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November 6, 2010

"A no-pardon Justice Department"

The title of this post is the headline of this potent new commentary in the Los Angeles Times authored by Samuel Morison, a former staff attorney in the Justice Department's Office of the Pardon Attorney.  Here are excerpts:

The Times' well-intentioned Oct. 30 editorial bemoaning that fact that President Obama hasn't yet granted any pardons or commutations, in which the editorial board correctly notes that the president is "aided in such decisions by the Office of the Pardon Attorney in the Justice Department," betrays a profound misunderstanding of the role the pardon office plays in the clemency advisory process. In particular, The Times writes, "Ideally, presidents would give great deference to the pardon attorney's recommendations and take a liberal view of the clemency power, exercising it often and on the basis of clear standards."

This assertion is hopelessly confused.  In fact, the problem in the vast majority of garden-variety clemency cases — those involving ordinary applicants for whom a grant of clemency would not cause any public controversy — is precisely that recent presidents have given far too much deference to the pardon attorney's office.  Having spent more than 10 years as a staff attorney in that office, I can say with some authority that the prevailing view within the Justice Department is that the pardon attorney's sole institutional function is to defend the department's prosecutorial prerogatives.  There is little, if any, pretense of neutrality, much less liberality....

As a result, there is a strong presumption within the pardon office that the number of favorable recommendations should be kept to an absolute minimum, regardless of the equitable merits of any individual petition. This stance ignores the reality of a burgeoning federal prison population of more than 200,000 inmates, many serving lengthy sentences for nonviolent drug offenses, and the proliferation of collateral disabilities that hinder ex-offenders' ability to restart their lives, which the attorney general himself has criticized as a "recipe for high recidivism."

Yet the bureaucratic managers of the Justice Department's clemency program continue to churn out a steady stream of almost uniformly negative advice, in a politically calculated attempt to restrain (rather than inform) the president's exercise of discretion.  This advisory record presupposes, falsely, that the federal criminal justice system is virtually flawless; that injustices almost never occur, sentences are almost never excessive, circumstances almost never change, and mercy is almost never appropriate.

No disinterested person really believes this.  Even if most prosecutors, judges and legislators act with the best of intentions, they can and do make mistakes with some regularity, which often are evident only with the benefit of hindsight.  Not surprisingly, the frank acknowledgment of such mistakes tends to strengthen, rather than undermine, public confidence in the legitimacy of the system....

Accordingly, if Obama is going to "take a liberal view of the clemency power, exercising it often and on the basis of clear standards," as The Times suggests, he will have to defer less to the jaundiced advice he receives from the Justice Department and rely more on his own moral judgment.

Some older and newer related posts:

November 6, 2010 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack

November 5, 2010

US Sentencing Commission report on mandatory minimums coming in Fall 2011

As noted in this prior post, in October 2009, Congress directed the US Sentencing Commission to undertake a comprehensive review of mandatory minimum sentencing penalties and to report its findings and recommendations to Congress within a year.  I learned today at the awesome ABA event that the USSC got an extension on its due date and that we now can/should not expect to see the USSC's big mandatory minimum report until probably October 2011.  Oh well.

I suspect the report will be worth the wait, and today I urged members of the USSC to release data about the application of mandatory minimums provisions ASAP.  Though I am somewhat disappointed we all now have to wait another year to get the USSC's wisdom on the wisdom of mandatory minimum sentencing provisions in the post-Booker world, I am somewhat hopeful that we might get some data from the USSC on this front sooner rather than later.

November 5, 2010 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1) | TrackBack

"Former lawmaker gets 5 years for child porn"

The title of this post is the headline of this AP article about a New Jersey state child porn sentencing decision, which gets started this way:

A former Democratic state assemblyman who championed legislation to fight child pornography was sentenced Thursday to a five-year term for viewing nude images of underage girls.

The state Corrections Department will decide within 10 days whether Neil Cohen, 59, will serve his term in prison or a mental hospital. He could be eligible for release and placed under intense supervision in several months. Cohen represented Union County for 17 years. He resigned from the legislature after his July 2008 arrest.

Appearing pale and unsteady, Cohen did not speak during sentencing. His lawyer, Mark Tuohey, told the judge Cohen has been suicidal and has chronic depression, among other mental-health issues. He has been hospitalized for months, Tuohey said.

Judge Gerald Council imposed the sentence in Mercer County Superior Court. "This is a sad day," the judge said. "But for this incident, he had an unblemished record."

Cohen pleaded guilty in April to endangering the welfare of a child (distribution of child pornography). The five-year term was negotiated as part of the plea. The former lawmaker admitted viewing images of young girls on computers in his legislative and law offices.

Anthony Picione, the deputy attorney general who prosecuted the case, said 34 images of girls in stages of undress were found on the computers. Authorities matched some of the images to photos on the list of Missing and Exploited Children, he said.

November 5, 2010 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Eleventh Circuit punts Troy Davis case up to SCOTUS

As detailed in this AP article, a "federal appeals panel [has] dismissed an appeal from Georgia death row inmate Troy Davis ... [saying] he should appeal the case only to the U.S. Supreme Court."  The Eleventh Circuit ruling is available here, and here is a key passage:

The district court emphasized that the Supreme Court exercised its original jurisdiction when it transferred the case to the district court. The district court reasoned that it was clear that the Supreme Court was exercising its original jurisdiction because if it were operating within the confines of its appellate jurisdiction, “it would have been unable to entertain the petition because [Davis] had not obtained leave to file a second or successive petition.” Dist. Court Order at 2, citing Felker v. Turpin, 518 U.S. 651, 661, 116 S. Ct. 2333, 2338–39 (1996).

We agree with the district court’s reasoning....

November 5, 2010 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

"Using Graham v. Florida to Challenge Juvenile Transfer Laws"

The title of this post is the title of this new article by Neelum Arya, the Research and Policy Director at the Campaign for Youth Justice. Here is an excerpt from the introduction:

This Article suggests that lawyers consider using Graham to ensure that every child under the age of eighteen, regardless of whether the child has been given a JLWOP sentence, is entitled to a chance to "atone for his crimes and learn from his mistakes" so that he may demonstrate that the bad acts he committed as a teenager are not representative of his true character.  Graham is not merely an extension or incremental continuation of Roper, but provides significant fodder for a reexamination of our juvenile justice policies more broadly, including the possibility of removing retribution as a valid goal of the criminal justice system as applied to youth, and firmly establishing a constitutional right to rehabilitation.  Graham is revolutionary in that it cuts to the heart of why we have a juvenile justice system, why it is separate from the adult system, and hopefully will make us rethink why we let the two bleed together so often.  Although Graham directly addresses the constitutionality of JLWOP sentences, the author argues that there are several collateral holdings within Graham relevant to challenge the transfer of youth to the adult system as well.

November 5, 2010 in Assessing Graham and its aftermath, Offender Characteristics | Permalink | Comments (0) | TrackBack

State judge declares California sex offender residency restriction unconstitutional

As detailed in this Los Angeles Times article, " a Los Angeles judge issued an opinion this week blocking enforcement of provisions a state law restricting how close those offenders can live from parks or schools." Here is more:

Superior Court Judge Peter Espinoza issued the 10-page ruling after four registered sex offenders petitioned the court, arguing that the legislation known as Jessica's Law was unconstitutional.

He said the court had received about 650 habeas corpus petitions raising similar legal issues, and that hundreds more were being prepared by the public defender's and alternate public defender's offices.  "The court is not a 'potted plant' and need not sit idly by in the face of immediate, ongoing and significant violations of parolee constitutional rights," Espinoza wrote.

Proposition 83, which is better known as Jessica's Law and was overwhelmingly passed by state voters in 2006, imposes strict residency requirements on sex offenders, including requirements forbidding them from residing within 2,000 feet of any public or private school or park where children regularly gather.  Before the law passed, those residency requirements were imposed only on offenders whose victims were children.

Civil rights attorneys have argued that provisions of the law make it impossible for some registered sex offenders to live in densely populated cities.  Nearly all of San Francisco, for example, is off-limits to sex offenders because of the number of parks and schools close to housing. Los Angeles officials also said that there are few places in the city where sex offenders can find housing that meets Jessica's Law requirements.

The California Supreme Court ruled in February that registered sex offenders could challenge residency requirements in the law if it proves impossible to avoid living near parks and schools. State corrections officials said Wednesday that they could not comment on the specifics of Espinoza's ruling, but said they would continue to ensure residency restrictions are imposed in cases where there is a valid reason to continue enforcing them....

In his opinion, Espinoza cited comments by Los Angeles Police Chief Charlie Beck that the Jessica's Law restrictions had resulted in "a marked increase of homeless/transient registrants."  The judge noted that in 2007, there were 30 homeless sex offenders on active parole in the city of Los Angeles.  By September of this year, that number had jumped to 259.

November 5, 2010 in Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Overcrowded jail lacks room for non-violent offender who keep trying to get in

A helpful reader altered me to this amusing local article, which is headlined "Thief can't get in, now won't go to jail." Here are the basics:

Despite being a criminal, Carla Freeman's persistence paid off Wednesday when a judge decided she didn't have to go to jail after all.

Freeman, 28, was an employee in 2004 at the Pleasant Ridge Home Depot when she was charged with voiding sales for friends and letting them take items without paying. She was convicted of theft and placed on probation with the stipulation she pay $2,278 for Home Depot restitution, court costs and fines. Six years later, though, Freeman hadn't paid that money so Hamilton County Common Pleas Court Judge Melba Marsh ordered Freeman's probation ended and told her to go to jail for 180 days.

Freeman reported Jan. 4 to the jail to serve her sentence. She was turned away because the overcrowded jail had no room for her. For about two years, the jail has been turning low-level, non-violent criminals away, often telling them to return later to serve the sentences, because there was no room.

Freeman showed up at the jail again March 8 and she again was told to come back later due to overcrowding. She tried several more times, each time being turned away. "She's tried eight times to get in and can't," Freeman's attorney, Ed Noe, said Wednesday. She tried again April 16, June 2, July 7, Aug. 8, Sept. 17 and Oct. 15....

"That's not unusual at all, especially for females," sheriff's spokesman Steve Barnett said Wednesday. "We just don't have room for them."

Freeman has been trying to get into the jail for so long, Noe said, that she just gave birth and likely wouldn't be accepted in her next scheduled reporting date, Nov. 29. "They don't take breast-feeders," Marsh said of the jailers.

Noe filed a motion asking Marsh to release Freeman.   Marsh agreed and ordered Freeman released.

November 5, 2010 in Prisons and prisoners, Who Sentences? | Permalink | Comments (3) | TrackBack

November 4, 2010

Off to DC to participate in ABA's "Sentencing & Reentry Institute and Criminal Justice Legal Educators Colloquium"

I am closing out a exciting (but really long) week by heading inside the Beltway this evening in order to attend and participate all day tomorrow in the the American Bar Association's "Third Annual Sentencing & Reentry Institute and Criminal Justice Legal Educators Colloquium."  All the details of this amazing event can be found in this brochure, and I am hoping to learn some blog-worthy stuff while in DC.

Because I have never been very good at that whole live-blogging thing, I doubt I will have many posts about the conference until the weekend. But I am expecting to have some new insights on how the new post-election political landscape might impact directly sentencing law, policy and practice in the months ahead.

November 4, 2010 in On blogging, Who Sentences? | Permalink | Comments (3) | TrackBack

Why pot legalization fans are likely to try again in 2012

This new piece from the Los Angeles Times, which is headlined "Despite rejecting Prop. 19, Californians lean toward legalizing marijuana, poll finds," highlights why the marijuana legalization debate is not likely to stop in California anytime soon. Here is how the piece begins:

California voters rejected Prop. 19, but a post-election poll found that they still lean toward legalizing marijuana for recreational use and, if young voters had turned out as heavily on Tuesday as they do for presidential elections, the result would have been a close call.

The survey, conducted by the polling firm Greenberg Quinlan Rosner, suggests that California voters had qualms with this initiative, but remain open to the idea. A majority, 52%, said marijuana laws, like alcohol prohibition, do more harm than good.

“There’s a fair amount of latent support for legalization in California,” said Anna Greenberg, the firm’s senior vice president. “It is our view, looking at this research, that if indeed legalization goes on ballot in 2012 in California, that it is poised to win.”

Voters think marijuana should be legalized, 49% to 41%, with 10% uncertain, the poll found, but were evenly split over whether they thought it was inevitable in California.

“The question about legalizing marijuana is no longer when, it’s no longer whether, it’s how,” said Ethan Nadelmann, the executive director of the Drug Policy Alliance. “There’s a really strong body of people who will be ready to pull the lever in the future.

November 4, 2010 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Eleventh Circuit to review en banc notable pro-defendant habeas ruling in Gilbert

As reported in this prior post, which I titled "Eleventh Circuit gives the 'Great Writ' some notable life," back in June a panel handed down a notable federal habeas ruling in Gilbert v. US, No. 09-12513 (11th Cir. June 21, 2010) (available here).  Thanks to a number of helpful readers, I just learned of this order coming from the Circuit ordering that the panel's ruling be vacated and that the matter be considered en banc by the entire Eleventh Circuit.

November 4, 2010 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

"Memory and Punishment"

The title of this post is the title of this interesting looking new piece from O. Carter Snead that is now available via SSRN. Here is the abstract:

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law.  Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role.  Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice.

For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered — by the offender, by the sentencing authority, and by the broader community.  Because this is so, new neurobiological techniques to modify memory — including interventions to erase some or all memory, to dampen the emotional/affective content of memory, and to enhance the duration and intensity of memory — pose, in principle, special challenges for the just and effective distribution of punishment.  This article identifies and analyzes the substance and contours of these challenges. It is meant to prepare the necessary groundwork for future scholarship on how the law, as enacted, enforced, and interpreted, should respond (if at all) to such concerns.

November 4, 2010 in Purposes of Punishment and Sentencing, Recommended reading, Victims' Rights At Sentencing | Permalink | Comments (1) | TrackBack

Looking closely at the tougher sentences approved by Oregon voters in Measure 73

As detailed in this local commentary, which is headlined "Aftermath of Measure 73: Voters tell state to sober up on DUII," the citizens of Oregon used direct democracy to get tougher on drunk drivers and sex offenders.  Here are the details and some spin:

Oregon voters just passed another crime measure the state can't afford. That leaves the Legislature with two choices: Suspend this crime measure like the last one, or adapt to it.

Adapting is the only defensible choice.  In fact, Measure 73 may force the state to get smarter about impaired driving on the first arrest, rather than waiting for multiple arrests or fatalities to acknowledge problems with drug addiction, alcoholism and public safety.

Actually, let's talk in more human terms.  At least seven people died in apparent DUII crashes in Oregon during a three-week stretch in September.  Two teenagers struck dead in a Salem crosswalk.  Two grandparents hit in Klamath Falls. Two passengers killed near Florence. One driver dead in the Molalla River.  Seven lives ended, and for what? "If those were seven murders in 21 days, we would be outraged," says assistant attorney general Deena Ryerson, who specializes in drunken-driving cases for the state Department of Justice.

Voters warmly embraced Measure 73 in Tuesday's election, giving it an approval rating of 57 percent.  The citizen initiative is a classic populist concoction of tougher penalties for society's least sympathetic characters -- sex offenders and repeat drunken drivers.  Its passage was a sure thing from the moment it qualified for the ballot.

Surprisingly, the tougher penalties for sex offenders won't cost much money, since Oregon already locks up many of its worst offenders for life. The costly part is the provision requiring 90-day jail sentences for drunken drivers on their third DUII conviction.  Because of state sentencing guidelines for felonies, that 90-day sentence can turn into 13 months behind bars, according to the Oregon Criminal Justice Commission.

"One thing to figure out is where to put those people," says Multnomah County Circuit Judge Eric Bloch, a leading voice on county DUII policy. Bloch worries the new measure (not to mention the state budget crisis) could undermine the success of the county's voluntary supervision program for repeat offenders, which lets judges use rewards and sanctions to force people to face their addictions....

Fortunately, Measure 73 isn't just an unfunded mandate.  It's also a call to action.  Several counties, including Multnomah, are finding earlier and more reliable ways to sort the chronic impaired drivers from those who are scared straight by their first DUII arrest.  That allows judges to zero in on drivers who pose a greater public safety threat -- whether because of indifference, addiction or both....

What's more, state lawmakers can use the next session to tweak the state's DUII laws in a few low-cost ways.  For example, they can tighten up the state's ignition interlock laws, which look tough on paper but fall apart in real life.  Since the cost of the interlock is paid mostly by drivers, it's an affordable way for Oregon to make the roads safer -- and it helps offenders in areas without adequate public transit get to work.

During the campaign, initiative sponsor Kevin Mannix expressed his frustration at the Legislature for refusing to take drunken driving more seriously.  Lawmakers often flinch at sanctions that might inconvenience the proverbial average drinker, upset the beverage lobby or require more than a couple days of jail for the first few arrests. "This measure," Mannix said in September, "is meant to wake folks up on drunk driving."

I hope he's right.  Set aside the wisdom of passing unfunded mandates during a budget crisis.  Remember those seven deaths in September, and ask what Oregon has to lose by trying something different.

Regular readers know that I have long be urging sentencing law and policy to "wake folks up on drunk driving," so I am pleased that Oregonians have made this chnage on their own. A mere 90 days as a mandataory jail term for the third drunk driving offense is the kind of measured mandatory minimum sentence I think should serve public policy and public safety well.

November 4, 2010 in Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

November 3, 2010

What death penalty tea leaves might be read from the 2010 election cycle?

This local story from about a state race impacted by the high-profile capital case, which is titled "Death Penalty Politics Weigh on Connecticut Election," has me thinking out loud in this space about what the 2010 might mean in terms of death penalty law, policy and politics. 

One simple (and perhaps accurate) analysis might be to say that having more statehouses and more of Congress in the hands of Republicans will mean more politicians actively supporting the imposition of death sentences and seeking to speeding the path of those on death row to the execution chamber.  And yet, no intricate and dynamic story of law and policy that has so many motivated and involved non-elected players (i.e., defense lawyers and many judges) is ever fully captured via a simple analysis.

Indeed, death penalty opponents might find a silver lining in the the outcomes of races in California for Governor and Attorney General, two big races in which death penalty issues were raised and in which candidates with anti-death-penalty histories performed strongly.  (I believe the AG race will be going to a recount.)  Relatedly, Maryland re-elected an avowed abolitionist as its Governor, and Ohio voted out an incumbent Governor and AG who were extra tough on the death penalty and helped my Ohio the Texas of the north (though I doubt their replacements plan to take the state's foot off the execution pedal).

So, dear readers, do you think the death penalty continues a post-Baze comeback as a result of yesterday's election, or are there much bigger forces than just a mid-term now actively shaping the distinctly American modern capital punishment legal and policy story?

November 3, 2010 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (14) | TrackBack

Ninth Circuit adopts invented exception to victims' right to restitution

A helpful reader altered me to an interesting little unanimous panel opinion from the Ninth Circuit today in US v. Lazarenko, No. 08-10185 (9th Cir. Nov. 3, 2010) (available here).  Here is how the opinion starts:

Defendant Pavel Ivanovich Lazarenko, former Prime Minister of Ukraine, was convicted of money laundering and conspiracy to commit money laundering.  See United States v. Lazarenko, 564 F.3d 1026 (9th Cir.), cert. denied, 130 S. Ct. 491 (2009).  In this appeal, Lazarenko challenges the district court’s order of restitution of more than $19 million to his co-conspirator, Peter Kiritchenko.  We hold that, in the absence of exceptional circumstances, a co-conspirator cannot recover restitution.  Because no exceptional circumstances exist here, we reverse and vacate the order of restitution.

This Lazarenko ruling acknowledges that it is making up law here when the plain text clearly does not exclude certain types of victims from the right to obtain restitution:

[Applicable victim restitution statutes set forth a] definition [that] looks only to whether the person was harmed; it does not consider whether the person also was a co-conspirator. Under the plain text of the MVRA and VWPA, therefore, co-conspirators have just as much right to restitution as do innocent victims.

But courts have recognized that Congress could not have intended that result.  Otherwise, the federal courts would be involved in redistributing funds among wholly guilty co-conspirators, where one or more co-conspirators may have cheated their comrades. Indeed, the Second Circuit has held that an order of restitution from one co-conspirator to another was “an error so fundamental and so adversely reflecting on the public reputation of the judicial proceedings that we may, and do, deal with it sua sponte.” United States v. Reifler, 446 F.3d 65, 127 (2d Cir. 2006); see also United States v. Weir, 861 F.2d 542, 546 (9th Cir. 1988) (suggesting that it would be improper to consider a participant to a crime as a victim of the crime for purposes of restitution).  In other words, because a literal application of the plain text leads to absurd results, the plain text does not control.

We agree with the Second Circuit that, as a general rule, an order of restitution to a co-conspirator is a “fundamental” error that “adversely reflect[s] on the public reputation of the judicial proceedings.” Reifler, 446 F.3d at 127. Indeed, we suggested the same in Weir, 861 F.2d at 546. Only in exceptional circumstances would Congress have intended that a coconspirator to a crime be entitled to restitution.

I wonder if all committed textualists (including some on the Supreme Court), as well as all those committed to broad interpretations of victim rights, fully concur with the Ninth Circuit's decision in Lazarenko to invent an exception (with its own exception circumstances exception) to the plain term of the federal statutes providing for victim restitution. 

To me, it is not obviously absurd that a federal offender's punishment should include a requirement of restitution to all victims financially harmed even if those victims are co-consiprators.  Indeed, the rule adoped here would seem to give major fraudsters a tangible incentive to seek to co-opt their biggest victims into their frauds if/when they start fearing apprehension so as to reduce the risk of owing those victims restitution if/when convicted.

November 3, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Seeking the best pitches (and pitchers) for the start of clemency season

The election season of 2010 is official over, and we probably have at least a few weeks before the start of the 2012 season start.  That fact alone, plus the coming holidays and the lame duck status of many Governors in many states, all adds up to make today officially the start of clemency season.  And, with the political conditions right, I hope readers might spotlight some of the best clemency pitches (and pitchers) as the season gets revved up.

November 3, 2010 in Clemency and Pardons, Who Sentences? | Permalink | Comments (4) | TrackBack

Proposition 19 losing based on early reporting of precincts ... and ultimately falls short

This CNN page seems to be providing the most up-to-date information about voting on California's marijuana legalization proposition.  And, as of this writing, the Proposition is losing 56% to 44% with about one sixth of all precincts reporting results.  I suspect this margin will remain as all the votes come in, and I will provide an update in the morning.

UPDATE:  With 89 precinct reporting as of 6am EDT, the break-down is now 54% to 46% against Proposition 19.  This relatively close, but still negative, outcome will surely produce some interesting spin by both sides.  And the very interesting follow-up question, now that the proposition has been narrowly defeated, becomes whether a variation on Prop 19 gets on the 2012 ballot in California (and perhaps elsewhere).

More generally, the relatively low turnout of younger voters this cycle seems to have contributed to a tough election season for all pot initiatives.  In Oregon and South Dakota, medical marijuana ballot measures have lost, and the outcome in Arizona looks to be trending the same way (though the yes side is only a few thousand votes behind with over 1.3 million votes cast).

November 3, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (24) | TrackBack

November 2, 2010

Seeking ground reports on the FSA's application to not-yet-sentenced cases

To my knowledge and as of this writing, the opinion by US District Judge D. Brock Hornby last week in US v. Douglas, No. 09-202-P-H (D. Maine Oct. 27, 2010) (available here), is the only written district court decision expressly holding that a defendant guilty of committing a crack offense before the Fair Sentencing Act became law in August 2010, but "not yet sentenced on November 1, 2010, is to be sentenced under the amended Guidelines[] and the Fair Sentencing Act's altered mandatory minimums ... "  I did hear today from a federal public defender, however, that a district judge in the District of Massachusetts formally adopted Judge Hornby's opinion in a similar case in his court.

I assume that this issue is arising in federal district courts around the nation, and I would be grateful if any and all folks "in the know" would consider using the comments to report on what it going on in various districts.   Regular readers may recall that, as I sought to explained in this amicus letter  submitted in a pending case in the Southern District of New York, I believe that a fair reading of congressional intent and statutory construction principles call for the FSA to apply to pending cases as soon as possible.  But the Justice Department apparently does not agree with my reading of congressional intent (see my lament here), and perhaps other district judges see this differently as well.

Happily, I have been granted some argument time in the case before SDNY District Judge Kenneth Karas in which I submitted this amicus letter on this issue.  The argument is scheduled for December 8, and I will report further on the matter as events develop (to the extent reasonably permitted by blogging/lawyering ethical norms).

November 2, 2010 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

When will the US Sentencing Commission's (now overdue?) mandatory minimum report come out?

As noted in this recent post, in October 2009, Congress directed the US Sentencing Commission to undertake a comprehensive review of mandatory minimum sentencing penalties and to report its findings and recommendations to Congress within a year.  I had marked the end of October 2010 as the time when this report was due, but the report has not yet been released and I have heard a rumor that the USSC got some sort of (secret?) extension on its deadline.

I am actually glad the USSC report on mandatory minimum has not come out yet; this week all the news is justifiably focused on today's election and its likely aftermath.  That said, I really would like to know when the US Sentencing Commission plans to release this important report.  (I would also like to know how and from whom the USSC got an extension, but that's not really a big deal if the report is still coming soon.) 

For various reasons, I think the coming lame duck period of Congress might be an especially good time for some needed reforms of some of the worst aspects of existing federal mandatory minimum sentencing provisions (such as, for example, the stacking of 924(c) mandatory minimums).  But it strike me as wise for Congress to await the USSC's forthcoming report before doing much on this front. 

Thus, I hope this (overdue?) USSC report on federal mandatory minimum sentencing provision is going to be coming out in the not too distant future.  I also hope that any readers in the know about this matter will use the comments to report (perhaps anonymously) on just what is now going on in this arena.

November 2, 2010 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

"Lincecum’s Endorsement Potential Clouded by Past Marijuana Use"

The title of this post is the headline of this new entry over at a Forbes blog.  Spotlighting parts of this Forbes post strikes me as a fitting way to simultaneously congratulate the new World Series champions and to pass the time until we get voting results late tonight from California on Proposition 19:

What a difference a year makes, but will companies bank their franchise on ‘The Franchise’ in light of his past illicit behavior?

On October 30th, 2009, San Francisco Giants pitching ace Tim Lincecum was pulled over for speeding in the state of Washington and subsequently handed over 3.3 grams of marijuana found in his car.  He was arrested on misdemeanor marijuana possession and paraphernalia use charges, though his attorney negotiated the dismissal of the pot charge and the reduction of the paraphernalia charge to a civil infraction.

On November 1st, 2010, Mr. Lincecum finds himself perhaps the most visible of many heroes from the Giants first World Series Champion since 1954 when they played in NY.

Mr. Lincecum earned the win in Games 1 and 5 of the World Series, beating the impressive Cliff Lee on both occasions. He split a pair of games with Philadelphia’s ace Roy Halladay in the NLCS, and he was flat out sick in a complete game, 14 strikeout 2 hit Game 1 performance in the NLDS against the Atlanta Braves. All on the heels of winning the National League Cy Young Award in consecutive years in 2008 and 2009....

Combine this with his youthful demeanor and charm, and you would think we have the makings of the next endorsement wunderkind. But not unlike how the Michael Phelps bong pictures which appeared soon after the 2008 Olympics may have dampened corporate enthusiasm to work with the swimming champion to some extent, Mr. Lincecum’s October 2009 incident in Washington may impact how quickly companies line up to sign him as a corporate endorser.

November 2, 2010 in Drug Offense Sentencing | Permalink | Comments (0) | TrackBack

"UK group says it's suing over US execution drug"

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

A group opposed to the death penalty filed suit Tuesday to try to prevent a British company from exporting a drug that could be used in the execution of an American inmate.

Reprieve, a London-based rights group, and the London law firm Leigh Day & Co. are suing in the hope of forcing the government to regulate the export of sodium thiopental. The sedative, which is part of the three-drug cocktail used in lethal injections in the U.S., was scheduled to be exported from Britain to Tennessee imminently, Reprieve said.

The group warned that sodium thiopental would be used in the execution of 56-year-old Edmund Zagorski, who has been convicted of committing two murders in 1983.  The Department for Business Innovation and Skills has declined to block the export of the drug. "We can stop the export of these drugs," Reprieve Director Clive Stafford Smith said at a news conference. "But the (UK government) is dedicated to inaction."

I find amusing the British complaint that the UK government "is dedicated to inaction" on a day in which many American voters are going to the polls to vote for candidates who ran on the promise that they will make sure US governments are less active.

November 2, 2010 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack