March 12, 2011
Seventh Circuit rejects FSA's application to defendants sentenced after it changed crack statutes
While I was checking out lots of culture and humanity in Las Vegas yesterday (explanation here), the Seventh Circuit issued an important new opinion concerning the application of the Fair Sentencing Act to pipeline cases in US v. Fisher, No. 10-2352 (7th Cir. March 11, 2011) (available here). What makes Fishersignificant is that the panel expressly considers and rejects a defendant's claims that there are unique reasons for applying the FSA's new crack sentencing provisions to those initially sentenced after the FSA became law. Here are key passages from the opinion:
Debate surrounding the crack cocaine sentencing scheme and the infamous “100:1 ratio” has been raging for years, and there is strong rhetoric to be found on either side. The FSA is compromise legislation and must be viewed as such. Given the long-standing debate surrounding, and high-level congressional awareness of, this issue, we hesitate to read in by implication anything not obvious in the text of the FSA. We believe that if Congress wanted the FSA or the guideline amendment s to apply to not-yet-sentenced defendant s convicted on pre-FSA conduct, it would have at least dropped a hint to that effect somewhere in the text of the FSA, perhaps in its charge to the Sentencing Commission. In other words, if Congress wanted retroactive application of the FSA, it would have said so.
Given the absence of any direct statement or necessary implication to the contrary, we reaffirm our finding that the FSA does not apply retroactively, and further find that the relevant date for a determination of retroactivity is the date of the unde rlying criminal conduct , not the date of sentencing.
We have sympathy for the two defendants here , who lost on a temporal roll of the cosmic dice and we re sentenced under a structure which has now been recognized as unfair. However, “[p]unishment for federal crimes is a matter for Congress, subject to judicial veto only when the legislative judgment oversteps constitutional bounds.” Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 664 (1974).
As regular readers know, I think this outcome is wrong as a matter of statutory interpretation, in part because I believe statutory construction cannons like the rule of lenity and constitutional doubt provide a basis for reaching the opposite conclusion than the one reached by the Seventh Circuit. Nevertheless, I fear that a number of circuit will end up ruling like the Seventh Circuit here even though there has been a deep split in the district courts on this precise issue.
Some posts on this FSA issue:
- Second Circuit demands application of old 100-1 crack mandatories ... with laments
- 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
- Federal sentencing litigation at its absolute finest
- New USDC opinion applying new FSA law to not-yet-sentenced defendants
- 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?
- Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases
- WSJ notes dispute over application of FSA to pending cases
- A (partial) account of deep split over application of FSA's new statutory terms to pipeline cases
- Notable new letter to AG Eric Holder concerning application of the FSA
Ninth Circuit permits withdrawal of plea based on Padilla and immigration concerns
The Ninth Circuit has an interesting opinion concerning the withdrawal of pleas in US v. Bonilla, No. 09-10307 (9th Cir. March 11, 2011) (available here), which relies heavily on the Supreme Court's important Sixth Amendment ruling last Term in Padilla v. Kentucky. Here is how the Bonilla opinion begins:
Jose Hernandez Bonilla, Jr. appeals the district court’s denial of his pre-sentencing motion to withdraw his guilty plea. Bonilla pled guilty to possession of an unregistered firearm and to being a felon in possession of a firearm. He has been a lawful permanent resident of the United States for over thirty years; his wife and two children are all U.S. citizens. When shortly after he had entered his plea Bonilla was for the first time informed that he would be deported on the basis of his plea, he moved to withdraw it, asserting that he would not have pled had he known about the immigration consequences. We hold that the district court’s denial of Bonilla’s motion to withdraw his plea was an abuse of its discretion.
"Survivor" winner and tax cheat loser ordered back to federal prison
As detailed in this local article, "Reality-TV star Richard Hatch ordered back to jail for nine months," a high-profile tax criminal is headed back to federal prison. Here are the specifics:
It’s the sequel reality-TV star Richard Hatch didn’t want to be in: federal prison. On Friday, the convicted tax evader and Newport resident was ordered back to jail for nine months for not amending federal tax returns or paying money owed to the Internal Revenue Service, conditions of his supervised release.
Hatch, standing before Judge William E. Smith, said that he continues to cooperate with the IRS in resolving his tax problems, which he said were not “as simple” as they might seem. Any violation of his probation, he said, was due to “technical deficiencies” and another prison sentence would not only be “unduly severe” but prevent him from earning money to pay the IRS....
But the judge was not persuaded by the argument that Hatch should be allowed to work to help repay the IRS. He slapped Hatch with the high end of sentencing guidelines, which called for a prison sentence of three to nine months. And he ordered that Hatch remain under supervision for 26 months following his release, during which time 25 percent of his wages will be garnished to pay the IRS back taxes.
“This isn’t a complicated matter as much as you tried to complicate it,” the judge said. “As far as I can tell, you’ve made no effort to put any money into the government’s coffers.”
Assistant U.S. Attorney Andrew Reich had requested a sentence of six months. He noted that Hatch has repeatedly criticized prosecutors and judges and blamed his conviction on discrimination because he is openly gay. “We’ve been hearing this same story for years,” said Reich, who called Hatch “totally untruthful” and railed against his “total lack of remorse and total lack of acceptance of responsibility for his conduct.”
March 11, 2011
"Ex-judge Camp sentenced to 30 days in prison"
The title of this post is the headline of this Atlanta Journal-Constitution article providing the outcome of a high-profile federal sentencing today. Here are the details:
Jack Camp, the former federal judge ensnared in a scandal involving drugs and a stripper, was sentenced Friday to 30 days in prison and 400 hours of community service.
Senior U.S. District Judge Thomas Hogan said he could not give a sentence of only probation because Camp had breached his oath of office. "He has disgraced his office," Hogan said. "He has denigrated the federal judiciary. He has encouraged disrespect for the rule of law."
Before being sentenced, Camp apologized for what he had done and thanked his family and friends, many of whom filled the courtroom. "I have embarrassed and humiliated my family as well as myself," Camp said. "I have embarrassed the court I have served on and I am deeply sorry for that. When I look back at the circumstances which brought me here and look at what I did, it makes me sick." Camp said that at the end of the day, "the only thing I can say is that I'm so very sorry."
As a judge, Camp often meted out harsh sentences and rarely gave breaks to defendants who presented mitigating circumstances to explain their conduct. On Friday, Hogan was asked by Camp's lawyers to grant leniency because of the ex-judge's decades-long battle with a bipolar disorder and brain damage caused by a 2000 biking accident....
Camp, 67, resigned from the U.S. District Court bench shortly before he pleaded guilty in November to federal charges -- giving the stripper, who he knew was a convicted felon, $160 to buy drugs. Camp was a senior judge at the time of his arrest. He will continue to receive a $174,000-a-year salary, as do all federal judges who retire and have the requisite years of service.
Related prior posts (which generated lots of notable comments):
- "Federal judge charged with buying drugs from stripper"
- Federal judge cutting deal to avoid prison time for drugs, guns and stripper activities
- Sentencing memo for former federal judge urges probation and stresses mental health issues
- You be the judge: what federal sentence would you impose on former judge Jack Camp?
Off to Law, Culture and the Humanities conference... in Vegas, baby
I am heading out this morning to Las Vegas to participate in the conference for tha Association for the Study of Law, Culture and the Humanities. Given that there is a lot of Culture and Humanity worth studying in Vegas (not to mention a lot of college basketball to watch), I suspect blogging will be light through the weekend.
Iowa debating how to respond legislatively to SCOTUS Graham ruling
The second piece from a two-part series in the Iowa Independent about Iowa's response to the Supreme Court's Graham ruling is available here (the first piece is linked here). This piece is headlined "Bill seeks to conform Iowa law with SCOTUS juvenile offenders ruling; Judges could decide how long juveniles would be required to serve before being eligible for parole," and here are excerpts:
A bill that seeks to conform state code with a U.S. Supreme Court ruling on the sentencing of juveniles convicted in some felonies was introduced to the full Iowa House Wednesday. If approved, however, Iowa judges would be allowed to exercise unprecedented discretion in setting such sentences.
House File 607 has undergone changes since it was first introduced to the Judiciary Committee in late January, but its primary goal of creating new sentencing guidelines to juveniles convicted of certain class A felonies has remained the same. In May 2010 Graham v. Floridadecision, the U.S. Supreme Court ruled that sentences of life without parole could not be given to juvenile offenders on nonhomicide offenses. Doing so, according to the court, constituted cruel and unusual punishment and a violation of the 8th Amendment.
Within days of the ruling, and long before the Iowa legislature could modify state law to conform to the ruling, individuals convicted under such circumstances filed court motions to revisit their sentences. An estimated eight people are serving time in Iowa prisons who were convicted as juveniles to life without parole in connection with non-homicide offenses, the most common being first degree kidnapping....
The bill, which was amended and passed just before the first legislative funnel deadline last week, would allow a sentencing judge to determine the minimum number of years that must be served before a person convicted as a juvenile could be eligible for a parole hearing. Although the bill provides a range — between 30 and 45 years — the very idea that a judge in Iowa could utilize discretion in determining a mandatory minimum is, at the very least, unusual. Judges in the state do not currently hold such discretionary power....
A key point within the Graham decision was that juveniles, even those convicted of horrible offenses, should be given “a meaningful opportunity” to show maturity and growth.... The proposed Iowa fix is [potentially] problematic because it requires a judge to make a determination at the time a juvenile is sentenced as to length of sentence, a concept that appears to be contradiction to Graham’s focus on the ability for a juvenile offender to change over time and be rehabilitated.
Identical study bills were originally filed in both the Iowa House and Senate that would have set a mandatory minimum of 25 years for these juvenile offenders. Although the 25-year mark was believed to be a consensus of several groups that studied the issue, including the Criminal Law Section of the Iowa State Bar Association, lawmakers didn’t go along with the plan. Democrats in each chamber proposed alternatives to lower the minimum to 15 years. Republican-sponsored amendments, which were encouraged by the Iowa County Attorney Association, pushed for increased minimums up to 45 years. Between the two chambers, amendments and separate bills on the same issue were proposed that considered nearly every level between the two extremes....
“There is definitely going to some difficulty finding consensus on that issue,” said Sen. Rob Hogg (D-Cedar Rapids). “I also think there is a belief that if the legislature doesn’t act, the decision will ultimately be made the courts.”
March 10, 2011
"Connecticut Wants Liquor, Pot and Death Penalty"
The title of this post is the headline of this Wall Street Journal piece reporting on a new public opion poll from Connecticut. Here are some of the notable specifics:
Booze on Sundays, decriminalization of pot and the death penalty are among a number of things Connecticut voters are hoping new Gov. Dannel Malloy will push for this term, according to a survey.
More than two-thirds of Connecticut voters support the death penalty, according to a Quinnipiac University poll released Thursday. At 68%, support for the death penalty has inched up in every Quinnipiac survey since the state was rocked with a triple murder in 2007 that took the lives of the wife and two daughters of a wealthy physician in the sleepy suburb of Cheshire, Conn. Only 59% of state voters supported the death penalty in a 2005 Quinnipiac poll.
The increase of support comes days after a legislative committee hearing on repealing the state’s death penalty, a bill that passed in 2009 only to be vetoed by then-Gov. Jodi Rell, a Republican.
The new poll also found strong support for relaxed rules on marijuana use and liquor sales.... 79% of voters want the state to allow adults to use marijuana if a doctor prescribes it for medical reasons, and 65% want to decriminalize the possession of small amounts of the substance.
Noting the shift in how states are fighting the war on drugs
I am just catching up on some reading and discovered this great article from a few days ago that appearing in the Wall Street Journal (along with the accompanying graphic). The piece is headlined "States Rethink Drug Laws: Treatment Gains Favor Over Long Prison Terms; a New Look at Rehabilitation," and here are excerpts:
A growing number of states are renouncing some of the long prison sentences that have been a hallmark of the war on drugs and instead focusing on treatment, which once-skeptical lawmakers now say is proven to be less expensive and more effective.
Kentucky on Thursday became the latest to make the shift when Gov. Steve Beshear signed into law a measure increasing spending on rehabilitation programs and intensive drug testing. The law also reduces penalties for many drug offenses and may allow some traffickers and users of smaller amounts of drugs to avoid prison.
Delaware, Florida, Indiana, Massachusetts and Pennsylvania are among those that have pending bills to reduce penalties for drug offenders, in some cases by directing defendants into treatment programs. Similar laws have taken effect in South Carolina, Colorado and New York in recent years. States have maintained stiff penalties for more-serious drug crimes.
While the changes are part of broader belt-tightening efforts, they also reflect a growing belief among state lawmakers that prosecuting drug offenders aggressively often fails to treat their underlying addiction problems and can result in offenders cycling in and out of prisons for years — a critique long voiced by groups that advocate in favor of defendants' rights.
"If you just throw everyone in jail, it's terribly expensive and they get out and they are in the same boat," said Tom Jensen, a Republican state senator in Kentucky who voted in favor of the law. He said he had long "bought into the tough-on-crime concept" and adapting to a more rehabilitative model has been "an education process." Lawmakers, Mr. Jensen said, had access to data indicating that drug offenders are less likely to reoffend if they receive intensive community treatment in lieu of prison.
But others argue such changes send the wrong message. "You need to have serious consequences or repercussions in place if people use heroin, Oxycontin" and other drugs, said Scott Burns, executive director of the National District Attorneys Association.... "Crime will go up in five to 10 years and people will wonder why," said Aaron Negangard, chairman of the Indiana Prosecuting Attorneys Council. "It's because we are letting too many people out of prison."
The state measures mark a sharp retreat from the war on drugs, which gathered steam in the 1980s and '90s with mandatory-minimum and three-strikes prison sentences that resulted in some drug offenders being locked up for decades. Drug arrests nationwide climbed from about 580,000 in 1980 to about 1.6 million in 2009, according to the Federal Bureau of Investigation.
Although some states started rethinking drug punishment before the recession, many more states have come on board in the past two years. In 2007, Texas began shifting more drug offenders away from prison, which helped hold down the inmate population. The changes cost $241 million, less than half what the state anticipated it would have spent to build three new prisons. The impact on the crime rate isn't clear. While putting offenders on probation is far cheaper than sending them to prison, the cost differences may narrow in states that plan to spend more on community-supervision and treatment programs.
Former top Maine prosecutor gets 16-year (below-guideline) federal prison term for child porn offenses
Following up a notable federal child porn sentencing story I flagged here yesterday, as detailed in this new update, today Maine's "former top drug prosecutor [was told he] will spend 16 years in federal prison for his conviction on charges of possession and transmission of child pornography." Here are some more details:
James M. Cameron, 48, formerly of Hallowell and Rome, was sentenced Thursday in federal court. He indicated he will file appeals.
Police began investigating former Cameron, an assistant attorney general at the time, after Yahoo! reported finding images of child pornography in the photos section of an account holder later identified as Cameron's wife. That led to James Cameron's Feb. 11, 2009, federal indictment on 16 counts of transportation, receipt and possession of child pornography....
The charges stated that, "on or about Aug. 11, 2007," Cameron "knowingly transported child pornography in interstate commerce by means of computer, specifically by transmitting digital images of child pornography using Google Hello, an Internet-based chat and file-sharing service."
According to the prior stories about this case, the federal sentencing guidelines recommended a sentence of nearly 22 to over 27 years for Cameron and federal prosecutors were apparently seeking a within-guideline sentence. So, despite the fact Cameron will likely be imprisoned until around 2025 even with good-time credit, he can and should be thankful that the Booker case (which involved, notably, a drug defendant) allowed the sentencing judge here to cut more than a half-decade off his time in the federal pen.
You be the judge: what federal sentence would you impose on former judge Jack Camp?
As detailed in this brief article, headlined "Ex-Judge Prepares to Learn Fate," tomorrow is the scheduled sentencing for former US District Judge Jack Camp, whose 2010 arrest on charges of buying drugs, while carrying firearms, all as part of his relationship with a stripper (basics here) culminated in what struck me as a sweetheart plea deal (basics here). Indeed, the parties' sentencing arguments suggest Judge Camp need not fear much more than a relative slap on the wrist:
U.S. District Judge Thomas Hogan is set to decide Friday whether to sentence Jack Camp to prison after he pleaded guilty to a felony drug charge and two misdemeanors.
Camp's attorneys have filed a flurry of motions asking that he be sentenced to probation and community service. But prosecutors say he owes a debt to society that includes at least 15 days in prison.
Camp resigned in disgrace from the U.S. District Court in November. The 67-year-old said in court filings that his decades-long battle with depression and a bicycling accident that caused brain damage led him to use drugs and start seeing a stripper.
Because the evidence in the case reveals that Camp engaged in multiple drug purchases and brought firearms with him repeatedly, the former judge is very lucky he is not facing years or even decades of imprisonment under the federal mandatory minimum sentencing provisions of 924(c). For this reason, and a few others, I am not too pleased that the federal prosecutors are merely urging a 15-day prison term.
I have not been able to review all the sentencing advocacy, and I doubt that a super-long prison term is necessary to achieve all the 3553(a) purposes of federal sentencing. But I do think the 3553(a)(2)(A) concern with a sentence being sufficient "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense, as well as the 3553(a)(6) with avoiding "unwarranted sentence disparities" call for more than a mere 15-day prison stint. Were I the judge, I would probably impose a term of at least one year and probably longer. I also would think seriously about shaming sanctions and/or other creative alternative sentencing possibilities in the hope of getting maximum deterrent bang for the federal prosecutorial buck in this high-profile setting.
I suspect many readers might have a view on the Camp case or what is a just and effective sentence in a case of this nature. So as my post title asks, dear readers, what would you impose as a sentence on this former judge if you were had the sentencing responsibility that now falls on U.S. District Judge Thomas Hogan?
Related prior posts (which generated lots of notable comments):
- "Federal judge charged with buying drugs from stripper"
- Federal judge cutting deal to avoid prison time for drugs, guns and stripper activities
- Sentencing memo for former federal judge urges probation and stresses mental health issues
UPDATE: This Atlanta Journal-Constitution article indicates that Jack Camp's ex-wife has also made a pitch for leniency:
Elizabeth Camp, the ex-judge's wife, asked Hogan for mercy and a sentence of probation, saying her husband is a changed man. Thanks to proper medical treatment, the couple has begun to repair the damage to their marriage, she said.
The mania associated with bipolar disorder "has often been described as depression's evil twin, the insidious instigator that spurs one on to do all manner of lewd and immoral acts," Elizabeth Camp wrote. "Mania handcuffs and gags the conscience."...
Atlanta criminal defense attorney Paul Kish said Thursday that Camp rarely granted breaks to defendants when they presented mitigation arguments to explain their behavior. "One school of thought is that he should be punished the same way he punished everyone else," Kish said. "The other is that he probably would not be punished for this in federal court, but for his position. It's all very sad."
Meanwhile, in the comments, there seems to be a lot of (justified? cynical?) concern about the leniency apparently being shown by the US Attorney for its plea bargaining and light sentencing recommendation in light of Camp's offense behavior. And at least one commentator has noted that the usual "get tough" voices in comment threads have been surprisingly silent here.
Ohio completes first one-drug lethal injection with new execution drug
As detailed in this AP article, "Ohio executed an inmate Thursday with only one drug, previously used primarily to euthanize animals, marking the first time anyone in the United States had been put to death in that manner." Here are more of the details:
Johnnie Baston, 37, was pronounced dead at 10:30 a.m. at the Southern Ohio Correctional Facility in Lucasville, Ohio, after receiving an infusion of the drug pentobarbital. His attorney and two brothers witnessed the execution, along with five reporters. Baston was sentenced to death for the 1994 killing of Chong Mah, 53, a Toledo store owner.
The execution comes after capital punishment in the United States was thrown in disarray in January when the only U.S. company that makes a sodium thiopental, which Ohio and most other states had long used in lethal injection, announced that it would no longer produce the drug. The decision by Hospira of Lake Forest, Ill., was prompted by demands from Italy, which does not have capital punishment, that sodium thiopental -- which the company had planned to make at its plant outside Milan -- not be used for executions.
The decision forced states and the federal government to scramble for alternatives to the drug.... Shortages of sodium thiopental began after Hospira stopped making it in August 2009 because of problems obtaining one of the main ingredients, prompting doctors to turn to alternatives and some states to delay executions....
Last year, Oklahoma became the first state to switch to another method, replacing sodium thiopental with pentobarbital in its three-drug combination. After winning a court challenge to that decision, the state has executed three inmates since December.
Blagojevich moves to dismiss charges before retrial, which federal sentencing law kind of supports
As detailed in this Chicago Tribune article, Rod Blagojevich's lawyers have now "asked a federal judge to throw out the remaining charges against the former governor because they have not been paid for months and are 'stymied' in their ability to prepare for retrial next month." Here are more details on the motion and its prospects:
The motion, the latest in a series of early-morning filings that have garnered plenty of news media attention, would appear to have no chance of success. After Blagojevich’s initial trial in which jurors convicted him of a lone count but deadlocked on all 23 other counts, federal prosecutors have made clear their intention to retry him on the allegations of widespread corruption while he was governor.
Ordinarily, if Blagojevich wanted to avoid a retrial, he would have to engage in negotiations with prosecutors and likely plead guilty to additional misconduct. Jeffrey Cramer, a former federal prosecutor, called the motion "frivolous."...
Former federal prosecutor Patrick J. Cotter also scoffed at the motion’s chances of success. He said it is unusual for the defense to seek to have the charges dismissed without any concessions from Blagojevich, unlike a plea negotiation in which both sides reach a compromise. “It doesn’t make any sense,” Cotter said. “He’s already convicted on that count. What is their incentive to simply dismiss everything else?”
In the motion, Blagojevich asked U.S. District Court Judge James Zagel to dismiss the remaining charges and sentence the former governor on his lone conviction for lying to the FBI. Blagojevich used up his political campaign funds paying for his legal defense during the first trial. For the retrial, Zagel has found Blagojevich unable to afford to pay his legal expenses, so taxpayers will foot the bill. Zagel, though, has limited Blagojevich to two lawyers.
In the motion, Blagojevich’s attorneys said the retrial should be called off, calling it a waste of taxpayer funds and noting the current “budgetary crisis” confronting the federal government. Cramer noted that the federal budget crisis cannot be used to let defendants walk away from charges. "That's a reason why someone gets a free pass? ... Defendants should not reap a benefit from a budget crisis" he said.
It is probably undisputed that a budget crisis and a huge national debt does not provide serious legal basis to seek dismissal of federal charges. In the Blagojevich case, however, modern federal sentencing law provide a serious policy justification for just moving forward in his case without a retrial. As regular readers know, the hung jury on other charges does not prevent Blagojevich's sentence from being enhanced based on other alleged wrong-doing. Indeed, under current federal sentencing law, if Judge Zagel is convinced by a mere perponderance that Blagojevich committed other relevant offense conduct, he must increase Blagojevich's guideline range based on that conduct (though he may also use his post-Booker discretion to reject the sentencing range suggested by a guideline enhanced through unconvicted conduct).
Blagojevich is already facing a sentence of up to five years in federal prison based on his one count of conviction, and I doubt that federal prosecutors genuinely want or reasonably expect that they would get a sentence too much longer than five years for him even if he were convicted on many other counts. Thus, as some commentators suggested last summer, it might be wise for prosecutors to make their discretion here the better part of valor and just go on to sentencing. Indeed, I think the prosecutors could (and perhaps should) simply move to dismiss the other charges without prejudice, and thereby retain the opportunity to try Blagojevich on the charges if and when they were to conclude that justice ultimately was not served by whatever sentence Judge Zagel imposing on the one conviction count.
Some related prior Blago posts:
- Former Illinois Gov. Rod Blagojevich convicted of one count
- "Blagojevich: Focus on Sentencing, Not a Retrial"
- What should be the take-away from the Blogo verdict and the Clemens indictment?
- "Sentencing likely to await Blagojevich retrial"
- "Prison is too good for Blago"
March 9, 2011
Illinois Governor Quinn commutes all death sentences as he signs state's death penalty repeal
As detailed in this Reuters piece, as he was signing a state bill to abolish the death penalty, Illinois Governor Pat Quinn "also commuted to life in prison the death sentences of all 15 inmates currently on the state's Death Row, and established a trust fund for murder victims' families."
Simply for the sake of finality and to save litigation costs, this seems like a sound move by Gov. Quinn. I suspect, however, the persons involved with these 15 murder cases are not too pleased this notable mass commutation is now part of the historic Illinois capital punishment repeal.
UPDATE: Available at this link is the statement issues by Governor Quinn explaining his decision to sign the bill abolishing the death penalty in Illinois. Here is an excerpt:
Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper course of action is to abolish it. With our broken system, we cannot ensure justice is achieved in every case. For the same reason, I have also decided to commute the sentences of those currently on death row to natural life imprisonment, without the possibility of parole or release.
I have found no credible evidence that the death penalty has a deterrent effect on the crime of murder and that the enormous sums expended by the state in maintaining a death penalty system would be better spent on preventing crime and assisting victims’ families in overcoming their pain and grief.
To those who say that we must maintain a death penalty for the sake of the victims’ families, I say that it is impossible not to feel the pain of loss that all these families share or to understand the desire for retribution that many may hold. But, as I heard from family members who lost loved ones to murder, maintaining a flawed death penalty system will not bring back their loved ones, will not help them to heal and will not bring closure to their pain. Nothing can do that. We must instead devote our resources toward the prevention of crime and the needs of victims’ families, rather than spending more money to preserve a flawed system.
"Sotomayor emerges as force in criminal cases"
The title of this post is the headline of a new piece by Marcia Coyle via the Supreme Court Insider at The National Law Journal. Here is how the piece starts:
If there were any doubts that Justice Sonia Sotomayor would have a voice to be heeded, particularly in criminal justice matters, her most recent opinions have conquered them.
"She is emerging as a force on the Court," said white-collar defense litigator Timothy O'Toole, a partner at Miller & Chevalier. "She has important views and strong views, and they tend to be as liberal as the justice she replaced, but there are some places where she is to the right of Justice [David] Souter."
It would be difficult, he added, to walk away from the two decisions that she issued on Feb. 28 and March 2 "and not realize she is becoming a voice of importance and influence." The two decisions were Michigan v. Bryant and Pepper v. U.S., the former involving the confrontation clause and the latter, the role of rehabilitation in resentencing proceedings.
Illinois Governor Pat Quinn to sign bill abolishing the state's death penalty
According to this new AP articlefrom Chicago, "Democratic Gov. Pat Quinn intends Wednesday to abolish Illinois' death penalty more than a decade after one of his Republican predecessors enacted a moratorium that has prevented executions for the last 11 years, two lawmakers said." Here is more on a story sure to make lots of national and international headlines:
Quinn's office confirmed early Wednesday that the governor would announce his decision on legislation to end capital punishment in the state. Two sponsors of the measure, State Rep. Karen Yarbrough and state Sen. Kwame Raoul, said they were invited to witness the governor sign the bill on Wednesday. "It's going to happen," Raoul said Tuesday.
Quinn's signature would make Illinois the 16th state without capital punishment when it takes effect July 1. But a decision to sign has not come easily.... Among those the governor consulted with were prosecutors, murder victims' families, death penalty opponents and religious leaders. Quinn even heard from retired Anglican Archbishop Desmond Tutu of South Africa and met with Sister Helen Prejean, the inspiration for the movie "Dead Man Walking."
Illinois Attorney General Lisa Madigan appealed directly to Quinn to veto the bill, as did several county prosecutors and victims' families. They said safeguards, including videotaped interrogations and easier access to DNA evidence, were in place to prevent innocent people from being wrongly executed.
But death penalty opponents argued that there was still no guarantee that an innocent person couldn't be put to death. Even Quinn's own lieutenant governor, Sheila Simon, a former southern Illinois prosecutor, asked him to abolish capital punishment.
Illinois' last execution was in 1999, a year before then-Gov. George Ryan imposed a moratorium on capital punishment after the death sentences of 13 men were overturned. Ryan cleared death row before leaving office in 2003 by commuting the death sentences of 167 inmates to life in prison.
If Quinn were to sign the bill, it is unclear how that would affect the 15 inmates currently on Illinois' death row.... Prosecutors would still be able to seek the death penalty and juries could still impose it until the law took effect.
It is going to be interesting to watch how death penalty abolitionists and supporters try to spin the abolition of the death penalty in Illinois. I suspect abolitionists will claim that this development is the latest and most important evidence that the death penalty is dying in the United States; I suspect supporters will claim this development is not really a big deal because Illinois has been functionally without a fully operational death penalty for over a decade.
There is a grain of truth to both spins, and who is more right may depend in part on whether on-going abolitionist efforts in other states like Connecticut and Montana get a boost from this development in Illinois. And the future potential political consequences for Governor Quinn and other elected officials in Illinois also may provide an important indication of which ways the capital punishment winds are really blowing.
Federal child porn sentencing for former Maine prosecutor bringing out divergent recommendations
I am in Washington DC this morning because I have the honnor of speaking this afternoon at U.S. Court of Appeals for the Armed Forces 2011 Judicial Conference on the topic of "Federal Sentencing Law and Policy for Child Pornography Offenses." But that is only one of the reasons I find interesting this new article from the Bangor Daily News headlined "Prosecutor seeks long sentence for ex-AG on child porn charges." Here are excerpts:
A federal prosecutor thinks the man who was Maine’s top drug prosecutor should be behind bars for at least 21 years. The attorney for the former assistant attorney general believes his client should spend no more than five years in federal prison on child pornography charges.
How much time James M. Cameron, 48, of Hallowell serves will be decided Thursday by U.S. District Judge John Woodcock in federal court in Bangor. On Aug. 23, Woodcock found Cameron guilty on 13 counts of sending, receiving and possessing child pornography in 2006 and 2007 after a jury-waived trial in U.S. District Court in Portland. Since then, Cameron has been held without bail at the Cumberland County Jail.
Sentencing memorandums filed by Assistant U.S. Attorney Gail Malone, who prosecuted the case, and Cameron’s attorney, Michael Cunniff of Portland, reach vastly different conclusions about what sentence Woodcock should impose.
Cameron faces a minimum of five years in prison. Under the prevailing, but advisory, federal sentencing guidelines, his recommended sentence is between 21 years and 10 months and 27 years and three months, according to court documents....
The judge has handed down sentences in 35 child pornography cases since 2006, according to Malone’s memorandum. He has gone below the guideline range in 10 of them and above the guideline range in one. The average departure, the prosecutor said, was 26 percent below the guideline range, not the the 77 percent Cunniff has suggested in seeking a five-year sentence.
All of those defendants, however, pleaded guilty to some or all of the counts with which they were charged rather than going to trial. Under the sentencing guidelines, a defendant’s guideline range goes down if he enters a guilty plea. Factors outlined in the guidelines that could lengthen a sentence in a child pornography case such as Cameron’s include having the images on a computer, the number of images downloaded, whether they were traded for other images or sold, and the nature of the images. Sentences are increased when the child pornography depicts prepubescent children, intercourse between adults and children and sadomasochistic images.
Malone argued in her sentencing memorandum that in Cameron’s case, all those factors apply. She said that Cameron traded or possessed at least 547 images, some of which depicted babies and young children being victimized and tried to erase them using wiping software.
Defense attorney Cunniff, however, maintained that many of the images included in the prosecution’s calculations are duplicates, and that just 94 images should be counted against Cameron. Cunniff also argued that most of the images of child pornography were found in Cameron’s deleted files, showing that his intent was not to save or share them. Finally, the defense attorney said a guideline-range sentence was too harsh.
No matter how the disputes over the number of images downloaded and the nature of those images are decided, Cameron’s character, his former job as a prosecutor and his actions since his arrest will be seriously scrutinized by Woodcock.... Although Woodcock has not indicated what sentence he might impose, the judge has denied Cameron’s motion for a new trial and refused to release him on bail while awaiting sentencing.
March 8, 2011
"Double Jeopardy as a Limit on Punishment"
The title of this post is the title of this great-looking new piece by Professor Carissa Byrne Hessick and F. Andrew Hessick III. Here is the abstract:
One of the most common reasons for a sentencing enhancement is that the defendant has a prior conviction. Courts have rejected claims that these recidivism enhancements violate the prohibition against Double Jeopardy. They have explained that the Double Jeopardy Clause does not prohibit the legislature from authorizing multiple punishments for one offense and that, in any event, the Double Jeopardy Clause does not apply at sentencing.
This Article challenges these conclusions. It demonstrates that the central motivation for the Double Jeopardy Clause is the prohibition multiple punishments and that allowing recidivism enhancements undermines this principle. The Article further explains that the reasons courts give in rejecting Double Jeopardy challenges to recidivism enhancements directly conflict with the reasons they give in rejecting Eighth Amendment challenges to those same enhancements. The consequence is an inconsistent body of law that maximizes the government’s ability to punish at the expense of individual rights. The Article offers several reasons why the Double Jeopardy Clause is the appropriate constitutional provision to limit recidivism enhancements.
Texas apparently not planning to comply with federal AWA sex offender rules
The Houston Chronicle has this notable piece about Texas's resistance to implementation of the federal Adam Walsh Act. The piece is headlined "Sex offender list in the middle of a showdown; Federal mandate costs too much to implement, Texas officials argue," and here are snippets:
The latest battleground between Texas officials and the federal government is an unlikely clash over the Adam Walsh Act, a federal law to protect children from sexual predators by creating a national sex offender registry that local law enforcement agencies could tap.
The state — which has the second-largest sex offender database in the nation, with 63,000 men and women registered — is balking at the law's requirements, citing unacceptably high costs of implementing the law's provisions. The Legislature has not yet passed the changes, saying the cost for Texas to comply would be $38.8 million, a significant amount with the state facing a budget crisis....
If Texas does not comply with the federal mandate by July 26, the state will lose 10 percent of its federal funding under the Byrne Justice Assistance Grant, which provides assistance to crime victims and witnesses. The penalty would amount to an estimated $2.2 million in 2012.
The crux of the dispute is a difference in approach to the same problem. Texas' current sexual offender registry is based on risk assessment; the federal law requires registration based on offenses committed. The federal law divides offenders into three tiers based on the crimes they committed and has different registration requirements for each tier. For example, the most severe offenders would have to renew their registration in person every three months. Under current Texas law, sex offenders register either for 10 years or for life based on offense and risk level.
Because of the change in requirements, the number of people on the registry would "increase greatly," according to a report by the Texas Senate Criminal Justice Committee, which recommended that the state not comply with the federal law. "There will be an enormous amount of cost to the state without enhancing public safety," said Allison Taylor, executive director for the Council on Sex Offender Treatment, a state agency that develops and implements policies regarding sex offenders.
"The Case for Discriminatory Sentencing: Why Identical Crimes May Deserve Different"
The title of this post is the title of this interesting-looking new paper by Professors Alon Harel and Eyal Winter taking a law-and-econ perspective on sentencing disparity. Here is the abstract:
The traditional premise of criminal law is that criminals who are convicted of similar crimes under similar circumstances ought to be subject to identical sentences. This article provides an efficiency-based rationale for discriminatory sentencing, i.e., establishes circumstances under which identical crimes ought to be subject to differential sentencing. We also establish the relevance of this finding to the practices of sentencing and, in particular, to the Sentencing Guidelines. Most significantly, we establish that the model can explain why celebrities, leaders, or recidivists ought to be subject to harsher sanctions than others.
Discriminatory sentencing is optimal when criminals confer positive externalities on each other. If a criminal A who imposes (non-reciprocal) large positive externalities on criminal B is punished sufficiently harshly, B would expect A not to commit the crime and, consequently, he would expect not to benefit from the positive externalities conferred on him by A. Given that B's expected benefits are lower than the sanctions sufficient to deter B are also lower than the ones imposed on A. The result can be easily extended to the case of reciprocal externalities. Assume that a criminal A imposes positive externalities on B and B imposes identical positive externalities on A. If A is subject to a sufficiently harsh sanction and B knows this, B would expect A not to perform the crime and herefore would expect not to benefit from the positive externalities otherwise conferred on B. Consequently, a more lenient sanction than the sanction imposed on A would be sufficient to deter B.
I suspect that Lindsay Lohan might be distinctly troubled by a paper which explains "why celebrities, leaders, or recidivists ought to be subject to harsher sanctions than others." But especially since I do not fit into any of those choice categories, I am excited to read a reasoned argument in favor of sentencing disparity.
Effective coverage of Iowa's challenges operationalizing Graham ruling
The Iowa Independent has this really interesting new piece headlined "Iowa courts struggling with application of U.S. Supreme Court ruling; Family of man convicted in 1994 when he was 17 hope federal decision can lead to parole." (Hat tip: How Appealing.) Here are snippets:
In 1994, when [Jason] Means and five additional teens were found guilty of crimes in connection with [Michelle] Jensen’s death, both sides believed most of the legal uncertainty was behind them. Means, then 17, was found guilty of first degree kidnapping, first degree robbery, second degree murder, criminal gang participation, conspiracy to commit robbery and unauthorized possession of an offensive weapon. In Iowa, a conviction on the kidnapping charge alone mandated a prison sentence of life without parole.
Two other young men — one 17 and the other 18 — were also given prison sentences of life without parole. The three remaining teens, who testified for the prosecution, were given lesser sentences. Two have since been given parole, but have committed subsequent crimes that have placed them back behind bars.
Although there was an appeal launched by Means’ legal counsel shortly after his sentencing, it was always considered to be a long shot. “After a certain amount of time, you resign yourself to the fact that this is the way it is going to be — that the rest of your son’s life will be spent in prison,” Cheryl Clark, Means’ mother, said in an interview with The Iowa Independent.
But a May 2010 U.S. Supreme Court decision, Graham v. Florida, appears to have mandated a different fate for Means and Tony Hoeck, the other 17-year-old sentenced to life without parole.... The court found that sentencing juvenile offenders to life without the possibility of parole for non-homicide offenses is a violation of the “cruel and unusual” clause of the Eighth Amendment.... The court specifically stated that while such a juvenile offender is not given a “guarantee to eventual freedom,” the law does require the state to provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”
While at first glance the Graham decision may appear as open-and-shut on matters involving those convicted of non-homicide offenses as juveniles, most cases remain tied up in the courts as states interpret and apply the ruling. According to the Graham decision, there were 129 such juvenile offenders serving throughout the U.S. Of those, 77 were incarcerated in Florida, the remaining 52 scattered across 10 states. There are an estimated eight such cases in Iowa, including one that was decided in December 2010 by the Iowa Supreme Court....
In September 2010, [U.S. District Court Judge Gary D.] McKenrick struck the portion of Means’ sentence that prohibited the opportunity for parole, leaving Means to “serve the remainder of his natural life in the custody of the director of the department of corrections, however the defendant shall be subject to parole consideration.” According to information provided [Means' lawyer in court], despite the judge’s order Means continues to be denied an opportunity to appear before the parole board or be provided a future date for such a hearing....
State lawmakers are also considering their own proposals to bring the Iowa Code in line with the Graham ruling, but even if such a proposal becomes law, it is unlikely that it could be applied to the Means’ case or other old cases already before the court. The law doesn’t allow courts to revisit sentences if the end result would be an increase in the severity of the sentence. As it stands now, with the prohibition of parole removed, the sentences faced would be reduced to life with an immediate eligibility of parole — which is, in all likelihood, far less than what would codified for future cases....
“It would mean a great deal for Jason to have that hearing,” his mother, Cheryl Clark, said. “He should have an opportunity to stand before the parole board and present himself — how he has changed and what type of a person he is now.” Steve Clark, Jason’s step-father, added that “he’s not the same person now that he was at 17.”...
Outside of the courtroom, however, Cheryl Dittmer continues to grip a framed photograph of her late daughter Michelle so hard that her knuckles match the marble floor. Since 2008, she’s watched and protested as three of the teens convicted in connection with her daughter’s murder have been paroled. She isn’t ready to witness another. “I agree with the premise of Graham,” Dittmer told The Iowa Independent after the hearing. “I believe that there should be an opportunity for a juvenile to show they’ve grown and changed — but not in this case.”