May 29, 2010
Notable reactions from notable officials to the new Holder memo for federal prosecutorsThis new post at The BLT, which is headlined "Holder Memo Calls for Flexibility in Charging, Sentencing," reports on the new memorandum from Attorney General Holder to all federal prosecutors concerning "Department Policy on Charging and Sentencing" which replaces older "Ashcroft" and "Comey" memos concerning how federal prosecutors are supposed to make basic charging, plea bargaining and sentencing decisions (basics here). In addition to describing the memo (and the testimony from DOJ earlier this week at the Sentencing Commission's public hearing (basics here)), this post has these notable quotes from in-the-know folks about the memo's import:
Sentencing Commission Vice Chairman William Carr Jr. said the Holder memo “clearly” gives more flexibility to assistant U.S. attorneys. In particular, Carr, a former federal prosecutor in Pennsylvania who retired in 2004, said the new guidance suggests there will be more flexibility to not argue for mandatory-minimum sentences....
Senate Judiciary Chairman Patrick Leahy (D-Vt.) released this statement Thursday afternoon on the Holder memo: “With this new policy, Attorney General Holder has taken a further step toward restoring the Justice Department’s commitment to enforcing the law aggressively, effectively, and fairly. I applaud Attorney General Holder for his forward-thinking and common-sense update to the Justice Department’s policies on charging criminal cases, making plea deals, and seeking sentences. This is a marked change in the policies implemented by the Bush Justice Department. By emphasizing both the importance of consistency and the need to carefully consider the specific facts and circumstances of each case, Attorney General Holder ensures that the Department will strive to reach the most fair and appropriate result in each case. His new policy gives prosecutors the flexibility they need to secure important plea deals and charge cases in the way best calculated to obtain convictions.”
Some recent related posts:
- Attorney General Holder issues new DOJ policy guidance on charging and sentencing practices
- Nuanced and astute (and vague) testimony from DOJ at Sentencing Commission hearing on mandatory minimums
May 28, 2010
Going back, going back...
Among the many reasons I have been pleased with the last thee Supreme Court nominees is the interesting common fact that they all graduated from Princeton University, which just happens to all be my alma mater. Indeed, I am very soon to be going back to Old Nassau for a long weekend of festivities. Though I hope to be on-line every so often, blogging will likely be light until Tuesday.
I have the honor to be on an Alumni-Faculty forum panel on the topic of "Civil Liberties in the Obama Administration" taking place starting at 10:30am on Saturday, May 29 in McCosh 28 on the Princeton University campus. I plan at that forum to continue complaining about President Obama's failure to make any use of his historic clemency powers and to lament more generally the very little amount of "hope and change" that the Obama Administration has so far brought to modern federal criminal justice system.
Rumor has it that Mrs. Michelle Obama, who this year is due to celebrate her 25th reunion from Princeton University, is not making it up to New Jersey to join in the traditional Princeton reunion festivities. Too bad, as I was eager to see what it would be like to see members of the US Secret Service marching in the (in)famous P-rade.
Some coverage of yesterday's US Sentencing Commission hearing
Through blog reports and press releases, one can cobble together a basic sense of the basic feel of the testimony and comments yesterday at the US Sentencing Commission's public hearing about mandatory minimum sentencing statutes and federal sentencing policy (background here; early report here). Here are some links:
From Main Justice here, "DOJ: Little Support for Federal Sentencing Overhaul"
From a press release here, "ACLU Advocates for Abolition of Mandatory Minimums Before US Sentencing Commission"
From a press release here, "Constitution Project Committee Member Testifies Before the U.S. Sentencing Commission on Mandatory Minimums"
From a press release here, "FAMM Challenges Sentencing Commission to Continue Leadership Role in Fight Against Mandatory Minimums"
Interesting revision of data on juve LWOPs in the federal systemThe Blog of Legal Times his this new post reporting that through "an unusual filing with the Supreme Court this week, Acting Solicitor General Neal Katyal said some of the information that the Court used in its recent Graham v. Florida decision, supplied to the Court by a federal official without the SG's knowledge, was inaccurate." Here is more:
Katyal's letter focused on the information submitted by Bureau of Prisons in its letter, "of which this office became aware only upon the release of the Court's decision," and which was "submitted in response to a confidential request from Court personnel."
Katyal said that because of "time constraints," the number of six federal prisoners was arrived at by consulting "automated inmate records," rather than presentence reports and other documents. Since the decision came down, Katyal said a "careful review" of presentence reports was conducted, leading to the conclusion that "it appears that none of the six inmates listed ... is serving a life sentence based solely on a nonhomicide crime completed before the age of 18." Katyal explained that all of the inmates cited by the Bureau of Prisons were convicted for criminal conduct that continued after they reached 18, or involved killing someone.
Apart from the unusual nature of the Court's own data-gathering project, the letter is also noteworthy as it may relate to Solicitor General Elena Kagan's nomination to the Supreme Court. Ordinarily in state cases like Graham v. Florida, the federal government weighs in, if the outcome could affect federal law or policy. The government stayed out of the Florida case, however, in spite of the fact that federal law does permit sentencing of juveniles as young as 13 to life without parole, as the Court noted. If six actual federal inmates were affected by the Florida case, it might have made the SG's decision to stay out of the case more notable.
Over at Crime & Consequences, Kent has this effective post, "Kagan, Graham, and ex parte research," reporting on these developments and closing with these astute thoughts:
Nobody comes out looking good in this. The Court should know better than to engage in ex parte fact gathering and using the results as a basis for making constitutional law. The SG should have known that at least some federal judgments were in jeopardy from an adverse ruling and defended the federal law accordingly.
May 27, 2010
Fourth Circuit rules that Ex Post Facto Clause still limits application of new advisory guidelinesIn an interesting and thoughtful new split ruling, the majority of a panel of the Fourth Circuit has today ruled in US v. Lewis, No. 09-4343 (4th Cir. March 27, 2010) (available here), that the Ex Post Facto Clause still limits the authority of district courts to rely on newer, more severe, now-advisory federal sentencing guidelines. Here is how this important new opinion begins:
Derrick E. Lewis appeals from his conviction and sentence in the Eastern District of Virginia for unlawful possession of a firearm by a convicted felon, in contravention of 18 U.S.C. § 922(g)(1). After Lewis committed the offense of conviction, but before he was sentenced, the Sentencing Guidelines were amended to include a higher base offense level for the offense, resulting in an advisory Guidelines range that was nearly double that calculated under the Guidelines in effect at the time of his offense. After determining that application of the amended 2008 Guidelines would contravene the Ex Post Facto Clause of the Constitution, the district court applied the 2005 Guidelines in effect at the time of the offense of conviction. See United States v. Lewis, 603 F. Supp. 2d 874 (E.D. Va. 2009). The Government has appealed from the court’s Ex Post Facto Clause ruling. Lewis has cross-appealed, contending that the court erred in denying his motion to suppress the firearm underlying his conviction. As explained below, we reject both contentions and affirm.
And here is how the Lewis opinion frames the debate on this issue and explains its basic ruling:
In 2005, however, the Booker decision of the Supreme Court rendered the Guidelines advisory. See United States v. Booker, 543 U.S. 220, 245 (2005). Post-Booker, the courts of appeals have disagreed on whether the Ex Post Facto Clause prohibits a sentencing court from retroactively applying severity-enhancing Guidelines amendments. In United States v. Turner, the D.C. Circuit recognized this disagreement and ruled that such retroactive application contravenes the Ex Post Facto Clause. See 548 F.3d 1094, 1100 (D.C. Cir. 2008). Two years earlier, the Seventh Circuit had concluded, in United States v. Demaree, that the Ex Post Facto Clause does not bar retroactive application of severity-increasing Guidelines amendments. See459 F.3d 791, 795 (7th Cir. 2006). Although we have previously recognized this circuit split, we have not had occasion to rule on the issue. See, e.g., United States v. Rooks, 596 F.3d 204, 214 n.11 (4th Cir. 2010).
Because the Guidelines represent the crucial "starting point," as well as the "initial benchmark," for the regimented sentencing process employed by the sentencing courts within this Circuit, see Gall v. United States, 552 U.S. 38, 49 (2007), an increased advisory Guidelines range poses a significant risk that a defendant will be subject to increased punishment. Accordingly, as explained below, we join the D.C. Circuit in concluding — as did the district court — that the retroactive application of severity-enhancing Guidelines amendments contravenes the Ex Post Facto Clause. See Turner, 548 F.3d at 1100.
Intriguingly, Chief District Judge Joseph Goodwin dissents from this part of the panel's ruling, and his thoughtful dissenting opinion starts this way:
Although I agree with my colleagues on the motion to suppress issue, I cannot join the ex post facto aspect of the majority opinion. The majority holds that the retroactive application of a revised Sentencing Guideline range that results in a higher recommended sentence violates the Constitution’s ex post facto prohibition. In so doing, the majority ignores the reality that the Guidelines lack legal force. It also creates a constitutional contradiction by ignoring the Sixth Amendment implications of treating the Guidelines as anything more than advisory. Therefore, I respectfully dissent.
If the government decides to appeal this ruling to the Supreme Court (and I am not sure that it will, at least not until after perhaps trying to take this matter en banc), I think a cert grant would be pretty likely.
Two notable federal sentencing pieces in the latest BC Law Review
Thanks to this post at Concurring Opinions, I see that the May 2010 issue of the Boston College Law Review has a student note and an article by a federal defender that should be of special interest for modern federal sentencing fans. Here are the titles and links to these two pieces:
- Alexandra W. Reimelt, An Unjust Bargain: Plea Bargains and Waiver of the Right to Appeal, 51 B.C. L. Rev. 871 (2010) [PDF]
- Doug Keller, Why the Prior Conviction Sentencing Enhancements in Illegal Re-Entry Cases Are Unjust and Unjustified (and Unreasonable Too), 51 B.C. L. Rev. 719 (2010) [PDF]
Nuanced and astute (and vague) testimony from DOJ at Sentencing Commission hearing on mandatory minimums
As detailed in this prior post, the United States Sentencing Commission today is conducting a public hearing in Washington DC "to gather testimony from invited witnesses regarding the issue of statutory mandatory minimum penalties in federal sentencing." The agenda and a list of invited witnesses scheduled to testify today at the USSC can be found here, and this morning the bulk of the written testimony submitted by these witnesses are now linked through this agenda page.
Providing a "View from the Executive Branch" (namely the views of the current US Department of Justice) is Sally Quillian Yates, US Attorney for the Northern District of Georgia. Her submitted written testimony is available at this link, and it is today's must-read for anyone and everyone still following post-Booker sentencing debates and curious about how the Obama Justice Department is staking out ground in these debates. Just about every paragraph of the DOJ testimony coming from USA Sally Gates is interesting and important, and here are a few extended snippets that really caught my attention:
My testimony today is offered in the context of an ongoing study at the Department of Justice that began soon after Attorney General Holder took office.... The Sentencing and Corrections Working Group is conducting the most comprehensive review of federal sentencing and corrections in the Executive Branch since at least the passage of the Sentencing Reform Act....
The results of the Working Group are guiding the Department’s policies regarding sentencing. To begin, the Administration has been working hard with Members of Congress to see the enactment this year of legislation to address the current disparity in sentencing between crack and powder cocaine offenses, including the existing 100-to-1 quantity ratio. In addition, last week, the Attorney General issued a new Department policy on charging and sentencing in a memorandum to all federal prosecutors. This new policy recognizes the reality of post-Booker sentencing and the need for an appropriate balance of consistency and flexibility to maximize the crime-fighting impact of federal law enforcement. We are also working on new ways to examine racial and ethnic disparities in sentencing beyond federal cocaine sentencing policy to determine if disparities are the result of race-neutral application of statutes and charging decisions and otherwise justified; and we are working on initiatives to promote more effective prisoner reentry. These and other measures will be announced shortly....
The federal prison population, which was about 25,000 when the Sentencing Reform Act was enacted into law, is now over 210,000. And it continues to grow. Much of that growth is the result of long mandatory sentences for drug trafficking offenders. While these and other mandatory sentences have been important factors in bringing down crime rates, we also believe there are real and significant excesses in terms of the imprisonment meted out for some offenders under existing mandatory sentencing laws, especially for some non-violent offenders. Moreover, the Federal Bureau of Prisons is now significantly overcapacity, which has real and detrimental consequences for the safety of prisoners and guards, effective prisoner reentry, and ultimately, public safety.
At the same time, since the Supreme Court’s decision in Booker, Sentencing Commission research and data – and the experience of our prosecutors – have shown increasing disparities in sentencing. We are concerned by, and continue to evaluate, research and data that indicate sentencing practices (particularly those resulting in lengthier incarcerations) are correlated with the demographics of offenders. Further, with more and more sentences becoming unhinged from the sentencing guidelines, undue leniency has become more common for certain offenders convicted of certain crime types. For example, for some white collar offenses – including high loss white collar offenses – and some child exploitation offenses, sentences have become increasingly inconsistent. The federal sentencing guidelines, which were originally intended to carry the force of law, no longer do. Thus, for these offenses for which there are no mandatory minimums, sentencing decisions have become largely unconstrained as a matter of law, except for the applicable statutory maximum penalty. Predictably, this has led to greater variation in sentencing. This in turn undermines the goals of sentencing to treat like offenders alike, eliminate unwarranted disparities in sentencing, and promote deterrence through predictability in sentencing.
Our study has led us to the conclusion that in an era of advisory guidelines, mandatory minimum sentencing statutes remain important to promote the goals of sentencing and public safety. At the same time, we recognize that some reforms of existing mandatory minimum sentencing statutes are needed and that consideration of some new modest mandatory minimum sentencing statutes is appropriate....
In the past, the Sentencing Commission has taken the position that mandatory minimum sentencing statutes were not needed, in part because the sentencing guidelines were themselves mandatory. This position was also put forward for many years by advocacy groups such as the American Bar Association and Families Against Mandatory Minimums as well as by federal public defenders. However, in our review of federal sentencing over the last year, we have found little support from these groups, in Congress, or the Federal Judiciary for reinstating the presumptive nature of the sentencing guidelines. In the absence of such a change to the federal sentencing structure that might return presumptive sentencing guidelines (an overhaul that we are not now recommending), we believe that mandatory minimum sentencing statutes must go hand in hand with advisory sentencing guidelines.
May 27, 2010 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack
Effective new commentary on the Supreme Court's work in GrahamOver at Findlaw, Professor Sherry Colb has this new column on the Supreme Court's recent Eighth Amendment work in Graham. The piece is titled simply, "High Court Rejects Life Without Parole for All Juvenile, Non-Homicide Crimes," and here is how it starts and ends:
Last week, in Graham v. Florida, the U.S. Supreme Court held that the Eighth Amendment's ban on cruel and unusual punishments bars the sentencing of juvenile offenders to life imprisonment without the possibility of parole ("LWOP") for non-homicide offenses. As I noted in an earlier column, such a decision stands in considerable tension with the Court's existing precedents. Accordingly, though the majority opinion does not explicitly depart from prior rulings, there is nonetheless reason to expect that the Court may now be more willing to entertain Eighth Amendment challenges to lengthy prison sentences than it has been in the past....
Just as imprisonment is different from death, then, there is much to distinguish different prison sentences from one another. The Supreme Court has now, laudably, recognized that LWOP can represent an excessively harsh sentence for at least one class of offenders and offenses. Its decision in Graham v. Florida thus provides hope that the harshness of prison sentences — and their relation, if any, to the seriousness of people's crimes — can once again become a fit subject of Eighth Amendment scrutiny in the U.S. Supreme Court.
Some recent related posts with my own Graham analysis:
- Doesn't the logic and language of Graham put juve LWOP for "lesser" homicides on thin ice?
- Strong arguments for second-look sentencing reforms from SCOTUS concurrences
- Hail to the Chief and the fascinating future of Eighth Amendment jurisprudence
- Graham crackers: reflecting on Eighth Amendment rules versus standard and subconstitutional echoes
- Originalist Graham crackers: would the Eighth Amendment ratifiers really be indifferent about LWOP?
Great coverage of sentencing issues at FAMM's new blog, SentenceSpeak
I am pleased to seem that the folks at Families Against Mandatory Minimums have their new blog, SentenceSpeak, up and running and it looks like it is on a steady path to being a daily must-read for all sentencing fans. As described to me by one of the progenitors, FAMM's goal "is to create a forum where we can talk about mandatory minimums and other sentencing policies and invite others to participate in that discussion ... and to reach out to people who may know nothing about sentencing, or who may be 'unlikely allies' in the sentencing reform effort."
Here are links to some of the interesting early posts on this new blog:
- Where's the Clemency, Mr. President?
- Stupid is as California Does
- Court Rejects Prosecutors End Run Around Jury
- Sentencing Nerds Unite!
"Defendant's Gender Affects Length of Sentence"
A helpful reader forwarded me this posting from ScienceDaily, which has a report with a headline that serves as the title of this post. The piece reports on research from Sweden, and here are the basics:
A study of 300 simulated court cases shows that experienced judges, lay assessors, prosecutors, police officers, and lawyers make decisions and convict defendants differently depending on whether they are men or women and what the defendant looks like. Eyewitnesses to crimes are also affected by these factors. This is especially pronounced if there is an extended period of time separating the crime and the testimony. This is what Angela S. Ahola, Department of Psychology, Stockholm University, shows in her dissertation.
In her study of simulated short criminal cases, Angela S. Ahola shows that gender and appearance affect our judgments of personality, occupation, morals, and reliability and create a frame of reference for our behavior. Among other things, it was shown that judges and lay assessors both assessed and judged accused individuals of the same gender as themselves more severely than the opposite gender. On the other hand, prosecutors, lawyers, police officers, and law students, regardless of their own gender, evaluated male defendants more harshly than women defendants. What's more, among female members of this category, that is, those without a convicting role in the legal process, differences were seen in their evaluations depending on the looks of the accused.
Interesting commentary on the state of debate over SCOTUS nominee Elena KaganDahlia Lithwick has this interesting and amusing essay up at Slate, headlined "The Kagan Kids: Why the younger generation doesn't care about the debate over the latest Supreme Court nominee." Here are excerpts:
As the Elena Kagan Bore'Em to Death Tour rolls on into Memorial Day weekend, it's clear that almost no narrative about her is going to stick. A CBS poll released today shows that almost three weeks after her nomination for the Supreme Court, 72 percent of Americans have yet to form an opinion on her. And since she's all but disappeared from the front pages, it's not clear how we're going to get to know her better before the confirmation hearings, which are scheduled for the end of June. The meta-narrative about Kagan seems to be that there is no meta-narrative about Kagan. This doubtless makes the White House very happy....
Every time I've been on a radio show on the subject of Kagan's wardrobe/softball playing/marital status, some twentysomething caller has taken me to school. It turns out, they invariably tell me, that twentysomethings just don't care if their Supreme Court justices are black, white, Jewish, Protestant, gay, or straight. Every day someone under the age of 30 either sends me an e-mail or tweet or a Facebook post reminding me that those of us making a huge big fat media deal about the nominee's race, religion, sexual preferences or marital status are quickly becoming cultural dinosaurs.
Young people reading Robin Givhan's article on Kagan's scandalously open knees think they're reading something hilarious from their grandparents' stack of dating magazines from the 1950s. When they hear us yelping about racial diversity at the court, they think about the fact that their classrooms are already incredibly diverse and their Facebook friendships span continents. When they hear us shrieking over women's softball, they shake their Title IX heads and figure we're just idiots for thinking straight women don't play sports. And when they hear us whispering behind our hands about whether someone is gay, most of them tell me they think we're just freaking idiots. Just as they embody Barack Obama's post-racial America, they identify almost completely with Kagan's post-gender America — in which womanhood simply isn't defined by skirts, babies, or boyfriends anymore.
Never has my own obsolescence thrilled me more. As those of us in the media continue to relitigate the 1960s — from the Civil Rights Act to Vietnam — the people who will live through Kagan's decades-long tenure at the court have moved on. The debate over identity politics will take on new meaning over the next few decades, I'm sure. But it probably won't mean bickering about Kagan's color, race, or gender. What I hear on these call-in shows is pretty much what recent polling of the millenials reflects: They care passionately about the economy, and they are ambivalent about the government. They are far more tolerant than their parents about race and sexual choice; they aren't so in love with the idea of marriage; and religion just isn't as big an issue as we think it is. And they seem to be telling me, over and over again, that when it comes to a Supreme Court nomination, they value competence and intelligence over the check-the-box identity politics.
Ohio legislature developing special teen "sexting" criminal lawMy local Columbus Dispatch reports here on an interesting state legislative effort to create a special criminal law to deal with the special problem of teen sexting. This article is headlined "Ohio House backs making teen 'sexting' crime: Bill rules out harsh penalties because it’s only for minors," and here are the interesting details:
Ohio House yesterday passed a bill that would punish teenagers for "sexting" but ensure that they do not face harsh punishment or be put on the sex-offender registry normally associated with transmitting nude pictures of minors.
"This is a growing problem that must be addressed in the most responsible and effective way," said sponsor Connie Pillich, D-Montgomery, who introduced the bill about a year after a House Republican pushed a similar measure. "Is this behavior bad? Yes. Does it warrant a life sentence as a sex offender? No."
As technology has made it increasingly easy to take pictures and transmit them, studies say a growing number of teenagers are sending nude pictures of themselves or others in what is commonly known as sexting.
But the problem for law-enforcement officers and prosecutors is how to treat these situations under existing law, which is designed to harshly punish those who transmit such pictures and was largely written long before sexting was even possible.
Pillich noted cases in Pennsylvania and Ohio in which teenage girls faced serious child-pornography charges for sending nude photos of themselves. "One of the central tenets of our juvenile-justice system is that children are to be treated differently than adults," Pillich said.
House Bill 473 creates the new offense of sexting and applies it only to minors, classifying the sending of a nude photo of oneself as an unruly act and the sending of a photo of another as a misdemeanor.
The bill passed 86-12. Some members were concerned that the Ohio Prosecuting Attorneys Association opposed the measure. Prosecutors argued that some offenses with potentially devastating consequences are being improperly reduced, sending the wrong message about the seriousness of the offenses.
"This is a serious matter, and I think if we're really concerned about the safety of these young people and properly handling this serious offense, we should listen to what prosecutors say ... and take it back and redo it again," said Rep. Danny Bubp, R-West Union.
Some related "sexting" posts:
- The many fascinating legal and social issues swirling around "sexting"
- Should sexting lead to sex offender registration?
- Federal district judge enjoins controversial state sexting prosecution
- Third Circuit upholds bar on sexting prosecution threatened by state DA
- Ohio ACLU writes to local lawmakers and prosecutors about sexting
- "Ohio judge sentences 2 teens for sexting"
- Vermont legislature considering "sexting exception" to child porn prohibitions
- Pennsylvania town struggling with a "rash of sexting incidents"
May 26, 2010
Attorney General Holder issues new DOJ policy guidance on charging and sentencing practices
Thanks to a helpful reader, I just received a copy of what appears to be an important new memorandum from Attorney General Holder to all federal prosecutors concerning "Department Policy on Charging and Sentencing." This new three-page "Holder memo" (which can be downloaded below) expressly states at the end that it replaces older "Ashcroft" and "Comey" memos concerning how federal prosecutors are supposed to make basic charging, plea bargaining and sentencing decisions.
Distilled to its essence, it seems that instead of a general policy that federal prosecutors "must" charge and pursue the most serious offense and must advocate a within-guideline sentence, this new Holder memo now asserts that federal prosecutors "ordinarily should" charge and pursue the most serious offense and "should generally" continue to advocate a within-guideline sentence.
In other words, in appears that this new Holder memo is a fairly subtle change in policy, but that subtle change may still prove to be very consequential in practice. Indeed, I would be grateful to hear in the comments from federal sentencing practitioners whether they think this new Holder memo is just a very small change or a really big deal.
Interesting discussion of the rule of lenity's application to advisory guidelinesA helpful reader alerted me to a very interesting concurring opinion authored by Judge Pryor (joined by Judge Fay) in the Eleventh Circuit's decision in US v. Wright, No. 09-12685 (11th Cir. May 26, 2010) (available here). The decision talks through the interplay of the rule of lenity and guideline application. Here is how Judge Pyror's opinion gets started:
I concur fully in the majority opinion. I agree that we have no occasion to apply the rule of lenity in this appeal because section 4A1.2(k)(1) of the Sentencing Guidelines is unambiguous, but I write separately to explain why I doubt the rule of lenity should play any role in our interpretation of advisory Sentencing Guidelines.
Eighth Circuit affirms big real property forfeiture for child porn offenseI wonder if any of the usual suspects who get riled up about property rights will have any complaints about the intriguing forfeiture ruling from the Eighth Circuit today in US v. Hull, No. 08-4015 (8th Cir. May 26, 2010) (available here). Here is how the decision in Hull starts:
Larry Richard Hull was convicted of two counts of distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(1). The district court ordered forfeiture of Hull’s real property, which consisted of approximately nineteen acres in rural Iowa, pursuant to 18 U.S.C. § 2253(a)(3). Hull appeals the forfeiture order, contending that the evidence was insufficient to support forfeiture of the property under § 2253(a)(3). He also asserts that the district court erred by failing to make adequate findings of fact to determine whether forfeiture was a grossly disproportionate penalty in violation of the Excessive Fines Clause of the Eighth Amendment. We affirm.
"Two Kinds of Retributivism"The title of this post is the title of this new piece on SSRN from Mitchell Berman (no relation). Here is the abstract:
This essay, written as a contribution to a forthcoming volume on the philosophical foundations of the criminal law, challenges the longstanding dominant framework for classifying justifications for criminal punishment. The familiar binary distinction between consequentialism and retributivism is no longer most perspicuous, I argue, because many recognizably retributivist theories of punishment employ a consequentialist justificatory structure. However, because not all do, it might prove most illuminating to carve the retributivist field in two – distinguishing what we might term “consequentialist retributivism” (perhaps better labeled “instrumentalist retributivism”) from “non-consequentialist retributivism” (“non-instrumentalist retributivism”).
Whether or not it is ultimately persuasive, consequentialist retributivism is a fairly straightforward theory of, or justification for, punishment. Roughly, it rests on the claims that the suffering of wrongdoers is good or valuable in itself and that the state has reason (of some weight) to bring about this good or valuable state of affairs. Non-consequentialist retributivism is more difficult to formulate and defend. So this essay critically assesses some of the more promising routes to its vindication. It argues that the split between consequentialist and non-consequentialist retributivism reduces most naturally to a disagreement regarding precisely what it is that wrongdoers deserve – what is (to coin a term) wrongdoers’ “desert object.”
Philosophers of the criminal law – retributivists and anti-retributivists alike – commonly say that, on the retributivist account, wrongdoers deserve “to suffer” or “to be punished.” Very rarely do theorists treat these two formulations as meaningfully different, let alone do they explain why one formulation of the retributivist desert object is more accurate than the other, or why some third formulation is preferable to both. But if, as is commonly contended, desert is central to retributivism (in both consequentialist and non-consequentialist guises), efforts to articulate and defend wrongdoers’ desert object in careful and precise terms might make it easier for persons with retributivist sympathies or sensibilities to choose intelligently between the two kinds of retributivism.
Some police chiefs expressing concern about crime impact of Arizona's new immigration lawThis new Washington Post piece, which is headlined "Arizona immigration law will boost crime in U.S. cities, police chiefs say," provides a new criminal justice spin to the robust political and social debate following Arizona's recent adoption of new rules for dealing with illegal immigration. Here are excerpts from the Post piece:
Arizona's new crackdown on illegal immigration will increase crime in U.S. cities, not reduce it, by driving a wedge between police and immigrant communities, police chiefs from several of the state's and the nation's largest cities said Tuesday.
The new Arizona law will intimidate crime victims and witnesses who are illegal immigrants and divert police from investigating more serious crimes, chiefs from Los Angeles, Houston and Philadelphia said. They will join their counterparts from Montgomery County and a half-dozen other U.S. cities in meeting Attorney General Eric H. Holder Jr. on Wednesday morning to discuss the measure.
"This is not a law that increases public safety. This is a bill that makes it much harder for us to do our jobs," Los Angeles Police Chief Charlie Beck said. "Crime will go up if this becomes law in Arizona or in any other state."
The delegation, organized by the Police Executive Research Forum, an independent think tank in Washington, comes as 15 states are considering their own versions of the Arizona law. That statute defines illegal immigration as criminal trespassing and requires police to request documents of anyone they stop and have a "reasonable suspicion" is in the country illegally.
Several recent public opinion polls indicate that as many as 70 percent of Americans surveyed support such a police requirement....
Although the ranks of chiefs appealing to Holder included Jack Harris of Phoenix, Roberto Villaseñor of Tucson and John W. Harris of Sahuarita, Ariz., president of the Arizona Association of Chiefs of Police, law enforcement opinion in the state is deeply split.
One of the new law's most prominent backers is Maricopa County Sheriff Joe Arpaio. His suburban Phoenix county has caught 120,000 illegal immigrants under a separate federal program that deputizes state and local law enforcement agents to catch illegal immigrants under limited circumstances, mostly after they have been booked into local jails.
Pinal County Sheriff Paul Babeu, head of the Arizona Sheriff's Association, is another backer. Babeu called the police chiefs' argument "flawed from the beginning." Cooperation from illegal immigrants, particularly those coming from Mexico, is already low, he said, because they are in the United States illegally and because of law enforcement corruption in their native countries....
Unlike most police chiefs, almost all sheriffs are elected officials. However, only about 60 of the nation's 3,000-plus elected sheriffs have chosen to participate in the federal program championed by Arpaio. Meanwhile, the nation's leading police chiefs have voiced caution about such initiatives.
In 2006, the Major Cities Chiefs Association -- which represents 56 U.S. cities -- unanimously warned that putting "local police in the crosshairs" of the national immigration debate would undo the success of community policing efforts in recent decades, said San Jose Police Chief Robert L. "Rob" Davis, association president and part of the group meeting Holder.
Requiring the Los Angeles Police Department to prioritize the arrest of 400,000 illegal immigrants among the city's 4.1 million residents would "cripple us and make it impossible for us to do our jobs," Beck said.
Montgomery County Police Chief J. Thomas Manger said directing officers to spend hours investigating the immigration status of every person stopped with a suspect identification card would mean less time to catch violent criminals. "We want to focus resources on people who are committing crimes in our communities," Manger said. "If you got somebody who is gangbanging and committing armed robberies, we'll work with [federal immigration authorities] all day long to find that individual."
Prohibition on sex offenders using social media websites among new laws being considered in CaliforniaAs detailed in this new San Diego Union Tribune article, which is headlined "Bill would limit sex offenders’ Internet use: Enforcement would be difficult, critics say," the recent high-profile crimes involving sex offender John Gardner in California is prompting more tech-savvy tough-on-sex-offender legislation. Here are the details:
Sex offenders trolling the Internet for their next young victim could wind up back behind bars, even without committing a new crime. That is the goal of a measure moving through the Legislature that would prohibit paroled child molesters from using social networking sites such as MySpace or Facebook.
“Predators have left the playground and are now going to the Internet,” warned Harriet Salarno, president of Crime Victims United, an advocacy group that has endorsed the ban.
But parole agents and civil libertarians are wary, questioning the wisdom of legally suspect legislation that would rob supervisors of time better used to make home visits that can reveal evidence of contacts with children, child pornography or other behavior. “All they have to do is go to a public library and use a fake name and we’re not going to find it,” said Melinda Silva, a Sacramento parole agent and president of their statewide union.
John Albert Gardner III, sentenced this month in the murders of North County teens Chelsea King and Amber Dubois, maintained a MySpace page in violation of his parole for a previous molestation conviction. He used the name Jason the Stud and listed his home as the Playboy Mansion....
The issue has emerged in the campaign for state attorney general. Candidates have rushed to voice support of a crackdown, particularly Chris Kelly, who has taken a leave of absence from his post as Facebook’s chief privacy officer during the campaign.
Others urge caution. Even the California Sex Offender Management Board, in its recent recommendations to the governor, cited time constraints facing parole agents. “There are so many social networking sites of various types that it may be virtually impossible to enforce,” the board said in its report....
Sen. George Runner, R-Lancaster, is carrying separate legislation that would require registered sex offenders — even when they are released from parole — to submit to law enforcement all e-mail addresses, various user names and social network pages. That way, he said, social networks can use the database to purge them from sites. “We ask them for their physical address. We ought to ask them for their electronic address,” Runner said. His Senate Bill 1204 sailed through the Senate and is pending in the Assembly.
"Jesus Christ, Capital Defendant"The title of this post is the headline given to this new commentary by Professor Mark Osler now up at the Huffington Post. The full piece is a worthwhile read for anyone interested in either Jesus Christ or capital punishment, and these portions extends the piece's criminal justice insights beyond just the death penalty context:
The witnesses against Jesus conflicted and weren't credible, so the prosecutors searched for more who might tell a better story. In contemporary prosecution, this is akin to the search for defendants who will cooperate and testify credibly in exchange for a good plea deal, a process that sometimes skews justice. Have you ever wondered why that servant girl found Peter in the courtyard and asked if he knew Jesus? To a prosecutor, the answer is easy -- she had been sent to find additional witnesses to bolster the case.
Or take even one seemingly farcical part of Christ's trial, at its conclusion. We are told that the prosecutor, Caiaphus, was frustrated with these conflicting witnesses and ripped his shirt, yelling, "Crucify him!" Sadly, that is a physical manifestation of an emotion most prosecutors will feel at one time or another. There can arise within prosecutors (even within me, at times) a strong belief that the defendant is guilty and dangerous even when the evidence has failed to prove that true, leading to an indescribable frustration. It is in these moments that prosecutors most often stretch, argue unfairly, or twist facts in an effort to bend the jury's will to what the prosecutor believes fervently to be true. It is this passion that too often creates injustice in our own day, as in Christ's.
None of these echoes of Christ's journey in our modern system, of course, is in itself an overwhelming argument against the death penalty. Nor is any bit of that story more of a condemnation of capital punishment than the fact that Christ came upon a legal execution and told the executioners that they did not have the moral authority to continue the killing (in John 8, the stoning of the adultress). Still, I do think that there is something powerful in simply considering Christ as a criminal defendant. That subtle change in perspective can change worlds. No, Christ was no murderer. He was the opposite of the venal criminals who largely populate death rows. Yet, it is at Christ's invitation that we visit him when we visit those in prison, and I would imagine that there is no exception for death row. If it was God who wrote the story of Jesus as a criminal defendant, then it was God who told us that how we treat criminal defendants is important, and we need to heed that message even when it runs against our most fervent urge towards retribution and finality.
May 25, 2010
"Judicial Discretion and Sentencing Behavior: Did the Feeney Amendment Rein in District Judges?"The title of this post is the title of this new article authored by two economists, Beth Freeborn and Monica Hartmann, which appears in the June 2010 issue of the Journal of Empirical Legal Studies. Here is the abstract:
This research studies the impact of changes to judicial discretion on criminal sentencing outcomes. The 2003 Feeney Amendment restricted federal judges' ability to impose sentences outside of the Sentencing Guidelines and required appellate courts to review downward departures. Using data on all federal sentences between 1999 and 2004, we show that the amendment reduced downward departures by 5 percent. Controlling for characteristics of the crime and the offender, we find that the Amendment increased average prison sentences by about two months. There is no evidence that judges adjusted offense levels or criminal history in order to circumvent the Amendment.