January 7, 2011
SCOTUS takes up two plea bargaining cases and another ACCA
Big late Friday news for sentencing fans from the US Supreme Court, as the Justices decided to add three new criminal cases to its docket. Here is an effective description of the new cases from this post at SCOTUSblog:
In two cases, which involve a related issue but will be heard separately, the Court will be deciding whether an individual who rejects a plea offer from prosecutors because the lawyer advised that course has a claim for ineffective legal assistance if that advice was either flawed or produced a less favorable outcome than if the individual had gone to trial. In agreeing to hear state officials’ appeals in Leflar v. Cooper (10-209) and Missouri v. Frye (10-444), the Court told counsel in both to brief and argue an additional question: “What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?” Presumably, the Court will hear the two cases in back-to-back arguments.
In another criminal case, McNeill v. U.S. (10-5258), the Court will decide whether a conviction under state law can be treated as a serious drug offense for purposes of a longer sentence under the federal Armed Career Criminal Act, if the state law violated did not at the time of federal sentencing did not set a maximum prison term of at least ten years, but had done so at the time the crime was committed. The federal government urged the Court not to hear the issue in a North Carolina case.
The fact that the Justices felt compelled to take up yet another ACCA case is yet another sign that ACCA has to get fixed legislatively ASAP. But that is the B-story here. The two cases dealing with plea practices and ineffective assistance are now arguably the two biggest constitutional cases of the current Term for sentencing law and policy fans. This AP story about the cert grants provide a bit of factual background on the two cases:
In Michigan, Anthony Cooper's conviction for shooting a woman in the thigh and buttocks after missing a shot to her head was overturned by the 6th U.S. Circuit Court of Appeals in Cincinnati because his lawyer gave him bad advice. His lawyer told him not to take a plea offer, thinking that there could not be a finding that Cooper intended to murder his victim. But Cooper was convicted of assault with intent to murder and other charges....
In Missouri, prosecutors offered Galin Edward Frye two deals while seeking his conviction for driving while his license was revoked, but his lawyer never told Frye about the offers. Frye pleaded guilty to a felony charge and was sentenced to three years in prison.
Newt Gingrich says "criminal justice system is broken, and conservatives must lead the way in fixing it"
The quoted phrase in the title of this post comes directly from this potent Washington Post op-ed authored by Newt Gingrich and Pat Nolan, which is headlined "Prison reform: A smart way for states to save money and lives." Here are excerpts:
With nearly all 50 states facing budget deficits, it's time to end business as usual in state capitols and for legislators to think and act with courage and creativity.
We urge conservative legislators to lead the way in addressing an issue often considered off-limits to reform: prisons. Several states have recently shown that they can save on costs without compromising public safety by intelligently reducing their prison populations.
We joined with other conservative leaders last month to announce the Right on Crime Campaign, a national movement urging states to make sensible and proven reforms to our criminal justice system — policies that will cut prison costs while keeping the public safe.... The Right on Crime Campaign represents a seismic shift in the legislative landscape. And it opens the way for a common-sense left-right agreement on an issue that has kept the parties apart for decades.
There is an urgent need to address the astronomical growth in the prison population, with its huge costs in dollars and lost human potential. We spent $68 billion in 2010 on corrections — 300 percent more than 25 years ago. The prison population is growing 13 times faster than the general population. These facts should trouble every American.
Our prisons might be worth the current cost if the recidivism rate were not so high, but, according to the Bureau of Justice Statistics, half of the prisoners released this year are expected to be back in prison within three years. If our prison policies are failing half of the time, and we know that there are more humane, effective alternatives, it is time to fundamentally rethink how we treat and rehabilitate our prisoners.
We can no longer afford business as usual with prisons. The criminal justice system is broken, and conservatives must lead the way in fixing it....
Some people attribute the nation's recent drop in crime to more people being locked up. But the facts show otherwise. While crime fell in nearly every state over the past seven years, some of those with the largest reductions in crime have also lowered their prison population. Compare Florida and New York. Over the past seven years, Florida's incarceration rate has increased 16 percent, while New York's decreased 16 percent. Yet the crime rate in New York has fallen twice as much as Florida's. Put another way, although New York spent less on its prisons, it delivered better public safety.
Americans need to know that we can reform our prison systems to cost less and keep the public safe. We hope conservative leaders across the country will join with us in getting it right on crime.
People long involved in sentencing law and policy reform efforts should not be too surprised to see Pat Nolan's name on a op-ed of this nature. But Newt Gingrich until recently has never been known to speak out on these issues and he remains a leading voice for many on the right. Moreover, Gingrich has seriously hinted that he may run for president in 2012 (which I am now rooting for because it will bring added attention to these important issues). Gingrich's loud voice in this arena, especially given that he is saying now exactly what folks at FAMM and The Sentencing Project and other left-leaning groups have been saying for some time, may indeed help engineer a "seismic shift in the legislative landscape."
I wonder what Representative Jim Sensenbrenner, the new chair of the House Judiciary Committee’s subcommittee on crime, terrorism, and homeland security, thinks about this op-ed. And what might the new head of the Judiciary Committee, Representative Lamar Smith, who was the only loud voice this summer complaining about Congress's decision to reduce crack sentencing terms, have to say in reponse. Interesting times.
Some recent and older related posts on the modern politics of sentencing issues:
- "Right on Crime: The Conservative Case for Reform" officially launches
- When and how will state GOP leaders start cutting expensive criminal justice programming?
- New poll reports that large majority of Americans consider "War on Drugs" a failure
- Examining the politics of crime and punishment in modern gubernatorial settings
- Do "mama grizzlies" have a particular approach to crime and punishment issues?
- Can GOP "Pledge to America" be read to suggest drawing down federal involvement in the drug war?
- Green tea party: will Glenn Beck or Sarah Palin or other professed liberty lovers support ending pot prohibition in California?
- What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
What is a "very appropriate" sentence for sexual assault of animals?
The question in the title of this post is inspired by this remarkable state sentencing story from Oregon, headlined "Woman sentenced for animal sex abuse." Here are the unpleasant details:
A Jefferson woman was sentenced Thursday to 30 days in jail and 60 months of supervised probation after pleading guilty to multiple charges of sexual assault of an animal and criminal mistreatment.
Marion County Judge Mary James also ordered Rachel Petterson to undergo a sex offender evaluation and any treatment recommended as a result of that evaluation. She will not have to register as a sex offender.
Petterson and her now ex-husband, Sam Petterson, were arrested in April on allegations of sexual assault of an animal after police found home video of them sexually assaulting dogs.
Rachel Petterson also was charged with criminal mistreatment, and Sam Petterson was charged with child pornography, including encouraging child sex abuse and using children in display of sexually explicit conduct. He was sentenced five months ago to 43 years in prison.
Judge James' sentencing also prohibits Rachel Petterson from owning or having contact with domestic animals and from having any contact with Sam Petterson. "Truly, what you did was put your children in incredible and great danger," the judge told Rachel Petterson during the sentencing. "What you did is of significant concern to this court and the community. This will follow you throughout your life."...
Courtland Geyer, a deputy district attorney with the Marion County District Attorney's Office, said the office was pleased with the outcome of the hearing. "We believe the sentence was very appropriate," he said.
I have posted this story in part because I think the shame of this offense and sentence may be even more important and consequential than the short jail time. In addition, my ivory-tower instincts cannot help but make me wonder whether the defendant here might challenge on constitutional grounds the part of the sentence that prohibits her "from owning or having contact with domestic animals." Does this mean she now may not ever visit friends or family who own a cat?
"Sensenbrenner Named House Crime Subcommittee Chair"
The title of this post come from the headline of this report via The Crime Report. Here are the details of an important sentencing law and policy echo of the new leadership in the US House of Representatives:
Representative Jim Sensenbrenner, a Wisconsin Republican, today was named chairman of the House Judiciary Committee’s subcommittee on crime, terrorism, and homeland security. Sensenbrenner, 67, is a former chairman of the full Judiciary Committee. On the subcommittee, he succeeds Rep. Bobby Scott (D-Va.).
Sensenbrenner will bring a much more conservative perspective to criminal justice issues. He supports the death penalty and was the prime sponsor of the federal Adam Walsh Act, which requires states to take stronger actions tracking sex offenders or risk losing federal funds.
January 7, 2011 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (10) | TrackBack
Former Governor Ryan briefly released from prison to visit dying wife
This local news report, which is headlined "Ryan secretly visited ailing wife, prosecutors say," updates an interesting high-profile story of prison policy and procedure. Here are the particulars:
Former Gov. George Ryan visited his ailing wife Wednesday night for two hours, according to a court filing Friday by the U.S. Attorney’s Office in Chicago — something that his lawyers haven’t disclosed as they sought his release on bail,.
Ryan was released from a federal prison for the visit and escorted by federal Bureau of Prisons officials, prosecutors said. On Wednesday, Lura Lynn Ryan was taken to a Kankakee hospital after going into what her doctors described as septic shock. Her condition was called “very grave” by former Gov. James Thompson, a family friend and attorney who’s been making the case in the news media for Ryan’s release.
As he has pleaded for officials to take mercy and allow the imprisoned 76-year-old former governor to be released on bail so he could go to his wife’s hospital bedside, Thompson never disclosed that Ryan was indeed allowed to do so through a second avenue — a temporary furlough granted by the warden of his prison. The Bureau of Prisons doesn’t disclose when it furloughs a prisoner, or when it refuses to.
On Thursday, Thompson said that lawyers hadn’t gotten any word from officials at the prison where Ryan is serving a 6 1/2-year sentence on his corruption conviction. Thompson could not immediately be reached for comment on Friday.
The U.S. Attorney’s Office disclosed that Ryan had visited his wife in a filing with the Seventh U.S. Circuit Court of Appeals in Chicago in which prosecutors objected to Ryan’s bid for a release on bail while he appeals his 2006 conviction. Prosecutors said the appeals court should reject Ryan’s bail request because “Ryan has not shown that his appeal is likely to succeed. This court has repeatedly cautioned that the courts’ limited authority to grant bail in the context of collateral proceedings should be exercised ‘very sparingly.’ ”
Recent related post:
Illinois house in close vote approves death penalty ban
As detailed in this Reuters report, the "Illinois House on Thursday voted to ban the death penalty, moving the measure on to the Senate a decade after a moratorium on executions was put into place by former Governor George Ryan." As the article details, the vote was close and the prospects for the ban becoming law still seem uncertain:
Thursday night's vote came after a first vote failed, according to Illinois State Representative Elaine Nekritz, a Democrat who voted in favor of the ban. The final vote was 60-54 in favor of the ban. "I believe the history of the death penalty in Illinois demonstrates that we are not in a position to get it right 100 percent of the time," said Nekritz, explaining her vote....
If the bill is approved in the state senate it still must go to Governor Pat Quinn, who has said he continues to favor the death penalty for the worst crimes, according to local media reports.
Opponents of lifting the ban include the Illinois State's Attorneys Association, which has said the death penalty is useful for law enforcement and to achieve justice.
"A Good Place to Start Cutting"
The title of this post is the headline of this editorial in today's New York Times, which gets started this way:
Gov. Andrew Cuomo struck just the right tone on both adult prison reform and juvenile justice reform in his first State of the State address on Wednesday. He said that New York could no longer afford to keep hugely expensive but unneeded facilities open to serve as “an employment program” for upstate residents.
To get the Legislature to agree to shut these facilities, Mr. Cuomo will have to push back hard against the corrections workers’ unions that have thwarted sound closure proposals from all three of his predecessors.
The case for closures is laid out in a new analysis by the Correctional Association of New York, a nonprofit group. New York’s prison population has dropped from about 71,500 at its peak in 1999 to around 56,000 today. This has left more than 8,000 empty beds, meaning that the state could close or significantly downsize eight to 10 of the 67 units in the system and still have ample room to handle any unexpected spike in the population. The savings would be $220 million in the first year.
The state could also save money by reversing misguided criminal-justice policies. In 1995, Gov. George Pataki prohibited people convicted of violent crimes from participating in work-release programs. That order cut the number of participants from nearly 28,000 in 1994 to about 2,500 in 2007, the most recent year for which the association has data.
The point of Mr. Pataki’s order was to protect the public from violent offenders, but it may well have had the opposite effect. Once they had done their time, inmates were dumped onto the streets without any chance to reacclimate and find their place in the community. Work-release programs cost about $7,500 per participant annually, as opposed to about $55,000 to keep one person behind bars. Increasing the number of participants to just 5,000 would save more than $80 million a year.
January 6, 2011
Oklahoma completes first execution of 2011
As detailed in this AP story, in Oklahoma an "inmate was executed Thursday for the murder of a convenience store worker found brutally beaten with a baseball bat almost 16 years ago." Here's more:
Billy Don Alverson, 39, was pronounced dead at 6:10 p.m. local time at Oklahoma State Penitentiary, a spokesman for the state Department of Corrections said. Alverson was convicted of first-degree murder and sentenced to die for the Feb, 26, 1995, death of 30-year-old Richard Yost, the night manager of a convenience store in Tulsa. Yost's body was found bound and beaten on the blood-soaked floor of the store's cooler.
Alverson was one of four men convicted of first-degree murder in Yost's death. Prosecutors have said Yost received 54 blows from the bat and all four men participated in the beating, although Alverson has said he never hit Yost.
Three of Alverson's co-defendants were also sentenced to death. One of them, 31-year-old Darwin Brown, was executed in January 2009.
The Oklahoma Pardon and Parole Board voted 3-2 in December to deny clemency for Alverson. Members of Yost's family, including his former wife and mother-in-law, and the president and CEO of Yost's former employer submitted letters to the board asking that it deny clemency....
The next death row inmate scheduled for execution in Oklahoma is Jeffrey David Matthews, 38. He was convicted in the January 1994 murder of 77-year-old Otis Earl Short, Matthews' great-uncle, during a robbery of Short's home. The execution is set for Tuesday.
Two 2011 must-reads for sentencing fans from the Duke Law Journal
A little law review surfing proved fruitful this afternoon when I discovered that the January 2011 issue of the Duke Law Review is already available on-line and it includes these two must-reads for sentencing fans:
- this article by Ty Alper on lethal injection litigation titled "Blind Dates: When Should the Statute of Limitations Begin to Run on a Method-of-Execution Challenge?"
- this note by John Gabriel Woodlee titled "Congressional Manipulation of the Sentencing Guideline for Child Pornography Possession: An Argument For or Against Deference?"
Brutal Ohio mass murderer cops plea and avoids death penalty
As detailed in this local story, which is headlined "Knox County man pleads guilty in dismemberment slayings; Matthew Hoffman could be sentenced to life in prison," a high-profile Ohio multiple murder case is now a (simple?) sentencing case after a plea. Here are the details:
Matthew Hoffman pleaded guilty this morning in the horrific dismemberment slayings of a Knox County woman, her son and a family friend. Hoffman acknowledged his responsibility for the crimes before Knox County Common Pleas Court Judge Otho Eyster. He faces a sentence of life in prison without parole.
Hoffman fatally stabbed Tina Herrmann, 32; her son Kody Maynard, 11; and family friend Stephanie Sprang, 41, in Herrmann's home in Apple Valley on Nov. 10 and then cut up their bodies. Hoffman, 30, an unemployed tree trimmer, then scaled a tall beech tree in a wildlife area northwest of Mount Vernon and deposited garbage bags containing the dismembered remains of the victims in the hollow of the tree.
The remains were located with Hoffmann's assistance on Nov. 18, eight days after the victims — and a 13-year-old girl — disappeared, triggering a massive search of the county by officials and citizen volunteers. The girl was found bound and gagged, but alive, in the basement of Hoffman's home near downtown Mount Vernon on Nov. 14 when authorities stormed the house. Hoffman was charged with raping the girl.
Hoffman, who was being held in lieu of a $1 million cash bond, was indicted on Monday by a Knox County grand jury on charges that include three counts of aggravated murder, rape and aggravated burglary. Knox County Prosecutor John Thatcher said that the indictment did not contain death-penalty specifications in accordance with the wishes of the victims' families.
I have highlighted the final sentence here in part because I find notable (and perhaps controversial and perhaps incomplete) the reason given by the local prosecutor not to seek the death penalty for Hoffman. Here are three thoughts about that decision:
First, I cannot help but wonder if a decision to take death off the table was actually made (perhaps with family input) back in November in order to induce Hoffman to tell authorities where he hid the bodies. I worry that this case (like the Green River Killer case in the northwest a few years ago) showcases that a mass murderer can avoid the death penalty by hiding his victims' bodies effectively.
Second, though I strongly believe victims' interests should be an important factor in all sentencing determinations, I do not think these interests alone should be a conclusive factor preventing prosecutors from seeking the death penalty. Perhaps other factors support a sentence less than death for Hoffman, but I would like to know more about those factors to feel entirely comfortable as an Ohio citizen with how this case is being resolved.
Third, I wonder if anyone can articulate reasons for giving Hoffman a sentence of less than life in prison without parole. If not, it suggests ultimately that folks generally agree that Hoffman deserves the most severe possible sentence and that any debate about Hoffman's fate is really a debate over what folks think ought to be the most severe possible sentence in Ohio.
Why shouldn't imprisoned former Governor George Ryan get released to see his dying wife?
The question in the title of this post is prompted by this AP article, headlined "Jailed ex-Illinois gov. asks to visit gravely ill wife." Here are the basics:
Family members of imprisoned former Illinois Gov. George Ryan have gathered at the hospital bedside of his gravely ill wife while waiting for a federal appeals court to decide whether he should be allowed to join them.
Ryan's attorneys filed an emergency motion Wednesday asking that the 76-year-old former governor be let out of prison during daytime hours so he can be with his wife of 55 years, who they said was in intensive care suffering complications from chemotherapy.
One of Ryan's attorneys, former Gov. James Thompson, told The Associated Press that Lura Lynn Ryan's family was called to her side Wednesday morning. Family members did not address reporters who congregated outside Riverside Medical Center in Kankakee. "Doctors have told the family that they have to go hour by hour," Thompson said.
An emergency motion filed with the 7th Circuit Court of Appeals in Chicago says Ryan's wife went into septic shock, a complication of her treatment for what the motion describes as incurable cancer of the lungs, back, pelvis, ribs and liver. "Though neither radiation nor chemotherapy will affect a cure, Mrs. Ryan . . . has elected to receive both treatments in the hope that they will keep her alive until she can be with her husband to say goodbye," the motion says. "She has, at most, weeks to live."
The former governor has served three years of a 6 1/2-year sentence on convictions of racketeering, conspiracy, tax fraud and making false statements to the FBI. His attorneys' motion argues "he is not a flight risk or a danger to the community." Attorneys also appealed directly to federal prison authorities to release Ryan under a program allowing inmates temporary leave to visit gravely ill family members, Thompson said.
Thompson said Ryan remained in prison as of Wednesday night but that his attorneys were keeping in touch with prison authorities in hopes of winning an immediate release. U.S. Bureau of Prisons spokeswoman Traci Billingsley said prison wardens decide whether to grant bedside visit requests, but that the agency cannot disclose whether a request is made or granted due to privacy and safety concerns....
Ryan was convicted in 2006 of steering state contracts and leases to political insiders while he was secretary of state and then governor for one term. He received vacations and gifts in return. He also was accused of stopping an investigation into secretary of state employees accepting bribes in exchange for truck driver's licenses.
For all non-violent offenders who pose no obvious risk of flight or to the community, I would endorse a general rule that they readily be permitted release for a short period to be with a dying spouse. Such a temporary release rule, especially if limited to critically ill spouses, seems essential to a truly humane criminal justice system.
Payback (political or justified?) for (excessive?) judicial scrutiny of the death penalty
As detailed in this local article, which is headlined "Judge Robert Chatigny Drops Off Obama's List Of Nominees For 2nd Circuit Court Of Appeals," there was one notable name missing from the list of judicial re-nominatations put forward by President Obama yesterday. Here are the basics of a story with a significant capital punishment component:
U.S. District Judge Robert N. Chatigny, whose nomination to the federal appeals court drew extraordinary criticism from Republicans and conservatives, has withdrawn from consideration. At his request, Chatigny's name was removed from a list of federal judicial nominees that President Barack Obama on Wednesday sent to the incoming U.S. Senate for confirmation, lawyers familiar with the process said.
Obama nominated Chatigny to the U.S. 2nd Circuit Court of Appeals in February 2010. Immediately afterward, the Hartford judge became the subject of organized opposition by Senate Republicans critical of his record in a 2005 hearing that postponed the execution of serial killer Michael Ross.
Senate Republicans criticized Chatigny decisions in criminal cases and, in the 11th hour hearing in the Ross case, accused him of substituting personal opposition to the death penalty for the law. A conservative group last year used Ross and Chatigny in television ads opposing the candidacies of Senate Democrats suspected of supporting Chatigny.
Chatigny supporters defended his decisions, in Ross and elsewhere. Non-partisan observers said he compiled a moderate record over 16 years on the bench and was positioned to the right of more liberal Obama nominees who fared better in the confirmation process. Chatigny's nomination failed in spite of support by politically active Republican jurists and lawyers such as Michael B. Mukasey, U.S. Attorney General in the administration of George W. Bush.
Non-political observers said Chatigny's nomination fell victim to partisan warfare in the Senate. Over the past three administrations, these observers said, the party out of the White House has become increasingly effective in killing or delaying presidential judicial nominees....
Some lawyers said the Chatigny case was selected as a political tool to be used against Obama because his actions in the Ross case were easily understandable compared with more esoteric legal positions taken by other Obama nominees: He threatened the license of a lawyer who argued that Ross had a right to waive appeals and face execution.
Chatigny immediately apologized for the threat, and a judicial review panel found his behavior unusual, but acceptable. Colleagues said he was uncomfortable with the prolonged criticism that accompanied his confirmation process.
I recall being surprised and a bit troubled by how Judge Chatigny handled the Ross case, though I have never examined the case closely enough to make an independent assessment as to whether that case reflected poorly on his judicial temperment or whether it alone should provide a justified basis for resisting Judge Chatigny's elevation to the Second Circuit. I will add that it seems much more appropriate for Senators and others to make judgments about judicial nominees based on their track record as judges than to do so on the basis of comments in a speech (as was done with Justice Sotomayor) or whom the nominee long ago clerked for (as was done with Justice Kagan).
January 5, 2011
"Attorney General Eric Holder Convenes Inaugural Cabinet-Level Reentry Council"
The title of this post is the heading of this notable press release from the Department of Justice. Here is how the release starts:
Attorney General Eric Holder today convened the inaugural meeting of the Cabinet-level "Reentry Council" in Washington to identify and to advance effective public safety and prisoner reentry strategies.
In addition to the Attorney General, the council includes Departments of Education Secretary Arne Duncan; Health and Human Services Secretary Kathleen Sebelius; Agriculture Secretary Tom Vilsack; Interior Secretary Ken Salazar; Housing and Urban Development Secretary Shaun Donovan; Labor Secretary Hilda Solis; and Veterans Affairs Secretary Eric Shinseki. Members also include Commissioner of the Social Security Administration, Michael Astrue; Director of the Office of National Drug Control Policy, R. Gil Kerlikowske; Director of the White House Domestic Policy Council, Melody Barnes; Executive Director of the White House Office of Faith-Based and Neighborhood Partnerships, Joshua DuBois; and Chair of the U.S. Equal Employment Opportunity Commission, Jacqueline Berrien.
The council will address short-term and long-term goals through enhanced communication, coordination and collaboration across federal agencies. The mission of the council is threefold: to make communities safer by reducing recidivism and victimization; to assist those returning from prison and jail in becoming productive, tax paying citizens; and to save taxpayer dollars by lowering the direct and collateral costs of incarceration.
"Reentry provides a major opportunity to reduce recidivism, save taxpayer dollars and make our communities safer," said Attorney General Holder. "More than two million people are behind bars, and 95 percent of them will be released back into their communities. By developing effective, evidence-based reentry programs, we can improve public safety and community well-being."
Among its goals, the Reentry Council will meet semi-annually to leverage resources across agencies to reduce recidivism and victimization; identify evidence-based practices that advance the council’s mission; promote changes to federal statutes, policies and practices that focus on reducing crime; and identify federal policy opportunities and barriers to improve outcomes for the reentry community.
I am pleased to hear that this "Reentry Council" is up and running, and I am hopeful that they can and will get a lot done in the months ahead. And I think it would be especially cool if the Council had a public event with high-profile former felons like Martha Stewart and Michael Vick and Marion Jones to talk about some of their (especially positive and uncommon) reentry experiences.
UPDATE: Jeralyn at TalkLeft has this terrific and lengthy post reacting to this news, which finishes with this appropriate sentiment:
If you have good ideas of your own, especially from your practice, don't hesitate to write one of the members of the council and ask that it be considered. This is a government endeavor, funded by grant money and taking place during the workday. We pay their salaries. The community is supposed to benefit from their work. We are the community. I think we should have the ability to provide input. I would hope they would welcome it.
Hard sentence makes bad(?) sufficiency law in child porn downloading case from Tenth Circuit
"Hard cases make bad law" is an old legal adage that I have paraphrased in the title of this post to describe my reaction to the Tenth Circuit's interesting split ruling today in US v. Dobbs, No. 09-5025 (10th Cir. Jan. 5, 2011) (available here). Here is how the majority opinion begins along with some (legally irrelevant?) parts of the "Background" section of the opinion:
In this criminal appeal, Terry Brian Dobbs brings a sufficiency-of-the evidence challenge to his conviction for knowingly receiving and attempting to receive child pornography in violation of 18 U.S.C. § 2252(a)(2). Mr. Dobbs contends that there was insufficient evidence to prove: (1) that he knowingly received or attempted to receive either of the two pornographic images submitted to the jury; and (2) that these two particular images traveled in interstate or foreign commerce, as required by our precedent in United States v. Schaefer, 501 F.3d 1197 (10th Cir. 2007).
Exercising jurisdiction under 28 U.S.C. § 1291, we agree that the government did not offer sufficient evidence to prove that Mr. Dobbs knowingly received the images found on his hard drive. Consequently, because we have no need to opine on the merits of Mr. Dobbs’s Schaefer argument, we refrain from doing so. We REVERSE and remand to the district court to VACATE Mr. Dobbs’s conviction and sentence....
In April 2006, United States Postal Inspectors in Oklahoma seized Mr. Dobbs’s computer pursuant to a search warrant issued in an unrelated fraud investigation. A search of the computer revealed multiple images suspected to be child pornography, leading the investigators to obtain a second search warrant. The computer’s hard drive was eventually sent to a Department of Justice computer forensic specialist in Washington, D.C. Upon further inspection of Mr. Dobbs’s hard drive, the forensic specialist discovered over 150 images of child pornography in the hard drive’s temporary Internet files folder, or “cache.”
Mr. Dobbs was subsequently indicted for receipt, attempted receipt, and possession of visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2) and (a)(4)(B).... At trial, the government’s case relied principally on the testimony of the forensic specialist [who] concluded that the computer activity suggested someone who was “methodically seeking out child pornography.”...
Mr. Dobbs was subsequently found guilty of knowingly receiving and attempting to receive child pornography. The district court sentenced him to 132 months’ imprisonment and nine years of supervised release.
A lengthy dissent by Chief Judge Briscoe makes a pretty strong case for finding the evidence supporting the defendant's conviction here to be legally sufficient. The dissent's argument, combined with the reality that Mr. Dobbs got prosecuted only as a result of an investigation for some separate crime and especially the fact he got a prison sentence of more than a decade for a conviction on receiving two illegal dirty pictures, leads me to wonder aloud whether the (legally irrelevant?) procedural history of this case played a big role in the majority's holding. It also leads me to wonder if the Government will seek or get further review from the full 10th Circuit or even SCOTUS.
Another district judge rules FSA terms should apply to not-yet-sentenced defendant
US District Judge Gregory Presnell, who long ago already secured a place in my Sentencing Hall of Fame, garners still more appreciation from me for a little order entered earlier this week in US v. Johnson , Case No. 6:08-cr-270-Orl-31KRS (M.D. Fla. Jan. 4, 2011) (available for download below). This opinion addresses the widely debated issue of whether the new terms of the Fair Sentencing Act are to apply to not-yet-sentenced defendants who committed crack offenses before the FSA became law. These final few substantive paragraphs readily reveal why I especially appreciate Judge Presnell's work here on an issue I have been helping to litigate in recent months:
Several Circuits have rejected the argument that the provisions of the FSA should be applied after the fact to defendants who were sentenced before the Act became law. See, e.g., United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir. 2010); United States v. Glover, 2010 WL 4250060 at *2 (2d Cir. Oct. 27, 2010); United States v. Bell, 624 F.3d 803, 814 (7th Cir. 2010); United States v. Carradine, 621 F.3d 575, 579-81 (6th Cir. 2010). No Circuit has yet addressed the question now confronting this Court -- whether the amended (lower) mandatory minimum sentence under the FSA applies to a defendant whose offense occurred before August 3, 2010, but who is sentenced thereafter.
There are, however, district court opinions that have found that the new mandatory minimums are applicable in a case such as this, where the conduct predated the FSA but the sentencing occurred afterward. See, e.g., United States v. Johnson, Case No. 3:10-cr-138 (E.D. Va. Dec. 6, 2010); United States v. Spencer, Case No. 5:09-cr-400-JW-1 (N.D. Cal. Nov. 30, 2010); United States v. Favors, No. 1:10-cr-384-LY-1 (W.D. Tex. Nov. 23, 2010).
Perhaps the most thorough and compelling opinion is that of Judge Hornby in United States v. Douglas, 2010 WL 4260221 (D. Me. Oct. 27, 2010). A number of other courts have followed Judge Hornby’s decision. See, e.g., United States v. Gillam, 2010 WL 4906283 (W.D. Mich. Dec. 3, 2010); United States v. Shelby, Case No. 2:09-cr-00379 (E.D. La. filed Nov. 13, 2009). Professor Douglas Berman, an expert in the field of federal sentencing, has also made two submissions to Judge Kenneth M. Karas for his consideration in United States v. Santana, Case No. 7:09-cr-01022-KMK-1 (S.D. NY filed Oct. 22, 2009). These submissions, attached to this opinion as Appendix B, provide persuasive arguments for application of the FSA to all defendants who are sentenced after the effective date of the Act. Along these same lines, Senator Dick Durbin and Senator Patrick Leahy were lead sponsors of the FSA. In a letter to the Attorney General dated November 17, 2010, they cited Douglas with approval and implored him to apply the modified mandatory minimums of the FSA to all defendants who have not yet been sentenced, including those whose conduct predates the legislation’s enactment. A copy of this letter is attached as Appendix C.
The Government acknowledges that I must sentence Johnson under the new FSA sentencing guidelines, which are based on an 18:1 crack-to-powder ratio, but would have me apply the old mandatory minimum sentencing provisions, which are based on a 100:1 crack to powder ratio. This is an incongruous and absurd result, which is at odds with the intent of Congress in enacting the FSA.
Some recent related posts:
- Adding my two cents concerning application of the FSA to pending cases
- A few more thoughts on applying the FSA to not-yet-sentenced defendants
- New USDC opinion applying new FSA law to not-yet-sentenced defendants
- Seeking ground reports on the FSA's application to not-yet-sentenced cases
- Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
- Does Abbott provide new and added support for applying the FSA to pending cases?
- Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases
- Federal sentencing litigation at its absolute finest
- WSJ notes dispute over application of FSA to pending cases
Lethal injection drug supply continuing to be an issue in new year
My local Columbus Dispatch has this article this morning about the continuing struggles for death penalty states having a supply of lethal injection drugs. The piece is headlined "Supply of lethal drug is unsure; State has enough to put prisoner to death Feb. 17," and here are excerpts:
With Ohio's first execution of 2011 scheduled in about six weeks, uncertainty continues over the international availability of the sole drug used in the state's lethal-injection protocol.
In a pending Arizona murder case, the U.S. Food and Drug Administration has indicated it will use "enforcement discretion" in allowing states to import sodium thiopental, a drug used in executions. Arizona bought the drug from England but through a "broker," The Arizona Republic reported.
It is the only drug Ohio has used in executions for the past year; other states use it as one of three drugs in combination. JoEllen Smith, spokeswoman for the Ohio Department of Rehabilitation and Correction, said the agency "has enough sodium thiopental for the execution scheduled in February. Beyond that, we're not going to comment on our supply."
Smith wouldn't say whether the state has purchased or plans to purchase the drug from England or other foreign sources. The sole U.S. manufacturer of the drug does not expect to resume production until the spring. Both the British and Italian governments have banned the exportation of sodium thiopental produced in those countries for use in U.S. executions.
Arizona officials apparently got around that restriction, however, by ordering the drug through a broker and having it shipped directly to Phoenix, where it was processed by local customs officials.
Gary C. Mohr, named yesterday by Gov.-elect John Kasich as the state's prison director, said of the drug issue, "That obviously has to be a top priority to make sure that we are ready."
"Porn sentencing rules puzzle"
The title of this post is the headline of this new article from the Knoxville News Sentinel. Here are excerpts:
Longtime Claiborne County educator Joseph Wayne Jennings faced more punishment for looking at pictures of child rape victims than he did for trying to lure a child to be raped.
His case highlights a sentencing disparity long claimed by defense attorneys and increasingly questioned by federal judges nationwide, including some in East Tennessee, as the average sentence for suspects caught with child pornography has jumped 443 percent over a 10-year period....
In recent years, judges across the nation have been balking at the punishments recommended not after careful review by the sentencing commission but as a result of Congressional decree.
U.S. District Judge Ronnie Greer echoed that sentiment Tuesday as he pondered Jennings' fate. "The guideline ranges in child pornography cases are the result of a Congressional directive, not by … sound and empirical data," Greer said. "It is not entitled to the significant weight generally given to the guideline ranges (for other crimes)."
The debate continues, but it didn't help Jennings. Greer smacked him with a 25-year sentence, opining he was no mere child pornography collector but a dangerous pedophile.
January 4, 2011
Adult prison sentence of 25 years for 12-year old killer in Indiana
As detailed in this lengthy local article from Indiana, which is headlined "Gingerich sentenced to 25 years in prison," today a very young killer in Indiana got a very adult sentence for his crime. Here are the specifics:
A 12-year-old Kosciusko County boy has been sentenced to 25 years in prison for his role in the killing of the stepfather of one of his friends. Today a judge sentenced Paul Gingerich to 30 years with the last five to be served on probation.
Back on April 20th of last year, Colt Lundy and Gingerich shot Phillip Danner, 49, in his home in Cromwell. Danner was shot four times and died in the home. Danner is Lundy's stepfather.
During the setencing hearing Tuesday Gingerich said, "I'm sorry for what happened to Mr. Danner. I'm sorry for what the family had to go through. I did wrong and I'm ready to [take responsibility] for my actions."... In November, Gingerich pleaded guilty to conspiracy to committ murder in exchange for dropping a murder and aiding in murder charge.
In court, Gingerich's father, Paul Gingerich, asked Judge Reed to give his son the minimum sentence. He had requested to give his statement to the judge in person in court rathar than write a letter as others did.... "I know what he did ws wrong, but he should be punished as a child. Children follow. They do what they're told. They do not have the moral compass we do," he said in court....
Gingerich's attorneys also argued that the boy should be sentenced to the minimum 20 years and that the sentence be carried out in a juvenile facility. Fred Franco Jr., one of Gingerich's attorneys, said that while the court may have judged his client as an adult, he's still a boy. Gingerich, he said, had never been in trouble before.
"No one knows why he did what he did. Even Paul Henry can't tell you. Why he listened to Colt Lundy no one knows," Franco said.... "Paul didn't know Mr. Danner. This plan was initiated and carried forth by Colt," Franco said.
Franco argued that Gingerich and two other 12-year-old boys were bullied to be involved. "The boys were afraid of Colt. Colt used to shoot the boys with BB guns," he said in court. One 12-year-old boy was just a witness but didn't run away with the other three. The other 12-year-old stood watch outside the house and left with Lundy and Gingerich. He stayed in the juvenile system and has already finished serving six months in a juvenile facility....
A psychologist, Dr. Stephen Ross, did an evaluation on Gingerich. Cohen said those results found that Gingerich was a "normal young boy, not a sociopath."
Kosciusko County Prosecutor Steven Hearn said while he wasn't going to respond to every argument the defense made, it didn't mean he agrees with them.
Ninth Circuit upholds DNA extraction from California prisoners
Today in Hamilton v. Brown, No. 09-1523 (9th Cir. Jan. 4, 20110 (available here), a Ninth Circuit panel rejects various constitutional challenges to California's process for extracting DNA from its state prisoners. Here is how the opinion gets started:
We must decide whether California state prison inmates constitutionally may be required to provide blood samples for DNA identification under California’s DNA and Forensic Identification Database and Data Bank Act of 1998, as amended, Cal. Pen. Code § 295 et seq. (the “Act” or the “California DNA Act”). Pro se plaintiff George Hamilton, a California state prison inmate, alleges that prison officials forcibly extracted a blood sample for DNA identification without his consent. He contends that this violated his rights under the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution and under California state law. The district court dismissed Hamilton’s second amended complaint with prejudice. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Interesting policy echoes from notable clemency grants in California
One of many reasons I favor and often urge robust use of clemency power by executive officials is because notable clemency grants often spark useful public discussion of important issues of sentencing law and policy. This reality is on full display in California, where two sentence commutations by outgoing Governor Arnold Schwarzenegger (discussed here) have lots of folks buzzing. For example, consider this Mercury News editorial, which is headlined "Make governors issue pardons before the end of term." Here is how it starts:
Governors frequently fire off pardons on their way out the door. Whether apt or outrageous, the details tend to get buried by attention to the new regime. But any rise in public cynicism that results from what appears to be a political pardon does not go away. It's cumulative.
This is the case with Gov. Arnold Schwarzenegger's commuting of a manslaughter sentence for the son of former Assembly Speaker Fabian Nuñez, a Democrat who now works in a consulting firm with Schwarzenegger's former communications director.
So we have a suggestion. All pardons should have to come at least six months before a governor leaves office. That way governors would have to defend them while they're still working on a legacy. They'd be less likely to risk appearing to be motivated by political interest.
Pardons can bring justice, and may have in at least two of the shortened sentences Schwarzenegger granted -- one for a woman who, at 15, had killed her pimp, and the other for a man who many believe was acting in self-defense in a shooting. But reducing the manslaughter sentence for Nuñez's 21-year-old son has got heads shaking.
Relatedly, consider also this local article, which is headlined "Clemency of juvenile killer gives Yee hope." Here are excerpts:
The last-minute sentence commutation of a woman serving life without parole for killing her pimp at age 16 has given a Peninsula state senator hope this is the year California abolishes the absolute term for all juvenile offenders.
As one of his final gubernatorial acts, Arnold Schwarzenegger granted clemency to convicted murderer Sara Kruzan by reducing her sentence to 25 years to life in prison. While the change doesn’t guarantee freedom to Kruzan, who fatally shot the man in 1994, it does offer the possibility.
State Sen. Leland Yee, D-San Francisco/San Mateo, has long argued that all juvenile offenders deserve the chance at rehabilitation and release rather than being incarcerated at a young age with no hope of parole. He initially proposed completely outlawing the sentence but it failed to pass. Last year, Yee successfully pushed a tweaked version known as the Fair Sentencing for Youth Act through the Senate with bipartisan support but it died in the Assembly during the final days of the session. He reintroduced the legislation, now known as Senate Bill 9, last month....
Yee’s bill does not abolish life without parole outright but would give courts leeway to review convictions after 10 years and consider changing some sentences to a minimum of 25 years to life. Yee’s several attempts to pass the bill have been supported strongly by psychiatric and child advocacy groups but opposed by the California District Attorneys Association and California Police Chiefs Association.