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October 23, 2010

"Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection"

The title of this post is the title of this new piece by Professor Stephanos Bibas now available via SSRN. Here is the abstract:

Padilla v. Kentucky was a watershed in the Court’s turn to regulating plea bargaining.  For decades, the Supreme Court has focused on jury trials as the central subject of criminal procedure, with only modest and ineffective procedural regulation of guilty pleas.  This older view treated trials as the norm, was indifferent to sentencing, trusted judges and juries to protect innocence, and drew clean lines excluding civil proceedings and collateral consequences from its purview.  In United States v. Ruiz in 2002, the Court began to focus on the realities of the plea process itself, but did so only half-way.  Not until Padilla this past year did the Court regulate plea bargaining’s substantive calculus, its attendant sentencing decisions, the lawyers who run it, and related civil and collateral consequences. Padilla marks the eclipse of Justice Scalia’s formalist originalism, the parting triumph of Justice Stevens’ common-law incrementalism, and the rise of the two realistic ex-prosecutors on the Court, Justices Alito and Sotomayor.  To complete Padilla’s unfinished business, the Court and legislatures should look to consumer protection law, to regulate at least the process if not the substance of plea bargaining.

October 23, 2010 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"Survey shows legal pot measure failing"

The title of this post is the headline of this Los Angeles Times article reporting on the latest polling numbers surrounding Proposition 19 in California.  Here are the details:

California's marijuana legalization ballot initiative, Proposition 19, is trailing badly, according to a new Los Angeles Times/USC poll, which found likely voters opposing it 51% to 39%....

The marijuana legalization measure has led in most polls, but support has softened recently. The initiative's supporters, who are short on money, have not run the television advertisements that most political strategists say are essential to communicate with voters in a state the size of California.

"If voters don't see a compelling reason to vote for an initiative, the default is to vote against it," said Darry Sragow, the interim director of the Times/USC poll. "That may be happening here in the absence of a visible, compelling campaign." The poll indicates that "voters who are going to make the critical difference seem to be saying, 'I'm not ready to do this,'" he said.

Proposition 19, which needs a majority vote to pass, would allow Californians who are at least 21 to grow up to 25 square feet of marijuana and possess up to an ounce. Cities and counties could authorize commercial cultivation and sales, and could impose taxes.

The poll, conducted for The Times and the USC College of Letters, Arts and Sciences, found the initiative favored by Democrats, 51% to 41%, and opposed by Republicans, 66% to 23%. 

Men were evenly split, and women were leaning against it.  Both sides consider mothers a key swing vote, with backers of legalization saying it would lead to regulations that would do more to keep pot from children, and opponents saying young people would have easier access and so more would use it.

Likely voters younger than 40 are in favor of Proposition 19 by 48% to 37%, but older voters are opposed, the poll found.  Among likely voters 65 and over, only 28% support the measure, while 59% said they were opposed.

Poll respondent Nancy Bynes, 51, who is married with two adult children, said she smoked pot as a teen in the 1970s.  A dog groomer who lives near Nevada City, she said she doesn't believe marijuana is dangerous and wants police to focus on serious crimes. "Go after the meth labs, please.  Pot is not worth it," said Bynes, who switches her registration between parties.

But Shawn Lidtka, a single Democrat from Garden Grove and a mechanical engineering student at Cal State Fullerton, said he opposes legalizing marijuana because he believes the drug saps people of their ambition.  "My goal is to be deeper into life, not diminish it," said the 28-year-old Army veteran.

Some polls have shown Latino voters, initially against legalization, swinging toward it, but the Times/USC poll found they are against it by 2 to 1.  White voters also oppose the measure.  Supporters of legalization have highlighted statistics showing members of minority groups are arrested for marijuana possession at higher rates than whites.

The fact that Republicans favor preserving pot prohibitions 3-to-1 reinforces my sense that this party still strongly favors big government denying individual liberty in some settings.

Some related posts on pot policy and politics:

October 23, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

A new kind of legal attack on lethal injection drug in Arizona

As detailed in this New York Times article, which is headlined "Use of Drug Challenged in Death Penalty Case," lawyers for a condemned inmate in Arizona are trying a new legal attack on the state's lethal injection plans. Here are the details:

Arizona plans to execute Jeffrey Landrigan next week, but his lawyers are arguing that one of the drugs that the state intends to use to end his life may not be good enough.  The planned execution of Mr. Landrigan, convicted of murder in 1990, coincides with a shortage of the anesthetic used in the state’s execution protocol, sodium thiopental.  The thiopental shortage has already caused delays in executions around the country.

Arizona officials have the drug, but defense lawyers for Mr. Landrigan are asking to stay the execution until the state reveals where it got its supply.  If Arizona obtained the drug from an overseas supplier, they argue, it may be substandard and violate Food and Drug Administration rules for importation.

Kent Scheidegger, legal director for the Criminal Justice Legal Foundation, a group that supports the death penalty, said that arguing over the safety of a drug for executions is “absurd.”

“As long as it’s a real drug manufacturer and not mixed up in somebody’s garage, it doesn’t matter where it came from,” Mr. Scheidegger said.  While the Food and Drug Administration is supposed to determine whether drugs are safe and effective, he said, “in this case, safe and effective are opposites.”...

Megan McCracken, an adviser on lethal injection issues to the death penalty clinic at the University of California, Berkeley School of Law, argued that the origin of the drug used was nonetheless important under the law.

She cited the Eighth Amendment prohibition against cruel and unusual punishment, and a 2008 decision by the Supreme Court.  In that case, Baze v. Rees, the court left room for challenges to execution methods that involve a demonstrated risk of severe pain compared with available alternatives.  To Ms. McCracken, the lack of information about the drug opens Arizona to a challenge under the Baze decision. “Its provenance matters,” she said. “I don’t think you can say that thiopental is thiopental is thiopental.”

Judge Roslyn O. Silver of United States District Court on Thursday asked the state to voluntarily reveal where the drug had come from.  She set the matter for oral argument on Monday.

The state, in a brief filed Friday, declined to identify the source of the drug, citing state confidentiality laws intended to shield those involved in executions from harassment by death penalty opponents.  It denied that the drug to be used was substandard, and suggested that the criticism of the drug was an “improper delay tactic.”  The state, the brief said, “takes its responsibility to carry out an execution seriously and has attempted to construct a protocol to carry out executions as humanely as possible.”

October 23, 2010 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (32) | TrackBack

October 22, 2010

Discussion of race and criminal justice disparities by state Justices stirring debate in Washington

Thanks to How Appealing (where there are lots of interesting criminal justice stories covered this morning), I saw this interesting article from The Seattle Timesheadlined "Two state Supreme Court justices stun some listeners with race comments." Here are excerpts:

State Supreme Court justices Richard Sanders and James Johnson stunned some participants at a recent court meeting when they said African Americans are overrepresented in the prison population because they commit a disproportionate number of crimes. Both justices disputed the view held by some that racial discrimination plays a significant role in the disparity.

Johnson also used the term "poverty pimp," an apparent reference to people who purportedly exploit the poor in the legal system, say those who attended the meeting. Sanders later confirmed his remarks about imprisoned African Americans, saying "certain minority groups" are "disproportionally represented in prison because they have a crime problem."

"That's right," he told The Seattle Times this week. "I think that's obvious." Johnson did not respond to several messages left Wednesday and Thursday with three staffers in Olympia. He also did not respond to messages left Thursday at his home and with Sanders. Johnson's staff said he was with the court in Spokane to hear cases at the Gonzaga University law school.

African Americans represent about 4 percent of Washington's population but nearly 20 percent of the state prison population.  Similar disparities nationwide have been attributed by some researchers to sentencing practices, inadequate legal representation, drug-enforcement policies and criminal-enforcement procedures that unfairly affect African Americans.

Some who attended the meeting say they were offended by the justices' remarks, saying the comments showed a lack of knowledge and sensitivity.  Kitsap County District Court Judge James Riehl, who attended the meeting, said he was "stunned" because, as a trial judge for 28 years, he was "acutely aware" of barriers to equal treatment in the legal system....

Justice Debra Stephens said she heard Sanders and Johnson make the comments, including Johnson using the words "you all" or "you people" when he stated that African Americans commit crimes in their own communities. Stephens said she was surprised by the "poverty pimp" remark.  "If that were directed at me, I would have felt accused," Stephens said, adding that she doesn't believe that was Johnson's intent, but instead that he chose an unfortunate phrase.

Justice Susan Owens said she heard the comments but didn't understand what Johnson meant by "poverty pimp," though she added that she didn't believe he was directing the term at anyone in particular.

Chief Justice Barbara Madsen said she recalled that Sanders disagreed with the premise that anyone was in prison because of race and asked for a name of someone there because of race.  She also recalled Johnson said something about African Americans committing crimes in their own communities, but that she only heard later that he used the term "poverty pimp."...  Johnson is widely considered to be the court's most conservative justice.

Bondon, the AOC manager, in a written statement to The Seattle Times, said she was stunned by Sanders' remarks.  "I know that people in all walks of life hold biases, but it was stunning to hear a Justice of the Supreme Court make these outrageous comments in my presence," Bondon wrote.

Bondon said she took the "comments personally, as though he were saying that I and all African Americans had a predisposition for criminality and I was offended."  Bondon said she remembered thinking that she didn't need data or statistics to prove that she and other African Americans don't have a predisposition for criminality.

"Just the idea that it was necessary to disprove the assertion was sickening," Bondon said. Johnson's pimp comment inferred that "poor people have no right to legal representation. Where's the justice in that?" Bondon wrote.

Sanders, in an interview, said he has a reputation for standing up for those accused of crimes but that he hasn't seen evidence that African Americans are disproportionately imprisoned because of race. He said his concern was for "individuals," and that if someone is in prison for any reason other than committing the crime, "I want to hear about it." But statistics aren't proof, he said.

October 22, 2010 in Race, Class, and Gender, Who Sentences? | Permalink | Comments (26) | TrackBack

"Why the death penalty still exists in the US: Author ties the practice to slavery, racism"

9780674057234-lg The title of this post is the headline of this book review appearing in today's Boston Globe. The review is of this new book by Professor David Garland, titled "Peculiar Institution America's Death Penalty in an Age of Abolition."  Here is how the review gets started:

Why does the United States, alone among Western democracies, still have the death penalty? It’s not a new question, but David Garland, a distinguished professor of law and sociology at New York University, provides fresh answers from a multilayered analysis.

In a review of several centuries of the death penalty, Garland shows it has passed through the same phases in the United States and Europe. Executions have evolved from gruesome, public displays of governmental power and impassioned expressions of revenge to more humane methods implemented in an orderly fashion behind prison walls.

Garland finds the death penalty’s evolution has been shaped by the emergence of thought that values individuals, including the convicted; a bourgeois refinement that recoils at bloody scenes; and a penal system that has made executions as a matter of punishment, not sovereign will.

What then accounts for the persistence of the death penalty laws on the books of 35 states and the federal government?

The title hints at the most provocative part of Garland’s answer. In American history, the “peculiar institution" is slavery. Anyone who thinks its vestiges were wiped out by the Emancipation Proclamation or civil rights laws should read this book and think again.

October 22, 2010 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (26) | TrackBack

"Mini-Madoff" gets mini-sentence that should still be a functional life sentence

As detailed in this Reuters piece, which is headlined "Mini-Madoff Nadel Sentenced to 14 Years Prison," another high-profile Ponzi-schemer faced the sentencing music yesterday.  Here are the basic details:

Arthur Nadel, a fund manager whose $168 million fraud was one of several that collapsed in the declining economy and left hundreds of investors without their money, was sentenced to 14 years in prison on Thursday.

Nadel, 77, dubbed "mini-Madoff" in his home state of Florida after epic swindler Bernard Madoff, was excoriated as "evil" and "a loser" by one of his victims during the sentencing proceeding in U.S. District Court in New York.

"Arthur, you are an evil person," said businessman Michael Sullivan of Barrington Hills, Illinois.  "I assume you are a narcissistic psychopath" and "just a weak child seething with anger and loathing" who had "little success in life until you founded your fraudulent funds."

Judge John Koeltl rejected as too long U.S. prosecutors' requested sentence of between 19-1/2 years and 24 years, citing Nadel's age and a heart ailment.  But Koeltl said Nadel orchestrated a "massive fraud" on investors, "many elderly and who lost the fruits of their lives," adding that "it caused financial difficulties to the victims and those close to them."...

Looking thin and frail with one of his sons present in the back of the court, Nadel stood in prison garb and told the judge that he had read letters submitted to Koeltl by many of his 390 victims. "Their anger and outrage became mine at myself," Nadel said.  "I blame only myself for my acts."

His court-appointed lawyer had asked the judge to imprison Nadel for just five years, given his life expectancy, so that he would not die in prison.

I suppose it is possible that Nadel will live into his 90s and perhaps live out this 14-year federal prison sentence.  But odds are that Arthur Nadel, like Bernie Madoff, will die in prison.

October 22, 2010 in Booker in district courts, Offender Characteristics, Offense Characteristics, Victims' Rights At Sentencing, White-collar sentencing | Permalink | Comments (2) | TrackBack

October 21, 2010

Judge Bright laments post-Booker crack sentencing realities in Iowa

Concurring in part and dissenting in part in an Eighth Circuit opinion in US v. Brewer, No. 09-3909 (8th Cir. Oct. 21, 2010) (available here), that is not otherwise that notable, Judge Myron Bright has a lot to say about disparties in crack sentencing approaches in the Northern District of Iowa. Here is part of his opinion:

Who could have guessed that President Eisenhower’s decision nearly sixty years ago to create a national system of interstate highways would have an effect on sentencing in Iowa today?  Well, it has.  In the Northern District of Iowa, cases arising on one side of the interstate go to one district court judge while cases arising on the other go to a second judge. And one active judge uses a 1:1 ratio between crack and powder cocaine when sentencing violators of crack cocaine laws while the other follows the sentencing guidelines -– which here applied a 33:1 ratio.  So in the Northern District of Iowa, the location of the crime relative to the interstate is a significant factor in crack cocaine sentencing. In my view, the difference in sentences between similar offenders should not depend on which side of the interstate a crime was committed or where the offender was arrested. See United States v. Ayala, 610 F.3d 1035, 1037-38 (8th Cir. 2010) (Bright, J., concurring) (discussing the need to reduce sentencing disparity in the post-Booker era).

For Brewer’s crime of possessing, conspiring, and delivering approximately 150 grams of crack cocaine, the guidelines recommended a sentence of 30 years to life.  That’s the same recommendation as if Brewer had committed second-degree murder. Unfortunately, equating crack cocaine with murder is not uncommon. See Robert Perkinson, Texas Tough: The Rise of America’s Prison Empire 336 (Metropolitan Books 2010) (Texas Tough) (“In 1995, the average federal prison term for a crack offense surpassed that of murder.”).  Brewer requested a variance from the harsh crack cocaine guidelines on the basis of the disparity with powder cocaine and he cited a decision by Judge Bennett of the Northern District of Iowa who utilizes a 1:1 crack/powder ratio.

The court imposed a 370-month sentence.  That’s 30 years and 10 months. The district court denied Brewer’s request for a variance, stating “I did consider and reject the request for a variance based on the disparity in punishment between crack cocaine and cocaine.  As I looked at the statutory factors under 18 U.S.C. 3553(a), I determined that, on balance, this sentence was not out of the range of reasonableness and is fully supported by the evidence.”

The majority affirms, concluding that the district court was not required to vary downward on the basis of the crack/powder disparity.  But I believe the district court’s decision does not reflect a reasoned and informed exercise of discretion.  The district court cavalierly applied a guideline which often does not comply with § 3553(a) in the mine-run case, treats Brewer like a murderer, and results in unwarranted intra-district disparity.  Sadly, the interstate and corresponding judicial assignment made a substantial difference at Brewer’s sentencing.

October 21, 2010 in Booker in district courts, Booker in the Circuits, Drug Offense Sentencing, Kimbrough reasonableness case, Who Sentences? | Permalink | Comments (15) | TrackBack

Arguments made to Missouri Supreme Court against mandatory juve LWOP

This local article, which is headlined "Mo. high court is asked to end mandatory life sentences for young killers," reports on a notable effort to extend the Supreme Court's recent Eighth Amendment work in Graham (with dash of Blakely throw in for good measure).  Here are the details:

An attorney for a St. Louis teen, sentenced to spend his life in prison after he was convicted of killing police officer Norvelle Brown, argued Wednesday that juveniles should not receive automatic life sentences.

Attorney Brocca Smith said that for a juvenile, a mandatory sentence of life in prison without parole is cruel and unusual punishment and urged the Missouri Supreme Court to declare it unconstitutional.  Smith limited her argument to juveniles and only those who have received an automatic sentence of life without parole.

Missouri law requires people convicted of first-degree murder to be executed or sentenced to life in prison.  Smith said the problem with mandatory sentences is judges and juries cannot consider juveniles' age, maturity and other mitigating factors before deciding upon the punishment.  "Children are simply not as culpable as adults, and they can't be treated the same under the law," she said....

Missouri Supreme Court Judge Laura Denvir Stith, who was among the most active with her questioning during oral arguments Wednesday, said the next question with juveniles was whether it is acceptable to sentence teens to life automatically without evaluating each defendant....

Missouri Assistant Attorney General Evan Buchheim defended the life sentence Wednesday.  He told the state high court that nearly every state has lifetime prison sentences and that the U.S. Supreme Court specifically permitted life sentences for juveniles in murder cases.  Buchheim argued there is little difference whether the punishment is selected or required by state law.  "It seems to me to be the same thing — a mandatory life without parole sentence or a sentence of life without parole."...

Besides mandatory life sentences, the Missouri Supreme Court also was considering the constitutionality of the state's system for deciding whether juveniles should be prosecuted as adults.

Under Missouri law, juveniles are handled by special courts that focus on improving behavior and are not treated like criminal cases.  Children as young as 12, however, can be charged with a felony as an adult depending on the circumstances of the case.  A judge decides whether the defendant should be prosecuted as a juvenile or adult.

Smith argued Wednesday that decision should be made by a jury because the decision significantly affects the possible punishment.  The attorney general's office contends that a judge can decide whether a juvenile should be charged as an adult because juries only are required to decide the facts that affect criminal penalties.

Knowledgeable readers should recall that the Missouri Supreme Court was the first to decide a few years ago that all juve killers should be categorially prohibited from facing the death penalty, a decision that was affirmed by the Supreme Court in its 2005 Roperruling. It will be interesting to see if the same court might become a pace-setting in these other juve sentencing contexts.

October 21, 2010 in Assessing Graham and its aftermath, Blakely in the States, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

"Couple get long prison terms in Kansas 'pill mill' case"

The title of this post is the headline of this local article providing the outcome in a high-profile federal health care fraud case.  Here are the details:

Linda Schneider should carry most of the responsibility for her husband’s patients who overdosed and died, said a federal judge who described the deaths as “an avoidable tragedy motivated by greed.” But Stephen Schneider, a former physician, could have stopped it, U.S. District Judge Monti Belot said Wednesday as he sentenced the couple.

Belot gave Linda Schneider 33 years in prison and Stephen Schneider 30 years for their practices of prescribing painkillers at their Haysville clinic. Stephen Schneider is 57; Linda Schneider is 52. There is no parole from federal prison.

Belot said Linda Schneider, a licensed practical nurse who managed the clinic, set up an operation to make money off the quantity of patients, not the quality of care. “I have the distinct belief that had she not been involved in the operation of the clinic, or had she approached her role there in a professional and responsible way, none of us would be here,” Belot said, explaining her higher sentence.

Instead, Belot said, the evidence had shown her to be “a scheming, manipulative, uncaring criminal who believed, erroneously, that she was smart enough to get away with it.”

He said Stephen Schneider could have prevented the 68 overdose deaths that prosecutors said were linked to the clinic. “Stephen Schneider, as a doctor, had both legal and moral responsibilities to his patients to do no harm,” the judge said....

The Schneiders’ defense team insisted that their clients were not criminals. “We truly believe in their innocence,” said Lawrence Williamson, who represented Stephen Schneider. “We don’t believe justice has fully been served, and we hope there is a shot on appeal.”

Recent related posts:

October 21, 2010 in Booker in the Circuits, Offender Characteristics, Offense Characteristics | Permalink | Comments (1) | TrackBack

October 20, 2010

Must-read speech from retired Justice Stevens about Harmelin Eight Amendment ruling

Thanks to a posting by Tony Mauro via the NLJ's Supreme Court Insider, I just came across this remarkable speech about the Eighth Amendment and the 1991 Harmelin ruling from retired Justice John Paul Stevens.  Here is how Tony describes the speech in his posting:

In a little-noticed speech delivered Oct. 7 and available on the Court's web site Stevens offered some pointed criticism of Justice Antonin Scalia, while applauding Justice Anthony Kennedy for displaying "more civilized" views than he did 20 years ago. For good measure, Stevens praised Chief Justice John Roberts Jr.'s "thoughtful opinion" last term in Graham v. Florida.

Stevens' main focus in the talk before the National Legal Aid & Defender Association was a 1991 decision that is probably one of that group's least favorite rulings: Harmelin v. Michigan, which found that a life sentence for possession of 672 grams of cocaine was constitutional.  Stevens dissented in the case, though his comments about Scalia and Kennedy did not have a score-settling tone.  They did, however, convey feelings he's clearly harbored for a long while.

"People were expecting a speech with a few war stories, I think," said Jenner & Block partner David DeBruin, a co-chair of the event at which Stevens was given a lifetime achievement award and a standing ovation.  "But what struck me is that even though he is retired, he is still very active substantively.  He clearly wanted to convey some thoughts about his time on the Court and the process of judging."

October 20, 2010 in Assessing Graham and its aftermath, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Seventh Circuit joins Sixth and Eleventh Circuits in rejecting applicability of FSA to pipeline cases

At the end of a lengthy opinion addressing other issues, a Seventh Circuit panel today in US v. Bell, No. 09-3908 (7th Cir. Oct. 20, 2010)  (available here), weighs in concerning an issue that I know is being litigated in various ways in various federal courts in the wake of the enactment of the Fair Sentencing Act.  Here are excerpts from the panel's work:

Three days after the FSA was enacted, Bell, who had not previously challenged any aspect of his sentence, filed a pro se motion for leave to file a supplemental brief regarding the application of the FSA to his case. We granted Bell’s motion, ordered his court-appointed counsel to file a brief on his behalf, and ordered the government to file a response. After reviewing the ably prepared briefs of both parties, we conclude that the FSA is not retroactive and therefore does not apply to Bell’s case....

Like our sister circuits that have considered this issue, see United States v. Gomes, ___ F.3d ___, No. 10-11225, 2010 WL 3810872, at *2 (11th Cir. Oct. 1, 2010); United States v. Carradine, ___ F.3d ___, No. 08-3220, 2010 WL 3619799, at *4-*5 (6th Cir. Sept. 20, 2010), we conclude that the savings statute operates to bar the retroactive application of the FSA. Bell’s arguments to the contrary are novel but ultimately unpersuasive....

[T]he FSA’s predominant purpose was to change the punishments associated with drug offenses. The savings statute therefore prevents it from operating retroactively absent any indication from Congress.  And since the FSA does not contain so much as a hint that Congress intended it to apply retroactively, it cannot help Bell here.

Though I guess it is fair to say that "the FSA does not contain so much as a hint that Congress intended it to apply retroactively," I am not so sure (1) that Bell is technically seeking its retroactive application (at least as that term is used in habeas jurisprudence), nor so sure (2) that Congress did not want the FSA to be applied to cases still in the sentencing pipeline. Let me explain what I mean here:

1.As the term is used in habeas jurisprudence, asking for a new law to apply "retroactively" means seeking to apply that new law to cases that have already become "final," which means cases that have already completed all stages of direct appeal (up to and through SCOTUS review).  Bell's case is still on direct appeal, so he is not really seeking "retroactive" application of the FSA, at least not as that term is used in habeas settings.

2.Congress did provide in the FSA for the US Sentencing Commission to make emergency amendments to the sentencing guidelines to reflect the FSA's new crack/powder ratio. It is not entirely clear why Congress would want/need the USSG to make such emergency amendments unless it wanted the provisions and consequences of the FSA to kick in ASAP. This reality is not a clear statement of Congressional purpose to apply the FSA to cases in the pipeline like Bell's case, but it does at least "hint" that Congress intended the new sentencing terms of the FSA to impact crack sentencing cases as soon as possible.

October 20, 2010 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report | Permalink | Comments (2) | TrackBack

"Federal Judge Refutes Justice Department's Criticism Over Sentencing"

The title of this post is the headline of this effective new article in today's New York Law Journal, which reports on an important recent sentencing opinion by Eastern District Judge (and former US Attorney) John Gleeson.  Here are excerpts from the NYLJ piece (along with a link to the opinion):

A federal judge in Brooklyn has rebutted the criticism by a top Department of Justice official that many federal judges have "lost" their "moorings to the sentencing guidelines" in major fraud cases.

The attack on a "regime" of judges who impose fraud sentences "inconsistently and without regard to the federal sentencing guidelines" appeared in a letter sent in June by Jonathan J. Wroblewski, the director of the Office of Policy and Legislation to the chief of the U.S. Sentencing Commission, Judge William K. Sessions III.

Last week, Eastern District Judge John Gleeson responded to Wroblewski's implication that, as Gleeson put it, fraud sentences "are inexplicably and unjustifiably all over the lot."

In a 16-page "statement of reasons" for a fraud sentence, Gleeson wrote that the discrepancies between guideline sentences and actual sentences is not evidence of the unmooring of judges, but rather indicative of the difficulty of capturing the nuances of a complex case in a list of guidelines.  The 539-page Sentencing Guidelines Manual is only one of eight factors that judges are statutorily required to consider at sentencing, Gleeson added.

He also noted that if judges had truly become unmoored from the guidelines, then prosecutors would appeal sentences more frequently -- only 18 of the 1,711 below-range fraud sentences issued last year were appealed.  "[I]n determining whether reforms are needed, and especially in determining whether the existing guideline should be burdened with even more adjustments, the Commission should examine whether our system already provides an adequate solution for the claimed 'unacceptable' outcomes the Department complains about," Gleeson wrote in United States v. Ovid, 09-CR-216. "I suggest that it does, in the form of appellate review, and for all of the handwringing in the DOJ Letter about unacceptable sentences, the Department for the most part has not even tried to avail itself of that solution."...

Gleeson's rejoinder to Wroblewski's criticisms came in his statement of reasons for sentencing defendant Isaac Ovid, an ordained minister, who started two hedge funds that he failed to register with the SEC and that went bankrupt, costing his congregants and investors millions of dollars.  Ovid pleaded guilty in March to conspiring to commit securities fraud and was sentenced to 60 months in prison -- exactly 12 1/2 years less than the low end of the guideline range of 210 to 262 months.

In his statement of reasons, the judge quoted for three pages the arguments made by the prosecution at sentencing in favor of departing from the guidelines and granting the 60-month plea deal: Ovid's actions did not begin as a fraud, he did not collect a salary nor deposit money in secret accounts, he came clean to his investors and "heavily" demonstrated remorse.  Such factors do not always neatly fall within a guidelines grid, the judge wrote.

"Even though the prosecutor was justifying his plea bargain, not imposing sentence, I couldn't help thinking as I listened to his various reasons for why it was all right to cap Ovid's sentence at 60 months that this is what sentencing judges do," Gleeson wrote.

"We canvass all of the many features of the case that bear on the culpability of the defendant.  Though some of those features have been considered by the Sentencing Commission and incorporated into the Guidelines calculation, many are not.  But they are still part of the nature and circumstances of the offense, or part of the history and characteristics of the defendant, and thus may (indeed must) be factored into the sentence by the judge."

The judge noted that judges must explain their reasons for each sentence, and that "those reasons, and the sentences they support, are subject to appellate review" -- an option the Justice Department pursued in only 1 percent of the below-guideline sentences last year.

 Related posts on the DOJ letter to the USSC:

October 20, 2010 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

How and how much does lawyering impact sentencing outcomes?

Nearly a decade ago, I wrote an article for the Iowa Law Review that sought to explore the question in the title of this post. (The piece was titled "From Lawlessness to Too Much Law?  Exploring the Risk of Disparity from Differences in Defense Counsel Under Guidelines Sentencing" and is still available here via SSRN.)  The issue is on my mind again this morning after I came across this notable new piece on SSRN titled "What Judges Think of the Quality of Legal Representation" authored by Judge Richard Posner and Professor Albert Yoon. Here is the abstract of this new article (which is forthcoming in the Stanford Law Review):

Studying the legal profession poses several challenges.  The evolution of law has moved lawyers away from a generalist practice towards increased specialization.  This makes it difficult, if not impossible, to compare lawyers across different practice areas meaningfully and to provide a comprehensive assessment of the legal profession.  Judges are well situated to provide such an evaluation, given their experience and scope of cases.

This article reports the responses of federal and state judges to a survey we conducted in 2008.  The questions relate to their perceptions of the quality of legal representation, generally and in criminal and civil cases; how the quality of legal representation influences how they and juries decide cases; and their recommendations for change in the profession.  We find that judges perceive significant disparities in the quality of legal representation, both within and across areas of the law.  In many instances, the underlying causes of these disparities can be traced to the resources of the litigants.  The judges’ responses also suggest that they respond differently from juries to these disparities, and that the effect of these disparities on juries may be more pronounced in civil than in criminal cases.

This new article does not extensively discuss the question posed in the title of this post, but it does include this notable (and accurate?) paragraph:

The perceived disparity between public defenders and other defense counsel might be a minor concern if the latter groups represented defendants in only a small fraction of cases. But retained counsel represent 25 percent and courtappointed counsel 33 percent if all federal criminal defendants.  If the quality of legal representation matters in criminal case outcomes, as recent studies suggest, a majority of indigent federal criminal defendants may be serving longer sentences simply by virtue of not being represented by a federal public defender.  The Constitution has been interpreted to place a floor under the quality of assistance of counsel tolerated in criminal cases, but one federal district judge described the work of defense attorneys other than public defenders as “exceedingly poor.”

October 20, 2010 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

New Mexico Supreme Court rejects Apprendi/Blakely challenge to judicial findings for enhanced juve sentencing

As detailed in this brief local AP article, the New Mexico Supreme Court "has ruled it's constitutional for a judge to determine whether juvenile offenders can be sentenced as adults for certain violent crimes." Here are the basics:

The justices issued a 4-1 ruling on Tuesday overturning a 2009 decision by the state Court of Appeals, which held that a jury rather than a judge should make the sentencing decision.  Justice Edward Chavez dissented, saying juvenile offenders are entitled to the same constitutional jury protections given to adults.

At issue is a sentencing procedure for "youthful offenders" --- those 14 to 18 years old found guilty of violent felonies, including second-degree murder and robbery.  Judges can impose adult sentences only if they determine an offender is not amenable to treatment in the juvenile justice system.

I have not yet been able to find a copy of this ruling on-line, but I will post it when I do.  Depending on the particulars, this case might serve as an interesting vehicle for taking a long-simmering, and quite interesting, post-Apprendi-Blakely issue up to the U.S. Supreme Court.

UPDATE: The full opinion from the NM Supreme Court is now available at this link.

October 20, 2010 in Blakely Commentary and News, Blakely in the States, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Planned Missouri execution stays stayed over Sixth Amendment jury issue

As detailed in this Kansas City Star article, the "planned execution of a convicted Kansas City killer was called off late Tuesday night after the U.S. Supreme Court refused to lift a stay of execution." Here are the particulars:

Roderick Nunley, who was sentenced to death for the kidnapping, rape and murder of 15-year-old Ann Harrison in 1989, was scheduled to be put to death by lethal injection at 12:01 a.m. today.

Ann’s father, Bob Harrison, said his family was not surprised by the Supreme Court’s decision because of the many legal twists and turns the case has taken over more than 21 years. The decision came after a hectic day of appeals and counter-appeals in state and federal courts....

Missouri officials took the case to the Supreme Court on Tuesday night after the 8th Circuit Court of Appeals in St. Louis declined to lift the execution stay granted Monday by Chief U.S. District Judge Fernando Gaitan in Kansas City.

Gaitan ruled that the issue of whether Nunley, who had been sentenced to death by a judge, had the right to be sentenced instead by a jury needed to be studied further. The Missouri Supreme Court had earlier denied Nunley a stay on the same grounds, but Gaitan ruled he could not determine if its order was legal without clarification from the Missouri court.

The attorney general’s office filed a motion Tuesday with the Missouri Supreme Court asking for that clarification. The issue is likely to be litigated today.

October 20, 2010 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

October 19, 2010

"Retribution and the Experience of Punishment"

The title of this post is the title of this new forthcoming article from Professors John Bronsteen Christopher Buccafusco and Jonathan Masur that is now available via SSRN. It looks like the latest must-read for those interested in punishment theory and subjective punishment experiences.  Here is the abstract:

In a prior article, we argued that punishment theorists need to take into account the counterintuitive findings from hedonic psychology about how offenders typically experience punishment.  Punishment generally involves the imposition of negative experience.  The reason that greater fines and prison sentences constitute more severe punishments than lesser ones is, in large part, that they are assumed to impose greater negative experience.  Hedonic adaptation reduces that difference in negative experience, thereby undermining efforts to achieve proportionality in punishment.

Anyone who values punishing more serious crimes more severely than less serious crimes by an appropriate amount — as virtually everyone does — must therefore confront the implications of hedonic adaptation.  Moreover, the unadaptable negativity of post-prison life which is caused by the experience of imprisonment results in punishments that go on far longer than is typically assumed.  Objectivist retributive theories that fail to incorporate these facts risk creating grossly excessive punishments.  Certain retributivists have disputed the claim that adaptation is important to punishment theory, but their arguments are unavailing.

October 19, 2010 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (3) | TrackBack

Should many (perhaps most) women get alternative sentences for all non-violent crimes?

The provocative gendered question in the title of this post is prompted by this notable article from today's Los Angeles Times discussing the success of the Second Chance Women's Re-entry Court.  The piece is headlined "Court program helps women turn their lives around," and here are excerpts:

On any given day, Judge Michael Tynan's fourth-floor courtroom in downtown L.A.'s criminal courts building is crowded with lives in need of redemption.  Over the years, the 73-year-old Army veteran with a gruff, no-nonsense voice has taken on populations that others have given up on — the county's drug addicts, homeless, mentally ill and, in recent years, women parolees.

The Los Angeles County Superior Court judge oversees a number of programs known as collaborative or problem-solving courts, designed to address the underlying issues — addictions, mental health, poverty — that lead to repeated arrests and prison terms.

The former public defender has a way of encouraging people — or sometimes scaring them straight — that has made his court-supervised treatment programs successful. Tynan believes that, given the chance and support, people can turn their lives around.

Since 2007, Tynan has been running the Second Chance Women's Re-entry Court program, one of the first in the nation to focus on women in the criminal justice system. Through the court, women facing a return to state prison for nonviolent felonies plead guilty to their crimes and enter treatment instead. 

Although women make up only a small fraction of prison inmates, their numbers have been climbing for decades at a far steeper rate than men's.  Women are also more likely to be convicted of nonviolent drug or property crimes motivated by addictions or necessity....

Based on what he sees in the report and what the women have to say, Tynan doles out sanctions or incentives such as a month back in jail, an order to write a 1,000-word essay or permission to go on an out-of-town trip....

Of the close to 200 women who have entered the program since it began in 2007, one relapsed and died from an overdose. A couple dozen failed treatment and were ordered to serve out their sentences in prison.  But overwhelmingly, the women are making it through treatment and going on to lead crime-free lives....

"A lot of them have been really, really beleaguered and beaten up, primarily by the men in their lives," Tynan says.  His court, he adds, "is just a sliver of what's needed."...

Thirty miles east of Tynan's courtroom, the women of the Re-entry Court program are housed in a Pomona drug treatment facility for women called Prototypes....  Here, the women are referred to as clients or patients rather than defendants or inmates.... Their time here, a minimum of six months but longer for most, is designed to prepare them for another shot at life — be that a job at McDonald's, a new relationship with their children or paralegal school.

The treatment, currently funded through a grant from the California Department of Corrections and Rehabilitation and donated services from Prototypes, costs about $18,000 for each woman per year. But compared with keeping them in prison and their children in foster care for years, the state is saving millions of dollars, the program's organizers say.

October 19, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (14) | TrackBack

Noting a few notable cert denials

Writing in the Christian Science Monitor, Warren Richey has two effective articles discussing notable cases with sentencing dimensions which the Supreme Court refused to take up this week:

I think it may be only a matter of time before the Justices get variations of one or both of these issues on their docket. But not this Term, it seems.

October 19, 2010 in Offender Characteristics, Who Sentences? | Permalink | Comments (0) | TrackBack

"Tax cheat sentenced to serve … pizzas"

The title of this post is the headline of this tasty local alternative sentencing story.  Here are the details:

Starting tonight and continuing every Tuesday for the next year, the more than 100 nightly diners at the Buffalo City Mission will feast on pizza -- thanks to State Supreme Court Justice Russell P. Buscaglia and a tax cheat.

Joseph J. Jacobbi, 57, operator of Casa-Di-Pizza, a popular Elmwood Avenue restaurant, was spared a jail term on his massive sales tax fraud case, but the judge Monday ordered him to deliver 12 sheet pizzas to the City Mission once a week on Tuesdays for the next 52 weeks, beginning tonight.

After Jacobbi turned over a check for $25,000 -- part of the $104,295.31 court officials said he withheld from the state between March 2004 and the end of May 2008 -- the judge ordered the weekly pizza deliveries as a form of community service. "I will leave the choice of toppings up to you," he told the nonplussed restaurant owner.

Though the judge declined to comment afterward, court officials said he felt that with the city's increasing number of out-of-work and homeless people, the pizza penalty would be a way to help the community's neediest in a very direct manner....

Gary M. Ertel, head of the district attorney's Crimes Against Revenue Bureau, said that as part of an Aug. 19 guilty plea to third-degree grand larceny, Jacobbi came to court with an initial payment of $26,073. Monthly restitution payments will also cover processing costs. Jacobbi, who declined to comment after the sentencing, had been facing a prison term of up to seven years on the sales tax crime.

October 19, 2010 in Criminal Sentences Alternatives, White-collar sentencing | Permalink | Comments (2) | TrackBack

Potent dissent from Second Circuit's denial of en banc review of reversal of NYC federal death sentence

As detailed in this order, the Second Circuit today has rejected the government's request for en banc review of a split panel decision reversing a high-profile federal death sentence.  Background on this notable case can be found in this prior post, and also from the start of Judge Livingston's potent dissent fromt this en banc review denial:

The facts in this case are as straightforward as they are heartbreaking. Ronell Wilson, a violent gang member who favored the nickname “Rated R,” shot and killed two undercover police officers at point blank range, murdering the first without warning, and the second even as the young officer, a father of three, pleaded for his life.  Wilson did so because, in his own words, he “don’t give a fuck about nobody.”  The bodies were unceremoniously searched and then dumped in the street.  Two days after the wanton executions of Detectives Rodney Andrews and James Nemorin, Wilson was arrested and was found to be carrying rap lyrics he had authored -– lyrics that celebrated the gun violence of “Rated R,” appeared to brag of his recent murders, and, indeed, promised to continue committing such crimes until “I’m dead.”

A properly empaneled jury described by the district court as “among the most attentive and serious [it] had ever seen,” heard and evaluated weeks of evidence before returning guilty verdicts on five capital counts.  These jurors then absorbed another nine days of testimony at a penalty phase involving some forty witnesses and spanning nearly 1,800 transcript pages. On that record, the jury unanimously found that six aggravating factors -- including killing for pecuniary gain, killing multiple people in a single incident, and killing a law enforcement officer in the course of duty -– had been established beyond a reasonable doubt.  The jurors also found that Wilson had established thirteen of the eighteen mitigating factors on which he relied, as well as finding a fourteenth –- that Wilson “was possibly subject to peer pressure” –- on their own.  No juror concluded, however, that Wilson felt remorse for his crimes.  Nor did any juror find that he had accepted responsibility for them, rejecting Wilson’s claims to that effect made in an unsworn, uncrossed statement that he was permitted to read to the jury from the defense table. Having been instructed “to make a unique, individualized judgment about the appropriateness of imposing the death penalty” and that “no jury is ever required to impose the death penalty,” the jury imposed five capital sentences on Wilson.

Despite the impeccable record developed below and the careful and conscientious work of the district court and the jury, a divided panel of this Court vacated these capital sentences, discerning Fifth and Sixth Amendment error in a handful of words buried in the government’s summation.  For the reasons amply set forth in my dissent, I believe the panel majority’s Fifth and Sixth Amendment holdings were not only in error but that they are in profound tension, if not direct conflict, with the law of this Court, a sister Circuit, and the Supreme Court.  See United States v. Whitten, 610 F.3d 168, 205-17 (2d Cir. 2010) (Livingston, J., concurring in part and dissenting in part).

The errors in the panel majority’s analysis, moreover, have not only resulted in the unjustifiable rejection of sentences that were properly imposed for grave and merciless crimes.  If left uncorrected, they threaten to needlessly complicate both the proper conduct of death penalty phase litigation in this Circuit and elsewhere, as well as the orderly adjudication of criminal liability more generally.  I therefore respectfully dissent from the denial of rehearing en banc.

If the government appeals now to the US Supreme Court, which I assume they will, I think there is a good chance the Justices will take up this case.  And I suspect that the force of Judge Livingston's dissent increases those chances.

October 19, 2010 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack