October 4, 2010
Notable Third Circuit ruling on process requirements for prisoner sex offender classification
The Third Circuit has a notable prisoner rights ruling today in Renchenski v. Williams, No. 07-3530 (3d Cir. Oct. 4, 2010) (available here), which gets started this way:
Plaintiff Charles Renchenski is serving a life sentence without the possibility for parole for murder in the first degree. Although he was never charged with, nor convicted of, a sexual offense, in 2005 Defendants classified Renchenski as a sex offender and recommended his enrollment in Pennsylvania’s Sex Offender Treatment Program (“SOTP”). Renchenski filed this 42 U.S.C. § 1983 action alleging that his forced participation in sex offender treatment therapy violates several constitutional rights, including his: Fourteenth Amendment right to due process before being labeled a sex offender; Fifth Amendment right against self-incrimination; and Sixth Amendment right to have a jury adjudicate his guilt. He also challenges the District Court’s conversion of Defendants’ motion to dismiss into a summary judgment motion without granting him leave to take discovery. Because we hold that an inmate who has never been charged with, nor convicted of, a sex offense is entitled to due process before Pennsylvania classifies him as a sex offender, we reverse the District Court’s Order entering summary judgment as to his procedural due process claim. We affirm the District Court in all other respects.
"Erie and Federal Criminal Courts"
The title of this post is the title of this fascinating-looking new paper from Wayne Logan available via SSRN. Here is the abstract:
Today, low-level state and local criminal laws figure critically in federal prosecutions, serving as the initial bases for police seizures that yield evidence leading to more serious federal charges (usually involving drugs or firearms). While police resort to such laws as pretexts to stop and arrest individuals has been frequently addresed, this article provides the first analysis of how federal courts actually interpret and apply the laws. In doing so, the article reveals a surprising reality, long dismissed as a doctrinal impossibility: federal judicial use of the analytic framework of Erie v. Tompkins to resolve criminal cases.
As the article establishes, Erie analysis indeed plays a key role in federal criminal cases and it does so in the unusual context of malum prohibitum laws, otherwise customarily addressed by low-level state or local trial courts. Federal courts must determine whether police seizures are reasonable for Fourth Amendment purposes, based on their assessment of whether the behavior in question could constitute a violation of state or local law. If not, the exclusionary rule is triggered, likely resulting in dismissal of the federal prosecution. In such circumstances, state and local criminal laws retain their non-federal status while being applied by federal courts, much as occurs in civil diversity cases.
As the article explains, however, as Erie has migrated so too have its analytic difficulties, complicated by a variety of issues unique to criminal prosecutions. Federal outcomes result not in civil liability but rather deprivations of physical liberty without the possibility of parole, and have significant implications for federalism and separation of powers, undercutting the historic police power authority of state and local governments.
The article, in short, marks the first effort to examine the impact of the “Erie megadoctrine” in federal criminal courts, which given the increasing cooperative efforts of state and federal law enforcement promises to have ever-greater significance in the years to come.
SCOTUS kicks off new Term considering application of gun mandatory minimums
Though the new Supreme Court term does not have many obvious sentencing blockbusters in the works, the term kicks off today with a pair of sentencing cases. As detailed in this SCOTUSblog post, the two cases address the same basic issue: "in Abbott v. United States and Gould v. United States, the Court will consider whether two defendants were improperly sentenced to consecutive five-year prison terms under 18 U.S.C. § 924(c) when they were subject to a greater minimum sentence on a different count of conviction." This ABA Preview authored by Professor Brooks Holland provides more background:
Petitioners Kevin Abbott and Carlos Rashad Gould were convicted of narcotics and firearms offenses, including one count each of possessing a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Section 924(c)(1)(A) mandates a five-year consecutive sentence for this offense, but exempts defendants “to the extent that a greater minimum sentence is otherwise provided by this subsection or any other law.” Petitioners argued that this exception precluded a consecutive sentence because petitioners were subject to a greater minimum sentence on a different count of conviction. The district court disagreed in each case and sentenced petitioners to a prison term of five years on the § 924(c) offense, consecutive to their other mandatory minimum sentences. Petitioners’ consecutive sentences were affirmed on appeal. The Supreme Court now must determine whether § 924(c)(1)(A)’s “except” clause applies to petitioners.
SCOTUSblog has all the filed briefs in Abbott and Gould linked on this case page.
UPDATE: The transcript of the oral argument in Abbott and Gould is available here.
"California's bloated prison system threatens public safety"
The title of this post is the headline of this commentary in the Sacramento Bee authored by Jeanne Woodford, former director of the California Department of Corrections and Rehabilitation and former warden at San Quentin. Here is how it begins:
Public safety is a bipartisan concern. The corrections budget must be, too.
California's spending on corrections has risen unchecked for too long and with too little to show for it. As every other area of the state budget absorbs significant cuts, corrections remains the exception even as recidivism rates exceed 70 percent. Despite some attempts to cut back, prison costs have actually increased during this severe economic downturn. The state Legislature must not let one more year go by without righting this wrong.
Public safety is threatened –- not enhanced –- by a massive, inefficient prison system haphazardly constructed through piecemeal legislation and ill-conceived ballot initiatives. The 160,000-plus state prison population is far from static, with 120,000 people returning to communities each year and just as many taking their places behind bars. Two-thirds of people released from prison are sent back within three years.
Californians aren't getting their money's worth.
Helping a district judge send a sentencing message to unscrupulous landlords
A helpful reader sent me a copy of a recent notable white-collar sentencing decision by US District Judge Mark Bennett in US v. Miell, No. CR 07-101-MWB (D. Iowa Sept. 27, 2010) (available for download below). There are many notable passages in this 105-page(!) opinion, and I have spotlighted the first paragraph and a notable footnote here:
In Little Dorritt (1855-57), Charles Dickens portrayed a greedy landlord as repeatedly urging his rent collector to “squeeze” the inhabitants of his most squalid property, even though the rent collector believed that he had already “squeezed” them dry. Although this defendant’s properties were not squalid, there is nevertheless a disturbingly Dickensian quality to this case: The defendant, who owned hundreds of rental properties in Cedar Rapids and Linn County, Iowa, and, consequently, was himself worth many millions of dollars, engaged in a fraud scheme involving renters’ damage deposits over many years to “squeeze” an extra few hundred dollars each from people that he thought were too economically vulnerable or unsophisticated to contest his claims. His damage deposit fraud scheme involved creation of fake and inflated invoices for repairs to and cleaning of his rental properties to justify claims and judgments against renters’ damage deposits. He also engaged in another fraud scheme to obtain insurance payments for repair of hail damage to the roofs of more than a hundred of his rental properties based on fake or inflated invoices, whether or not the roofs in question had actually been repaired. The defendant pleaded guilty to eighteen counts of mail fraud arising from these schemes. He also pleaded guilty to two of three counts of perjury and was convicted by a jury of two counts of filing false tax returns. I write this sentencing decision to explain why I find that the defendant’s conduct warrants an upward departure or variance in his sentence for these offenses, from an advisory guidelines sentencing range of 168 to 210 months to 240 months, the statutory maximum sentence for the mail fraud offenses....
I am not sure that I have ever imposed a sentence to send a “message” to others or, in the parlance of sentencing lingo, as a “general deterrent.” Certainly, in the daily ritual of sentencing drug defendants in our court to lengthy mandatory minimums, there is no anecdotal or empirical evidence that sentencing to “send a message to others” actually “works.” In my view, it not only does not work as a general deterrent, but federal sentences in drug offenses — especially for the vast majority of addict defendants who are the daily grist of federal drug sentencing — are so harsh that these sentences themselves promote fairly widespread disrespect and undermine our citizens’ confidence in the fairness of federal sentencing. That would probably be a risk worth taking if these sentences actual worked, but they don’t.
In this case, however, while “sending a message” is not my motivation or intent to any major degree, I hope that this sentence sends a seismic shockwave to every unscrupulous landlord who has repeatedly, unfairly, and unlawfully withheld renters’ damage deposits. You know who you are. As this topnotch federal prosecution shows, the long arm of the United States Department of Justice, backed by endless resources, is here to seize you whether you are an inner-city slumlord, a college town landlord with a history of ripping off college students, a rural property owner, or an unscrupulous landlord working your scam anywhere in between.
October 3, 2010
"Bullying, Suicide, Punishment"
The title of this post is the headline of this interesting and very effective piece in today's New York Times discussing the sad cybercrime case that emerged from Rutgers University this week. Here are snippets:
Tyler Clementi may have died from exposure in cyberspace. His roommate and another student, according to police, viewed Mr. Clementi’s intimate encounter with another man on a Webcam and streamed it onto the Internet. Mr. Clementi, an 18-year-old violinist in his freshman year at Rutgers University, jumped off of the George Washington Bridge, and now the two face serious criminal charges, including invasion of privacy.
The prosecutor in the case has also said that he will investigate bringing bias charges, based on Mr. Clementi’s sexual orientation, which could raise the punishment to 10 years in prison from 5.
But the case has stirred passionate anger, and many have called for tougher charges, like manslaughter — just as outrage led to similar calls against the six students accused of bullying Phoebe Prince, a student in South Hadley, Mass., who also committed suicide earlier this year.
What should the punishment be for acts like cyberbullying and online humiliation? That question is as difficult to answer as how to integrate our values with all the things in our lives made of bits, balancing a right to privacy with the urge to text, tweet, stream and post.
And the outcry over proper punishment is also part of the continuing debate about how to handle personal responsibility and freedom. Just how culpable is an online bully in someone’s decision to end a life?...
In the Rutgers case, New Jersey prosecutors initially charged the two students, Dharum Ravi and Molly W. Wei, with two counts each of invasion of privacy for using the camera on Sept. 19. Mr. Ravi faces two additional counts for a second, unsuccessful attempt to view and transmit another image of Mr. Clementi two days later.
If Mr. Ravi’s actions constituted a bias crime, that could raise the charges from third-degree invasion of privacy to second degree, and double the possible punishment to 10 years. Still, for all the talk of cyberbullying, the state statute regarding that particular crime seems ill suited to Mr. Clementi’s suicide.
Like most states with a cyberbullying statute, New Jersey’s focuses on primary and high school education, found in the part of the legal code devoted to education, not criminal acts. The privacy law in this case is used more often in high-tech peeping Tom cases involving hidden cameras in dressing rooms and bathrooms. State Senator Barbara Buono sponsored both pieces of legislation, and said the law had to adapt to new technologies. “No law is perfect,” she said. “No law can deter every and any instance of this kind of behavior. We’re going to try to do a better job.”
Still, the punishment must fit the crime, not the sense of outrage over it. While some have called for manslaughter charges in the Rutgers case, those are difficult to make stick. Reaching a guilty verdict would require that the suicide be viewed by a jury as foreseeable — a high hurdle in an age when most children report some degree of bullying.
Besides, finding the toughest possible charges isn’t the way the law is supposed to work, said Orin S. Kerr, a law professor at George Washington University who specializes in cybercrime. “There’s an understandable wish by prosecutors to respond to the moral outrage of society,” he said, “but the important thing is for the prosecution to follow the law.”
The fact that a case of bullying ends in suicide should not bend the judgment of prosecutors, he said. Society should be concerned, he said, when it appears that the government is “prosecuting people not for what they did, but for what the victim did in response.” Finding the right level of prosecution, then, can be a challenge. On the one hand, he said, “it’s college — everybody is playing pranks on everybody else.” On the other, “invading somebody’s privacy can inflict such great distress that invasions of privacy should be punished, and punished significantly.”...
That is why Daniel J. Solove, author of “The Future of Reputation: Gossip, Rumor and Privacy on the Internet,” said society needed to work on education. “We teach people a lot of the consequences” of things like unsafe driving, he said, “but not that what we do online could have serious consequences.”
That sounds good, of course, but adults still drive recklessly after all that time in driver’s ed. And it is easy and cheap to say that “kids can be so cruel at that age,” but failures of judgment can be found almost anywhere you look.
After all, what are we to make of Andrew Shirvell, an assistant attorney general in Michigan who devoted his off hours to a blog denouncing the openly gay student body president at his alma mater, the University of Michigan? His posts include accusations that the student, Chris Armstrong, is a “radical homosexual activist” and a photo of Mr. Armstrong doctored with a rainbow flag and swastika. He told Anderson Cooper that he is “a Christian American exercising my First Amendment rights.” On Friday, the attorney general’s office announced that Mr. Shirvell was taking personal leave pending a disciplinary hearing.
And for anyone eager to add an extra bit of sentencing law spin to this case, I think the bias charges being considered in the Clementi case are based on the statute that was subject to constitutional attack in Apprendi (and thus now requires a jury ruling, rather than just a judge finding, to double the potential punishment.
Reviewing the administration of the death penalty in Virginia
The Richmond Times Dispatch has this new legnthy article, headlined "Many factors figure in death-penalty cases," concerning the administration of the death penalty in Virgina. Especially because Virginia reasonably can and likely would claim to have the most sound and sensible capital punishment system in the United States, the piece is an interesting read including some interesting (somewhat dated) Virginia statistics. Here are some excerpts:
A smiling Sam McCroskey was led from Prince Edward County Circuit Court last month after a plea deal won for him a life sentence instead of execution for bludgeoning four people to death -- three while they slept. Three days later, Teresa Lewis, a Pittsylvania County grandmother, was executed by injection for a double murder-for-hire in which she did not pull the trigger.
The different outcomes were the latest to confound and upset Virginians who support or oppose the death penalty. Experts say many factors, not all of them apparent, figure in death cases, including the sentiments of jurors in the 120 jurisdictions that elect commonwealth's attorneys, the wishes of the victims' families, the strength of evidence, and the abilities of the prosecutor and defense lawyers.
From the initial decision by a prosecutor to seek the ultimate sanction to the 11th-hour call by a governor on whether to intervene, discretion plays a huge role. "As long as there's a human factor in the decision-making, there's going to be disparity," said Craig S. Cooley, an area criminal defense lawyer who has worked on 68 capital-murder cases.
The way Warren Von Schuch, a special prosecutor in Chesterfield County, sees it, "you have to start with a prosecutor acting in good faith and from there, there are just a myriad of variables that affect the ultimate outcome."...
Local commonwealth's attorneys decide whether to seek the death penalty. Some do so more often than others. In addition to the seriousness of the crime, prosecutors, who are elected officials, can take into account their availability of resources, their own philosophy, and what they view as the moral sense of their constituents.
To win a death sentence, the state must do more than prove guilt. Prosecutors must show that killers are future dangers because they had committed other violent acts, or that the capital crime was so vile that the defendant deserves execution, or both....
Further complicating capital cases is the plea-bargaining process, often used when there is more than one defendant, and possible appeals in state and federal courts that could result in the death penalty being thrown out. "Small wonder, when you think about all those different turns in the road, that there's no appearance of symmetry. . . . You're going to get differences of outcomes that may turn on the jury, on the judge or on the prosecutor," said A.E. Dick Howard, a University of Virginia law professor and constitutional scholar....
Even geography is a factor. A capital murder on one side of a county or city line can result in a death sentence and, on the other, life in prison.
In 2001, the General Assembly's Joint Legislative Audit and Review Commission studied 215 capital punishment-eligible cases in Virginia from 1995 to 1999. In that study, suburban prosecutors sought the death penalty in 45 percent of the cases, while city prosecutors sought execution in 16 percent. In rural areas, the death penalty was sought in 34 percent of the cases.
Howard said it is not surprising that in a federal system of government, some states have the death penalty and some do not. "But it comes as a little more of a jolt when you find that statistically, the prosecuting decision to ask for the death penalty varies quite substantially from one county or one city from another within a state," he said....
Richard J. Bonnie, director of the Institute of Law, Psychiatry and Public Policy at U.Va., said the differences in outcomes in capital-murder cases poses a larger question for death-penalty states. In Virginia, for example, there are roughly 300 to 400 murders a year. No figures are available on how many are potential death-penalty cases.
But Bonnie said if it's presumed for discussion purposes that roughly one-third would be eligible for the death penalty, in recent years "out of that hundred cases there have only been one or two death sentences." Because there are so few, he said, "there is no reasonable confidence that you can have that the people who receive death sentences and who are executed are in any sort of rational way, different from the many people that did not."
"It's time for Oregon to get smart on crime"
The title of this post is the headline on this lengthy and effective commentary authored by John Tapogna, who is president of an Oregon-based economic consulting firm and a former analyst for the U.S. Congressional Budget Office. Here are excerpts:
As the ballots hit our mailboxes this month, we'll discover a tempting offer. For $30 million a year when fully implemented, Measure 73 promises to lock up repeat sex offenders and repeat drunken drivers longer. Two groups who don't elicit, or deserve, any sympathy. Conventional wisdom suggests the measure will pass. Easily.
And if it does, we will have reaffirmed our conflicting preferences for low taxes and long prison sentences. Through voter-approved property tax limitations and kicker laws, Oregon's tax revenues as a share of the economy have declined. And they'll remain below levels of the late 1980s despite last year's income tax hikes. Meanwhile, we've approved mandatory minimum prison sentences for an expanding list of crimes. Measure 73 would add a few more.
Back in the 1990s when Oregon's economy was hot, we pulled off the trick of cutting taxes while also building prisons. But we're in different times. As federal stimulus fades and the economy sputters, the next governor will inherit a multibillion-dollar state budget shortfall that seemingly deepens with every revenue forecast. Successfully navigate that immediate challenge, and the rest of the decade delivers a projected 46 percent increase in elderly baby boomers who will drive up public spending on health care and pensions. And those well-educated boomers will take their degrees into retirement and leave a less-prepared work force in their wake.
This one-two punch -- a weak economic recovery followed by a demographic tsunami -- demands that government re-engineer every service it offers. The corrections system is no exception. We spent two decades getting tough on crime. Now it's time to get smart.
In recent years, numerous states have jumped ahead of Oregon, modernized their sentencing guidelines and dialed back prison spending. By doing so, they made space in their collapsing budgets for investments with stronger economic returns -- especially education. So will Oregon follow the lead of these innovative states?...
In 1989, the Legislature worked with judges, developed sentencing guidelines for convicted felons and agreed to increase corrections spending. The inmate population edged up in the early 1990s.
But the prison-building boom didn't really take off until voters approved Measure 11 in 1994. The citizens' initiative created mandatory minimum sentences for 16 crimes and, during the subsequent decade, the inmate population doubled from 6,000 to 12,000. Today it's at 14,000 and headed to 16,000 by 2020....
Incarceration will always be a critical tool in crime prevention, but it's an expensive one. And with the average cost per inmate at $82 daily, prisons have hit the law of diminishing returns. When voters passed Measure 11 in 1994, each $1 of prison spending yielded an average $2.78 in benefits -- prevented pain, suffering and losses associated with crime. But as we have cast prison's net wider, and caught less serious offenders in it, the benefits have declined to 91 cents for every dollar spent.
Long ago, we may have been so flush with cash that we could overlook negative returns on our public investments. But we're not flush anymore, and we won't be anytime soon. So now's the time to ask: How do we stay tough on crime in an era of scarcity?
And the answer is: Be more like Texas. Never accused of being softies, the 2007 Texas Legislature halted a half-billion-dollar prison construction effort and boosted investments in a cost-effective network of residential and community-based treatment and supervision programs. Rather than grow by a projected 17,000 inmates over the next five years, Texas' prison population has started to decline.
Texas is not the lone reformer. California and Illinois have designed performance rewards for counties that keep probationers out of prison. Mississippi and Nevada rolled back sentences for nonviolent offenders who successfully complete drug treatment and vocational training programs. And Hawaii has coupled random drug tests with short jail stays to reduce parole violations and prison sentences.
Innovation is spreading and -- for the first time in 38 years -- the inmate population in America's prisons fell in 2009. Twenty-six states registered declines. Oregon was not among them.
But there is hope.... With a goal of getting smarter on crime, Gov. Ted Kulongoski's recently convened Reset Cabinet investigated best practices across the United States, surveyed hundreds of judges and public safety experts, and developed a list of sentencing reforms. The report's recommendations were built on a philosophy that costly prison beds should be reserved for violent offenders and those convicted of person-to-person crimes. The report also suggested that Measure 11's mandatory minimum sentences should be targeted more narrowly to crimes involving death, serious physical injury or sexual contact with the victim. Implemented competently, the Reset blueprint would save hundreds of millions of dollars over the decade with no appreciable change in crime....
We're in the middle of a long, slow march out of tough economic times, and we can't afford missteps. If we can't muster the smarts and courage to slow spending on public investments that yield negative returns, this decade's outlook for education -- and our economy -- is bleak.