January 23, 2010
Welcome to the blogosphere the "Prison Law Blog"A law and history student at Stanford sent me this note about Prison Law Blog, a new blog that she has started:
I remember reading a post on your blog a while back in which you encouraged more bloggers to start narrowly focused criminal justice related blogs, and I have decided to focus on jail and prison reform efforts (e.g., legislation, conditions of confinement lawsuits, prisoners rights campaigns, etc.). Although there are now many very useful and well-done criminal justice related blogs already out there, I am hoping that this is a specific area where more focused blogging might be of interest.
For now the posts are mostly links (with some commentary), but in the future I am hoping to add more original content including updates on prison reform litigation and legislation around the country, and Q & A features with lawyers who work in this field.
Huzzah and welcome!
Some headlines from state legislative debates over the death penalty
There is talk of death penalty repeal these days in both Kansas and Washington state. Here is some local reporting on these debates:
- From Kansas here, "Families testify in support of death penalty"
- From Washington here, "Bill proposes abolishing Wash. death penalty"
Roman Polanski's request to be sentenced in abstentia is deniedThis Los Angeles Times article provides the latest news in the Roman Polanski sentencing saga. Here are the basics:
A Los Angeles County Superior Court judge Friday denied Roman Polanski's request to be sentenced in absentia, scuttling the director's latest bid to end his three-decade-old child sex case. Polanski hoped that such a sentencing would allow his lawyers to lay out evidence of judicial misconduct in his case and secure him a sentence of no further time behind bars.
Although a state appeals panel had suggested that Polanski be sentenced in absentia, as the director is facing extradition proceedings in Switzerland, Judge Peter Espinoza said he was not bound by the higher court's suggestion. Espinoza said he would not sentence Polanski as long as he remained a fugitive. "I have made it clear he needs to surrender," Espinoza said. Polanski, 76, is under house arrest at his chalet in Gstaad.
Friday's decision guarantees that the legal saga -- which began in 1977 when a 13-year-old girl accused the director of sexual assault -- will continue for a 33rd year at least.
In his ruling, Espinoza cited the fugitive disentitlement doctrine, a 19th century legal principle that bars a fugitive from calling on the help of a court while he is flouting its authority. The 2nd District Court of Appeal upheld the judge's application of the principle in December, but urged sentencing in absentia or other resolution that would address the misconduct claims.
Polanski's defense quickly vowed to appeal. Attorney Chad Hummel told the judge he was frustrated that the court was more interested in the director's physical presence than investigating the misconduct claims. "What your honor is saying . . . is you're not doing anything unless Mr. Polanski first shows up. And for what? A show," he said....
In his ruling, Espinoza also denied a request by the victim, Samantha Geimer, to order prosecutors to stop extradition proceedings on the grounds that they had not consulted with her before seeking Polanski's return. The judge cited evidence that prosecutors had repeatedly contacted her.
Some recent related Polanski posts (many of which have generated great comment threads):
- Roman Polanski asking to be sentenced in absentia
- The latest news on Roman Polanski sentencing debate
- Rape victim in Roman Polanski case complaining about prosecutors violating her rights
January 22, 2010
DC Circuit approves broad internet restriction as part of sex offender's supervised release conditionsThrough an interesting ruling today in US v. Love, No. 07-3140 (DC Cir. Jan. 22, 2010) (available here), the DC Circuit has approved a pretty broad internet restriction on a pretty bad sex offender. The Love ruling is worth a full read for those following these issues closely, and I found these part of the ruling's discussion of internet restrictions especially thoughtful:
Love challenges a condition that will require him to obtain prior written approval from the Probation Office for Internet access.... He suggests a more tailored condition that would ban only electronic communication involving prohibited sexual material, or, alternatively, would require that his Internet use be monitored remotely by the Probation Office. Appellant’s Br. at 22–25.
The Internet prohibition will, no doubt, substantially affect Love’s day-to-day activities. It will deprive him of the easiest way to pay his bills, check the weather, stay on top of world events, and keep in touch with friends. It will also prevent him from using the Internet to trade child pornography. These are all factors district courts should weigh in considering restrictions on Internet access as conditions of supervised release. Given the alternatives of remote monitoring of an individual’s Internet usage and unannounced examinations of his computers, an Internet ban subject to Probation Office approval may in some cases impose a “greater deprivation of liberty than is reasonably necessary” to deter illegal conduct and protect the public.... But not here. In Love’s case, this restriction is eminently reasonable.
On this record, the condition is properly tailored to the circumstances of the offense and Love’s background, and it is reasonably necessary to deter future misconduct and to protect children. Consensus is emerging among our sister circuits that Internet bans, while perhaps unreasonably broad for defendants who possess or distribute child pornography, may be appropriate for those who use the Internet to “initiate or facilitate the victimization of children.” Holm, 326 F.3d at 878;... The distinction is grounded in the simple proposition that when a defendant has used the Internet to solicit sex with minors, “the hazard presented by recidivism” is greater than when the defendant has traded child pornography. Johnson, 446 F.3d at 283.
The district court found that Love not only distributed child pornography but that he also solicited sex with Palchak’s fictitious daughter. The court concluded that Love would have had sex with her if given the opportunity, Tr. 18, 20 59, 60, and he would likely repeat this conduct upon release if he thought he would not be caught, Tr. 62. In sum, the hazard presented by Love’s potential recidivism is substantial, and his inclination towards reoffending is great. Making Love’s Internet use subject to Probation Office approval is therefore appropriately tailored to the harm that may result should he resume his previous course of conduct after release from prison.
Moreover, the continuing development of the Internet makes it reasonable for the district court to give the Probation Office broad authority to determine the scope of Love’s permissible Internet use. Love’s term of supervised release will not begin any time soon. Sentencing courts can predict neither the new ways in which child pornography will then be available nor the new technologies the government may use to police its availability. An Internet restriction that today imposes “no greater deprivation of liberty than is reasonably necessary” to deter illegal conduct may, by the time Love is released, be either wholly inadequate or entirely too burdensome. A broad Internet prohibition, which the Probation Office will tailor to the technology in use at the time of Love’s release, is an appropriate way to deal with that uncertainty. We assume the Probation Office will reasonably exercise its discretion by permitting Love to use the Internet when, and to the extent, the prohibition no longer serves the purposes of his supervised release. The Internet restriction therefore imposes no greater deprivation of liberty than is reasonably necessary to serve the purposes of supervised release.
Fitting account of Dan Freed's sentencing contributions in NY TimesToday's New York Times has a fine and fitting discussion of Dan Freed's many contributions to sentencing law and policy in this obituary. Here are excerpts:
Daniel J. Freed, a Yale Law School professor who was a leading intellectual influence and commentator on how Americans convicted of crimes should be sentenced, died Sunday in Manhattan. He was 82 and lived in Guilford, Vt....
Professor Freed also had an important role in shaping the modern concept of bail. His writings, notably the 1964 book “Bail in the United States” — written with Patricia M. Wald, later a prominent federal appeals court judge — influenced landmark legislation in 1966 that brought what scholars described as greater fairness to federal bail practices.
But it was in sentencing, another area of the law that had drawn little attention in law schools, that Professor Freed had his most profound influence.
Kate Stith, a professor and former acting dean of the Yale Law School, said Professor Freed had devoted much of his career to “examining and exposing the parts of the criminal justice system that were, when he began his work, most opaque and basically unregulated by law: bail and sentencing.”
Professor Freed pioneered the study of the subject when he brought Alabama state judges, a largely conservative lot, to Yale Law School to discuss with students what the sentences should be in hypothetical cases.
For decades, judges had unquestioned power to impose sentences using their own discretion with little fear of appeal. Professor Freed argued for more regularity in sentencing. It was unfair, he asserted, that the same crime committed under similar circumstances could result in widely different sentences, depending on the luck of the draw of which judges presided over the cases.
His writings influenced the passage of the Sentencing Reform Act of 1984, which called for a federal commission to establish sentencing guidelines. But he soon became a critic of how the remedy was used.
In practice, Professor Freed said, the guidelines imposed a mechanistic rigidity on sentencing by obliging judges to adhere to a complicated set of charts and tables in determining a sentence. Deviating from the guidelines exposed a judge to reversal by a higher court.
The new process, he asserted, merely shifted discretion from judges to others in the system, notably prosecutors, who could control sentencing by choosing which criminal charges to bring. A prosecutor’s discretion in selecting charges became the primary factor in sentencing, he argued, because once a conviction was obtained, judges felt largely bound by the guidelines.
Professor Freed was a founder of the Federal Sentencing Reporter, an influential publication [available here] that he used to chronicle sentencing developments and to argue, usually gently, that the system had gone awry. He urged judges to resist the rigid guidelines and to write opinions explicating their reasons for doing so.
Nancy Gertner, a federal trial judge in Boston and an authority on federal sentencing, said Professor Freed had urged judges to reason among themselves and to produce a body of law that would transform the guidelines into recommendations instead of mandates.
In 2005, a divided United States Supreme Court in Booker v. United States ruled for the first time that the guidelines were not mandatory, bringing the system more in line with what Professor Freed had envisioned.
In addition, The Vera Institute of Justice (where Dan was a Trustee) has this tribute to Dan on its website (which comes from the pages of the April 2009 Issue of the Federal Sentencing Reporter where there are additional fitting tributes to his sentencing legacy).
Latest insights about Gilbert Arenas's likely punishment(s)This terrific new ESPN piece, which is headlined "The ball is in Gilbert Arenas' courtroom: Looks like the Wizards star can keep his NBA contract. His freedom? Maybe not so much," provides a very effective update on legal issues surrounding the various forms of punishment facing NBA star Gilbert Arenas following his illegal gun play last month in the Washington Wizards locker room. Because the piece covers many interesting issues, I will quote it at length:
Facing the possibilities of termination of his Wizards contract, months of incarceration in a federal penitentiary or both, it is easy to see why Gilbert Arena might be worried.
But before Arenas concludes that his life has become unmanageable, here are two things he may want to consider. First, close readings of a firearms clause in the NBA collective bargaining agreement and a punishment clause in the league's constitution show that termination of his contract will be almost impossible. And second, he needs to find a way to make a better impression on D.C. Superior Court Judge Robert E. Morin, because his first appearance in Morin's court was a bad start....
The [NBA's] constitutional provision specifically limits commissioner David Stern's powers over gun violations. He can suspend a player for a "definite or indefinite" period, and he can fine a player as much as $50,000. But that's it. That is the beginning and the end of any punishment for a gun violation.
There is no provision for terminating the player's contract Any attempt by the Wizards to terminate the Arenas contract would run smack into those prescribed punishment guidelines, provisions that seem to have been negotiated in anticipation of the Arenas incident. It would be highly unlikely that the NBA's arbitrator, Calvin Sharpe, would ignore a firearms clause that is the product of specific bargaining between the players union and NBA owners. So Arenas might be feeling secure about the status of his contract.
But before he can feel secure about his next court appearance, he needs to do some image rehabilitation. As they say, you never get a second chance to make a first impression; in this case, Morin's impressions matter.
As he faced obvious and serious problems under draconian D.C. gun laws, Arenas hired the right lawyer -- Ken Wainstein, the former U.S. Attorney for the District of Columbia and an advocate who knows his way around the D.C. criminal courts as well as anyone.
Wainstein quickly put together a highly advantageous plea bargain, reducing what easily could have been multiple felony charges on each of four guns to a single felony count. To seal the deal, Arenas and Wainstein appeared before Morin on Friday for what should have been a routine courthouse ritual. In any plea bargain settlement, the judge asks the accused a series of questions to make sure that there is complete comprehension of the arrangement. None of the questions is a surprise, and the answers should be obvious.
But when Morin asked Arenas if he knew the maximum possible prison term for the charge against him, Arenas blurted, "Yes, six months." Wrong answer. The maximum term is five years. Six months is the low end of the sentencing guidelines that Morin will consider when he sentences Arenas on March 26.
If Arenas wants to impress Morin with his contrition and his acceptance of responsibility, he must do better than that. In the culture of the courthouse, the "six months" answer indicates the kind of casual and cavalier approach to the situation that can lead to a stiffer sentence.
Arenas must also do better as he faces a lengthy interview in the presentence investigation Morin ordered. Officers of the federal probation service will interrogate him on all aspects of his life, including a gun charge he faced in California seven years ago. Mistakes and misrepresentation in the interview could make a bad situation even worse. If Arenas manages to respond accurately and honestly to the presentence investigation, he will greatly enhance his chances of avoiding incarceration.
Lawyers who practice before Morin, a highly respected jurist, told ESPN.com that a prison term for Arenas is likely but not inevitable. "It would be hard for the judge to do something for Arenas that he would not do for another young man without the money and the fame," one lawyer said. "He already caught a break when they reduced it to one felony, and jail time seems likely."
But according to another veteran Washington defense attorney, if Arenas and Wainstein put together "a fabulous sentencing package that shows contrition and contributions to the community, then probation is possible." Both lawyers spoke anonymously because of cases currently pending before Morin.
Richard Gilbert, a highly regarded defense attorney in Washington, told ESPN.com, "Judge Morin is thoughtful and thorough and would respond to a positive presentation from Arenas. If he can persuade Judge Morin that he now 'gets it' and wants to do the right things, I would easily see a term of house arrest or time in a halfway house or some other sentence short of time in the penitentiary."
Notable corrections snippet from AG Holder's speech to sheriffsI just received this link to the text of Attorney General Eric Holder "Addresses the National Sheriffs’ Association’s 2010 Winter Conference." Here is one snippet that especially caught my attention:
In the months ahead, we plan to give particular emphasis to initiatives aimed at tackling economic crime, international organized crime, youth violence and the exploitation of children. We will also be focusing on improving our corrections system and ensuring that conditions are secure, humane and aimed at rehabilitation.
There’s no question that problems in our jails and prisons are alarming, especially the increased prevalence of sexual assault. The Bureau of Justice Statistics recently found that 12 percent of young offenders in our juvenile facilities have been sexually victimized. This is horrifying. It’s also unacceptable.
As we work toward making improvements, many of you have raised practical concerns about some of the recommendations included in the Prison Rape Elimination Act Commission Report. I am committed to working with you. And I’m determined to address this problem effectively, collaboratively, and as quickly as possible.
Sheriffs must be a part of this work. I’m pleased that several of you will be meeting with the Department’s PREA Working Group on Monday. And I want each of you to know that there will be additional opportunities to offer input and to comment on proposed regulations.
January 21, 2010
Rape victim in Roman Polanski case complaining about prosecutors violating her rightsThis new Los Angeles Times article, which is headlined "Victim in Roman Polanski rape case expected to take new legal step on his behalf," reports on the latest fascinating twist in the Roman Polanksi case. Here is how the piece starts:
In the 33 years since she accused Roman Polanski of rape, Samantha Geimer has publicly forgiven the acclaimed director, accused the American justice system of mistreating him and urged a dismissal of his still pending criminal case. On Friday, Geimer is expected to take yet another step on Polanski’s behalf – asking that a Los Angeles court force U.S. authorities to abandon their ongoing attempt to extradite the filmmaker from Switzerland.
In papers served on Polanski’s lawyers Wednesday and expected to be filed in Superior Court this morning, Geimer’s lawyer contends that the L.A. County district attorney’s office violated the state's victims rights statute by not consulting with her prior to making the extradition request.
Now a married mother living in Hawaii, Geimer was 13 when she told authorities Polanski raped and sodomized her during a photo shoot at Jack Nicholson’s house.
Geimer's attorney, Lawrence Silver, wrote that at a Friday hearing he planned to cite Marsy’s Law – a 2008 statute passed by ballot initiative – that specifically guarantees crime victims a number of rights, including the right “to reasonable notice of and to reasonably confer with the prosecuting agency, upon request, regarding ... the determination whether to extradite the defendant.”
The attorney wrote that in a July letter to the deputy district attorney handling the case, he made clear that Geimer wanted to meet with prosecutors and planned to “exercise every right that she may have under the Victim’s Bill of Rights.”
No one from the district attorney’s office contacted Geimer – whose pro-Polanski feelings were widely known – at that time or in September when the director was arrested in Zurich on a three-decades-old arrest warrant, according to the papers.
California Supreme Court stricks down limits medical marijuana quantitiesThe Supreme Court of California today in People v. Kelly, No. S164830 (Cal. Jan. 21, 2010) (available here), has struck down an attempt to place a regulatory limit on how much marijuana a “qualified patient” may possess or cultivate. Here is how the unanimous opinion begins:
Health and Safety Code section 11362.77,1 which is part of the Medical Marijuana Program (MMP) (§ 11362.7 et seq.), prescribes a specific amount of marijuana that a “qualified patient” may possess or cultivate. We granted review to determine whether this aspect of section 11362.77 is invalid under California Constitution, article II, section 10, subdivision (c), insofar as it amends, without approval of the electorate, the Compassionate Use Act (CUA) (§ 11362.5), an initiative measure adopted by the voters as Proposition 215 in 1996. We conclude, consistently with the decision of the Court of Appeal below (and with the position of both parties in the present litigation), that insofar as section 11362.77 burdens a defense under the CUA to a criminal charge of possessing or cultivating marijuana, it impermissibly amends the CUA and in that respect is invalid under article II, section 10, subdivision (c). We also conclude, consistently with the views of both parties in the present litigation, that the Court of Appeal erred in concluding that section 11362.77 must be severed from the MMP and hence voided.
Light sentence for heavy-duty crime in Ohio
I cover a lot of heavy topics on this blog, and this recent sentencing story from Ohio seems even more hefty than most. The piece is headlined "Overweight Woman Sentenced in Boyfriend's 'Sitting' Death," and here are the meaty specifics:
The details are shocking and hard to believe, but authorities say a woman -- who was believed to weigh around 300 lbs. at the time -- sat on her boyfriend and killed him last summer. On Wednesday, Mia Landingham, pleaded guilty to involuntary manslaughter in the death of her 120 lb. boyfriend, Mikal Middleton-Bey.
It happened back in August during an altercation between the couple, who share three children together. During Landingham's sentencing, her boyfriend's family spoke of the pain she has caused their family. "I just want to let you know how much you have hurt us by taking Mikal away from us," said Sharon Phillips, the victim's step-mother.
Landingham's public defender told the judge there was a long history of domestic abuse between his client and her late boyfriend. He also pointed out she has no prior criminal record. Landingham, then told the judge she was sorry for squashing the father of her children. "I just want to say that I am sincerely sorry about this situation... I wish I could take it back."
Judge Carolyn Friedland sentenced her to three years probation and 100 hours community service. Landingham was then immediately released from jail.
While Middleton-Bey's family hoped Landingham would eventually be able to take part in her children's lives, they were surprised that she got no additional jail time. "So basically you can say that I can go sit on somebody and get probation?" said one of the victim's sister. "I feel there wasn't no justice." Landingham faced a maximum of five years behind bars.
I know I should not make light of this situation, especially given how much the crime must weigh on all the members of the victim's family. But it is hard to resist being light-hearted in response to this query: "So basically you can say that I can go sit on somebody and get probation?".
"Senate Committee Passes National Criminal Justice Commission Act of 2009"
I have been speculating to various folks that the changed headcount in the Senate after this week's election in Massachusetts might be a good development for those eager for criminal justice reform. My theory for this speculation is that perhaps health care will no longer continue to suck all the energy out of other legislative activities. I raise this theory now because, as the post's title highlights, a significant criminal justice reform bill has just today passed a hurdle in the Senate. Specifically, this post's title is the headline of a press release I just received from The Sentencing Project, and here are the details:
The bi-partisan National Criminal Justice Commission Act of 2009 (S. 714) was passed out of the Senate Committee on the Judiciary today by voice vote. The legislation, sponsored by Sen. Jim Webb (D-Va.) would create a commission to conduct a thorough evaluation of the nation's justice system and offer recommendations for reform at every stage of the criminal justice system.
The establishment of such a commission could not come at a more critical time. With 2.3 million people in prisons and jails, the United States has the highest incarceration rate in the world. Federal and state governments spend more than $50 billion each year on corrections, and the population behind bars continues to grow.
A new approach to crime prevention is necessary and the time for reform is upon us. The commission created by this legislation would establish an organized and proactive approach to studying and advancing programs and policies that promote public safety, while overhauling those practices that are found to be fundamentally flawed.
Nebraska legislature rejects proposal to assess costs of the death penalty
This interesting story from Nebraska, which is headlined "How expensive is the death penalty?", confirms my fear that at least some proponents of the death penalty are afraid to take a serious and somber look at whether capital punishment makes economic sense. Here are the details:
State lawmakers easily defeated a proposal Wednesday that would have provided an answer to a much-debated question: How much does it cost Nebraska to have a death penalty?
On a 30-15 vote, state senators shot down a proposal by Omaha Sen. Brenda Council to have the State Auditor’s Office study how much money is spent prosecuting and appealing death penalty cases, as well as the potential savings of repealing capital punishment.
Council said Nebraska has never arrived at an accurate accounting of its death penalty costs. In neighboring Kansas, death penalty prosecutions were found to cost 16 times as much as cases resulting in sentences of life imprisonment. “The public needs to know,” Council said, particularly when the state is short of money for effective crime-fighting tools.
Opponents criticized the study idea, saying that it should have been introduced as a separate bill rather than as a last-minute amendment and that a study wouldn’t change minds in the Legislature, which, by all measures, remains staunchly pro-death penalty. “It just plain won’t matter,” said Sen. Scott Lautenbaugh of Omaha, a capital punishment supporter....
Senators began debating Council’s proposal to repeal the death penalty, Legislative Bill 306, on Wednesday morning — and debate will resume on that bill this morning. But with little chance of passing a repeal measure, Council offered the study proposal as an alternative, saying it would show Nebraskans the monetary costs of the death penalty....
Norfolk Sen. Mike Flood, a death penalty supporter, said there’s no doubt that death penalty cases cost more. “They should, because the state is taking someone’s life,” he said. But the extra expense is worth it, Flood and others said, because some murders are so heinous that the ultimate punishment is warranted....
Grand Island Sen. Mike Gloor said if the death penalty has prevented even one murder, it is worth the execution of 10 guilty men. “The death penalty has never been about dollars for me,” Gloor said.
Council argued that the death penalty has been applied unfairly, carries the risk of executing innocent people and is an ineffective deterrent to crime. She cited a 2009 “Smart on Crime” survey of 500 police chiefs across the country, in which capital punishment was rated the least-efficient use of taxpayer funds to fight crime.
Sen. Danielle Conrad of Lincoln said that there are more effective ways to deter crime and that money should be used for them. The State Patrol, for instance, is at its lowest staffing level since 1985-86, Conrad said, and its crime lab has lost employees because the state can’t pay competitive wages.
Council said that in Omaha last year, the number of homicides fell to 29 from 44 in 2008. The main reason wasn’t the death penalty, she said, but stronger community-based efforts to head off retaliatory killings. Council said other state senators have approached her about introducing a bill that calls for a study of the costs of the death penalty.
Especially at a time of tight state budgets and persistent concerns about government spending and tax rates, I have a hard time imagining that legislators in Nebraska or other places would vocally assert that how much some other particular government program costs is not worth examining and "just plain won’t matter" in an assessment of the program's worth and sustainability.
Yet, as is often the case, government spending on crime and justice issues --- and especially with respect to the death penalty --- seem to immune from the common concerns and usual complaints about bloated and inefficient government spending failing to provide citizens value for their tax dollar.
Some recent related posts on the costs of capital punsihment:
- "Budget kills Hinds capital cases: DA says Hinds can't afford death-penalty prosecutions"
- New DPIC report assails costs (and opportunity costs) of death penalty administration
- NY Times editorial assails "High Cost of Death Row"
- Georgia struggles to pay for a costly capital system
- The challenging economics of death causing problems in Chicago
- Great new (though still dated) examination of the death penalty and plea bargaining
- CNN now talking about the costs of the death penalty and state reforms
- States considering laying off the death penalty during tough economic times
- The economic case against the death penalty getting more and more attention
- More discussion of cost concerns in debates over the death penalty
- Capital case cost concerns continue to inform reform debate
- Still more discussion of the costs of the death penalty
- "Opponents Focus On Cost In Death Penalty Debate"
Will Citizens United ruling impact crime and justice campaign advertising?
As expected, the Supreme Court's special session today resulted in its announcement of its long-awaited decision in Citizens United. Here are the first reports about the decision from the always-terrific SCOTUSblog (with a few edits):
Justice Kennedy writes for the Court; Justice Thomas has a partial dissent and partial concurrence. Also dissenting in part is Justice Stevens, joined by Justices Ginsburg, Sotomayor, and Breyer. The majority opinion by Justice Kennedy is 57 pages, Justice Stevens' partial dissent is 90 pages.
Tom Goldstein says: "Much will depend on the wording, but today's decision is a small revolution in campaign finance law.... The Court's decision overturns the previously settled distinction between corporate and individual expenditures in American elections.... The decision presumably applies equally to state and local elections, given that the Court recognizes a First Amendment right."
Lots and lots of folks smarter and more informed than me about the First Amendment and election speech will surely be opining at length about this ruling and its potential impact (which can be accessed here). But, as is my norm in this space, I want to give this news a sentencing spin. Specifically, I wonder if and how this "small revolution in campaign finance law" might impact criminal justice issues on the campaign trail?
Because there are not all that many corporations likely to be able to make lots of money from particular crime and justice policies, I doubt that Citizens United will dramatically impact crime and justice campaign advertising. But, then again, maybe we will start to see private prison corporations or GPS tracking manufacturers producing campaign ads to back certain candidates or ballot initiatives that could help their bottom line. I suppose only time will tell.
January 20, 2010
"One Year: Where Are the Judges?"The title of this post is the headline of this little piece by Jeffrey Toobin that's part of a New Yorker review of President Obama's first year. Here are snippets:
It’s an understatement to say that President Obama has had a busy agenda in his first year in office, so it may sound churlish to complain about something he hasn’t done. But to me the most surprising aspect of Obama’s first year has been his failure to take full advantage of one the great opportunities available to any President: the chance to nominate federal judges.
When Obama took office, there were more than a hundred vacancies on the federal appeals and district courts. One year into his tenure, Obama has made only thirty-one appointments to those courts, and just twelve have been confirmed. In George W. Bush’s first year, with a similar number of vacancies, he made sixty-four nominations. White House officials assert that ten new district court nominations are imminent, but the overall pace remains astonishingly slow. I wrote about this aspect of Obama’s Presidency last September, and the trend has continued....
Republicans have stalled on many nominations, fought others, and mostly done their best to slow down the pace. What’s perplexing is that Obama himself has not filled the pipeline with nominations; if he did, Republicans might feel some pressure to move the process along. Senator Patrick Leahy, the chairman of the Judiciary Committee, has held prompt hearings for all of Obama’s nominees, but he can’t hold hearings on nominations that haven’t yet been made.
Obama himself is currently going through a rough patch in his presidency, and his influence on Capitol Hill is waning. An assertive Republican minority will probably only feel emboldened to engage in ever more obstructionist tactics. A thin slate of judicial nominees only makes the Republicans’ task easier.
Some related new and old posts:
- Why federal sentencing reformers must focus on the USSC and lower courts
- Judging, politics, sentencing and elections
The latest news on Roman Polanski sentencing debateThis new CNN article, which is headlined "Lawyers: Polanski doesn't need to be here for sentencing," provides some of the latest news of the latest drama in the long-running saga of Roman Polaski's sentencing. Here are a few highlights:
Attorneys for director Roman Polanski fired back against Los Angeles prosecutors, saying the law clearly allows for Polanski to be sentenced in absentia while under house arrest in Switzerland.
The court papers, filed Monday, came in response to arguments by Los Angeles prosecutors that it would be improper to sentence Polanski in absentia after the director made "a mockery of our criminal justice system" for more than three decades.
The famed director of "Rosemary's Baby" and "The Pianist" pleaded guilty to having unlawful sex with a 13-year-old girl in 1977 but was never sentenced. He has been the subject of an international extradition battle since he was arrested in September on a U.S. fugitive warrant.
Polanski's attorney, Chad Hummel, has been pushing for Polanski to be sentenced without having to return to Los Angeles. Prosecutors have vigorously opposed sentencing him in absentia. In court papers filed last Friday, Deputy District Attorney David Walgren stated the reasons in no uncertain terms. "The defendant is a fugitive," Walgren wrote. "A fugitive child rapist, who for 32 years has made a mockery of our criminal justice system, should not be given the power or authority to request anything of this court until he, the criminal, acknowledges this court's lawful authority by surrendering on his outstanding warrant."
In court papers filed Monday, Polanski's legal team accused prosecutors of stalling the case by requiring Polanksi to appear in California. "Stripped of its inflammatory and, frankly, press-conscious statements about this case, the District Attorney's opposition seeks to thwart any further proceeding in the case until Mr. Polanski is physically present in California," lawyers Hummel and Bart Dalton wrote....
Superior Court Judge Peter Espinoza has scheduled a hearing Friday on whether to sentence Polanski in absentia. A California appeals court raised the possibility last year, when it rejected Polanski's bid to have the case dismissed....
Polanski's victim came forward long ago and has made her identity public, saying she was disturbed by how the criminal case had been handled. Samantha Geimer, now in her 40s and a married mother of three, has called for the case to be tossed out. Her attorney, Larry Silver, reiterated her position last month, saying details of the case harm her every time the story is in the news. Defense attorneys also argued that prosecutors are ignoring the victim's wishes.
Interesting Justice alignments in SCOTUS affirmance of state death sentence in Wood v. Allen
Though another SCOTUS opinion day has come and gone without any blockbuster rulings, the Court did this morning hand down a ruling Wood v. Allen, 08-9156 (Jan. 20, 2010) (available here), affirming a state death sentence. Though full commentary on this latest capital ruling will have to wait because I now need to go teach my sentencing seminar at Fordham, the line-up of the Justices already makes the ruling interesting. Specifically, the opinion for the Court was written by Justice Sotomayor, with Justice Stevens dissenting along with Justice Kennedy.
I think some folks may have been hoping (or worried) that Justice Sotomayor would be a consistent vote against the death penalty. This ruling suggests that she can find some death sentences she likes. It also seems to confirm the reality that, next to Justice Stevens, Justice Kennedy may be developing into the most constisted anti-death vote on the current Court. That all said, one might see just a gendered story in the vote line-up in Wood v. Allen: the case involves domestic violence, as the defendant Holly Wood -- what a name! -- was convicted and sentenced to death for because he "broke into the home of his ex-girlfriend and shot her in the head and face as she lay in her bed."
Noting the latest data showing reduced (but disparate) federal sentences for child porn downloadersThis new Wall Street Journal article, which is headlined "Judges Trim Jail Time for Child Porn: Data Show Trend Toward Leniency for People Who View Images but Aren't Molesters," provides the latest main-stream media coverage of a leading federal sentencing story that regular readers know all about. Here is an excerpt:
More federal judges are showing leniency toward individuals who view child pornography but who aren't themselves molesters, according to recent data on prison sentences.
Judges are looking skeptically at prosecutors' requests to give 15- to 25-year sentences for viewing sexual images of minors, handing down more sentences of five to 10 years, or in some cases probation. The movement has been gaining steam over the past two years even as the Justice Department has made child pornography and other child-exploitation prosecutions a top priority, leading to more than 2,300 cases last year, the highest figure since the department began tracking the statistic.
"We've reached a critical momentum for change," said Troy Stabenow, a federal public defender in Missouri whose critique of child-pornography sentences has been cited by judges. "The recent sentences are signaling, as strongly as I have ever seen, that judges around the country think the current system is broken."...
In the 12 months ended September 2009, federal judges gave prison sentences below the guidelines in 44% of cases in which individuals obtained child pornography or shared it with others, up from 27.2% two years earlier, according to data from the U.S. Sentencing Commission, a federal agency that develops the guidelines. Those figures exclude cases in which judges gave lighter sentences at the prosecutors' request. In the same two-year period, the rate by which judges gave below-guideline sentences for all criminal cases rose to 16.9% from 12.5%.
Some judges who criticize the recommended sentences say they are the result of an unfair linking of child-porn users and sexual predators. While some child-porn viewers are accused or convicted of physical molestation, psychologists who treat sexual deviants say it is unclear whether most viewers of child pornography are likely to commit such acts. Many of the defendants convicted of downloading images said they would never molest a child.
The shift has upset advocates of abused children who say the sentences won't deter future misconduct. "There's a clear trend among judges to treat possession of child porn as if it's not serious, but these are crime-scene photos," said Ernie Allen, president of the National Center for Missing & Exploited Children. Mr. Allen says the dissemination of such images encourages behavior that hurts children, not least the production of those images.
Some child-porn viewers still get sentences of 15 or 20 years from judges who follow the guidelines. That's greater than punishments meted out to some child molesters and other violent criminals.... The split among the judiciary means that someone who receives a prison sentence of several years in one court could get a decades-long sentence in a different court.
Last month, J. Randal Hall, a federal judge in Augusta, Ga., sentenced a child-porn viewer to 20 years in prison. There was no evidence that the defendant, Roger Gambrel, who is in his mid-50s, physically abused children, said his lawyer, Jacque Hawk. "This amounted to a death sentence," Mr. Hawk said.
As regular readers know, these child porn sentencing issues have been building in intensity in the federal courts for a number of years, and last fall the US Sentencing Commission finally indicated that they would be re-examining the federal guidelines for child porn offenses. However, the USSC's latest list of potential guideline amendments do not include and proposed modifications of the existing dysfunction guidelines, and thus these problems are likely to persist for quite sometime.
Just some related prior federal child porn prosecution and sentencing posts (going back to early 2008):
- A new thoughtful child porn downloading opinion assailing images guideline enhancement
- Can downloading of child porn be blamed on post-traumatic stress disorder?
- "Federal judges argue for reduced sentences for child-porn convicts"
- Effective local reporting on realities and debates surrounding federal sentencing guidelines for child porn
- "Prosecutors seek nearly $200k for child porn victim"
- Effective new opinion discussing restitution in federal child porn possession cases
- Another thoughtful and notable district court opinion on restitution in child porn sentencing
- The latest (beneficial?) litigation front in child porn downloading battles
- More examples of sentencing uncertainty surrounding federal child porn cases
- Acquitting and downloading some additional USSC priorities
- Judge Adelman operationalizes deconstructed child porn guidelines
- Thoughtful opinion focused on bad health as the basis for a below-guideline sentence
"Supreme Court mandates 'dignity and respect' in death sentencing"The title of this this post is the headline of this Washington Post article yesterday's SCOTUS split decision in Wellons v. Hall (09-5731) (available here). The headline draws on what I thought was the only notable quotable from the majority's per curiam ruling, and here are excerpts from the story:
"From beginning to end," the Supreme Court intoned Tuesday, "judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect."
And so a majority of the court decided that a trial in which jurors presented the judge with an "edible chocolate penis" and the bailiff with a pair of chocolate breasts deserved a closer look. It told the U.S. Court of Appeals for the 11th Circuit to examine more closely the trial in which Marcus Wellons received the death penalty for the rape and murder of 15-year-old India Roberts in suburban Atlanta in 1989. The appeals court upheld the death sentence the first time around....
The court's four most consistent conservatives criticized their colleagues for abusing their own procedures. The majority told the lower court to reconsider the case in light of a recent Supreme Court precedent, but Justices Antonin Scalia and Clarence Thomas said that should not affect the 11th Circuit's decision. They said it was disrespectful to send the case back because of an "inconsequential imperfection" in the lower court's opinion.
Justice Samuel A. Alito Jr., joined by Chief Justice John G. Roberts Jr., said he agreed with the majority that the "strange and tasteless gifts" raised "troubling" concerns. But he, too, objected to the "improper" way the majority sent the case back to the 11th Circuit.
Though some may fault the Post headline for suggesting an anti-death-penalty bias, I fault it for missing the opportunity for some bawdy headline humor in a case involving an "edible chocolate penis." Here are a few possible alternative headlines that perhaps The Onion might consider: "Supreme Court gets hard on circuit based on its handling of chocolate penis" or "Justices see boner in lower court ruling involving chocolate penis" or "Justices battle over how best to massage chocolate penis case error."
Readers are, of course, highly encouraged to suggest their own bawdy headlines, with extra points going to anyone also working the chocolate breasts. But, of course, all potential headline writers should stay considerate of the "dignity and respect" mandate from SCOTUS.
January 19, 2010
"Punishing Lawyers in Corporate Frauds"The title of this post is the headline given to this new piece by Peter Henning over at the New York Times' DealBook page. Here are snippets from the effective piece about the sentencing lawyers involved in corporate frauds:
Joseph P. Collins, a former partner at the international law firm Mayer Brown, received a seven-year prison sentence for his role as the lead attorney for the failed futures trading firm Refco Inc., whose collapse as a result of accounting fraud cost investors and lenders more than $2 billion. Mr. Collins was convicted of conspiracy, wire fraud and securities fraud in July 2009 for his role in the stunning demise of Refco only weeks after the firm’s initial public offering.
The company hid debts owed by its chief executive, Phillip R. Bennett, from a buyout firm in an leverage buyout in 2004 and then in the public offering in 2005. In addition to Mr. Collins’s conviction, Mr. Bennett received a 16-year sentence, and Refco’s former president, Tone N. Grant, was sentenced to 10 years for their role in the accounting fraud.
Mr. Collins was Refco’s long-time outside counsel and the firm was his largest client, generating $35 million in billings for Mayer Brown. It is rare that an outside lawyer is prosecuted for legal representation of a client, and the case can be understood as part of a growing trend in which federal prosecutors and regulatory agencies, including the Securities and Exchange Commission, focus on those who enable corporate fraud along with the officers and directors who orchestrate it....
What is striking about the sentence that Mr. Collins ... received is its length. This is largely a product of a change in the Federal Sentencing Guidelines adopted in late 2001 that substantially increased the likely sentence in fraud cases. The United States Sentencing Commission amended the fraud-loss table used to calculate the sentences so that a loss of more than $400 million pushed the potential punishment to more than 20 years and could even result in a term of life in prison when other factors, such as the number of victims, were considered....
Given the sizable losses in the Refco case, Mr. Collins may be fortunate to have received only seven years, as the potential punishment under the sentencing guidelines called for a maximum of 85 years in prison. The Federal District Court rejected his request not to be sent to prison at all, an unlikely result given the amount of the loss. Mr. Collins is seeking a new trial based on recently revealed e-mails, and he is certain to appeal the conviction. Whether the district court permits him to remain free pending the appeal remains to be seen.
The substantial sentence is sure to be noticed in major law firms throughout the country, but whether it has any deterrent effect is another issue.
Lots of notable little(?) mid-winter SCOTUS criminal justice action
Though everyone continues to await big rulings from the Supreme Court on a variety of topics, the Justices today continued their recent trend of issuing a lot of notable little criminal justice rulings. Drawn from a couple of new posts at SCOTUSblog, here are today's highlights:
The Supreme Court ruled for the first time on Tuesday that the process of selecting a jury to try a criminal case must generally be open to the public, under the Constitution’s Sixth Amendment guarantee of a public trial. While the Court had ruled in 1984 that the questioning of potential jurors must be open under the First Amendment, when the public or press seeks access, it had not extended that right to the Sixth Amendment when the accused seeks openness of that stage of the proceedings....
The ruling, issued without formal briefing an oral argument, was decided by a 7-2 vote in Presley v. Georgia (09-5270) [available here]. The majority opinion was not signed. Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented....
The Court, in a second summary ruling on Tuesday, engaged in a spirited debate — with a 5-4 result — over when the Court should wipe out a lower court’s ruling and order it to reconsider. The case involved a Georgia murder case — a case in which, the Court majority said, there was a trial that “looked typical,” but “there were unusual events going on behind the scenes.” The Court cited private contacts between the jurors and the trial judge, and noted that, during the trial,. “some members of the jury gave the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts.” None of this, the Court said, had been reported by the judge to defense lawyers representing Marcus Wellons on the trial for a 1989 murder.
The decision ordered the Eleventh Circuit Court to reconsider the case, applying the Court’s decision last year in Cone v. Bell (a decision that federal habeas review of a criminal conviction is not barred when a state court had declined to review the merits of a case on the ground that it had done so previously).
The majority opinion was unsigned. It presumably was supported by Justices Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, Sonia Sotomayor and John Paul Stevens. There were two dissenting opinions: by Justice Scalia, joined by Justice Thomas, and by Justice Samuel A. Alito, Jr., joined by Chief Justice John G. Roberts, Jr. The case is Wellons v. Hall (09-5731) [available here].
The Court ruled that it had no jurisdiction, at this point, to review a lower federal court’s order that would require the state of California to release upwards of 40,000 inmates from its state prisons to ease overcrowding that the lower court blamed for inadequate medical care in the 33 prisons. The Court noted, in a brief order, that a new order has been issued in the case, “but that order is not the subject” of the present challenge. It also took note of the fact that the latest lower court order has been blocked pending “review by this Court” — an indication that the Court expects the state to file a fresh new appeal to challenge the order now in effect, issued earlier this month. Lawyers for state officials have said they would promptly file a new appeal. (The cases are Schwarzenegger v. Plata, 09-416, and California Republican Legislators v. Plata, 09-553)....
The Court ordered the Third Circuit Court to reconsider reinstating the death penalty for Mumia Abu-Jamal in a celebrated case of the murder of a Philadelphia police officer nearly three decades ago. The appeal of Pennsylvania state officials in Beard v. Abu-Jamal (08-652) was returned to the Circuit Court for it to apply last week’s decision in Smith v. Spisak 08-724), clarifying the constitutional rules involving the use of verdict forms in death penalty cases and how those forms advise the jury about considering mitigating evidence.
It is not obvious that any of this SCOTUS action will have any obvious impact much beyond the cases adjudicated. But perhaps readers can see bigger consequences or read major tea leaves from these seemingly little rulings.