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July 16, 2010

Brady Center VP already making much of Seventh Circuit's ruling in Skoein

In a week full of eventful circuit opinion, the Seventh Circuit significant Second Amendment ruling in Skoien from earlier this week (basics here, commentary here) still seems to me to be the most noteworthy.  Conforming my view is this new piece at The Huffington Post from Dennis A. Henigan, the Brady Center's Vice President, which is headlined, "New Court Ruling Throws Cold Water on 'Gun Rights' Celebration." Here is how the piece starts and ends:

For those in the extremist gun lobby and the libertarian right who view the Supreme Court's recent Second Amendment rulings as assault weapons ready to blow holes in America's gun laws, the Seventh Circuit's ruling this week in U.S. v. Skoien must be a bitter pill.

Skoien is no doubt the most significant lower court ruling on the Second Amendment since the Supreme Court's decision in District of Columbia v. Heller two years ago recognizing the right of individuals to have guns in the home for self-defense.  The Seventh Circuit heard the case en banc (i.e. with all eleven judges sitting) and, by a vote of 10-1, upheld the conviction of Steven Skoien for violating the federal law barring possession of guns by individuals with misdemeanor convictions for domestic violence.  Skoien, like many other convicted gun criminals, saw Heller as a way to avoid punishment by seeking to strike down as unconstitutional the law he had violated.

The Skoien ruling is a bucket of cold water thrown on the "gun rights" celebration following the Supreme Court's decision last month in McDonald v. City of Chicago striking down Chicago's handgun ban....

It is easy to understand why libertarian bloggers like Josh Blackman are upset about the Skoien ruling, which he cites as evidence of the "epic failure" of both Heller and McDonald to truly establish a constitutional basis for the gutting of America's gun laws.  Blackman frets that Judge Easterbrook's opinion in Skoien sets forth "a framework that will likely be relied upon by most courts."  If he's right, and I think he is, strong gun control laws have little to fear from the Second Amendment.

A few related Second Amendment posts on Skoien and related issues:

July 16, 2010 in Second Amendment issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Two notable criminal justice initiatives to be on Oregon ballot in November

As detailed in this local article, which is headlined "Crime, medical marijuana initiatives qualify for Nov. 2," Oregon now joins Arizona and California (and others?) with marijuana ballot initiatives going before voters this fall. In addition, as the article further explains, Oregonians will also be considering sentencing issues via direct democracy:

Oregonians will vote Nov. 2 on mandatory prison time for repeat felony sex offenders and drunken drivers, and state licensing of dispensaries for purchases of medical marijuana. Secretary of State Kate Brown announced today both had obtained more than the 82,769 signatures required to qualify them for the ballot....

The crime initiative would set a 25-year mandatory minimum prison sentence for repeat offenders in any of four felony sex crimes.  It also would require a 90-day jail term for a third drunken-driving conviction, which would be considered a Class C felony, if two previous convictions were within the past 10 years....

The medical marijuana initiative would amend the law that voters passed in 1998.  The law allows patients with specified medical conditions, or their designated caregivers, to grow marijuana — but it does not allow its sale. The initiative would enable the state Department of Human Services, which administers the current program, to license dispensaries where medical marijuana can be obtained.

July 16, 2010 in Elections and sentencing issues in political debates, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Eleventh Circuit affirms convictions and 3-year prison sentence of Wesley Snipes for tax crimes

A busy week for notable federal circuit court rulings in criminal cases concludes with a major league Eleventh Circuit ruling affirming the convictions and sentence of Passenger 57 for tax crimes.  The unanimous panel decision in US v. Snipes gets started this way:

Defendant Wesley Trent Snipes appeals from his criminal convictions, after a jury trial, on three counts of willful failure to file individual federal income tax returns for calendar years 1999, 2000, and 2001, in violation of 26 U.S.C. § 7203. Snipes alleges that the trial court committed reversible error in sentencing, jury instructions, and on issues of venue.  After thorough review, we affirm the rulings and judgment of the district court in all respects.

The final 10 pages of the 35-page opinion in Snipes discusses various sentencing issues surrounding Snipes efforts to avoid the tax collectors on the money train.  But Blade is not going to be a big fan of any aspect of a ruling that confirms that even a celebrity like Snipes cannot jump out of his tax obligations or zigzag away from a prison term.  (Hat tip to IMDB for some Snipes' movie titles to (poorly) incorporate into this post.)

July 16, 2010 in Booker in the Circuits, Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (3) | TrackBack

"Trial and Error in Criminal Justice: Learning from Failure"

Trial-and-error_1 The title of this post is the title of this new book authored by Greg Berman (no relation) and Aubrey Fox available from the Urban Institute Press.  Here is a brief summary from the press website:

When it comes to criminal justice reform, neither citizens nor officials have endorsed the view that problems are solved iteratively. Reluctance to be associated with programs judged failures has stifled innovation and kept criminal justice reformers spinning their wheels.

Trial and Error in Criminal Justice Reform: Learning from Failure argues that public policies cannot be neatly divided into successes and failures.  The book examines well-intended programs that for one reason or another fell short of their objectives (D.A.R.E. and Operation Ceasefire being prime examples) yet also had positive effects.  Greg Berman and Aubrey Fox tell the stories of committed reformers — judges, cops, attorneys, parole officers, researchers, educators, and politicians — who, despite their knowledge and ambition, did not quite achieve their goals.  They introduce readers to a parole officer who has to make a tough judgment call, a legislator who endures political pressure to rewrite sentencing laws, a judge who attempts a new response to drug offenses despite local resistance, and many others.

I have had a chance to read parts of this book already, and I find it fascinating.  Here also is a comment about some of the themes of this important book that I received from one of the authors:

The vast majority of what police, prosecutors, defenders, correctional officials, probation officers and judges do on a daily basis is not supported by strong, scientific evidence.

Indeed, there is an enormous gulf between frontline criminal justice practitioners and social science researchers.  One sign of this is the field's resistance to the scientific method — the process of trial and error.  In general, criminal justice officials don't feel they have the latitude to talk honestly about a simple reality: new initiatives are just as likely to fail as they are to succeed.

This is a point that Aubrey Fox and I make in Trial and Error in Criminal Justice: Learning from Failure.  Over the course of researching the book, we learned a number of important lessons, including the challenge that criminal justice officials face in trying to meet the often-unrealistic expectations of elected officials and the general public.  There are no silver bullets when it comes to changing the behavior of offenders or reducing crime in hard-hit urban neighborhoods.

But perhaps the most important lesson we learned is that the closer one looks, the harder it is to draw a clear, defining line between what works and what doesn't in criminal justice. Initiatives like drug court and Operation Ceasefire that succeed spectacularly in one place can fail miserably in another.  Even the drug prevention DARE, which is almost universally reviled by researchers, has achieved some positive results in some jurisdictions.

In a perfect world, it would be nice to be able to make black-and-white judgments about reforms....  But like so much of life, criminal justice is dominated by shades of grey. Acknowledging this reality is crucial if we ever hope to have an honest, rational conversation about criminal justice policy in this country.

July 16, 2010 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (6) | TrackBack

Seventh Circuit reinforces importance of adequate sentencing explanations

Two relatively minor rulings from the Seventh Circuit today, US v. Arberry, No. 09-2668 (7th Cir. July 16, 2010) (available here), and US v. Johnson, No. 09-3247 (7th Cir. July 16, 2010) (available here), reinforce a major post-Booker principle that the Seventh Circuit has been particularly good at policing: "that the sentencing court must consider all principal, nonfrivolous arguments," Arberry, slip op. at 2, and that if "the record does not reveal an adequate explanation of the chosen sentence, [the defendant's] sentence must be reversed." Johnson, slip op. at 16.

July 16, 2010 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Split Sixth Circuit expressly holds that fast-track disparity is proper basis for variance

In an important ruling in favor of broad post-Booker sentencing discretion, a split Sixth Circuit panel today in US v. Camacho-Arellano, No. 07-5427 (6th Cir. July 16, 2010) (available here), holds that fast-track dispartiy provides a sound basis for a district court to vary from the immigration sentencing guidelines. Here is the start of the majority opinion in Camacho-Arellano:

Isidro Camacho-Arellano, a Mexican citizen, pleaded guilty to unlawful reentry into the United States after deportation and was sentenced to fifty-seven months of incarceration.  Camacho-Arellano seeks a remand for the district judge to consider whether to impose a lower sentence based on the disparities created by the existence of “fast-track” early-disposition programs for illegal-reentry cases in other jurisdictions.  He also argues that the district judge’s reliance on incorrect information about the prevalence of fast-track programs rendered the sentence procedurally unreasonable.  Because Camacho-Arellano was sentenced before Kimbrough v. United States, 552 U.S. 85 (2007), and because Kimbrough permits district court judges to impose a variance based on disagreement with the policy underlying a guideline (here, the fast-track disparity), we VACATE Camacho-Arellano’s sentence and REMAND the case to the district court for resentencing.

The dissenting opinion by Judge Kennedy begins this way:

Because I believe that this is not an appropriate case to determine whether, after Kimbrough v. United States, 552 U.S. 85 (2007), and Spears v. United States, 129 S. Ct. 840 (2009), a district court must consider a defendant’s argument that disparities created by some districts’ fasttrack, early-disposition programs for illegal-reentry defendants warrant a lower sentence, I must respectfully dissent.

July 16, 2010 in Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Second Circuit reverses another child porn sentence based on its Dorvee opinion

As regular readers may recall, the Second Circuit issued back in May a significant reasonableness ruling in the child porn Dorvee case (basics here; commentary here).  Today in US v. Tutty, No. 09-2705 (2d Cir. July 16, 2010) (available here), another Second Circuit panel relies on Dorvee to reverse another child porn sentence.  Here is how the opinion starts:
Defendant-appellant Jason E. Tutty pleaded guilty to one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A).  He was sentenced by the United States District Court for the Western District of New York (Siragusa, J.) to 168 months' imprisonment.  On appeal, Tutty challenges the substantive reasonableness of his sentence. Upon review of the record, we conclude that the district court erred when it held, relying on outdated law, that it did not have the authority to impose a non-Guideline sentence based on policy considerations applicable to all defendants.  Moreover, as we recently recognized in United States v. Dorvee, 604 F.3d 84 (2d Cir. 2010), the child pornography Guidelines present important policy considerations, and unless they are "carefully applied," they "can easily generate unreasonable results." Id. at 98.  We vacate the judgment and remand to the district court for resentencing to correct the procedural error and to consider the policy concerns addressed in Dorvee.

July 16, 2010 in Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

July 15, 2010

Lynne Stewart gets 10-year federal prison sentence the second time around

As detailed in this AP article, Lynne Stewart "was sentenced Thursday to 10 years in prison in a terrorism case by a judge who boosted her original sentence by nearly eight years after concluding she lied to a jury and lacked remorse." Here are more details:

The sentence, nearly four times longer than the two-year, four-month sentence she originally received in 2006, left Stewart sobbing in her prison uniform after Koeltl described his reasons for increasing the prison time significantly.

An appeals court had ordered a new sentencing, saying the terrorism component of the case needed to be considered, along with whether she committed perjury at her trial. The court said it had "serious doubts" whether her original sentence was reasonable.

The judge said public comments Stewart made after her first sentencing showed him that the "original sentence was not sufficient." He said she showed "a lack of remorse for conduct that was both illegal and potentially lethal."

Outside court after her original sentence, Stewart said she could do the prison time standing on her head.

Koeltl found that Stewart "willfully testified falsely at the trial" on numerous points, including in telling jurors she did not make Egyptian Sheik Omar Abdel-Rahman available to his followers and did not violate government rules meant to silence the sheik because lawyers worked in a "bubble" in which the government understood the rules were relaxed. "The purpose of the testimony was to mislead the jury on material matters," he said. He also found she had violated a position of public trust, a finding he had not made at the original sentencing.

She was convicted of providing material support to a terrorist organization for letting Abdel-Rahman communicate with a man who relayed messages to senior members of an Egyptian-based terrorist organization....

In her statement to the court Thursday, Stewart said prison life was harder than she had ever imagined. "Over the last eight months, prison has diminished me," she told the judge, choking up briefly as she described the hardship of separation from her family.

"I sense myself losing pieces of my personhood," she said as she described how prison thoughts become regimented like the institutional regulations she must follow. She said she felt a world that once surrounded her with family was "slipping away, and there is so little I can do about it."

Prosecutors had asked the judge to impose a sentence of at least 15 years. The courtroom was packed with supporters of Stewart, who applauded her entrance and shouted "No!" when she said she feared she had let them down.

Assistant U.S. Attorney Andrew Dember told Koeltl that "substantial incarceration is warranted" because Stewart knew she was part of a conspiracy to murder innocent civilians. "She repeatedly lied to the government and deceived the government," Dember said. "Ms. Stewart repeatedly committed perjury in this case." He said she was just "another criminal who fails to accept responsibility."

This term is a bit longer than I expected, and it shows yet again that sometimes defendants can get in additional trouble at sentencing based on what they say and not just based on what they have done.

July 15, 2010 in Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (12) | TrackBack

NBA's Delonte West sentenced (lightly? harshly?) for weapons offenses in Maryland

The fact that the Supeme Court has now made clear that the Second Amendment applies to the states apparently did not prompt NBA player Delonte West or his lawyer to think he ought to try to fight his prosecution for keeping and bearing arms on a Maryland highway last year.  As detailed in this Washington Post article, West today pleaded guilty and was sentenced for his arms possession:

NBA player Delonte West pleaded guilty Thursday to two weapons charges and was sentenced by a Prince George's County judge to eight months of home detention, two months of probation and 40 hours of community service.

West had been charged with six weapons offenses and two traffic violations. He pleaded guilty to carrying a dangerous weapon -- an eight-inch bowie knife -- and illegally transporting a handgun.

At a court hearing in Upper Marlboro, West's attorney, C. Todd M. Steuart, said his client was taking the weapons from his mother's home in Brandywine to his house in Fort Washington when he was stopped by a Prince George's police officer on the Capital Beltway in the Landover area, miles away from either home. West was carrying two handguns, a shotgun, the knife and more than 100 shotgun rounds.

West told Circuit County Judge Graydon S. McKee III that he felt remorse for the incident. "I want you to know how apologetic I am to you and all the other professionals in here who do the right thing," he said. West said he often speaks to Washington area youth who have been in trouble. "I'm able to share my experiences with them," he said. "I'm able to relate to them. If I never dribble a basketball again, I think I found my calling."

Following the hearing, State's Attorney Glenn F. Ivey said the sentence will allow West to go to Cleveland for his job as a player with the Cleveland Cavaliers. West will be allowed to attend practices, home games and away games, Ivey said.

Prince George's prosecutors typically ask for a year in jail for defendants convicted of a weapons offense. Judges usually sentence defendants with no prior convictions -- like West -- to probation or home detention, Ivey said. The terms of West's plea bargain ensure he is being treated no differently than any other defendant in similar circumstances, Ivey said.

As the title to this post suggests, I am unsure whether it is fair to view West's sentence as light, harsh, or perhaps just right.  As I suggested in this post right after West's arrest, a person with a robust view of the Second Amendment might be greatly concerned that West is subject to a significant sanction for merely keeping and bearing arms.  And yet, in light of the significant prison sentences given to Plaxico Burress and Lil Wayne for gun possession in New York City, West likely should consider himself lucky to avoid any serious jail time.

July 15, 2010 in Celebrity sentencings, Gun policy and sentencing, Offense Characteristics, Second Amendment issues | Permalink | Comments (3) | TrackBack

Interesting research on sex offender registration and home sales

I just saw via SSRN this intriguing criminology paper titled "Estimating the Effect of Crime Risk on Property Values and Time on Market: Evidence from Megan’s Law in Virginia."  Here is the abstract:

This paper explores the effect that living near a sex offender has on the marketability of one’s home. Specifically, we estimate the impact on a home’s sales price and the length of time it takes for the home to sell.  Since the 1994 passage of Sexual Offender Act (known as Megan’s Law), persons convicted of sex crimes have been required to notify local law enforcement about their current domicile and any change of address.  Since then, sex offenders’ residencies have become publicly available information allowing anyone to lookup whether a sex offender resides nearby.  Using cross-sectional data from a central Virginia multiple listing service we find that sexual offenders have robust and economically large effects on nearby real estate.  Our results indicate that the presence of a nearby registered sex offender reduces home values by approximately 9%.  Moreover, these same homes take as much as 10% longer to sell than homes not located near registered sex offenders.  These results prove robust over numerous specifications and modeling techniques commonly found in the literature.

In light of this research, I fear it may be only a matter of time before someone with a political agenda tries to start blaming the burst of the housing bubble on sex offenders.

July 15, 2010 in Sex Offender Sentencing | Permalink | Comments (30) | TrackBack

Notable press account of Skoein Second Amendment ruling with partisan perspectives

The AP has this notable new piece, headlined "Court's decision offers some clarity on gun laws," discussing the Seventh Circuit significant Second Amendment ruling in Skoien from earlier this week.  Here are some highlights:

A federal appeals court upheld a ban on gun possession for a domestic violence offender in a ruling that several anti-violence advocates applauded Wednesday for providing some clarity after the U.S. Supreme Court's recent landmark decision on gun restrictions....

"Even with the new definition of the Second Amendment, it (Tuesday's ruling) shows that you can still have reasonable gun restrictions," said Paul Helmke, president of the Brady Center to Prevent Gun Violence said of the appellate ruling. "This case really reaffirms that you can have limits."

But Herbert Titus, an attorney for the Virginia-based Gun Owners of America, which filed an amicus brief for the Wisconsin man called the decision outrageous. He said the Supreme Court's ruling put the Second Amendment on par with the First Amendment, which can't be taken from someone.

"No one has said you lose your First Amendment rights if you violate some law," he said. "Why should we assume just because you violated some law, the government can take away your Second Amendment rights?"

The Wisconsin case involved Steven Skoien who was convicted twice of misdemeanor domestic violence involving two different women. While on probation, the Janesville, Wis., man was arrested in 2007 for gun possession, pleaded guilty the following year and was sentenced to two years in prison....

Some experts said Tuesday's ruling at least provided some clarity for what gun restrictions might be acceptable -- if only for narrowly defined terms. "This decision clarifies for the moment that people who are situated in that same situation as the plaintiff don't have an immediate Second Amendment claim," said Nicholas Johnson, professor at Fordham University School of Law in New York.

But the ruling left much in doubt, including whether a person convicted of misdemeanor domestic violence could earn back the right to carry guns. "There will be time to consider that subject when it arises," Easterbrook wrote in his opinion.

I am pleased to see that a gun-rights group like Gun Owners of America is not backing away from its forceful views on constitutional gun rights in a case like this.  I wonder if other like-minded groups, and especially the National Rifle Association, will express a similar view. 

Especially if Steven Skoien seek Supreme Court review of his loss in the Seventh Circuit, which I expect he will, the amicus support of groups like Gun Owners of America and the NRA could play a critical role in whether the Justices feel a need to take up this issue now or only after they have deal with other post-Heller issues.

A few related Second Amendment posts on Skoien and related issues:

July 15, 2010 in Second Amendment issues, Who Sentences? | Permalink | Comments (4) | TrackBack

An amusing spat in the Third Circuit over a not-very-brief sentencing brief

This piece from The Legal Intelligencer, which is headlined "Convicted Politician's Attorneys Urge Federal Appeals Court to Bounce Big Brief," reports on a preliminary bout in the Third Circuit that is kicking off an appellate fight over the proper sentence for a high-profile state politician. Here are some details:

If appellate briefs are a war of words, it would seem that the lawyers for Vincent Fumo, the imprisoned former Pennsylvania state senator, are asking for a little arms control.

Prosecutors recently filed a 281-page opening brief in an appeal that challenges the 55-month sentence imposed on Fumo and the one-year term imposed on Fumo's longtime aide, Ruth Arnao, but defense lawyers are now urging the 3rd U.S. Circuit Court of Appeals to reject the brief, arguing that it is simply too long and sets the stage for the court and the lawyers to be swamped in paper.

"At 53,453 words, the government's proposed brief is nearly four times the 14,000 word limit for an opening brief and, standing alone, exceeds the total number of words contemplated for all four briefs combined in cases involving a cross-appeal (51,500)," the defense lawyers wrote.

"More to the point, if briefing were to continue at this pace with briefs of proportionate length filed by all parties, the court will be faced with nearly 1,500 pages of briefs totaling almost 300,000 words -- a sum nearly half again as long as Moby-Dick," the defense team wrote in a brief filed on Monday.

But in a quick response brief also filed on Monday, the prosecutors argued that the complexity of the appeal called for the government to file a hefty brief and that the defense move to have it rejected "must be viewed as entirely opportunistic, aiming to thwart the government's ability to thoroughly describe the numerous sentencing errors committed in these proceedings."

The government "recognizes that its brief is of an exceptional length," the prosecutors argue, "but after careful consideration and extensive editing efforts, respectfully asks permission to file it."...

The prosecutors filed a motion last week, along with the brief, that asked permission to exceed the court's limit on the number of words. Such motions are routinely granted, sometimes by the court clerk, and rarely elicit any response from the other side.

But Fumo's and Arnao's lawyers say they were compelled to respond because the government's brief is nearly four times the word limit outlined in the court's rules. "Briefing of this length places an undue burden on this court and opposing counsel and will only serve to slow the administration of justice in this case," the defense lawyers wrote.

I have to think that the extreme length of the government's brief, which I believe is only concerned with sentencing issues, is not going to be too kindly received by the judges on the Third Circuit.  And yet, I would be surprised if the judges refuse to let it be filed.  That said, the notion that the government could not get the brief in at less than 281 pages even after "extensive editing efforts" is almost as believable as the oft-stated government's claim that within-guideline sentences are always reasonable.

July 15, 2010 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Any predictions for today's scheduled resentencing of Lynne Stewart?

As detailed in this AP piece, which is headlined "Government Seeks Tough Sentence Against NY Lawyer; NY Lawyer Who Helped Relay Messages From Blind Egyptian Sheik Could Get Much Longer Sentence," today is the scheduled resentencing of Lynne Stewart. Here are the basics:

A judge was poised to decide whether the government and some fellow judges were right when they said a 70-year-old former civil rights lawyer convicted in a terrorism case received too much leniency when she was sentenced to just over two years in prison.

U.S. District Judge John Koeltl was to resentence attorney Lynne Stewart on Thursday after considering the comments of appeals court judges who said he should review the role of terrorism in her case and consider if she lied when she testified at her trial.

Stewart, facing up to 30 years in prison, was sentenced to two years and four months after her conviction on charges that she let blind Egyptian Sheik Omar Abdel-Rahman communicate with a man who relayed messages to senior members of an Egyptian-based terrorist organization.

Abdel-Rahman is serving a life sentence for conspiracies to blow up New York City landmarks and assassinate Egyptian President Hosni Mubarak. Stewart represented him at his 1995 trial. Stewart was sentenced in 2006 but was permitted to remain free until the appeals court ruled last November.

Initially, the 2nd U.S. Circuit Court of Appeals ordered a resentencing that did not seem to pressure Koeltl to boost the length of the sentence considerably. But it revised its decision a month later, saying it had "serious doubts" whether her sentence was reasonable. The appeals court said Koeltl might have erred if he decided the terrorism enhancement should not be applied because of Stewart's personal characteristics.

At the first sentencing, Koeltl described Stewart as "extraordinary," a dedicated public servant who had "represented the poor, the disadvantaged and the unpopular, often as a court-appointed attorney," thus providing a "service not only to her clients but to the nation."

About 100 supporters of Stewart marched past the federal courthouse in lower Manhattan on Wednesday evening, carrying signs that said "Free Lynne Stewart" and "We Stand With Lynne Stewart." They then walked around the corner to the federal prison where Stewart is held and rallied there.

In court papers, prosecutors have asked for Stewart to receive a "severe sentence" of between 15 and 30 years in prison, saying she had carried out a plan to smuggle terrorist messages from Abdel-Rahman to his Middle East followers and had engaged in "extraordinarily severe criminal conduct."

I predict that Stewart will receive a sentence in the 6 to 8 year range.  I think it virtually certain that she will be getting a longer prison term than the first time around, but I also feel confident predicting that Judge Koeltl will not want to give her a term so long that it amounts to a functional life sentence.  Consequently, I will be surprised if Stewart gets a sentence of less than three years or more than ten, and my prediction is really just a splitting the difference between these expected benchmarks.

July 15, 2010 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

July 14, 2010

Tennessee Gov commutes death sentence of woman condemned for murder-for-hire

As detailed in this local press report, Tennessee Governor Phil Bredesen "this morning commuted the death sentence of Gaile Owens to life imprisonment."  Here are more of the details:

Ms. Owens was convicted by a Shelby County jury in 1986 of being an accessory before the fact to first-degree murder in the murder-for-hire plot of her husband, Roger Owens. He was beaten to death in 1985.

Gov. Bredesen said there were two issues that were important to him. The first is “there’s at least the possibility” of Ms. Owens having been in an “abusive marriage.”

Secondly, Gov. Bredesen said, prosecutors had originally offered Ms. Owens a plea bargain deal, which she had accepted. “The district attorney clearly considered it an appropriate resolution as well,” Gov. Bredesen said.

But the governor said the plea bargain was conditioned on a plea by her co-conspirator, who rejected it. Ms. Owens was then tried and convicted.

Gov. Bredesen said a review of state records show 33 instances of women involved in first degree murder. In only two cases — one of them involving Ms. Owens — were there death sentences. Then-Gov. Lamar Alexander issued a commutation in the other case. The governor said in one case, a woman was sentenced to life without parole. In 30 others, the women were sentenced to life.

Under the commutation, Ms. Owens could come up for consideration of parole in the spring of 2012.

The official commutation document from Governor Bredesen's office can be found at this link.

When I heard some of the details of this case via this piece on the CBS Sunday Morning show last month, I predicted to my wife that Ms. Owens would likely have her death sentence commuted.  Thus, I am not really surprised by what Governor Bredesen decided to do here, but I am a bit surprised that he made this decision more than two months before her scheduled execution date.

July 14, 2010 in Clemency and Pardons, Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (14) | TrackBack

Wisconsin Supreme Court upholds sentence despite judge's reference to defendant's "baby mama"

As noted in this post from January 2009, an intermediate Wisconsin court had ordered a new sentencing hearing for a drug defendant because the sentencing judge referred to the man's "baby mama" and asked him where "you guys" find women to support them while they stay home. Now, as reported in this AP story, the Wisconsin Supreme Court has reversed this reversal.  Here is how the main opinion in Wisconsin v. Harris, 2010 WI 79 (July 14, 2010) (available here), gets started:

Following his conviction and sentencing for drug-related crimes, Landray M. Harris moved for relief from his sentence on the grounds that the court made inappropriate comments reflecting racial and gender stereotypes during the sentencing hearing.  The circuit court denied the motion, and in an unpublished opinion, the court of appeals reversed and held that the defendant was entitled to resentencing.

This case concerns the proper legal principles that govern review of a sentence when a defendant claims the circuit court imposed its sentence on the basis of race or gender.  The court of appeals adopted, and Harris endorses, a new "reasonable observer" test which queries whether the circuit court's comments suggest to a reasonable observer that the court improperly relied on race or gender when imposing its sentence. The State maintains that a reasonable observer's perception of the court's comments is not indicative of whether the court improperly relied on race or gender.

We agree with the State and reject the reasonable observer test created by the court of appeals. Sentencing decisions are afforded a presumption of reasonability consistent with Wisconsin's strong public policy against interference with a circuit court's discretion.  Our review of sentencing decisions is therefore limited to determining whether the circuit court erroneously exercised its discretion. Discretion is erroneously exercised when a sentencing court actually relies on clearly irrelevant or improper factors, and the defendant bears the burden of proving such reliance by clear and convincing evidence. It is beyond dispute that race and gender are improper factors; they may not be relied upon — at all — in the imposition of a sentence.

After reviewing the sentencing transcript in context and as a whole, we conclude that Harris has not met his burden of proving by clear and convincing evidence that the circuit court actually relied on race or gender.  The circuit court considered the proper factors — it evaluated the gravity of the offense, Harris's character, and the public's need for protection.  The circuit court thoroughly explained its reasons for the sentence it imposed, and all of the potentially offensive comments flagged by both Harris and the court of appeals bear a reasonable nexus to proper sentencing factors.  Because Harris has not shown that the circuit court erroneously exercised its discretion, we reverse the decision of the court of appeals.

In not-quite-releated news via the always hard-hitting US Magazine, Levi Johnson is now engaged again to his baby's mama (or perhaps Briston Palin should be called a baby mama grizzly, or the baby mama baby of a mama grizzly).

July 14, 2010 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (9) | TrackBack

Skoien and the many challenges of Second Amendment jurisprudence

The Seventh Circuit's Skoien en banc ruling yesterday, which via this opinion by Chief Judge Easterbrook, rejects a Second Amendment challenge to the federal law criminalizing gun possession by anyone previously convicted of a domestic violence misdemeanor, reinforces my sense that Second Amendment jurisprudence is going to be very messy and very challenging in the months and years ahead.  Here are just some of the ways the Skoien majority opinion highlights these realities:

1.  Uncertainty about the standard of reviewThe Skoien opinion properly cites Heller to reject a "rational-basis test" for the Second Amendment, but then avoids giving any more content to the proper standard of review through this passage:

The United States concedes that some form of strong showing (“intermediate scrutiny,” many opinions say) is essential, and that § 922(g)(9) is valid only if substantially related to an important governmental objective.... The concession is prudent, and we need not get more deeply into the “levels of scrutiny” quagmire, for no one doubts that the goal of § 922(g)(9), preventing armed mayhem, is an important governmental objective.  Both logic and data establish a substantial relation between § 922(g)(9) and this objective.

Skoien foreshadows a "quagmire" if (and when?) Second Amendment jurisprudence has to start sorting through levels of scrutiny, and its seeks to avoid this quagmire by positing that (any and all?) gun regulations are substantially related to an important governmental objective.  But given that gun regulations are always aimed at improving public safety and that the creators of such regulations surely see their restrictions as substantially related to this goal, it is unclear how much more real bite is being given to a standard of review here in Skoien.

2.  Too ready justification for gun restrictionAs hinted above, the real problem with Skoien may not be how it avoid a clear legal test for the Second Amendment, but how readily it concludes that such a test is satisfied by the criminal law being challenged.  If preventing gun violence (i.e., "armed mayhem") is always going to qualify as an important governmental objective, and if "logic and data" of the sort set out in Skoien is adequate to justify a very broad criminal prohibition on gun possession by a large class of persons, it seem very unlikely that many (or really any) partial gun bans will be struck down.  Gun control advocates always can and often do seek to make logical and statistical arguments that a specific gun ban will reduce access to guns and thus reduce the potential for gun violence.

3.  Questionable analogies to the First Amendment and sex offender restrictions:  The majority opinion in Skoien justifies its ruling by developing or referencing analogies to First Amendment jurisprudence and sex offender restrictions, but the analogies are suspect in many respects.  As the dissent notes, there are no categories of persons who are subject to criminal prosecution just for seeking to exercise a freedom to speak.  (There are categories of speech not subject to constitutional protection, but this is analgouos to arms like bazookas and bombs that I assume are categorically excluded from coverage by the Second Amendment.)  Similarly questionable is the suggestion in Skoien that allowing registration and zoning rules for convicted sex offenders makes "generally proper" a categorical exclusion of certain misdemeanant from a fundamental right expressly protected by the Bill of Rights.

As my comments above suggest, I am unimpressed by the constitutional method in Skoien.  For this reason (and others), I also find the ultimate ruling not so convincing.  But the point of this post is not merely to dicker with the outcome; rather, I principally wanted to highlight how hard it is going to be for courts to sort through all the challenging constitutional issues implicated by modern gun restrictions and the new constitutional gun rights set out in Heller and McDonald.

A few related Second Amendment posts on Skoien and related issues:

July 14, 2010 in Second Amendment issues, Who Sentences? | Permalink | Comments (28) | TrackBack

Another marijuana ballot proposition worth watching this November

California's Proposition 19 calling for the legalization of marijuana even for recreational uses is, of course, the biggest drug war political story this November.  But as detailed in this local piece from Arizona, which is headlined "Prop 203: Details on Push to Legalize Medical Marijuana," another western state has a pot ballot proposition worth watching.  Here are the basic details:

Whether to legalize medical marijuana will be on the ballot this November, and Arizona voters will decide whether to allow doctors to prescribe it to some patients. And the state hopes to regulate the drug if the measure passes.

"We need to have rules in place from the outset," says Andrew Myers, campaign manager for the Arizona Medical Marijuana Policy Project. Myers says California's problem is that they failed to limit the number of marijuana dispensaries and the patients who could get the plants....

Proposition 203 lists patients with cancer, glaucoma, HIV/AIDS, Hepatitis C, ALS, Crohn's disease and Alzheimer's as prime candidates for medical marijuana -- but leaves the door open for any number of symptoms from nausea to severe pain, which has opponents worried.

"It's really not about medical marijuana it's about decriminalization, and tying up the hands of the police, the prosecutors, and the courts," says Doug Hebert, who's mounting a campaign against Proposition 203.

His primary concerns are access to kids and teens, lax regulation, and the fact that those who don't live within 25 miles of a dispensary can grow their own. "We're going to have actually be plagued with indoor groves around the state of Arizona, because most of Arizona is rural area."

Of course, Arizona is already a hot-spot for criminal justice federalism issues due to its new state illegal immigration law.  In addition, the "grow-your-own" provision in Arizona's Prop 203 would add a new layer of complication to the various enforcement issues that states with medicial marijuana regulations already encounter.  Throw in ever-present debates over how the drug war contributes to violence at the border, and this Arizona pot proposition is clearly worth watching in the months ahead.

July 14, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Is DOJ eager for (and obliquely urging) reducing the severity of the federal sentencing guideline for child porn downloading?

Among the many interesting aspect of the letter sent last month by the Justice Department's Criminal Division to the US Sentencing Commission (basics here) is its discussion of possible reform of the sentencing guidelines for child porn offenses.  Consider, in particular, these passages:

We also believe the Commission should conduct a review of — and consider amendments to — those guidelines that have lost the backing of a large part of the judiciary. These reviews should begin with the guidelines for child pornography possession offenses and fraud offenses....

The goal of any such reform would be to update the guidelines to address changing technology and realities surrounding these offenses, improve the consistency of sentences across child exploitation crimes, and ensure that the sentences for ceiiain child exploitation offenses adequately reflect the seriousness of the crimes.

We think the report to Congress ought to recommend legislation that permits the Sentencing Commission to revise the sentencing guidelines for child pornography offenses and that suggests what any revised guidelines might look like....

We believe changes in the use of technology and in the way these crimes are regularly carried out today suggest that the time is ripe for evaluating the current guidelines and considering whether reforms are warranted.  Consideration ought to be given to updating many aspects of the child pornography sentencing guidelines to better calibrate the severity and culpability of defendants' criminal conduct with the applicable guideline sentencing ranges.  Because the current guidelines are largely mandated by statute, though, legislation will be required to modify them.

The references here to "changes in the use of technology" and to the need for "the child pornography sentencing guidelines to better calibrate the severity and culpability of defendants' criminal conduct" suggest to me that the Justice Department largely agrees with the view of many federal judges that the guidelines are too severe when recommending very long prison sentences for defendants who merely download lots of child porn pictures via file-sharing programs.  I suspect the Justice Department sensibly and wisely believes that reformed federal guidelines recommending shorter (but still significant) prison terms for child porn downloading would lead to more consistency in the sentencing of these offenses.

Of course, DOJ does not here openly urge reductions in guideline ranges (probably wisely, because doing so could prompt a sound-bite political backlash).  But the last sentence of the passage above is likely a give-away of DOJ's fundamental perspective: the US Sentencing Commission would not really need new legislation from Congress in order to  make the child porn guidelines harsher.  And though it is not obvious the USSC needs new legislation from Congress in order to reduce the severity of the child porn guidelines, that the DOJ suggests legislative reforms indicates that it may be eager to get behind a thoughtful and measured reduction in the severity of the current guidelines for child pornography possession offenses.

Recent related posts:

July 14, 2010 in Federal Sentencing Guidelines, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Should we be troubled that some registered sex offenders can get a US passport?

This new piece at CNN, which is headlined "Thousands of sex offenders receive U.S. passports," seem to be trying to get folks alarmed about something that does not seem to me to be too alarming.  Here are the basics:

Thousands of registered sex offenders have received U.S. passports, including at least 30 federal employees, according to a Government Accountability Office report obtained by CNN. The GAO report said the Department of State cannot legally deny passports to registered sex offenders, except those specifically convicted of sex tourism.

The report concluded that about 4,500 U.S. passports of the more than 16 million issued in fiscal year 2008 were issued to registered sex offenders. "Federal statutes authorize the Secretary of State to deny issuance of a passport in certain circumstances, such as while an individual is imprisoned or on parole or supervised release for a conviction for international drug trafficking or sex tourism or is in arrearages for child support," the report states. "However, there is currently no comprehensive program to deny passports to applicants who are registered sex offenders."

The State Department called the report "very misleading" and adding it "conveys more 'shock value' than factual accuracy." In a written response, the department pointed out that only a fraction of 1 percent of the 16 million passports issued in fiscal year 2008 went to registered sex offenders. In addition, the title of the report "fails to convey that GAO found no lawful reasons for the department to deny or revoke the passports of the case study sex offenders based on their status as sex offenders."

"The report appears to suggest, without any foundation, that the Department's issuance of passports to certain Americans facilitated their commission of sex crimes abroad," the department's response said. "There are no facts in the report which show that any of the thirty individuals included in the case studies used his passport to travel to a foreign country to commit a sex crime."...

The GAO report was requested by Sen. Charles Grassley, R-Iowa, and Sen. Max Baucus, D-Montana. The GAO studied data from the National Sex Offender Registry (NSOR). However, the approximately 4,500 sex offenders who received passports in fiscal year 2008 "is likely understated because many of the records in the passport database and the NSOR lacked valid Social Security numbers ... In addition, the NSOR does not currently contain a comprehensive listing of all sex offenders from the states."

The GAO found cases that include a sex offender from Texas who received a passport while in prison, a Delaware man with multiple sex convictions who traveled to the Philippines, Germany and France since receiving his passport, and a Georgia man who has traveled to the Philippines, Ireland and Panama.

Among the federal employees who received passports was an aerospace engineer with NASA, an employee of the Bureau of Engraving and Printing, and a Postal Service carrier who traveled to Taiwan and Japan after receiving his passport.  About 50 of those who received passports either lived outside the United States or "their whereabouts were unknown," the report said.

There are both constitutional and policy reasons why I am inclined to shrug in response to this story.  First, unless a sex offender's sentence or some federal law categorically prohibits leaving the United States, it would be potentially unconstitutional for the State Department to deny all passport application for all persons with a prior sex offense.  Second, any American concerned about sex offenders around their children should probably be pleased to learn that some of them are eager and able to leave the US.  And I certainly do not think it a wise or effective use of US tax dollars for the our government to be trying to track and monitor all sex offenders around the globe.

Of course, no criminals — whether guilty of sex or drug or white-collar offenses — should find it easy to flee the country while still being prosecuted for an offense or otherwise subject to lawful restrictions on their movements.  But once an offender has served his full sentence — whether guilty of sex or drug or white-collar offenses — I do see a strong reason why the US State Department should be chiefly concerned with making certain prior offenders cannot ever leave the country.

July 14, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

July 13, 2010

"Races could test voters' views on death penalty"

The title of this post is the headline of this article from the front-page of today's San Francisco Chronicle.  Here is how it gets started:

For decades, capital punishment was a driving force in California politics, swaying elections for governor and the U.S. Senate and reshaping the state Supreme Court.

While executions in California have been on hold for more than four years, tied up in court challenges to lethal injection procedures that the state is now redrafting, November's elections may determine whether the death penalty still carries political weight.

The contrasts at the top of the major parties' tickets could not be starker.

Democrats Jerry Brown and Kamala Harris, the candidates for governor and attorney general, oppose capital punishment and have acted on their beliefs -- Brown by vetoing a death penalty bill when he was governor in 1977, Harris by refusing to seek death sentences as San Francisco district attorney.

Their Republican opponents, Meg Whitman and Steve Cooley, support capital punishment. So do most Californians, according to Field Poll surveys going back half a century, although the majority has fallen from 83 percent in 1986 to 67 percent in 2006.

July 13, 2010 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2) | TrackBack