takes issue with O'Malley's delays on death penalty," and here are excerpts:

Maryland Gov. Martin O'Malley (D) has repeatedly fallen short in his attempts to persuade lawmakers to abolish capital punishment. But as he nears the end of his term, O'Malley is close to achieving through delay and inertia what he could not change in the law.

Three-and-a-half years after the state's highest court halted use of the death penalty on a technicality, O'Malley has yet to implement regulations required for executions to resume. Although O'Malley says his administration is working diligently in that direction, advocates on both sides of the issue say they strongly doubt that any of Maryland's five condemned prisoners will be put to death before the governor stands for reelection this fall.

With jobs and the economy dominating the political debate, there is little evidence that O'Malley's posture on the death penalty has hurt him politically to this point. But his leading opponent, former governor Robert L. Ehrlich Jr. (R), said that he plans to make it an issue, accusing O'Malley and other death penalty opponents of "shenanigans" to avoid carrying out the law.

"This is the kind of thing that makes people cynical about the criminal justice system," said Ehrlich, who presided over the state's last execution, in 2005. "Governor O'Malley took an oath to uphold the law. He's certainly violating the spirit of it."...

O'Malley bristled at Ehrlich's characterization, attributing part of the delay to a legislative review committee that six months ago raised numerous questions about regulations drafted by the administration, including its choice of a three-drug cocktail for lethal injections. Administration officials said a formal response was mailed to the committee Friday morning. "We are following the process for putting the new regulations in place," O'Malley said. "Everything about the death penalty is cumbersome and can be slow."

Ehrlich's emphasis could help shore up support among conservative Democrats, a key constituency that he courted far more successfully in his 2002 victory than his 2006 defeat. Although O'Malley's stance puts him at odds with many of those voters, his advisers say that some will appreciate the governor's conviction on the issue, even if they disagree with him.

O'Malley, who rose to political prominence as a tough-on-crime mayor of Baltimore, said he has a strong record on public safety as governor, including a sharp decrease in violent crime statewide. On Tuesday, he signed bills toughening restrictions on sex offenders and giving law enforcement new tools to monitor gangs. "He may define public safety success by how many people are executed," O'Malley said of Ehrlich. "I define it by how many lives we save."

In December 2006, during Ehrlich's last full month in office, Maryland's highest court ruled that the state's death penalty procedures had not been properly adopted, halting executions until new regulations were issued by the administration.

O'Malley focused instead on lobbying the legislature to repeal the death penalty. In high-profile testimony shortly after he took office in 2007, the governor, a Catholic, argued that capital punishment is "inherently unjust," does not serve as a deterrent to murder and consumes resources that could be better used preventing crime. It was not until July of last year, after the legislature balked at repealing the death penalty for the third year in a row, that O'Malley's administration proposed regulations that would allow executions to resume.

In September, the co-chairmen of the legislative review committee, both of whom oppose capital punishment, asked that the regulations be put on hold to allow more study. O'Malley's administration agreed. In October, the committee submitted a four-page letter, asking detailed questions about aspects of the proposal.

Sen. Paul G. Pinsky (D-Prince George's), a co-chairman of the legislative panel, said that neither he nor his co-chairman is trying to speed up the process and that he would not mind waiting to act until after the elections.  "On a visceral level, we haven't heard much out there," Pinsky said. "People aren't saying, 'You've got to get on this.' ... If it takes another six months, so be it.  I'm not in a hurry to allow the needle to be inserted."

I find it sad, but not very surprising, how often commitments to responsible good government will take a back-seat to strong personal (and political?) feelings in the arena of the death penalty.   Though perhaps Maryland law ensures that "[e]verything about the death penalty is cumbersome and can be slow," Ohio was able to create and deploy an improved lethal injection protocol in less than three months.  That Maryland has taken more than three years to move forward on this front certainly leads me to be cynical about certain government officials putting a commitment to responsible governing behind other interests in this setting.

May 8, 2010 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (15) | TrackBack

The latest legal plot twists in the Polanski prosecution

This New York Times piece, which is headlined "Polanski Transcript Plea Opposed by Prosecutors" provides the latest update on the real-life legal drama that Roman Polanski is helping to create through his various efforts to undermine his prosecution three decades ago.  Here are the details:

The legal battle over Roman Polanski’s possible sentencing in the United States on a 33-year-old sex charge continues, as prosecutors on Thursday registered opposition to Mr. Polanski’s request that recent secret testimony in the case be unsealed.  Mr. Polanski, who fled the United States before sentencing in 1978, and his lawyers have asked the Los Angeles County Superior Court to provide them with transcripts of testimony by Roger Gunson, the original prosecutor in the case.

 In court filings, Mr. Polanski’s lawyers have said Mr. Gunson described a plan under which Judge Laurence J. Rittenband intended to use Mr. Polanski’s time in prison for psychiatric evaluation as his punishment in the case. In their brief on Thursday, District Attorney Steve Cooley of Los Angeles County and his deputy David Walgren asserted that the testimony should remain sealed and noted that the authorities in Switzerland, where Mr. Polanski is being held pending possible extradition, had not requested transcripts of the sealed testimony.  A hearing on the request is set for Monday.

May 8, 2010 in Celebrity sentencings, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

May 7, 2010

"Elena Kagan Will Be Obama's Supreme Court Pick: Mike Allen"

The title of this post is the headline of this new Huffington Post piece, which reports on an insider account that indicates that this news will be "officially" leaked on Sunday in anticipation of a Monday formal announcement.  Solicitor General Kagan has been the "leader in the clubhouse" since Justice Stevens announced his retirement, so this pick would not be at all surprising.  It still would be historic, as it would mean (assuming confirmation) that the US Supreme Court will have three female Justices for the first time in its history.

For criminal justice fans, the prospect of a Justice Kagan is especially interesting because she has, to my knowledge, no tangible record whatsoever on any of the criminal justice issues that regularly come to the Supreme Court (and fills up much of the cert pool).  Especially given that the last two new Justices were both former prosecutors, it will be especially interesting to what now adding a criminal justice "novice" to the Court could mean for its jurisprudence.

May 7, 2010 in Who Sentences? | Permalink | Comments (24) | TrackBack

Have the new (proposed) amended federal guidelines had any ripple effect yet?

During the terrific sentencing panel yesterday at the Sixth Circuit judicial conference festivities (basics here), I suggested that the new federal guideline amendments released last Friday by the US Sentencing Commission (basics here) could be like a pebble in a pond with important and highly consequential ripple effects on federal sentencing law and policy.  I stressed my view that the size and significance of this ripple effect would depend greatly on just how practitioners and district judges interpret and give effect to the changes (and especially the vague and open-ended language in changes to the offender circumstances policy statements).

Of course, as discussed in this prior post, Formally, the proposed amended guidelines do not become legally effective until November 1, 2010, and thus I probably should not be looking for any big ripples from the new guidelines until this fall.  But, as explained before, because  the Commission has now formally and functionally indicated its view the provisions of 3553(a) are better served by sentencing in accord with its amended guidelines, a district court could right now probably feel free, and maybe even should feel an obligation, to sentence in accord with this new proposed guidelines ASAP.  Thus, I am using this post to ask for early reports from those in the field about whether any practitioners and/or district judges are seeing or feeling the new (proposed) amended federal guidelines having any ripple effect yet

May 7, 2010 in Federal Sentencing Guidelines, Offender Characteristics, Who Sentences? | Permalink | Comments (3) | TrackBack

"Men’s Central Jail is a modern-day medieval dungeon"

LA jail The title of this post is part of the quote that accompanies this picture from the Los Angeles County jail depicted here and in a series of photos available here from the ACLU of Southern California.  Here is the full quote/caption:

“Men’s Central Jail is a modern-day medieval dungeon, a dank, windowless place where prisoners live in fear of retaliation and abuse apparently goes unchecked. The jail is not an appropriate facility for housing prisoners with mental illness, many of whom do not receive proper treatment for their mental illness,” said Peter Eliasberg, ACLU/SC managing attorney. “At the root of the many problems plaguing this toxic facility is overcrowding and the only solutions are to either reduce the jail population dramatically or close it.”

The photo-spread accompanies a new report released by the ACLU of California concerning the jail conditions.  This press release, which is headlined "Overcrowded Men’s Central Jail Plagued by Violence and Hazardous Living Conditions, New ACLU Report Finds," provides this overview of the report:

A report released today by the American Civil Liberties Union shows that overcrowding and unsanitary conditions that have plagued the jail for more than 30 years still persist, along with an apparent culture of violence and fear, including prisoner-on-prisoner assaults and the use of excessive force by deputies. The picture of the jail that emerges in stark and disturbing detail in the report suggests that mentally disabled prisoners suffer some of the worst treatment, and that retaliation and a lack of transparency in conducting investigations into prisoner complaints make it difficult to assess the true extent of violence that occurs there....

With approximately 20,000 detainees, the Los Angeles County jail system is the largest and most expensive in the nation, costing nearly $1 billion a year to operate. Men’s Central Jail is nearly 50 years old and currently houses an average of 5,000 detainees. More than half are simply awaiting trial – in other words, they are presumed innocent and have yet to get their day in court.

The ACLU/SC and the ACLU National Prison Project are the court-appointed monitors of conditions within the jail.

The new report, based on the observations of ACLU jail monitors, numerous interviews with prisoners, and thousands of prisoner complaints gathered between 2008 and 2009, focuses on conditions inside Men’s Central Jail, the largest jail in the county’s system.

The full ACLU/SC report can be found at this link.

May 7, 2010 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Notable variations in state approaches to juve sex offenders

This new AP story, which is headlined "States vary on dealing with youth sex offenders," provides an effective review of the diversity in how different states deal with juvenile sex offenders. Here are excerpts:

When Ricky Blackman was 16, he pleaded guilty to having sex with a 13-year-old girl, and an Iowa judge ordered him to register as a sex offender. But if Blackman had lived in at least a half-dozen other states, his name would never have appeared on a registry because states are deeply divided on how to deal with the nation's youngest sex offenders.

Juvenile justice advocates want rehabilitation instead of registration, yet public safety experts argue children must be protected from predators, even if they are minors. The confusing array of rules for juvenile sex offenders persists despite a vast overhaul that was adopted four years ago to bring clarity and consistency to the nation's sex offender registration laws.

"It's a real bind for the states," said Michele Deitch, an attorney who teaches criminal justice policy at the University of Texas. "Do you want to comply with what could be poor public policy or risk not complying with the federal law? And there's no easy answer."

Twenty-one states currently require juveniles convicted of a serious sex crime to register with law enforcement, according to an Associated Press review of state laws and interviews with state officials.

In 19 other states, only juveniles convicted as adults or who move from a state that requires registration are required to provide their information to authorities. In the remaining states, the laws vary. In Nevada, for instance, a juvenile sex offender can petition a judge to set aside registration requirements.

In 2006, President George W. Bush signed a law requiring states to adopt a series of sex offender measures, including the registration of all juveniles who commit serious sex crimes such as abuse or rape. The law was designed to create a national sex offender registry and toughen penalties for those who fail to register.

Ohio is so far the only state to meet the new federal standards, but states have until July to comply so they can build up their online registries and ensure the information can be incorporated into the national database.

Of the 21 states that require juvenile sex offenders to register, at least four states do not publish all of their details online, such as photographs and home addresses.

Critics said young offenders will be more likely to reoffend because of the humiliation of being labeled a sex offender. "These kids can get better and here you are punishing them for life without offering any treatment. That to me is unethical," said Dr. Valerie Arnold, the interim chief of child and adolescent psychiatry at the University of Tennessee. "Even convicted murderers aren't put on a list like this."

It's unclear how many of the nation's estimated 686,000 sex offenders are juveniles. But a recent study by the University of New Hampshire Crimes against Children Research Center that found more than a third of those who sexually abuse children are juveniles. "It's a difficult balance," said Ernie Allen of the National Center for Missing and Exploited Children. "We're in favor of the rehabilitative ideal and targeting treatment for the youngest offenders, but many of America's offenders are kids — and they are committing very serious sex offenses."...

Those who want juvenile sex offenders on registries acknowledge the requirements are not ideal, but they say the benefits to public safety far outweigh the impact on a juvenile sex offender's psyche.

Supporters often refer to the case of Amie Zyla, who was sexually assaulted when she was 8 years old in Wisconsin by a 14-year-old family friend. She became a leading advocate of juvenile registration requirements when her perpetrator was sentenced to 25 years in prison after pleading guilty to later fondling two teen boys. "The simple truth is that juvenile sex offenders turn into adult predators," she said at a 2005 Congressional hearing. "Kids all over the country need the same kind of protection as in Wisconsin."

Yet there is a wide disparity in how states treat juvenile offenders. In Texas, where judges decide whether to put juveniles on the registry, lawmakers led a push several years ago to make it automatic. But the measure's sponsor, Texas state Rep. Jim McReynolds, said he abandoned the effort after concluding the new requirements would be too costly and may end up harming the juvenile offenders. "The more I began to look at it, the more I saw it was pretty doggone tough on juveniles," said McReynolds, who chairs the House Corrections Committee. He now favors more treatment.

In Maryland, powerful lawmakers are aiming to require those 14 and older who commit rape and other serious sex crimes to register. "Juveniles are treated as adults in other areas of the law," said Delegate Bill Frank of Baltimore County, one of the measure's sponsors. "And if a juvenile commits a first-degree rape, that juvenile should be required to register as a sexual offender."

The challenging question upon reflection is whether we ought to regard the state-by-state differences here as a healthy form of "laboratory of the states" federalism or instead as an unjust form of national sentencing disparity.  Any thoughts dear readers on whether we should be pleased or troubled by the state diversity found regarding juve sex offender law and policy?

May 7, 2010 in Offender Characteristics, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (8) | TrackBack

May 6, 2010

NFL Hall of Famer Lawrence Taylor charged with rape of teenager in New York

This new AP story, which is headlined "Ex-NFL star Lawrence Taylor charged with NY rape," provides the latest sad and disturbing story at the intersection of sports stars and crime.  Here are the basics:

Pro Football Hall of Famer Lawrence Taylor was charged Thursday with raping a 16-year-old runaway in an encounter that police said was arranged by a man who beat her up before driving her to Taylor's suburban hotel room while she texted her uncle for help.

Taylor, the 51-year-old former New York Giant who has faced drug and tax evasion charges in the past, paid the girl $300 for sex in a Holiday Inn, where he was arrested early Thursday, said Christopher St. Lawrence, supervisor of the town of Ramapo.

Ramapo Chief of Police Peter Brower said Taylor was cooperative when police woke him up around 4 a.m. Taylor was arraigned Thursday on charges of third-degree rape and patronizing a prostitute. "I'm not that important," Taylor told a scrum of media after being released on $75,000 bail.

His attorney, Arthur Aidala, said Taylor is a "loving family man" who did not have sex with the teenager. "My client did not have sex with anybody," Aidala said. "Lawrence Taylor did not rape anybody."

Brower would not comment on whether Taylor knew the girl's age; third-degree rape is a charge levied when the victim is under the age of consent, which is 17 in New York. "Ignorance is not an excuse to an individual's age," Brower said....

Police said the girl was reported missing by her family in March and had been staying with a 36-year-old parolee, Rasheed Davis, in the Bronx. The two met a few weeks ago at a Bronx bus stop, NYPD spokesman Paul Browne said. "He chats her up. She explains she doesn't have a place to stay. He provides one," Browne said.

Davis, who was arrested on charges of unlawful imprisonment, assault and endangering the welfare of a child, then forced her to perform sexual favors for others, authorities said.

Early Thursday morning, Davis punched and kicked her, drove her to the hotel against her will and told her she had to have sex with Taylor, police said.  When she refused, Davis handed her over to Taylor, who sexually assaulted her, they said.  Taylor paid her $300, which she gave to Davis, police said.

On the way to Suffern, the girl sent text messages to her uncle spelling out what was happening, Browne said. The uncle then went to the NYPD, he said.

I find almost as disturbing as the facts of this case the New York state sentencing realities apparently surrounding the charges that LT is facing.  According to this New York Times article, for "the prostitution charge, a misdemeanor, he faces a year maximum in jail. The maximum sentence for third-degree rape, a felony, is four years."  

In other words, LT appears to be facing a maximum state sentence of no more than 5 years for raping a teenage prostitute.  (Meanwhile, under current federal sentencing statutes, a loner who simply downloaded via computer some images of this sex offense would be facing a mandatory minimum sentence of no less than 5 years simply for receiving these images.)  Perhaps there can and will be more charges forthcoming as the investigation unfolds.  But I find troublesome the notion that the allegations of rape here, if proven true, do not allow for a more significant sentence.

May 6, 2010 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (25) | TrackBack

"People who commit crimes do so because of disorderly souls"

The title of this post is one line from this lengthy commentary by Eric Simpson, an associate editor of In Communion: The Journal of the Orthodox Peace Fellowship, that appears at The Huffington Post.  The piece's is titled "I Changed My Mind on the Death Penalty," and the author explains why, when he became an "Orthodox Christian, [his] views began to change rather swiftly over a period of years [as he] began to meditate on the meaning of divine Love, ... [and] as a response to [his] understanding of who God is, what Christ accomplished, and what the Traditions of the Church teach." Here is how the piece concludes:

It may seem radical to say, therefore, that the murderer is to be pitied rather than hated because he has made his soul a hellish place, whether it is felt by him on an immediate level or not.  The cocksure smirks of the denizens of hell would be plastered across the psychopath's face whether we put him to death or not.  It is a demonic sign, and where there are demons -- even if the demons are merely psychological afflictions -- there is torment. I see criminal smirks and empty bravado, even totally lack of affectation or regret, as signs of torment, and they do not bother me.  For me to react in a similar fashion -- with violence and hatred -- by putting him to death does nothing more than carry me closer to his level of hell, whether it is sanctioned by the state or not.  It does not satisfy my own sense of grief and loss.

Where the murderer lacks decency and compassion, we should show him what true decency and compassion is, otherwise we become just like him.  Where the murderer has no value for life, responsible state policy should rather affirm life, rather than confirm the murderer's impulse to end it. Otherwise, we are doing nothing more than making a mockery of the principle of justice as exemplified by Christ himself.

In addition to making for an interesting read, this piece reinforces my own sense that many persons' with strong perspectives on the death penalty often have their views grounded in faith rather than in reason or science.

Some older posts on religion and the death penalty:

May 6, 2010 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Religion | Permalink | Comments (11) | TrackBack

Fascinating political corruption federal sentencing to follow in New York

I will be again off-line most of today with Sixth Circuit judicial conference festivities (basics here), but when I get back on-line I will be eager to report on what happens today in a high-profile political corruption sentencing scheduled for today in New York.  This New York Times piece, which is headlined "Day of Sentencing Looms for Former New York Senate Leader," provides the background:

On Thursday, five months after his conviction on federal corruption charges, Mr. Bruno, 81, who as a former Senate majority leader was once one of the most powerful officials in Albany, will learn his sentence.

His lawyers, citing his years of public service, his good standing in the community and his age, have requested that he be fined but not imprisoned. Prosecutors, arguing that Mr. Bruno exploited his power to enrich himself and abused the public trust, have asked that he be imprisoned for more than eight years.

As the day of his sentencing arrives, Mr. Bruno, who was a generous benefactor to his upstate New York district, has come to terms with his fate, according to those who have spoken with him. “He’s philosophical,” said Stephen R. Coffey, an Albany lawyer who helped raise money for Mr. Bruno’s legal defense fund. “He accepts the fact that he may go to prison.”...

He holds out hope, they say, that the United States Supreme Court, which is reviewing three cases challenging the federal statute under which he was convicted, for depriving constituents of “honest services” by concealing conflicts of interest, will find that it is not valid. “He’s extremely hopeful — no one’s ever confident — about what the Supreme Court will do,” said Mr. Coffey....

Mr. Bruno, who was a Republican senator for 30 years, including 14 as the majority leader, remains revered by many. Letters urging leniency keep arriving at Judge Gary L. Sharpe’s chambers from friends, relatives and former colleagues....

Ultimately, Judge Sharpe has wide discretion in choosing Mr. Bruno’s sentence. Should Mr. Bruno be sent to prison, he would be one of the oldest inmates in the federal system. Out of a total population of 210,159, only 47 are Mr. Bruno’s age or older. Where he would serve a sentence would depend on complex screening conducted by the federal Bureau of Prisons, though authorities generally try to house inmates within 500 miles of their homes.

UPDATE:  According to this AP report, "Joseph Bruno, once one of the most powerful political figures in New York, was sentenced Thursday to two years in prison on two federal fraud counts."

May 6, 2010 in Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (1) | TrackBack

Notable new report complaining about the erosion of criminal intent in federal law

Withoutintentcover As detailed in this NACDL press release, yesterday the Heritage Foundation and NACDL released a big report and recommendations on Capitol Hill concerning federal criminal law. Here are the basics:

In a joint press conference this morning on Capitol Hill commemorating Law Day 2010, Rep. Bobby Scott (D-VA) and Rep. Louie Gohmert (R-TX), the Chairman and Ranking Member of the House Crime Subcommittee, respectively, sponsored the release of the groundbreaking, non-partisan report prepared by the National Association of Criminal Defense Lawyers and the Heritage Foundation, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law. In addition, NACDL Executive Director Norman Reimer and Former Attorney General Edwin Meese also spoke.

In recent decades, Congress has enacted scores of fundamentally flawed criminal statutes that lack adequate criminal intent protection for innocent actors. NACDL and Heritage undertook an unprecedented study of the federal legislative process which yielded this report. Among its findings, the study determined that during the 109th Congress, of the 446 non-violent, non-drug-related criminal offenses proposed, 57 percent lacked an adequate guilty-mind requirement. The report also reveals that 23 of those inadequately protective offenses were even enacted into law.

The full "Without Intent" report can be accessed at this link, and a helpful one-page fact sheet is available here. In addition, the reports four-page executive summary is availble at this link.

In addition to urging all federal criminal practitioners to read this new report, I hope that all criminal law professors will have this report in mind as they prepare to teach basic criminal law to new law students this coming Fall.  I have long lamented that traditional criminal law instruction still puts extraordinary emphasis on mens rea concepts even though modern criminal law often fails to give much attention to these matters.  Though mens rea will always be a fundamental aspect of criminal law theory, this report reinforces my concern that we disserve law students if and when we give them the impression that mens rea is the most fundamental aspect of actual modern criminal law practice.

May 6, 2010 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

May 5, 2010

Second Circuit finds procedural problems with re-sentencing after 15-year delay

They say bad facts make bad law, but today's ruling from the Second Circuit in US v. Hernandez, No. (2d Cir. May 5, 2010) (available here), strikes me as an example of ugly facts resulting in a very sound sentencing ruling. Here is how the panel opinion starts in Hernandez:

Defendant-appellant Hector Hernandez appeals from a judgment entered in the United States District Court for the Eastern District of New York (Platt, J.) in 2009, which re-mposed a 405-month sentence of incarceration after remand from this Court back in 1993. The record indicates that the district court evidently started with an assumption -- invalid after so long an interval--that the baseline for the re-sentencing was the sentence imposed in 1991, and thereby failed to properly consider the factors set out in 18 U.S.C. § 3553(a) -- particularly Hernandez’s submission of evidence of rehabilitation--at the time of re-sentencing. Accordingly, we vacate and remand for re-sentencing before a different district court judge.

May 5, 2010 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Fourth Circuit uses Booker to support rejection of effort to extend Shepard

The Fourth Circuit has an interesting discussion of Booker and its progeny today in US v. Dean, No. 08-4439 (4th Cir. May 5, 2010) (available here), in the course of rejecting a defendant's complaint about judicial fact-finding in the course of applying a career offender enhancement.  Here is how the opinion begins:

Antonio Bernard Dean challenges the imposition of a "career offender" sentence enhancement under the U.S. Sentencing Guidelines following his conviction on a drug possession charge. Dean was eligible for that enhancement only if the two predicate offenses upon which it was based were "separated by an intervening arrest."  See U.S. Sentencing Guidelines Manual § 4A1.2(a)(2) (2007). Dean argues that in determining that an intervening arrest had occurred, the district court erred by relying on materials prohibited by the Supreme Court’s decision in Shepard v. United States, 544 U.S. 13 (2005).

In United States v. Booker, 543 U.S. 220 (2005), and its progeny, the Supreme Court intended two things.  First, it sought to eliminate conflict between the Sixth Amendment jury trial right and the Sentencing Guidelines scheme, a task it accomplished by rendering the once-mandatory Guidelines advisory.  Second, it endeavored to accord a greater, though not a complete, measure of latitude to district courts at sentencing, both in their ability to find facts and to determine the most appropriate sentence.  Dean’s contention runs afoul of both these principles and would require us to backtrack significantly on the teachings of Booker and its progeny.

May 5, 2010 in Almendarez-Torres and the prior conviction exception, Booker in the Circuits, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Sixth Circuit Judicial Conference keeping me mostly off-line...

but giving me the chance to listen in a big ballroom to a star-studded line-up that includes Justice Stevens, AG Holder, SG Kagan, former SG Clement, and frequent SCOTUS litigators Dean Erwin Chemerinsky and Professor Jeff Fisher.

Paul Clement's early comments focused on Justice Scalia as an important swing vote in many criminal cases. He also astutely suggested that Prez Obama was not likely applying an Apprendi or Crawford litmus test when considering potential replacements for Justice Stevens.

UPDATE:  Here is some media coverage of today's Sixth Circuit Conference activities:

May 5, 2010 in Who Sentences? | Permalink | Comments (8) | TrackBack

May 4, 2010

Norway's new prison sound far more pleasant than punishing

As detailed in this new Time magazine piece, which is headlined "Norway Builds the World's Most Humane Prison," the folks in the Land of the Midnight Sun have a different vision of incarceration than do folks in the Land of the Free.  Here are the details:

Ten years and 1.5 billion Norwegian kroner ($252 million) in the making, Halden is spread over 75 acres (30 hectares) of gently sloping forest in southeastern Norway.  The facility boasts amenities like a sound studio, jogging trails and a freestanding two-bedroom house where inmates can host their families during overnight visits.  Unlike many American prisons, the air isn't tinged with the smell of sweat and urine. Instead, the scent of orange sorbet emanates from the "kitchen laboratory" where inmates take cooking courses.  "In the Norwegian prison system, there's a focus on human rights and respect," says Are Hoidal, the prison's governor. "We don't see any of this as unusual."

Halden, Norway's second largest prison, with a capacity of 252 inmates, opened on April 8.  It embodies the guiding principles of the country's penal system: that repressive prisons do not work and that treating prisoners humanely boosts their chances of reintegrating into society. "When they arrive, many of them are in bad shape," Hoidal says, noting that Halden houses drug dealers, murderers and rapists, among others.  "We want to build them up, give them confidence through education and work and have them leave as better people."  

Countries track recidivism rates differently, but even an imperfect comparison suggests the Norwegian model works. Within two years of their release, 20% of Norway's prisoners end up back in jail. In the U.K. and the U.S., the figure hovers between 50% and 60%. Of course, a low level of criminality gives Norway a massive advantage.  Its prison roll lists a mere 3,300, or 69 per 100,000 people, compared with 2.3 million in the U.S., or 753 per 100,000 — the highest rate in the world.

Design plays a key role in Halden's rehabilitation efforts.  "The most important thing is that the prison looks as much like the outside world as possible," says Hans Henrik Hoilund, one of the prison's architects.  To avoid an institutional feel, exteriors are not concrete but made of bricks, galvanized steel and larch; the buildings seem to have grown organically from the woodlands. And while there is one obvious symbol of incarceration — a 20-ft. (6 m) concrete security wall along the prison's perimeter — trees obscure it, and its top has been rounded off, Hoilund says, "so it isn't too hostile."

The cells rival well-appointed college dorm rooms, with their flat-screen TVs and minifridges. Designers chose long vertical windows for the rooms because they let in more sunlight.  There are no bars.  Every 10 to 12 cells share a living room and kitchen.  With their stainless-steel countertops, wraparound sofas and birch-colored coffee tables, they resemble Ikea showrooms.

Halden's greatest asset, though, may be the strong relationship between staff and inmates. Prison guards don't carry guns — that creates unnecessary intimidation and social distance — and they routinely eat meals and play sports with the inmates.  "Many of the prisoners come from bad homes, so we wanted to create a sense of family," says architect Per Hojgaard Nielsen.  Half the guards are women — Hoidal believes this decreases aggression — and prisoners receive questionnaires asking how their experience in prison can be improved.

There's plenty of enthusiasm for transforming lives.  "None of us were forced to work here.  We chose to," says Charlott-Renee Sandvik Clasen, a music teacher in the prison and a member of Halden's security-guard chorus.  "Our goal is to give all the prisoners — we call them our pupils — a meaningful life inside these walls."  It's warmth like that, not the expensive television sets, that will likely have the most lasting impact.

May 4, 2010 in Prisons and prisoners, Sentencing around the world | Permalink | Comments (17) | TrackBack

Former Qwest CEO Nacchio, in court to waive right to be in court, says street folks better than suite folks

As detailed in this prior post, former Qwest CEO Joe Nacchio was ordered last month to appear in federal court in order to be able to effectively waive his right to appear in federal court for his resentencing.  This new AP article provides an interesting report on today's waiver hearing, as detailed in these excerpts:

A federal judge on Tuesday agreed to let imprisoned former Qwest CEO Joe Nacchio waive his right to attend his re-sentencing hearings in June, but not before Nacchio said he has met better people in prison than some of the people he once worked with.

Nacchio, sporting a shaved head, goatee, glasses and a khaki-colored prison jumpsuit, was transferred from a federal prison camp in Minersville, Pa., for the hearing in Denver.  He and his attorney had insisted in court documents that Nacchio wanted to skip the hearings June 22-24, when U.S. District Judge Marcia Krieger will recalculate his sentence of six years in prison, plus $71 million in fines and forfeitures, for insider trading.  An appeals court ruled the sentence was too harsh.

However, Krieger wanted to see Nacchio in person to make sure his decision was informed and voluntary.  Nacchio, who has spent a year in prison, told Krieger he wanted to stay closer to his family rather than be transferred to Denver for the hearings, a trip that can take several weeks as an inmate.  He said he spent more than a week in solitary confinement during his transfer for the hearing Tuesday, unable to speak with his lawyer or wife....

He said he serves as the Roman Catholic eucharistic minister to fellow inmates and said there aren't Sunday services when he isn't there. "Everybody I've ever met in prison finds it a difficult situation, so the state has accomplished what it set out to do," Nacchio said....

Nacchio said it is important for him and his fellow inmates to support each other and that being in prison offers many opportunities to sit alone and think. "I've met plenty of good people in prison," Nacchio said, adding he'd met better people in prison than some of the people he's worked with. "But that's subjective," he said....

Krieger didn't comment on Nacchio's reasons for skipping the June hearings but found him competent to waive his right to attend. Nacchio was handcuffed before being escorted out of the courtroom.

May 4, 2010 in Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (2) | TrackBack

The criminal complaint in USA v. Faisal Shahzad...

can be accessed at this link.  Obviously, this case is not yet at the sentencing stage, but the complaint reveals that Shahzad is already admitting his involvement in various criminal activities.  Thus, it seems that the guilt of this defendant is not much at issue and this particular case is already functionally and perhaps soon will be formally all about sentencing.

I wonder whether Shahzad knows enough and can say enough to earn a substantial assistance 5K letter.  I wonder if the politics surrounding this high-profile case would even permit federal prosecutors to provide such a letter even if they felt it was earned.

May 4, 2010 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack

Lengthy split Seventh Circuit panel ruling on ACCA and juve predicates

A split Seventh Circuit panel has an interesting (and quite lengthy) discussion of proper application of the Armed Career Criminal Act and of use of juvenile prior to trigger ACCA's increased sentenced.  The majority opinion in Welch v. US, No. 08-3108 (7th Cir. May 4, 2010) (available here), gets started this way:

In 2005, Devin Welch pleaded guilty to unlawful possession of a firearm by a felon. He then brought a motion under 28 U.S.C. § 2255 to vacate his sentence. The district court denied the § 2255 motion in pertinent part. We granted a certificate of appealability to address two of Mr. Welch’s contentions. First, he submits that his prior conviction for the Illinois crime of aggravated fleeing or attempting to elude a police officer cannot qualify as a “violent felony” within the meaning of the Armed Career Criminal Act (“ACCA”).  Second, he submits that his prior juvenile adjudication cannot be used to enhance his sentence beyond the statutory maximum because it was not obtained by a jury trial. For the reasons set forth in this opinion, we affirm the judgment of the district court.

A forceful dissent authored by Judge Posner assails the majority's conclusions on both grounds, and it includes an especially interesting discussion of Apprendi prior conviction issues.  Here is how that discussion concludes:

Of particular relevance to Apprendi, the literature finds that judges are more likely to convict in juvenile cases than juries are.  They are exposed to inadmissible evidence; they hear the same stories from defendants over and over again, leading them to treat defendants’ testimony with skepticism; they become chummy with the police and apply a lower standard of scrutiny to the testimony of officers whom they have come to trust; and they make their decisions alone rather than as a group and so their decisions lack the benefits of group deliberation.  It would be hasty to conclude that juvenile court judges are more prone to convict the innocent than juries are.  But if it is true that juvenile defendants fare worse before judges than they would before juries — if there is reason to think that trial by jury would alter the outcomes in a nontrivial proportion of juvenile cases — one cannot fob off the Apprendi argument with the observation that a jury makes no difference.

Only the Supreme Court can decide authoritatively what its decisions mean.  But the government’s inability to give a reasoned basis for that position is telling, and the better view, I believe, is that a juvenile court “conviction” is not usable for enhancing a federal sentence.

May 4, 2010 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News | Permalink | Comments (1) | TrackBack

"Senators Ask, Should Financial Fraud Mean More Prison Time?"

The title of this post is the headline from this new report at The BLT on a Senate hearing that took place today.  Here are the basics:

Amid the flurry of securities-fraud investigations, a Senate Judiciary subcommittee today is considering whether the laws governing conduct on Wall Street need an overhaul.  The subcommittee on crime and drugs, chaired by Sen. Arlen Specter (D-Pa.), is hearing testimony from academics, advocates, and at least one voice from Big Law.  One major point of dispute: a proposed requirement for some financial-services employees to meet a fiduciary duty to their customers, or else face criminal charges and potential prison time.

“I have long believed that it is insufficient to have fines for fraud,” Specter said in an opening statement, adding that fines from the Securities and Exchange Commission are “calculated as part of doing business.”  The Justice Department has brought criminal fraud charges stemming from the financial crisis, but one of its biggest cases, against two former Bear Stearns hedge-fund managers, ended in acquittal in November.

Among those testifying at the hearing is Andrew Weissmann, former director of the Justice Department’s Enron Task Force.  Now the co-chair of the white-collar defense practice at Jenner & Block, he said a new criminal statute relating to fiduciary duty would raise questions of fairness and proper notice to those who might be covered.  “Would every breach of a duty of care now become a crime?” Weissmann asked this morning.

As detailed in on this Senate webpage, the official title of this hearing was "Wall Street Fraud and Fiduciary Duties: Can Jail Time Serve as an Adequate Deterrent for Willful Violations?”  On that page one can find the written testimony from the various witnesses, including this testimony from Assistant Attorney General Lanny Breuer which discusses federal white-collar sentencing at some length.

This hearing, and especially the idea of making financial-services employees subject to criminal sanctions for breach of a fiduciary duty, is especially notable given the real possibility that the Supreme Court may soon strike down the statute making "honest-services fraud" a federal crime.  I suspect Senator Specter may be calling more hearing this summer on these topics if (when?) the Justices knock out part of that federal criminal law in the Black and Weyhrauch and Skilling cases.

May 4, 2010 in Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

"State Court Standards of Review for the Right to Keep and Bear Arms"

The title of this post is the title of this lengthy (and newly revised) piecefrom David Kopel and Clayton Cramer available via SSRN. Here is the abstract:

Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues.  Although some people have claimed that state courts always use a highly deferential version of "reasonableness," this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means.  Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms).

Even when formally applying "reasonableness," many courts have used reasonableness as a serious, non-deferential standard of review. District of Columbia v. Heller teaches that supine standards of review, such as deferring to the mere invocation of "police power," are inappropriate in Second Amendment interpretation.  This article surveys important state cases from the Early Republic to the present, and explains how they may be applied to the Second Amendment.

As regular readers know from a variety of prior posts, I think a lot of tough federal sentencing laws for felon-in-possession crimes might be subject to successful constitutional attack if (and when?) lower courts get serious about applying a rigorous standard of review in Second Amendment cases.

A few related Second Amendment posts:

May 4, 2010 in Second Amendment issues | Permalink | Comments (1) | TrackBack

Illinois on the verge of banning all sex offenders from all public parks

This local story from Illinois, which is headlined "Sex offender public park ban bill goes to governor," reports on the latest state restriction on sex offenders in the works. Here are the basics:

Passed by state lawmakers, legislation that would ban convicted sex offenders from stepping foot in any public Illinois parks now awaits Gov. Pat Quinn's signature.  The legislation, sponsored by State Sen. Kirk Dillard, R-Hinsdale, prevents all sexual predators and child sex offenders from being in or loitering within 500 feet of a public park.

Illinois currently prohibits sex offenders from being in or loitering within 500 feet of public recreational areas when children are present.  The new legislation would keep make it a crime to be near or enter a park at any time.

"Sexual offenders don't need to be hanging around public parks where there are lots of kids and lots of people walking or running alone," Dillard said recently in a press release. "Unfortunately, we've seen some terrible tragedies in public parks.  We need to keep these individuals out of areas where there is often limited oversight by law enforcement officers, as well as surroundings that offer seclusion."...

If signed by the governor, the new law would make the violation a Class A misdemeanor and boost any subsequent violation to a Class 4 felony.

May 4, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack