Sentencing Law and Policy

Houston judge gets ACLU heat for offering bible study as alternative sentence

This local alternative sentencing story from Houston, which is headlined "Judge's sentence involving Christian book causes controversy," became a focal point for some national media buzz today.  Here are the details:

A new judge is trying to find a new way to punish criminals, but one of his ideas, involving a book report, is drawing fire. Judge John Clinton took the bench in January. The retired Houston Police Department sergeant presides over Harris County Criminal Court No. 4.

“I felt it as a calling,” said Clinton. “I’m just trying to think outside the box. Trying to mold the punishment to help these individuals, instead of set them up to fail.”

That’s what Clinton says he was doing last week when he offered nine defendants a unique opportunity in place of community service. He asked them to read the book “The Heart of the Problem” and then come back in a few months and talk with him about the book. “The Heart of the Problem” is a Bible study that touts itself as a workbook that provides insights for victorious Christian living. The suggestion didn’t sit well with some attorneys who say the judge is violating the constitution.

“That is illegal, unconstitutional and unfair,” said Houston criminal defense attorney Dan Gerson. “We are offended, as far as preaching from the bench, especially by requiring people, or asking people that they perform religious study in lieu of serving their sentence.”

The topic was debated at a Harris County Criminal Lawyers Association meeting Monday morning. “I do not think he had any malicious intent, what trouble me ultimately is his apparent misunderstanding of the first amendment,” said Houston criminal defense attorney Brett Podolsky.

But Clinton says forcing beliefs on defendants is not something he set out to do. “All I was trying to do was help,” he said. “I was told about the book. I received the book. I read the book. I thought, ‘Hey this is a great book.’ Again, me thinking based on my faith, not thinking in general.”

Now, realizing it was a mistake, the judge has stopped offering the option. “Yes, it stopped. I’m just trying to regroup and find the right thing to try and fit what I’m trying to do,” he said.

The judge says he’s looking for alternative ways to try to get defendants on the right track. He’s having some write essays based on their experience in the criminal justice system. In other cases, he’s making community service specific to the defendant.

“I think this is a man that we really need to get behind,” said Houston criminal defense attorney Stanley Schneider.  “Anyone who wants to take the innovative, and trying to do something to help people in his courtroom to succeed in life, he’s someone we need to applaud.”

Monday evening, a spokesperson for the American Civil Liberties Union of Texas released a statement regarding the controversy: “The idea that a judge would use the power of the bench to coerce individuals appearing before him into accepting his religious beliefs offends the Constitution and should offend all Houstonians,” said Dottie Griffith of the American Civil Liberties Union of Texas.  “If true, Judge Clinton’s actions are patently illegal.”

Clinton said if any of the defendants who were sentenced to reading the book would like to choose something else, they are welcome to do so.

Seond Circuit discusses (and defends) illegal reentry guideline

The Second Circuit has interesting little federal sentencing opinion today in US v. Perez-Frias, No. 10-1401 (2d Cir. March 31, 2011) (available here), which engages and largely rejects a number of broadside attacks on the illegal reetry guideline. Here is how the opinion starts and a key passage:

Defendant Pedro Ruben Perez-Frias (“Perez-Frias”) pleaded guilty to one count of illegally reentering the United States without permission after having been deported following a conviction for the commission of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2).  The United States District Court for the Southern District of New York (Chin, J.) sentenced Perez-Frias principally to 42 months’ imprisonment. Perez-Frias challenges only the substantive reasonableness of his sentence, arguing [1] that the district court’s sentence was unduly harsh in view of the 18 U.S.C. § 3553(a) factors and [2] that the 16-level enhancement applicable to reentrants with certain prior convictions (a) is not based on review of past sentencing practices and empirical studies, (b) is overly harsh compared to Guidelines applicable to more serious crimes, and (c) is greater than necessary in view of districts that have “fast track” programs. We affirm....

Perez-Frias argues that the 16-level Guideline enhancement for reentry is deficient because the Commission arrived at it without reference to specific empirical data. In support, Perez-Frias cites the Supreme Court’s decision in Kimbrough, 552 U.S. at 109, holding that district judges are entitled to conclude that the crack cocaine Guideline was greater than necessary to meet the standards of § 3553(a) if they believe the Guideline “do[es] not exemplify the Commission’s exercise of its characteristic institutional role”; and our recent decision in United States v. Dorvee, 616 F.3d 174, 184 (2d Cir. 2010), holding that “the Commission did not use [an] empirical approach in formulating the Guidelines for child pornography” and instead amended the Guidelines at the direction of Congress.

However, the absence of empirical support is not the relevant flaw we identified in Dorvee.  We criticized the child pornography Guideline in Dorvee because Congress ignored the Commission and directly amended the Guideline, which had the effect of “eviscerat[ing] the fundamental statutory requirement in § 3553(a) that district courts consider ‘the nature and circumstances of the offense and the history and characteristics of the defendant.’” See 616 F.3d at 184-86, 187.  There is no such flaw in the reentry Guideline. Congress did not bypass the usual procedure for amending the Guidelines with respect to illegal reentry cases.  To the contrary, the 16-level enhancement in § 2L1.2 was based on the Commission’s own “determin[ation] that 20 these increased offense levels are appropriate to reflect the serious nature of these offenses.” U.S.S.G. Appx. C (amend. 375, Reason for Amendment”).

Budget issues prompt big talk of big prisoner release in Alabama

As detailed in this local article, headlined "3,000 Alabama inmates may be released," budget realities may mean that a tide of prisoners may soon be rolling out of cells in Alabama. Here is how the article starts:

The state finance director said Wednesday that 3,000 Alabama prison inmates convicted of nonviolent crimes will have to be released if the Legislature adopts the General Fund budget proposed by Gov. Robert Bentley.

State Finance Director David Perry, who was appointed by Bentley, told a joint meeting of the House and Senate judiciary committees that the cuts required in the governor's budget will force a reduction in the number of prison inmates.

Perry made the dramatic announcement as members of the two judiciary committees were discussing a package of more than 20 bills supported by Chief Justice Sue Bell Cobb that are aimed at reforming Alabama's sentencing procedures and reducing the number of prison inmates.

The overall message of the day: Through budget cuts, sentencing reform or both, the state's prison census needs to come down. "The governor's budget assumes there will be a lower inmate count. One way to do that is to apply some of these reforms," Perry said. He told committee members that releasing prisoners because of sentencing reform would be "more responsible" than letting them go because of budget cuts.

Perry said the governor's office has examined the prison rolls and found about 4,000 prison inmates who committed nonviolent crimes and are not sex offenders, who are within 12 months of their release date. The Alabama Department of Corrections had charge of 31,911 inmates altogether in November 2010, the most recent statistical report on the department's website.

New ACLU report assails racial skew in drug sentencing in Mississippi

As detailed in this AP article, the "American Civil Liberties Union has released a report calling on Mississippi to revamp sentencing laws the group says disproportionately impose harsher penalties on drug offenders who are black, and fuel a high incarceration rate."  Here is more:

The report, “Numbers Game: The Vicious Cycle of Incarceration in Mississippi’s Criminal Justice System,” focused on the state’s mandatory minimum sentencing laws, the use of informants and the use of federal crime-fighting funding.

Nsombi Lambright, ACLU Mississippi executive director, left copies of the report with key lawmakers Monday in hopes of inspiring future legislation. “We’d also like to see a state funded indigent defense system established. Most of those serving long prison sentences were represented by public defenders who were not prepared for their cases and that leads to more racial disparity,” Lambright said.

The report said the state’s criminal code has a rigid and excessive schedule of mandatory minimum prison terms for drug possession that vary according to the weight of the drugs involved.  For example, an individual possessing less than one-tenth of a gram of cocaine — about a tenth of what’s in the size of a sugar packet — can be charged with a felony, which carries a mandatory minimum sentence of one year in prison.

This ACLU press release details some other aspects of this new report:

The report reveals that while the use of confidential informants is a cornerstone of the state’s regional drug task force operations, the practice is shrouded in secrecy. As part of the investigation that led to the creation of the report, the ACLU of Mississippi spent nearly two years seeking basic information about the nature and extent of the practice by requesting access to documents that state officials acknowledged should be publicly available under the Mississippi Public Records Act. Yet no access was ever given.

Law enforcement justifies the practice of using confidential informants – especially in drug cases – as an essential means for identifying those who commit crimes and for securing their convictions. But the many perverse incentives embedded in the practice invite abuse and disparity, undermining the fundamental legitimacy of the criminal justice system.

The report offers a number of solutions for improving the effectiveness and fairness of the state’s criminal justice system, including replacing mandatory minimum sentences with a flexible set of sentencing standards and guidelines, requiring corroboration of testimony by all informants and making information regarding the reporting requirements and evaluations of drug task forces publicly available.

The full report can be accessed at this link.

"Danish company won't stop US execution drug"

The title of this post is the headline of this new AP piece.  Here are the details:

A Danish company that unwittingly has become a key supplier of an execution drug in the U.S. says it's not going to withdraw or restrict it, even though it objects to the chemical being "misused" for capital punishment.

CEO Ulf Wiinberg told AP on Wednesday that Lundbeck A/S is doing "all we can" to dissuade U.S. states from using pentobarbital for lethal injections, but won't pull it from the U.S. market.  He said Lundbeck also decided against rewriting U.S. distribution contracts to prevent the drug from being sold to prisons.  Wiinberg says "we don't believe it will work and we will not do it."

Are we really "at a critical moment for public safety in the United States"?

The question in the title of this post is inspired by a phrase used by Laurie Robinson, the Assistant Attorney General for DOJ's Office of Justice Programs, in her testimony before the House Appropriations Subcommittee on Commerce, Justice, Science and Related Agencies (available here). Here is the context:

Mr. Chairman, I believe we’re at a critical moment for public safety in the United States. Crime rates, as you know, have fallen in recent years thanks to innovative criminal justice approaches and visionary police leadership.  At the same time, state, local and tribal public safety agencies across the country are facing significant budget-related challenges that threaten their ability to do their jobs.  I think we have a responsibility at the federal level to see that they have the tools and knowledge they need to fight crime in the most effective way possible.

OJP’s mission is to help reduce crime and improve the administration of justice by promoting innovation, supporting research, and providing strategically targeted assistance.  The President’s FY 2012 request reflects three central themes: enhancing partnerships; strengthening science and evidence-based programming; and ensuring effective stewardship of federal funds.

Because I am not a budget maven and do not follow federal justice expenditures that closely, I do not know if President Obama's budget proposals for DOJ in general or for OJP in particular are ideal or even sound.  But I do know that political rhetoric in recent election cycles has given precious little attention to crime and punishment issues.  But perhaps it is only politicians and the voters they are trying to influence who do not realize that we are at a critical moment for public safety in the United States.

Tenth Circuit rejects interesting attack on BOP policy concerning RDAP early release

The Tenth Circuit has an interesting opinion today in Licon v. Ledesma, No. 10-6166 (10th Cir. March 30, 2011) (available here), on a federal prison topic that (too?) rarely gets litigated.  Here is how the opinion starts: 

Ortino Licon challenges a Bureau of Prisons (BOP) policy and regulation that denies him eligibility for an early release program because he was convicted of felon in possession charges.  The BOP has authority to reduce a nonviolent offender’s term of imprisonment upon successful completion of a drug rehabilitation program.  The challenged BOP policy categorically denies prisoners convicted of felon in possession charges eligibility for the early release benefit.  Licon contends the policy arbitrarily categorizes every inmate convicted of firearm possession charges as violent offenders.  We conclude the BOP’s policy is not arbitrary, and therefore the BOP acted within its discretion by excluding inmates convicted of felon in possession charges.

"Current Directions in Violence Risk Assessment"

The title of this post is the title of this new paper by Jennifer Skeem and John Monahan, which is now available via SSRN. Here is the abstract:

A variety of instruments have been published over recent years that improve clinicians’ ability to forecast the likelihood that an individual will behave violently.  Increasingly, these instruments are being applied in response to laws that require specialized risk assessments.  In this article, we present a framework that goes beyond the "clinical" and "actuarial" dichotomy to describe a continuum of structured approaches to risk assessment.  Despite differences among them, there is little evidence that one validated instrument predicts violence better than another.  We believe that these group-based instruments are useful for assessing an individual’s risk, and that an instrument should be chosen based on an evaluation’s purpose (i.e., risk assessment vs. risk reduction).  The time is ripe to shift attention from predicting violence to understanding its causes and preventing its (re)occurrence.

"Willie Nelson Could Sing for His Freedom in Texas Pot Case"

A helpful reader altered me to this amusing story from Fox News sharing the headline of this post.  Here are the details:

The prosecutor in Willie Nelson's marijuana possession case said the country music legend could get off with just a fine if he agrees to sing one of his songs in court, TMZ reported Monday.

Nelson, 77, was busted at a border patrol checkpoint in Sierra Blanca, Texas, en route to Austin on November 25 last year.  He was arrested but released when he posted $2,500 bond at Hudspeth County Jail.

The prosecutor in the case said he was willing to let Nelson off with a $100 fine if Nelson performed his song "Blue Eyes Smiling in the Rain" in the courtroom, TMZ said.  The prosecutor reportedly said the song would count as Nelson's community service.

If Nelson chooses not to accept the prosecutor's offer, he could face a maximum of 180 days in jail and a $2,000 fine if convicted when he appears in court, at a date yet to be decided.

Any and all comments with appropriate jokes/puns involving Texas justice, marijuana, Willie Nelson and/or singing as a sentence will be greatly appreciated.

UPDATE:  Thanks to another helpful reader, I have now learned about breaking news here from the AP on this landmark case-in-the-making:

A Texas judge says Willie Nelson won't have to sing in court to resolve marijuana possession charges -- and a suggestion that he do so was a joke....

Judge Becky Dean-Walker demanded Nelson appear in court, not plead by mail [and] Dean-Walker told The Associated Press she thinks the prosecutor was trying to be funny, "and it got out of hand."  She said Tuesday that Nelson can plead guilty without coming to court and singing.

You make the call: what sentence should Detroit's Granny Valjean get for Social Security fraud?

Here is a fitting challenge not only for all sentencing practitioners, but for anyone else who likes to imagine wearing a black robe and dispensing sentencing justice.  This Friday in Detroit, as detailed in this local article, a notable and sad federal prosecution reaches sentencing: 

Her mentally ill son was in prison.  Her daughter was battling drug addiction.  And her five grandchildren were in danger of being sent to foster care.  So Mary Alice Austin of Detroit, who said she needed money to raise the grandkids, paid someone to pose as her son so she could continue receiving his disability benefits, court records show.

During the 20 years her son was in prison, Austin, 67, received nearly $120,000 in Social Security benefits, records show.  Now, she may be headed to prison after pleading guilty to the fraud. She is to be sentenced Friday....

Austin's lawyer and grandchildren are pleading for mercy.  "My grandmother has been in my life since I was born.  If she hadn't (been), no telling what would of happened to me or my siblings," one grandson wrote to the judge....

On Friday, Mary Alice Austin will be sentenced for unlawfully accepting her son's Social Security checks, pretending to care for him even though he was in prison for 20 years for armed robbery and drug offenses.  Under a plea deal, she faces 10 to 16 months in prison.

Court documents show Austin paid someone to pose as her mentally disabled son to get his government checks.  Austin, who was raising her five grandchildren, stole nearly $120,000 during two decades -- about $6,000 a year.

Austin's family members and attorney say she was just trying to survive.  The government maintains she broke the law, using deception and trickery....

"Although Ms. Austin regrettably continued to accept her son's Social Security checks unlawfully, she did not use the money to live beyond her means or to live a lavish lifestyle," Austin's lawyer, Natasha Webster, wrote in court documents.  Webster is pleading for leniency on behalf of her client.  She has asked U.S. District Judge Victoria Roberts to sentence Austin to home confinement rather than prison. "Significantly, she has accepted responsibility for her actions," Webster wrote.

Austin's two grandsons also have written the judge letters.  One, age 12, writes: "We didn't have much but what we did have she made it work ... I'm just asking you don't take my grandmom away from us."

But Austin must pay a price for her crimes, including "some period of incarceration," Assistant U.S. Attorney Blondell Morey argued in court documents.  "There is little need in this case to deter or protect the public from a 67-year-old grandmother," Morey wrote in a March 23 filing.  "However, defendant must be punished for a crime that earned her over $100,000 and took place over 20 years."

Morey also pointed out that Austin has a criminal record, including a conviction for welfare fraud, which happened during the Social Security scheme.  "This was not a crime of opportunity, but one committed over two decades," Morey wrote.  "Her most egregious acts were hiring, on three separate occasions, someone to impersonate her son to the Social Security Administration."

So dear readers, if you were in the position of US District Judge Victoria Roberts and thus had to impose later this week a sentence upon Mary Alice Austin that is be "sufficient but not greater than necessary" to achieve federal sentencing purposes, what sentence would you select? 

Prescription forger seeks sentencing delay with forged doctor's note

From the "you can't make this stuff up" file come this local sentencing story from California, headlined "Woman in court for sentencing allegedly presents forged doctor's note, then collapses."  Here are the particulars:

A 41-year-old woman who was in court this morning to be sentenced for prescription drug forgery allegedly presented a forged doctor’s note in an attempt to delay the proceedings, and then collapsed when the judge ordered her back into custody, according to a prosecutor.

Michelle Elaine Astumian, who had been out of jail after posting $45,000 bail, was scheduled to be sentenced today by Judge Barry LaBarbera to four years and eight months in state prison.  She had pleaded no contest in January to two counts of forging a drug prescription and one count of using a fraudulent check.  Each count is a felony.

But before the sentencing Deputy District Attorney Dave Pomeroy said that Astumian presented a doctor’s note stating that her sentencing should be postponed.  Pomeroy called the doctor whose name was signed on the note, and the doctor told him that the note was forged.

Pomeroy said that he reported the alleged forgery to LaBarbera, who ordered Astumian into custody.  She then fell to the floor, prompting the judge to clear the courtroom for about 30 minutes.  An ambulance arrived and took Astumian to a local hospital.

It’s very unusual for a defendant to react in the manner that Astumian did, Pomeroy said. “I’m trying to approach her reaction with understandable skepticism,” Pomeroy said.  Pomeroy said that Astumian will need to be brought back to court to be sentenced, but he wasn’t sure exactly when that might happen.

Third Circuit finds procedurally(?!?) unreasonable two below-guideline white-collar sentences

The Third Circuit has an interesting ruling today in US v. Negroni, No. 10-1050 (3d Cir. March 29, 2011) (available here), in which two white-collar defendants have their below-guideline sentences vacated.  Here are a few snippets from the Negroni opinion that provides an incomplete summary :

The United States appeals orders of the United States District Court for the Eastern District of Pennsylvania sentencing Appellee James Hall to fifteen months' imprisonment and Appellee Paul Negroni to five years' probation, including nine months' in-home detention.  Because the District Court committed procedural error in reaching both of those sentences, we will vacate the orders and remand for resentencing....

These consolidated cases spring from a massive fraud scheme organized and conducted by a man named Kevin Waltzer. Between the years 2000 and 2008, Waltzer fraudulently obtained more than $40 million in payments from settlement funds in three class action lawsuits...In 2007, the scheme was uncovered by the IRS, and, in cooperation with the IRS investigation, Waltzer began to provide information regarding the other individuals involved, including Hall and Negroni....

Hall's calculated ... Guidelines range called for 46 to 57 months' imprisonment.... For Negroni, the District Court calculated ... a Guidelines range of 70 to 87 months'  imprisonment.  [Hall was sentenced to fifteen months' imprisonment; Negroni got five years' probation, including nine months' in-home detention.]...

[O]ur review is frustrated because, while the District Court individually identified each § 3553(a) factor, it did not discuss some of them and, as to those it did discuss, it did not explain how they justified the frankly dramatic downward variance it gave.  The insufficiency of the explanation prevents us from judging whether the Court “gave meaningful consideration” to the relevant factors and is itself procedural error.

I have placed "(?!?)" as a suffix to the the term procedurally is the title to this post because I sense that it is the substantive outcome much more than the procedures used below that really bothers the Third Circuit in these cases.  Nevertheless, as has been the case in lots and lots of post-Booker reasonableness appeals, it seems that the circuit judges ultimately felt me comfortable declaring the outcome only procedurally unreasonable and thereby giving the district court a second opportunity to consider both the sentencing process and result once more, this time with some added wisdom from this circuit ruling.

Split 5-4 SCOTUS ruling brings deliberate indifference standard to 1983 action against prosecutors

The Supreme Court finally handed down this morning an opinion in Connick v. Thompson concerning potential liability for prosecutorial injustices.  The decision is 5-4 with Justice Thomas delivering the opinion of the Court, Justice Scalia issuing a concurring opinion joined by Justice Alito, and Justice Ginsburg issuing a dissenting opinion joined Justices Breyer, Sotomayor, and Kagan.

The opinion is available here (with the dissent taking up more pages than both the majority and concurring opinions) , and here is an early description of the action from the SCOTUSblog folks:

The decision clarifies the burden of proof under Section 1983 against local governments.  It holds that there must be proof that the injury was caused by official action or policy.  A local government decision not to train some employees about duties under [Brady] may rise to a policy, but the failure to train must be a deliberate indifference to the rights of persons....  The Court holds that a pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference....

The separate Scalia opinion is a response to the dissent, [and] Justice Ginsburg is dissenting from the bench, which the Justices use to signal their broad and serious objection to a majority opinion.

Lots of data and a cool graphic concerning international use of the death penalty

Amnesty International recently published death penalty information for all countries in the world, and the folks at The Guardian have assembled and summarized the information effectively in this piece.  The piece includes the cool graphic spotlighted here, and this text:

Despite fewer countries executing prisoners than ever before, the death penalty is still alive and well around the world.  The latest statistics show that China executes thousands, said Amnesty International in its report on the death penalty worldwide.  Amnesty does not provide a precise figure of executions in China as Beijing keeps such figures secret.

China, together with Iran, North Korea, Yemen and the US carried out the most executions last year, the report says:

• Whilst 67 countries handed down sentences in 2010, only 23 countries actually carried out executions -- just over a third
• The number of official executions reported fell from at least 714 people in 2009 to at least 527 in 2010, excluding China.
• We have also seen fresh steps towards abolition in countries including Belarus and Mongolia...

Setting China aside, Amnesty said at least 527 executions were carried out last year. Almost half of those took place in Iran (252).  North Korea executed 60, Yemen 53 and the US 46. The minimum number of executions was down from at least 714 in 2009.

Methods of execution included beheading, electrocution, hanging, lethal injection and various kinds of shooting (by firing squad, and at close range to the heart or the head).  No stonings were recorded in 2010, but stoning sentences were reported in Nigeria, Pakistan and Iran, where at least 10 women and four men remain under stoning sentences.  At least 2,024 new death sentences were imposed during 2010 in 67 countries, including 365 in Pakistan alone, meaning it has some 8,000 people currently on death row.

New NPR investigative series on private prisons

NPR has this interesting and notable new set of pieces on private prisions:

• Town Relies On Troubled Youth Prison For Profits
• Private Prison Promises Leave Texas Towns In Trouble
• What Is GEO Group?

Here is the start from one of the pieces: 

The country with the highest incarceration rate in the world — the United States — is supporting a $3 billion private prison industry.  In Texas, where free enterprise meets law and order, there are more for-profit prisons than any other state.  But because of a growing inmate shortage, some private jails cannot fill empty cells, leaving some towns wishing they'd never gotten in the prison business.

It seemed like a good idea at the time when the west Texas farming town of Littlefield borrowed $10 million and built the Bill Clayton Detention Center in a cotton field south of town in 2000.  The charmless steel-and-cement-block buildings ringed with razor wire would provide jobs to keep young people from moving to Lubbock or Dallas.

For eight years, the prison was a good employer.  Idaho and Wyoming paid for prisoners to serve time there.  But two years ago, Idaho pulled out all of its contract inmates because of a budget crunch at home.  There was also a scandal surrounding the suicide of an inmate.

Shortly afterward, the for-profit operator, GEO Group, gave notice that it was leaving, too. One hundred prison jobs disappeared. The facility has been empty ever since.

Eleventh Circuit weighs in on ex post facto issues after Booker

Though Booker has been the law of the federal sentencing land for more than six years now, the impact of the decision on ex post facto doctrines concerning guideline application remains unresolved in most circuits (and, it seems, under-litigated in most settings).  Today, the Eleventh Circuit weighs in on this issue in US v.  Wetherald, No. 09-11687 (11th Cir. March 28, 2011) (available here).  Here are passages from the opinion:

This court has yet to directly address the ex post facto implications of Booker on the Guidelines.... Nevertheless, while we have not addressed the question as presented in this case, we have affirmed the underlying principles that led to the application of the Ex Post Facto Clause in our pre-Booker opinions.

Our sister circuits have split on the impact of Booker in regards to the Ex Post Facto Clause.  The Seventh Circuit has taken the view that the Ex Post Facto Clause no longer poses a problem, as it applies “only to laws and regulations that bind rather than advise.” United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006)...  The D.C. Circuit has squarely rejected this position, finding that the application of a harsher Guidelines range in place at sentencing presents a constitutional problem.  United States v. Turner, 548 F.3d 1094, 1099–1100 (D.C. Cir. 2008)....

Because it is consistent both with our interpretation of Supreme Court precedent and this circuit’s jurisprudence, we find the approach taken by the D.C. Circuit more compelling than that of the Seventh Circuit. It is true that the Guidelines are no longer mandatory, but neither are they without force.  The simple reality of sentencing is that a “sentencing judge, as a matter of process, will normally begin by considering the presentence report and its interpretation of the Guidelines.” Rita v. United States, 551 U.S. 338, 351, 127 S. Ct. 2456, 2465 (2007). As the D.C. Circuit noted, “Practically speaking, applicable Sentencing Guidelines provide a starting point or ‘anchor’ for judges and are likely to influence the sentences judges impose.” Turner, 548 F.3d at 1099.  This starting point serves to cabin the potential sentence that may be imposed, and the Supreme Court has recognized that the appeals courts may presume the reasonableness of a sentence that reflects the district court’s proper application of the Sentencing Guidelines. Rita, 551 U.S. at 347, 127 S. Ct. at 2462. We also have acknowledged that “ordinarily we would expect a sentence within the Guidelines range to be reasonable.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Although we have declined to find that a sentence within the Guidelines range is reasonable per se, we have noted that the Guidelines remain “central to the sentencing process” and that “our ordinary expectation still has to be measured against the record, and the party who challenges the sentence bears the burden of establishing that the sentence is unreasonable in the light of both that record and the factors in section 3553(a).” Id. at 787, 788...

Thus, the application of the correct Guidelines range is of critical importance, and it cannot be said that the Ex Post Facto Clause is never implicated when a more recent, harsher, set of Guidelines is employed. But it is equally clear that we need not “invalidate every sentence imposed after a Guidelines range has been increased after the date of the offense.” Ortiz, 621 F.3d at 87.  Rather, we will look to the sentence as applied to determine whether the change created “‘a sufficient risk of increasing the measure of punishment attached to the covered crimes.’” Garner, 529 U.S. at 250, 120 S. Ct. at 1367 (quoting Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 509, 115 S. Ct. 1597, 1603 (1995)). This standard is consistent with our precedent.  As we said in Kapordelis, “While we have held that the district court must correctly calculate the Guidelines before imposing a sentence, we are not required to vacate a sentence if it is likely that, under the correctly calculated Guidelines, the district court would have imposed the same sentence.” 569 F.3d at 1314.  Therefore, we will only find an Ex Post Facto Clause violation when a district judge’s selection of a Guidelines range in effect at the time of sentencing rather than that at the time of the offense results in a substantial risk of harsher punishment.  This standard recognizes the ongoing importance of the Sentencing Guidelines while maintaining the district court’s broad discretion to consider relevant information in formulating an appropriate sentence.

A few related posts on post-Booker ex post issues (with ruling dates in parentheses):

• Seventh Circuit holds ex post facto no longer applicable to guideline changes after Booker (2006)
• DC Circuit produces crisp split on ex post issues after Booker (finally!!) (2008)
• Fourth Circuit rules that Ex Post Facto Clause still limits application of new advisory guidelines (2010)
• A notable district court opinion on the post-Booker ex post facto issue (2010) 

Notable Enron insider trading sentencing outcome and reasoning

This Bloomberg report, headlined "Ex-Enron Broadband Executive Sentenced for Insider Trading," caught my attention for a number of reasons.  Here are the details:

Former Enron Broadband Services executive Rex Shelby was sentenced today on an insider trading charge linked to the investment fraud that destroyed the world’s largest energy trader 10 years ago.  Shelby, 59, pleaded guilty to one count of insider trading and was sentenced to three months in a federal halfway house and three months of house arrest. Shelby will also forfeit about $2.6 million in profits from the illicit trade.

Shelby’s lawyer Ed Tomko told a judge that Shelby has also agreed to forfeit another $1 million to resolve related Securities and Exchange Commission charges. He faced a maximum of 10 years and a fine of $1 million on the one count before reaching his plea deal. He’ll be in probation for two years, including the six months of combined confinement....

U.S. District Judge Vanessa Gilmore sentenced Shelby to half the number of months confinement that he’d agreed to in a plea deal.  “Mr. Shelby’s actions ultimately did not cause the downfall of Enron,” she said.  “Only a few individuals at the pinnacle of Enron knew of the fraud.”

Gilmore said she moderated the sentence to fit Shelby’s role and the punishments given to others in the Enron fraud scheme.  She said the fact Shelby has for the last eight years devoted himself exclusively to working on his defense, in “self-imposed home confinement"”, was also a consideration in her decision....

Shelby and six other EBS executives were indicted in 2003 on charges they helped the parent company’s senior management, including Enron’s former Chairman Kenneth Lay and Chief Executive Officer Jeffrey Skilling, deceive analysts and investors about the unit’s capabilities and financial performance.

The executives were accused of misrepresenting EBS at a January 2000 analysts’ conference, where they portrayed it as one of Enron’s “core’’ units, worth about $50 billion. In reality, the division struggled to launch products and never earned a profit.

Enron’s stock soared from $54 a share the day of the analysts’ conference to $72 a share the following day. Shelby sold 150,000 shares on the price increase, reaping gross proceeds of just under $10.7 million, according to his plea.

Shelby had long maintained he sold the shares to diversify his portfolio and not based on any inside knowledge of an alleged conspiracy to inflate Enron’s stock price. To avoid a trial on broader conspiracy and fraud charges, which had been set to begin this past January, Shelby pleaded guilty to one count of insider trading in November....

Shelby’s sentencing marks the end of the Enron Broadband case, which yielded mixed results for the government. Two of the seven originally indicted EBS executives -- Kenneth Rice and Kevin Hannon, who each served as president of the division at one time -- pleaded guilty before trial and testified against former colleagues.

The remaining five executives, including Shelby, were tried together in Houston federal court in 2005. That trial ended with no convictions and a smattering of acquittals, as jurors failed to reach verdicts on scores of counts. None of the men were completely exonerated at that trial, and the government vowed to streamline its case and retry them all on narrower charges.

To avoid that retrial, former CEO Joseph Hirko pleaded guilty to a reduced charge in late 2008 and served about 16 months in prison, forfeiting $7 million. Ex-strategy chief F. Scott Yeager appealed the government’s retrial attempts and in 2009, the U.S. Supreme Court ruled he couldn’t be retried based on his partial acquittal by the first jury.

I have highlighted above one particular passage of this account of the sentencing because I cannot recall hearing of another case in which a judge expressly identified that the time/energy spent by the defendant defending himself as a mitigating sentencing factor.  I do not mean to critique the use of this factor, as much as just to note it here and to welcome comments about whether others have a strong view, concerning in this case or others, as to whether the time/energy spent by a defendant defending himself ought to be viewed as a mitigating sentencing factor.

Georgia death row inmate Troy Davis now gets no review or relief from SCOTUS

As detailed in this AP report, which is headlined "High court rejects appeal from Troy Davis," this morning the US Supreme Court "has rejected an appeal from Georgia death row inmate Troy Davis, clearing the way for the state to resume planning for Davis' execution." 

As regular readers may recall, SCOTUS in 2009 ordered a district judge to conduce hearings to consider Davis' evidence suggesting his innocence for the 1989 murder that got him placed on Georgia's death row.  But the district judge was not convinced, and this order list from the Supreme Court shows that the Justices today rebuffed three different means by which Davis was seeking high court review. 

Especially notable here, I think, is that it does not appear that there were any dissents from the decision to refuse Davis any more review.  (I cannot help but speculate that Justice Stevens might have been a dissenting voice here if still on the Court.)  Especially ironic here, I think, is that it does appear that Davis could continue avoid execution for quite some time because on new concerns about Georgia's execution drugs.

Prior posts discussing recent Davis case developments:

• SCOTUS orders innocence hearing in Troy Davis case
• A year after SCOTUS intervenes, Troy Davis innocence hearing about to start
• "Innocence claim rejected: Troy Davis loses challenge"
• Eleventh Circuit punts Troy Davis case up to SCOTUS

UPDATE:  Over at SCOTUSblog, Lyle Denniston has an effective review and analysis of the Supreme Court's work today in the Davis matter in this post titled "Davis innocence plea rejected."

"Alternative sentencing programs show growing success in Oklahoma"

The title of this post is the headline of this local article which carries this sub-headline: "Oklahoma prosecutors today may choose from a variety of nontraditional sentencing options ranging from drug court assignments to mental health and anger management counseling." Here are excerpts:

Comanche County District Attorney Fred C. Smith spoke to a civic group recently about the ever-increasing role new technology and alternative sentencing will play in the criminal courts....  Prosecutors today may choose from a variety of nontraditional sentencing options ranging from drug court assignments to mental health and anger management counseling.  GPS monitoring devices for sex offenders, alcohol monitoring bracelets and drug patches are some of the newer probation tools.

Alternative sentencing is a necessity borne from prison overcrowding and shrinking budgets, officials say.  In Oklahoma — a conservative state that prides itself on tough talk and swift justice — being tough on crime comes with a price....  Oklahoma's prison population has swelled by nearly 9,000 inmates in [recent years].  Today, that population is some 26,600, including 1,300 held in county jails.  Those totals account for 96.5 percent of the department's bed capacity....

“I'm a huge supporter of drug court,” said Jackson County District Attorney John Wampler. “I've seen a lot of success stories come out of it.  The problem ... is a lot of legislators want to see immediate results, and so there is a reluctance to put money into certain programs.  They're not looking at the long-range dividends.  For instance, we always release someone from prison and watch them struggle to get back on their feet.  We need to give them the tools so when they do get out, they have the skills to find a job and lead productive lives.  That's how you make real change.”

"Mandatory Life and the Death of Equitable Discretion"

The title of this post is the title of this notable new book chapter by Professor Josh Bowers, which is now available via SSRN. Here is the abstract:

This essay is a contribution to a book that asks the question whether life without parole (LWOP) is the new death penalty. The essay claims that the punishment — at least in its mandatory form — is not so much the new death penalty as the old one (but not quite). Specifically, contemporary capital punishment expressly admits — indeed requires — an equitable determination.  That is, before imposing the death penalty, the capital-sentencing jury is called upon to exercise practical wisdom based on everyday experience to reach a commonsense determination of normative blameworthiness — to consider not only the particulars of the criminal incident but also the social and psychological circumstances of the defendant.

By contrast, LWOP is frequently a mandatory punishment over which a jury holds no equitable sway.  In this way, mandatory LWOP bears a closer resemblance to the historical mandatory death penalty.  But, significantly, the analogy between the historical death penalty and modern mandatory LWOP is imperfect.  Although the pre-modern jury lacked power over the sentencing determination, it enjoyed considerable influence over the guilt determination, both because common-law liability rules were more flexible and because the pre-modern jury was arbiter of both law and fact.  Thus, the pre-modern jury retained robust authority to circumvent mandatory penalties in equitably problematic cases. Comparatively, the modern LWOP jury is hamstrung by a more substantively and procedurally rigid and formalized criminal-justice system.  Thus, the LWOP jury lacks the equitable safety valves that tempered application of both the historical death penalty and its modern capital corollary.

To the extent an opportunity for equitable discretion remains in mandatory LWOP regimes, it rests wholly with the professional prosecutor, who controls the charging decision, but who concurrently has an institutional incentive to charge high to maximize bargaining power.  In such circumstances, the prime determinate of whether a defendant receives an LWOP sentence is not normative blameworthiness but willingness to plead guilty.  Mandatory LWOP is, thus, a punishment that only the interested prosecutor can temper effectively, but that the prosecutor has the least interest in tempering for equitable reasons alone.