June 19, 2010
In praise of the US Sentencing Commission and hopeful about federal sentencing's future
As I continue a too-long trek back from the US Sentencing Commission's big national conference in New Orleans, I wanted to do this quick post to praise the USSC's continuing efforts to enable sentencing data and the voices of judges and sentencing practitioners drive federal sentencing reform in this post-Booker world. More broadly, I wanted to explain why, at least right now, I am more hopeful about the future of federal sentencing than I have been in a long time.
My positive feelings about the US Sentencing Commission and federal sentencing's future are no doubt impacted by the benefits of spending most of my time in the ivory tower (and perhaps also a belly too full of beignets and fried seafood). On the ground, there surely remain plenty of problems and injustices in the sentencing of some (many?) of the nearly 80,000 federal defendants being sentenced each year. Nevertheless, viewed from the ivory tower, the federal sentencing system finally seems to be moving in the right direction: the chief policy-makers within and around the Sentencing Commission (as well asmost federal judges and the Department of Justice) seem soundly focused on preserving the best features, and remedying the most troublesome features, of the federal sentencing system that Booker created. Though the post-Booker world is far from perfect, there now seems to be a pretty sound case-level balance between system-wide sentencing rules and reasoned sentencing discretion and also a pretty sound commitment by all the policy makes to keep improving the system-wide sentencing rules.
Of course, the story is not all rosy in any branch of the federal government. Congress cannot get around to making even a modest change to the severe crack mandatory minimum sentencing statutes that all agree are unjust. The Sentencing Commission is yet to really go at modifying the most problematic aspects of the drug, fraud and porn possession guidelines. President Obama continues to reveal that he lacks the wisdom and courage needed to exercise his historically important clemency powers in any way. And the federal prison population continues to hit record high levels every month. Still, despite all these persistent disconcerting realities, for the first time that I can remembers, I am more hopeful and optimistic than cynical and pessimistic about the directions in which federal sentencing law and practice seem to be heading.
Especially because I fear that the great fun I had in New Orleans at the USSC conference my be giving me too rosy a view of where federal sentencing matters stand and are headed half a decade after Booker, I welcome any and all comments intended to kill my law nerd buzz.
June 18, 2010
Might Sarah Palin's sensible points about pot get Tea Party types to push for sensible drug reforms?
I have suggested to anyone who would listen that persons seriously interestes in drug sentencing reform should seriously urge folks like Sarah Palin and other tea-party-types to turn their anti-big-government sentiments toward the problems produced by big government involvement in the drug war. Consequently, I was very pleased to see this new story from CBS News today, under the headline "Sarah Palin Calls Marijuana "Minimal Problem." Here are the details:
That's right, pot smokers: You have something of an ally in Sarah Palin.
The former Alaska governor appeared on Fox Business Network last night, along with libertarian-leaning Republican Rep. Ron Paul. Paul is a longtime advocate of decriminalizing drugs at a federal level and leaving the issue to the states, something Palin would not endorse.
"If we're talking about pot, I'm not for the legalization of pot," Palin said, as Politico first noted. "I think that would just encourage especially our young people to think that it was OK to just go ahead and use it." But she went on to say that police should not focus on arresting people who use marijuana recreationally.
"I think we need to prioritize our law enforcement efforts," Palin said. "And if somebody's gonna smoke a joint in their house and not do anybody else any harm, then perhaps there are other things our cops should be looking at to engage in and try to clean up some of the other problems that we have in society."
She added that marijuana use "relatively speaking" is a "minimal problem" in the country.
Palin has admitted to smoking when it was legal for personal use in Alaska, saying she "can't...say that I never inhaled." The state recriminalized the drug in 2006.
In the Fox Business interview, Paul said the federal government should get out of the war on drugs, calling it a "useless battle."
Some related Palin and pot posts:
- Green tea party: will Glenn Beck or Sarah Palin or other professed liberty lovers support ending pot prohibition in California?
- Should sentencing fans be excited about voters "throwing the bums out" of DC?
- "Sarah Palin, Marijuana Law Reformer?"
- "Legalizing marijuana not really a dopey idea"
- Is Governor Palin a real fan of jury nullification and pot decriminalization?
- What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
- Did Sarah Palin or any others at the Tea Party Convention talk about pot prohibition or mass incarceration?
- Do "mama grizzlies" have a particular approach to crime and punishment issues?
Eleventh Circuit finds Georgia procedure for implementing Atkins unconstitutional
An Eleventh Circuit panel has a fascinating ruling today in Hill v. Schofield, No. 08-15444 (11th Cir. Jun. 18, 2010) (available here), concerning Georgia procedures for implementing the Atkins ruling prohibiting the execution of mentally retarded persons. Here is the start of the ruling:
Warren Lee Hill, Jr. appeals from the district court’s denial of his 28 U.S.C. § 2254 habeas petition in which he challenged his death sentence. The district court granted a certificate of appealability on Hill’s claim that the Georgia Supreme Court’s decision upholding Georgia’s statutory requirement that in order to be exempt from execution Hill must prove his mental retardation beyond any reasonable doubt is contrary to clearly established federal law as announced in United States v. Atkins, 536 U.S. 304 (2002). We conclude that because Georgia’s requirement of proof beyond a reasonable doubt necessarily will result in the execution of the mentally retarded, the Georgia Supreme Court’s decision is contrary to the clearly established rule of Atkins. The execution of the mentally retarded is prohibited by the Eighth Amendment’s ban against cruel and unusual punishment. We therefore reverse and remand.
Utah completes firing squad execution without any difficultiesAs detailed in this ABC News report, which is headlined "Ronnie Lee Gardner Executed by Firing Squad in Utah," an uncommon execution method seemed to go off without a hitch in Utah. Here is how this article begins:
After a quarter of a century on death row, convicted killer Ronnie Lee Gardner was executed in a barrage of rifle fire Friday morning. He became the first man to die before a firing squad in Utah in 14 years.
At exactly midnight, the 49-year-old inmate who spent more than half his life behind bars appeared calm as he was escorted to the execution chamber at a state prison in Draper. He was strapped to a metallic, winged execution chair; his arms and legs, his head and torso secured tightly. The chair was raised on a small black platform, like a stage.
A team of five anonymous marksmen armed with .30-caliber Winchester rifles, standing just 25 feet away behind a brick wall cut with a gun port, aimed their weapons at a white circular target pinned over Gardner's heart. One rifle was loaded with a blank so no one knew who fired the fatal shots. Asked if he wanted to say anything moments before the shooting, Gardner responded, "I do not, no."
There was no discernable movement in Gardner when the count began. The rifles exploded at 12:15 a.m., with four bullets perforating his heart and lungs. The straps held his head up. A metal tray beneath the chair collected his blood. Gardner was pronounced dead at 12:17 a.m.
"Ronnie Lee Gardner will never kill again," Utah Attorney General Mark Shurtleff later told reporters. "He will never assault anybody again."
June 17, 2010
An echo of Graham in Michigan sentencing of young juve killer?The title of this post is prompted by this local story from Michigan, which is headlined "DeMarco Harris, 13, spared from life sentence." Here are the details from the start of the article:
A 13-year-old convicted of fatally shooting a Genesee County woman last year was potentially spared a life behind bars when he was sentenced this morning.
DeMarco Harris, who was 12 when he shot and killed 24-year-old Trisha Babcock in a botched robbery Aug. 1, will be placed in a juvenile facility until he's 21, after which the court will decide whether he should be released, Wayne County Circuit Judge Sheila Gibson ruled today.
Harris was convicted in his second trial by a jury last month of felony murder, armed robbery and curfew violation in the case. His first trial ended with a hung jury.
Gibson could have sentenced Harris to life in prison under a state law that allows juveniles to be designated as adults. She had wide latitude, however, and could have sentenced him as a juvenile, an adult, or a blending of the two. She opted for the latter, warning that if he commits a felony during his time in the juvenile center, he'll automatically be sentenced as an adult.
If the court decides to impose an adult sentence when Harris is 21, he would receive mandatory life without parole on the felony murder charge, 18-40 years on the assault with intent to rob while armed charge and a consecutive sentence of two years for using a firearm to commit a felony, according to the Wayne County Prosecutor's Office.
Of course, the Supreme Court's opinion in Graham only categorically prohibited LWOP sentences for juves who commit non-homicide offenses. But it seems this case would have been a fascinating Graham follow-up had the judge here decided to impose an LWOP sentence on a 12-year-old killer.
Notable dicta in Quon case that might impact (now common?) sex offender restrictionsIn addition to the Dilloncrack retroactivity ruling (basics here and here), the other criminal justice decision from the Supreme Court today came in City of Ontario v. Quon (available here). Quon concerns various Fourth Amendment issues surrounding a state police department's review of transcripts of salacious text messages an officer sent and received on his department-issued pager.
Though Quon will be of greatest interest to those involved in traditional debates over privacy and police-practices, the opinion for the Court by Justice Kennedy has this notable flourish that could have some broader impact:
Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification.
Relatedly, in a rich and spot-on solo concurrence that takes a variety of swipes, Justice Scalia concludes by lamenting the legal challenge presented if and when the Court embraces a doctrine "that requires evaluating whether a given gadget is a necessary instrument for self-expression, even self-identification."
So, what does this have to do with sentencing law and policy in general or sex offender restrictions in particular? Well, it is not too much of a stretch to contend in these modern technological times that access to the internet (and maybe even access to a Facebook or Twitter account) is now "essential means or necessary instruments for self-expression, even self-identification." But, as regular readers know, sex offenders these days often face release conditions that fully or significantly restrict their access to the internet and/or social networking websites. I suspect that this classic Justce Kennedy line from Quon might find its way into a few efforts in lower courts to attack limits placed on some offenders' use of modern means of digital communation.
Percy Dillon's loss is sure to be other future defendants' gainThough I feel bad for Percy Dillon and other defendants hoping to get an extra benefit from the US Sentencing Commission's lowered crack guidelines, Percy's loss in the Supreme Court today will likely prove to be a good thing for lots of other federal defendants.
As the USSC noted in its amicus brief in Dillon (which Justice Stevens rightly described as "subtle threat"), a ruling for Percy Dillon would have led the Commission to be VERY chary about making any future guideline reductions retroactive. But now that the USSC can clearly limit the extent of benefit previously sentenced defendants can get from new retroactive guidelines, the USSC need no longer fear the consequences of making new improved guidelines retroactive.
Especially if the Sentencing Commission sometime soon gets around to fixing some of the most troublesome and unduly severe aspects of the drug, fraud and child porn guidelines, lots of defendants now serving long prison terms under those guidelines probably should send Percy Dillon a thank you note if the USSC goes on to make some future fixes retroactive to other defendants' benefit.
SCOTUS rules 7-1 against defendant in crack retroactivity caseFittingly, the Supreme Court this morning has handed down its biggest federal sentencing ruling this Term with a decision against the defendant in Dillon just as the big annual US Sentencing Commission conference gets started. I will comment on the opinion later today, but I am certain that the US Sentencing Commisioners will be pleased with this outcome.
The opinion can be accessed here.
UPDATE: The opinion for the Court draws a clear (and I think justified) distinction between sentence modification proceedings and full sentencing. Once that is done, the Court does not find it too hard to explain why Booker's advisory remedy does not apply to modification proceedings.
June 17, 2010 in Implementing retroactively new USSC crack guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack
So much going on today...
I am a bit overwhelmed. My day will be consumed with the US Sentencing Commission conference in New Orleans (basics here). But I have a nagging feeling that the Supreme Court will do something notable this morning that will draw me back to the computer at some point before the day is out. (SCOTUSblog is, of course, the place to keep up with what the Justices do today.)
And, of course, tonight we have the rare event of a NBA Final's Game 7, and the US Open gets going at Pebble Beach. My cup runneth over.
"The Impact of Juvenile Transfer Laws on Juvenile Crime"
The title of this post is the title of this notable new empirical paper now available via SSRN. Here is the abstract:
We analyze the effects on juvenile crime of tougher state laws governing the transfer of juveniles to the adult criminal justice system, including mandatory waiver and statutory exclusion laws. After controlling for other factors that influence juvenile crime and attempting to correct for the endogeneity of the juvenile transfer laws, we find no evidence that any of the transfer laws is negatively related to total juvenile crime, juvenile property crime, or juvenile violent crime. Moreover, we find that statutory exclusion laws and a weighted index of the severity of all transfer laws are both positively related to juvenile property crime.
Updating the continuing debate over Lynne Stewart's upcoming resentencingThis new article in the New York Law Journal, which is headlined "Perjury Charge Is Focus of Debate Over Lynne Stewart Resentencing," provides the latest news in the long-running controversy surrounding the sentencing of noted defense attorney Lynne Stewart. Here is how the piece starts:
Prosecutors and defense lawyers have now weighed in on the critical question facing Southern District of New York Judge John J. Koeltl when he resentences Lynne Stewart on July 15: whether the disbarred defense lawyer perjured herself at her 2005 trial for providing material support to a terrorist conspiracy.
Both sides have filed extensive sentencing materials with the judge, whose decision to give Stewart, 70, only 28 months in prison for helping her imprisoned client, Sheik Omar Abdel Rahman, communicate with the outlaw Islamic Group in Egypt, was vacated last year as too light by the 2nd U.S. Circuit Court of Appeals.
Southern District Assistant U.S. Attorneys Andrew S. Dember and Michael D. Maimin, in a 155-page memorandum, say Stewart perjured herself several times, most notably when she said a "bubble" protected her as an attorney when she smuggled out of prison in June 2000 a statement by the sheik withdrawing his support for a cease-fire on violent attacks by Islamic Group.
"The evidence at trial irrefutably proved that Stewart knew that she was committing perjury by offering such testimony," the prosecutors argue in their memo. They say Stewart's sentence should be increased dramatically both because of her perjury and because of a terrorism enhancement in the federal sentencing guidelines that Koeltl technically applied, but did not enforce. The terrorism enhancement drives the guidelines figure up to the statutory maximum of 30 years in prison.
Defense lawyers Elizabeth M. Fink and Jill R. Shellow counter in their papers by calling Koeltl's initial sentence "reasonable and just." They argue that Stewart was being truthful when she claimed there was a "bubble" or exception to special administrative prison measures preventing the sheik from getting or sending messages, and that Stewart did not perjure herself when she denied having known, at the time of her offense, the leader of a violent faction within Islamic Group.
Fink and Shellow said Koeltl properly exercised his discretion when he found that, while the terrorism enhancement applied, the 30-year-prison term it triggered was "dramatically unreasonable" and "overstated the seriousness" of her conduct. "Moreover, this court's determination to grant a variance from the guideline sentence based in part on the unreasonable effect of the terrorism enhancement as applied to Stewart was reasonable and proper, and is an approach that has been approved by other courts," they said.
Stewart's sentence caused turmoil at the circuit, as a two-judge majority of Judges Robert D. Sack and Guido Calabresi held they could not determine whether the sentence was substantively reasonable because Koeltl had declined to make a finding on perjury. The court nonetheless ordered Stewart to begin serving her sentence immediately.
In dissent, Judge John M. Walker was angry at the majority for reversing on a narrow ground a prison term he called "breathtakingly low" considering Stewart's "extraordinarily severe criminal conduct." Walker said it was plain the court should have vacated the sentence as substantively unreasonable.
The panel issued an amended opinion on Dec. 20 with tougher language calling for Koeltl to revisit his treatment of the terrorism enhancement.
But that was not the end of it, as one circuit judge called for a rehearing en banc. The motion lost by a vote of 7-4, but some judges issued opinions that, like Walker, faulted Koeltl for taking into consideration that "no victim was harmed" when Stewart issued the press release. Judge Jose A. Cabranes issued an opinion accusing the two-judge majority panel of "punting" on the biggest issues in the case.
June 16, 2010
"Experts argue firing squad is a humane execution"The title of this post is the headline of this interesting new AP article. Here are some excerpts:
A condemned Utah inmate's decision to die in a barrage of bullets fired by five unnamed marksmen has been vilified by many as an archaic form of Old West-style justice. But some experts argue it is more humane than all other execution methods, without the court challenges of cruelty that have plagued lethal injection.
"Lethal injection, which has the veneer of medical acceptability, has far greater risks of cruelty to a condemned person," said Fordham University Law School professor Deborah Denno, who has written extensively on the constitutional questions that surround execution methods.
The reasons that Ronnie Lee Gardner chose death by firing squad are unrelated to the drama or controversy it evokes, his attorney told The Associated Press. "It's not about the publicity. He just prefers it," Andrew Parnes said....
Gardner, 49, was sentenced to death for a 1985 capital murder conviction stemming from the fatal courthouse shooting of attorney Michael Burdell during an escape attempt. Gardner was at the court because he faced a murder charge in the shooting death of bartender Melvyn Otterstrom.
Barring any last minute stays, Gardner will be the first person to die by firing squad in the United States in 14 years. He will be the third man killed by that same method in Utah since a U.S. Supreme Court ruling reinstated capital punishment in 1976: Gary Gilmore on Jan. 17, 1977 - after famously uttering the last words, "Let's do it" - and John Albert Taylor on Jan. 26, 1996.
Of the 49 executions held in Utah since the 1850s, 40 were by firing squad. The method has also been widely used around the globe and was long the primary method of execution employed by the military, even in the U.S.
But lethal injection has become the primary method used by most of the 35 states that still have capital punishment, according to the Death Penalty Information Center website. Yet it isn't without controversy.
University of Colorado law professor Michael Radlet has been tracking botched executions in the U.S. and found some 42 cases that went wrong between 1982 and September 2009. Of those executions, 30 were lethal injection, 10 were electrocution and two were from asphyxiation after exposure to lethal gas....
Historians say the method stems from 19th Century doctrine of the state's predominant religion. Early members of The Church of Jesus Christ of Latter-day Saints believed in the concept of "blood atonement" - that only through spilling one's own blood could a condemned person adequately atone for their crimes and be redeemed in the next life. The church no longer preaches such teachings and offers no opinion on the use of the firing squad.
Death penalty advocate Kent Scheidegger agrees that capital punishment should not amount to torture, but says the average person "is not really all that concerned with a murderer experiencing painless death." Public debate is focused more on the larger issue of the death penalty and whether or not the punishment deters crime.
"Arguing over the method of execution is kind of a distraction," said Scheidegger, legal director of the Sacramento, Calif., Criminal Justice Legal Foundation....
Gardner is one of at least four of 10 men on Utah's death row who have said they want to die by firing squad.
In the Big Easy at USSC conference to talk about whether departures are going to be easier
"Judges Give Thumbs Down to Crack, Pot, Porn Mandatory Minimums"The title of this post is the headline of this effective article by Marcia Coyle in today's National Law Journal reporting on some of the highlights of the US Sentencing Commission's recently released results from a survey of federal district judges about their views on post-Booker sentencing realities. Here is how the piece begins:
Mandatory minimum sentences are too high, restitution for crime victims should be available in all cases, and judge-specific data on sentencing should not be reported, according to a survey of more than 600 federal trial judges.
From January through March of this year, the U.S. Sentencing Commission for the first time questioned federal judges on their views about sentencing under the advisory guidelines system in effect since 2005. The U.S. Supreme Court struck down the mandatory sentencing guideline system in its 2005 ruling U.S. v. Booker.
The survey, released last week, drew responses from 639 of the 942 judges to whom it was sent -- a 67.8 percent response rate. The 639 judges who responded had sentenced 116,183 offenders, or 79 percent of those sentenced during fiscal 2008 and 2009.
Sixty-two percent of the judges said the mandatory minimums that they were required to impose were too high, particularly for crack cocaine (76 percent), receipt of child pornography (71 percent) and marijuana (54 percent). However, strong majorities believed the sentencing guideline ranges for most federal offenses were appropriate, with the exception again of those for crack cocaine, marijuana, and the possession and receipt of child pornography, which they said were too high.
When asked to choose among sentencing systems without guidelines, with mandatory guidelines, with advisory guidelines or with mandatory guidelines that conform with the Sixth Amendment, 75 percent of the responding judges chose the current system of advisory guidelines....
Among the survey's other findings, 54 percent agreed somewhat or strongly that pre-sentence reports should be required to include information that a crime victim wants included. But 68 percent said victims should not have the opportunity to comment on the pre-sentence report before sentencing. Sixty-six percent agreed somewhat or strongly that courts should have the authority to order restitution for victims in all cases.
June 15, 2010
Texas finally executes murderer who had looooong stay on death rowAs detailed in this AFP report, which is headlined "Texas executes convicted cop killer 32 years on," the busiest death penalty state finally executed a defendant for a cop killer who committed him crime during the Carter Administration. Here are the details:
The state of Texas on Tuesday executed David Powell, 59, for the murder of a police officer 32 years ago, after having lost a series of lengthy appeals and requests for clemency.
Powell was convicted and sentenced to death for the May 18, 1978 machine-gun murder of police officer Ralph Ablanedo, who stopped him on a traffic offense.
With the execution, Powell set a record for the longest period on death row in the state before being put to death, circumstances which had earned him support for clemency. He also elicited wide support for becoming what some called a model prisoner and for his expressions of remorse for his crime.
Powell was a drug addict in 1978 when his car was stopped for a traffic violation by Ablanedo, then 26. The officer was hit several times by shots from a Russian-made AK-47 but managed to radio for help and describe his assailant before he died.
Powell was convicted and sentenced to death later that year. The verdict was overturned on appeal, but he was convicted at a retrial in 1991 and re-sentenced to death. That trial was voided as well on appeal, resulting in a third trial that reaffirmed the penalty.
But supporters said that Powell's 32 years on death row have proved the power of human redemption. Amnesty International is one of many advocate groups that pleaded his case, saying in a report that over time, Powell has become "a model prisoner and an extraordinary human being."
"The traditional justification for the death penalty (is) retribution and deterrence," Amnesty said. "It is hard to imagine what further deterrence would be achieved by an execution 32 years after" the crime....
Powell's tenure on death row was among the longest ahead of an execution in the United States. Alabama earlier this year executed Thomas Whisenhant after 32 years on death row while Georgia in 2008 put to death Jack Alderman after 33 years.
Despite Graham ruling, Florida prosecutors have violent teen on path to LWOP sentenceThis local article from Florida, which is headlined "Teen faces adult charge, contrary to high-court ruling," reports on an interesting case stuggling to deal with the aftermath of the Supreme Court's landmark Eighth Amendment ruling last month in Graham. Here are the interesting details:
Prosecutors have decided to try 16-year-old Henry "Peanut" Baker as an adult in the shooting of a Sanford police officer two weeks ago.
That puts him in the cross-hairs of a dispute about what to do with violent juveniles. If convicted, Baker faces a mandatory sentence of life in prison without the possibility of parole.
But two weeks before his arrest, the U.S. Supreme Court barred that sentence for anyone under 18 who had not committed murder. Ordering a child who was not a murderer to prison with no possibility of release is cruel and therefore unconstitutional, the court ruled.
So what will happen to Baker, who will be charged with attempted murder of a law officer, a crime that carries a sentence that no judge legally can impose? That is unclear....
Authorities said Baker wounded the young cop during a foot chase. The suspect disappeared around the corner of an apartment building, and when Worrall rounded the corner, the gunman opened fire from 10 to 12 feet away, the officer said.
The suspect fired three times. Worrall was unscathed after the first two shots, but the third slug hit him under the right arm, above his bullet-proof vest. He fell to the ground bleeding, and the gunman looked down and pulled the trigger a fourth time, Worrall told reporters last week. That bullet also missed, and the gunman fled, Worrall said....
Chris White, chief assistant state attorney in Seminole County, said Tuesday that his office would prosecute Baker as an adult. That's because the crime was serious and violent, White said. Baker's prior criminal record also pushed prosecutors toward that decision, White said.
Because Baker is a juvenile, much of his criminal record is a secret, but he's to stand trial in Sanford next week, accused of committing a schoolyard robbery. In March, according to a Sanford police report, he stole the wallet of a student at Seminole High School and punched him. Baker has been arrested at least three other times, according to records with the Florida Department of Law Enforcement, and was found guilty in three Ocoee burglaries in 2008.
Bryan Gowdy is the Jacksonville lawyer who convinced the U.S. Supreme Court to vote 6-3 to outlaw life-without-parole sentences for non-murdering juveniles . He said it appears there's only one solution for the Baker case: The Florida Legislature must rewrite the law which he is accused of violating: attempted murder of a law enforcement officer. That's because the law provides for just one sentence — life without the possibility of parole.
The Legislature also should review and rewrite some if not all of Florida's other laws that allow judges to impose life-without-parole sentences. "The Legislature should act to bring Florida's sentencing laws into conformity with common sense, the (U.S. Supreme) court's opinion and standards of decency," Gowdy said. "If they don't act, they're going to tie a judge's hands."
Effective commentary on DOJ's new charging and sentencing policyNow available free on-line is this effective commentary by Alan Vinegrad in the New York Law Journal from last week headlined "Justice Department's New Charging, Plea Bargaining and Sentencing Policy." Here is how the piece begins:
On May 19, 2010, Attorney General Eric H. Holder Jr. announced the Justice Department's new policy on charging, plea bargaining and sentencing. "New" is a bit of an overstatement, as Mr. Holder's memo notes that its purpose is to "reaffirm the guidance" provided by the principles of federal prosecution that were first memorialized 30 years ago. That said, the new policy does reflect a number of subtle, and substantive, changes in text and tone from the policies of Mr. Holder's recent predecessors. This article will summarize notable changes in charging, plea bargaining and sentencing policy — with an emphasis (consistent with the nature of this column) on the last.
Thirty years ago, Attorney General Benjamin R. Civiletti published the Justice Department's "Principles of Federal Prosecution" — containing specific guidance on how federal prosecutors should decide what charges to bring, what plea bargains to strike, and what sentences to seek. Many of his successor Attorneys General followed suit, with Richard Thornburgh, Janet Reno and John Ashcroft each issuing his or her own iteration of these policies.
Even Deputy Attorney General James Comey got into the act, issuing two memos on sentencing policy just before and after the Sentencing Guidelines were declared unconstitutional by the U.S. Supreme Court in United States v. Booker. Mr. Holder's recent memo continues this laudable trend of setting forth, in writing with full transparency, the general principles by which the most critical decisions in the federal criminal justice system are made.
"A Good Day for Judicial Discretion" (though I would say "Equitable Principles")
The first part of the title of this post is the headline of this intriguing New York Times editorial discussing some of the Supreme Court's rulings yesterday. Here is how the piece starts and ends:
Equity is an elusive legal concept that occasionally allows some leeway in applying the rules of the law and is often unappreciated by judges who insist the law means only what it says. That was clear in 2008 when the United States Court of Appeals for the 11th Circuit refused to allow federal courts to consider a death-penalty conviction of Albert Holland because his lawyer had inexcusably let the filing deadline pass. Fortunately, seven members of the Supreme Court proved less rigid in their thinking on Monday and reversed that blinkered decision....
Justice Scalia wrote that while it is tempting to tinker with technical rules to achieve a just result, the Constitution does not give judges the discretion to rewrite Congress’s rules. The law is the law, in other words, and tough luck if your incompetent lawyer leaves you hanging.
It was heartening to see that Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. refused to subscribe to that philosophy, just as they have broken with Justice Scalia in other criminal justice cases.
The full court demonstrated that same spirit of understanding in another opinion issued Monday, when it ruled that a minor drug offense did not justify deporting a legal immigrant. The case was brought by Jose Angel Carachuri-Rosendo, an immigrant from Mexico found in possession of a single tablet of Xanax, the anti-anxiety drug, without a prescription. Overruling the lower courts and disagreeing with the Obama administration, the court said that the possession did not qualify as a serious felony, even though Mr. Carachuri-Rosendo had a previous misdemeanor conviction.
The decision gives hope to other immigrants fighting deportation on minor charges that are taken far too seriously by the government. Taken together, the outcome of Monday’s cases suggests that even on a conservative court, the letter of the law has its limits.
I think the headline of this editorial is a bit misleading given that, as the text of the editorial notes, the Holland case is pricipally about the development of equitable principles, not really "judicial discretion." Moreover, as explained in this post, the fascinating 5-4 ruling in the Dolan restitution case actually fits this equitable narrative better than the ruling in Carachuri-Rosendo. Nevertheless, I think it notable to see the New York Times praise the Supreme Court for acknowledging the limits of law.
June 14, 2010
"States start reducing solitary confinement to help budgets"The title of this post is the headline of this notable new piece from USA Today. Here are some of the details:
State prison officials are reducing the number of offenders in solitary confinement — once among the fastest-growing conditions of detention — as budget pressures, legal challenges and concerns about the punishment's effectiveness mount.
States such as Mississippi, Texas and Illinois have decreased the number of inmates in solitary confinement, a dramatic acknowledgement, analysts say, that states can no longer sustain the costs of hard-line criminal justice policies. "The whole philosophy of being just tough — locking people up and throwing away the key — has not solved the problem," said Texas state Sen. John Whitmire, Democratic chairman of the Senate Criminal Justice Committee.
Decisions to return dangerous inmates to the general prison population anger some prison officials, who say the changes could threaten the safety of corrections officers and other inmates. "The departments of correction are rolling the dice with public safety. ... This is going to blow up," said Brian Dawe of the American Correctional Officer Intelligence Network, an association of officers.
The number of prisoners in solitary confinement — typically locked away for 23 hours a day — grew 40% from 1995 to 2000 when there were 80,870 segregated inmates, a study by The Commission on Safety and Abuse in America's Prisons found. The overall prison population increased 28% during that time. Isolating prisoners, the private study found, is often "twice as costly."
NPR's interesting coverage of "The New Marijuana"
I am just noticing how many interesting pieces that National Public Radio has put together here in a special series called "The New Marijuana." Here are just a few of the pieces that seem worth a listen:
No clemency grant for Utah killer due to be executed by firing squad
As detailed in this local story from Utah, "Ronnie Lee Gardner's firing squad execution became much more likely when a state board on Monday refused to commute his death sentence." I do not think this outcome is much of a surprise, and I predict that Gardner's few remaining court appeals will also be rejected. Thus, it now seems likely that the first firing squad execution in the US in 15 years will go forward later this week.
Recent related posts:
- Shouldn't we celebrate condemn's request that he "would like the firing squad, please"?
- Utah murderer who selected firing squad as execution method to get (high-profile) commutation hearing
- Utah getting ready for an "old school" execution
- "Executioner: Death by firing squad is '100 percent justice'"
SCOTUS confirmation that the prior conviction excpetion to Apprendi is here to stay
Sentencing and clemency guru Margaret Colgate Love wrote me today to suggest that the biggest sentencing news coming from all today's SCOTUS action (basics here) is to be found in the immigraion case Carachuri-Rosendo v. Holder (available here). In Carachuri-Rosendo, the Justices ruled that "that second or subsequent simple possession offenses are not aggravated felonies [requiring deportation] under §1101(a)(43) when, as in this case, the state conviction is not based on the fact of a prior conviction." And here is what Margaret Colgate Love had to say about why this is a notable ruling for sentencing fans:
Biggest news this morning on sentencing front is in Carachuri-Rosendo [because the] Court unanimously backs away from constitutionalizing recidivist sentencing. It reaffirms Almendarez-Torres, both on 5th and 6th A grounds and nobody says a word in defense of overruling it. Thomas concurred apparently just to let us know rather gracefully, by not mentioning A-T, that he has given up hope of Court overruling it. (It seems that all the hype in circuits about A-T being on life support was just that.)
The Court also said that notice of intention to charge priors under 851 was not constitutionally compelled. Stevens was all business, no prose more purple than "counterintuitive and unorthodox." Though 851 has no constitutional underpinning, it is a way to limit recidivist enhancements in drug cases. As to other types of enhancements, I thought his note 12 was very significant for ACCA and other gun recidivist enhancements, in requiring that prior must appear as part of the judgment or formal charging document (a fairly substantial expansion/clarification of Shepard).
Restitution, victims' rights, and a classic battle of law versus equity with a twist
The more I reflect on the Justices' work today in the Dolan restitution ruling (available here), the more I think the myriad legal issues surrounding restitution and victims' rights at sentencing will be confounding lower courts and SCOTUS for years to come. I say this largely because, as Dolan shows, issues of restitution and victim's rights in the operation of modern criminal justice systems often present lots of hard questions concerning how to balance law and equity in criminal justice case processing.
As noted here in my first post on Dolan, what makes the ruling so interesting is the composition of the 5-4 ruling: Justice Breyer managed to get Justices Alito, Ginsburg, Sotomayor and Thomas to agree on a pro-victim approach to judicial authority to impose restitution outside statutory time limits, while Chief Justice Roberts authors a sharp dissent accusing the majority of undermining "a system of rules" which garners the votes of Justices Kennedy, Scalia and Stevens. I think the vote break-down is so notable and unusual largely because the equitable approach to the applicable restitution law adopted by the majority in this case helps a victim at the expense of a defendant (in contrast to the usual criminal case in which the defendant is urging a court to do equity and the state is urging fidelity to "a system of rules").
I predict that lots of future debates over restitution and victims' rights at sentencing — on issues ranging from who qualifies as a victim to how causation principles should limit restitution awards — will boil down to the same sort of fundamental debate over law and equity that plays out in Dolan. In this notable first round, it appears that an equitable outcome for victims has carried the day. But I suspect that, in the many brewing future battles, defendants will have some success arguing that fidelity to the rule of law has to generally carry the day.
What exactly happens now with the litigation over California's prison problems?I am a bit perplexed by what the Supreme Court did this morning in response to the appeal of the California prisoner litigation coming from the Ninth Circuit. Here is the full text of what SCOTUS said in its orders this morning:
09-1233 SCHWARZENEGGER, GOV. OF CA V. PLATA, MARCIANO, ET AL.: Further consideration of the question of jurisdiction is postponed to the hearing of the case on the merits.
Here is how Lyle Denniston at SCOTUSblog explains this order:
The Supreme Court, having already shown it was interested in the controversy, on Monday finally agreed to rule on at least part of the state of California’s complaint about being forced by a federal court to release close to 40,000 inmates from its 33 state prisons, to relieve over-crowding and a serious health crisis. The Court will set the case for a hearing in the Term starting Oct. 4, but the first issue up for review is whether a three-judge U.S. District Court had the authority even to issue an inmate release order. The Justices said they will consider that jurisdictional question when the case is called for a merits hearing on the case of Schwarzenegger, et al., v. Plata, et al. (09-1233). The case could produce a major ruling on federal judges’ power to order prison releases under the Prison Litigation Reform Act of 1996....
The Court’s order Monday in the California prison case grew out of prolonged litigation in federal court over threats to the health of both prisoners and prison staff members as a result of severe over-crowding in the state’s prisons. Two separate lawsuits by prison inmates ultimately were merged before a three-judge District Court, to consider whether a mandate to free prisoners would ultimately be necessary to meet the health threat. The state’s prisons were operating at close to twice their actual design capacity. The District Court in the end ordered California to reduce over-crowding from the peak of 196 percent of design capacity to 137.5 percent, and to do so in two years.
Earlier, the Supreme Court had declined to step into the controversy, but expressly noted that it had been assured that no prisoner release order would be ordered until the Supreme Court had had an opportunity to review it. The release order is now on hold pending final action by the Justices.
The question of jurisdiction that lingers in the case is whether the District Court satisfied the requirements specified under the 1996 federal act for any inmate release order. Under that act, a prisoner release order may be adopted only as a “last resort,” only if it has previously issued other, less-intrusive orders that had failed to remedy violations of inmates’ rights, and only if it found that state officials had had a reasonable time to comply with such prior orders. The state contends that the District Court did not have jurisdiction, because it did not give officials time enough to try to cure the over-crowding situation on their own.
Only if the Justices find that the District Court had jurisdiction would they move on to decide whether the specific order at issue was justified. The case is not likely to come up for a hearing until the winter.
So does this means there will be full SCOTUS briefing and a full "traditional" SCOTUS oral argument on both the jurisdiction issue and the merits issues over the next few months? Does this mean all efforts to reform California's prison over-crowding now can and should be put on hold while briefing and argument go forward? Does this mean these issues more likely or less likely to be a topic of political debate in California's many contested elections this Fall?
Put simply, I am confused and would be grateful for any reports from anyone in the know about what this seemingly cryptic SCOTUS order means both practically and politically.
- From the AP here, "Court to review Calif. plan to cut prison numbers"
- From Reuters here, "Top court to hear California prisoner release case"
AEDPA, equitable tolling, and SCOTUS "umpires" with empathyI may not get a chance until tonight to read closely the Supreme Court's opinions today in Holland v. Florida (available here). But I think it is worth an early comment that the Court's conclusion that the habeas corpus statute of limitations in AEDPA is subject to "equitable tolling" comes out as an 7-2 outcome AND that Chief Justice Roberts fully joins Justice Breyer's opinion for the Court. Moreover, this final paragraph of Justice Scalia's dissent in Holland prompts the title of this post:
The Court’s impulse to intervene when a litigant’s lawyer has made mistakes is understandable; the temptation to tinker with technical rules to achieve what appears ajust result is often strong, especially when the client faces a capital sentence. But the Constitution does not empower federal courts to rewrite, in the name of equity, rules that Congress has made. Endowing unelected judges with that power is irreconcilable with our system, for it “would literally place the whole rights and property of the community under the arbitrary will of the judge,” arming him with “a despotic and sovereign authority,” 1 J.Story, Commentaries on Equity Jurisprudence §19, p. 19 (14th ed. 1918). The danger is doubled when we disregard our own precedent, leaving only our own consciences to constrain our discretion. Because both the statute and stare decisis foreclose Holland’s claim, I respectfully dissent.
Were Justice Scalia to use terms that had become popular in the political debates over recent SCOTUS confirmation hearings, he might have ended this paragraph by complaining that the majority is failing to be a neutral umpire and is instead allowing its empathy for a capital defendant's plight color its call on balls and strikes. And, notably, Chief Justice Roberts happens to be one of the judicial umpires in Holland whom Justice Scalia claims is letting empathy for a criminal defendant get the better of him.
"Seriously ill sex offender may be electronically tagged"The title of this post is the headline of this notable story about a technocorrections sentence being considered in Ireland. Here are the details:
A Wicklow man who sexually assaulted a 10-year-old girl may become one of the first offenders to be electronically tagged as an alternative to prison.
The 62-year-old, who cannot be named to protect the identity of his victim, suffers from a serious medical condition and the Prison Service has told the court they may not be able to treat him in jail. He has been on bail since he was convicted last February while it was established if he could be imprisoned or not.
Today Judge Tony Hunt again adjourned sentencing at Dublin Circuit Criminal Court after hearing that the man was not in court. He had gone into hospital to have a procedure carried out last week but it had not gone well and he remained in hospital.
Judge Hunt said he would consider alternatives to prison on “humanitarian grounds” which may include curfews and electronic tagging. He said he would look at having the man tagged after noting there had been trials of the system.
“I regard this man as a very significant threat to the female half of the population, or at least he was before his illness,” the judge said. “If he’s not incarcerated, and he deserves to be for a lengthy period, there will be a lengthy curfew covering most of the day, save for medical appointments and some sort of exercise which he would be entitled to in prison.” He adjourned the case until the end of the month when he will finalise a sentence.
I am not sure if electronic tagging in Ireland involves simply GPS tracking with an electronic bracelet or if it involves a microchip implant. Whatever the particulars, this story reinforces my sense that technocorrection alternatives to incarcerations are likely to be a world-wide reality within a matters of years.
Lots of SCOTUS action for sentencing fans this morningIn addition to the Dolan ruling noted here, the Supreme Court handed down two more opinions this morning that should be of interest to sentencing fans. Here are the SCOTUSblog early accounts:
09-5327, Holland v. Florida, Breyer writes again for the Court, reversing and remanding on a 7-2 vote Alito concurs in part and in the judgment. Scalia dissents, joined in part by Thomas The Court permits equitable tolling of the habeas corpus filing deadline under the AEDPA
09-60, Carachuri-Rosendo v. Holder, Stevens writes for the Court, reversing. The result is unanimous, but Scalia and Thomas each file an opinion concurring in the judgment only. The Court rules that second or subsequent crimes of possession of drugs are not aggravated felonies under federal immigration law when the underlying state conviction is not based on the fact that there was a prior conviction.
The full opinion in Holland is available here, and the full opinion in Carachuri-Rosendo is available here. I will be reviewing these opinions to see if there are any big stories lurking in these potential sleeper cases.
In addition, the Supreme Court this morning granted cert in Collin v. Pinholster, which I believe is a capital habeas case coming from the Ninth Circuit. Indeed, I now see that this new AP article reports that the Ninth Circuit "threw out Pinholster's death sentence because his lawyer did not give a jury evidence of mental illness during the penalty phase of his murder trial. The San Francisco-based court said that evidence might have persuaded the jury to reject the death sentence."
UPDATE: This new SCOTUSblog post provides an effective summary of all the action from the Supreme Court today.
Interesting Justices' voting line-up in Dolan restitution caseThe Supreme Court has handed down its opinion this morning in the Dolan restitution case, and in doing so it has shown yet again that sentencing issues are so much more interesting than so many other SCOTUS matters because how the Justices will vote is so unpredictable. Here is the early SCOTUSblog report on Dolan:
We have the first opinion, 09-367, Dolan v. United States. Breyer writes for the Court, affirming the lower court. The vote is 5-4, with the Chief Justice dissenting joined by Stevens, Scalia, and Kennedy
The Court holds that a sentencing court that has missed the 90-day deadline may nevertheless order restitution, at least in some circumstances.
The Dolan opinion is available here, and I am excited to discover how Justice Breyer managed to get Justices Alito, Ginsburg, Sotomayor and Thomas all to agree on what he had to say.
Effective media coverage of the new proposed federal sentencing guidelinesThe Philadelphia Daily News has this effective new piece headlined "Defendants could benefit from new federal sentencing guidelines." Here are excerpts:
Current sentencing guidelines say that the age and medical condition of a defendant are "not ordinarily relevant" factors when deciding whether leniency is warranted at sentencing, but they soon could be.
After Nov. 1, these kinds of personal characteristics "may be relevant" provided they are "present to an unusual degree" under new guidelines recently adopted by the U.S. Sentencing Commission, if Congress doesn't disapprove them....
And the new rules also permit judges to send certain nonviolent drug offenders to drug- or alcohol-abuse treatment centers instead of prison.
All judges use the guidelines as the starting point in calculating sentences, and many typically sentence defendants within the guidelines - which often means prison time - unless prosecutors request leniency on behalf of cooperating witnesses. (In 2009, for example, 54 percent of defendants eligible for a nonprison sentence in the Eastern District of Pennsylvania were sent to prison anyway.)
Commission chairman William K. Sessions III said that nationally there was "a great need for alternatives to incarceration," based on feedback the commission received. If Congress approves them, the new guidelines are likely to mean that some white-collar defendants now sent to prison may receive nonprison sentences.
The new guidelines could double the number of offenders eligible for probation, said Jonathan Wroblewski, director of the Department of Justice's Office of Policy and Legislation, in a written submission to the commission prior to its adoption of the new guidelines. A Justice Department spokeswoman said the department had no further comment on the new guidelines.
Sessions said the proposed changes would help to lower recidivism, save taxpayers money and protect the public. For example, taxpayers now pay an average of $27,252 per year to house an inmate in federal prison as opposed to $3,808 to supervise a defendant sentenced to probation.
Wroblewski said that federal prosecutors were "extremely cautious" about revisions to the guidelines related to offender characteristics, adding that the changes could "exacerbate" unwarranted sentencing disparities and create a "new level of uncertainty and unpredictability" in sentencing.
Other observers suggested that some of the proposed new guidelines may make sentencing fairer. "It's good news because the commission seems to be looking more at the individual characteristics of the defendant," said Leigh M. Skipper, the chief federal defender in Philadelphia. "It's a shift in focus."
Related posts on the new proposed sentencing guidelines :
- New USSC amendments expanding prison alternatives and addressing certain offender characteristics
- US Sentencing Commission posts full text of its significant new guideline amendments
- Why the proposed new federal guideline amendments are symbolically important
- Can, should and will district judges start giving effect to proposed amended guidelines ASAP?
- Have the new (proposed) amended federal guidelines had any ripple effect yet?
June 13, 2010
"Who should control California's prison budget? U.S. Supreme Court may weigh in"
The title of this post is the headline of this new article in the Los Angeles Times. It gets started this way:
A legal battle over who gets to control California's massive spending on prisons — judges or corrections officials — may be headed to the U.S. Supreme Court, with overcrowding at the state's 33 prisons at the center of the debate.
Gov. Arnold Schwarzenegger and state officials have challenged an edict from three federal judges that the California Department of Corrections and Rehabilitation must cut the prison population by 40,000, or about a quarter of its 165,000 inmates. The judges' order, issued last August, cited overcrowding as the main cause of healthcare failures that amounted to cruel and unusual punishment and left inmates to die from treatable conditions at the rate of one per week.
The three-judge order brought to a head the tension over a decades-long judicial practice of intervening in prison management to correct what have been deemed unconstitutional deficiencies in state custody. Courts have empowered a phalanx of overseers and experts to mandate reforms on prisoners' healthcare, psychiatric treatment, parole rights, access to law libraries and other matters.
But as California's budget woes increasingly pit the jailers and judicial monitors in a struggle for scarce resources, the monitors have become a point of contention.
The U.S. Supreme Court is expected to decide as early as Monday whether to review the three-judge order to reduce overcrowding. Some observers of the legal tug of war over inmate treatment believe the conservative justices on the high court want to weigh in on what they may see as judicial activism. When the state appealed the reduction order, the justices suspended a two-year deadline for releasing inmates or building prisons to house them.
UPDATE on June 14: According to SCOTUSblog, the Supreme Court "