March 2, 2010
SCOTUS further restricts the reach of ACCA mandatory minimums in Johnson
Justice Antonin Scalia has proved once again that he is the friend of federal criminal defendants through his opinion for the Court today ruling in such a defendant's favor in Johnson v. United States. Here is a brief account of the ruling via SCOTUSblog:
Johnson v. United States (08-6925), the Court rules 7-2 that a “violent felony” under federal law requires the use of physical violence, thereby reversing and remanding the lower court. Justice Scalia writes for the majority, while Justice Alito dissents, joined by Justice Thomas. The full opinion in pdf format is here.
Because I am on the road and then teach this afternoon, I may not have a chance to fully process and comments on this ruling until late tonight. In the meantime, I hope informed readers might comment on whether they think Johnson is a big deal or just another little (pro-defendant) tweak of the federal Armed Career Criminal Act.
Big day for guns (and other fun?) at SCOTUS
As detailed in a bunch of major press piece linked here at How Appealing, the Supreme Court today will hear oral argument in McDonald v. Chicago, another potential landmark Second Amendment case that will determine if the Court's 2008 ruling in Heller extends to the states. In addition, I think the Court is likely to release some opinions this morning, and before long they will have to start handing down rulings in the bigger criminal justice cases that were argued last Fall.
Though there so many aspects of the McDonald oral argument to follow, I will be especially interested to see if gun rights for the disfavored (e.g., anyone with a criminal record) gets any mention at all. I also will be interested to see how the Heller dissenters engage (or seek to disengage) with the individual constitutional right recognized in Heller.
What, dear readers, are you going to be looking for in the McDonald argument?
A few related Second Amendment posts:
- "A gun case or Pandora's box?: Ruling could trigger the unhinging of American culture"
- Should criminal justice reform groups actively urge SCOTUS to overrule The Slaughterhouse Cases?
- Seeking help working though the Second Amendment amicus briefs filed in McDonald
- What is the best argument that Heller should only impact the feds? Will it get any votes?
- What state and local issues will be litigated the most if (when?) Heller is incorporated?
- State AGs and the Second Amendment incorporation debate
- Should (and will) SCOTUS discuss standards of review for the Second Amendment when deciding incorporation?
- "In U.S., Record-Low Support for Stricter Gun Laws"
- SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
- Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
- The lack of originalist justification for excluding felons from the Second Amendment
- Assailing the unjustified Second Amendment limits in Heller
- What if no lower court judges participate in a "Second Amendment Revolution"?
- Has there been a single pro-gun-rights rulings in lower courts since Heller?
March 1, 2010
AAG Breuer's comments about sentencing disparities at ABA white-collar crime eventI had the good fortune to hear in person the remarks by Lanny A. Breuer, Assistant Attorney General for DOJ's Criminal Division, at the American Bar Association National Institute on White Collar Crime in Miami late last week. And now, having finally found the full text of his remarks on-line here, I can spotlight the spotlight he put on white-collar sentencing disparities through these comments:
As you may know, the Attorney General established a Sentencing and Corrections Working Group last year to take a fresh look at federal sentencing and charging practices, prisoner re-entry issues, alternatives to incarceration, and unwarranted disparities in federal sentencing. He cares deeply about such issues, as do I.
Our goal in this effort is a sentencing and corrections system that protects the public, is fair to both victims and defendants, eliminates unwarranted sentencing disparities, reduces recidivism, and controls the federal prison population. Low-hanging fruit, right? Well, the goals may be lofty, but I think we’re up to the challenge....
As you know, the sentencing guidelines continue to provide us with a sentencing baseline in all federal criminal cases. However, Sentencing Commission data shows that the percentage of defendants sentenced within the guidelines has decreased in the wake of the Booker line of cases. Although the full impact of recent trends in sentencing jurisprudence is still unclear, these developments must be monitored carefully.
We are especially concerned about increased disparity in white-collar sentencing. It is not uncommon for a health care fraud defendant to be sentenced to 15 or more years in one district court, while, in the same week, another defendant in another court involved in a larger fraud is sentenced to a very short prison term. A few weeks ago, the Ninth Circuit affirmed a 25-year sentence for a fraudster involved in a $40 million fraud just a few days after another defendant on the East Coast who had been involved in a $1 billion fraud was sentenced to just five years.
We must determine the reasons for these disparities. Public trust and confidence are essential elements of an effective criminal justice system. Our laws and their enforcement must not only be fair, they also must be perceived as fair. Accordingly, we must create a system where the factual basis for sentencing in a particular case is clear to all parties and to the public, and where the sentences themselves are truly commensurate with the crime committed.
The work of the Sentencing and Corrections Working Group is an important step in that direction.
Though I dislike reference to a few sentencing anecdotes as proof of increased sentencing disparity, I do not really dispute AAG Breuer's concern about increased sentencing disparities in the white-collar arena. Well-meaning but widely different perceptions of the need for and purposes of various forms of punishment in the white-collar arena are common, and thus it is not at all surprising that federal judges of different backgrounds in different parts of the country may assess the sentencing commands set forth by Congress in different ways in white-collar cases.
But, as is true in many sentencing settings, expressing a concern about disparities is a lot easier than engineering effective remedies that will not risk creating bigger problems. Consequently, I remain very eager to see and hear what DOJ's Sentencing and Corrections Working Group has to say about needed sentencing reforms in the months ahead.
"Federalism and Criminal Law: What the Feds Can Learn from the States"The title of this post is the title of this exciting-sounding new piece from Professor Rachel Barkow appearing on SSRN. Here is the full abstract:
Criminal law enforcement in the United States is multi-jurisdictional. Local, state, and federal prosecutors all possess the power to bring criminal charges. An enduring question of criminal law is how authority should be allocated among these levels of government. In trying to gain traction on the question of when crime should be handled at the federal level and when it should be left to local authorities, courts and scholars have taken a range of approaches. Oddly, one place that commentators have not looked for guidance is within the states themselves to see how they handle the issue of law enforcement allocation. States have the option of vesting authority in a state-level actor – typically, the Attorney General – or in local district or county attorneys. This choice, like the choice between federal and state authority, also requires a balancing of the advantages of centralization against the loss of local values. How states choose to strike that balance is therefore informative for the question of local versus federal authority because states are weighing the same issues.
This Article accordingly looks to the states for guidance on when criminal enforcement responsibility should rest with local authorities and when it should reside with a more centralized actor (be it one at the state- or federal-level). A comprehensive empirical survey of criminal law enforcement responsibility in the states – including a review of state codes and case law and interviews with state prosecutors – reveals remarkable similarity among the states about the degree of local control that is desirable. The states are virtually unanimous in their deference to local prosecutors, the small number of categories they identify for centralized authority in a state-level actor, and their support of local prosecution efforts with resources instead of direct intervention or case appropriation. This contrasts with the federal government’s increasing interference with local crime.
The Article explains the source of this difference: In the states, questions of procedure and sentencing are irrelevant to the allocation of power decision because they are the same at both levels of government. States thus serve as laboratories where sentencing differences and variation in procedural rules are taken out of the equation and the focus is on institutional competence. In contrast, the federal government typically decides to vest authority in federal prosecutors based on whether or not it agrees with local sentencing judgments. Because sentencing proves to be so central to federal involvement in crime, the Article concludes by urging those interested in federalism to pay greater attention to the role of sentencing as a driver of the federal government’s decision to get involved with question of local crime.
Lots of (mostly minor) criminal justice action at SCOTUS
Thanks to a series of posts and links at SCOTUSblog and How Appealing, one can quickly catch up with the array of (mostly minor) criminal justice action that took place today at the Supreme Court. These two SCOTUSblog post in particular are especially worth a full read for serious SCOTUS-watchers:
- No review of execution procedure: Test of lethal injection
- Kiyemba back to lower court: Circuit Court opinion vacated
- Analysis: Problems with Enron jury
Because travel and other work commitments have made it hard for me to keep up with all of the recent SCOTUS action, I would be grateful to any reader who sees any big sentencing stories amidst all these seemingly little developments (or in today's oral argument transcripts).
"Lil Wayne set to test how jails handle celebs"The title of the post is the headline of this new piece concerning the special (or not-so-special) treatment that some celebrity prisoners get. Here are snippets:
Lil Wayne ... is expected to start a yearlong jail term Tuesday after pleading guilty in a New York City gun case....
For now, jail officials say only that they will assess the multiplatinum-selling Lil Wayne as they do every other new arrival and find an appropriate place for him among the city’s roughly 13,000 inmates.
He might follow the path of rapper Foxy Brown, who spent about eight months in 2007 and 2008 in city jails on a probation violation after pleading guilty to assault in a fracas at a nail salon. Because of threats against her, she was held largely in protective custody in a cell of her own, with access to a day room, said Horn.
Defense lawyer Stacey Richman said she intends to ask for protective custody for Lil Wayne, as well as for attention to dental problems that postponed his sentencing by two weeks. “If Wayne had his druthers, he would not be asking for anything for himself,” Richman said, but she said she was concerned for his health and safety.
Some jail officials prefer to hold even famous convicts in circumstances as ordinary as possible — a desire the inmates sometimes share. Prison consultant Herbert J. Hoelter, whose clients have included epic fraudster Bernard Madoff and NFL quarterback Michael Vick, generally tells clients not to request anything special. Otherwise, “you’ll be viewed by other inmates and the prison system as thinking that you’re ’more deserving,“’ he says....
New York state prisons sometimes put celebrities together in protective custody units, where they interact with each other but not the prison population at large, spokeswoman Linda Foglia said.
Ex-New York Giant Plaxico Burress and former “Sopranos” actor Lillo Brancato Jr., for example, have been in the same unit at an upstate prison, she said. Burress is serving two years after pleading guilty to a weapons charge; Brancato is serving 10 years on an attempted burglary conviction.
Another notable CVRA ruling from the Sixth CircuitAs noted in this post last week, the Sixth Circuit disposed of an interesting mandamus petition from crime victims in US v. Arctic Glacier International, No. 10-3160 (6th Cir. Feb. 23, 2010). Another Crime Victims' Rights Act ruling comes from the Sixth Circuit today in the same basic matter involving a criminal antitrust conspiracy in In re McNulty, No. 10-3201 (6th Cir. Mar.. 1, 2010) (available here), and here is a notable snippet:
[W]e agree with the district court’s holding that McNulty is not a victim for the purposes of the CVRA. The alleged harm to McNulty stemmed from his firing for refusing to participate in the conspiracy and his “blackballing” from employment with packaged-ice companies until he stopped working with the government in exposing the conspiracy. If proven, these would indeed be harms to McNulty, but they are not criminal in nature, nor is there any evidence that they are normally associated with the crime of antitrust conspiracy.
To fire an employee and prevent a former employee from being hired by another company may be illegal under the civil law, but they are not inherently criminal actions, nor are they actions inherent in the crime of conspiracy to violate antitrust laws to which Arctic Glacier pled. Civil, not criminal, remedies are available to redress these actions.
Another big criminal justice week for SCOTUS
As well previewed in a number of posts at SCOTUSblog and a number of links at How Appealing, the Supreme Court has another exciting week on tap with lots of notable criminal justice cases on the calender. Specifically, today brings oral argument in three criminal cases -- Berghuis v. Thompkins (08-1470); Holland v. Florida (09-5327); Skilling v. United States (08-1394) -- and tomorrow is oral argument in the big Second Amendment incorporation case McDonald.
In addition, this morning could bring some new criminal case cert grants and/or some new criminal case summary reversals. And I believe some opinions in some of the criminal cases argued last Fall might be released earlier this week.
I am eagerly and especially anticipating big Eighth Amendment rulings in the juve LWOP cases, but I doubt that these cases are quite ready for decision. But one never knows how the pace of SCOTUS rulings will go. What SCOTUS activities, dear readers, have you extra excited for the coming week?
February 28, 2010
"Second chance for killer kids?"
The question in the title of this post is the headline of this lengthy article in today's Detroit Free Press. Here is how the piece gets started:
Dontez Tillman and Thomas McCloud were 14-year-old middle schoolers in Pontiac in the summer of 2008. Neither was old enough to drive, drink, nor apply for a video store membership.
Today, Tillman and McCloud are serving mandatory life in a Lapeer prison, convicted as adults of first-degree murder in November for the beating deaths of two homeless men over three days with older teens. “I screwed up my life,” McCloud told the Free Press in a prison interview. “I wish I could take it all back, that I never left the house that day.”
Their case brings into focus Michigan’s position in a national debate over how to handle young killers. The state has 352 prisoners serving mandatory life sentences for crimes committed while they were juveniles — the second-highest number in the world, behind Pennsylvania at 444.
Legislators and the U.S. Supreme Court are rethinking the idea of sending teens away to prison forever. Michigan is among 12 states where legislation has been introduced that would ban the practice, or at least give judges some discretion. Texas and Colorado in recent years have banned mandatory life for juveniles.
But Oakland County Prosecutor Jessica Cooper, whose office tried Tillman and McCloud, said the boys are exactly where they belong. “These are gut-wrenching, soul-searching determinations,” she said. As the debate continues, Tillman, now 15, and McCloud, now 16, spend their days in a juvenile unit at the Thumb Correctional Facility, an adult prison in Lapeer. At age 21, they will be transferred to the state’s adult prison population to spend the rest of their lives.
It is important to note that the two cases from Florida currently before the Supreme Court, Graham and Sullivan, involve juveniles sentenced to LWOP without having cause a death. Consequently, unless the Supreme Court issues a very constitutional broad ruling in those cases, it is unlikely that middle schoolers like Tillman and McCloud will have their fates directly by these SCOTUS ruling.
It is also interesting to note that the two states noted in this article as having the largest number of mandatory life sentences for juvenile offenders are Michigan (which has never had the death penalty) and Pennsylvania (which functionally does not have an operating death penalty). Meanwhile, the national leader in use of the death penalty, Texas, has eliminated mandatory life for juveniles. These realities reinforce my sense that there can often be an inverse relationship between use of the death penalty for the worst murderers and use of other extreme punishments for less culpable offenders.
Mike Farrell makes standard modern (pro-LWOP) arguments for DP abolitionOver at the Huffington Post, long-time abolitionist (and former MASH star) Mike Farrell articulates some of the now-standard modern arguments for abolishing the death penalty in this new piece headlined "The Death Penalty is Dying." Here are some excerpts:
It's frustrating to [death penalty] advocates that the facts support abolition. Faced with a reality unfriendly to their position, many revert to anger or fear and fall back on a desire for revenge rather than justice. I cringe when I hear otherwise rational people say it's okay to execute an innocent person now and then if it's the price we pay for keeping the death penalty....
This is a shame because once they understand it, it's my experience that fair-minded people, even those who believe it's morally acceptable for the state to kill the perpetrator of a violent crime, are repelled by the reality of the system. The racism that permeates the process, for example, is shameful, but too many turn their eyes away, not wanting to know what the lop-sided numbers expose about the continuing effect of racial bias in our society. The same is true for what some describe as "classism," the fact that mostly the poor end up on death row. As the condemned put it, "Them that has the capital don't get the punishment." Think O.J....
It makes me sad, in a way, that what's rapidly bringing us to the tipping point on the question is how much killing costs. I'd much rather we recognized the harm this barbaric practice is doing and quit killing helpless, encaged people because we diminish ourselves by stooping to the level of the least among us at his or her worst moment. But if the reluctant awakening on the part of near-bankrupt states to the hundreds of millions of dollars they're wasting on an inefficient, unnecessary and redundant killing system is what moves us to finally do what most of the rest of the nations in the world have long since done, it's hard to complain.
And yes, counterintuitive as it may appear, it costs far, far less of our tax dollars to put a killer in prison for life without the possibility of parole and keep him there than it does to go through the Constitutionally-mandated steps necessary to try, convict and execute the presumed perpetrator. (I say presumed because of the discovery of people who have been executed only to later be found to have been innocent.)
It's all so terribly, sadly wrong, so incredibly destructive. So I continue the discussions and do the debates, listen to the harangues and try to calm the fears in the hope that it will, in some small way, speed the day of abolition. And in so doing I will contend with those who want you to believe the perpetrators of violent crime are "animals," or "monsters," rather than sick, immiserated human beings no different, in essence, than the rest of us.
When I mention the 139 men and women who have been exonerated, freed from death row, and talk about the danger of executing the innocent, the refrain I often hear is, "Oh, they all say they're innocent!"
They don't, you know. Most of those I've spoken to on death row recognize their guilt and take responsibility for it. Most have changed dramatically in the years they've spent behind bars thinking about the horrible act that put them there. Most are capable of becoming productive citizens if given the chance. But in a society led by politicians who believe showing mercy and recognizing the capacity for change makes you "soft on crime" and thus vulnerable, there's little chance that will happen. And that's a crime.
I have lots of respect for the passion and commitment of abolitionists like Mike Farrell, but I dislike when these folks suggest that one must be irrational to support the death penalty and contend that the " facts support abolition." Consider the very fact of innocence emphasized in this commentary: Farrell suggests that the danger of executing the innocent is a reason to do away with the death penalty, but then rightly notes that most persons on death row are guilty. As all recognize in the context of imprisonment, we can/should do everything possible to eliminate wrongful convictions without having to give up on a particular severe punishment. (I never hear Farrell or other abolitionists say we should do away with LWOP because some "sick, immiserated" presumed perpetrators are wrongfully "encaged.")
Similarly, Farrell pushes for LWOP as an alternative to the death penalty, but then contends most murderers sent to death row "are capable of becoming productive citizens if given the chance." Does the LWOP alternative so vigorously advocated by most abolitionists really give convicted murderers a chance of "becoming productive citizens"? Ironically, many persons sent to death row (and some ultimately executed) such as Karla Faye Tucker and Stanley (Tookie) WIlliams and Mumia Amu-Jamal have, by virtue of the celebrity that attends being sentenced to death, have ended up becoming a lot more "productive" than most murderers condemned to spend their lives locked in a cage under an LWOP sentence.
Finally, one need not be a student of Immanuel Kant to rationally believe that locking killers in a cage and throwing away the key via LWOP treats them more like "animals" than does respecting their moral autonomy by condemning them to die for intentionally killing other humans. In this context, consider this First Things blog post, which is titled "Killer Whale Tragedy Illustrates Moral Difference Between Humans and Animals." By describing convicted intentional murderers as "helpless, encaged" and "sick, immiserated" creatures, Farrell seems more inclined to treat intentional killers as animals than do those who advocate the death penalty for the worst of all human intentional murderers.
Some recent related posts:
- Prisoners writing to death penalty abolitionists urging end to LWOP advocacy
- "The Death Penalty: Racist, Classist and Unfair"
- South Korea's highest court upholds death penalty
- "Record 86% of Japanese Support Death Penalty, Yomiuri Reports"