« January 24, 2010 - January 30, 2010 | Main | February 7, 2010 - February 13, 2010 »

February 6, 2010

Another justified complaint about the pace of Obama judicial nominations

At Slate, Doug Kendall has this new commentary, headlined "Fill the Bench Now: Now is the time for Obama to move on judicial nominations," which take President Obama to task for the slow pace of his judicial nominations. Here are excerpts:

By February 2002, President George W. Bush had nominated 89 judges to the lower federal courts. This week, Senate Judiciary Chairman Patrick Leahy prodded President Obama, who has nominated just 42 federal judges to date, to "get up names as quickly as possible."  President Obama promised to make this "a priority."  He'd better.

There are currently 102 vacancies on the federal bench. Of these, 31 constitute "judicial emergencies"— vacancies that have severely threatened a court's ability to handle its workload. Before the end of the year, there will be dozens of additional openings on the lower courts (20 have already been announced) and, in all likelihood, one and perhaps even two Supreme Court vacancies to fill....

Obama has a difficult road ahead partly because of his failure to act swiftly on nominations during his first year in office.  In 2009, Obama nominated 33 judges to the district and circuit courts, and the Senate confirmed 12.  These numbers are, in a word, pathetic.  New obstructionist tactics by Senate Republicans are partially to blame.  But Obama deserves some blame, too; the paucity of nominees made it hard to scream too loudly about the lack of confirmations....

All told, a shaky first-year performance.  Now is the time to turn things around.  Quickly.  The Clinton administration also started slowly on judicial nominations, facing tough politics on confirmation in 1994.  Clinton picked up the pace of nominations, confirmed 98 lower court judges and a Supreme Court justice, and cut by two-thirds the number of vacancies that amounted to judicial emergencies. This is the model.

The White House has made changes in its judicial nominations team, starting at the top with the installation of a new White House counsel, Bob Bauer. Bauer will oversee and coordinate judicial nominations in an administration that has more assembled expertise on judicial nomination and confirmation issues than any in history.  His job is to marshal this talent efficiently and to keep the nomination train running on time, which apparently proved impossible once his predecessor Gregory Craig started to lose his grip on the White House counsel job.

Some related new and old posts:

February 6, 2010 in Who Sentences? | Permalink | Comments (14) | TrackBack

February 5, 2010

"The Undiscovered Country: Execution Competency & Comprehending Death"

The title of this post is the title of this new piece by Jeffrey L. Kirchmeier now available on SRRN. Here is the abstract:

The United States Supreme Court has not created a clear Eighth Amendment standard to determine whether or not a capital defendant is competent to be executed. Justice Thomas best summarized the confusion about the Court’s jurisprudence in this area when he criticized the 2007 majority’s opinion in Panetti v. Quarterman as “a half-baked holding.”

This Article addresses one execution competency issue that has been left open by the Court: the question of to what extent a mentally ill capital defendant must understand the concept of death.  In other words, to be competent to be executed, must a mentally ill defendant comprehend that execution means the end of one’s physical life?

This Article considers the historical development of the ban on executing the insane, a ban with a murky history that has been passed down from medieval times and through Blackstone and English common law to modern day international law.  Because of a long historical pedigree, the Supreme Court essentially accepted the ban as a constitutional given in 1986.

The justifications for the ban, however, need to be the foundation for fashioning a standard out of the Court’s opinions.  The Article examines the Supreme Court precedent regarding the ban, statutory definitions of competency, and the other court decisions that have begun to consider whether or not there should be a requirement that a mentally ill defendant can comprehend the end of life to be competent.  The Article examines the policies behind the ban, and it uses them to conclude that the history and precedent require a death comprehension standard.  The Article proposes a standard that is consistent with the historical underpinnings of the ban on executing the insane and that is consistent with Supreme Court precedent.

February 5, 2010 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Third Circuit rejects lifetime limit on internet use as supervise release condition

A Third Circuit panel has again struck down as substantively unreasonable a supervised release condition putting a lifetime limit on internet use. The opinion in US v. Miller, No. 08-4278 (3d Cir. Feb. 5, 2010) (available here), gets started this way:

Appellant Donald R. Miller was sentenced to thirty months’ imprisonment and a lifetime term of supervised release following his conviction for possession of child pornography and possession of marijuana.  The District Court imposed eight special conditions of supervised release, including a restriction on internet access, mandatory computer monitoring, and a limitation on association with minors.  On appeal, Miller challenges the duration of his term of supervised release and four of the eight special conditions.  We agree with Miller that the lifetime limitation on internet use is a greater restraint of liberty than is reasonably necessary and that the restriction on his association with minors is overbroad.  Accordingly, we will vacate and remand to the District Court for further proceedings consistent with this opinion.

February 5, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Should Ohio Supreme Court start scheduling more than one execution per month?

As detailed in this prior post, Ohio's public public defender last summer complained about the state's quickened pace of scheduled executions.  But, as detailed in this new AP report, which is headlined "Ohio Supreme Court considers 5 new execution dates," it would seem that the Ohio Supreme Court's tendency to schedule only one execution per month is setting a pace that is too slow, not too fast.  As that AP report notes, Ohio already has executions scheduled, at a pace of one per month, through September 2010.  Unless the Ohio Supreme Court is willing to scheduled executions more frequently, the latest round of execution requests could have the state's death chamber "all booked up" well into 2011.

Significantly, Ohio has over 175 murderers currently on the state's death row.  This means that, even at a steady pace of one execution per month, the state would not be able to carry out the lawfully impose sentence on all of its condemned killers until about 2025.  Perhaps the condemned Ohio killer that gets to be last in the cue is glad that it may take 15 or more years until Ohio prosecutors can get a "reservation" for carrying out his death sentence, but I doubt that families of murder victims should be too content with the pace of capital justice in Ohio.

Especially now that Ohio has successfully transitioned to a one-drug lethal injection protocol and also given that even the state's Democratic leadership seems content and even pleased with the operation of the state's system of capital justice, perhaps the Ohio Supreme Court will consider setting more that one execution date per month.  At the very least, I hope those Ohio prosecutors who helped secure death sentences are will to help the Ohio Supreme Court appreciate the issues that can arise if the execution pace is not increased.

Some recent related posts:

UPDATE:  This new AP article, which is headlined "Ohio could set state record for lethal injections," discusses Ohio's notable execution pace.

February 5, 2010 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (16) | TrackBack

Michigan court says state sex offender registration law does not apply to homeless

As detailed in this local article, which is headlined "Michigan appeals court: Homeless sex offenders don't have to register," a new opinion about sex offender resigration requirements is causing a stir in Michigan. Here are the basic details:

The Michigan Court of Appeals has ruled that homeless sex criminals don’t have to comply with Michigan’s Sex Offender Registry Act. Many law enforcement officials — who often have to deal with sex offenders who claim they have no permanent residence — aren’t happy with the ruling.

In a published opinion released Tuesday that sets a statewide precedent, a three-judge panel unanimously upheld a trial court’s dismissal of charges against a homeless Ingham County man for failing to register, failing to comply with reporting duties and failing to pay registration fees.

The appeals judges ruled that it’s impossible for a homeless person to comply with the law, which requires convicted sex criminals to report their “domicile or residence” to police. The judges concluded that a homeless sex offender, by definition, has neither.

The judges’ opinion bluntly urges state lawmakers to fix the law. “The Legislature is free, indeed, empowered, to ... include a provision addressing reporting requirements for the homeless,” said the opinion signed by judges Jane M. Beckering, Jane E. Markey and Stephen L. Borrello.  “The purpose of (the Sex Offender Registry Act) is wise, and the Legislature is urged to consider changes so that a homeless person who does not have a domicile or residence may readily comply with its requirements,” the judges wrote.

The ruling in People v. Dowdy is available at this link.

February 5, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

February 4, 2010

Time to dust off (and double the size of?) the usual SCOTUS short lists

This new ABC News piece, which is titled "White House Prepares for Possibility of 2 Supreme Court Vacancies," suggests that speculations about SCOTUS short lists might need to go into double-time. Here are the basics from the piece:

Lawyers for President Obama have been working behind the scenes to prepare for the possibility of one, and maybe two Supreme Court vacancies this spring.

Court watchers believe two of the more liberal members of the court, justices John Paul Stevens and Ruth Bader Ginsburg, could decide to step aside for reasons of age and health.  That would give the president his second and third chance to shape his legacy on the Supreme Court....

It is widely believed that Justice Stevens, 89, sent a strong signal of his intention to retire when he confirmed for The Associated Press last fall that he hadn't hired a full complement of clerks for next term.  The justice has been coy with the press, telling USA Today's Joan Biskupic that he was surprised by the media frenzy regarding his potential retirement.  "That can't be news" he said, declining to reveal his plans. "I'm not exactly a kid."

Justice Ginsburg, 76, announced a year ago that she had undergone surgery for early stage pancreatic cancer.  Sources close to Ginsburg dismissed retirement speculation, pointing out that she has been a lively and active participant in oral arguments this term and has on several occasions expressed an interest in serving for more years to come.

I have been assuming for some time that this year is likely to bring a close to Justice Stevens' remarkable tenure as an Associate Justice of the Supreme Court, but I also was inclined to assume that Justice Ginsburg would stay on as long as her health permitted.  I am not sure this new report changes my gut assumptions, but it does raise the specter of an extraordinary SCOTUS-nomination-focused summer.  And, to celebrate the possibilities, here are some of my "classic" short-list posts from earlier SCOTUS transition periods:

February 4, 2010 in Who Sentences? | Permalink | Comments (9) | TrackBack

"The Racial Geography of the Federal Death Penalty"

The title of this post is the title of this notable new piece about the federal death penalty now available via SSRN. Here is the abstract:

Scholars have devoted substantial attention to both the over-representation of African-Americans on federal death row and the disproportionate number of federal defendants charged capitally for the murder of white victims.  This attention has not provided an adequate explanation for (much less resolution of) these disquieting racial disparities.  Little research has addressed the unusual geography of the federal death penalty, in which a small number of jurisdictions are responsible for the vast majority of federal death sentences.  By addressing the unique geography, we identify a possible explanation for the racial distortions in the federal death penalty: that federal death sentences occur disproportionately where the expansion of the venire from the county to the district level has a dramatic demographic impact on the racial make-up of the jury.  This inquiry demonstrates that the conversation concerning who should make up the jury of twelve neighbors and peers - a discussion begun well before the founding of our Constitution — continues to have relevance today.

After documenting both the historical and racial relationships between place and the ability to seat an impartial jury, and the unique impact demographic shifts in the jury pool have on death penalty decision making, we propose three possible solutions: 1) A simple, democracy-enhancing fix: a return to the historical conception of the county as the place of vicinage in federal capital trials; 2) A Batson type three-step process for rooting out the influence of race on the decision to prosecute federally; 3) Voluntary measures by the Attorney General to mask demographic and location identifiers when deciding whether to provide federal death-authorization.  We explain why a return to county-level jury pools in federal capital cases (whether through statutory construction, legislative change, or through the authority of an fair-minded Attorney General) prospectively limits the impact of race on the operation of the federal death penalty, without establishing the intractability of the federal death penalty as a whole.  Finally, we observe that any effort to study the federal death penalty cannot merely address those federal cases in which the Attorney General has considered whether to approve an effort to seek the death penalty, but must also include an assessment of the cases prosecuted in state court that could be prosecuted federally and the prosecutorial decision concerning when and whether to prosecute in federal court.

February 4, 2010 in Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (8) | TrackBack

Noting big (and wasteful?) budget growth in federal prison spending

Following up on an issue I spotlighted in this recent post (which has generated lots of interesting comments), today this article in USA Today takes a look at the Justice Department's proposed 2011 budget numbers. This piece is headlined "2011 budget gives federal prisons $528M," and here are some highlights:

As states cut their budgets by closing prisons and diverting some offenders to probation and treatment programs, the federal government is proposing to dramatically ramp up its detention operations.

The Obama administration's $3.8 trillion 2011 budget proposal calls for a $527.5 million infusion for the federal Bureau of Prisons and judicial security — $227 million more than the proposed increase to Justice's national security program. The boost would bring the total Bureau of Prisons budget to $6.8 billion.

Nearly half of the new funding is proposed to accommodate the administration's plan to close the military detention facility at Guantanamo Bay and move some of the terror suspects to an Illinois prison. The Justice Department also projects that federal prisons, which now hold 213,000 offenders, will hold 7,000 more by 2011.

Also included in the Justice budget is a proposal to hire 652 additional prison guards and fill 1,200 vacant detention positions, far more than the combined 448 new agents planned for the FBI, Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives, and U.S. Marshals Service.

Assistant Attorney General Lee Lofthus says the increased prison system funding does not reflect a de-emphasis of national security, only that the Bureau of Prisons "needs the bed space."...

The federal spending plan contrasts with the criminal justice strategies pursued in many cash-strapped states, including California, Kansas and Kentucky, where officials have closed prisons or allowed for the early release of some non-violent offenders. In Kansas, for example, state officials last year closed three prisons and reduced the number of probation violators sent to prison to reduce detention costs.

Marc Mauer, executive director of the Sentencing Project, which advocates alternatives to incarceration, says states have a "greater sense of urgency" to change policy because of their obligations to balance budgets. "That sense of urgency isn't there at the federal level," Mauer says. "Prison expansion slows the momentum for the reconsideration of some of those policies."

I hope we might hear the usual suspects who usually complain most loudly about excessive federal spending will speak out about the continued (and wasteful?) growth of the federal criminal justice and prison system.  I fear, however, that prison spending tends to be an arena in which many persons who are usually advocates for limited government spending become quite willing to endorse the continued growth of big government.

Some recent related posts:

February 4, 2010 in Criminal justice in the Obama Administration, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (6) | TrackBack

Ohio completes third successful one-drug lethal injection

As detailed in this local Columbus Dispatch story, which is headlined "Convenience-store killer executed by lethal injection," the Buckeye state has now completed three "uneventful" executions using its new one-drug execution protocol.  Here is how the article starts:

After 16 years of litigation capped by a last-minute flurry of appeals in four courts, Mark Brown was executed this morning for gunning down a Youngstown store owner and an employee in Youngstown market.

Brown, 37, was declared dead at 10:49 a.m. at the Southern Ohio Correctional Facility near Lucasville. Brown had no last words.  He was the third person put to death in the nation using Ohio's one-drug lethal injection process.  The chemical started flowing at 10:40 a.m. At 10:41 Brown closed his eyes and yawned.  He was silent and there was movement after that.

After the execution, Terri Rasul, sister of victim Isam Salman, said, "As sad as this may be, justice has been served.  I hope this is a lesson learned by young people today to not do what Mark Brown did to my brother."

Some recent related posts:

February 4, 2010 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (8) | TrackBack

"Justice Kennedy laments the state of prisons in California, U.S."

The title of this post is the headline of this notable article in today's Los Angeles Times. Here is how the piece starts:

U.S. Supreme Court Justice Anthony M. Kennedy criticized California sentencing policies and crowded prisons Wednesday night, calling the influence that unionized prison guards had in passing the three-strikes law "sick."

In an otherwise courtly and humorous address to the Los Angeles legal community, Kennedy expressed obvious dismay over the state of corrections and rehabilitation in the country.  He said U.S. sentences are eight times longer than those issued by European courts.

"California now has 185,000 people in prison at $32,500 a year" each, he said.  He then urged voters and officials to compare that expense to what taxpayers spend per pupil in elementary schools.  "The three-strikes law sponsor is the correctional officers' union and that is sick!" Kennedy said of the measure mandating life sentences for third-time criminal offenders.

Justice Kennedy famously spoke out against US punishment and sentencing realities in a 2003 speech to the ABA, and I am pleased that he is continuing to express his concerns about modern American practices.  I also cannot help but wonder whether these issues are uniquely on Justice Kennedy's mind because of all the significant sentencing cases before the Supreme Court this term.

February 4, 2010 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (16) | TrackBack

February 3, 2010

Notable student note on loss calculations under the federal guidelines

Anyone working on white-collar sentencing issues in the federal system will want to check out this new student note in the Duke Law Review, which is titled "Losing the Loss Calculation: Toward a More Just Sentencing Regime in White-Collar Criminal Cases."  Here is the Note's abstract:

The sentencing regime that governs white-collar criminal cases requires reform. The U.S. Sentencing Guidelines recommend sentences that are generally too high and place a grossly disproportionate emphasis on the concept of “loss” — the dollar value of the harm that a court finds a white-collar criminal to have caused.  This concept of loss is ill defined, and often artificial to the point of being arbitrary.  Moreover, the loss calculation fails to adequately approximate a defendant’s culpability, dwarfing traditionally relevant considerations such as the manner in which the defendant committed the crime and the defendant’s motive for doing so.

Fortunately, the Supreme Court has recently opened the door to systemic reform. In Kimbrough v. United States, the Supreme Court held that — at least in certain circumstances — a sentencing judge may deviate from a Guidelines recommendation based purely on policy disagreement with that guideline.  This Note argues that sentencing judges should adopt an aggressive interpretation of the Supreme Court’s Kimbrough opinion and exercise their newly rediscovered discretion to deemphasize the loss calculation and restore rationality to the sentencing of white-collar criminals.

February 3, 2010 in Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (6) | TrackBack

Notable student note on preserving sentencing objections after Booker

Anyone who struggles to make sense of sound sentencing procedures after Booker will want to check out this new student note in the Vanderbilt Law Review, which is titled "'Objection: Your Honor Is Being Unreasonable!' — Law and Policy Opposing the Federal Sentencing Order Objection Requirement."  Here is a section of the Note's introduction:

This Note argues that the requirement to object to a judge’s sentencing order should be abolished for two fundamental reasons.  First, the policy arguments against the requirement are stronger: requiring objections (1) promotes frivolous redundancy, (2) creates a procedural pitfall which could result in unfairly higher sentences, (3) works against judicial economy by leading to collateral claims of ineffective assistance of counsel, and (4) is ultimately unnecessary because prevailing parties already have incentive to perfect the record themselves.  Second, and more importantly, the sentencing order objection requirement contradicts Federal Criminal Rules of Procedure 51(a) and (b), the provisions governing the preservation of claimed error.

February 3, 2010 in Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

The low-hanging fruit and long sentencing options of § 922(g)

The Fourth Circuit has an interesting sentencing decison today in US v. Wright, No. 08-4679 (4th Cir. Feb. 3, 2010) (available here).  First, consider the panel's description of the defendant's crime:

Jeremy Wright sprayed twenty-two rounds from an AK-47 assault rifle into a crowded night club parking lot, killing a man sleeping in a car with a single bullet to the head.  Wright fired his rifle until he ran out of ammunition even though there were some two or three hundred people at the club, many of whom were pouring outdoors as the result of a fight that Wright had just instigated with rival gang members.  In addition to the man he killed, Wright also wounded a club patron in the course of his rampage.

Now, guess Wright's crime of conviction in federal court (hint: it is not murder, but it did lead to a sentence of life imprisonment).  Astute readers will know the answer from the title of this post or from this account of the sentencing issues raised an rejected in Wright:

On appeal, Wright raises three challenges to his sentence. He first argues that the use of his juvenile adjudications as predicate crimes under the ACCA violates the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), because South Carolina family courts do not employ juries.  Second, Wright claims that the burglaries he committed as a juvenile do not qualify as violent felonies under the ACCA because he did not "carry" firearms merely by stealing them. Finally, Wright asserts that the district court improperly referenced the sentencing guideline for first degree murder when it sentenced him.  We consider each of these arguments in turn.

February 3, 2010 in Almendarez-Torres and the prior conviction exception, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (2) | TrackBack

Interesting coverage of "The Great American Crime Drop"

The folks at The Crime Report have this terrific two-part series exploring the recent reduction in crime rates in the United States:

February 3, 2010 in Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Effective NY Times coverage of child porn restitution debate

Regular readers know that one issue (of many) roiling the federal courts is whether and how to order restitution as part of the punishment in child porn downloading cases.  This new piece by John Schwartz in the New York Times, which is headlined "Pornography, and an Issue of Restitution," covers this issue effectively. Here are excerpts:

When Amy was a little girl, her uncle made her famous in the worst way: as a star in the netherworld of child pornography.  Photographs and videos known as “the Misty series” depicting her abuse have circulated on the Internet for more than 10 years, and often turn up in the collections of those arrested for possession of illegal images.

Now, with the help of an inventive lawyer, the young woman known as Amy — her real name has been withheld in court to prevent harassment — is fighting back.  She is demanding that everyone convicted of possessing even a single Misty image pay her damages until her total claim of $3.4 million has been met....

Amy’s uncle is now in prison, but she is regularly reminded of his abuse whenever the government notifies her that her photos have turned up in yet another prosecution. More than 800 of the notices, mandated by the Crime Victims Rights Act and sent out by the federal victim notification system, have arrived at Amy’s home since 2005.

Those notices disturb Amy when they arrive, but Mr. Marsh, looking at the same pieces of paper, saw an opportunity: he could intervene in the federal prosecutions and demand restitution.  He had Amy write a victim-impact statement and hired a psychologist to evaluate her.  Economists developed a tally of damages that included counseling, diminished wages and lawyer fees.  The total came to $3,367,854.

Mr. Marsh contends that every defendant should be ordered to pay the full amount, under the doctrine of joint and several liability.  According to that doctrine, the recipient would stop collecting money once the full damages are paid, and those held responsible for the amount could then sue others who are found culpable for contributions.  But the doctrine, which developed in civil law, does not apply as easily in criminal law, especially with an indeterminate population of defendants.

Amy’s first restitution award came in February in the Connecticut case; it involved Alan Hesketh, a British executive at the pharmaceutical giant Pfizer, who paid $130,000.  Since then, Mr. Marsh has automated the process and e-mailed Amy’s filings to United States Attorneys in 350 cases.  “I’m able to leverage the power of the Internet to get restitution for a victim of the Internet,” he said.

Mr. Marsh has, in effect, expanded his small New York law firm by hundreds of federal prosecutors. Some of them decline to file for restitution — a judge in Minnesota ordered prosecutors to explain why — but many have.  Judges’ reactions have varied, with some declining to order restitution, including one in Texas and another in Maine, usually saying that the link between possession and the harm done is too tenuous to reach the level of “proximate harm” generally required under the law for restitution.

Yet in two Florida cases, judges have ordered defendants to pay nearly the full amount requested and even more.  Many judges who have considered the issues award a few thousand dollars.  Even though many of the defendants have no way to pay even the smallest fine, Mr. Marsh’s efforts in the first year have earned $170,000 for Amy. “This is a lawyer’s dream,” he said.

The federal government has struggled with how to best approach the wave of new cases, and those to come. Another victim, known as Vicky, has begun making similar claims in court, and still more victims could come forward....

A memorandum last summer from a lawyer in the Administrative Office of the Courts, the federal agency that runs the judicial branch, stated that the law did not support restitution for “mere possession.”  But Lanny A. Breuer, the assistant attorney general for the criminal division at the Justice Department, issued a letter in October stating “we do not agree that restitution is not available to victims of the possession of child pornography as a matter of law.”

Mr. Breuer urged judges not to let “practical and administrative challenges” to the restitution issue “drive a policy position that directly or indirectly suggests that possession of child pornography is a victimless crime.”

Some related prior federal child porn prosecution and sentencing posts:

February 3, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

February 2, 2010

A "very interesting"(?) sentencing appeal in the Seventh Circuit

I tend to find most sentencing issues that produce published opinion to be at least somewhat interesting.  But this first paragraph of the panel opinion in US v. Christiansen, No. 09-1925 (7th Cir. Feb. 2, 2010) (available here), suggests that the case is much more than just "interesting":

Most sentencing appeals involve long (or at least medium length) prison terms. So, an appeal like the one in this case, involving a short four-month sentence, is fairly uncommon.  And although the four-month sentence was imposed after the district court determined that the advisory guideline range was four to ten months based on two enhancements that are now challenged on appeal, the sentence could have easily still been a four-month term (the range would have been zero to six months) without the two challenged add-ons.  Very interesting.

Readers will have to click through to the full opinion to make their own assessments of whether the Christiansen case deserves to be described as "very interesting."  This one-sentence account of the defendant's crime in the panel opinion does seem to support the extra adverb: "Melissa Christiansen was charged in a 16-count indictment with wire fraud for defrauding several people out of money and property by posing as an expectant mother willing to give her child up for adoption."

February 2, 2010 in Booker in the Circuits, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (1) | TrackBack

"Death Ineligibility and Habeas Corpus"

The title of this post is the title of this new article in the Cornell Law Review by Lee Kovasky.  Here is the enticing first paragraph of the piece:

In the last seven years, the Supreme Court has declared several categories of prisoners, such as juvenile and mentally retarded offenders, to be categorically ineligible for capital punishment under the Eighth Amendment.  If these “death ineligible” offenders nonetheless sit on death row with procedurally defective habeas corpus petitions, can the writ be used to scrutinize their capital eligibility?  In other words, may a death-ineligible offender be executed on a technicality?

February 2, 2010 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (4) | TrackBack

Ninth Circuit panel reverses "millenium bomber" sentence again

If one goal of modern terrorists is to tie up our courts with appeals and long opinions, the "millenium bomber" is proving quite successful.  Today in US v. Ressam, the Ninth Circuit has reversed his sentence again.  Here is how this latest Ressam opinion starts:

Ahmed Ressam was convicted by a jury on nine counts of criminal activity in connection with his plot to carry out an attack against the United States by detonating explosives at the Los Angeles International Airport (“LAX”) on the eve of the new Millennium, December 31, 1999. Ressam’s crimes of conviction carry an advisory Sentencing Guidelines range of 65 years to life in prison, and a statutory maximum penalty of 130 years in prison.

In 2001, following his conviction, Ressam entered into a cooperation agreement with the Government. Under the terms of the agreement, the Government was to recommend a reduction in Ressam’s sentence in exchange for his truthful and complete cooperation. Ressam provided information to law enforcement officials of the United States and of other countries concerning the organization, recruitment, and training activities of the worldwide terrorist network known as al- Qaeda. Ressam also testified against one of his coconspirators, Mokhtar Haouari. After providing assistance to the Government for approximately two years, Ressam decided to cease cooperating and began recanting his prior testimony. The district court sentenced Ressam to 22 years in prison to be followed by five years of supervised release.

Both parties appealed to this Court. Ressam challenged his conviction while the Government challenged the reasonableness of the sentence. This Court vacated Ressam’s conviction as to Count Nine, and remanded for resentencing without addressing the merits of the Government’s arguments. United States v. Ressam, 474 F.3d 597 (9th Cir. 2007). T he United States Supreme Court reversed this Court’s decision and affirmed Ressam’s conviction of Count Nine. United States v. Ressam, 128 S. Ct. 1858, 1862 (2008). Upon remand, this Court vacated the 22-year sentence, holding that the district court failed to determine the applicable Sentencing Guidelines range at the beginning of sentencing, as required by United States v. Carty, 520 F.3d 984 (9th Cir. 2008). United States v. Ressam, 538 F.3d 1166, 1167 (9th Cir. 2008).

Upon remand, the district court again imposed a sentence of 22 years in prison, followed by five years of supervised release. The Government has appealed from this decision. It contends that when the relevant § 3553(a) factors are applied to the facts of this case, the sentence imposed is insufficient to accomplish the purposes of the statute, which directs that “[t]he court shall impose a sentence sufficient but not greater than necessary” to accomplish the purposes of 18 U.S.C. § 3553(a)(2).

We vacate the sentence and remand for resentencing by a different district court judge because we conclude that the district court committed procedural error in failing to address specific, nonfrivolous arguments raised by the Government in imposing a sentence that is well below the advisory Sentencing Guidelines range.

February 2, 2010 in Booker in the Circuits | Permalink | Comments (5) | TrackBack

Might Ohio keep pace with Texas in the number of executions in 2010?

The question in the title of this post is prompted by this local news report, which is headlined "Ohio Supreme Court sets 3 new execution dates."  Here are the basics:

The Ohio Supreme Court has set three execution dates, including one for a death row inmate who says he's innocent. The rulings put the state on pace to execute a record number of inmates, with executions now scheduled monthly through September.

This DPIC page with upcoming executions shows that Ohio right now has nearly as many executions planned for 2010 as Texas.  If past is prologue, Texas will likely schedule more execution in the near future, while Ohio's Supreme Court seems content to only schedule one per month.  Thus, I still expect Texas to win the execution contest for 2010 (as they have in every other year in recent memory).

Though Ohio likely won't be able to keep up with Texas, the state's steady and heavy pace of executions for 2010 is still quite significant for many reasons.  Ohio is currently the only state using a one-drug lethal injection protocol; monthly successful executions in the state might lead other states to consider adopting Ohio's new protocol.  In addition, Ohio has all of its state-wide office holders up for election in 2010; it will be very interesting to see if Ohio's new status as the Texas of the north could become a campaign issue.

Some recent related posts:

February 2, 2010 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (5) | TrackBack

Backstory on the Gould mandatory minimum case recently taken up by SCOTUS

Gehrig A helpful readers forwarded to me this new Texas Lawyer story headlined "Gunning For a Mandatory Minimum," which provides the background and backstory concerning the Supreme Court's recent cert grant in a case involving the application of an important federal mandatory minimum statute.  Here is how the piece starts:

Carlos Rashad Gould may be the luckiest federal inmate in the state of Texas.  Few indigent prisoners have a team of expensive, big-firm civil lawyers working pro bono on their appeals, as Gould does.  Still fewer get their cases heard at the U.S. Supreme Court, as Gould learned on Jan. 25 that he would when the high court granted his petition for writ of certiorari.

Gould's cert writ in Gould v. United States stems from a 5th U.S. Circuit Court of Appeals decision that involves the most common type of case decided by that court: a defendant's appeal of a trial court's sentencing decision. [See Gould's Petition for Writ of Certiorari.]

"To have it go up on a valid cert petition and one that gets granted, Mr. Gould's case has had a pretty unusual life in the appellate courts," says David Horan, a partner in the Dallas office of Jones Day who the 5th Circuit appointed to represent Gould in 2007.

At the Supreme Court, Gould's case has been consolidated with a 3rd U.S. Circuit Court of Appeals case, Abbott v. United States.  If Gould and Kevin Abbott win at the high court, their cases could shave several years off the prison sentences of countless inmates convicted of carrying firearms in the commission of crimes of violence or drug trafficking.

The relevant statute, 18 U.S.C. §924(c)(1)(A), provides mandatory minimum sentences for defendants convicted of carrying firearms while committing crimes of violence or drug trafficking crimes.  The issue in Gould and Abbott involves statutory interpretation: Does the mandatory minimum sentence in §924(c) apply when a defendant is convicted of a related crime that carries a higher mandatory minimum sentence?

Gould and Abbott argue in their cert petitions that the answer is "no."  While an opinion from the 2nd U.S. Circuit Court of Appeals comes to that conclusion, rulings in the 5th Circuit and 3rd Circuit do not.

Though I would not describe being "the luckiest federal inmate in the state of Texas" as a Lou Gehrig type accomplishment, I do suspect that a good number of fellow federal inmates will be watching the Gould case closely and will be hoping that Carlos Rashad Gould's lawyers hit a grand slam when they step up to the SCOTUS oral argument plate in a few months.  (Is it obviously I am already eager for the start of spring training?)

February 2, 2010 in Mandatory minimum sentencing statutes, Sentences Reconsidered | Permalink | Comments (16) | TrackBack