February 13, 2010
"A Blue-Ribbon Look at Criminal Justice"The this of this post is the headline of this editorial from today's New York Times. Here are excerpts:
The nation’s criminal justice system is in need of an overhaul. This is particularly true of its incarceration policies. Too many people are being put behind bars who do not need to be there, at great cost to the states, and not enough attention is being paid to helping released prisoners re-enter society.
The Senate Judiciary Committee recently voted to create a blue-ribbon commission to study the justice system and offer reforms. The bill’s main sponsor was Jim Webb, a Democrat of Virginia who is one of the Senate’s more thoughtful voices on crime and punishment.
Among the issues the commission would study is why the United States has the highest reported incarceration rate in the world. Prisons are filled with a large number of nonviolent offenders, including minor drug offenders. In many cases, it would be more humane, economical and effective to provide drug treatment and mental health alternatives.
The high imprisonment rate has long been troubling as a matter of fairness, but with the recession it has become an enormous financial burden. States have begun, out of fiscal necessity, to parole prisoners faster and in larger numbers, and to look for alternatives to incarceration. This scattershot approach is far from ideal. It would be better to have experts address these issues at a national level in a more methodical way....
The bill has strong support from both civil rights and law enforcement groups. The Senate leadership needs to push it to a vote, and the House needs to get to work on passing a companion bill. A broad consensus has emerged that the system is broken.
I am very supportive of Senator Webb's proposals to create a blue-ribbon commission to study the justice system and offer reforms. But I am also very pessimistic that such a blue-ribbon commission would be an important or effective first step to needed national state or federal sentencing reforms.
After all, we have had a blue-ribbon panel in the form of the US Sentencing Commission full of experts from both sides of the political spectrum urging Congress to eliminate mandatory minimums for nearly two decades and urging an end to the crack/powder disparity for 15 years. And yet we are still waiting for Congress to heed the USSC suggested reforms.
February 12, 2010
Talk of feds taking sex offender tracking global
This article, headlined "Sex offender law could go global with California lawmaker's bill," spotlights a proposal to internationalize sex offender tracking. Here are the details:
Megan's Law soon could go international. The law, named after Megan Kanka, a 7-year-old New Jersey girl who was raped and killed by a neighbor in 1994, requires convicted sex offenders to be registered with the government, making it easier to track their whereabouts. Their names can then be put into databases, allowing the public to do a quick online check to determine where offenders reside.
While the law now applies to all states, California Republican Rep. Dan Lungren is proposing a worldwide crackdown on high-risk sex offenders and sex trafficking. Under his bill, convicted sex offenders would have to tell local law enforcement of their travel plans 21 days before leaving their country. That information would then be shared with diplomatic officials in foreign countries, who could keep track of the offenders. Lungren is already working with the Mexican government on the proposal.
Notable comments by AG Holder about incarceration in speech to National Organization of Black Law Enforcement ExecutivesFor those like me concerned about the economic costs and potenital criminogenic consequences of mass incarceration, another speech delivered today from Attorney General Eric Holder suggests that his Department of Justice understands the problems with using incarceration to address all crime issues. Specifically, in this speech given to a law enforcement group, AG Holder had this to say about incarceration:
I know there are two specific problems many of you are struggling to tackle, and I’d like to address them. First, the growing number of Americans – and disproportionate number of African Americans – currently incarcerated in prisons across our country. Second, the division and tension that sometimes exists between law enforcement officers and the communities they work to protect.
As you all know, our nation now has the world’s highest incarceration rate. In the last 40 years, the number of inmates in American prisons has increased seven-fold. Today, one out of every 100 adults in America is behind bars.
Most of these prisoners are poor and uneducated. Twenty percent of them are Hispanic. Forty percent are black. In too many black families and neighborhoods, a “cradle-to-prison” life path has become the norm for young men. African Americans are now eight times more likely to be incarcerated as whites. And, if current trends continue, nearly 1 in 3 of our young black men will spend time behind bars.
Let me be clear, we enhance public safety by incarcerating those who harm our neighbors and our communities. This is a fact. But in our work to protect the American people, incarceration cannot be our only law enforcement strategy. We’ve learned that simply building more prisons and jails will not solve all our problems.
It’s time to face facts about our current approach to incarceration. It’s not sustainable. It’s not affordable. And we’ve seen that it isn’t always as effective as we think in reducing crime and keeping Americans safe.
Over the last few decades, state spending on corrections has risen faster than nearly any other budget item. Yet our best research suggests that there are other, more effective ways to invest taxpayer dollars and ensure public safety.
At a cost of $60 billion a year, our prisons and jails do very little to prepare prisoners to get jobs and “go straight” after they're released. Former offenders are often barred from housing, shunned by potential employers, and surrounded by other ex-offenders in their neighborhoods. This is a recipe for high recidivism. And it’s the reason that two-thirds of those released are rearrested within three years.
It’s time for a new approach. If we are going to achieve positive outcomes for public safety, for state and local government budgets, for our communities, and for people who have been incarcerated and their families, we must begin to acknowledge that easy short-term solutions sometimes cause long-term negative consequences.
The truth is that any real effort to contain spending on corrections, while ensuring public safety, must include a strong focus on preparing for reentry so we can reduce recidivism. Effective reentry programs can transform lives. They can ease difficult transitions. And they can provide our best chance for safeguarding our neighborhoods and supporting offenders who have served their time and who are also resolved to improve their lives.
I’m proud that, last year, the Justice Department distributed $28 million in reentry awards under the Second Chance Act. And I’m pleased to tell you that we will have another $100 million available for reentry programs this year. But we must complement reentry programs with smart and sound policy changes at every level of government.
At the federal level, I have established a Sentencing and Corrections Working Group to take a fresh look at federal sentencing practices and determine how we can better prepare federal prisoners to transition back into their communities. Likewise, we must analyze the distinct crime trends and corrections policies of our states and counties by focusing on the neighborhoods where large numbers of offenders return. This will allow us to provide state and local officials with targeted, data-driven options for improving public safety and reducing spending.
I am pleased to see that AG Holder is continuing to talk a good game about the fact that there are alternative is incarceration that can provide "more effective ways to invest taxpayer dollars and ensure public safety." But I continue to hope that al this good talk soon turns into some more tangible action in the form of more aggressive advocacy from the Department of Justice for the braider use of alternatives to incarceration at the state and federal level for all non-violent types of offenses.
Ponzi schemer gets sentenced knocked down to 310 years from 330 yearsThe Tenth Circuit today has largely affirmed, through this opinion, the convictions and sentences of white-collar offenders Norman Schmidt and Charles Lewis, who together conducted a Ponzi scheme through a number of investment companies and caused investor losses of more than $40 million. For sentencing fans, the most notable aspect of the Tenth Circuit ruling involves this determination concerning Schmidt's sentencing appeal:
The district court properly calculated Schmidt’s guidelines sentencing range and he has not overcome the presumption of reasonableness of his within-guidelines 330-year sentence (which is reduced to 310 years by our setting aside his convictions on four counts).
I suspect that Schmidt won't be too eager to celebrate the fact that his projected release date has now been moved up from the early fall of 2291 to the early fall of 2271. Indeed, because Schmidt is in his mid 70s, I would wager he won't end up serving even one-tenth of his new sentence. Just leave it to a white-collar scoundal to find a technicality like life expectany to ensure he never has to serve the bulk of his (apparently reasonable) prison sentence.
"Death and Texas"
The title of this post is the headline of this piece in the New York Times sunday book review from Dahlia Lithwick. Here is how it starts:
Toward the beginning of “The Autobiography of an Execution,” David Dow relaxes after a speech with the celebrated death penalty abolitionist Sister Helen Prejean. (“It was the first time I went drinking with a nun.”) Prejean tells Dow, who has represented more than 100 death row inmates over 20 years, that “support for the death penalty is a mile wide, but just an inch deep.” Dow responds: “Well, Sister, I believe you can drown in an inch of water.” This book is Dow’s effort to drain the puddle.
Statistics from the Death Penalty Information Center show that the death penalty in America is dying. In 2009, the number of death sentences dropped for the seventh consecutive year; it’s now the lowest since the Supreme Court reinstated the death penalty in 1976. Eleven states considered abolishing the death penalty last year, citing high costs and lack of measurable benefits. New Mexico just became the 15th state to abolish it. A recent study from Duke University concluded that North Carolina could save almost $11 million annually by doing away with capital punishment. And the prestigious American Law Institute, which devised the framework for the modern system of capital punishment, recently abandoned the whole project “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”
February 11, 2010
Fourth Circuit reverses two notable sentences as (procedurally?) unreasonable
The Fourth Circuit has two notable sentencing reversals today, in US v. Morace, No. 09-4007 (4th Cir. Feb. 11, 2010) (available here) and US v. v. Herder, No. 08-4420 (4th Cir. Feb. 11, 2010) (available here).
In Morace, the government prevails in its appeal of a below-guideline sentence of probation for an offense of possession of child porn. In Herder, the defendant prevails in his appeal of a within-guideline sentence of 41 months in prison for a drug offense involving a small amount of crack. In both cases, it is fair to surmise that the reviewing panel is not truly convinced of the substantive justice of the sentence imposed; but, in both cases, the basis for the reversal is formally procedural unreasonableness.
I see both these cases as further examples of circuit courts being much more willing to reverse a sentence on purported procedural grounds rather than saying that the district court reaching a substantively unreasonable sentencing outcome.
"Grandmother Will Mark President's Day By Petitioning Obama To Commute Her 27-Year Prison Sentence For Non-Violent Crime"
The title of this post is the headline of this new press release from the ACLU. Here are excerpts from the release, which provides the backstory of a remarkable case, that appears to be the kick-off for a remarkable new project:
Hamedah Hasan, a mother and grandmother serving her 17th year of a 27-year federal prison sentence for a non-violent crime, asked President Obama today to commute her remaining sentence. Hasan's petition was filed with the U.S. Department of Justice's Office of the Pardon Attorney, and was accompanied by almost 50 letters of support from prison chaplains, community members, advocates, friends and family. The American Civil Liberties Union represents Hasan in her commutation petition....
In an unusual display of support for a commutation petition by a federal judge, the Honorable Richard G. Kopf, U.S. District of Nebraska, who sentenced Hasan in 1993, wrote a letter to the Department of Justice Pardon Attorney's Office. In it, Judge Kopf said, "…I can say, without equivocation, that Ms. Hasan is deserving of the President's mercy. I have never supported such a request in the past, and I doubt that I will support another one in the future. That said, in this unique case, justice truly cries out for relief."...
President Obama, Vice President Biden and Attorney General Holder have publicly called for equalization of federal sentences for crack and powder cocaine, and the U.S. Sentencing Commission has called for reform of the crack-powder sentencing disparity four times. President Obama's "Blueprint for Change," published soon after he was elected in 2008, stated, "...the disparity between sentencing crack and powder-based cocaine is wrong and should be completely eliminated."...
Hasan's petition is the first of several in a larger project, dubbed "Dear Mr. President, Yes You Can." The Dear Mr. President Project brings together civil rights advocates, legal scholars, law school clinics, pro bono counsel and others to urge President Obama to depart from the practices of his immediate predecessors and use the pardon and commutation power in a principled way, consistent with his administration's position that the crack Sentencing Guidelines have been far too harsh. The Project also aims to promote the president's clemency power as a means to correct historical injustices.
Baylor Law School professor and former federal prosecutor Mark Osler, who is a founding member of the Project, noted, "President Obama has gone 387 days (and counting) without granting a single pardon or commutation. This makes him one of the slowest-acting presidents in history to exercise the power of forgiveness. Thomas Jefferson employed the pardon power to eliminate the sentences of those convicted under the shameful Alien and Sedition Acts. President John F. Kennedy granted over 100 commutations in less than three years in office. President Lyndon Johnson commuted 226 sentences. It's time for President Obama to revive the noble and necessary function of executive clemency in Hamedah Hasan's case."
Hasan is the mother of three daughters, Kamyra, 16, to whom Hasan gave birth in prison, Ayesha, 21, and Kasaundra, 26. Hasan also has two grandchildren. Hasan's commutation petition materials are available at: www.dearmrpresidentyesyoucan.org
Awesome stuff here, and I am hopeful (though sadly not especially optimistic) that this campaign might finally help President Obama do something about his truly shameful clemency record to date. At the very least, I hope that this "Dear Mr. President Project" will lead prompt the media to start taking more note of President Obama truly shameful clemency record to date.
Some related recent posts on federal clemency realities:
- Obama as Scrooge: no Christmas clemency grants
- Fitting complaints about an ugly clemency scoreboard: "Turkeys 2, humans 0"
- The true sentencing turkeys on this Thanksgiving eve
- Justified complaints that Obama's first pardon will be of a turkey
- "President Barack Obama proving stingy with his pardon power"
- Notable press stories noting Obama's lack of clemency action
- A simple plea for Prez Obama: grant at least a single clemency in your first 100 days
- Historical evidence that it is NOT too early to start demanding clemencies from President Obama
- When will President Obama start acting like President Lincoln when it comes to the clemency power?
- "The Fall of the Presidential Pardon"
Jewish murderer getting special attention as Florida execution date approaches
This article from the Orlando Sentinel, which is headlined "Jewish groups plead for Crist to save life of convicted killer Martin Grossman," puts an interesting spotlight on the intersection of religion and death penalty advocacy. Here are the basics:
Orthodox Jewish groups are trying to persuade Gov. Charlie Crist to spare the life of Martin Grossman, a convicted killer scheduled for execution Tuesday. More than 13,000 people have signed an online petition, and Amnesty International also has intervened.
Grossman's advocates argue that the jury never heard mental-health evidence that would support Grossman's case, he was under the influence of drugs and alcohol at the time of the crime and that he was only 19 when he shot a wildlife officer to death in Pinellas County in December 1984. He was convicted the following year.
National Council of Young Israel, Agudath Israel of America, Orthodox Union, Chabad, Satmar, Rabbinical Alliance of America and the nonprofit Aleph Institute are among 200 organizations asking Crist to grant a 60-day stay of execution to allow a clemency application to be considered....
Grossman was convicted of shooting Margaret Park, 26, in the head after she found him and a friend at a nature reserve, where they went to fire a gun. Grossman asked Park not to report him because it would have been a violation of his probation on a burglary conviction. There was a struggle, Park drew her gun and Grossman shot her with it.
I cannot help but wonder if all of these groups and individuals would be working so hard to advocate for a killer if his name was Martin Park and the victim was Margaret Grossman. In other words, I think it is fair to suggest that it principally the religion of the offender (and perhaps also the victim), and not the particulars of the offense, that is generating much of the special attention in this case.
Full Eleventh Circuit still struggling to figure out reasonableness review in Irey caseThe federal appeals courts have now had more than five years to make sense of reasonableness review, the revised approach to federal sentencing appeals created by the Supreme Court in its landmark Booker ruling in January 2005. However, as evidenced by this new piece in the Fulton County Daily Report which is headlined "11th Circuit Appears Split Over Deference in Sentencing," an en banc Eleventh Circuit is still trying to figure out some of the basics of reasonableness review in a horrible sex offender case. Here are the details:
Ideally, en banc decisions by the 11th U.S. Circuit Court of Appeals give clear direction to lower courts on how to deal with muddled areas of the law. But in Tuesday's en banc argument on criminal sentencing, the 11th Circuit's judges wrestled with which way the court should point.
Pushing to one side were judges who were uncomfortable second-guessing a Florida district court judge who sentenced to 17 1/2 years in prison a man who admitted to recording his sexual abuse of children. On the other side were judges who seemed to agree with prosecutors challenging the sentence as too lenient, given the nature of the crime at issue....
Tuesday's case about William Irey's sentence posed a challenge for the 11th Circuit's effort at providing clarity to sentencing decisions. The circumstances of Irey's case are the sort that give judges difficulty, and many of the judges on Tuesday seemed more interested in the particulars of Irey's case than formulating a uniform approach for sentence review.
Irey, who at one point owned a large construction company, pleaded guilty to a child sex crime that the sentencing judge in Florida described as "horrific." According to prosecutors, Irey sexually abused more than 40 children, some as young as 4 years old. They say he on several occasions traveled to Cambodia where he produced images of himself sexually abusing prepubescent children....
The federal sentencing guidelines, first developed by a congressionally authorized commission in the mid-1980s, counseled U.S. District Judge Gregory A. Presnell of Orlando to sentence Irey to life in prison. But in what is not an unusual conflict between the guidelines and the law, the federal statute criminalizing Irey's conduct said the sentence for the crime should range between 15 and 30 years.
The government asked for the maximum 30 years allowed by the law, but Presnell said he was persuaded by certain factors -- such as Irey's relatively advanced age of 50, and his family's pledge to remain supportive of him -- to give him the lesser sentence of 17 1/2 years. It appeared that a key to Presnell's decision was testimony by Dr. Ted Shaw, the defendant's mental health expert. Shaw testified that pedophilia was "not a disorder that someone chooses" and is treatable. He testified that Irey had been making progress in therapy and, as far as his likelihood to re-offend, was in the "medium low to medium or moderate risk categories."...
Presnell has been an outspoken critic of federal prosecutors' arguments undercutting district judges' discretion on sentencing issues, saying in 2005 that the Department of Justice "wants to be prosecutor and judge." Prosecutors appealed Irey's sentence, saying Presnell relied too heavily on the idea that pedophilia is an illness.
The 11th Circuit panel who heard the government's appeal -- then-Chief Judge J.L. Edmondson, Judge Gerald B. Tjoflat, and Senior Judge James C. Hill -- suggested Presnell's sentence might have been too low. But Edmondson wrote for the panel, "Appellate judges are not authorized to substitute their personal views of what might be the best sentence for the sentence imposed by the district judge."
Hill added his own opinion, saying that he "reluctantly" agreed with the panel. He added, "Had I been given the heavy responsibility of sentencing in this case, my only regret would be that in the halls of Congress, the occupants of that legislative branch place an upward limit on this defendant's confinement."
The 11th Circuit granted a full court rehearing of the case, an unusual act under normal circumstances when the losing side requests en banc review. This move was truly remarkable because prosecutors hadn't requested it....
Related posts on Irey case:
Providing a new (and needed) theoretical model for drug regulation regimesOne of my new colleagues while I am here visiting at Fordham Law School, Kimani Paul-Emile, has this terrific and terrifically important new paper available via SSRN, which develops a theoretical model for different drug regulatory regimes. The piece is titled "Making Sense of Drug Regulation: A Theory of Law for Drug Control Policy," and here is the abstract:
This article advances a new theory of drug regulation that addresses two previously unexamined questions: how law-makers are able to regulate drugs differently irrespective of the dangers the drugs may pose and independent of their health effects, and the process followed to achieve this phenomenon. For example, although tobacco products are the leading cause of preventable death in the U.S. they can be bought and sold legally by adults, while marijuana, a substantially safer drug, is subject to the highest level of drug control.
This article posits a conceptual model for making sense of this dissonance and applies this model to the regulation of four common drugs: cocaine, marijuana, tobacco and anabolic steroids. Although much has been written on the topic of licit and illicit drug regulation, none of the scholarship in this literature has attempted to explain through an examination of pharmaceutical, illicit, and over-the-counter drugs how the apparent inconsistencies and incoherence of the U.S. system of drug control have been achieved and sustained. This work fills the gap in this literature by proposing an innovative and comprehensive theoretical model for understanding how drugs can become “medicalized,” “criminalized” or deemed appropriate for recreational use, based upon little or no empirical evidence regarding the pharmacodynamics of the drug.
For those drug sentencing reformers who may be especially interested in seeing certain illicit drugs (like marijuana) becoming licit, the conclusion of this article provides important advice:
The theory advanced in this paper also has implications for activists seeking to effect legal change with respect to drugs. To the extent that framing influences popular attitudes towards drugs and drug use, activists would be wise to place less emphasis on lobbying legislators and policymakers by relying upon scientific data on drugs, and instead place greater emphasis on framing the issue in a way that matches the norms of the regime they prefer, and then spreading their message directly to citizens in order to shape public understanding of the drug. Indeed, according to the model, science can be brought to bear on the meaning of drugs and it can influence how the drug will be regulated, but its influence is not dispositive. Science is but one resource in the commercial, cultural and political battle over meaning. Thus, those who seek to change the regulatory status of a particular drug should focus on the framing in conjunction with proving the validity of their scientific evidence.
"Prisons, Redistricting and the Census"The title of this post is the headline of this new editorial in the New York Times. Here are excerpts:
The Census Bureau struck a blow for electoral fairness recently when it decided to speed up publication of its data on prison populations to ensure it is available for the next round of redistricting. We hope this new data, which will be released in the spring of 2011, will bolster the efforts of reformers who are trying to end prison-based gerrymandering — the cynical practice of drawing legislative districts with populations inflated by inmates who do not have the right to vote and whose actual residences are often far away.
Far too often, redistricting committees pad underpopulated districts by redrawing boundaries to include large prisons. This practice typically increases the political power of rural areas where prisons are built and diminishes the influence of the urban areas to which inmates eventually return....
The decision to release the data early was taken at the behest of Representative William Lacy Clay, a Democrat of Missouri, who has long been concerned about the inequities brought by prison-based gerrymandering. The data will be especially helpful to the 100 or so counties that — at great effort — already remove prison inmates from the count at redistricting time. And it should give fresh impetus to legislation pending in several states — including New York — that would require them to determine the home addresses of inmates and draw legislative districts based on that information.
February 10, 2010
What (precise?) sentence should Erin Andrews advocate for her stalker/peeper?In this post earlier today, I noted the peculiar sentencing recommendation coming from federal prosecutors for the stalker/peeper who followed and filmed ESPN reporter Erin Andrews: only a 27-month prison term and exactly $334,808.27 in restitution. I now see this follow-up story from the New York Daily News headlined, "ESPN's Erin Andrews says 27-month sentence for slimy video voyeur Michael Barrett is not enough." Here's more:
Prosecutors asked a judge to put perv Michael Barrett behind bars for just a little more than two years in new court documents filed with the U.S. District Court in Los Angeles.
Andrews' lawyer Marshall Grossman said that's inadequate. "She is the victim," he told the Daily News. "My strong sense is that she will argue, as she did before, in favor of a tougher sentence."
Thanks to the federal Crime Victims Rights Act, Andrews has a statutory "right to be reasonably heard" at Barrett's scheduled sentencing on March 8. Though I am sure Andrews will exercise that right by urging the sentencing judge to be tough, I wonder if Andrews will (or should) advocate a precise "tougher sentence" for Barrett.
Of course, it is much easier for Andrews (and for victims in other cases)to advocate generally for a "tough" sentence than to propose a precise sentencing term as an alternative to what prosecutors and defense attorneys are advocating. Nevertheless, perhaps Andrews (and other victims in other cases) would be more effective in achieving a desired outcome when putting forward precise recommendations rather than just general advocacy.
Against this backdrop, I wonder if readers have thoughts about whether Andrews should urge a specific sentencing alternative and what such a specific alternative might be — e.g., many more years in prison? severe conditions of supervised release? shaming in the form of a required posting of YouTube video of Barrett naked in his prison cell? More broadly, I wonder if anyone can report on other cases in which a victim's sentencing advocacy was especially useful (or especially problematic) because the victim did (or did not) get specific.
Lots worth reading around the blogosphere (especially on the costs of mass incarceration)
Lots of my favorite criminal law blogs have lots of notable new posts covering sentencing issues, especially California Corrections Crisis, Grits for Breakfast, the Prison Law Blog, and Think Outside the Cage. And thanks to some of the postings there, I noticed there two notable new reports on the econmic costs of modern mass incarceration:
From the Pew Center on the States: "Right-sizing prisons: Business leaders make the case for corrections reform."
From the National Council on Crime and Delinquency: "Special Report: The Extravagance of Imprisonment Revisited"
Federal judge in Texas seeks justification for criminal prosecution of immigration offenders without a criminal historyAs detailed in this local article from Texas, which is headlined "Federal judge questions immigration prosecutions: Sparks suggests it's too expensive to jail those without any significant criminal history," a federal judge near the border is sick and tired of minor immigration offenses being criminal prosecuted in federal court, and he is not going to take it any more. Here are the details:
In an order filed Friday, a federal judge in Austin questioned U.S. prosecutors for seeking criminal convictions in court against some illegal immigrants, writing that the practice "presents a cost to the American taxpayer ... that is neither meritorious nor reasonable." The order by U.S. District Judge Sam Sparks [which is available here] comes as his docket, like others in Texas, is swollen with defendants charged with immigration crimes.
Most of those prosecuted in Austin have been identified by immigration officers at the Travis County Jail and charged with illegal entry after deportation. Many of those defendants have no significant criminal history and until a change in enforcement strategy about two years ago would have been deported and not prosecuted....
On Friday, Sparks wrote in the order that "like many of the defendants prosecuted under the (federal illegal re-entry law) in the last six months" the men "have no significant criminal history." Sparks wrote that it has cost more than $13,350 to jail the three men and noted that charging them criminally means additional costs and work for prosecutors, defense lawyers, court personnel and others. "The expenses of prosecuting illegal entry and re-entry cases (rather than deportation) on aliens without any significant criminal history is simply mind-boggling," Sparks wrote.
He said the assistant U.S. attorney who prosecuted the case could not state "a reason that these three defendants were prosecuted rather than simply removing them from the United States." He ordered prosecutors to be prepared to state the reasons for prosecuting such cases....
In part because of Operation Streamline, a Bush administration project aimed a bringing criminal charges against most immigration violators in certain border areas, the federal prosecution of immigration violators jumped nearly 9 percent during the 2009 fiscal year, according to researchers at Syracuse University who analyze Justice Department data.
For years federal prosecutors in Austin had a practice of prosecuting for illegal re-entry only immigrants who had previously committed an aggravated felony, such as rape, burglary or drug trafficking, or who had been deported and re-entered the country numerous times. Since March 2008, there has been a steady flow of cases in Austin charging some immigrants who have minor or no criminal histories with illegal re-entry.
Steve Mason of Austin, a member of several immigration reform groups, including the Immigration Reform Coalition of Texas, said that federal prosecutors need to do more — not less — to target immigration law violators. "If you come into this country illegally, you should be prosecuted for it," he said.
China’s highest court issues new guidelines for administering capital punishmentStudents of the modern American death penalty know that the U.S. Supreme Court has spent a good part of the last four decades trying to develop standards for how states must balance equal and individual justice in the administration of capital punishment. Now, as detailed in this new piece from The Times Online, China's Supreme Court has issued some new guidelines as it struggles with similar concerns. Here are the basics:
China’s Supreme Court has urged judges to restrict the use of the death penalty to only the gravest crimes and show “justice tempered with mercy”. However, the top court in the country that executes more people each year than the rest of the world combined stressed the need for capital punishment and warned against showing mercy to influential officials.
Shocked by a series of miscarriages of justice involving the death penalty and taken aback by the level of public anger, the Supreme Court has been trying for several years to restrain the use of capital punishment by local courts. It has sent guidelines to courts nationwide saying that the death penalty should be handed down resolutely – but only when merited. It should apply to only a “tiny minority” of the most serious cases and be backed by ample and valid evidence....
China is believed to execute several thousand people a year, but the total is a state secret. Amnesty International said China’s courts put to death at least 1,718 people in 2008. In January 2007, the Supreme People's Court regained the power of final approval of death penalties, devolved to provincial high courts in the 1980s, and it promised to apply the ultimate punishment more carefully. The number of executions fell by 15 percent in 2007 and by 10 percent in 2008, officials have said.
The guidelines come just ahead of a world congress against the death penalty to be held in Geneva this month. China is certain to be a major focus of discussions.
Fifth Circuit panel splits over approach to plain-error review for sentencing errors
Among a number of notable sentencing rulings released today, a Fifth Circuit panel has a split decision that reverses a white-collar offender's sentence due to a guideline calculation error US v. John, No. No. 08-10459 (5th Cir. Feb. 9, 2010) (available here). The extended John opinion is an interesting read for avarious reasons, but the discussion of plain error review in the dissent by Judge Smith is what really caught my attention. Here is part of that dissent:
This circuit in general, and the instant panel majority in particular, have mostly eviscerated the plain error test in cases raising forfeited sentencing error. The result is that instead of being narrow, rare, and exceptional, the granting of plain-error relief in sentencing appeals has become commonplace. At the second prong of the plain-error test, error that this panel majority needs several pages of detailed analysis to explain is deemed “plain” or “obvious.” At the third prong, any increase in a sentence is considered to affect “substantial rights.” And finally at the fourth prong, any error that affects substantial rights is construed not only to affect, but “seriously” to affect, the fairness, integrity, or public reputation of judicial proceedings. By such reasoning, the fourth prong is collapsed into the third, further weakening the test....
The only real unfairness is not to Ms. John but to this district judge and the other district judges in our circuit. “[T]he contemporaneous-objection rule prevents a litigant from ‘sandbagging’ the court -- remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor.” Puckett, 129 S. Ct. at 1429 (citations and internal quotation marks omitted). Today’s ruling, to the contrary, is an encouragement to criminal defendants to refrain from noticing sentencing error in the district court, secure in the knowledge that any forfeited error that arguably lengthens a sentence will be corrected on appeal, resulting in resentencing and a second bite at the apple....
Faced with hundreds of sentencings, raising thousands of issues, a district judge should be able to rely on counsel, as officers of the court and zealous advocates, to call arguable error to the court’s attention. Where that does not occur, the district judges of this circuit should be able to count on this court faithfully to apply the strict plain-error standard to forfeited error. Because that did not happen here, I respectfully dissent.
"Cheese in pants may draw life term for Yolo man"The title of this post is the headline of this article from today's Sacramento Bee. Here are the particulars:
A Yolo County man who put cheese down his trousers faces a life sentence when he goes before a judge next month.
Jurors convicted Robert Preston Ferguson of two counts of petty theft on Jan. 6. One conviction was for swiping a woman's wallet from a convenience store counter. The other was for stealing $3.99 worth of shredded cheese from the Nugget Market in Woodland. Officers testified that Ferguson put the cheese in his pants and was apprehended in the parking lot.
Because of a lengthy criminal history that dates back 35 years, including six first-degree burglary convictions, Yolo prosecutors charged the petty theft counts as felonies. They say 22 years in prison failed to teach Ferguson, who is in his 50s, to obey the law.
Now they're asking a judge to give Ferguson a life sentence under the state's "three-strikes" law when he comes back to court March 1. "Holding the defendant fully accountable will protect society from a repeat criminal offender," prosecutor Clinton Parish's motion says.
Defense lawyers have asked the judge to exclude Ferguson's prior offenses in sentencing, saying that the man is mentally ill and has substance abuse problems. "At bottom, the prosecution's position is simply that because Mr. Ferguson has a criminal record he should be incarcerated for the term of his natural life for allegedly taking $3.99 worth of Tillamook cheese and allegedly taking a wallet the value of which has not been ascertained," public defender Monica Brushia's brief says.
As with most sentencing stories that make news, this case is sad and serious. And yet, my impulse to leaven a snow day with some jocularity entails that I make light of this situation (and encourage readers to play along in the comments).
For example, I cannot help but think of a Mae-West-type spin on what a female cop might have said when apprehending Ferguson: "Is that a three-strike sentence in your pocket, or are you just glad to see me?" Also, I wonder if Larry Pratt might get inspired to consider a "Cheese in the Pants" sequal to his viral hit "Pants on the Ground". Here's a possible lyric: "Looking like a fool ... and at a life sentence ... with the cheese in your pants!"
Interesting prison and restitution recommendations in Erin Andrews peeper prosecutionThis news report from the Los Angeles Times, which is headlined "Prosecutors ask for 27-month prison sentence for man who spied on ESPN's Erin Andrews," provides a high-profile and opaque window into the alchemy behind how federal prosecutors develop sentencing recommendations. Here are the basics from the report:
The Illinois man who spied on an ESPN reporter through her hotel room door and posted nude videos of her on the Internet may face time in federal prison and more than $300,000 in restitution, according to a sentencing document filed Monday.
Prosecutors in the U.S. attorney’s office in Los Angeles are seeking a 27-month prison term for Michael David Barrett, 49, who they said secretly filmed reporter Erin Andrews at three different hotels in three states as she showered and dressed for work. They said he removed the peephole device from her hotel room doors and use his cellphone to capture video of her in the nude.
Over the course of nine months, according to a sentencing document dated Monday, Barrett tracked Andrews across the country, running Internet-based background checks on her, calling several hotels to see where she would be staying and then deliberately requesting hotel rooms adjoining hers so he could access the door to her room with ease.
The sentencing document calls Barrett’s conduct “part of a long-term obsession involving Victim Andrews, as well as a significant number of other women.” After attempting to sell the cellphone videos to Los Angeles-based entertainment news website TMZ, prosecutors wrote, Barrett posted several videos of the sports reporter online, with such titles as “Erin Andrews in a Pink Thong” and “Sexy and Hot Blonde Sports celebrity shows us her all.”
In July 2009, the document states, the videos topped Google’s “most searched items” list. The court filing shows that the U.S. attorney’s office is seeking $334,808.27 in restitution on behalf of Andrews and her family members. “The emotional distress caused to her and her family cannot be overstated,” said the filing document, calling Barrett’s actions “very horrific.”
Andrews was not the only woman the former insurance company employee targeted, prosecutors said. Barrett also filmed 16 other women similarly to the way he filmed Andrews. He ran Internet background checks on more than 30 women, including a number of other female sports reporters and television personalities.
Barrett pleaded guilty to one federal count of interstate stalking in December.
Though I am chary about assailing the prosecutors' sentencing recommendations without knowing all the details surrounding the defendant's crimes and his background, my first instinct is that a recommendation of only 27 months in prison seems pretty low. As described above, defendant's actions here seem much more culpable and harmful than the acts of many child porn downloaders for whom federal prosecutors often urge sentences nearly of more than 200 months. I would assume that the 27-month recommendation here is in line with federal guideline calculations, but that in turn suggests to me that the guidelines in this setting need some tweaking.
Relatedly, I find fascinating the report that "the U.S. attorney’s office is seeking $334,808.27 in restitution on behalf of Andrews and her family members." Not only do I wonder who got tasked with devising a formula for restitution in this case that allowed a calculation to the penny, but I am also intrigued that Andrews' family members are apparently due a piece of the restitution action.
Minnesota Governor Pawlenty urges doubling of sentences for sex offendersAs detailed in this local article, which is headlined "Pawlenty: Time to get tougher on sex crimes," Minnesota's governor (and a future presidential candidate?) is talking about significantly increasing his states punishment table for sex offenders. Here are the basics:
Gov. Tim Pawlenty proposed tough new penalties for sex offenders Tuesday, saying sentences for those who commit serious crimes against children should be more than doubled. Under the proposal, those convicted of first-degree sex offenses would see their presumptive sentence go from 12 years to 25 years. Those with criminal histories likely would see tougher penalties.
"Sex offenders in our state and across the country continue to present a very serious challenge to the safety of our fellow citizens and to our communities and to our families," Pawlenty said. "They need to be kept off the street for as long as possible, and Minnesota's current law in that regard can be even further improved."
It is the governor's second effort at bolstering penalties for sex crimes. In 2005, the state passed a package of get-tough sentencing reforms, which included the first sentences of life without the possibility of parole for the most serious sex offenders.
But in announcing Tuesday's proposal, Pawlenty expressed unhappiness with the way some of those reforms have been implemented by courts. From 2006 to 2008, the latest year for which numbers are available, only seven people received the life without parole sentence. "It's been a helpful tool but not used as much as we would like," he said.
The sentencing proposal comes as the Legislature debates a $90 million expansion of the state's sex offender civil commitment program in Moose Lake. Since its creation two decades ago, 551 men and one woman have been sent to the program after their criminal sentences ended, and the number has been steadily increasing since college student Dru Sjodin's 2003 murder. Minnesota has the highest per capita number of civil commitments in the nation....
In 2008, courts issued 582 sentences for sex crimes, including 144 for first-degree crimes. That year, the Minnesota Department of Corrections recommended to county attorneys that 151 sex offenders scheduled for release be civilly committed. From 2008 to 2009, however, judges ordered only 38 offenders into the civil program, which includes extensive therapy and regular polygraph testing.
According to a one-day snapshot from July 2009, there were 9,353 inmates in the Minnesota prison system, 1,646 of whom were serving time for sex crimes. Nearly half of those were first-degree offenders with crimes involving children. Sex crimes make up the second-largest category of prison sentences in Minnesota, behind only drug crimes.
In 2008, the average prison sentence for first-degree offenders was actually more than 16.5 years, compared with a little more than 12 years a decade earlier, according to the Minnesota Sentencing Guidelines Commission. Offenders' criminal histories typically add length to sentences.
February 9, 2010
Ninth Circuit panel rejects Second Amendment challenge to federal felon-in-possession crimeThe Ninth Circuit has a little ruling today that rejects a Second Amendment challenge to the federal felon-in-possession prohibition in light of Heller. The ruling in US v. Vongxay, No. 09-10072 (9th Cir. Feb. 9, 2010) (available here), gets started this way:
And here is the heart of the panel's analysis of the Second Amendment issue (with some cites, footnotes and quotes omitted):
Defendant-Appellant Peter Vongxay appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He challenges his conviction on three grounds. First, he argues that § 922(g)(1) violates the Second Amendment. Next, he asserts that § 922(g)(1) violates his right to equal protection under the Due Process Clause of the Fifth Amendment. Finally, he claims that the arresting officer’s search violated his Fourth Amendment right to be free from unreasonable searches and seizures. We affirm the judgment of the district court on all Vongxay’s claims.
[T]o date no court that has examined Heller has found 18 U.S.C. § 922(g) constitutionally suspect ... [and thus] there appears to be a consensus that, even given the Second Amendment’s individual right to bear arms, felons’ Second Amendment rights can be reasonably restricted.
Denying felons the right to bear arms is also consistent with the explicit purpose of the Second Amendment to maintain “the security of a free State.” U.S. Const. amend. II. Felons are often, and historically have been, explicitly prohibited from militia duty....
Finally, we observe that most scholars of the Second Amendment agree that the right to bear arms was “inextricably . . . tied to” the concept of a “virtuous citizen[ry]” that would protect society through “defensive use of arms against criminals, oppressive officials, and foreign enemies alike,” and that “the right to bear arms does not preclude laws disarming the unvirtuous citizens (i.e. criminals) . . . .” Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 Law & Contemp. Probs. 143, 146 (1986); see also Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 480 (1995) (noting that felons “were excluded from the right to arms” because they were “deemed incapable of virtue”). We recognize, however, that the historical question has not been definitively resolved. See C. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. J. L. & Pub. Pol’y 695, 714-28 (2009) (maintaining that bans on felon gun possession are neither long-standing nor supported by common law in the founding era).
Though I am inclined to praise this Ninth Circuit panel for giving a little more attention to this Second Amendment issue than most other circuit courts, I cannot help but be a little put off by the fancy footwork in this opinion.
Specifically, though it is surely reasonable to suggest that "felons’ Second Amendment rights can be reasonably restricted," the federal law being challenged here essentially declares that any and every person ever convicted of a felony, no matter how long ago and no matter what the nature of the felon, no longer has any right to even possess any kind of firearm for any purpose. This law is not a restriction on felons’ Second Amendment rights, it is essentially a declaration that felons do not have these rights. Also, it seems as though the Ninth Circuit panel is here endorsing the notion that only the virtuous have Second Amendment rights. Are we really confortable with starting a doctrine of enumerated rights that hinges on notions of who is or is not virtuous?