July 20, 2010
"Are Lindsay Lohan, other celebs glorifying jail time?"Today's question of the day comes via this lengthy article with the same headline as my post title in the Detroit Free Press. Here is how the piece it begins:
Lindsay Lohan is scheduled to go to jail today. While it may not sound like a big deal -- yet another train-wreck celeb in trouble -- it may actually have a cumulative effect on fans, especially young people. Social experts suggest that being pelted with image after image of celebrity after celebrity in trouble does have societal implications.
"Things like reality TV and other things have almost glorified going to jail," said Arthur Robin, head of psychology at Children's Hospital of Michigan. "Yes, it's still something young people view very negatively, but probably not as negatively as 50 years ago."
The accelerated news media obsession with locked-up celebrities, politicians and sports stars may be desensitizing young people to jail, experts have said. Rather than a stiff penalty, jail has become a simple inconvenience.
Published reports suggest Lohan's first post-jail interview will be worth more than $500,000. Lil Wayne plans to drop his next album from Rikers Island. And in urban areas like Detroit, the jailings of those in the public eye could be leading youths down the wrong path.
Elena Kagan recommended for SCOTUS confirmation by Senate Judiciary CommitteeI am off-line most of today to talk about the Eighth Amendment at the annual conference for the National Association of Appellate Court Attorneys. But a lunch break allows for a post on this SCOTUS news from the AP:
Pushing toward an election-year Supreme Court confirmation vote, a polarized Senate Judiciary Committee Tuesday approved Elena Kagan to be the fourth female justice. Just one Republican joined Democrats to approve Kagan's nomination and send it to the full Senate, where she's expected to win confirmation within weeks.
Sen. Lindsey Graham, R-S.C., broke with his party to cast the sole GOP "yes" vote on President Obama's nominee to succeed retiring Justice John Paul Stevens. The vote was 13-6. "What's in Elena Kagan's heart is that of a good person who adopts a philosophy I disagree with," Graham said. "She will serve this nation honorably, and it would not have been someone I would have chosen, but the person who did choose, President Obama, I think chose wisely."
A few more Republicans are expected likely to back Kagan in the full Senate, where Democrats have more than enough votes to confirm her. But most GOP senators are against her, arguing that she would put her political views ahead of the law. They point to what they call her liberal agenda and on such issues as abortion and gun rights, and have chastised her for the decision as dean of Harvard Law School to bar military recruiters from the campus career services office because of the policy against openly gay soldiers.
July 19, 2010
Seventh Circuit grants bail to Lord Conrad Black after his SCOTUS winAs detailed in this Bloomberg report, "Conrad Black, the former Hollinger International Inc. chairman jailed since March 2008 following a conviction for fraud, was granted bail" by the Seventh Circuit this afternoon. The brief order is available at this link, and here is more background:
Black is “granted bail pending the disposition of his appeal in this court,” the appeals court wrote in today’s order. The case is sent back “for the limited purpose of permitting the district court to determine the conditions of release.”...
Black and the other executives with whom he was tried, were accused of siphoning the money from Hollinger International as they engineered the sale of $3 billion of its assets between 1998 and 2001. The Chicago-based company is now known as the Sun-Times Media Group Inc.
The fraud case was prosecuted by the office of Chicago U.S. Attorney Patrick Fitzgerald. His spokesman, Randall Samborn, today declined to comment on the appeals court ruling.
“We’re working very hard to get in front of the district court as soon as we can so we can get him out,” said Miguel Estrada, Black’s appellate lawyer. “It shows the government was wrong to say the Supreme Court’s 9-0 ruling meant nothing.”
Black has been serving a 6 1/2-year sentence at a low- security federal prison in Coleman, Florida.
Effective report on the ratcheing back of Georgia's sex offender residency restrictionsThe AP has this effective new report on the legislative softening of Georgia's sex offender residency restriction. (Hat tip: C&C) The piece is headlined "Ga. softens once lauded strict sex offender law," and here are excerpts:
Georgia was lauded four years ago by conservatives for passing one of the nation's toughest sex offender laws. But the state has had to significantly — and without fanfare — scale back its once-intense restrictions.
Georgia's old law was challenged by civil liberties groups even before it took effect. After losing court battle after court battle, state legislators were forced to make a change or a federal judge was going to throw out the entire law. Now that the restrictions have been eased, about 13,000 registered sex offenders — more than 70 percent of all Georgia sex offenders — can live and work wherever they want....
Georgia's strict law ran into trouble because it cast too wide a net, targeting sex offenders that committed their crimes years before the tough law was passed in 2006.... Gov. Sonny Perdue signed the changes into law in May, allowing the 13,000 or so registered sex offenders who committed their offense before June 4, 2003, to live wherever they choose. The date was picked because that's when the state's first sex offender overhaul took effect. Those restrictions were then strengthened three years later....
"The bottom line was that the hammer was about to fall on us, and I was deeply concerned that the entire statute was in jeopardy," said state Sen. Seth Harp, who helped push the latest revision. The changes in the law also allow some offenders to petition to get off the registry, clear the way for disabled and elderly offenders to be exempt from residency requirements and no longer require sex offenders to hand over Internet passwords.
Iowa has also scaled back some of its restrictions under pressure from the law enforcement community. The 2006 law there banned sex offenders released from prison from living within 2,000 feet of schools and other places where children gathered, but lawmakers revamped it after lobbying from the Iowa County Attorneys' Association.
The new rules leave the 2,000-foot ban in place for the highest-level offenders, such as sexual crimes involving a child. It also set up 300-foot "no loiter" zones that ban all offenders from lingering around the facilities. "It's better than what we had, but it still fosters a false sense of security," said Corwin Ritchie, the association's executive director. "It does target the predator-type who might be sitting within sight of a school, but we have so many sex offenses going on within people's homes, we forget those type of victims."
Many states are moving in the opposite direction. At least five in 2009 tightened residency restrictions for sex offenders, according to the National Conference of State Legislatures. California and several other states are considering more changes this year.
"It's something that states are still struggling with," said Jill Levenson, a Lynn University professor who specializes in sex offender policies. "One side argues the laws aren't punitive, but the other side of the argument is that once people enter into a plea and agree to something, you can't come back years later and change it."
"Five Things You Need to Know About Lindsay Lohan's Pending Jail Stint"The title of this post is the headline of this hard-hitting new piece at E! Online. Here is the piece's intro and the heading of those important "five things you need to know":
Lindsay Lohan is going to do the time — even though she remains in denial. "She's really nervous," a source close to the actress tells E! News. "She is still hoping she is not going to jail." Meanwhile, back in reality...
Lindsay is due to surrender herself tomorrow to begin serving her 90-day sentence, which will likely be shortened drastically due to overcrowding (25 percent of the original sentence is about as much as gets served these days).
After appearing in court, she will likely be shuttled to the Century Regional Detention Facility in Lynwood, Calif. And here's what you need to know about Lindsay's new digs:
1. It Has Celebrity Cachet....
2. It'll Ruin Her Diet of Kombucha and Cigarettes....
3. Michelle Rodriguez Is Not Impressed....
4. It's Girl-on-Girl....
5. It's Going to Be a Rough Ride....
Relatedly, I would like to know if readers would like me to keep blogging about the train-wreck starlet who is about to become (not-quite-) just-another number among the nearly 2.5 million persons incarcerated in the United States.
I generally enjoy blogging about celebrity cases because they provide a visible setting to discuss timely sentencing issues. Also, even silly celebrity posts tend to generate many interesting comments and can be fun as a change of pace. But I am already feeling as though I have done a bit too much LiLo blogging lately, and will only keep on this particular celebrity beat if readers think it worthwhile.
Related recent Lohan sentencing posts:
- "Lindsay Lohan New Spokeswoman for SCRAM Alcohol Testing Accessory"
- Lindsay Lohan doing her best to become technocorrections poster child
- Lindsay Lohan provides yet another opportunity to debate the (un)real aspects of celebrity sentencing justice
- Kudos to Professor Erik Luna for being cited by Lindsay Lohan in her Twitter rant about her jail sentence
California Democratic Party punts on potent politics of pot policyThis Los Angeles Times piece, headlined "California Democratic Party decides not to endorse marijuana legalization initiative," reports on the latest interesting political move in the state with the most robust on-going debate on pot policy. Here are the basics:
The state Democratic Party decided Sunday not to endorse the marijuana legalization initiative on the November ballot after a swift, passionate debate that left little doubt most Democrats in the hotel meeting room intend to vote yes at the polls.
The party decided to adopt a neutral position on Proposition 19, leaving the many local Democratic committees and organizations free to endorse the measure.
Advocates for an endorsement cited many reasons to back the initiative, but opponents pressed one overriding concern: a yes vote could damage statewide candidates in competitive races.
"We're concerned that our candidates, Jerry Brown, Barbara Boxer and others, who have actually come out against this are going to be compromised," said Steve Preminger, the chairman of the Santa Clara County Democratic Central Committee, "so we're going to get lost in a discussion about the merits of whether we should legalize or not, when, really, we the Democratic Party want to put all of our efforts into electing our ticket."
Robert Cruickshank, public policy director for the Courage Campaign, which backs progressive causes, called for the vote in an attempt to overturn a party committee's recommendation to adopt a neutral position. He started by reminding the assembled Democrats that the party's chairman, former San Francisco state Sen. John Burton, has said pot was the issue that would motivate young voters to go to the polls in this off-year election.
"If we endorse Proposition 19 and take a courageous position to support reform, just as we took courageous positions on same-sex marriage and other contentious issues, we will win the moral argument, we will win Proposition 19 and we will win races in November," Cruickshank said.
Proposition 19 would allow Californians 21 and older to grow, possess and transport marijuana, and allow cities and counties to opt to regulate and tax marijuana sales. Burton said he believes the issue will engage young voters, a key constituency for Democrats. He abstained on the vote but said he was not convinced that an endorsement would hurt Brown's campaign for governor, Boxer's bid for reelection to the U.S. Senate or the other Democrats running for top state offices. "The statewide candidates, I guess, are all antsy," he said....
The party's executive board, which includes elected officials and party representatives from across the state, voted 101 to 85 against an endorsement. But the Democrats, despite taking a cautious stance, appeared solidly behind the initiative, cheering and whooping much more raucously for the pro-endorsement speakers.
Given that Democrats are often accused by their opponents as being a party of big government that favors equality over liberty, I suppose few should be too surprised that this party in California will not get behind a proposition designed to put power in local government and individual hands. In turn, I remain hopeful that some of the folks who vocally advocate for smaller government and greater individual liberty, especially those folks affiliated with the Tea Party movement, will get behind Proposition 19.
Some related posts on pot policy and politics:
- Should and will California's voters legalize marijuana in that state this November?
- RAND study (foolishly?) tries to forecast impact of pot legalization in California
- "Legalizing marijuana not really a dopey idea"
- Might Sarah Palin's sensible points about pot get Tea Party types to push for sensible drug reforms?
- Thoughtful academic thoughts on ending marijuana prohibitions
- Green tea party: will Glenn Beck or Sarah Palin or other professed liberty lovers support ending pot prohibition in California?
- Do "mama grizzlies" have a particular approach to crime and punishment issues?
- NPR's interesting coverage of "The New Marijuana"
- How can and should we assess the "success" of medical marijuana and pot prohibition reform efforts?
- This is Fox News on drugs ... lots of questions
- Fascinating racial justice debate on California pot legalization proposition
- New report details racial disparities in pot possession charges in California
"In many cases the judges who diverge from the advisory Guidelines ranges will do so for the wrong reasons"The title of this post is a sentence from this intriguing new commentary now on SSRN from Professor Jonathan Masur, which is titled simply "Booker Reconsidered." There is a lot worth saying about this must-read piece, and to start I welcome reader reactions to both the key sentence quoted in the post title and this key paragraph of the author's analysis that immediately precedes this key sentence (with footnotes removed):
The result [of Booker making the guidelines advisory] is a system that is likely to underperform the prior regime in several important respects. There will certainly be cases in which judges will be better able to tailor sentences to fit offenders and their crimes under the advisory Guidelines. This ability to consider penalties on a case-by-case basis is, of course, the principal advantage of charging judges with the task of sentencing. Yet the cost of endowing the federal courts with this modicum of flexibility in sentencing is that racial and ideological disparities are likely to reappear, possibly in even more pernicious form. And that cost may not be balanced by a corresponding benefit from reinvigorating the role of the courts.
I greatly appreciate the effort to bring some cost-benefit analysis into the Booker debate, as well as Professor Masur's focus on the "division of institutional responsibilities" in his analysis. But I find curious and troublesome that the statutory provisions of 3553(a), which Booker preserved as binding sentencing law, get scant attention in this piece. Indeed, this piece strikes me as another example of both Bookerand federal sentencing judges being criticized because Congress appears unwilling to do any of the hard sentencing work that the Blakely and Booker constitutional rulings would now seem to require for the construction of an ideal sentencing system.
And here is what I find especially curious about the sentence I have quoted in my post title: if/when judges are doing their jobs properly after Booker, in all cases the judges who diverge from the advisory Guidelines ranges should and must do so based only on the mandatory considerations set out by Congress in the text of 3553(a). If in fact the "wrong reasons" are being used by district judges in many case in light of the text of 3553(a), circuit judges should be reversing more sentences. Alternatively, if district judges are generally complying with the text of 3553(a) when deciding to vary from the guidelines, there is something peculiar about the assertion that these variances are for the wrong reasons in many cases.
July 19, 2010 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Recommended reading, Who Sentences? | Permalink | Comments (3) | TrackBack
Sixth Circuit provides some intriguing advice during plain error sentence reversal
A sixth Circuit panel does some interesting work this morning in US v. Wilson, No. 08-1963 (6th Cir. July 19, 2010) (available here), which gets started this way:
Lashawn Wilson (“Wilson”) pleaded guilty to a single count of mail fraud, in violation of 18 U.S.C. § 1341, and was sentenced to 48 months of imprisonment. She now brings this sentencing appeal, arguing that the district court committed plain error by selecting her sentence based on the clearly erroneous premise that she had stolen one thousand money orders and five hundred cashier's checks. We agree, and we therefore vacate her sentence and remand for resentencing.
Though any plain error sentence reversal is worth noting, footnote one of the Wilson majority opinion (per Judge Boggs) and the concurrence (per Judge Martin with Judge Cole joining) are what really caught my attention. Here is the footnote (emphasis in original):
Wilson does not object to the district court’s use of a written sentencing opinion to explain the reasons for her sentence. We note, however, that this practice is somewhat disconcerting. Indeed, the use of a pre-prepared sentencing opinion in lieu of an oral recitation creates the worrisome impression that the district court’s decision was etched in stone before the parties had the opportunity to be heard. If that were the case, the procedural safeguards enshrined in Federal Rule of Criminal Procedure 32(i) would be drained of meaning. Consequently, we expressly encourage judges who prepare opinions in advance to be particularly mindful of Rule 32(i)’s requirements. In addition, we observe that a final sentencing decision should not be reached until after the hearing has been completed.
Here is how Judge Martin piles on at the start of his Wilson concurrence:
I concur in the lead opinion, but I feel compelled to comment upon the practice of a judge walking into a sentencing hearing with an opinion already prepared. The lead opinion quite properly discusses the matter in a footnote, as neither party directly took issue with the practice. I write separately because the practice deserves the kind of piling on that cannot be accomplished in a footnote.
US Sentencing Commission seeking comment on reduced criminal history guideline being retroactiveAs detailed in this official Federal Register Notice of request for public comment, the US Sentencing Commission is formally seeking input on whether to make its new defendant-friendly amendment to the criminal history sentencing guidelines retroactive. Here is the USSC's summary from its website of what its doing here:
On April 29, 2010, the Commission submitted to the Congress amendments to the sentencing guidelines and official commentary, which become effective on November 1, 2010, unless Congress acts to the contrary. Such amendments and the reasons for amendment subsequently were published in the Federal Register (75 FR 27388, May 14, 2010). One of the amendments, specifically Amendment 5 pertaining to the use of recency as a factor in the calculation of the criminal history score, has the effect of lowering guideline ranges. The Commission requests comment regarding whether that amendment should be included in subsection (c) of §1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) as an amendment that may be applied retroactively to previously sentenced defendants. (75 FR 41279)
Ironically, because Percy Dillon lost his SCOTUS appeals contending that district courts should have broader sentencing discretion when dealing with guideline amendments made retroactive, I predict that the USSC will be much more inclined to make this defendant-friendly amendment (and any other future similar amendments) retroactive. Indeed, the Dillon outcome likely will also make DOJ and others less inclined to categorically oppose retroactivity and to instead urge refined restrictions on exactly who can get to benefit from a new guideline made retroactive.
Recent related posts:
- SCOTUS rules 7-1 against defendant in crack retroactivity case
- Percy Dillon's loss is sure to be other future defendants' gain
California struggling with new challenges posed by GPS technocorrectionsRegular readers know that I view technocorrections like GPS tracking as a common punishment of the future, and that is one reason I find especially notable this local piece detailing California's problems with this form of technocorrections now. The piece is headlined "Sex offenders unwatched as parole struggles with GPS system," and here are excerpts:
Two special reports by the state Office of the Inspector General found Corrections' GPS policies were confused at best and non-existent at worst.
The full technological abilities of the system aren't being used, agents and supervisors aren't properly trained and agents are so overloaded with GPS busy work they aren't able to do other vitally important checks in the field, according to the reports. Overall, the reports concluded, Corrections is not aggressively monitoring sex offenders and the public is being given a "false sense of security."...
"Parole agents are so busy tracking dots on a computer screen, they're not out making home visits, checking the guy's workplace, talking to family members," said Melinda Silva, president of the Parole Agents Association of California. "Agents are spending the bulk of their time running tracks including at home and on the weekends."
Jessica's Law, passed in 2006, started the ball rolling on lifetime GPS monitoring of sex offenders. Then the Garrido report added more responsibilities and the Gardner report still more.
California leads the nation in GPS monitored parolees -- 6,500 -- at a cost of $60 million a year. Depending on arrests, there are typically about 250 sex offender parolees on GPS in Kern County.
Silva said the state isn't taking into account how the program has increased agents' workload and whether the work is actually accomplishing what the public expects. "People believe the GPS means we know where they are 24/7 and we don't," Silva said. "We're paying millions for GPS and we're not getting much out of it because agents don't have time to do the work."
Now, she said, State Sen. George Runner, who authored Proposition 83 establishing Jessica's Law, has a bill involving Facebook, MySpace and other social networking sites that she feared would add even more to agents' plates.
Not so, Runner said. His bill, SB 1204 which has passed the Senate and the Public Safety committee in the Assembly, would simply require that sex offenders register their online and e-mail addresses as well as their instant messaging user names just like they do their physical addresses.
Silva argued that if it becomes a crime for a sex offender not to register their electronic info, that makes it absolutely incumbent on the agent to check the sites. "Who enforces that if not us?" she asked. "It's ludicrous to say there's no extra work."
As for whether the GPS program has been a success, Runner said it's an evolving technology that should not be thought of as a cure-all. "It's just one tool," he said.
There have been successes and failures with GPS, he acknowledged. But he firmly believes the technology and its use will continue to improve. "That said, there have been problems with implementation." And he said he was "frustrated" with some of Corrections' responses to recommendations about how to do better.
Some related older posts on GPS tracking and related technocorrections:
- The technical challenges posed by technocorrections
- State judge makes pitch for ignition locks for drunk drivers
- Is the future parole with GPS and other techno-reentry devices?
- The inevitability of GPS tracking and cost-saving technocorrections
- Another reason to believe GPS technocorrections are inevitable
- Why tight budget times will speed path to technocorrections
- Are microchip implants for offenders inevitable?
- UK getting serious about GPS through microchip implants
- Are we willing to pay the costs of (effective?) technocorrections like GPS tracking?
- More on the pros and cons of GPS tracking
- New article examining incapacitation innovations
July 18, 2010
Effective press coverage of recent DOJ letter to the US Sentencing CommissionMarcia Coyle has this lengthy and effective piece due to appear in tomorrow's National Law Journal under the headline "Justice Department Calls for Probe of Federal Sentencing Patterns; Prosecutors see disparity in fraud, child pornography punishments." Here is how it begins:
During the past four years, federal judges imposed sentences of one to four years on five defendants in the AIG fraud case that caused more than $500 million in losses; 25 years on Ronald Treadwell for a Ponzi scheme involving a $40 million loss; and 3 1/2 years on former Impath Inc. President Richard Adelson for a $50 million securities fraud.
Those widely disparate sentences don't make sense, ignore federal sentencing guidelines and are a sign of a potentially very big problem, according to the U.S. Department of Justice. The DOJ wants the U.S. Sentencing Commission to investigate, with special attention to guidelines for fraud and child pornography crimes. But some sentencing experts say it may be something that the commission does not want to examine too closely.
The department called for a "comprehensive review" of the state of federal sentencing in its most recent annual report to the commission on June 28. In the five years since a U.S. Supreme Court decision struck down the mandatory nature of federal sentencing guidelines, the department said, prosecutors' experiences and data "suggest that federal sentencing practice is fragmenting into at least two distinct and very different sentencing regimes."
If allowed to go unchecked, the two regimes will lead to unwarranted sentencing disparities, disrespect for federal courts and sentencing uncertainty that could lead to more crime, the department said. "More and more, we are receiving reports from our prosecutors that, in many federal courts, a defendant's sentence will largely be determined by the judicial assignment of the case; i.e., which judge in the courthouse will conduct the sentencing," said Jonathan Wroblewski, director of the Criminal Division's office of policy and legislation, in the report.
Some sentencing scholars agree that judges are "straying off the guideline reservation" more frequently since the 2005 ruling in Booker v. U.S., but they disagree on how big a problem this could be. "I do think they're on to something," said former federal judge Paul Cassell of the University of Utah S.J. Quinney College of Law. "It's one of the dirty little secrets of federal sentencing now. There are situations where which judge you pull can drive the sentence."
But, he added, the subject for debate is how widespread the problem may be. "Is it isolated to a few here and there ignoring sentencing guidelines or is this a more general phenomenon? That's where analysis by the [Sentencing] Commission is needed."
The fact that some sentences may be below the guidelines does not demonstrate a disrespect for the guidelines, said Ellen Podgor of Stetson University College of Law. "Rather, it recognizes that these are advisory guidelines for consultation and use in determining a sentence," she said. "It is important to remember that judges are sentencing people and it is not a mere mathematical computation that should control."
Recent related posts on the DOJ letter to the USSC:
- Fascinating assessment of federal sentencing in DOJ annual letter to US Sentencing Commission
- Wasn't pre-Booker federal sentencing an "ongoing source of discord, disunity, and criticism"?
- Is DOJ eager for (and obliquely urging) reducing the severity of the federal sentencing guideline for child porn downloading?
Interesting account of "Five myths about the death penalty"NYU Professor David Garland has this intriguing piece in today's Washington Post under the headline "Five myths about the death penalty." Here is how the Post's editors set up the piece and the five myths set out by Garland:
The death penalty: the punishment we reserve for the worst criminal offenders. Last week, law enforcement officials said it was on the table for four men charged in the shooting deaths of unarmed civilians in New Orleans in the days after Hurricane Katrina. It's a signal that the crimes were truly reprehensible. Much of what we think we know about American capital punishment comes from the longstanding debate that surrounds the institution. But in making their opposing claims, death-penalty proponents and their abolitionist adversaries perpetrate myths and half-truths that distort the facts. The United States' death penalty is not what its supporters -- or its opponents -- would have us believe.
1. The United States is a death-penalty nation.
2. The United States is out of step with Europe and the rest of the Western world.
3. This country has the death penalty because the public supports it.
4. The death penalty works.
5. The death penalty doesn't work.
As the list of myths should highlight, this commentary is not the usual pro- or anti-screed about capital punishment in modern America. Instead, Garland highlights a whole lot of real-world nuance and, in so doing, gets me extra excited to read his forthcoming book titled "Peculiar Institution: America's Death Penalty in an Age of Abolition."