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September 21, 2010

Delaware editorial (strangely?) assails providing sentencing judges with punishment cost data

Following up the recent stories on Missouri's new sentencing innovations (background here and here), The News Journal (of Delaware) has this notable new editorial headlined "Judicial trends no place to solve fiscal dilemmas."  Here are excerpts:

An advisory committee established by Missouri state lawmakers has voted to begin telling judges the costs of criminal sentences on the state budgets.

For example, a judge might now learn that a second-degree robbery incarceration could be less than $9,000 for five years of intensive probation, but more than $50,000 for prison sentence and parole, The New York Times reports....

But there are more credible efforts to reduce the cost of imprisonment without factoring in capital budgets as pre-sentencing evidence.  Reducing sentences for nonviolent offenders tops the lists.  Most states are overhauling 25 years of mandatory sentences laws that led to longer jail time for possession of crack, the rock form of the powder cocaine.

In Delaware, which has the nation's 11th-highest incarceration rate, Corrections Commissioner Carl Danberg urges state legislators to consider alternatives for nonviolent criminals. "It's significantly cheaper to supervise the person in the community," Danberg said.

Judicial trends should further the cause of justice and the rule of law, not solve fiscal dilemmas. Unfortunately, Missouri judges are being given the kind of truth-in-sentencing help that stretches the bounds of justice due to victims and defendants.

This editorial seems strange to me on a number of fronts.  First, I am not even sure I understand the reference to "Judicial trends" that appears in the headline and penultimate sentence of this editorial.  Second, it seems that the editorial favors "efforts to reduce the cost of imprisonment" such as reducing prisons sentences and "consider[ing] alternatives for nonviolent criminals."  To the extent I understand the editorial's point, I suppose it is asserting that sentencing cost considerations should ONLY be for legislators' consideration and not for judicial consideration.

But I do not quite understand the suggestion that Missouri's decision to provide judges with cost data, along with other pertinent information at sentencing about (legislatively authorized) sentencing options and recidivism trends, in any way undermines "the cause of justice and the rule of law."  In my view, neither justice nor the rule of law demands that sentencing judges operate blind to the practical costs and benefits of the various sentencing options that legislatures have made available to judges.

Related posts:

September 21, 2010 in Criminal Sentences Alternatives, Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Extraordinary symposium on "The Past and Future of Empirical Sentencing Research"

As detailed at this website and in this news release, the University of Albany's School of Criminal Justice has planned for later this week an extraordinary two-day event called "The Symposium on Crime and Justice: The Past and Future of Empirical Sentencing Research." Here is a basic description of the event from the symposium website:

The punishment received by those convicted in the criminal justice system is the outcome of a complex set of interactions between actors starting with the initial charge and ending only when the convicted individual is released from supervision.  There is a consensus among criminological scholars that the empirical study of this sentencing process has stagnated. The National Science Foundation has agreed to partially fund this symposium to help reinvigorate empirical research in this area by reengaging with other disciplines and reconnecting with the ongoing policy debates about sentencing.  We have assembled a top flight group of scholars to review the current state of sentencing research and chart future research directions.

As the event's agenda highlights, there truly are top-flight scholars on event one of the panels looking at these four essential and important key areas:

Wonderfully, for those like me who unfortunately cannot be in attendance at what looks sure to be an amazing event, there are a set of downloadable reference materials posted here that allows those of us stuck in distant lands to keep up with some of what is being discussed later this week in Albany.

September 21, 2010 in Data on sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (2) | TrackBack

"Iran claims double standard in death penalty cases"

The title of this post is the headline of this new AP article, which gets started this way:

Iranian President Mahmoud Ahmadinejad has criticized Western media for having a double standard in reporting on the case of an American woman facing the death penalty, a news agency reported Tuesday.

Ahmadinejad accused the West of launching a "heavy propaganda" campaign against the case of an Iranian woman who had been sentenced to be stoned to death for adultery but failing to react with outrage over the imminent execution of Teresa Lewis in Virginia, according to state-run IRNA. Iran

Lewis is a Virginia woman due to be put to death by injection on Thursday for using sex and money to persuade two men to kill her husband and her stepson to collect on life insurance policies. She would be the first woman executed in Virginia in nearly a century, and the first U.S. execution of a woman in five years.

Ahmadinejad noted that "millions of Internet pages" have been devoted to Sakineh Mohammadi Ashtiani, whose stoning sentence was suspended in July and her case put under review.

"Meanwhile, nobody objects to the case of an American woman who is going to be executed," he was quoted as saying during a speech Monday to Islamic clerics and other figures in New York, where the Iranian leader is attending the U.N. General Assembly. "Today Western media are propaganda agents who continuously speak about democracy and human rights though their slogans are sheer lies," he added.

Ahmadinejad's remarks were the latest in a series of statements by Iranian officials denouncing the wave of international condemnation of Ashtiani's case, which has cast a harsh light on Iran's version of Islamic justice. Press TV, the government's main English-language broadcast arm, also broadcast reports about the case with a photo of Lewis throughout the day.

In related news, I see from this Washington Post report that lawyers for Teresa Lewis sent this three-page letter dated Monday asking Virginia Gov. Robert F. McDonnellto reconsider his decision Friday not to intervene in the case.

September 21, 2010 in Clemency and Pardons, Death Penalty Reforms, Sentencing around the world, Who Sentences? | Permalink | Comments (13) | TrackBack

"State Crime Victim Recoveries"

The title of this post is the title of this interesting-looking new paper available via SSRN on state victim restitution policies and practicalities.  Here is the abstract:

Crime victim recoveries are typically available in American states through three separate, but related, avenues: a criminal proceeding (with or without a formal charge); a related civil claim (including a pre-suit settlement); and, a related administrative or special court proceeding. Multiple avenues can be pursued simultaneously.  These avenues often, but not always, have constitutional as well as statutory foundations.

Unfortunately state crime victims often go without recovery.  Barriers to recovery include intrastate and interstate confusion over terms like restitution and victim. More can be done for victims, especially during criminal case sentencing.  Unlike federal district courts, state criminal courts typically have general jurisdictional authority allowing broader opportunities for crime victim recoveries at the close of criminal cases.  Better crime victim recovery procedures are especially warranted where there are explicit state constitutional law interests.

September 21, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack

Split Sixth Circuit upholds federal mandatory LWOP sentence based on priors committed when a juve

In a case involving another defendant named Graham, a split panel of the Sixth Circuit has upheld a mandatory minimum LWOP sentence against a challenge that seeks to extend the reach of the Supreme Court's Eighth Amendment work in Graham v. Florida.  Here is how the majority opinion (per Judge Moore) in US v. Graham, No. 08-5993 (6th Cir. Sept. 21, 2010) (available here) gets started:

Donald Graham, convicted of three counts of a seven-count indictment for crack-cocaine offenses under 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2, appeals from the district court’s denial of his Federal Rule of Criminal Procedure 29 motion for a judgment of acquittal, denial of his motion to disregard life sentence, and sentencing decision.  Graham’s main contention on appeal is that his life sentence, imposed for his third qualifying felony under 21 U.S.C. § 841(b)(1)(A), violates the Eighth Amendment to the U.S. Constitution.  Finding no reversible error, we affirm the district court’s rulings on Graham’s motions and his life sentence.

Here is how the dissenting opinion (per Judge Merritt) gets started:

My view in this case of first impression in this Circuit is that the sentencing of this nonviolent, 30-year-old petty drug trafficker to life imprisonment by using a juvenile conviction as a necessary third strike not only violates clear congressional intent revealed by clear rules of statutory construction but also violates sound principles of penological policy based on the Eighth Amendment values recently outlined by the Supreme Court in Graham v. Florida, 130 S. Ct. 2011 (2010).  I would have preferred that my colleagues in the majority acknowledge and address the arguments made here against the use of a juvenile conviction to send this nonviolent drug offender to prison for life.  Instead they have chosen to ignore those arguments.  I leave it to the readers to determine for themselves the usefulness and credibility of this kind of appellate decision making.

September 21, 2010 in Assessing Graham and its aftermath, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

AG Eric Holder stating that DOJ sentencing recommendations will be released "later this year"

Long-time readers may recall that I was pleased when, way back in early 2009, then-new Attorney General Eric Holder announced that the Justice Department was conducting a comprehensive internal review of federal sentencing and corrections issues.  I was pleased in part because AG Holder and others had intimated that DOJ would go public with the results of this review and make reform recommendations to Congress and the US Sentencing Commission.

But then as 2009 turned to 2010 (and early 2010 turned to late 2010) without any formal public report from DOJ on these issues, I came to the unhappy conclusion that the prevailing political winds had led to a determination by DOJ that it should not make public the result of its internal review.  So, I was both surprised and excited to discover this paragraph deep in a public speech delivered by AG this past Friday at the 2010 Bench/Bar Conference in Pennsylvania (with my emphasis added):

Over the past year, we have also been reevaluating federal sentencing and corrections policies to ensure that the proper balance is struck in promoting public safety, punishing criminals, avoiding unwarranted sentencing disparities, and reducing recidivism. Recommendations are currently in development and will be released later this year, but we were — and we all should be — heartened by the recent passage of the Fair Sentencing Act. The crack/powder sentencing disparity was a symbol of unfairness in our system and, though there’s more work to be done, its reduction is an encouraging step forward.

Given these comments by the AG — as well as by the fact that the US Sentencing Commission is going to be releasing new crack sentencing guidelines based on the FSA and a new report on mandatory minimum sentencing provision — I am starting to think that the upcoming lame-duck period for Congress in November and December might be a time for some exciting/interesting criminal justice developments.

September 21, 2010 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Another sad example of a needless death because of weak sentences for drunk driving

Regular readers who know of my persistent complaints and concerns about lenient drink driving sentences will not be surprised that I am troubled by this local story, which is headlined "Woman gets 11 years for fatal DUI crash -- her second fatal DUI crash in 20 years."  Here are the details:

For the second time in two decades, a York County woman has been sent to state prison for killing someone during an alcohol-fueled crash.  Julianne D. Fetrow must serve 11 to 30 years in prison for causing a crash on Nov. 28, 2007, that killed her boyfriend, Victor E. Wolf Jr., 52,....

Her blood-alcohol level at the time was 0.256 percent, police said -- more than three times the state's legal limit. In Pennsylvania, an adult is driving drunk at 0.08 percent.

In December, Fetrow, 44, pleaded guilty to third-degree murder, homicide by vehicle while driving under the influence, DUI and driving with a DUI-suspended license.   A plea agreement negotiated by chief deputy prosecutor Tim Barker and defense attorney Rick Robinson came with a maximum possible sentence of 13 to 30 years. But presiding Common Pleas Judge John S. Kennedy was free to impose a shorter sentence.

On Monday, Kennedy imposed the 11- to 30-year sentence, noting Fetrow had asked about alcohol-addiction programs offered in the state prison system. "We hope she will take advantage of those programs," Kennedy said. "There's no doubt in our mind that if Ms. Fetrow was not an alcoholic, the crash would not have occurred." He also ordered her to pay $3,500 in fines, plus court costs.

Northern York County Regional Police said Fetrow pulled out of Wolf's driveway and into the path of a tractor-trailer.  Wolf, a passenger in his Mercury Capri convertible, was pronounced dead at York Hospital, police said.

After the crash, Fetrow told police she and Wolf had been drinking a bottle of vodka at home, then left their home and drove around to do more drinking, police said. "Julianne Fetrow stated she could not recall where she was going or how the accident occurred," court records state.

Barker has said the decision to charge her with murder, in addition to homicide by vehicle while DUI, was based on the fact that she has a long history of DUI charges and had already completed a court-ordered Alcohol Highway Safety program.

In 1991, Fetrow was ordered to serve 1-1/2 to three years in state prison for killing fisherman Morris Stanley, 55, of Camp Hill, on May 22, 1990.  York Dispatcharticles from the time state that Fetrow was driving a car in Warrington Township that went off a bridge on Route 177 in Gifford Pinchot State Park, then hit Stanley, who was fishing with his two sons.  In that case, her blood-alcohol level was 0.226 percent, police said.

Fetrow has been charged with DUI in Pennsylvania five times, according to court records. She had been free on bail for causing the crash that killed Wolf, but her bail was revoked in October 2008 because probation officers monitoring her discovered she had smoked marijuana, the judge noted Monday....

Wolf's daughter-in-law, Nicole Wolf, spoke in court about the pain her family has struggled with, especially husband Victor Wolf and their son, 5-year-old Victor Jr.... She said her son struggles with nightmares and emotional issues since his grandfather died....

Also speaking in court was Bobby L. Bricker, 36, of Dover, who was driving the tractor-trailer that struck the victim's car.  He said he's battled anger, fear and depression in the wake of the crash, but found help from a faith-based addictions program called Reformers Unanimous. He gave Fetrow a brochure about the group.

Of course, I cannot say with any confidence that giving Fetrow a tougher sentence for her prior killing or for her many other DUI charges would have prevent the death of the victim in this case.  Nevertheless, stories like this one confirm my sense that our society ought to worry more about (and get tough quicker on) repeat drunk drivers than first-offense child porn downloaders and other non-contact sex offenders.  As this case highlights, the harms that repeat drunk drivers can do are severe, profound and can have a wide range of long-term victims.

Critically, my call for a tougher criminal-justice approach to drunk is not meant as advocacy for very long prison terms or a lock-em-up-throw-away-the-key approach.  Rather, I think technocorrections such as SCRAM bracelets and breathalizer ignition locks, back up with tough and certain graduated sanctions for any violations, need to be a more regular response to the defendants like Fetrow who cannot seem to control her addictions.  Such a dynamic approach has proved successful in many drug-court settings, and I wish it would become a norm in more DUI sentencing systems.

Some related posts on sentencing drunk drivers and advocacy for ignition locks:

September 21, 2010 in Criminal Sentences Alternatives, Offense Characteristics, Technocorrections | Permalink | Comments (7) | TrackBack

September 20, 2010

Plea deal lets Virginia quadruple-murderer escape death penalty (with approval of victims' relatives)

This local story from Virginia, which is headlined "Quadruple murderer avoids death penalty with plea deal," provides a number of cross-cutting perspectives on the administration of the death penalty. Here are the factual basics:

The suspect in the quadruple homicide that horrified this quiet college town a year ago pleaded guilty to murder charges today and was ordered to spend life in prison.  Richard Samuel Alden McCroskey III, 21, of California, pleaded guilty to two counts of capital murder and two counts of first-degree murder in Prince Edward County Circuit Court for bludgeoning the victims with a wood-splitting maul a year ago in a Longwood University professor's home in Farmville.

McCroskey, who could have faced the death penalty, was sentenced to life in prison.  He opted not to address the courtroom, which was occupied by family members of all four victims, law enforcement investigators and others.

Prince Edward County Commonwealth's Attorney James Ennis said McCroskey's anger about his relationship with his girlfriend, Emma Niederbrock, 16, led to the killings.  McCroskey killed Emma; her mother, Longwood University professor Debra S. Kelley; Kelley's estranged husband, Mark Niederbrock; and Emma's friend, Melanie Wells, who was visiting from West Virginia.

Ennis said members of the victims' families supported his decision to reach the plea agreement instead of going to trial and seeking the death penalty.  "What it really means is death in prison," Ennis said after the hearing.  "It's a guaranteed outcome, and hopefully it will bring some measure of closure to the family."

Defense attorney Cary Bowen said his objective had been to minimize McCroskey's punishment and serve his interest as best as possible.  "He's left families without their loved ones," Bowen said. "There are four people dead here.  He's not proud of that."  He said McCroskey is remorseful and has contemplated the severity of what he did.

A family spokeswoman released a statement from Kelley's parents, Thomas and Margaret Kelley, saying they are thankful that the case is over and that they may now "have some degree of closure."  They also thanked police and everyone who supported them.  "We have endured a tragedy of unspeakable proportion," the statement reads.  "We are relieved that justice has been done.  While we will never forget our loved ones or the circumstances of their deaths, we hope to move forward and begin the healing process."

In light of the apparent horrific nature of the defendant's crime (and the lack of any apparent doubt over guilt), I am a bit troubled by the prosecutor's willingness to take the death penalty off the table in this case.  And yet, since I tend to be a strong support of victim rights in these setting, I am sympathetic to the prosecutor's decision here given that the victims' relatives were apparently eager for the "closure" that the plea deal provided.

The fact that quadruple-murderer McCroskey has now been able to escape the Virginia death penalty through a plea and a statement of remorse will likely become another talking point for those folks urging that Virginia call of the execution of double-murderer Teresa Lewis scheduled for late this week.  Indeed, I find it notable that this McCroskey plea deal was cut the very first working day after Virginia's Governor denied clemency to Lewis late Friday night (as reported here).  Had the timing been reversed, I think there would have been even more pressure on Governor McDonnell to explain why a quadruple-murderer like McCroskey gets a break while a mere double-murderer like Lewis gets the needle.

September 20, 2010 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Notable dissent from Ninth Circuit denial of en banc review of probation sentence for "big-time thief"

As detailed in this post from back in February, a split Ninth Circuit panel in US v. Edwards, No. 08-30055 (9th Cir. Feb. 16, 2010) (available here), upheld as substantively reasonable a probation sentence given to convicted fraudster Duncan Edwards, whom the dissenting judge described as a "big time thief.”   Today, as detailed in this order, the Ninth Circuit has denied en banc review in Edwards, and that decision prompted a notable dissent by Judge Gould (which was joined by three other judges).  That dissent gets started this way:

In his cogent dissent from the majority decision of our three-judge panel, Judge Bea persuasively catalogs the laundry list of analytical errors committed by the district court at sentencing.  See United States v. Edwards, 595 F.3d 1004, 1018-25 (9th Cir. 2010) (Bea, J., dissenting).  I will not restate all of those errors here. Instead, I write to emphasize a larger and recurrent problem: our court’s practice of uncritically affirming unreasonably lenient sentences for white-collar criminals renders the Sentencing Guidelines a nullity, makes us an outlier among the circuit courts, and impairs our ability effectively to review sentences for substantive reasonableness.  Our “rubber-stamp” approach to reasonableness review permits district courts to abuse their sentencing discretion by paying lip service to appropriate sentencing considerations while paying inadequate heed to the substance of those considerations.  Hence we can end up with people like Edwards who engage in fraud and other criminal activities intended to cause extremely large monetary damages, yet who spend token and inadequate time, or even not one day, in jail.

Although we owe deference in the area of sentencing to a district court’s “superior position to find the relevant facts and judge their import,” Edwards, 595 F.3d at 1016 (internal quotation marks omitted), in the area of white-collar crime we should be circumspect to draw careful boundaries around that deference.  Because of the nature of their crimes, white-collar offenders are uniquely positioned to elicit empathy from a sentencing court. See United States v. Ruff, 535 F.3d 999, 1007 (9th Cir. 2008) (Gould, J., dissenting) (“[D]istrict courts sentencing white collar criminals can more often identify with the criminal . . . . But, socioeconomic comfort with a criminal convict is not a sufficient reason to show such extreme leniency . . . .”); Kenneth Mann et al., Sentencing the White- Collar Offender, 17 Am. Crim. L. Rev. 479, 500 (1980) (concluding from a survey of federal judges that they evinced particular “understanding” and “sympathy” “for the person whose position in society may be very much like their own,” and that “factors intimately related to the defendant’s social status do receive weight in the judges’ thinking” about sentencing).  And while judges take seriously violent crime and are forced by congressional mandatory minimums to take seriously drug crimes, there is latent risk in the case of white-collar sentencing that an “it’s only money” rationale will result in undue leniency for serious offenses.  I have no doubt that Edwards made a persuasive presentation to the district court that he was an unhealthy, aging retiree repentant of past frauds.  Such cases are precisely when we should most rigorously review a sentence’s reasonableness to ensure that the justifications relied on at sentencing are supported by objective evidence in the record. See Michael M. O’Hear, Appellate Review of Sentences: Reconsidering Deference, 51 Wm. & Mary L. Rev. 2123, 2141-49 (2010) (criticizing appellate deference to trial judge assessment of demeanor evidence at sentencing on the basis of the “emerging consensus in the legal and social science literature that people generally do a poor job in evaluating demeanor evidence,” and concluding that a defendant’s demeanor “seems about as likely to lead the trial judge astray as to facilitate good decision making”).  We know that often criminal defendants who commit other types of crimes will serve some hard time.  White-collar offenders like Edwards should not escape the same punishment simply because they are better-positioned to make a sympathetic presentation to the district judge.

I have bolded two phrases in this dissent because these lines appear to make a case for the Ninth Circuit to embrace and apply a more rigorous form of reasonableness review especially in white-collar cases.  Obviously, Judge Gould's advocacy here did not convince a majority of Ninth Circuit judges, and I am curious to hear whether readers like the idea of special approaches to reasonableness review in special kinds of sentencing cases.

September 20, 2010 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

"Paris Hilton Gets Year's Probation, No Jail"

The title of this post is the headline of this hard-hitting piece from People magazine, which provides the latest sentencing news on the latest development in the celebrity war on drugs.  Here are the plea and sentencing details (with a little pit of courtroom fashion thrown in):

Appearing before a Las Vegas judge first thing Monday morning regarding her Aug. 27 drug arrest, Paris Hilton pleaded guilty to two misdemeanors – drug possession and obstructing an officer – but avoided jail time.

Just as the District Attorney had confirmed over the weekend, under the terms of the plea, Hilton, 29, was placed on probation for a year. If she is arrested in the next year she will face a year behind bars.

Clark County Detention Center Justice of the Peace Joe Bonaventure, told Hilton, "The purpose here is to change your conduct. [The Clark County Detention Center] is not the Waldorf-Astoria."

Hilton was arrested shortly before midnight on Las Vegas Boulevard after police pulled over a vehicle in which she was a passenger. The male driver of the car was arrested on DUI drug charges. Hilton's purse also contained a bag with .8 grams of cocaine.

Arriving in the courtroom shortly before the judge, and wearing a white blouse and black pencil skirt, Hilton sat in the front row, looking solemn and speaking on briefly to her attorney, David Chesnoff.

After the hearing, the attorney told reporters: "She was treated like anyone else would be treated under the circumstances, and I'm very proud of the way she's dealt with this. I think she's on the road to success and I wish her personally the best."

Hilton must also complete a substance-abuse program, pay a $2,000 fine and complete 200 hours of community service.  According to Chesnoff, "She does a lot of stuff with animal rights, and I understand she's done work with children's hospitals, so I think she'll continue something along those lines."

"Defendant shall stay out of trouble.  Defendant agrees that an arrest for any charge, excluding minor traffic violations for which a citation is issued, shall result in the immediate termination of her probation and the execution of the suspended sentences," reads the deal.

Telling the judge multiple times that she understood and agreed to the plea bargain, Hilton admitted that she lied to Las Vegas police officers when she told them the purse that contained the cocaine wasn't hers.

As to why she misled authorities, a source close to Hilton tells PEOPLE, "At the moment it all came down, she was scared.  But since then, she's had time to think about her actions, and she's taking this really seriously." Asked why the heiress did not fight the charges against her, attorney Chesnoff said, "Miss Hilton accepted responsibility."

In not quite related news, TMZ.com is reporting here about another drug-involved starlet, "Lindsay Lohan Second Failed Test -- Amphetamines."

UPDATE:  Now,as People explains here, an arrest warrant has been issued for Lindsay Lohan.  Rough legal day for divas it seems.

September 20, 2010 in Celebrity sentencings, Drug Offense Sentencing | Permalink | Comments (8) | TrackBack

Sixth Circuit summarily (and wrongly?) decides that sentencing changes in Fair Sentencing Act not applicable to pre-change crime

At the end of a seemingly minor opinion, the Sixth Circuit today in US v. Carradine, No. 08-3220 (6th Cir. Sept. 20, 2010) (available here), addresses a major issue for any and all defendants hoping to get the an immediate benefit from the new crack sentencing provisions passed by Congress in the Fair Sentencing Act.  Here is the panel's entire discussion of the issue:

On August 12, 2010 — well after this case had been fully briefed and submitted for decision — Carradine moved to file a supplemental brief, arguing that he is entitled to the benefit of a recently enacted statute, the Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372 (Aug. 3, 2010).  We granted the motion and accepted supplemental briefs from both parties.

This new statute, which amends the existing law, raises the threshold for imposition of a 60-month statutory minimum prison sentence from five (5) grams of crack cocaine to 28 grams. See id. at Sec. 2(a)(2) (amending 21 U.S.C. § 841(b)(1)(B)(iii)). Carradine had 19 grams of crack cocaine, so he would be subject to the statutory minimum under the old version but not under the new. Consequently, Carradine argues that the new version of the statute should apply.

The “general savings statute,” 1 U.S.C. § 109, requires us to apply the penalties in place at the time the crime was committed, unless the new enactment expressly provides for its own retroactive application. Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 660 (1974); United States v. Avila-Anguiano, 609 F.3d 1046, 1050 (9th Cir. 2010); United States v. Smith, 354 F.3d 171, 174 (2d Cir. 2003); Korshin v. Comm’r, 91 F.3d 670, 673-74 (4th Cir. 1996).

The new law at issue here, the Fair Sentencing Act of 2010, contains no express statement that it is retroactive nor can we infer any such express intent from its plain language. Consequently, we must apply the penalty provision in place at the time Carradine committed the crime in question.  We affirm the district court’s imposition of the 60-month mandatory minimum sentence.

I have provided links to the key statutory provision and Supreme Court ruling that the Sixth Circuit panel relies upon for its important (and first impression?) ruling.  I do so because I am not 100% sure that these controlling authorities must be read in the way the Sixth Circuit contends because both address criminal provisions that have been repealed.  Critically, the Fair Sentencing Act did not repeal anything, it merely amended (by raising) the trigger quantities for the application of a mandatory prison term.

Some may contend that the difference between "repealing" a criminal statute and "amending" when certain sentences apply is just a matter of semantics and that the Sixth Circuit's work in Carradine is sound.  But one need not be a pedantic textualist to appreciate that there also may be a meaningful substantive distinction between a wholesale repeal of a criminal statute and a statutory amendment that merely revise the applicability of a restriction on the discretionary authority of a judge at sentencing.

I do not mean to assert that the Sixth Circuit panel's work here in Carradine is obviously wrong.  I do mean to assert, however, that the issue is not as clear-cut as the Carradine panel opinion suggests and that, at least in my mind, this important issue merits greater discussion and fuller analysis than gets provided by the Sixth Circuit panel here.

September 20, 2010 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (15) | TrackBack

Will North Carolina's death penalty get killed by its Racial Justice Act?

NA-BI018_RACE_NS_20100919184416 The question in the title of this post is inspired by this effective new piece in the Wall Street Journal titled "Death Penalty Goes on Trial in North Carolina." Here are excerpts:

Last year, North Carolina enacted what's known as the Racial Justice Act, requiring judges to let any inmate off death row if the judge finds that race was a "significant factor" in the death sentence.

About 95% of the state's death-row population, or 152 inmates ..., filed bias claims by the August deadline, according to the North Carolina attorney general's office. The law also allows future capital-murder defendants to claim racial bias. Convicts whose petitions were successful would instead face life sentences, with no chance of parole.

North Carolina's new law is among the most hotly debated responses to recent criticism of the death penalty. Many states have rethought the sentence amid new genetic evidence that has freed some inmates....

North Carolina has undertaken the most far-reaching effort to date to examine the amorphous question of whether race played an improper role in decisions to seek or impose death sentences. It likely will be several months before any of the claims are considered by the courts, attorneys said.

"There are so many variables that can legitimately affect a prosecutor's decision to seek the death penalty, including the seriousness of an offense," said Christopher Slobogin, a death-penalty expert at Vanderbilt University Law School. "This will be a messy enterprise."

Other states could follow North Carolina's lead. Legislation is pending in Pennsylvania to allow death sentences to be challenged on the grounds of racial bias. A similar bill was introduced this year in California, though it was defeated because of concerns it would cost too much to administer, said a spokeswoman for Democratic California state senator Gilbert Cedillo, who introduced it.

Death-penalty critics and civil-rights advocates in North Carolina had pushed for several years to pass legislation aimed at examining the role of race in death-penalty cases. The Rouse case involves unusually specific evidence of alleged bias, and it was cited by advocates of the Racial Justice Act as an example of how discrimination can affect jurors' decision making, according to lawyers involved in the debate over the law....

No particular case served as catalyst for the final legislation, according to people involved in the process. "We had quite a few people in the state who were concerned about the large number of people on death row who are African-American," said state Democratic senator Floyd McKissick Jr., who sponsored the legislation.

The legislation drew heated debate, narrowly passing the Democratic-controlled legislature. No Republican voted for it. "We are just giving murderers an additional tool to delay justice," Justin Burr, a Republican state legislator said....

Some Republicans in the fall election season have continued to criticize their Democratic opponents for voting in favor of the legislation, although now the debate over bias legislation has been subsumed by a bigger controversy, attorneys said. The North Carolina attorney general's office last month released a report that the state's crime lab had routinely failed to disclose evidence possibly favorable to defendants, including in death-penalty cases.

Prosecutors also resisted the law, saying that it calls for a costly and unnecessary wholesale review of cases. "I feel very confident that race has not played a role in imposing the death penalty," said Peg Dorer, director of the North Carolina Conference of District Attorneys.

Of particular concern to prosecutors and other opponents is that the new law allows murder defendants to try to prove bias through broad statistical evidence, such as data showing that North Carolina prosecutors, on a county-wide or state-wide basis, have sought the death penalty more frequently against black defendants or in cases involving a white victim. "You shouldn't try a case on statistics," said Sarah Stevens, a North Carolina Republican legislator. "Statistics can be manipulated."

September 20, 2010 in Data on sentencing, Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (6) | TrackBack

"America, Land of the Imprisoned"

The title of this post is the headline of this notable commentary from a site called "The Libertarian Solution."  Here is how it starts:

The United States has one of the most the most expansive, punitive and expensive criminal justice systems in the world.  Although Americans account for only five percent of the world’s population, imprisoned U.S. citizens account for 25 percent of the world’s incarcerated population.  The median incarceration rate worldwide is roughly one-sixth of the American incarceration rate.

A full one percent of the American adult population is behind bars. Including those on parole or probation increases this figure to over three percent.  The U.S. incarcerates a far greater number of people than China, whose population is four times the size of ours.  As a percentage of population, we imprison five times more people than Britain and 12 times more than Japan.

The United States’ approach to criminal justice has not always been so punitive. Alexis de Tocqueville remarked in the early 19th century that “[i]n no country is criminal justice administered with more mildness than in the United States.”  But with the tough-on-crime approach and the exploding drug war in the second half of the 20th century, incarceration rates have rapidly escalated.

Two main factors contribute to America’s ballooning prison population: excessive mandatory minimum sentencing laws and paternalistic and overreaching legislation.

September 20, 2010 in Data on sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (13) | TrackBack

Local perspective on the impact of new reduced crack sentences

This local story from Indiana, which is headlined "Crack, powder cocaine nearer equal footing," provides an interesting local view on some of the consequences of the new federal sentencing laws for crack offenses. Here are excerpts:

Two months after Congress voted in favor of lowering federal sentencing guidelines again for people convicted for crack cocaine, local defendants are already seeing changes. More changes could come, though, as local officials continue to advocate for more balance between people convicted of crack cocaine possession versus powder cocaine possession.

"I think the criminal defense community is just grateful this change has occurred," Jerry Flynn, an attorney with the local Federal Community Defenders, said....

The most recent federal legislation calls for [all crack/powder sentences] to be brought down to a ratio of 18:1. Although the U.S. Sentencing Commission has not enacted that part yet, U.S. Attorney David Capp said his office in Hammond is already acting for new defendants as though it's in place.

The changes to minimum sentencing has the bigger effect, though, Flynn said, because several years ago judges were given the authority to sentence defendants outside the guidelines. Minimum sentences, however, are hard and fast.

That doesn't mean he and other public defenders won't continue to fight for more fairness, Flynn said. He wants to see the ratio brought down to 1:1, meaning they would be exactly the same for either form of cocaine. The U.S. House of Representatives had voted in favor of the equal ration, although the U.S. Senate backed the 18:1 ratio. Flynn said he was encouraged support for 1:1 was already there....

Flynn said he hopes the sentencing commission, if it can, will also make the newest changes retroactive. Part of the problem is that the newest legislation isn't clear on the issue, he said. "I know I have already started receiving questions (from defendants)," he said. "It could be extremely significant for several, several people."...

Capp said he doesn't expect the changes to affect local cases too much because so many of the cases deal with larger amounts of drugs and usually include other charges, such as carrying a weapon during a drug transaction. "(We) focus our efforts on the worst offenders, the worst of the worst," Capp said.

His office does charge for smaller amounts of drugs, though, but that could change. Because states might now actually have tougher sentences than the federal government, the U.S. Attorney's office could start partnering with local prosecutors more and let them take over those cases, Capp said.

September 20, 2010 in Drug Offense Sentencing, Federal Sentencing Guidelines, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (0) | TrackBack

September 19, 2010

Missouri's new practice of providing judges sentence cost information now fit to print

Today's New York Times includes this effective article, headlined "Missouri Tells Judges Cost of Sentences," which spreads the news on the latest state sentencing innovation.  Here is how the article starts:

When judges here sentence convicted criminals, a new and unusual variable is available for them to consider: what a given punishment will cost the State of Missouri.

For someone convicted of endangering the welfare of a child, for instance, a judge might now learn that a three-year prison sentence would run more than $37,000 while probation would cost $6,770. A second-degree robber, a judge could be told, would carry a price tag of less than $9,000 for five years of intensive probation, but more than $50,000 for a comparable prison sentence and parole afterward. The bill for a murderer’s 30-year prison term: $504,690.

Legal experts say no other state systematically provides such information to judges, a practice put into effect here last month by the state’s sentencing advisory commission, an appointed board that offers guidance on criminal sentencing.

The practice has touched off a sharp debate. It has been lauded nationally by a disparate group of defense lawyers and fiscal conservatives, who consider it an overdue tool that will force judges to ponder alternatives to prison more seriously.

But critics — prosecutors especially — dismiss the idea as unseemly. They say that the cost of punishment is an irrelevant consideration when deciding a criminal’s fate and that there is a risk of overlooking the larger social costs of crime. “Justice isn’t subject to a mathematical formula,” said Robert P. McCulloch, the prosecuting attorney for St. Louis County.

The intent behind the cost estimates, he said, is transparent: to pressure judges, in the face of big bills, into sending fewer people to prison. “There is no average case,” Mr. McCulloch said. “Every case is an individual case, and every victim has the right to have each case viewed individually, and every defendant has that right.”

Supporters, however, say judges would never focus exclusively on the cost of a sentence or turn their responsibilities of judgment into a numerical equation. “This is one of a thousand things we look at — about the tip of a dog’s tail, it’s such a small thing,” said Judge Gary Oxenhandler, presiding judge in the 13th Judicial Circuit Court and a member of the sentencing commission. “But it is almost foolish not to look at it. We live in a what’s-it-going-to-cost? society now.”

The shift here comes at a dire time for criminal justice budgets around the country, as states try to navigate conflicting, politically charged demands: to keep people safe and also cut costs. Michigan has closed prisons. Arizona considered putting its prison system under private control. California has searched for ways to shrink its incarcerated population.

Legal scholars predict that policies similar to the one in Missouri — which, unlike some other measures, might encourage cutting costs before inmates are already in prison — may soon emerge elsewhere.

Related post:

September 19, 2010 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack