August 31, 2010
A few notable medical marijuana headlines
These two major media headlines about medical marijuana developments caught my eye this afternoon:
From CBS News here, "Pot, Chronic Pain Relief: New Study Says Marijuana Can Help"
From CNN here, " Medical Marijuana Ad on Television"
Two little and notable Ninth Circuit sentencing opinionsThe Ninth Circuit handed down two notable little sentencing opinions this afternoon. Here are links to the unanmious panel rulings, along with snippets from the decisions:
United States v. Wipf, No. 09-50291 (9th Cir. Aug. 31, 2010) (available here):
Appellant argued that the district court had discretion under 18 U.S.C. § 3553(a) to impose a sentence below the mandatory minimum, and that it should do so given her particular circumstances. She contended that there was a conflict between § 3553(a )— which requires district courts to impose the lowest sentence possible to achieve Congress’s sentencing goals — and the ten-year mandatory statutory minimum....
We have never addressed explicitly the question of whether 18 U.S.C. § 3553(a) permits a district court to impose a sentence below a mandatory statutory minimum. Every other circuit to have done so has held that § 3553(a) does not confer such authority. We reach the same conclusion.
United States v. Armstrong, No. 09-30395 (9th Cir. Aug. 31, 2010) (available here):
Richard C. Armstrong was convicted by a jury of participating in a racially motivated assault against an African American man. Armstrong now appeals his sentence. He contends that the district court erred in imposing two enhancements: one for selecting a victim on the basis of race and one for obstruction of justice. Additionally, he argues that the sentence as a whole was procedurally flawed and substantively unreasonable. We address whether a defendant may avoid an enhancement for selecting a victim on the basis of race if his co-defendant selected the victim before he did. We decide that he may not. Because we also disagree with Armstrong’s other two contentions, we affirm the sentence imposed by the district court.
NC's local prosecutors urging full audit of suspect state criminal lab workThere's lots of interesting and important criminal justice action and debate in North Carolina these days. In addition to racial disparity debates roiling the administration of the death penalty, there is a broader on-going controversy involving the state's criminal justice lab. This local article from this past weekend, which is headlined "DAs demand full SBI audit," provides some of the basics:
The N.C. Conference of District Attorneys wants a thorough accounting of all the problems at the State Bureau of Investigation crime lab. The district attorneys say they want an independent audit of all sections of the forensic lab so they might feel confident of the work they are presenting to juries.
"Restoring the public's confidence not only in the SBI lab, but our entire system of justice, is our paramount concern, and a full scale audit of the lab is a step in the right direction," said Seth Edwards, president of the conference and the district attorney in Beaufort County.
The request signals some tension between the district attorneys and Attorney General Roy Cooper, who has not called for a full-scale audit of the SBI, which he supervises. For years, Cooper and district attorneys have enjoyed close relations and have worked in tandem on many policy issues.
This month, the SBI has been attacked for delivering shoddy, unscientific work to prosecutors across the state. The News & Observer reported in a series that analysts pushed past the bounds of accepted science to deliver answers that prosecutors needed to secure convictions.
Last week, Cooper released an audit of the lab's blood analysis unit which highlighted a widespread practice of withholding critical test results that may have robbed defendants of a fair trial. Auditors highlighted 230 cases tainted by the practice. Already, legislators and defense attorneys have been calling for an independent lab, out of the hands of the SBI and the attorney general.
Senate majority leader Marc Basnight said Friday that the financial implications of sorting through all of the issues with the SBI won't be a problem or a concern for legislatures. Their priority: making it right. "I'm worried about the person who is locked up who may be innocent," Basnight said.
Edwards said the serology audit is not enough to fully understand problems across the lab. He said that "every case involving the SBI will be scrutinized unless and until a full-scale audit of the lab is performed."
Conference of district attorney officials sent their request to Cooper's office Friday morning. A spokeswoman for the SBI said they have called for an audit of the firearms unit in addition to the DNA section. New SBI director Greg McLeod said a new lab director will enhance the agency's performance. The conference also appealed to legislators to come up with whatever money is needed to pay for such an audit.
District attorneys across the state have worried about how to defend the reputations of their star witnessesSBI analysts after the public has heard about bad work at the lab. Some, such as Union County District Attorney John Snyder, launched their own review of all homicide cases in their districts.
Notably, as detailed in this AP article headlined "NC DA: Death penalty moratorium OK in some cases," these matters are also starting to haunt the state's application of the death penalty:
The president of a district attorneys' group in North Carolina says he supports a moratorium on the execution of any death-row prisoners whose cases include evidence from the State Bureau of Investigations crime lab.
Serial knife slasher gets 433 years in prison PLUS 11 life sentencesIf anyone ever wonders what kind of sentence the villians in slasher movies might face, this CNN report on a real case from California provides some clue. Here are the details:
A transient, who was nicknamed "the box cutter," was sentenced to more than 400 years in prison for a knifing rampage against several California women. Charles Juan Proctor was convicted this month of 22 charges including robbery and attempted murder in connection with the slashing spree, the Los Angeles County District Attorney's office said.
On Monday, Long Beach Superior Court Court Judge Gary Ferrari sentenced the 45-year-old man to 433 years plus 11 life sentences. Proctor was also ordered to pay about $58,000 in restitution to two women he knifed in the throat, prosecutors said.
In all, there were six women who were attacked, prosecutors said. Most of Proctor's victims were shop owners attacked at their places of business, authorities said. The remaining victims were shop employees....
"You are a violent and dangerous human being. Your conduct toward these victims is absolutely despicable," the judge told Proctor during the sentencing.... "It's unconscionable what you did to these women. You shouldn't be on any street in the city of Long Beach. In fact, you shouldn't be on any street in this country."
So, barring any reductions for good behavior, Procotor will begin serving his first (of eleven) life sentences in the year 2444. At least that will be an easy number for him to remember as he rots away in prison.
Quantifying the "Worst of the Worst" in AlabamaI just came across this interesting looking empirical piece by Jennifer Leigh Adger, which is titled "Quantifying the ‘Worst of the Worst’: Victim, Offender and Crime Characteristics Contributing to ‘Heinous, Atrocious, or Cruel’ Findings in Alabama." Here is the abstract:
This study focuses on capital sentencing in Alabama. Specifically, it will attempt to identify characteristics of homicides that distinguish cases with “heinous, atrocious, and cruel” (HAC) findings from those homicides that do not have this finding. Critics of HAC assert that it lacks a clear statutory definition, and is, as a result, particularly vulnerable to being applied inconsistently. HAC is found in approximately forty percent of the cases in which an individual is sentenced to death in Alabama and is one of the most highly litigated aggravating circumstances across the country.
In order to examine how Alabama trial courts have been applying the HAC aggravating circumstance this study gathered data from all 414 individuals sentenced to death in Alabama from 1976 to 2008. Information was collected about procedural aspects of the cases, perpetrator and victim characteristics, and characteristics of the homicide. I examined the relationship between HAC findings and various crime characteristics using a logistic regression model. Even though the results of this analysis indicated that some case characteristics may be statistically relevant in predicting whether a particular case will result in a HAC finding, this study’s overall quantitative and qualitative examination was unable to identify a unifying set of characteristics that categorically distinguish the cases in which HAC is found from those where it is not. Because of these results, it appears that Alabama’s construction of HAC does not result in a consistent application of this aggravating circumstance.
August 30, 2010
"Obama Takes a Crack at Drug Reform"The title of this post is the headline of this notable new piece appearing the The Nation by Ethan Nadelmann that discusses the Fair Sentencing Act and related issues. Here are excerpts:
For those of us who fought long and hard to reform the notorious 100-to-one crack/powder cocaine disparity in federal law, the Fair Sentencing Act, signed by President Obama on August 3, is at once a historic victory and a major disappointment. It's both too little, too late and a big step forward....
What is the broader significance of the new law?
First, it's one more indication that Obama is making good on his commitment to roll back the drug war. Few reformers, including myself, would have bet that Obama would deliver — in fair measure, and within eighteen months — on all three of the pledges he made while running for president. He said he'd reverse the government's antagonism to state medical marijuana laws — and he did, with the Justice Department announcing last fall that it would essentially defer to local authorities in determining whether medical marijuana facilities were operating legally. He also said he'd support ending the ban on federal funding for needle exchange programs to reduce HIV/AIDS — and he did. And he said he'd push to repeal the crack/powder disparity — which he did....
To be sure, the Obama administration has been disappointing on other aspects of drug policy.... There's plenty of work left, but at least Obama made good on his specific commitments.
The victory also showed that traditional civil rights leaders are finally beginning to prioritize criminal justice reform.... Some would argue that sentencing reform is still a low priority for most civil rights organizations, but at least African-American leaders are beginning to own the issue....
Change is clearly afoot. Black legislators are often at the forefront of sentencing and other drug policy reform efforts in state capitals. Michelle Alexander's powerful new book, The New Jim Crow, in which she calls out civil rights organizations for failing to grasp that the drug war is accomplishing what Jim Crow once did, is stirring up much-needed debate. And the endorsement of California's marijuana legalization initiative, Proposition 19, by both Alice Huffman, the influential head of the California NAACP, and the National Black Police Association proves that courageous leadership is possible....
So what's next on the agenda? The immediate priority is to make the crack/powder reform retroactive so that those already serving harsh sentences will be treated the same as those sentenced in the future. The second priority will likely be broader reform of mandatory minimum drug laws.
The third priority, I would argue, has to be national reform of marijuana prohibition laws. Arrests for marijuana possession, typically of tiny amounts, account for 44 percent of drug arrests nationwide and disproportionately affect African-Americans. Few are being sentenced to long prison terms, but most are acquiring criminal records that will handicap them for life. Forty percent of Americans, possibly more, now believe that marijuana should be legally regulated and taxed. (The same cannot be said of most other illicit drugs.) If California voters approve Prop 19 in November, the country will quickly find itself in the midst of an intense debate on marijuana policy. But even if they don't, the issue will continue to pop up on ballot initiatives and in state legislatures and Congress. As my colleague Jasmine Tyler said regarding the next frontier of drug policy reform and racial justice, "It's time to make marijuana 'the new crack.'"
Roger Clemens in federal court to be arraigned todayThis AP article, headlined "Clemens heads to DC, this time for court," reports on today's (legal) sports news. Here is how it starts:
On this trip to Washington, Roger Clemens will be in a courtroom, not in Congress. His defiant stance is expected to remain the same, even if his statement is much shorter. Something along the lines of, "Not guilty." The seven-time Cy Young Award winner is scheduled to be arraigned Monday in the nation's capital on a six-count indictment alleging he lied to Congress when he said he never used steroids or human growth hormone.
In what should be a short court appearance, Clemens will appear before U.S. District Judge Reggie Walton. If convicted on all charges, he could face up to 30 years in prison and a $1.5 million fine, though under U.S. sentencing guidelines, he would probably face no more than 15 to 21 months in prison.
All signs point toward him fighting. He came to Congress after being mentioned repeatedly in the Mitchell Report — the damning breakdown of the sport's steroid problem released in 2007.
In front of a House committee the next year, Clemens said: "Let me be clear. I have never taken steroids or HGH." Before his indictment was handed down Aug. 19, Clemens was offered a plea deal that he turned down, and afterward, he showed no signs of backing down.
"I look forward to challenging the Governments accusations, and hope people will keep an open mind until trial," Clemens wrote on Twitter after the indictment. "I appreciate all the support I have been getting. I am happy to finally have my day in court."
August 29, 2010
A potent attack (from a US Sentencing Commission lawyer) on the make-up and commitments of law professorsThanks to notable (and mostly positive) buzz at law-prof blogs like Professor Bainbridge, TaxProf, Law Librarian, and PrawfsBlawg, I just came across this notable paper on SSRN, by Brent Newton, which it titled "Preaching What They Don't Practice: Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy." Here is the abstract:
In response to decades of complaints that American law schools have failed to prepare students to practice law, several prominent and respected authorities on legal education, including the Carnegie Foundation for the Advancement of Teaching, recently have proposed significant curricular and pedagogical changes in order to bring American legal education into the twenty-first century. It will not be possible to implement such proposed curricular and pedagogical reforms if law schools continue their trend of primarily hiring and promoting tenure-track faculty members whose primary mission is to produce theoretical, increasingly interdisciplinary scholarship for law reviews rather than prepare students to practice law. Such impractical scholars, because they have little or no experience in the legal profession and further because they have been hired primarily to write law review articles rather than primarily to teach, lack the skill set necessary to teach students how to become competent, ethical practitioners. The recent economic recession, which did not spare the legal profession, has made the complaints about American law schools’ failure to prepare law students to enter the legal profession even more compelling; law firms no longer can afford to hire entry-level attorneys who lack the basic skills required to practice law effectively. This essay proposes significant changes in both faculty composition and law reviews aimed at enabling law schools to achieve the worthy goals of reformists such as the Carnegie Foundation.
Though this paper caught my attention principally because of its (reasonable, though somewhat strident) attack on modern law professor pedigrees and elite law school commitments, the bio of the author (as set forth in the piece's first footnote) ought also be of interest to readers of this blog:
Deputy Staff Director, United States Sentencing Commission; Adjunct Professor of Law, Georgetown University Law Center and Washington College of Law, American University.... The opinions expressed here are my own and should not be attributed to any of them or to the United States Sentencing Commission. My perspective on legal education has been informed by having taught 32 law school courses – both doctrinal courses and “practical” courses – as an adjunct professor or lecturer while working as a full-time practitioner (including as a public defender for sixteen years).
"Prosecutors seek to revoke swindler's bond for lying about cancer"The title of this post is the headline of this amusing (though still serious) story from last week's Chicago Tribune. Here are the details:
The government is asking a federal judge to revoke the bond of David Hernandez, saying he attempted to delay his sentencing on a fraud conviction by fabricating a letter from a doctor that said he was starting treatment for cancer.
Hernandez, of Downers Grove, pleaded guilty in January to a Ponzi-style scheme that bilked more than 200 people of their savings. The swindle allegedly garnered $6.3 million for Hernandez, who bankrolled a now-defunct Chicago sports-talk radio station and made personal purchases.
Federal prosecutors say the fake letter indicates Hernandez is a flight risk, citing a previous case against Hernandez in which he threatened to flee. In addition to the letter, which indicated that he would undergo several months of cancer treatment, including radiation, chemotherapy and surgery, Hernandez failed to show up in court for a status hearing Aug. 19 after his wife claimed he had a stroke, according to court documents.
A pretrial services officer said they were able to verify that Hernandez was in the hospital but not that he had a stroke, court documents indicate. Hernandez said test results were negative and no follow-up appointments were scheduled, according to the officer....
Umang Patel, a doctor at the Woodridge Clinic who had allegedly signed the letter saying Hernandez had cancer, told a federal agent his signature had been forged and that Hernandez did not have cancer.
A thoughtful call for Congress to slightly increase federal good-time creditSteve Sady, the public defender who for years argued for a defendant-friendly interpretation of the federal statute providing for 15% good time credit for prisoners, has this new commentary in the National Law Journal. The piece is headlined "Too much time in prison," and here is how it starts and ends:
On June 7, my federal public defender office had the disturbing experience of losing Barber v. Thomasin the U.S. Supreme Court, a case that — if the outcome had been different — would have prevented up to 36,000 years of federal overincarceration, saving taxpayers up to $951 million. The issue was whether the federal statute that allowed federal prisoners to earn up to 54 days of good-time credits for each year of their sentences meant that a prisoner could reduce the sentence imposed by up to 15%. This sounds like an easy figure to calculate (54/365), but the federal Bureau of Prisons (BOP), based on time served, came up with a complex formula that works out to 12.8% of the prisoner's sentence, or only 47 days per year of the sentence imposed. In light of the Court's majority ruling approving the BOP's interpretation of 12.8%, Congress should now amend the good-time credit statute to require the 15% rate against the sentence imposed that has received bipartisan support in previous legislation and that provides the basis for the federal guidelines' sentencing ranges....
Although the Supreme Court has made its decision, the result is bad public policy. It is now up to Congress and the administration to step up and correct the problem. Congress can fairly and safely lower incarceration rates for well-behaved prisoners, thereby reducing prison overcrowding and preserving public resources, by amending the federal good-time statute to ensure that prisoners can receive good-time credits of up to 15% of the sentence imposed. By doing so, Congress would reaffirm the value our society and Constitution place on human freedom, while reinforcing good behavior by federal prisoners.