Sentencing Law and Policy

Washington Post editorial on "Repeat offenders" and best practices

This morning's Washington Post includes this interesting editorial headlined "Repeat offenders."  Here are excerpts:

The numbers are staggering.  Some 5.1 million individuals are out on probation or parole. If national trends hold up, roughly 40 percent of them will be returned to prison for a future offense.  Yet many of the approaches relied on by state and local corrections officials to keep prisoners from committing new offenses are not just ineffective but counterproductive.

Take, for instance, community supervision of inmates deemed at low risk of reoffending. When these parolees are sentenced to halfway houses and other relatively rigid forms of community supervision, their tendency to commit new offenses increases.  That is because they often are forced to spend a significant part of their day at the facility -- time that would be better spent with family, obtaining skills or seeking employment.  Forcing low-risk individuals to spend time in close quarters with more hardened offenders often works to undermine a smooth and crime-free reintegration into society at large.  Placing high-risk offenders in more structured residential programs, on the other hand, reduces their chances of recidivism.

Consider also that drug treatment programs in prison tend to be less effective than those conducted when the offender has been released.  And putting the onus on offenders to travel to often-distant corrections offices to check in with supervisors undermines compliance and positive reintegration, especially compared with success rates when parole and probation officers are stationed in neighborhoods with a high concentration of released offenders.

These observations are contained in a recently released report that grew out of congressional hearings led by Rep. Frank R. Wolf (R-Va.) and then-Rep. Allan B. Mollohan (D-W.Va.). Just as helpful as pointing out commonly made mistakes are the cutting-edge practices identified in the report....  Not every new approach will work throughout the country.  But there are plenty of good ideas, many of which could be tailored to the specific needs of jurisdictions.  The report, in other words, should be required reading.

Second Circuit affirms conviction and sentence of creator of morphed child porn

The Second Circuit today handed down an interesting and notable child porn ruling in US v. Hotaling, No. 09-3935 (2d Cir. Feb. 28, 2011) (available here), which gets started this way:

Defendant-Appellant, John Hotaling, appeals from a judgment of the United States District Court for the Northern District of New York (Mordue, J.) of conviction for violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(C) and imposition of a sentence based on a specific offense characteristic sentencing enhancement pursuant to U.S.S.G. § 2G2.2(b)(4).  The district court concluded that the statute prohibiting possession of child pornography was not unconstitutionally overbroad as applied to defendant, nor unconstitutionally vague, and also applied a sentence enhancement on the basis of a photograph depicting sadistic or masochistic imagery.  United States v. Hotaling, 599 F. Supp. 2d 306, 322 (N.D.N.Y. 2008).  We conclude that the district court was correct in holding that child pornography created by digitally altering sexually explicit photographs of adults to display the face of a child is not protected expressive speech under the First Amendment.  We also conclude that the application of the sentence enhancement based on a photograph that has been modified to portray a partially nude minor, restrained by handcuffs, a dog collar and leash, tied to a dresser was proper.  Accordingly, we affirm.

"A Critical Appraisal of the Department of Justice’s New Approach to Medical Marijuana"

The title of this post is the title of this new paper by Rob Mikos now available via SSRN.  Here is the abstract:

The Obama Administration has embarked upon a much-heralded shift in federal policy toward medical marijuana. Eschewing the hard-ball tactics favored by earlier Administrations, Attorney General Eric Holder announced in October 2009 that the Department of Justice (DOJ) would stop enforcing the federal marijuana ban against persons who comply with state medical marijuana laws. Given the significance of the medical marijuana issue in both criminal law and federalism circles, this Article sets out to provide the first in-depth analysis of the changes wrought by the DOJ’s new Non Enforcement Policy (NEP).

In a nutshell, it suggests that early enthusiasm for the NEP is misguided; on close inspection, the NEP represents at most a very modest change in federal policy.  First, the NEP won’t necessarily stop federal agents from pursuing criminal prosecutions of marijuana dispensaries. In a twist of irony, the non-enforcement policy itself is not enforceable.  It doesn’t create any legal rights a court could invoke to dismiss a criminal case. And the DOJ itself will have a difficult time ensuring that federal prosecutors comply with the agency’s stated policy. Second, even assuming the NEP would block criminal prosecutions, federal law could still obstruct state medical marijuana programs by imposing -- or enabling others to impose -- a wide range of civil and private sanctions on medical marijuana users and their suppliers.  The problem is the NEP doesn’t repeal the federal ban on marijuana.  Marijuana technically remains illegal under federal law, and the possession, cultivation, or distribution of the drug trigger a host of civil sanctions not addressed by the NEP. For example, the Department of Housing and Urban Development (HUD) can deny federal housing subsidies to medical marijuana users, and pharmaceutical companies could potentially bring civil RICO actions against marijuana dispensaries. What is more, the federal ban arguably preempts states from shielding marijuana users and dispensaries from sanctions imposed by private parties.  For example, employers can likely skirt liability under state law for discriminating against employees who use marijuana for medical purposes.  Metaphorically, the federal ban is a hydra, only one head of which has been severed by the NEP (and one that could too easily be regrown). The labor of ending federal prohibition is not yet complete.

SCOTUS limits reach of confrontation clause in Michigan v. Bryant

Because the Sixth Amendment's Confrontation Clause has been held not to apply at sentencing, today's SCOTUS ruling about the reach of the clause today in Michigan v. Bryantis not technically an issue of sentencing law and policy.  Nevertheless, the authors of today's opinions -- Justice Sotomayor for the Court, Justice Thomas with a separate concurrence, and Justices Scalia and Ginsburg in dissent (and Justice Kagan not participating) -- and the opinion itself are likely of great interest to all criminal justice participants.  Here is how the opinion for the Court gets started:

At respondent Richard Bryant’s trial, the court admitted statements that the victim, Anthony Covington, made to police officers who discovered him mortally wounded in a gas station parking lot.  A jury convicted Bryant of, inter alia, second-degree murder. 483 Mich. 132, 137, 768 N.W.2d 65, 67–68 (2009).  On appeal, the Supreme Court of Michigan held that the Sixth Amendment’s Confrontation Clause, as explained in our decisions in Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006), rendered Covington’s statements inadmissible testimonial hearsay, and the court reversed Bryant’s conviction.  483 Mich., at 157, 768 N.W.2d, at 79.  We granted the State’s petition for a writ of certiorari to consider whether the Confrontation Clause barred the admission at trial of Covington’s statements to the police.  We hold that the circumstances of the interaction between Covington and the police objectively indicate that the “primary purpose of the interrogation” was “to enable police assistance to meet an ongoing emergency.”  Davis, 547 U.S., at 822.  Therefore, Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements, and their admission at Bryant’s trial did not violate the Confrontation Clause. We vacate the judgment of the Supreme Court of Michigan and remand.

UPDATE:  Over at The Volokh Conspiracy here, Orin Kerr has this post on the Bryant decision titled "Michigan v. Bryant and the Future of the Confrontation Clause."

SCOTUS to finally consider whether "cocaine base" means more than crack

The Supreme Court this morning is hearing a sentencing case, DePierre v. United States, in which the Justices seem finally willing to resolve a long-debated issue of whether Congress was only referencing crack or other versions of cocaine when it used the term "cocaine base" in federal sentencing statutes. SCOTUSblog has a preview here, which starts this way:

The Controlled Substances Act, 21 U.S.C. § 841(b)(1), distinguishes between “coca leaves,” “cocaine, [and] its salts” on the one hand, and “cocaine base” on the other.  As originally passed in 1986, the Act mandated the same minimum ten-year sentence for offenses involving either fifty grams of cocaine base or five kilograms of cocaine in other forms.  (It was recently amended to raise the trigger to 280 grams of cocaine base.)  On Monday the Court will hear argument in DePierre v. United States (No. 09-1533), which presents the narrow statutory question of just what Congress meant by “cocaine base.” Six circuits have held that this language encompasses all chemically basic forms of processed cocaine, while four have ruled that it refers only to crack cocaine.

Sentencing memo for former federal judge urges probation and stresses mental health issues

This local article, headlined "Atlanta Fed Judge Busted With Drugs and Stripper Suffered Depression and Brain Damage, Sentencing Memorandum Says," reviews some notable sentencing arguments being made by a high-profile criminal defendant.  Here are details:

Ex-Federal Judge Jack Camp is hoping to stay out of prison, hoping a judge considers his sentencing memorandum that focuses on his mental health and problems in life on March 11.

In a memo filed in federal court in Atlanta on Friday, Camp’s attorney William Taylor of Washington writes that Camp has suffered from acute depression, brain-damaging from a bicycle accident and personal family tragedy that may have contributed to him getting busted for buying cocaine for a stripper he was having an affair with.

“They do not excuse his conduct,” his attorney wrote.”  They do help explain, however, how in May of 2010 a lonely man in the twilight of his life became entangled with a seductive prostitute more than willing to take advantage of his needs and of his misguided impulse to be her friend and protector.”

The memo notes that Camp entered a psychiatric hospital after his arrest last year.  The physician in charge of his evaluation and treatment, Dr. Miles Quaytman talked to the probation office....

On Nov. 19, Camp, who was on senior status, pleaded guilty to aiding a felon in possessing illegal drugs, possessing illegal drugs and giving his government issued lap top to the stripper he was having an affair with.  He has resigned as a federal judge, which is lifetime presidential appointment.  Camp bought drugs for the stripper, who was cooperating with authorities.

The papers also noted that Dr. Qaytman found that Camp suffered serious head injury in a bicycling accident in 2000 and he has no memory of that.  “In addition to his mood cycling disorder and the physical damage to the brain, Mr. Camp has faced a number of difficult and stressful personal challenges,” the sentencing memorandum said.

Plus, he had prostrate cancer, his mother has dementia and his sister has stage four colon cancer.  The document asked that he be sentenced to probation and community service. “No one can assess precisely how these features of his personal mental health and the sorrows and stress of his life interacted,” the filing said.

These kinds of offender-based sentencing arguments for leniency are not at all uncommon, especially since Booker made the guidelines advisory. But I believe that former Judge Camp was known for being not especially influenced by these types of arguments when he was the one doing the sentencing. But now that the sentencing tables have turned...

Related prior posts (which generated lots of notable comments):

• "Federal judge charged with buying drugs from stripper" 
• Federal judge cutting deal to avoid prison time for drugs, guns and stripper activities

Interesting debate in Nevada over preparation of presentence reports

Rarely does the preparation of presentence reports garner much attention from the media or the legal academy.  For that reason and others, I found really notable this new piece from Nevada headlined "Judges criticize plan on pre-sentence reports."  Here is how the piece begins:

Judges across Nevada have banded together against a plan by Gov. Brian Sandoval, himself a former judge, to make the counties responsible for producing pre-sentence investigation reports on felons -- reports used to determine whether an offender is a threat to the community or safe enough to be released.

Calling the idea "potentially dangerous," the judges say counties can't afford to take over the job of writing these reports, called PSIs, and they would likely disappear, leaving judges without the critical information they need to decide whether an offender should remain behind bars or be let out.

"Sentencing in felony cases would be impossible without the presentence report," said Washoe District Judge Brent Adams.  "Every single trial judge in Nevada opposes this idea.  As a former judge, the governor is well aware of the critical nature of those reports because he relied upon them in every sentencing he did as a federal judge."

"It's dangerous in my mind," added District Judge Andrew Puccinelli of Elko, who, as president of the Nevada District Judge's Association, has written letters to lawmakers on behalf of all of the state's judges blasting the plan.  "I'm not aware of any judge who was contacted by anybody on this."

Heidi Gansert, Sandoval's chief of staff, said the reports are important tools, but said "it's a matter of funding."  Under the governor's proposal, the Division of Parole and Probation would eliminate 77 positions and save $10.4 million over the biennium by moving the investigations to the district courts and ultimately the counties.

"We're streamlining.  We're in the process of prioritizing how we're spending," Gansert said.  "We agree the investigations are important and we recognize it will be difficult for the counties, but we believe the counties should be funding the costs."

Bernard Curtis, director of the Division of Parole and Probation, agreed.  "Everybody's broke.  The state is broke," he said.  "We're not saying the system should go away.  We're not saying it won't be done. Just not by P&P."

But Washoe District Chief Judge Connie Steinheimer said the money simply isn't there at the court or county level.  "I don't know how we could do it," she said.  "We've got a $15 million budget (for the Washoe District Court).  How are we supposed to add another $2 million?"

Former prisoners as consultants to prison-bound white-collar offenders

This interesting Chicago Tribune piece, headline "Ex-cons offer prison primers for soon-to-be incarcerated execs," reports on the "handful of consultants nationwide who gear their [sentencing and prison advice] services toward a white-collar population that includes mortgage fraudsters, tax evaders and Ponzi-schemers."  Here are some of the details:

The cottage industry is dominated by ex-offenders, retired jailhouse employees and advocates who support prison alternatives.  High-profile cases during the 1980s and '90s, including the prosecutions of corporate raider Ivan Boesky and former junk bond financier Michael Milken — both of whom used prison consultants — have helped heighten awareness.

Some criminal defense attorneys remain skeptical, and question whether the consultants can deliver what they promise.  But today's economic downturn has provided no shortage of work.

John Webster, a former attorney who served time in federal prison after lying for a client, started the Nashville, Tenn.-based National Prison and Sentencing Consultants in 2002.  At first, few people had heard of his industry.  "Now it's gotten to where a lot of people see the need and the benefit," he said.  "With the meltdown of the real estate industry, we had a lot more mortgage brokers who were getting indicted."  He charges $3,500 to $10,000 for prison coaching.

Some consultants are flashy, like ex-convict Larry Levine, whose Los Angeles-based operation asks on its website: "Going from the Exchange Floor to the Prison Yard?" Levine's clients include a former Highland Park couple, Robert and Virginia Carter, convicted in a $17 million embezzlement and money laundering case, according to news reports and Levine himself.

At the other end of the spectrum is Baltimore-based social worker Herbert Hoelter, who founded the nonprofit National Center on Institutions and Alternatives in 1977.  Bernard Madoff turned to him for help when he pleaded guilty in 2009 to one of the biggest Ponzi schemes in history, Hoelter said....

Some consultants try to strengthen a defendant's presentencing request to be enrolled in a 500-hour federal drug and alcohol abuse program, which can result in a shorter prison stint.  Others document medical reasons that argue why an inmate needs a lower bunk or special diet....

Before reporting to prison, offenders often have questions that lawyers can't answer about the daily prison routines, said Jeff Steinback, a prominent Chicago defense lawyer who represented Scott Fawell, Gov. George Ryan's closest political adviser, who pleaded guilty to mail fraud.  "There is a place for that kind of advice, as long as it is well-intended and not simply a business," Steinback said.  He typically pairs a newly sentenced defendant with someone who has already served time, to prepare them for incarceration....

Chris Burke, spokesman for the Federal Bureau of Prisons in Washington, said that he is not aware of any influence that consultants have on prison assignments.  And some defense attorneys question the effectiveness of a prison consultant, pointing out that information about the ins-and-outs of prison life can be found online.

"Chivalry is Not Dead: Murder, Gender, and the Death Penalty"

The title of this post is the title of this notable new paper available via SSRN by Steven Shatz and Naomi Shatz.  Here is the abstract:

Chivalry -- that set of values and code of conduct for the medieval knightly class -- has long influenced American law, from Supreme Court decisions to substantive criminal law doctrines and the administration of criminal justice.  The chivalrous knight was enjoined to seek honor and defend it through violence and, in a society which enforced strict gender roles, to show gallantry toward "ladies" of the same class, except for the women of the knight's own household, over whom he exercised complete authority.  This article explores, for the first time, whether these chivalric values might explain sentencing outcomes in capital cases.

The data for the article comes from our original study of 1299 first degree murder cases in California, whose death penalty scheme accords prosecutors and juries virtually unlimited discretion in making the death-selection decision.  We examine sentencing outcomes for three particular types of murder where a "chivalry effect" might be expected -- gang murders, rape murders and domestic violence murders.  In cases involving single victims, the results were striking.  In gang murders, the death sentence rate was less than one-tenth the overall death sentence.  By contrast, in rape murder cases, the death sentence rate was nine times the overall death sentence rate.  The death sentence rate for single-victim domestic violence murders was roughly 25% lower than the overall death sentence rate. We also examined, through this study and earlier California studies, more general data on gender disparities in death sentencing and found substantial gender-of-defendant and gender-of-victim disparities.  Women guilty of capital murder are far less likely than men to be sentenced to death, and defendants who kill women are far more likely to be sentenced to death than defendants who kill men.  We argue that all of these findings are consistent with chivalric norms, and we conclude that, in the prosecutors' decisions to seek death and juries' decisions to impose it, chivalry appears to be alive and well.

Feds prosecuting active NY advocate of jury nullification

Today's New York Times has this really interesting article about a really notable federal prosecution of a really interesting proponent of jury nullification.  The piece is headlined "Jury Nullification Advocate Faces Indictment," and here are excerpts:

[I]t was not his silence that landed Mr. Heicklen, a retired Penn State University chemistry professor, in court; it was what he had been doing outside the federal courthouse at 500 Pearl Street.

Since 2009, Mr. Heicklen has stood there and at courthouse entrances elsewhere and handed out pamphlets encouraging jurors to ignore the law if they disagree with it, and to render verdicts based on conscience.

That concept, called jury nullification, is highly controversial, and courts are hostile to it. But federal prosecutors have now taken the unusual step of having Mr. Heicklen indicted on a charge that his distributing of such pamphlets at the courthouse entrance violates the law against jury tampering. He is to appear in court on Friday for a conference in his case.

Mr. Heicklen insists that he never tries to influence specific jurors or cases, and instead gives his brochures to passers-by, hoping that jurors are among them. But he feels his message must be getting out, or the government would not have brought charges against him.

“If I weren’t having any effect, would they do this?” said Mr. Heicklen, whose former colleagues recall him as a talented and unconventional educator. “You don’t have to be a genius to figure this thing out.” Prosecutors declined to comment on his case, as did Sabrina Shroff, a lawyer who was assigned to assist Mr. Heicklen. (He is acting as his own lawyer.)

He said his activism on nullification dated back to just after he retired in the early 1990s, when he openly smoked marijuana in State College, Pa., to get arrested as a protest against marijuana laws. For this, he was arrested about five times. Mr. Heicklen has said that he otherwise does not smoke marijuana.

Around the same time, he learned about a group called the Fully Informed Jury Association, which urges jurors to nullify laws with which they disagree. Mr. Heicklen, of Teaneck, N.J., said he distributed the group’s materials as well as his own. “I don’t want them to nullify the murder laws,” he said. “I’m a big law-and-order guy when it comes to real crime.” But, he said, there were other laws he wanted to nullify, like drug and gambling laws.

“This is classic political advocacy,” said Christopher T. Dunn, associate legal director of the New York Civil Liberties Union. “Unless the government can show that he’s singling out jurors to influence a specific verdict, it’s squarely protected by the First Amendment, and they should dismiss the case.”

But Daniel C. Richman, a former prosecutor who teaches criminal law at Columbia, said there was an interest in ensuring the integrity of the jury process. “The government has to walk a fine First Amendment line bringing these charges,” he said, “but lawless jury behavior is certainly of concern to it, too.”

Mr. Heicklen says that when he stands outside the court, he holds a sign that reads “Jury Info” to draw people to him. “Sometimes they think I’m official,” he said. He answers questions and advises that jurors have the right to nullify.

Jessica A. Roth, a Cardozo law professor, said such activities could confuse and mislead jurors, since “the information he’s giving these people is likely to be in direct conflict with the instructions they will receive from a judge if they are jurors in a case.” Mr. Heicklen, a Cornell graduate, taught for more than 20 years at Penn State, where he was a faculty member known for his innovative methods, former colleagues said.... Barbara J. Garrison, who heads the Penn State chemistry department, called Mr. Heicklen “an enormously creative scientist” who “really liked to think outside the box and sometimes that meant that he ran counter to the establishment.”

About his earlier marijuana arrests, Ms. Garrison said, “He had his own way of doing it, but he was really fighting for people who were in jail that he didn’t think belonged in jail.”

Court records show Mr. Heicklen has been cited at least six times since October 2009 for distributing fliers without a permit at the entrance of the Manhattan federal courthouse. But the violations, which carry fines, do not depend on the content of his message. If convicted of the jury tampering charge, he could face a six-month sentence.

Thoughts, dear readers?

Prisoner serving life who murdered guard in Washington saying he should get death penalty

This local story out of Washington, which is headlined "Documents: Inmate wants death for killing correctional officer," provides an interesting bit of extra information about a high-profile murder case. Here are the details:

Byron Scherf, the inmate who has confessed to strangling Monroe correctional officer Jayme Biendl to death, wants the death penalty, according to court documents obtained by KOMO News.  "I took her life and I think I should forfeit mine," Scherf told authorities, according to the court documents.

He also said he believes prosecutors should try him for aggravated first-degree murder in Biendl's death and seek the death penalty.  "If I get a life sentence and she's dead, then there's no punishment attached to it because I already have a life sentence," Scherf told detectives on Feb. 9, according to the documents.

According to court records released earlier, Scherf admitted killing Biendl Jan. 29 at the prison chapel of the Monroe Correctional Complex in an interview with Monroe police detectives. Scherf told detectives that Biendl said something that made him angry as they were talking in the prison chapel.  "I got to the point where I knew I was going to kill her," he told detectives, according to a transcript of the interview.

Recent related post:

• Another capital classic: Washington prisoner serving LWOP suspected in guard murder

Local DA in Georgia makes pitch against sentencing guidelines and for more judicial discretion

Everyone familiar with sentencing debates in the federal system knows the usual terms of modern debates over sentencing guidelines and judicial discretion: federal prosecutors are typically arguing for the federal guidelines to have more bite, while defense attorneys are typically saying that federal judges need to be afforded ample discretion to fit punishments to the unique facets of individual cases and offenders.  Sophisticated observers also know that it is the relatively severity of the federal guidelines that in large part account for why federal prosecutors like them and federal defense attorneys like judges to have ample discretion to sentencing outside these guidelines.

Those long accustomed to this long-standing debate over federal sentencing dynamics should find especially interesting this local opinion piece from Georgia, headlined "D.A.’s Corner: Punishment must fit the crime."  In this piece, the local district attorney for the Griffin Judicial District, Scott Ballard, makes a pitch against sentencing guidelines for Georgia. Here are excerpts:

There is a movement underway to implement sentencing guidelines in Georgia.  Federal courts have used them for years.  They work like this.  Each crime carries a sentence that is almost set in stone.  The judge has the leeway to add a few months to the required sentence.  Or, if there is reason to reduce the sentence by a few months, that can be done, too.

Proponents argue that it is fairer.  They don’t like our current arrangement which gives the judge wide latitude to sentence.  For example, burglary can carry a sentence of from 1 to 20 years.

Here’s the problem.  Each crime is different.  Each criminal is different.  If we are to be fair, judges must be allowed to fit the punishment to the crime....  Sentencing guidelines won’t allow the wiggle-room that is necessary.

Here’s another problem with sentencing guidelines.  Criminals fear the unknown. Mandatory sentences work against us.  I know from negotiating with defense attorneys that drug dealers sent by Mexican cartels have factored the federal sentences into their deal.  They know exactly what the punishment will be if they are caught. It becomes just a risk of doing business.  You should see their disappointment when they learn that our judges aren’t boxed in like federal judges are.  The life sentence they could face with us wasn’t what they bargained for.

There is another reason sentencing guidelines are a bad idea.  The risk of a significantly tougher sentence after a trial induces defendants to plead guilty to a lesser sentence of a guaranteed length.  That reduces the cost of unnecessary trials and permits us to focus our energies on the cases that really require a trial.  We avoid backlogs and enjoy the benefits that come from the swift disposition of criminal cases.

With sentencing guidelines, the incentive to plead is decreased — the sentence will be similar whether the defendant admits guilt or forces a trial.  And if he forces a trial, a lengthy appeal is certain to follow.

Experienced federal sentencing practitioners surely know that this local DA is somewhat off when boldly asserting that mandatory sentencing schemes necessarily reduce incentives to plead guilty.  Nevertheless, it seems clear that this DA is uniquely concerned that any proposed guidelines in Georgia would be set at relatively lenient levels because of the state's prison crowding and budget problems.  With that backdrop, it is understandable that this DA fears a new legal regime for the state, and it is telling that we are hearing a prosecutor extol the virtues of giving judges very broad discretion at sentencing.

Two notable case notes in latest Harvard Law Review

The February 2011 issue of the Harvard Law Review includes brief notes on two significant federal circuit court rulings that have both gotten considerable attention on this blog:

Second Circuit Holds Within-Guidelines Child Pornography Sentence Procedurally and Substantively Unreasonable. — United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010)

En Banc Seventh Circuit Holds Prohibition on Firearm Possession by Domestic Violence Misdemeanants to Be Constitutional. — United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc)

Breaking news on state killing: there is now an app for that!

I received via e-mail yesterday this notable news from the Death Penalty Information Center about being able to follow the death penalty while "on the go": 

The Death Penalty Information Center is pleased to offer a new mobile application for the iPhone, iPad, and iPod Touch.  This FREE application provides access to the most frequently used resources on DPIC's main website, including our Fact Sheet on the Death Penalty, our Execution Database, and the most recent death penalty news from around the country.  Click here to download the mobile application through iTunes. 

Users may also download the mobile application directly from the App Store on their mobile device by searching for "DPIC" or "Death Penalty Information Center."  Please let us know if you’d like us to add other resources.

This new post from the folks at the Houston Press, headlined "Death Penalty: Your Newest App," provides a fittingly cheeky review and follow-up on this latest new media development:

Have your Angry Birds gone postal?  You might need the newest app, from the Death Penalty Information Center....

DPIC is also asking people if they'd like other resources added to the app.

A last meals database?

A countdown clock for attorneys trying to file paperwork with Sharon Keller?

Up-to-date availability and pricing information on hard-to-get euthanizing drugs?

Let them know.

Though I am inclined to poke fun at the development of DPIC's app, I am also eager to seriously urge other leading resources on crime and punishment to consider the opportunity for using new media for information dissemination.  I really would love to see the US Sentencing Commission develop a sophisticated app to enable researchers and practitioners with easy and ready access to federal sentencing data.  Similarly, it would be great to have an app that assembles, organizes and effectively presents crime rates, recidivism statistics and corrections data for various jurisdictions.

Problems with kidney transplant plans for Mississippi sisters given early prison release

Regular readers likely recall the sentencing story from late last year, blogged here, concerning Mississippi Governor Haley Barbour's decision to grant early release from prison to two sisters serving unusually long sentences for armed robbery.  What made the story especially notable was Barbour's comments that he decided to suspend the sentences in light of the poor health of one sister, who requires regular dialysis, and that the other sister's release was contingent on her giving a kidney to her sibling.  This new ABC News story, headlined "Scott Sisters Must Lose Weight to Comply With Prison Release," provides the latest development in this high-profile case:

The Scott sisters who were released from a Mississippi prison last month on the condition that one donate a kidney to the other will have to wait until they lose weight before they can perform an organ transplant.

Their doctor told Jamie Scott -- who is 38, 5-feet tall and weighs 254 -- that she has to lose about 100 pounds before she can receive her sister's kidney.  Gladys -- who is 36, 4-feet-9 and weighs 185 -- has to lose about 40 pounds and quit smoking.

Though I have never aspired to be a TV executive, this story does inspire me to propose a new season of The Biggest Loser: Clemency Edition.  In addition to the Scott sisters, the 500-pound Dutch prisoner (remember him?) who claims he is subject to inhuman punishment because he is too big for a cell could also be on the show.  (And Governor Haley Barbour himself could probably benefit from spending a few weeks training with Jillian Michaels, especially if he wants to be in shape for a presidential run next year.)

"Judge tells Lindsay Lohan plea deal will mean jail"

The title of this post is the headline of this AP report on the latest development in the theft charges pending against Lindsay Lohan.  Here are the basics:

A judge told Lindsay Lohan on Wednesday he would sentence her to jail if she accepted a plea deal from prosecutors to avoid trial for allegedly stealing a $2,500 necklace from an upscale jewelry store.

Los Angeles Superior Court Judge Keith Schwartz tersely told the troubled starlet what she could expect if she pleaded guilty or no contest in the felony case. "If you plead in front of me, if this case is resolved in front of me, you are going to jail," Schwartz said. "Period."

But if she rejects the deal, and a judge determines there's enough evidence to order her to stand trial, she could be punished because she was still on probation for a 2007 drunken driving case when the necklace was stolen.  That could mean Lohan -- who has pleaded not guilty -- is sentenced to jail before the theft case is even tried....

Lohan told the judge she understood his comments, and left the courtroom clutching her mother's hand. She and her attorney didn't speak to reporters, but her father, Michael Lohan, told those gathered outside the courthouse that the case is being over-prosecuted. "I don't see Lindsay as a criminal," he said. "This is all a result of her addiction."

The necklace case has become the latest trouble for Lohan, who was sent to jail twice and rehab twice last year for violating her probation in the drunken driving case.  The troubled starlet seems to keep running into trouble -- she was cited for speeding around 9 p.m. Monday in West Hollywood, reportedly driving 59 mph in a 35 mph zone, said sheriff's spokesman Steve Whitmore.

The judge told Lohan that he was treating her as he would any other defendant, and that he wanted her to get the case resolved.  "I want you to get on with your life," Schwartz said.  Schwartz also said that he thought Lohan should receive psychological counseling as a condition of her probation if it is re-instated. 

As I have said before, though I am disinclined to invest too many blog posts (or brain cells) concerning LiLo's fate and future, I do think her case shine an interesting (and important?) spotlight on state sentencing policies and practices and the challenges posed by a low-level repeat offender who cannot seem to stay out of trouble.  

Though perhaps commentators feel differently, I suspect that relatively few persons really think that a short (or even long) period in jail is likely to significantly help Lohan get her life and behavior straightened out.  And yet, I fully understand Judge Schwartz's inclination to make perfectly clear that a guilty plea on this theft charge is not going to be "rewarded" with an alternative sentence. 

Recent related post:

• Should Lindsey Lohan's lawyer be talking up interest in a plea deal for her client?

Argument transcript in SCOTUS sentence modification case Freeman...

is now available at this link.  I hope to find time to read and comments on this transcript before too long.

UPDATE:  A too-quick review of the transcripts reveals that all the Justices (save, of course, the always silent Justice Thomas) seem very engaged (and perhaps metaphysically challenged) by the question of just whether and when a federal sentence is "based on" the sentencing guidelines.  Especially interesting is how the Justices work around to wondering collectively whether, now that Booker has made the guidelines merely advisory, any federal sentence imposed after Booker can or should be deemed "based on" the guidelines.

Even though the oral argument never discusses the rule of lenity, and even though the philosophical foundation for the rule of lenity might not be considered directly applicable in this specific setting, the Justices' interesting debate concerning the meaning and reach of the statutory term "based on" in 3582(c)(2) might well be sensibly resolved by the Court concluding, in essence, that an "interpretive tie" should goes to the criminal defendant in this little case. 

Border vigilante who engineered double murder sentenced to death in Arizona

As detailed in this CNN article, which is headlined "Jury decides on death penalty for woman who headed vigilante squad," a high-profile murder trial culminated in a high-profile death sentence yesterday in Arizona.  Here are the details:

Arizona jurors decided an anti-illegal immigration activist -- portrayed as the ringleader of a hit squad -- should receive the death penalty for the killings of a Latino man and his 9-year-old daughter, a court spokeswoman said Tuesday.  The Pima County jury's decision, which was unanimous, is binding....

Forde showed no emotion as the verdict was read, according to CNN Tucson affiliate KGUN.  Her attorney, Eric Larsen, said he "fully expected that this community valued human life greater than this jury did."

Juror Angela Thomas told KGUN, "We chose death because that's what seems fair. There's a little girl in this equation whose father won't be able to walk her down the aisle," she said.  Forde was convicted February 14 on eight counts, including two counts of murder for the shooting deaths of Raul Flores and his daughter, Brisenia, and the attempted murder of the child's mother, Gina Gonzales.

The vigilante attacks were in May 2009.  The child and her father were American-born U.S. citizens but were targeted by Forde and her hit squad. Her alleged accomplices, Albert Robert Gaxiola and Jason Eugene Bush, are scheduled to go on trial later this year.

During the trial, prosecutors portrayed Forde as the ringleader, saying she had planned the raid and the murders to steal weapons, money and drugs to finance a new anti-illegal immigration outfit.  The trio picked the Flores home, prosecutors said, because Gaxiola claimed they would find drugs there.  While Flores had a history of drug-related offenses, no drugs were found in the house.

Gina Gonzalez gave a victim impact statement last week. "I miss my husband, I miss my daughter, I miss my family, I miss my life ... and that's all because of a choice she made," Gonzales said of Forde, according to CNN Tucson affiliate KVOA.

The defense told the jury that Forde has a personality disorder caused by a childhood of abuse, abandonment and living in seven different households by the age of 5, according to KVOA.

SCOTUS considers crack sentence reduction authority and reverses another Ninth Circuit habeas decision

Today's Supreme Court action includes some criminal justice work that ought to interest sentencing fans.  This morning brings oral argument in Freeman v. US, which concerns eligibility for a sentence reduction under 18 U.S.C. § 3582(c)(2) when as sentence was imposed pursuant to a Rule 11(c)(1)(C) plea agreement (SCOTUSblog coverage here).  This new article in the Louisville Courier-Journal, headlined "US Supreme Court to consider Louisville man's crack-cocaine sentence," provides effective background on the case.

In addition, the Justices handed down a unanimous opinion in the habeas case Walker v. Martin (available here).  Here is how Justice Ginsburg's opinion for the Court starts and ends:

This case concerns California’s time limitation on applications for postconviction (habeas corpus) relief.  The question presented: Does California’s timeliness requirement qualify as an independent state ground adequate to bar habeas corpus relief in federal court?...

For the reasons stated, we find no inadequacy in California’s timeliness rule generally or as applied in Martin’s case.  The judgment of the United States Court of Appeals for the Ninth Circuit is therefore Reversed.

"Money is gone, but Proposition 36's drug-treatment mandate remains"

The title of this post is the headline of this very interesting piece from the Oakland Tribune concerning California drug sentencing laws and programs.  Here are excerpts:

County officials who administer the state's treatment-not-jail program for certain drug offenders are struggling with a lack of funding that's not likely to improve, but advocates say ignoring the mandate simply isn't an option.  Instead, officials are trying to figure out how they'll continue to provide the same treatment without the money to pay for it.

Enacted by 61 percent of voters in November 2000 as Proposition 36, the law says first- and second-time nonviolent, simple drug possession offenders must be given the opportunity to receive substance-abuse treatment instead of jail time.  That "must" isn't a suggestion; it would take another voter-approved ballot measure to undo it.

But Prop. 36 allocated $120 million per year for only five years, and as the state's budget crisis worsened, the Legislature and governor declined to ante up.  They set aside $108 million in 2008-09 but just $18 million in 2009-10, and then zeroed it out for this current fiscal year.  Gov. Jerry Brown's budget proposal includes no money for it in 2011-12.  A $45 million infusion of federal economic stimulus funds in 2009 is now all but gone, and the coffers are empty.

So, it's a mandate with no money, but a mandate nonetheless: Someone who's eligible and demands treatment can't just be sent to jail....

Santa Cruz County has announced it's "phasing out" Prop. 36 by no longer having two probation officers dedicated to monitoring participants.  But the Drug Policy Alliance, which essentially was Prop. 36's proponent, said that sort of language can be misleading: Any county's refusal to offer eligible defendants treatment instead of jail could invite lawsuits....

[T]he Drug Policy Alliance says Prop. 36 at its peak was helping 36,000 people a year, and a UCLA study said every $1 invested in Prop. 36 treatment saved the state between $2.50 and $4 in incarceration costs.  That's added up to $2 billion in savings, [said Margaret Dooley-Sammuli, the alliance's deputy state director], and that should've been enough to win more budget support.

"We wanted voters to see that the program they approved would have to prove itself over time and also wanted to allow legislators to expand funding once they saw that the program delivered on its promises," she said.  "Alas, the power of denial is strong among legislators and the self-interested, evidence-be-damned law enforcement lobby."