July 31, 2010
A must-read take on American justice courtesy of now-free Lord Conrad BlackAs detailed in this news report, "media baron Conrad Black, released from jail this month on a two-million-dollar bond, lashed out at the US justice system Saturday in a column written for Toronto's National Post." This first-person column is available at this link under the headline "Conrad Black: My prison education," and here are choice excerpts from this weekend's must-read:
In my 28 months as a guest of the U.S. government, I often wondered how my time in that role would end. I never expected that I would have to serve the whole term, though I was, and am, psychologically prepared to do so, now that I have learned more of the fallibility of American justice, which does convict many people, who, like me, would never dream of committing a crime in a thousand years....
t had been an interesting experience, from which I developed a much greater practical knowledge than I had ever had before of those who had drawn a short straw from the system; of the realities of street level American race relations; of the pathology of incorrigible criminals; and of the wasted opportunities for the reintegration of many of these people into society. I saw at close range the failure of the U.S. War on Drugs, with absurd sentences, (including 20 years for marijuana offences, although 42% of Americans have used marijuana and it is the greatest cash crop in California.) A trillion dollars have been spent, a million easily replaceable small fry are in prison, and the targeted substances are more available and of better quality than ever, while producing countries such as Colombia and Mexico are in a state of civil war.
I had seen at close range the injustice of sentences one hundred times more severe for crack cocaine than for powder cocaine, a straight act of discrimination against African-Americans, that even the first black president and attorney general have only ameliorated with tepid support for a measure, still being debated, to reduce the disparity of sentence from 100 to one to 18 to one.
And I had heard the vehement allegations of many fellow residents of the fraudulence of the public defender system, where court-appointed lawyers, it is universally and plausibly alleged, are more often than not stooges of the prosecutors. They are paid for the number of clients they represent rather than for their level of success, and they do usually plead their clients to prison. They provide a thin veneer for the fable of the poor citizen’s day in court to receive impartial justice through due process.
And I had the opportunity to see why the United States has six to twelve times as many incarcerated people as other prosperous democracies, (Australia, Canada, France, Germany, Japan, and the United Kingdom), how the prison industry grew, and successfully sought more prisoners, longer sentences, and maximal possibilities of probation violations and a swift return to custody.
Before I got into the maw of the U.S. legal system, I did not realize the country has 47 million people with a criminal record, (most for relatively trivial offenses,) or that prosecutors won more than 90% of their cases. There, at Coleman, I had seen the courage of self-help, the pathos of broken men, the drawn faces of the hopeless, the glazed expression of the heavily medicated, (90% of Americans judged to require confinement for psychiatric reasons are in the prison system), and the nonchalance of those who find prison a comfortable welfare system compared to the skid row that was their former milieu. America’s 2.4 million prisoners, and millions more awaiting trial or on supervised release, are an ostracized, voiceless legion of the walking dead; they are no one’s constituency.
Will Virginia go forward with first US execution of a woman in five years?As detailed in this local press report, which is headlined "Execution date set for Va. woman in Pittsylvania slayings," Virginia is now on track to execute a female murderer this September. Here are the basics:
As regular readers may recall, another condemned female offender scheduled to be executed this fall in Tennessee got off death row earlier this month when she received clemency from Tennessee Governor Phil Bredesen (details here). Anyone wish to predict whether Virgnia will follow its neighbor's lead?
Teresa Wilson Lewis would be the first woman put to death in Virginia in almost a century if her execution, set yesterday for Sept. 23, is carried out.
Lewis, 41, was sentenced to death for persuading two men, with sex and promises of money, to kill her husband, Julian Clifton Lewis Jr., and her stepson, Charles J. Lewis. The two were murdered in their Pittsylvania County trailer the night of Oct. 30, 2002.
Matthew Shallenberger and Rodney Fuller were sentenced to life in prison for shooting the men in their beds. Authorities said Lewis was the mastermind and that the three were to share in the proceeds from her stepson's life-insurance policy and her husband's estate.
After Pittsylvania County Circuit Judge Charles Strauss set her execution date, her lawyer, James R. Rocap III, said yesterday that he plans to ask the U.S. Supreme Court to consider her case, seek a stay of execution, and file a clemency petition with Gov. Bob McDonnell.
"This sentence is based upon just a completely incorrect, factual assumption that somehow she was the mastermind of this," he said. Rocap contends that Shallenberger was the mastermind. Shallenberger committed suicide in 2006 while an inmate at Wallens Ridge State Prison.
Rocap said Lewis has a personality disorder, low intelligence and a history of drug addiction and that since she entered prison, Lewis has developed a "deep faith and deep remorse for the crimes."
"The governor will be the only person who has had an opportunity to consider evidence . . . that the actual killer admitted that Teresa was not in fact the person who planned the murders and that he boasted about using Teresa to get Julian's money," Rocap said. ...
According to the Death Penalty Information Center, 50 women have been executed in the U.S. since 1900 and 11 since 1976. The most recent was in Texas five years ago....
Virginia has executed 107 men since 1976, including two this year.
July 30, 2010
California's three-strikes law and its 2010 race for state attorney general
Thanks to the always great Prison Law Blog, I just saw this interesting article from The Economist, which is headlined "Cooley's law: A Republican district attorney seeks to make three-strikes more humane." Here are excerpts:
The current [Los Angeles DA], Steve Cooley, has other ideas about Three Strikes, which he values as a “powerful recidivist tool” but also considers “draconian”. Mr Cooley has become the first DA in California to have a written policy not to invoke the three-strikes law when neither the current crime nor the previous strikes are violent or serious.
His approach is especially noteworthy because Mr Cooley is also the Republican candidate for attorney-general of the whole state. As a conservative, he need not be as paranoid as his Democratic rival about being called soft on crime. The son of an FBI agent and a proponent of the death penalty, Mr Cooley can point out the obvious — that the law is often egregiously unjust — and still be considered tough.
His Democratic opponent, Kamala Harris, agrees with him on three strikes, but has so far been more circumspect. As district attorney of San Francisco, which many Californians consider quasi-Jacobin, she has to work harder to seem tough. Her Jamaican father and Tamil mother went to Berkeley in the 1960s and marched in the streets. And her sister once lobbied for a (failed) ballot initiative that would have reformed the three-strikes law to exclude non-violent crimes.
Both Ms Harris and Mr Cooley opposed that reform. But Mr Cooley then proposed one that was only slightly more conservative. It would have stopped counting non-violent, non-serious crimes as third strikes, unless a previous strike was heinous. That initiative also failed. Ms Harris thought it “went too far”.
And so, with a Republican unexpectedly in the lead, the debate about the three-strikes law has been set in motion. Its injustices have become embarrassing even to right-wingers. Elaine Howle, the state auditor, recently reported that of the 171,500 inmates in California’s overcrowded prisons last year, a quarter (43,500) were sentenced under the three-strikes law. More than half of these are locked up for crimes that were not serious, at a cost of $7.5 billion.
This story reflects an aspect of the modern politics of sentencing reform that should always be remembered: Republicans and conservatives may be both more willing and more able politically to urge "soft" reforms than Democrats. (The story also reflects the cool reality of writing for The Economist, where the adjective "quasi-Jacobin" can be used without fear of losing its readers.)
"‘Pukemon’ apologizes, then goes to jail"
The title of this post is the headline of this breaking news story from the Philadelphia Inquirer, which reports on the sentencing in what because a high-profile case of fan misbehavior. Here are the particulars:
A Cherry Hill man who pleaded guilty to throwing up on an off-duty police officer and his family during a Phillies game at Citizens Bank Park was sentenced today to 30 to 90 days in jail. Matthew Clemmens, 21, also was ordered to perform 50 hour of community service -- the judge suggested cleaning restrooms at the ballpark -- and sentenced to 2 years probation.
"We're very pleased with the verdict today," said Assistant District Attorney Patrick Doyle. "Public drunkenness and violent behavior at Phillies games will not be tolerated."
Clemmens -- dubbed "Pukemon" when he drew national media attention as a purported exemplar of Philadelphia fan boorishness -- apologized and fought back tears before hearing his sentence. He pleaded guilty May 25 to simple assault and disorderly conduct, both misdemeanors, and harassment, a summary offense.
Clemmens and three friends, according to officials, had been heckling Michael Vangelo, an off-duty police captain from Easton, Pa., and his two daughters during a Phillies game on April 14.
After one member of Clemmens' party was ejected from Citizens Bank Park by security - at Vangelo's request - Clemmens left briefly. He later returned to the seats, taking a cell phone call, according to a statement prepared by Doyle, before declaring, "I need to do what I need to do. I'm going to get sick."
Clemmens then stuck a finger down his throat and vomited, striking Vangelo and the area in front of his daughters' seats. Vangelo shoved Clemmens, who responded with at least one punch, cutting Vangelo's ear and face....
After friends and family testified for nearly an hour on Clemmens' behalf today - citing his politeness at home and previous charity work as mitigating factors - he read from a statement accepting full responsibility for his conduct, turning around to apologize to Vangelo at one point. "My parents did not raise me in this manner," he said, pausing often to fight back tears.
Common Pleas Court Judge Kevin Dougherty announced his decision about fifteen minutes after Clemmens concluded his remarks. Hoping to reach a sentence that "reeks with justice," Dougherty said he could not overlook the manner in which Clemmens "invaded [the Vangelos'] opportunity to enjoy the American pasttime of baseball."
"Your apology, I believe, was feigned," Dougherty said, as Clemmens stood stone-faced, both parents at his side. "I don't know if you were trying to hit a home-run with your friends that day . . . but you struck out."
Clemmens was handcuffed in the court room, as his girlfriend sobbed in the back. She rose moments later to console Clemmens' 11-year brother, who sat alone as his older sibling learned his fate. At about 1:10 p.m., Clemmens was led into a police van, cuffed at the wrists to another offender, and driven away.
Washington state on track to be second jurisdiction to use one-drug lethal injection protocolAs detailed in this local story, headlined "State Supreme Court lifts stay of execution for convicted murderer," it appears that Washington may soon join Ohio on the list of states actually using a one-drug lethal injection protocol to execute condemned murderers. Here are the basic details:
The Washington State Supreme Court upheld the state's use of lethal injection for condemned inmates on Thursday, likely resulting in at least one execution in the coming months. In a unanimous opinion written by Justice Debra Stephens, the court lifted a stay of execution for one death-row inmate, Cal Coburn Brown. His execution is now scheduled for Sept. 10.
Brown's appeal, which was joined by two other condemned inmates, had effectively put a hold on executions for the past year as the case wound through the courts. But Thursday's ruling rejected his argument that the state's method of lethal injection amounted to the type of cruel and unusual punishment prohibited by the state and U.S. constitutions.
The ruling stemmed from a Thurston County lawsuit in which the three inmates argued that the state's long-standing three-drug method of lethal injection — an anesthetic, a paralyzer and a heart-attack-inducing drug — was unconstitutionally painful and prone to mistakes.
During trial, their attorneys argued a single drug method — an overdose of the anesthetic sodium thiopental — was more humane.
After the Thurston County judge upheld the three-drug method, but before the case being heard by the state's highest court in March, the Department of Corrections switched to the one-drug method, making it the default means of execution and making the argument in the appeal moot. "There is no evidence presented by the Appellants ... that pain associated with the maladministration of sodium thiopental rises to the level of cruel or unusual punishment," Stephens wrote.
Sherilyn Peterson, a Seattle defense attorney who tried the case, said the DOC's new execution method is an improvement. But she was disappointed that the Supreme Court did not address one of her key issues — the qualifications of the execution team to insert an IV. "Under either policy, you do need to look at the qualifications of the people doing this," she said.
She suggested that the death-row inmates may continue to press their case. "There are other avenues for litigation," she said.
The ruling put Brown on the road to being the first person executed in Washington since 2001. Sara di Vittorio, an assistant attorney general who tried the case, said Brown has exhausted his state appeals. "It makes us actually believe there will be an execution, quickly," she said.
Brown, 52, was convicted of raping, torturing and killing Holly Washa in a Sea-Tac hotel in 1991, before leaving her body in the trunk of her car. He fled to California, and was arrested after being accused of another brutal sexual assault and murder. "Cal Brown's sadistic and predatory crimes rank him among the worst of the worst criminals in our state, and there can be no doubt about his guilt," King County Prosecutor Dan Satterberg said in a statement. "If we are serious about having a death penalty in the State of Washington then it is time to carry out the sentence."
Under the new DOC policy on executions, the superintendent of the Washington State Penitentiary in Walla Walla must soon assemble an execution team. The previous team quit in the midst of the Thurston County trial when the inmates' attorneys asked for information on their medical training.
The new policy makes the one-drug lethal injection the primary method of death, but also allows the inmate to choose the three-drug method, or hanging. Since Washington reinstituted the death penalty in 1975, the state has killed four men.
"The slow fade of Len Bias' ghost"The title of this post is the headline of this commentary in today's Dallas Morning News by Mark Osler. In addition to providing a useful reminder of the way the 100-1 crack/powder ratio came to be, it also ends with a fitting summary of where we are now. Here is how the piece starts and ends:
Twenty-four years ago, a talented young player from the University of Maryland was drafted No. 2 overall by the Boston Celtics. Two days later, he was dead of a drug overdose.
This simple tragedy led to one of the most frivolous detours in American history – the onerous federal sentencing statute for crack, which was finally amended by Congress on Wednesday. The story of Len Bias is a wonderful example of the potential dangers of legislation based on anecdote rather than study and analysis....
It is pathetic that it took 24 years to fix this problem. It is also disheartening that this legislation applies only to future cases and does not change the sentences of those already in prison. Still, it is change for the better. It is rare to reverse the ratchet on criminal sentences, and, in amending the rules on crack, Congress has finally begun to undo the hasty and untoward effects of Len Bias' ghost haunting the halls of government.
Some recent related posts:
- A few not-so-accurate headlines about Congress's work on crack sentences
- Questions and more questions as a reformed crack bill heads to the President's desk
- House of Representatives seems poised to finally pass federal crack/powder disparity reform bill
- Unanimous(!!) vote by Senate Judiciary Committee to reduce (but not eliminate) crack/powder disparity
- Varied reactions to the crack/powder reform work of the Senate Judiciary Committee
- Full Senate passes bill to reduce (but not eliminate) crack/powder disparity
- Different editorial perspectives on crack reform compromise
- Questions about the "when" and "now what" for crack/powder sentencing reform
July 29, 2010
Third Circuit rejects Second Amendment attack on federal crime of possessing gun with obliterated serial numberThe Third Circuit has a very detailed and interesting discussion of Heller and the Second Amendment's impact on gun possession prohibitions and regulation today in US v. Marzzarella, No. 09-3185 (3d Cir. July 29, 2010) (available here). Here is how the lengthy opinion gets started and ends:
This appeal presents a single issue, whether Defendant Michael Marzzarella’s conviction under 18 U.S.C. § 922(k) for possession of a handgun with an obliterated serial number violates his Second Amendment right to keep and bear arms. We hold it does not and accordingly will affirm the conviction....
Second Amendment doctrine remains in its nascency, and lower courts must proceed deliberately when addressing regulations unmentioned by Heller. Accordingly, we hesitate to say Marzzarella’s possession of an unmarked firearm in his home is unprotected conduct. But because § 922(k) would pass muster under either intermediate scrutiny or strict scrutiny, Marzzarella’s conviction must stand.
For the foregoing reasons, we will affirm the District Court’s denial of Marzzarella’s motion to dismiss the indictment and affirm his judgment of conviction and sentence [which was 9 months imprisonment].
As the opinion's penultimate paragraph suggests, the Marzzarella opinion proceeds deliberately and in so doing cover more Second Amendment ground than any other opinion I can recall from the last two years. (I am tempted here to make a bad pun on the defendant's name by saying that the Marzzarella opinion comes with extra Heller cheese and lots of dicta toppings.)
In short, the Third Circuit's work in Marzzarella is a must-read for anyone following the development of Second Amendment jurisprudence. It also provides another notable data point for those hoping (or fearing) that Heller would not seriously impact the vast majority of gun control laws.
UPDATE: The Legal Intelligencer now has this report on the Marzzarella decision, which is headlined "In Wake of 'Heller,' 3rd Circuit OKs Ban on Unnumbered Guns."
Split en banc Eleventh Circuit rules child molester's 17½-year sentence substantively unreasonable
I had an inkling that the full Eleventh Circuit was working on a doozy of an opinion in US v. Irey, a child sex sentencing case in which the circuit nearly a year ago granted en banc rehearing sua sponte after a panel had affirmed a below-guideline sentence (background here and here and here). And, sure enough, while I was out enjoying an Ohio summer family tradition, the Eleventh Circuit issued an opinion this afternoon in Irey which reverses a below-guideline sentence in for what everyone agreed was an "utterly gruesome" sex offense. The majority opinion (per Judge Carnes) and multiple other opinions, including dissents, run a total of 256 pages and can be accessed at this link.
Because my belly is full of fried dough, I may not be able to make it through all of the Ivey opinions for a little while. Fortunately, David Oscar Markus at his blog has this effective summary of the main themes of the various opinion. And the introduction of the majority opinion by Judge Carnes highlights the heart of the holding:
“The federal courts of appeals review federal sentences and set aside those they find ‘unreasonable.’” Rita v. United States, 551 U.S. 338, 341, 127 S. Ct. 2456, 2459 (2007) (citing United States v. Booker, 543 U.S. 220, 261–63, 125 S. Ct. 738 (2005)). With that statement the Supreme Court opened its opinion in the Rita case. Later in the opinion the Court was more specific and emphatic:
In sentencing, as in other areas, district judges at times make mistakes that are substantive. At times, they will impose sentences that are unreasonable. Circuit courts exist to correct such mistakes when they occur. Our decision in Booker recognized as much.
Rita, 551 U.S. at 354, 127 S. Ct. at 2466–67. We believe that the Supreme Court meant what it said in the Rita opinion and elsewhere about our duty to correct sentencing mistakes. At the same time, we recognize that our substantive review of sentences is deferential and that we only look to see if the district court abused its discretion by committing a clear error in judgment. Even so, the sentence in this case can withstand review only if deference amounts to abdication, if sentencing discretion is unbridled, and if “unreasonable” is a hollow term. The sentence that the district court imposed is a clear error in judgment, a mistake, and it is our responsibility to “correct such mistakes when they occur.”
The sentence is substantively unreasonable primarily, but not solely, because of the nature and extent of William Irey’s criminal conduct. The steady stream of criminal cases flowing through this Court brings us many examples of man’s inhumanity to man, and we see a depressingly large number of crimes against children. But the sexual crimes that Irey committed against some of the most vulnerable children in the world set him apart. He raped, sodomized, and sexually tortured fifty or more little girls, some as young as four years of age, on many occasions over a four- or five-year period. He also scripted, cast, starred in, produced, and distributed worldwide some of the most graphic and disturbing child pornography that has ever turned up on the internet.
The horrific nature of Irey’s crimes resulted in an adjusted offense level that would have led to an advisory guidelines range of life imprisonment. Because the government had charged all of Irey’s crimes in just one count, the statutory maximum was 30 years and that had the effect of reducing the guidelines range to 30 years as well. The district court, however, did not impose that sentence. Instead, after deciding that pedophilia was an “illness” that had impaired Irey’s volition, and pronouncing that Irey himself was a victim, like all of the little children he had sexually violated for so long, the district court deviated downward from the 30-year guidelines range and imposed a sentence of only 17½ years. Our duty to set aside unreasonable sentences requires that we set aside this one.
I suspect that by this weekend I will find my way through all the Irey opinion and will blog some thoughts about the particulars. As a general matter, I think it is essential for circuit courts step up to their obligation to conduct substantive reasonableness review and to give more content to the substantive provisions of 3353(a). Now here is hoping that the Eleventh Circuit will also give substantive reasonableness review some teeth to reverse some sentences that seem to be too long in light of 3353(a)'s parsimony provision (even if they are within-guideline sentences) and not just to reverse sentences like William Irey's that seem too short.
Related posts on Irey case:
- Eleventh Circuit affirms below-guideline sentence in "utterly gruesome" sex offense case
- Eleventh Circuit to review en bancbelow-guideline sentence in "utterly gruesome" sex offense case
- Full Eleventh Circuit still struggling to figure out reasonableness review in Irey case
A few not-so-accurate headlines about Congress's work on crack sentences
One can find lots and lots of effective traditional media coverage of yesterday's work by Congress to finally pass a bill to reform crack mandatory minimum sentencing provisions (basics here). However, in looking over some of the headlines in Google news, I saw a few that were a bit misleading:
- From the Miami Herald, "House votes to eliminate cocaine sentencing disparity"
- From the Kansas City Star, "Big changes coming in crack sentences"
As informed readers know, Congress has only reduced the crack/powder disparity in the Fair Sentencing Act of 2010, it has not eliminated the disparity. Also, in my view, it is not accurate to call what Congress has done will bring "big changes" to crack sentencing. I see the FSA of 2010 as more of a tweak than a big change, and a lot of the long-term impact will depend on how the US Sentencing Commission makes corresponding changes in the crack guidelines.
This effective commentary by Chris Weigant over at the Huffington Post, which is headlined "Cocaine Sentencing Injustice Slightly Lessened," describes the reality of the statutory changes and also captures many of my feelings about these sentencing developments. It ends this way:
This is landmark legislation, I realize. Moving away from the "lock them all up" mentality, for politicians, is remarkable simply because it does not happen often (read: "ever"). Backing down on Draconian drug laws is not exactly atop the priorities list of many politicians, because the ads attacking them for doing so just about write themselves. So I do applaud Congress for addressing the issue (both houses have now passed the bill).
But, at the same time, what they've done is to change the ratio of unfairness from one-hundred-to-one (500:5) down to roughly eighteen-to-one (500:28). The penalties for crack and powder cocaine are still nowhere near parity. Someone possessing an ounce of crack will get a much stricter punishment than someone possessing a full pound of powder cocaine. It's as if we decided to make coffee illegal, and instituted mandatory minimums for possessing five cups of coffee -- while at the same time applying the same penalty only if you were caught with 500 cups of espresso. Or made water illegal, but set a much higher bar for possessing 500 ice cubes. Either way, it is the same substance. The only thing which differs is the penalty for the "lower class" version of the substance.
Meaning that even the newly-passed bill is not exactly an exercise in equality under the law. Not by a factor of eighteen. President Obama, to his credit, called for true fairness on the campaign trail, when he said that the disparity in crack/powder cocaine punishment "cannot be justified and should be eliminated." He was right. It should be eliminated. Either start jailing a lot more suburban white kids (which would cause its own kind of outcry), or stop jailing inner-city folks disproportionally. Lower the bar for powder, or raise the bar for crack, in other words, until the penalty is equalized.
While Congress did not have the courage of their convictions to do so this time around, they did take a baby step in the right direction. This is momentous, because it is the first such step in this direction in three or four decades. But I still can't help but wish that Congress had tackled the problem not in such an incrementalist political fashion, but rather as an issue of rank inequality to be rectified by removing all of the legally-codified unfairness at once -- to restore the concept of equal treatment under the law, rather than perpetuating (if slightly lessening) the inherent injustice which still exists.
"Are Opponents of Marijuana Legalization Getting Dumber?"
The title of this post is the heading of this amusing new item over at Stop the Drug War on the challenges experienced by those challenging the proposed legalization of marijuana in California. Here is the full text:
Interesting chart of world-wide execution numbers for 2009The Economist has this interesting chart which spotlights various nations' execution numbers for 2009. The chart comes from this little article, which is headlined "China and the death penalty: High executioners." Here is the text that accompanies the graphic:
China executes more of its own citizens than any other country, and more than all others in the world combined. “Thousands” of Chinese were executed in 2009 according to Amnesty International's annual study, which states that an exact number is impossible to determine because information on the death penalty is regarded as a state secret. But this gruesome record may yet change. The National People's Congress is reported to be reducing the number of offences that are punishable by execution. Among the crimes that currently carry the death penalty are bribing an official and stealing historical relics.
Of course, this chart showing China ahead of all other nations reflects total number of executions. If one were to focus on per capital execution rates, I believe Iran and Saudi Arabia get to brag about beating China on this metric. In addition, I think if Texas were considered separate from the rest of the United States, it would rank pretty high on a list of per capital execution rates, while the rest of the United States would be ranked quite low on this metric.
As is true for most discussions and debates over crime and punishment, we are wise to recall the phrase made popular by Mark Twain: "lies, damned lies, and statistics."
July 28, 2010
"A Brief and Modest Proposal" ... an original essay from US District Judge Richard Kopf
I am very pleased to be able to reprint a timely e-mail that landed in my in-box this afternoon from Richard G. Kopf, United States District Judge for the District of Nebraska. Here is the Judge's wind-up and pitch:
I read Professors Masur's article entitled "Booker Reconsidered" and your post about his article [available here]. After that reading, a thought occurred to me that has been percolating in my muddled mind for some time. Hence, the following "Brief and Modest Proposal." Feel free to post if you like. Take care.
A Brief and Modest Proposal
Although it has the data and although it releases data on a court-by-court basis, the United States Sentencing Commission has never publicly released information on the extent to which individual federal judges sentence within or outside the Guidelines. I propose that the Sentencing Commission annually release sentencing statistics for each federal judge who sentenced a significant number of offenders during that year.
For much of their history, compliance with the Guidelines was very high. So long as the Guidelines were essentially binding in most cases and aggregate compliance rates remained elevated, one could make a reasoned argument that providing sentencing statistics on individual judges was unnecessary and perhaps unfair. But the Supreme Court has changed all that by significantly increasing the discretion of federal judges when it comes to sentencing.
Since the Supreme Court’s reordering of the federal sentencing process, compliance with the Guidelines is on a steady downward trend, albeit not as drastic as feared. This trend has caused the Attorney General, scholars and some judges to worry (1) that disparities caused by irrelevant factors (race, gender, class and so forth) are increasing and (2) that a fair number of sentencing decisions are driven by idiosyncratic beliefs that, while well-motivated, are not empirically supported or are contrary to reasoned sentencing policy. Indeed, these concerns are finding a public voice. See, for example, the New York Times editorial entitled "Rethinking Criminal Sentences" published on July 28, 2010. ("As a general principle, sentences for the same federal crimes should be consistent. As the Justice Department notes in its report, a sense of arbitrariness — sentences that depend on the luck of getting a certain judge — will 'breed disrespect for the federal courts,' damaging their reputation and the deterrent effect of punishment.").
By making individual sentencing statistics available, federal judges will be held publicly accountable for the exercise of their new found discretion, and that might have the beneficial effect of causing judges to think more deeply about the sentences they impose and explain more clearly the reasons for those sentences. Perhaps more importantly, armed with this data, outside scholars who seriously study these things will be better informed and therefore better able to provide a reasoned critique of the federal sentencing process in this post-Booker world. In short, it is time for federal sentencing judges like me to pay the piper.
Richard G. Kopf, United States District Judge
Questions and more questions as a reformed crack bill heads to the President's desk
As reported here, the House of Representatives, by voice vote, finally approved the compromise federal sentencing bill reducing the disparities between mandatory crack and powder cocaine sentences, sending the measure to President Barack Obama for his signature. Here is the text of the bill known as the Fair Sentencing Act of 2010 ("FSA"), and the folks at FAMM have this terrific resource page providing lots and lots of information about the bill and its potential impact. But I still have lots and lots of questions as the bill head's to the President's desk:
1. Will the US Sentencing Commission be able to make all the needed follow-up amendments no later within the 90 days reguired by the FSA?
2. How many crack sentencings have been put on hold awaiting the expected passage of this bill and should they stay on hold while the USSC works on the emergency amendments?
3. Will defendants who have already been sentenced for crack offenses find any ways to get any retroactive benefit from the FSA and/or the USSC amendments to follow?
4. Does the passage of this bill (and also yesterday's House passage of the National Criminal Justice Commission Act) suggest we have finally hit a tipping point in the war on drugs and/or the tough on crime era?
I could go on and on, but I suspect readers may have some additional question to add to the mix.
House of Representatives seems poised to finally pass federal crack/powder disparity reform billAs detailed in this new AP article, which is headlined "Congress seeks to narrow gap in cocaine sentences," it appears that the House of Representatives is today going to approve the compromise crack sentencing reform bill that made it though the Senate back in March. Here are the basics:
The House planned to vote Wednesday on the measure that would change the 1986 law under which a person convicted of crack cocaine possession gets the same mandatory prison term as someone with 100 times the same amount of powder cocaine. The legislation would reduce that ratio to about 18-1.
The Senate has passed the legislation. House approval would send it to President Barack Obama. "There is no law enforcement or sentencing rationale for the current disparity between crack and cocaine powder offenses," Attorney General Eric Holder said when the Senate acted in March....
Under current law, possession of 5 grams of crack triggers a mandatory minimum five-year prison sentence. The same mandatory sentence applies to a person convicted of trafficking 500 grams of powder cocaine. The proposed legislation would apply the five-year term to someone with 28 grams, or an ounce, of crack. It would be the first time in 40 years that Congress has repealed a mandatory minimum sentence.
All reports suggest that President Obama would sign this compromise bill, and I assume he would do so ASAP.
The exact timing of this bill becoming law is important for lots or reasons, especially because I believe the bill gives the US Sentencing Commission only 90 days to develop needed guideline amendments in response to the law. That, in turn, means the USSC may have to, before the end of October, significantly rewrite a significant portion of the current drug sentencing guidelines. And that, in turn, means everyone (and their lawyers) with current or pending federal drug offense sentences will have a lot more to be watching over the next few months than just the baseball pennant races.
Some recent related posts:
- Is the House finally about to pass the compromise crack/powder reform bill?
- House approves creation of National Criminal Justice Commission
- Unanimous(!!) vote by Senate Judiciary Committee to reduce (but not eliminate) crack/powder disparity
- Varied reactions to the crack/powder reform work of the Senate Judiciary Committee
- Full Senate passes bill to reduce (but not eliminate) crack/powder disparity
- Will and should House adopt the crack/powder reform compromise passed by Senate?
- Different editorial perspectives on crack reform compromise
- Questions about the "when" and "now what" for crack/powder sentencing reform
- What's the status of crack/powder sentencing reform in the House?
UPDATE: It is official, as detailed in this new AP article on the House vote today:
The House, by voice vote, approved a bill reducing the disparities between mandatory crack and powder cocaine sentences, sending the measure to President Barack Obama for his signature. During his presidential campaign, Obama said that the wide gap in sentencing "cannot be justified and should be eliminated." The Senate passed the bill in March....
"For Congress to take a step toward saying 'we have made a mistake' and this sentence is too severe ... is really remarkable," said Virginia Sloan, president of the Constitution Project, which in studies of sentencing practices has referred to crack cocaine mandates as a "'poster child' for the injustices of mandatory sentencing." Under current law, possession of five grams of crack triggers a mandatory minimum five-year prison sentence. The same mandatory sentence applies to a person convicted of trafficking 500 grams of powder cocaine....
The Congressional Budget Office said the bill would save the government $42 million over five years because of the reduction in prison populations.
Rep. Lamar Smith of Texas, the top Republican on the Judiciary Committee, was the only lawmaker to speak against the bill, saying the 1986 law was enacted at a time when the crack cocaine epidemic was bringing a sharp spike in violence to minority communities and it would be a mistake to change it. "Why do we want to risk another surge of addiction and violence by reducing penalties?" he asked. "Why are we coddling some of the most dangerous drug traffickers in America?"
Rep. Bobby Scott, D-Va., noted that the bill also requires the sentencing commission to significantly increase penalties for drug violations involving violence. "This way the defendant is sentenced for what he or she actually did, not the form of cocaine involved," Scott said.
Second Circuit reverses below-guideline child porn sentence as procedurally unreasonableThe Second Circuit continues its robust work on reasonableness review in child porn cases with an intriguing new little decision reversing a below-guideline sentence in US v. DeSilva, No. 09-2988 (2d Cir. July 28, 2010) (available here). The opinion starts this way:
The DeSilva opinion includes lots of important discussion of the Second Circuit's child porn ruling in Dorvee and the role that psychologist reports often play in these child porn cases. Here is a snippet:
We are called upon here to determine whether the United States District Court for the Western District of New York committed procedural error by engaging in clearly erroneous factfinding at defendant’s sentencing when it relied upon a psychologist’s report — which was prepared for use at a pretrial bail hearing — to find that defendant, an admitted child molester, posed no danger to the community. We hold that the District Court did commit such procedural error and therefore remand for resentencing.
Although a psychologist’s report may provide mitigating evidence for the court’s consideration during sentencing, the court must still conduct an independent evaluation of the defendant in light of the factors set forth in 18 U.S.C. § 3553(a). If the psychologist’s report cannot be squared with the court’s own judgment of the defendant’s culpability and the danger he poses to society, the court is free, in its discretion, to decline to rely on the psychologist’s findings, so long as the court explains its basis for doing so.
Nothing in Dorvee is to the contrary. There, as part of our consideration of a sentence’s substantive reasonableness, we observed that the district court placed more emphasis on 18 U.S.C. § 3553(a)(2)(C) as an aggravating factor than the sentencing record could support. See Dorvee, 604 F.3d at 94. Specifically, the district court in Dorvee based the defendant’s sentence, at least in part, on the “assumption” that the defendant posed a danger to the community merely because he had committed a child-pornography offense. Id. In relying on that “assumption” — which, we found, lacked record support — the district court also ignored, without explanation, a psychologist’s report that tended to suggest that there was not a great need “to protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C). The fact that the record as a whole could not sustain the district court’s application of § 3553(a)(2)(C) supported our ultimate conclusion that the sentence was not substantively reasonable. See Dorvee, 604 F.3d at 94. We did not, however, suggest that a district court must, without scrutiny, adopt a psychologist’s conclusion that a particular defendant poses no danger to the community.
In short, nothing in Dorvee compels a district court to accept a psychologist’s conclusions at face value. It is possible, of course, that such a psychologist’s report may be accurate. But district courts should scrutinize such reports with the same diligence required during any fact-finding at sentencing, especially if the report’s conclusion is at odds with the defendant’s conduct....
Dr. Joseph’s report dealt only with whether DeSilva would be a danger to the community if released to his parents pending trial. What was relevant for sentencing, however, was whether DeSilva would pose a danger to society once he had served his sentence and was released from prison. No one suggests that the District Court could have ordered that DeSilva be released to his parents following his term of imprisonment, and thus Dr. Joseph’s opinion had only minimal relevance to whether DeSilva would be likely to abuse another boy after his sentence was complete. As such, the report should have had little bearing on the District Court’s sentencing determination; it was not, in any event, an appropriate authority for the Court’s finding that DeSilva posed no “danger to the community.” See J.A. 168-69. In relying on Dr. Joseph’s report, therefore, the District Court “‘select[ed] a sentence based on [a] clearly erroneous fact” and thereby committed “‘procedural error.’” Dorvee, 604 F.3d at 90 (quoting Gall, 552 U.S. at 51).
"Japan hangs two, announces review of death penalty"The title of this post is the headline of this notable press report on death penalty developments in the land of the rising sun. Here are the detais:
Japan's justice minister, a foe of capital punishment, announced a review of the death penalty Wednesday after witnessing the first executions since her centre-left government took power last year.
The two male convicts hanged were Kazuo Shinozawa, 59, who killed six people by setting fire to a jewellery store, and Hidenori Ogata, 33, convicted of killing a man and a woman and seriously injuring two others.
Keiko Chiba, the first justice minister to personally watch a government execution, carried out at the Tokyo Detention House, afterwards told media she wanted a ministry study group to review the practice. "I confirmed the executions with my own eyes," said Chiba. "It made me again think deeply about the death penalty, and I once again strongly felt that there is a need for a fundamental discussion about the death penalty."
She also said she would open up death chambers to the media for the first time -- though not on execution dates -- to expose to public scrutiny the mechanics of a process that has long been shrouded in secrecy....
More than 85 percent of the public support the death penalty, according to a Cabinet survey carried out in February. Japan has often been criticised internationally for its use of the death penalty, and the fact that death row prisoners and their families are not told about the execution date in advance.
The country last executed prisoners exactly a year earlier, when the conservative Liberal Democratic Party still ruled the country, putting to death three inmates including one Chinese national, also for multiple murder.
When the centre-left Democratic Party of Japan took power last September, ending more than half a century of conservative rule, it said it favoured public discussion on the death penalty. The new government also sent a signal by appointing Chiba -- then a member of the Japan Parliamentary League against the Death Penalty -- as justice minister, while largely avoiding open debate on the issue....
The latest hangings left 107 people on death row in Japan.
New York Times editorial urges review of white-collar and child porn sentencesThis morning's editorial page of the New York Times includes this thoughtful piece titled "Rethinking Criminal Sentences." Here are excerpts:
Sentencing for white-collar crimes — and for child pornography offenses — “has largely lost its moorings,” according to the Justice Department, which makes a strong case that the matter should be re-examined by the United States Sentencing Commission....
As a general principle, sentences for the same federal crimes should be consistent. As the Justice Department notes in its report, a sense of arbitrariness — sentences that depend on the luck of getting a certain judge — will “breed disrespect for the federal courts,” damaging their reputation and the deterrent effect of punishment.
Possession of a single piece of child pornography, for example, is supposed to result in a five-to-seven-year sentence — longer with aggravating circumstances — but many judges instead are imposing probation or one year for first offenses. Many federal judges have told the sentencing commission that the child pornography guidelines are far too severe.
The Justice Department is not explicitly recommending that sentences be lowered; in fact, the new financial regulatory law suggests higher sentences in some areas. But readjusting the guidelines downward in some cases is clearly one of the possible routes the sentencing commission could take. The rules for child pornography, for example, include extra penalties for using a computer, but everyone in that repugnant world uses a computer, rendering the rules obsolete.
The key in both areas is helping judges find ways to differentiate the worst offenders from those who have caused less damage or are less of a threat to society. White-collar sentences are now based on the size of the fraud, but that may not be the best way to measure the role of a defendant or the venality and damage involved.
As repellent as child pornography is, it does not help judges when someone found with a few photographs is held to similar standards as someone disseminating thousands of them. These are sensitive areas, but a thoughtful re-examination by the commission and Congress could bring new respect for the federal judiciary.
Recent related posts:
- 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?
- Effective press coverage of recent DOJ letter to the US Sentencing Commission
July 27, 2010
House approves creation of National Criminal Justice CommissionThough we still await action from the House of Representatives on reform of the crack sentencing statutes, here is some notable news from the people's chamber (as reported via an e-mail from The Sentencing Project):
The House of Representatives today passed legislation that would establish a national commission to conduct a thorough evaluation of the nation's justice system and offer recommendations for reform in a range of areas, including sentencing policy, rates of incarceration, law enforcement, crime prevention, substance abuse, corrections and reentry.
The National Criminal Justice Commission Act of 2010, H.R. 5143, passed by voice vote under a suspension of the rules. The bipartisan legislation, introduced by Reps. William Delahunt (D-MA), Darrell Issa (R-CA), Marcia Fudge (D-OH), Tom Rooney (R-FL) and Robert "Bobby" Scott (D-VA), now awaits passage in the Senate where it was introduced by Senator Jim Webb (D-VA).
The bipartisan 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. The "blue-ribbon" commission would be charged with conducting an 18-month, top-to-bottom review of the nation's entire criminal justice system and offer concrete recommendations for reform.
I am pleased to hear of this news, and I am certain that a National Criminal Justice Commission could and would develop lots of good ideas for federal and state criminal justice reform.
The modern problem, however, is not a lack of good ideas, but a lack of leaders willing to help ensure good ideas become law. After all, the bipartisan "blue-ribbon" commission known as the US Sentencing Commission has been making a forceful and impassioned call for reform of the 100-1 crack/powder sentencing statutes for 15 years, and we are still awaiting a change. I am hopeful that this action on the National Criminal Justice Commission Act of 2010 is a prelude to action on crack sentencing reform, but I am not going to count any sentencing chickens until they are fully hatched.
UPDATE: This press release from Congressman Bill Delahunt provides more details about the Act.
New paper with an important criminal justice take on Arizona’s SB1070 immigration law
Two of my favorite Arizona professors, Jack Chin and Marc Miller, have this important new piece on some of the criminal justice implications of Arizona's new immigration law. The piece is titled "Cracked Mirror: State Regulation of Immigration through Criminal Law," and here is the abstract:
While the Supreme Court has held that regulation of immigration is an exclusively federal power, some claim that pursuant to “cooperative enforcement”, states can enact statutes that are “mirror images” of federal criminal immigration laws. This theory, that federal criminalization enhances state power to enact consistent laws, led to Arizona’s SB1070 as well as legislation in several other states. Through cooperative enforcement measures, it is proposed, states can create regimes encouraging undocumented non-citizens to self-deport under threat of prosecution.
This paper contends that the mirror image theory, pioneered by Professor Kris Kobach, is doubtful, by exploring some points not yet fully ventilated in the SB1070 litigation. First, the mirror image theory extrapolates from case law allowing states to enforce federal law in the sense of permitting arrests by local police for federal crimes. But power to arrest does not imply power to try or criminalize. Second, the theory builds on the observation that the Immigration and Nationality Act (“INA”) includes a role for state law enforcement. However, the INA permits only local action that is preliminary, in the form of arrests or information sharing (which leave decision-making in federal hands) or is supervised and controlled by federal agencies.
This paper also focuses on the criminal nature of the statutes created under the mirror image theory. While cooperative enforcement may make sense in the civil arena, since the Judiciary Act of 1789, Congress has granted federal criminal jurisdiction to federal courts, “exclusively of the courts of the several States.” While of course state legislatures often have concurrent criminal jurisdiction over particular matters, there are also areas of exclusive federal criminal jurisdiction. The Court has held that if “an offense against the public justice of the United States” it is “within the exclusive jurisdiction of the Courts of the United States” even if a state statute seems to cover the misconduct. The Constitution’s assignment to the federal political branches of exclusive federal power to regulate immigration, coupled with the INA’s grants of administrative discretion and regulatory authority to the Secretary of Homeland Security and Attorney General but not the states, leave little room for the proposition that authority to prosecute, “an exercise of the sovereign power of the United States” has somehow been delegated to the states sub silentio.
Lengthy Third Circuit discussion of crack retroactivity issue that has split the circuits
A Third Circuit panel decision today US v. Flemming, No. 09-2726 (3d Cir. June 27, 2010) (available here), provides a thoughtful and comprehensive account of a little sentencing issue that has divided the circuits. Here is how the lengthy opinion in Flemming starts and ends:
Glenn Flemming was sentenced in February 2005 to 175 months’ imprisonment for federal firearm and crack cocaine offenses committed in 2002. After the United States Sentencing Commission retroactively lowered the offense levels for most crack cocaine offenses by two levels, Flemming moved for a reduction of sentence under 18 U.S.C. § 3582(c)(2). The District Court denied his motion, concluding that it lacked authority to reduce Flemming’s sentence because he was a career offender under U.S.S.G. § 4B1.1. On appeal, Flemming argues that, despite his status as a career offender, he is eligible for a sentence reduction under § 3582(c)(2) because the District Court granted him a downward departure under U.S.S.G. § 4A1.3 after concluding that the career offender enhancement overstated the seriousness of his criminal history, and instead sentenced him within the Guidelines range for crack cocaine offenses.
The narrow issue presented in this case — whether a career offender who receives a § 4A1.3 downward departure under a pre-2003 edition of the Sentencing Guidelines to the Guidelines range for crack cocaine offenses is eligible for a sentence reduction under § 3852(c)(2) — is one of first impression in our Court, but one that has divided our sister circuit courts. The First and Second Circuits, as well as a divided panel of the Fourth Circuit, have concluded that such a defendant is eligible for a sentence reduction. The Eighth and Tenth Circuits, as well as a divided panel of the Sixth Circuit, have disagreed.
Though we do so through a somewhat different analysis, we join the First, Second, and Fourth Circuit Courts in concluding that such a defendant is eligible for a sentence reduction under § 3582(c)(2). Accordingly, we vacate the District Court’s order and remand for further proceedings....
Application of the rule of lenity is called for only in rare cases, and thus we stress the narrowness of our holding. We conclude that, under a pre-2003 edition of the Sentencing Guidelines, a career offender who is granted a § 4A1.3 downward departure to the Crack Cocaine Guidelines range is eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). Accordingly, we vacate the District Court’s order and remand this case for the Court to exercise its discretion to determine whether, and to what extent, a reduction in Flemming’s sentence is warranted.