January 16, 2010
You be the judge: what sentence would you give to Gilbert Arenas following his plea?
The question in the title of this post is prompted by this Washington Post article which is headlined "Arenas awaits sentence on gun charge, fate in NBA." The piece provides the latest legal update on the state and possible fate of NBA star Gilbert Arenas, as well as details about his criminal behavior:
Washington Wizards star Gilbert Arenas will have to wait until March to learn if he will be sent to prison for a felony gun conviction, while his future with the NBA sits in limbo. The charismatic player known as "Agent Zero" was straight-faced and subdued when he pleaded guilty Friday to the charge connected to a locker-room argument with a teammate last month.
Arenas won't know whether he must serve jail time until his March 26 sentencing and remains free until then. The government indicated it will not seek more than six months, although the judge can give Arenas anywhere from probation to the charge's maximum term of five years. Guidelines call for six to 12 months....
The NBA didn't comment Friday, while the players' union offered support, with executive director Billy Hunter saying: "The Players Association will continue to make all of its resources available to Gilbert."...
Possession of a gun at an NBA arena is a violation of the league's collective bargaining agreement. Last week, commissioner David Stern suspended the 28-year-old Arenas indefinitely, without pay, pending the outcome of the investigation, a move supported by the Wizards. Arenas is in the second season of a six-year, $111 million contract.
Arenas' NBA future could hinge on the league's own ongoing investigation, and it's possible Stern will wait until the sentence is issued before deciding how to punish the three-time All-Star. Arenas' lawyer, Kenneth Wainstein, asked Judge Robert E. Morin for an earlier sentencing date but was denied.
This article provides these details about the events leading up to Arenas's criminal troubles:
Assistant U.S. Attorney Chris Kavanaugh said the charge stemmed from a Dec. 19 dispute between Arenas and another Wizards player over a card game on a team flight back from a game in Phoenix. Kavanaugh did not identify the other player, but authorities searched the home of Wizards guard Javaris Crittenton for a gun on Thursday. Crittenton has not been charged, and his agent denied wrongdoing.
Kavanaugh said "the other player" offered to settle matters with a fist fight, but Arenas said he was too old for that and would instead burn the other player's car or shoot him in the face. The teammate replied he would shoot Arenas in the knee. Arenas missed most of the past two seasons after having a series of operations on his left knee.
Two days later, Kavanaugh said, Arenas brought at least one gun — a .500 Magnum revolver — to the Wizards' arena in a black backpack, then put four guns on a chair in front of the teammate's locker with a sign saying, "Pick 1." Court documents do not specify when Arenas brought the other three guns to the locker room, including a gold-plated Desert Eagle .50-caliber semi-automatic.
According to Kavanaugh, when the other player asked something along the lines of, "What is this?," Arenas responded with words to the effect of: "You said you were going to shoot me, so pick one." The other player said he had his own gun, threw one of Arenas' weapons across the room and then displayed his own firearm, Kavanaugh said.
Arenas had acknowledged keeping guns in his locker — but claimed he wasn't aware of the law and meant no harm in what he viewed as a "misguided effort to play a joke." Stern suspended him the day after Arenas pretended to "shoot" teammates by pointing his index fingers at them during a pregame huddle.
As folks consider what they might do as Arenas's sentencing judge, I would appreciate comments on two topic: (1) should the fact that Arenas is suffering a multi-million dollar "punishment" from the NBA influence his sentencing outcome, and (2) should the fact that the Second Amendment provides a constitutional right to "keep and bear arms" influence his sentencing outcome?
Some related posts on Gilbert Arenas' situation and other celebrity gun possession cases:
- Now that Plaxico Burress has been formally indicted for gun possession, will Second Amendment fans come to his defense?
- Why Second Amendment supporters need to be helping out Plaxico Burress
- Rapper Lil Wayne cops a plea to New York gun possession charge
US Army soldier facing questionable(?) child porn charges
A helpful reader alerted me to this notable local story, which is headlined "Galesburg soldier being held overseas on child porn charges: Family says they e-mailed photos of niece and 24-year-old did nothing wrong." Here are the basic details:
The parents of a Galesburg soldier charged with possessing child pornography in Afghanistan say he did nothing wrong and are furious about the way he is being treated by military authorities. The U.S. Army has charged Spc. Billy Miller, 24, with possession of child pornography and a related charge of failure to obey an order that troops in Afghanistan not possess pornography.
Army spokesman Lt. Mary J. Pekas declined to discuss details of the case or evidence against Miller. She said the charge is punishable by up to 10 years in prison. Miller's unit returned to Illinois in August, according to the National Guard, but the Army said he remains in Afghanistan, awaiting the end of his case and possible court martial. "Spc. Miller is currently on active duty and assigned to Headquarters and Headquarters Co., 82nd Airborne Division, pending the conclusion of the investigation and any potential legal proceedings," the Army's media center in Bagram, Afghanistan, said in a brief, unsigned e-mail statement.
Miller's mother, Terri, said the family e-mailed their son pictures of his 4-year-old niece last summer to ease his homesickness. Relatives say Billy Miller became close to the girl after she was diagnosed with a serious illness while her own father was away for military training. The pictures were taken by Terri Miller and the girl's mother at the girl's birthday party last summer, said Rodney Miller, the soldier's father.
The pictures show the child in a swimsuit playing in a wading pool and sitting on a truck. In one, the girl is wearing a swimsuit and part of her buttocks are exposed, according to The Associated Press. The pictures were on the soldier's laptop, which the Army has confiscated.
Terri and Rodney Miller said they are angry with the way they and their son have been treated by the military. They said they are worried about the toll the allegations have taken on Billy Miller....
Terri Miller said she had great respect for members of the armed services, but the way her son's case was being handled had changed her mind about the military. "This is nothing against the troops," she said, "but the military can go to hell."...
A military spokesman in Afghanistan said charges were made against Billy Miller on Jan. 5, stemming from an investigation that began last August. The military spokesman said no timeline has been determined as to when a hearing will begin.
The Millers believe that one of Billy Miller's friends in Afghanistan, whom he had fallen out with, had reported seeing inappropriate pictures on the specialist's laptop. Terri Miller showed GateHouse News Service text messages from soldiers in the unit that suggested he was the victim of a personal vendetta.
The benefits of HOPE in HawaiiI received this e-mail from the folks at Pew yesterday, which provides a very positive report on a reentry program in our 50th state:
Established in 2004, Hawaii’s Opportunity Probation with Enforcement (HOPE) program identifies probationers at high risk of violating the conditions of their community supervision, and deters them from using drugs and committing crimes with frequent and random drug tests backed up by swift, certain and short jail stays.
The Impact of Hawaii’s HOPE Program on Drug Use, Crime and Recidivism, produced by the Public Safety Performance Project of the Pew Center on the States and the National Institute of Justice, summarizes new research conducted by Pepperdine University and the University of California, Los Angeles. The research shows that HOPE probationers were significantly less likely to be arrested for a new crime, to use drugs and to have their probation revoked. As a result, HOPE participants also served or were sentenced to an average of 48 percent fewer days in jail and prison.
The one-year randomized controlled trial found that HOPE probationers were:
- 55 percent less likely to be arrested for a new crime;
- 72 percent less likely to use drugs;
- 61 percent less likely to skip appointments with their supervisory officer; and,
- 53 percent less likely to have their probation revoked.
The U.S. Department of Justice provides the full evaluation online, and additional HOPE materials are available on our website. In addition, HOPE was the subject of an article in the January 10, 2010 edition of The New York Times Magazine.
January 15, 2010
Third Circuit requires two predicate offenses to impose two 924(c) mandatoriesThe Third Circuit has a long discussion in US v. Diaz, No. No. 08-4088 (3d Cir. Jan. 14, 2010) (available here), of an interesting issue in the application of the mandatory minimum consecutive sentencing terms for two consecutive terms of 120 months for two § 924(c) convictions. The ruling covers a lot of case law on the way to concluding that “a defendant who uses multiple firearms in relation to a single drug-trafficking crime may be charged with only one violation of § 924(c)(1).” Here is how the Diaz ruling sums up its determination:
For the reasons set forth, we will vacate one of Diaz’s two § 924(c) convictions and remand to the District Court for resentencing.... As the Supreme Court stated in Bass, 404 U.S. at 348, “because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. . . . [t]hus, where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.”
"'Sexting' Case to Take Center Stage at 3rd Circuit"The title of this post is the headline of this article in The Legal Intelligencer available via law.com. Here are the details concerning a case that not only is the first federal circuit court encounter with "sexting," but also raises some important issues of federalism and prosecutorial discretion:
A federal appeals court on Friday takes up the growing practice of "sexting" -- in which teenagers transmit nude and semi-nude photos of themselves and others by phone -- as the judges tackle the vexing question of whether such images can be deemed child pornography.
The appeal in Miller v. Skumanick stems from a civil rights suit brought by three Wyoming County, Penn., girls against then-District Attorney George Skumanick Jr. alleging that he violated their First Amendment rights with his threat of a child pornography prosecution if they refused to take a class he had designed to educate youths about the dangers of sexting. The case is the first in the country to challenge the constitutionality of bringing child pornography charges in the context of sexting.
After a wave of sexting was discovered among students in Pennsylvania's Tunkhannock Area School District, Skumanick targeted 13 girls and three boys. Most agreed to take the class to avoid prosecution, but three of the girls and their parents instead enlisted the help of the American Civil Liberties Union to challenge the threatened prosecutions.
In March 2009, U.S. District Judge James M. Munley sided with the ACLU and issued an injunction that blocked Skumanick from bringing the charges, declaring that the photographs were not child pornography under Pennsylvania law and were therefore protected under the First Amendment [ruling here].
Now Witold J. Walczak, the legal director of the ACLU of Pennsylvania, will be urging the 3rd U.S. Circuit Court of Appeals to uphold the injunction, while attorney Michael J. Donohue of Kreder Brooks Hailstone in Scranton, Pa., urges the court to overturn it.
In an amicus brief [available here], attorneys Marsha L. Levick and Riya S. Shah of the Juvenile Law Center side with the ACLU and its plaintiffs, arguing that "sexting prosecutions are an abuse of prosecutorial discretion and are inconsistent with the juvenile act's purpose of providing rehabilitation and treatment."
Levick and Shah argue that sexting "represents the convergence of technology with adolescents' developmental need to experiment with their sexual identity and explore their sexual relationships." Child pornography laws, Levick and Shah argue, "are intended to protect victims and prosecuting sexting as child pornography is inconsistent with the stated purpose and legislative intent of these laws." The 3rd Circuit panel is composed of Judges Thomas L. Ambro, Walter K. Stapleton and Michael A. Chagares.
In the brief for Skumanick, Donohue argues that the injunction "represented an unwarranted and illegal intrusion into the juvenile justice system of Wyoming County." Donohue argues that Skumanick was faced with a situation where "provocative photographs of nude and semi-nude adolescent girls" were being sent to students.
"In his prosecutorial discretion, he was attempting to address the situation with an informal adjustment under which the girls and boys who had participated in the creation and dissemination of the photographs could attend a rehabilitative class where they could be educated to understand that such actions were illegal, inappropriate and extremely dangerous," Donohue wrote. Donohue argues that the federal courts "should be extremely hesitant and deferential in intervening in prosecutorial discretion in the criminal courts of the states."
Some related "sexting" posts:
- Federal district judge enjoins controversial state sexting prosecution
- The many fascinating legal and social issues swirling around "sexting"
- Ohio ACLU writes to local lawmakers and prosecutors about sexting
- "Ohio judge sentences 2 teens for sexting"
- Some of the latest "sexting" news and notes
- Vermont legislature considering "sexting exception" to child porn prohibitions
- Pennsylvania town struggling with a "rash of sexting incidents"
UPDATE: This subsequent article from theThe Legal Intelligencer, which is headlined "3rd Circuit Panel Mulls if Teen 'Sexting' Is Child Pornography," provides some notable highlights from the oral argument:
As the nation's first case involving criminal prosecutions of teenagers for "sexting" made its way to a federal appeals court in Philadelphia, all three judges seemed skeptical of the prosecutor's claim that child pornography laws are violated when a teen transmits a nude image of herself.
The three 3rd U.S. Circuit Court of Appeals judges also appeared poised to declare that former Wyoming County District Attorney George Skumanick Jr. violated the First Amendment rights of three girls with his threat of a criminal prosecution if they refused to take a class he had designed to educate youths about the dangers of sexting. "I don't know of anything that says a district attorney's office is allowed to, in effect, play the role of teacher," Judge Thomas L. Ambro said.
But attorney Michael J. Donohue of Kreder Brooks Hailstone in Scranton, Pa., argued that Skumanick was right to take the cases seriously when school officials informed him of a rash of sexting incidents, and that each of the students had the option to refuse the class and "face the music" in a juvenile court proceeding. ...
Donohue insisted that the program was a proper response to a rash of incidents in which girls had transmitted nude photos of themselves for no other purpose than sexual gratification. "Children are immature, children are vulnerable. The entire basis of the juvenile code is to protect children from themselves," Donohue said. "If that's your goal -- to protect them -- then why threaten, by prosecuting them, putting a permanent blot on their escutcheon, for life?" Ambro asked. ACLU legal director Witold Walczak told the judges "what we have here is a district attorney's office that has a fundamental misunderstanding of child pornography laws."
But Walczak, too, was peppered with some tough questions as the judges pondered whether the ACLU's approach, and Munley's injunction, were legally sound. Walczak urged the judges to focus, as Munley had, on the nature of the images.
"You don't have pubic area much less genitalia exposed here," Walczak said. "We've been mystified as to how anyone could look at these two photos and say these are second-degree felonies, which can be punished up to 10 years." Sexting "is a vague term," Walczak said, that "covers everything from the lovely to the laughable to the lewd and the lascivious."
But when Ambro asked if the decision to prosecute should be left to the district attorney, Walczak insisted it should not because prosecutors have no right to threaten charges where there is no probable cause and where the images are constitutionally protected.
Chagares said the court might be inclined to agree with Walczak about the education program, but asked: "Should we be serving as a screening mechanism for sexting cases -- or any other kind of cases?"
Walczak said he believed the federal courts "should stand as a bar to any state official who is imminently violating or threatening to violate somebody's constitutional rights -- and that's what Judge Munley did in this case."
Noting the reduction in Florida death sentencesThe Orlando Sentinel has this new piece about modern capital punishment trends, which is headlined "Fewer Florida juries voting for death — why is unclear: Trend toward fewer executions evident elsewhere in nation as wel." Here is how it starts:
Juries in Florida recommended 14 men die by lethal injection last year after hearing about their crimes and why the state should execute them. The number is 10 fewer than were recommended for death in 2008, when 24 defendants were sentenced to die, according to figures kept by the Department of Corrections.
The decline continues a downward trend in the state's death sentences, mirroring what is happening across the country. "Outside a few states, the death penalty is not a regular occurrence," said Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit organization based in Washington that provides analysis about the death penalty.
A year-end study by the Death Penalty Information Center reported 106 death sentences nationwide, a 63 percent drop in the past decade. No one can point to a single direct cause for the drop, saying it's a mix of the economy, a decline in violent crimes and juries' reluctance to vote for death. It could be more states with the death penalty have added the option of life in prison without parole.
January 14, 2010
NBA star Arenas charged with felony gun possession and already talking about a pleaAs detailed in this new CNN story, "Washington Wizards point guard Gilbert Arenas has been charged with a felony gun violation after admitting he drew guns in the team locker room in a highly publicized December 21 incident." Here's more:
Arenas was charged with one count of carrying a pistol without a license, according to court documents filed Thursday.
There was no immediate comment from his attorney, Kenneth L. Wainstein. It wasn't immediately clear when Arenas, who has been indefinitely suspended from the NBA, would be arraigned on the charge. The document that describes the charge is called an "information," which is filed when a plea agreement has been reached....
Arenas, a three-time NBA All-Star, spent January 15 in a voluntary meeting with federal prosecutors at the U.S. Attorney's Office in Washington and with District of Columbia metropolitan police, according to his attorney.
Arenas said he told authorities he stored four unloaded guns in his locker at the Verizon Center to keep them away from his children. "I brought them without any ammunition into the District of Columbia, mistakenly believing that the recent change in the D.C. gun laws allowed a person to store unloaded guns in the District," he said.
This story from the Washington Examiner says that a plea deal is already in place:
A top law enforcement source familiar with the case told The Examiner that Arenas has agreed to plead guilty to one felony count of carrying a pistol without a license and four misdemeanor counts of unauthorized use of a weapon.
The papers were filed "by information," an indication that a plea agreement has been reached because prosecutors can only file charges by information when a defendant agrees to waive his right to appear before a grand jury. Through a spokeswoman, Arenas' lawyer declined comment.
It's not clear whether Arenas will face prison time. Prosecutors will await a pre-sentencing report before making a recommendation, the source said.
As regular readers know, I think that a Second Amendment with some real bite might provide some constitutional protection from the kind of criminal prosecution that Arenas is facing. But like Plaxico Burress and Lil Wayne before him, it seems like Arenas just wants to cut a deal and try to move on rather than turn this matter into a Second Amendment test case. I guess I just have to keep my fingers crossed that Delonte West will be the one rich and powerful celebrity willing to seek to assert his modern Second Amendment rights when charged with a gun possession crime.
Some related posts on Gilber Arenas' situation and other celebrity gun possession cases:
- Starting to make the Second Amendment case for Plaxico Buress
- Now that Plaxico Burress has been formally indicted for gun possession, will Second Amendment fans come to his defense?
- Why Second Amendment supporters need to be helping out Plaxico Burress
- "In U.S., Record-Low Support for Stricter Gun Laws"
- Rapper Lil Wayne cops a plea to New York gun possession charge
"The New Jim Crow: Mass Incarceration in the Age of Colorblindness"
The title of this post is the title of this terrific new book by my colleague Michelle Alexander that is just out from The New Press. Here is a snippet from the text along with the the publisher's description of the work:
Jarvious Cotton’s great-great-grandfather could not vote as a slave. His great-grandfather was beaten to death by the Klu Klux Klan for attempting to vote. His grandfather was prevented from voting by Klan intimidation; his father was barred by poll taxes and literacy tests. Today, Cotton cannot vote because he, like many black men in the United States, has been labeled a felon and is currently on parole. —FROM THE NEW JIM CROW
As the United States celebrates the nation’s “triumph over race” with the election of Barack Obama, the majority of young black men in major American cities are locked behind bars or have been labeled felons for life. Although Jim Crow laws have been wiped off the books, an astounding percentage of the African American community remains trapped in a subordinate status — much like their grandparents before them.
In this incisive critique, former litigator-turned-legal-scholar Michelle Alexander provocatively argues that we have not ended racial caste in America: we have simply redesigned it. Alexander shows that, by targeting black men and decimating communities of color, the U.S. criminal justice system functions as a contemporary system of racial control, even as it formally adheres to the principle of color blindness. The New Jim Crow challenges the civil rights community — and all of us — to place mass incarceration at the forefront of a new movement for racial justice in America.
Split Missouri Supreme Court finds limits retrospective application of state sex offender restrictionsAs detailed in this Kansas City Star article, recently-enacted Missouri laws "regulating where sex offenders live and what they do on Halloween cannot apply to those convicted before the laws took effect, the Missouri Supreme Court ruled Tuesday." Hare are the basics:
The 4-3 decision in two cases from eastern Missouri addressed the 2004 law preventing convicted sex offenders from living within 1,000 feet of a school or child-care facility and the 2008 law that controlled the activities of registered sex offenders on Halloween night.
The court’s majority found that both laws violated the Missouri Constitution’s protection against retrospective laws if applied to offenders convicted before the laws were enacted. In the opinion of the court’s dissenting minority, both laws are “valid exercises of the state’s police power to protect children.”
The split ruling from the Supreme Court of Missouri can be accessed at this link, and here is how the majority opinion gets started:
In the first of these cases, F.R., a convicted sex offender, challenges the constitutional validity of section 566.1471, Missouri's "School Residency Law," which prohibits convicted sex offenders from residing within 1,000 feet of any school or child-care facility. Because F.R. was convicted and sentenced before the "school residency law" was enacted, section 566.147, as applied to F.R., is unconstitutionally retrospective in its operation....
In the second case, Charles Raynor, a convicted sex offender, challenges the constitutional validity of section 589.426, which prohibits convicted sex offenders from going outdoors, turning on their outdoor lights and handing out candy on Halloween, and which requires them to post a sign stating "no candy or treats at this residence." Because Raynor was convicted and sentenced before section 589.426 was enacted, section 589.426, as applied to Raynor, is unconstitutionally retrospective in its operation.
Offender circumstances cited for big downward variance to convicted Refco lawyerThis ABC News report, which is headlined "Chicago Lawyer Sentenced to 7 Years in Prison," reports on the latest high-profile white-collar sentencing in which a below-guideline sentence was imposed. Here are the basics:
A Chicago lawyer was sentenced to seven years in prison Thursday by a federal judge who said his excessive loyalty to Refco Inc. led him to help the big commodities brokerage carry out a $2.4 billion fraud.
Attorney Joseph P. Collins, 59, of Winnetka, Ill., was sentenced by U.S. District Judge Robert P. Patterson in Manhattan after he was convicted at trial of conspiracy and other charges in the huge fraud at Refco.
Patterson cited Collins long history of charitable acts toward friends and his support of Chicago schools and the University of Notre Dame as he imposed a sentence considerably less than the 85 years in prison suggested by federal sentencing guidelines.
Patterson said the lawyer's loyalty to a customer led him to his crimes. "I don't believe Mr. Collins committed these crimes for greed, for money," Patterson said. "I think this is a case of excessive loyalty to a client," he said. "It's an admirable thing but in this case seems to have caused the crimes to be committed."
Patterson said it was necessary to give Collins a significant prison term as a message to lawyers that they can be held responsible if they are complicit in their client's crimes. He said he wanted "to deter other lawyers from doing this."
"Two-Tiered Justice: Race, Class, and Crime Policy"
The title of this post is the title of this newly-published essay by Marc Mauer for The Sentencing Project. I learned of the essay from an e-mail that also contained this account of the work:
"Two-Tiered Justice: Race, Class, and Crime Policy" appears in a new volume, The Integration Debate, edited by Chester Hartman and Gregory Squires.
[The] essay analyzes how the intersection of policy changes in criminal justice with the dynamics of a society that is still segregated in large part has produced a crisis of mass incarceration with profound effects for communities of color. In the drug war and other areas, the "two-tiered" approach to public safety has emphasized treatment and public health strategies in communities with resources, while stressing punitive criminal justice initiatives in low-income neighborhoods. These policies have set in motion a vicious cycle whereby the failure to invest in communities leads to higher rates of incarceration, which in turn contribute to declining economic prospects.
Former Qwest CEO reqwesting only a short prison stintAs detailed in this Denver Post article, which is headlined "Nacchio attorneys argue for short prison term," a high-profile white-collar offender is asking for a low-level sentence. Here are the details:
Attorneys for imprisoned former Qwest chief executive Joe Nacchio argue in a new court filing that his six-year sentence for illegal insider trading should be reduced to as little as six months.
A federal appeals court last year mandated a re-sentencing, ruling that the trial judge miscalculated when he ordered Nacchio to serve six years in prison and forfeit $52 million in ill-gotten gains and pay $19 million in fines.
Prosecutors argue that Nacchio's prison term should range from five years and three months to six years and six months. Nacchio reported to a federal prison camp in Pennsylvania last April, two years after a jury convicted him on 19 counts of insider trading connected to his sale of $52 million in Qwest stock.
In criminal securities cases such as Nacchio's, federal guidelines call for the prison sentence to be based on the amount of money Nacchio is calculated to have gained from having insider information while making the the illegal stock sales.
A study conducted by business-law professor Daniel Fischel claims the gain may have been zero, according to a sentencing statement Nacchio's attorneys filed late Tuesday. "Fischel's event study demonstrates that the maximum gain is $1.8 million, and his supplemental analysis shows that to be a conservative estimate and the gain might be as small as zero," the filing states.
A gain of $1.8 million would result in a guideline range of three years and five months to four years and three months. A gain of zero would result in a range from six months to 12 months.
Prosecutors claim Nacchio gained at least $32.9 million, based on a study conducted by finance professor Anjan Thakor. As part of the re-sentencing, Nacchio's attorneys claim he should be required to pay no more than $3.6 million in fines and $1.8 million in forfeitures.
January 13, 2010
"Judges issue order to cut California prison population"The title of this post is the headline of this article from the Sacramento Bee. The piece provides the latest news about the latest chapter of the federal litigation over the prison population in California:
The long-awaited final order to reduce California's prison population was issued Tuesday by three federal judges who signed off on a revised plan submitted in November by the Schwarzenegger administration.
But the judges postponed the effective date of their order pending U.S. Supreme Court consideration of it and another order in August requiring formulation of the plan. The administration is waiting for the high court to act on its request for a review of the August order.
The three judges are a special panel appointed by the chief judge of the 9th U.S. Circuit Court of Appeals acting under authority granted by the Prison Litigation Reform Act of 1996. The act says an appeal goes directly to the Supreme Court. It would be the first such case to be heard by the high court if it chooses to enter the bitterly fought struggle over crowded conditions and their impact on inmate health care in prisons.
Aaron McLear, spokesman for Gov. Arnold Schwarzenegger, said in an e-mail late Tuesday: "The order accepts our plan but rejects our request for the tools we would need to implement it." His reference is apparently to the administration's lengthy list of state law waivers that would be required from the judges in order to implement the reduction. The list was part of the submitted plan....
"We expect that the U.S. Supreme Court will hear our appeal on whether federal judges have the authority to order the early release of prisoners in our state," McLear said. "We will fight any decision that orders early release and endangers public safety."
Fourth Circuit finds probationary sentence for tax evader procedurally and substantively unreasonable
The Fourth Circuit has a thoughtful and interesting discussion of a host of post-Booker sentencing issues today in US v. Engle, No. 08-4497 (4th CIr. Jan. 13, 2010) (available here). Every hard-core federal sentencing fan will want to read the whole Engle opinion, and here is how the it starts and ends:
Frederick Engle pleaded guilty to tax evasion, see 26 U.S.C.A. § 7201 (West 2002), and the district court sentenced him to four years’ probation, conditioned on the service of eighteen months’ home detention with work release and international travel privileges. The government appeals, challenging the reasonableness of the sentence. For the reasons set forth below, we vacate the sentence and remand for resentencing....
To summarize, we conclude that the district court committed significant procedural error by minimizing of the seriousness of Engle’s conduct, failing to consider the relevant policy statements and the need for general deterrence, and insufficiently explaining the reasons for its view that a term of imprisonment was not required. We also conclude that the sentence imposed was substantively unreasonable because of the district court’s improper focus on Engle’s financial ability to pay restitution. Accordingly, we hereby vacate Engle’s sentence and remand for further proceedings before a different district court judge.
US Sentencing Commission proposing amendments and seeking comment on lots of huge issuesAs detailed in this new press release, which is titled "U.S. Sentencing Commission Seeks Comment on Alternatives to Incarceration, Specific Offender Characteristics Relevant to Sentencing, and Hate Crimes," the US Sentencing Commission is seeking public comment on a lot of critical federal sentencing issues. Here's more from the press release:
At its January 12 public meeting, the United States Sentencing Commission voted to publish for public comment proposed guideline amendments and issues for comment on a wide range of topics that include alternatives to incarceration, the relevance of specific offender characteristics to sentencing, and penalties for hate crimes. The 60-day public comment period runs through mid-March 2010, and a public hearing on the proposed amendments is scheduled in Washington, D.C., for March 18, 2010....
The Commission voted to issue for comment a proposed amendment expanding the court’s authority to impose an alternative to incarceration for drug offenders who need treatment for drug addiction and who meet certain criteria. The proposed amendment creates a new guideline that gives the court the authority to impose a sentence of probation with a requirement that the offender participate in a substance abuse treatment program. The defendant receiving such a sentence must be a willing participant in the program and must have committed the offense while addicted to a controlled substance. In addition, the offender must have committed a lower-level offense, and the offender must meet the “safety valve” criteria as specified in the sentencing guidelines.
The proposed amendment also would expand by one offense level Zones B and C in the guidelines’ sentencing table, making additional defendants eligible for the sentencing alternatives provided in the guidelines. Currently, the sentencing guidelines give the court the authority to sentence eligible defendants to community confinement, intermittent confinement, or home detention. The Commission also provided a number of issues for comment regarding alternative sentencing that includes a request for comment on defendants suffering from other conditions (e.g., mental conditions) and whether they, too, should be eligible for a treatment program as an alternative to incarceration.
The Commission issued for comment a proposed amendment responding to the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act....
The Commission also is seeking public comment on the extent to which specific offender characteristics should be relevant at sentencing. In particular, the Commission asks for comment on five particular offender characteristics: age; mental and emotional condition; physical condition, including drug dependence; lack of guidance as a youth; and military, civic, charitable, or public service, employment-related contributions, and prior good works.
Other proposed guideline amendments refer to guideline issues that include the calculation of criminal history points; the procedure to follow when arriving at a sentence, a departure, or a variance; and defacing a paleontological resource on federal land. The full text of the proposed changes to the sentencing guidelines and issues for comment will soon be available on the Commission’s web site at www.ussc.gov.
Wow! This seems like very big news on a lot of fronts, and I am hopeful that others agree with my instinct that this set of proposed amendments sound really good and should help take the guidelines in needed new directions. It will be very interesting to see the specifics of the proposed amendments and the reactions that these various amendments may generate in from various usual sentencing suspects in various quarters. (I also cannot wait to read comments about the best way to sentence those guilty of "defacing a paleontological resource on federal land.")
"Woman sentenced to hold sign: 'I battered a police officer'"
The title of this post is the headline of this article from the Orlando Sentinel, which was sent to me by a helpful reader. My first instinct is to always prefer these sorts of shaming sentences over terms of incarceration, but I know some others have real problems with this kind of creative sentencing approach:
Alexandra Espinosa-Amaya isn't happy about her sentence. For four hours, the 24-year-old stood outside the Orlando Police Department Tuesday with a homemade sign, apologizing for hitting an officer. "I battered a police officer. I was wrong. I apologize," she drew on a blue poster board decorated with flowers.
This is her punishment for pushing Sgt. Andrew Brennan on Nov. 29, 2008, while he worked off-duty near the Dragon Room on West Church Street. "It's humiliating and it doesn't teach my anything," Espinosa-Amaya said outside the courtroom and before she headed to the police station. "But if Officer Brennan is happy and feels a little better, I'll do it."
She agreed to the sign as part of her no contest plea to two misdemeanor charges — simple battery and resisting an officer without violence. Espinosa-Amaya, who is a student at Jacksonville State University in Alabama, also must complete two years' probation, write an apology letter, perform 50 hours of community service and attend an anger-management class.
The sign is an unusual step but the officer wanted some type of unique punishment, said Espinosa-Amaya's attorney, Andrew Chmelir. And the agreement let her plea to misdemeanors instead of her initial felony charge of battery on a law-enforcement officer, he said. She is here on a student visa, but today's sentence will not affect her immigration status.
Pushing back against proposed sentencing reforms in MichiganAs detailed in this local article, which is headlined "Early prison releases in Michigan assailed: Prosecutors, victims say at least minimum sentences should be served," a campaign against proposed states sentencing reforms is mounting in Michigan. Here are some details:
[Rose] King was one of two crime victims to speak at a news conference in which area law enforcement officials warned of the danger of releasing prisoners early. Also, they lashed out against a pending bill in Lansing that would do away with 1998's truth-in-sentencing guidelines which, among other things, guarantee felons will serve at least minimum sentences.
Similar news conferences were staged across the state, as prosecutors banded together in hopes of avoiding a return to the pre-1998 period when felons convicted of like crimes often received a wide range of sentences. "We want truth in sentencing rather than deceptive sentencing," Kalamazoo County Prosecutor Jeff Fink said.
Fink, Cass County Prosecutor Victor Fitz, King and others on Tuesday were critical of the state's efforts to reduce costs by the early release of prisoners such as Sherwood, who was sentenced before Michigan's truth-in-sentencing law took effect. Fink pointed out that two of the last three homicides in Kalamazoo County were allegedly committed by parolees released within the last two years. "There appears to be a fire sale at the Department of Corrections," said Fitz, alluding to an 11.8 percent reduction in the state's prison population over the last 11 months.
What people probably don't know, Fitz said, is Michigan has the highest violent crime rate, the fewest number of police officers by population and sends the fewest number of felony offenders to prison of any state in the Great Lakes region. "The national average is 40 percent of felons sent to prison. Michigan sends 20 to 21 percent," he said.
Arguing that the Legislature needs to find ways to reduce costs that don't jeopardize public safety, Fitz said the Department of Corrections has been "bleeding green for some time." It costs Michigan $32,817 a year to house an inmate, he said, compared to $19,812 in Indiana, $22,396 in Illinois and $25,269 in Ohio. St. Joseph County (Mich.) Prosecutor John McDonough was unable to say why the cost is so much higher in Michigan, guessing the reason could range from construction costs to the price of food and clothing. Neither did King venture a reason for the disparity.
"Rising Road: A True Tale of Love, Race, and Religion in America"
The title of this post is the title of this amazing new bookby my colleague Sharon Davies that is just out from Oxford University Press. Here is the publisher's description of the work, which highlights why those interested in criminal justice history and SCOTUS Justice history should be sure to check out this great new book:
It was among the most notorious criminal cases of its day. On August 11, 1921, in Birmingham, Alabama, a Methodist minister named Edwin Stephenson shot and killed a Catholic priest, James Coyle, in broad daylight and in front of numerous witnesses. The killer's motive? The priest had married Stephenson's eighteen-year-old daughter Ruth -- who had secretly converted to Catholicism three months earlier -- to Pedro Gussman, a Puerto Rican migrant and practicing Catholic.
Having all but disappeared from historical memory, the murder of Father Coyle and the trial of Rev. Stephenson that followed are vividly resurrected in Sharon Davies's Rising Road. As Davies reveals in remarkable detail, the case laid bare all the bigotries of its time and place: a simmering hatred not only of African Americans, but of Catholics and foreigners as well. In one of the case's most interesting twists, Reverend Stephenson hired future U.S. Supreme Court justice Hugo Black to lead his defense team. Though Black would later be regarded as a champion of civil rights, at the time the talented defense lawyer was only months away from joining the Ku Klux Klan, which held fundraising drives to finance Stephenson's defense. Entering a plea of temporary insanity, Black and his client used both religion and race-accusing the Puerto Rican husband of being "a Negro" -- in the hopes of persuading the jury to forgive the priest's murder.
Placing this story in its full social and historical context, Davies brings to life a heinous crime and its aftermath, in a brilliant, in-depth examination of the consequences of prejudice in the Jim Crow era.
January 12, 2010
"U.S. Courts Split on Internet Bans"The title of this post is the headline of this Wired article, which highlights the split between arecent Third Circuit ruling and other circuit rulings on internet bans for certain sex offenders. Here are excerpts from the piece:
A federal appeals court is reversing a lifetime internet ban imposed on a child sex offender also handed a 15-year prison term.
The outcome highlights that appellate courts are all over the map when it comes to internet bans often imposed on defendants, especially sex deviants, once they have served their time. What’s more, the courts appear to be accepting the internet as a basic freedom to which convicts, even the worst of the worst, usually should not be denied permanent access....
In Heckman’s case, the appeals court noted that it had rejected a lifetime internet ban in 2007 for a pervert who displayed the naked buttocks of his 3-year-old daughter on a webcam. But last year, the same circuit court upheld a 20-year prison term and a 10-year internet ban on a man who distributed child pornography and lured “the direct exploitation of minors.” “This is the lengthiest ban we have upheld,” the appeals court wrote.
Celebrated hacker Kevin Mitnick was barred from the internet for three years following his 2000 release from prison. In August, the first unconditional lifetime internet ban on appeal (.pdf) was upheld by the Atlanta-based 11th U.S. Circuit Court of Appeals. The defendant was also sentenced to six years for “traveling in interstate commerce with intent to engage in illicit sexual conduct with a person under the age of 18.”
Eighth Circuit reverses above-guideline sentence for embezzing police officer
The Eighth Circuit has an interesting little sentencing ruling today in US v. Molnar, No. 09-1326 (8th Cir. Jan. 12, 2010) (available here). The simple fact that the Eighth Circuit reversed a sentence on a defendant's appeal is itself noteworthy, and the facts of the case add to the intrigue.
In Molnar, the defendant was a police officer who pleaded guilty to embezzlement of seized drug money. Though his calculated guideline range was ten to sixteen months, the district court varied upward and sentenced Molnar to sixty-months' imprisonment. The Eighth Circuit find a "procedural" error in one of the factors that the district court used to justify the above-guideline sentence, but the panel decision also indirectly suggests that the appeals court was troubled that this defendant was sentenced so severely for what seems to be a relatively minor crime.
Different perspective on the Justices' take on federal sex offender civil commitmentThe early reporting on today's SCOTUS oral argument in Comstock (basics here) provide quite distinct takes on what the Justices are thinking. Consider the lead of this Bloomberg report, which is headlined "Sex-Offender Commitment Law Gets Support at U.S. Supreme Court":
U.S. Supreme Court justices signaled they are likely to uphold a national law that permits the civil commitment of “sexually dangerous” people after they complete their federal prison terms. Hearing arguments today in Washington, most of the nine justices suggested they viewed Congress as having the constitutional power to enact the law. A federal appeals court said the 2006 measure, under which more than 100 people have been held, exceeded Congress’s authority.
But now consider the lead of this Reuters report, which is headlined "U.S. justices question sex offender confinement law":
Supreme Court justices on Tuesday expressed skepticism about the Obama administration's argument that the U.S. Congress can keep sex offenders in custody for an indefinite time beyond their prison sentences.
I suppose we will all just have to read the transcripts of the Comstock oral argument, which is now available here.
UPDATE: Corey Yung at Sex Crimes provides lots of effective coverage of the Comstock oral argument in these posts:
- Key Points from the Government's Oral Argument
- Key Points from Comstock's Oral Argument and Government's Rebuttal
- My Prediction of the Outcome in Comstock
Also, Orin Kerr provides another bloggers take with this Volokh post, Oral Argument in United States v. Comstock.
"Lawyers Challenge Ohio on Executions"The title of this post is the headline of this article in the New York Times, which provides a useful reminder that litigation over lethal injection has not gone away in Ohio even though the state has transitioned to a one-drug execution protocol. Here are some details:
Proper training of prison officials could have prevented a botched execution in Ohio last year that led the state to overhaul its method of execution, lawyers for several death row inmates have argued in court filings.
The filings contend that Ohio prison officials have shown a consistent disregard for their own rules in carrying out executions, including failing to ensure that execution staff members attend required rehearsals and training. And they contend that one of the people who helped conduct the botched execution on Sept. 15, involving an inmate named Romell Broom, was inadequately trained and had failed to attend all the required rehearsals....
“Were prison staff appropriately trained and if prison officials followed protocol, they might have avoided the sort of cruel and unconstitutional treatment that Mr. Broom faced,” said Adele Shank, one of Mr. Broom’s lawyers, adding that she intended to try to prevent the state from going forward with her client’s execution. “The state got their chance with Mr. Broom,” Ms. Shank said. “They failed to execute him, and, in the process, they violated his constitutional right to avoid cruel and unusual punishment. So we are arguing it would be further cruelty for them to try again.”
State prison officials declined to comment because of the pending litigation. But they have said they believe the state’s new protocols are effective and not painful.
Lawyers for other death row inmates said they hoped to stop all executions in Ohio until the state’s execution protocols were brought up to constitutional standards and there were better guarantees that those protocols would be followed.
In a 2008 ruling that upheld the three-drug cocktail Kentucky used in executions, the Supreme Court rejected the claim that it posed an unconstitutional risk of a condemned inmate’s suffering acute yet undetectable pain. But Allen L. Bohnert, a death row lawyer in Ohio, said the decision by the Supreme Court that the three-drug cocktail was constitutional was based on the faulty assumption that states followed protocol, when in Ohio, he said, that was proving not to be true.
Supreme Court reverses Sixth Circuit reversal of death sentence in SpisakThe Supreme Court has released this morning an opinion Smith v. Spisak, No. 08-724 (Jan. 12, 2010) (available here), which reverses the Sixth Circuit reversal of a death sentence for a notorious murderer. Here is a snippet from Justice Breyer's opinion from a section of the opinion in which the Court was unanimous:
[I]n light of counsel’s several appeals to the jurors’ sense of humanity — he used the words “humane people” and “humane society” 10 times at various points in the argument — we cannot find that a more explicit or more elaborate appeal for mercy could have changed the result, either alone or together with the other circum-stances just discussed. Thus, we conclude that there is not a reasonable probability that a more adequate closing argument would have changed the result, and that the Ohio Supreme Court’s rejection of Spisak’s claim was not “contrary to, or . . . an unreasonable application of” Strickland. 28 U. S. C. §2254(d)(1).
Justice Stevens files a separate concurrence that concludes by spotlighting why anyone other than the most ardent death penalty abolitionist should be pleased with this ruling:
Notwithstanding these two serious constitutional errors,I agree with the Court that these errors do not entitle Spisak to relief. As JUSTICE BREYER’s discussion in Part III makes vividly clear, see ante, at 11–14, Spisak’s own conduct alienated and ostracized the jury, and his crimes were monstrous. In my judgment even the most skillful of closing arguments — even one befitting Clarence Darrow — would not have created a reasonable probability of a different outcome in this case. Similarly, in light of Spisak’s conduct before the jury and the gravity of the aggravating circumstances of the offense, the instructional error was also harmless because it did not have a substantial and injurious effect on this record, Brecht v. Abrahamson, 507 U. S. 619, 623 (1993).
SCOTUS hearing challenge to federal sex offender civil commitment statute today
This morning, the Supreme Court will hear oral argument in US v. Comstock (08-1224), a case in which the Fourth Circuit had found constitutionally problematic the federal sex offender civil commitment statute. There are effective previews of the case worth checking out at SCOTUSblog and Sex Crimes and in links from How Appealing.
I look forward to reading the Comstock transcript later today to see if most of the Justices frame this case as one about sex offenders or one about federalism. I generally think federalism concerns ought to be playing a bigger role in lots of criminal justice contexts, and I am eager to see if any of the current Justices may share that instinct.
January 11, 2010
"Goodbye to Willie Horton"The title of this post is the headline of this effective new op-ed from Margaret Colgate Love appearing in today's National Law Journal. The piece's subheading provides a sense of its themes: "Mike Huckabee effectively defended his Maurice Clemmons commutation — a good sign for overdue criminal justice reforms." Here is an excerpt from the close of the piece:
Of greater concern than Huckabee's political career are the implications of the Clemmons case for long-overdue criminal justice reforms and for the nascent revival of pardoning by a few courageous governors. The Seattle tragedy would be compounded if it were allowed to derail pragmatic proposals to reduce prison terms for nonviolent offenders, to increase the availability of drug and mental health treatment in and out of prison and to facilitate prisoner re-entry. It would be equally unfortunate if fear of forgiving sidelined pardon as a tool of law reform for another generation.
If the pardon power has not always been used responsibly, nothing good can come from refusing to use it at all. Lest predictions of a new freeze on pardoning become a self-fulfilling prophesy, we should be thinking about how to encourage our elected officials to approach their constitutional duties with a renewed sense of purpose. The governors of Illinois, Michigan and Ohio (all Democrats) are setting an example in their responsible pardoning that other chief executives would do well to emulate.
There are hopeful early signs that Maurice Clemmons will not become another Willie Horton, either for Mike Huckabee or for the rest of us. I t will indeed be cause for celebration if that spell is at last broken.
Some effective follow-up commentary comes from Pardon Power here, in a post titled "No More Horton, Please. Thank You," and from Grits for Breakfast here, in a post titled "Public tired of Willie Horton? Whither 21st century clemency?"
Medicial marijuana on the verge of becoming (barely) legal in New Jersey
This local story, which is headlined "N.J. Assembly approves bill legalizing medical marijuana," report that New Jersey is soon to become the first state in its region to authorize marijuana use for medical reasons. Looks like I picked a good time to be visiting the tri-state area and to start getting tension headaches. In all seriousness, as the local story details, the bill making its way through the New Jersey legislature puts some significant restrictions on medical marijuana usage:
The New Jersey Assembly today approved a bill legalizing medical marijuana by a vote of 48-14.
Before the vote, Assemblyman Reed Gusciora (D-Mercer), a bill sponsor, said he believes the legislation will satisfy Gov.-elect Chris Christie, who expressed concerns about the drug's availability under the proposal, and serve as a model for other states. "This will be the strictest medical marijuana law in the nation," he said. "We have a good bill that will be very strict and will not decriminalize marijuana, but will allow doctors to prescribe the best treatment for their patients."
Roseanne Scotti, director of Drug Policy Alliance New Jersey, said the measure would make the state medical marijuana law the only one in the nation to ban home growing of the plant. The original bill allowed up to six plants grown at home. Despite the compromise, she added that the more restrictive legislation is at least a step toward getting medical relief for patients.
"There will be some patients who will be able to get some relief," she said. "We think once the program's up and running and people see that there aren't problems, we'll be able to go back and get in some more of our patients."
I suppose only time will tell if New Jersey starts to really live up to its nickname as the Garden State.
Some recent related posts:
- "Medical Marijuana Muddle"
- AMA changes its position to be more open to medical marijuana
- "Attorney General Announces Formal Medical Marijuana Guidelines"
- "U.S. Support for Legalizing Marijuana Reaches New High"
- A potent pitch for decriminalizing marijuana
- Republican governor signals openness to legalizing marijuana
- "Marijuana Nation: The New War Over Weed"
- More calls for an end to the drug war and legalization of marijuana
- New poll has majority saying alcohol is more dangerous than marijuana
Eleventh Circuit rejects Second Amendment challenge to federal conviction for misdemeanant firearm possession
The Eleventh Circuit today in US v. White, No. 08-16010 (11th Cir. Jan. 11, 2010) (available here), rejects a defendant's claim that Heller creates constitutional problems for the federal crime of gun possession by a domestic violence misdemeanant. Here is part of the legal fancy footwork used by the Eleventh Circuit to get to its desired outcome:
We are called upon to decide whether the statutory prohibition against the possession of firearms by persons convicted of the misdemeanor crime of domestic violence, § 922(g)(9), warrants inclusion on Heller’s list of presumptively lawful longstanding prohibitions. As the Supreme Court recently noted, § 922(g)(9) was passed in 1996 in response to Congress’s concern that “existing felon-in-possession laws were not keeping firearms out of the hands of domestic abusers, because ‘many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies.’” Hayes, 129 S. Ct. at 1087 (quoting 142 Cong. Rec. 22985 (1996) (statement of Sen. Lautenberg)). Section 922(g)(9) was designed to “‘close this dangerous loophole.’” Id. By way of example, the federal ban on felons-in-possession in § 922(g)(1) — a statute characterized in the Heller dictum as a presumptively lawful longstanding prohibition — does not distinguish between the violent and non-violent offender. Thus, both an armed robber and tax evader lose their right to bear arms on conviction under § 922(g)(1). In contrast, a person convicted under § 922(g)(9) must have first acted violently toward a family member or domestic partner, a predicate demonstrated by his conviction for a misdemeanor crime of violence. Thus, although passed relatively recently, § 922(g)(9) addresses the thorny problem of domestic violence, a problem Congress recognized was not remedied by “longstanding” felon-in-possession laws. We see no reason to exclude § 922(g)(9) from the list of longstanding prohibitions on which Heller does not cast doubt....
We now explicitly hold that § 922(g)(9) is a presumptively lawful “longstanding prohibition on the possession of firearms.” Heller, 128 S. Ct. at 2816-17. Given that Heller does not cast doubt on the constitutionality of § 922(g)(9), we affirm White’s conviction.
Law students and the revisers of legal dictionaries should be sure to take note that, at least in the Eleventh Circuit, even a gun possession ban that was "passed relatively recently" apparently can and does come within the definition of a "longstanding prohibition."
A few related Second Amendment posts:
- SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
- Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
- The lack of originalist justification for excluding felons from the Second Amendment
- Assailing the unjustified Second Amendment limits in Heller
- What if no lower court judges participate in a "Second Amendment Revolution"?
- Has there been a single pro-gun-rights rulings in lower courts since Heller?
UPDATE: Eugene Volokh questions the Eleventh Circuit's efforts in White in this new post at The Volokh Conspiracy.
Third Circuit rejects internet ban as condition of supervised release for "lifelong sexual predator"
The Third Circuit has today issued an interesting opinion concerning supervised release conditions for a repeat sex offender. The ruling in US v. Heckman, No. 08-3844 (3d Cir. Jan. 11, 2010) (available here), gets started this way:
Arthur William Heckman was indicted and pled guilty to one count of transporting child pornography, in violation of 18 U.S.C. § 2252(a)(1). He was sentenced to 180 months’ imprisonment, followed by a lifetime term of supervised release. On appeal, Heckman challenges three “Special Conditions of Supervision” imposed by the District Court for the remainder of Heckman’s life: 1) an unconditional ban on Internet access; 2) a requirement that he participate in a mental health program; and 3) a restriction on any interaction with minors. While we affirm the mental health condition, we vacate the other challenged conditions and remand for resentencing consistent with this opinion.
At the close of the opinion, the Third Circuit panel describes the defendant as "lifelong sexual predator," but then summarizes the reason for its ruling this way:
When imposing special conditions of supervised release, it is limited to those conditions that “involve no greater deprivation of liberty than is reasonably necessary.” 18 U.S.C. § 3583(d)(2). Furthermore, the Court may not delegate to a probation officer the authority to “decide the nature or extent of the punishment imposed upon a probationer.” Pruden, 398 F.3d at 250. In vacating certain of the District Court’s special conditions in this case, we do not mean to question the need for release supervision responsive to Heckman’s specific offense and his lifetime of misdeeds. To do so, however, requires a balancing of considerations that affect not only this case, but those that follow.
SCOTUS summary reversal of Ninth Circuit sufficiency rulingThe Supreme Court this morning kicked off its new year with a rather lengthy per curiam summary reversal in McDaniel v. Brown, No. 08-559 (Jan. 11, 2010) (available here). The ruling starts this way:
In Jackson v. Virginia, 443 U. S. 307 (1979), we heldthat a state prisoner is entitled to habeas corpus relief if afederal judge finds that “upon the record evidence adducedat the trial no rational trier of fact could have found proofof guilt beyond a reasonable doubt.” Id., at 324. A Nevada jury convicted respondent of rape; the evidence presented included DNA evidence matching respondent’s DNA pro-file. Nevertheless, relying upon a report prepared by aDNA expert over 11 years after the trial, the Federal District Court applied the Jackson standard and grantedthe writ. A divided Court of Appeals affirmed. Brown v. Farwell, 525 F. 3d 787 (CA9 2008). We granted certiorarito consider whether those courts misapplied Jackson. Because the trial record includes both the DNA evidence and other convincing evidence of guilt, we conclude thatthey clearly did.
Off to the Big AppleAs the Supreme Court gets back in action today, so too do most law school semesters. And this Spring, I am a visiting professor at Fordham Law School in NYC. I hope to find time to blog about a few sentencing issues specific to the Big Apple, though I doubt my work in this cyber space will be nearly as different as my work in real space over the next few month.
January 10, 2010
SCOTUS starts 2010 with lots of sentencing stories pendingThe Supreme Court is back to in action Monday, and Tony Mauro has a preview of some of the biggest 2010 story lines in this piece headlined "High Court Returns to a Busy Schedule: As the new year begins, blockbuster opinions and maybe a retirement greet Supreme Court." Here are a few of the highlights, with an emphasis on criminal justice stories:
It wasn't exactly a lost fall for the U.S. Supreme Court, but, as the justices don their robes for the first oral arguments of 2010 starting today, there is a sense that the term is just now beginning to take shape. Blockbuster opinions, riveting oral arguments and a possible retirement loom in the next six months, all promising to make the Court's first three months in session fade quickly from view....
Also being argued this cycle will be a test of the legal status of sex offenders in U.S. v. Comstock, and a follow-up to last year's sleeper decision in Melendez-Diaz v. Massachusetts, which required in-person forensic testimony to satisfy the Sixth Amendment right of defendants to confront witnesses. In the confrontation case Briscoe v. Virginia, "all eyes will be on Justice [Sonia] Sotomayor," said Roy Englert Jr. of Washington's Robbins, Russell, Englert, Orseck, Untereiner & Sauber. Sotomayor, a former prosecutor, has not ruled on the issue before.
Later this term the Court will hear cases applying the Second Amendment right to bear arms to state gun laws, testing the Alien Tort Statute and the law on "material support" for terrorists, and examining the rights of employee privacy for text messaging.
On March 1, the Court will hear Skilling v. U.S., the last in a closely watched trilogy of cases on the constitutionality of the "honest services" fraud law. "We've seen a spectacular failure of government prosecutions over the last year," Blatt said. "It will be quite a crushing blow to the government if the Court scales back or strikes altogether a tool that the government turns to time and time again for its prosecutions of high-profile public and private officials."...
And then there is the biggest imponderable of all -- the possible retirement of Justice John Paul Stevens by term's end in late June . He has acknowledged hiring only one clerk for next term, and he still seems the most likely to go, though sporadic speculation has justices ranging from Ruth Bader Ginsburg to Antonin Scalia eyeing the exit door.
Notably, we are still awaiting rulings (and even argument) in 9 of the top 10 sentencing cases to watch that I listed here back in October . The Alvarez forfeiture case went away as moot. Also, the case concerning prosecutorial immunity, Pottawattamie County v. McGhee, has gone away because of the parties' settlement. But recent cert grants in cases involving crack retroactivity proceedings and calculating good time credits and other big and small sentencing issues has only increased the SCOTUS sentencing stories to watch over the next six months.
Some local (and international) coverage of sexting issues
This morning I noticed via the news feed a number of notable stories on "sexting" and the ways in which criminal laws try to deal with this issues:
- From Kentucky here: "Bill targets youth who send 'sexts': Richards’ proposal would lessen penalty for sending sexually explicit messages"
- From Pennsylvania here: "York County DA backs sexting reform: With two proposals in Harrisburg, legislators are hopeful the law could be changed this year"
- From Canada here, "'Sexting' nude photos a concern among teens: Is it criminal behaviour or just today’s version of spin the bottle?"
The story from Kentucky nicely summarizes the diversity of legal and policy responses to this new "sexting" phenomenon:
Legislation regarding sexting was introduced in at least 11 states in 2009, with six passing the bills, according to the National Conference of State Legislatures. The bills were a mix of increased penalties, decreased penalties and the creation of educational programs about the dangers of sexting....
The juvenile court system in Warren County has had an increasingly difficult time in deciding how to deal with sexting cases. “(They) are struggling how to handle it because it’s such a sensitive issue,” Warren County Attorney Amy Milliken said.
Effective discussion of new (version of old) thinking about deterrenceThis morning's New York Times magazine has this effective piece by Jeff Rosen titled "Prisoners of Parole." The full piece is a must read, and here is a snippet from the start and end of the piece:
Classical deterrence theory has long held that the threat of a mild punishment imposed reliably and immediately has a much greater deterrent effect than the threat of a severe punishment that is delayed and uncertain. Recent work in behavioral economics has helped to explain this phenomenon: people are more sensitive to the immediate than the slightly deferred future and focus more on how likely an outcome is than how bad it is. In the course of implementing HOPE, [Hawaii state Judge Steven] Alm discovered another reason why the strategy works: people are most likely to obey the law when they’re subject to punishments they perceive as legitimate, fair and consistent, rather than arbitrary and capricious. “When the system isn’t consistent and predictable, when people are punished randomly, they think, My probation officer doesn’t like me, or, Someone’s prejudiced against me,” Alm told me, “rather than seeing that everyone who breaks a rule is treated equally, in precisely the same way.”...
[T]he judges and scholars developing new deterrence strategies are changing the way we think about parole, probation, gang violence and drug markets. But the strategies also present a rare opportunity to persuade the nation’s policymakers that the most urgent case for prison reform is not only economic but also moral and practical. Yes, it’s an outrage that the United States locks up citizens for so long with such uncertain effect; but it’s also self-defeating, because long sentences give rise to a crisis of legitimacy that can lead to more crime, not less.
A crisis of legitimacy may sound like a huge, perhaps intractable problem, but the tantalizing promise of the new deterrence thinking is that the crisis can actually be solved, practical step by practical step. The relative simplicity of the solutions, it turns out, is at the core of their radical potential.