March 19, 2011
Judge Hornby discusses "Speaking in Sentences"
A helpful reader alerted me to this interesting piece in the Winter 2011 issue of The Green Bag by D. Brock Hornby, a District Judge on the United States District Court for the District of Maine. The work is titled "Speaking in Sentences," and it begins and ends this way:
Federal judges sentencing offenders face-to-face. The proceedings showcase official power vividly and, sometimes, individual recalcitrance, repentance, outrage, compassion, sorrow, occasionally forgiveness — profound human dimensions that cannot be captured in mere transcripts or statistics. But while materials on federal Guidelines, statutory mandatory minimums, and sentencing data are voluminous, relatively little attention is paid to federal sentencing proceedings as they occur today. In a world of vanishing trials, these public communal rituals are vital opportunities for federal courts to interact openly and regularly with citizens. How they are conducted can rival the importance of the actual punishment; managers or forepersons who penalize workers, parents or teachers who discipline children, certainly judges, know that. My topic, therefore — Speaking in Sentences — is what should and should not be said when federal judges punish individual....
Sentencing proceedings should address the community openly and understandably with a series of why’s about the crime and the punishment, the defendant, and the victim — with spoken answers of repentance or recalcitrance, punishment, deterrence, restitution, occasionally mercy. Mandatory Guidelines frustrated this process, with their overemphasis on numbers and categories. We were seduced by hand-wringing about data that showed sentences were not uniform. Of course they weren’t. Sentences can never be uniform. Yes, there should be strong norms to guide judges, but not straitjackets. Sentencing is not only about outcomes, data, and uniformity. Uncertainty, subtlety, debate, and public discussion — not easy application of across-the-board formulae — are necessary in determining particular federal sentences. Fair punishment calls for individualized wisdom exercised by the community’s arbiters in a public ceremonial process conducted in language that everyone understands.
USSC hearing testimony about federal prison overcrowding and new release plans in works
Thanks to a helpful e-mail, I discovered that the statement of Harley Lappin, the director of the US Bureau of Prisons, delivered to the US Sentencing Commission this week during its public hearing includes some very interesting passages about federal prison overcrowding and new release proposals in the works to deal with it. Here are the passages:
As the nation’s largest corrections system, the Bureau is responsible for the incarceration of about 210,000 inmates. Currently, the Bureau confines more than 171,000 inmates in 116 facilities with a total rated capacity of 126,971. The remainder, more than 18 percent, are housed in privately operated prisons, residential reentry centers, and local jails. In fiscal year 2009, a net growth of 7,091 new inmates was realized and an additional 1,468 inmates were added in fiscal year 2010. An increase of approximately 5,000-6,000 inmates per year is expected for fiscal year 2011 and fiscal year 2012.
Most of the inmates in Bureau facilities are serving sentences for drug trafficking offenses. The remainder of the population includes inmates convicted of weapons, immigration law, violent, fraud, property, sex, and other miscellaneous offenses. The average sentence length for inmates in Bureau custody is 10 years. Approximately 7 percent of inmates in the Bureau are women, and approximately 26 percent of the Federal prison population are non-U.S. citizens.
System-wide, the Bureau is operating at 35 percent over its rated capacity. Crowding is of special concern at higher security facilities with 50 percent crowding at high security facilities and 39 percent at medium security facilities. This severe crowding has resulted in double and triple bunking inmates. As of January 2011, 94 percent of high security inmates were double bunked, and 16 percent of medium security inmates and almost 82 percent of low security inmates were triple bunked or housed in space not originally designed for inmate housing.
In order to reduce crowding, one or more of the following must occur: (1) reduce the number of inmates or the length of time they spend in prison; (2) expand inmate housing at existing facilities; (3) contract with private prisons for additional bedspace for low-security criminal aliens; and (4) acquire and/or construct and staff additional institutions.
The Department of Justice is working with Congress on two legislative proposals that will provide inmates with enhanced incentives for good behavior and participation in programming that is proven to reduce recidivism, while also reducing crowding somewhat. The first proposal increases good time credits available by seven days per year for each year of the sentence imposed. The second proposal creates a new sentence reduction credit that inmates can earn for successful participation in recidivism-reducing programs, such as Federal Prison Industries, education, and occupational/vocational programming.
The last two sentences that I have placed in bold could be extraordinarily important to the federal criminal justice system if and when they move from proposals to law.
Programmer sentenced to eight years for taking code from Goldman Sachs
Though some might hope that lots of people who once worked for Goldman Sachs would be facing prison, this New York Times story is about just the notable sentencing a former Goldman programmer. Here are the details:
A former Goldman Sachs computer programmer convicted of stealing source code from the firm was sentenced on Friday to more than eight years in prison, capping a case that had shone a rare spotlight on the world of lightning-fast computer-driven trading.
A federal jury in Manhattan in December found the programmer, Sergey Aleynikov, guilty of stealing proprietary code that places trades using computer algorithms that spot tiny discrepancies in stock prices. Such trading earned Goldman about $300 million in 2009.
Before leaving Goldman for a new job at a start-up, Teza Technologies, federal prosecutors had claimed, Mr. Aleynikov secreted the code onto a server in Germany to get around the investment bank’s security systems.
The prison term, while at the low end of federal sentencing guidelines, was four times what probation officials had recommended. Prosecutors had asked for as much as 10 years.
Both the defense and the prosecution cited the recent case in Manhattan of Samarth Agrawal, a trader at Société Générale, who was convicted of stealing proprietary code from its high-frequency trading business. Mr. Agrawal was sentenced in February to three years in prison, less than the government’s request.
“It is unprecedented for the government to seek a sentence five times as high as probation recommends and for the court to impose a sentence four times as high,” said a defense attorney, Kevin H. Marino....
But Judge Denise L. Cote of the Federal District Court in Manhattan likened his crime to “economic espionage.” Mr. Aleynikov’s conduct, she said, “deserves a significant sentence because the scope of his theft was audacious — motivated solely by greed, and it was characterized by supreme disloyalty to his employer.”...
Mr. Aleynikov has been in jail since March 2, when the judge revoked his bail. The decision to incarcerate Mr. Aleynikov before his sentencing was prompted by a letter from federal prosecutors, who warned that Mr. Aleynikov had dual citizenship and posed a flight risk.
March 18, 2011
DPIC director assails our "thoroughly modern death penalty"
Richard Dieter, the executive director of the Death Penalty Information Center, has this notable commentary on a blog from The Hill publication. The piece is headlined "A thoroughly modern death penalty," and here is how it starts:
On March 10, Ohio carried out an execution using a method that had never been tried before in the U.S. — a continuous dose of the barbiturate pentobarbital was administered until death occurred for Johnnie Baston. Coincidentally, in an unrelated event, Ohio's electric chair was relegated to a museum, displayed along with artifacts from the Ku Klux Klan and a cage used to house mental patients.
Although the museum pieces were clearly meant to show the dark side of Ohio's discredited past, the newest lethal-injection method has been viewed as cutting-edge technology in the business of capital punishment. Ohio has execution dates scheduled right into 2012.
It is often hard to see the present with the same clarity that we apply to the past. But it is likely that someday the idea of strapping people onto a table with deadly chemicals flowing through IV-tubes into their arms and watching them die will also be seen as barbaric.
Particular condemnation might be cast upon the practice of using untried methods on unwilling human subjects — an ethical breach made acceptable only because the recipients are already condemned to die. Those who probe a little further might be shocked to find that the death row inmates were first kept in locked-down cells for 23 hours a day for 15 to 20 years before being led to the execution chambers.
Earlier this year, the smooth running of the death penalty was jolted by an announcement from the sole manufacturer of a key drug used by all death penalty states that it was ending production. States scrambled to find sources of the drug, sodium thiopental, overseas or to find a substitute drug here in the U.S. A dingy storefront housing a driving school in London proved to be a goldmine for several states desperate to keep executions on schedule. In the back of the building was a tiny pharmaceutical distributor called Dream Pharma that willingly sent thiopental to the U.S. for executions.
Despite the fact that these drugs were never examined by the U.S. Food and Drug Administration (which constantly warns consumers about the dangers of counterfeit drugs from questionable sources), they were quickly used in executions in Georgia and Arizona. Great Britain was embarrassed and has taken steps to bar all future exports for a practice that they routinely condemn. The FDA has been sued for its inaction in allowing the drug into the country.
But the experiments go on. There are now four different methods of lethal injection being used in the U.S., even though there has yet to be a national review of what would be the most humane approach. Some states like Ohio are trying single drugs, others like Texas are substituting pentobarbital as part of a three-drug regimen. Since the inmates almost always die at the end of these routines, there is little medical evidence of what the inmate is experiencing.
UPDATE: Writing in a similar vein, the New York Times on March 19 published this editorial headlined, "The Broken Machinery of Death."
Latest chapter in notable federal acquitted conduct case from DC
As detailed in this local piece from the Washington Times, which is headlined "D.C. man gets 18 years for $600 drug deal," a notable federal criminal case involving acquitted conduct finally resulted in a sentencing outcome yesterday. Here are some of the specifics:
More than three years ago, a federal jury acquitted Antwaun Ball on racketeering and conspiracy charges that he led a violent drug gang in the Congress Park neighborhood in Southeast Washington, convicting him solely of a $600, half-ounce drug deal.
But at Ball's long-delayed sentencing Thursday, U.S. District Judge Richard W. Roberts disagreed, saying he saw clear evidence of a drug conspiracy before sentencing Ball, 40, to more than 18 years in prison for his conviction of the 2001 hand-to-hand drug transaction. The judge's ruling in federal court in Washington shines a light on a little known practice called acquitted conduct sentencing that lets judges mete out tougher prison terms based on conduct jurors rejected.
Arguing Ball was the ringleader of a gang called the Congress Park Crew, prosecutors pointed to, among other things, testimony from cooperating witnesses in the federal drug case as well as guilty pleas by people who said they saw Ball dealing drugs and carrying guns. Assistant U.S. Attorney Gilberto Guerrero Jr. argued that Ball caused "havoc" in Congress Park that "destroyed people's lives."
Meanwhile, Ball's defense attorney, John Carney, cited testimony of people who worked with Ball on various community projects in Congress Park, including a former U.S. Parole Board commissioner, Janie Jeffers, who called Ball "a catalyst" for improving the neighborhood.
Mostly, Mr. Carney pointed to the words of a juror in the case, Jim Caron, who died not long after writing a letter to the judge after the trial. "Conspiracy? A crew? With the evidence the prosecutor presented, not one among us could see it. Racketeering? We dismissed that even more quickly," Mr. Caron wrote. "This is one of the few times we know exactly what the jury was thinking," Mr. Carney argued. Prosecutors disagreed: "That's one person's perspective," said Mr. Guerrero.
Defense lawyers also argued in court memos that if the judge relies on acquitted conduct, Ball unfairly would get a prison term far longer than what he'd receive under the federal sentencing guidelines. But prosecutors pointed out that those guidelines are advisory, not mandatory, and that selling five or more grams of crack cocaine by law carries a sentence anywhere from five to 40 years in prison.
Judge Roberts said the "stark duality" of Ball's persona was "confounding and tragic." And he said while he respected the jury's verdict, he couldn't turn a blind eye to what he called "clear and convincing" evidence that Ball was part of a long-running conspiracy to deal crack cocaine in Congress Park. The judge did not otherwise address Mr. Caron's letter, which was later cited by Gilbert S. Merritt Jr., senior judge on the 6th U.S. Circuit Court of Appeals, in an unrelated case in Kentucky involving acquitted conduct issues.
Judge Roberts said his reliance on acquitted conduct in determining a sentence for Ball was proper. He also gave Ball credit for the time he's served since being locked up in April 2004, and he reduced his sentence by 15 months because of delays in carrying it out.... A co-defendant in the case, David Wilson, was sentenced to 45 years in prison last week. He was convicted in two murders and on drug charges.
In a sentencing memo, prosecutors called for a 40-year sentence for Ball on the basis of, among other things, "ample evidence" that Ball was the leader of a criminal conspiracy. Other "acts of violence, witness intimidation and other obstructive acts," prosecutors argued, "show what a true danger Ball is." The prosecutors also said they were asking for a tougher sentence for Ball not on the basis of acquitted conduct, but uncharged conduct — or actions the jurors were never asked to consider.
By contrast, defense attorneys called the jury verdict a "virtually total rejection" of the government's case against Ball. Ball's sentence is likely to be appealed.
I am pleased to see that the acquitted conduct issue has been preserved by Ball's counsel and that he apparently has plans to appeal his client's sentence. Though the DC Circuit has upheld the constitutionality of acquitted conduct sentencing since Blakely and Booker, at some point in some way some circuit has to question at least the substantive reasonableness of a sentence that is greatly elevated on the basis of acquitted conduct. And such a ruling may be what is needed to convince the Supreme Court that this issue merits re-examination in light of Blakely and Booker.
Some older posts on the Ball case and acquitted conduct sentencing enhancements:
"Do the crime, pay more than time"
The title of this post is the headline of this article appearing today on the front-page of my own Columbus Dispatch. Here is how the piece begins:
When it comes to budget sacrifices, it appears no one is exempt in Ohio -- not even prisoners, who will have to pay $1 a month for electricity in their cells. Also behind bars, flavored drinks are out, saving $1 million, and meals will have less variety, saving $3 million over two years.
Those changes are part of $30 million in cost savings set in motion by the Ohio Department of Rehabilitation and Correction as part of the state's budget belt-tightening. Among other changes: closing two prison farms, eliminating the $75 "gate pay" for certain inmates upon release and contracting for some medical services.
Overall, the agency must cut $188 million in the coming biennium under Gov. John Kasich's budget blueprint. Much of that would be done by laying off or eliminating positions of 171 workers, selling five prisons to private operators and offering early retirement to veteran employees.
But prisons chief Gary Mohr, looking to squeeze more money out of his budget, called together 200 staff members and asked them to come up with additional money-saving ideas. Many of the resulting suggestions were included in the plan rolled out this week.
Requiring inmates to pay $1 a month if they use televisions and radios in their cells or bunks will save about $250,000 a year, prisons spokesman Carlo LoParo said. Indigent inmates and those on court-ordered repayment plans will be exempt.
Inmates are paid an average of $18 a month for doing jobs in prisons -- more if they work for Ohio Penal Industries. The money goes into an account, maintained by the prison, which will be tapped for the electricity charge.
The flavored, noncarbonated drinks inmates are now served are being eliminated. Menus will be modified to serve more of the "most-popular and least-expensive items," the budget plan said. Together, those will save an estimated $4 million over the biennium. LoParo said inmates have orange and apple juice, coffee and milk available with breakfast but will get only water with the noon and evening meals with these changes.
Swift answer to my blog prayers seeking information on faith-based prisons
Yesterday I asked this post "What is the current status and latest research on faith-based prisons?". Today, thanks to Professor Sasha Volokh my blog prayers have been answer via this article available now on SSRN titled "Everything We Know About Faith-Based Prisons." Here is the headline of today's must read:
This Article examines everything we know about the effectiveness of faith-based prisons, which is not very much.
Most studies can’t be taken seriously, because they’re tainted by the “self-selection problem.” It’s hard to determine the effect of faith-based prison programs, because they’re voluntary, and volunteers are more likely to be motivated to change and are therefore already less likely to commit infractions or be re-arrested. This problem is the same one that education researchers have struggled with in determining whether private schools are better than public schools.
The only credible studies done so far compare participants with non-participants who volunteered for the program but were rejected. Some studies in this category find no effect, but some do find a modest effect. But even those that find an effect are subject to additional critiques: for instance, participants may have benefited from being exposed to treatment resources that non-participants were denied.
Thus, based on current research, there’s no strong reason to believe that faith-based prisons work. However, there’s also no strong reason to believe that they don’t work. I conclude with thoughts on how faith-based prison programs might be improved, and offer a strategy that would allow such experimentation to proceed consistent with the Constitution.
March 17, 2011
"Shepherds lead, but flocks diverge on morality of death penalty"
The title of this post is the headline of this new piece in the Houston Chronicle. Here is how it gets started:
Last week, Illinois Gov. Pat Quinn signed a law abolishing the death penalty in his state, adding the Land of Lincoln to the growing list of 16 states where capital punishment is no longer an option.... Quinn, who is Catholic, revealed that he turned to his faith -- to the Bible and to Catholic leaders and tradition -- in contemplating the bill lawmakers delivered to him in January.
The governor quoted Cardinal Joseph Bernardin, the beloved archbishop of Chicago who died in 1996, saying, "In a complex, sophisticated democracy like ours, means other than the death penalty are available and can be used to protect society." Religious leaders have been at the forefront of the death penalty abolitionist movement in Illinois and nationwide. But there has been a disconnect between their activism and the opinions of their flocks.
According to a 2010 survey by the Pew Forum on Religion & Public Life, 62 percent of Americans support the death penalty in murder cases, with only 30 percent saying they oppose it. That figure is nearly identical to the results of a similar survey in 2007 but lower than a 1996 survey, when 78 percent of Americans said they supported capital punishment for murder and just 18 percent said they were opposed.
Survey results on the death penalty vary little across religious groups - at least among white Americans. Last year, 74 percent of white evangelicals, 71 percent of white mainline Protestants and 68 percent of white Catholics said they favor capital punishment, according to Pew. But less than half of black Protestants (37 percent) and Hispanic Catholics (43 percent) said they approve of the death penalty.
"The light of God is shining, shining positively on our state," Illinois state Sen. Kwame Raoul said after Quinn signed the death penalty ban. Raoul was not alone in thinking that the Illinois ban is a moral as well as a legal victory for people of good faith. As more states examine whether to eliminate capital punishment, some wonder whether the days of the death penalty are numbered and what, if any, role people of faith might play in reaching such a tipping point.
Some older posts on religion and the death penalty:
- "Religion and the Death Penalty: Can't have one without the other?"
- Senator Brownback questions death penalty and culture of life
- Debating religion and the death penalty
- New DPIC page on religion and the death penalty
- New resource examining religion and the death penalty
- Remarkable circuit judge speech on capital punishment at mass
- Sister Prejean's powerful perspective
Fifth Circuit distinguishes departures and variances to uphold appeal waiver
An intriguing little issue of sentencing procedures is addressed by the Fifth Circuit today in US v. Jacobs, No. 10-20043 (5th Cir. March 17, 2011) (available here), which gets started this way:
Federal prisoner Marcus Eugene Jacobs pled guilty to one count of possessing stolen mail in violation of 18 U.S.C. § 1708. In his signed plea agreement, Jacobs generally waived his right to appeal his sentence but preserved his right to appeal an upward departure from the Sentencing Guidelines not requested by the Government. At sentencing, the district court imposed an upward variance from the Guidelines not requested by the Government. Jacobs now contends that the upward-departure exception to the waiver allows him to challenge his sentence on appeal. Because sentencing departures are distinct from sentencing variances, we conclude that the waiver bars this appeal and grant the Government’s motion to dismiss.
Important US Sentencing Commission hearing today on FSA and guideline amendments
As detailed in this official notice, today the US Sentencing Commission is conducted a full-day public hearing "to gather testimony from invited witnesses regarding proposed amendments to the federal sentencing guidelines." Helpfully, this official agenda not only lists the invited witnesses, but also provides links to their written testimony.
Interestingly, the Executive Branch gets its own panel, and then there are two Fair Sentencing Act panels and finally a Firearm Offenses panel. The great folks at FAMM are covering these USSC doings extensively and FAMM even had this Twitter account with live update on today's USSC hearing.
What is the current status and latest research on faith-based prisons?
The question in the title of this post is prompted by this local news article from Florida headlined "Faith-based prison in Riverview to close." Here are the details from this piece:
Hillsborough County's only state prison is among several corrections facilities statewide that will be shut down by June 30, officials announced today. Hillsborough Correctional Institution in Riverview, the state's lone faith-based women's prison, has almost 300 inmates and 141 full-time employees.
Prisoners will be moved to Lowell Correctional in Marion County, which will provide faith-based dormitories, said Gretl Plessinger, spokeswoman for the state Department of Corrections. Once some other prisons statewide are converted to a faith-based system, prisoners will have the opportunity to move there....
With about 101,700 inmates, the state's prisons are under capacity. The programs affected by the closures have roughly 2,100 inmates. The closures will affect 564 full-time workers, officials said. The department has about 28,000 employees.
Officials said closing the Riverview facility and two other correctional institutions, as well as two boot camps and a residential prison where inmates serve on road crews will save $30.8 million a year – mostly through attrition – as well as millions more by avoiding repairs.
The department's annual budget tops $2 billion. "The facilities to be closed are older and require more resources to operate than newer institutions," DOC Secretary Edwin Buss said in a statement.
Hillsborough Correctional, 11150 County Road 672, was established in 1976 to house 272 male youthful offenders in minimum and medium custody. It housed men from 1988 to 1994 and then reverted to youthful offenders. In 2004, it became a faith-based prison for female inmates, offering Bible studies, anger management classes and other programs. Inmates must seek permission to be housed at the prison.
Hillsborough Correctional is zoned for up to 360 inmates, Plessinger said, but even at capacity, "We're still not going to be cost-effective at that facility."
March 16, 2011
Eleventh Circuit distinguishes downloaders from producers in affirming kiddie porn stat max sentence
The Eleventh Circuit has a notable and, in my view, important discussion of different types of child pornography offenders today in US v Dean, No. 09-16133 (11th Cir. March 16, 2011) (available here), in the course of affirming a 30-year prison term for the producer of child porn. Here is a segment of the panel decision's discussion:
Dean also relies on a paper by federal public defender Troy Stabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines (Jan. 1, 2009), http://www.fd.org/pdf_lib/child%20porn%20july%20revision.pdf and cases that have cited it. Dean’s reliance is misplaced. Stabenow’s paper argues that the current Guidelines for child-pornography offenses are flawed because the severity of sentences entered against the typical downloader of child pornography, who has had no direct connection to the production of the materials or the abuse of children, has increased drastically without any “empirically demonstrated need for consistently tougher sentencing.” Id. at 3. The cases that Dean references as having cited Stabenow’s paper are similarly concerned that the first-time “typical downloader” (as opposed to a “predator” or “active abuser”) may receive too harsh a sentence....
In this case, however, we need not, and expressly do not, address the concerns in, or the rationale of, the Stabenow article or the cited cases. Dean is no mere downloader. He sexually abused his stepdaughter and filmed hundreds of the episodes of abuse to generate pornographic films. Not one of the sources he cites supports the argument that the Guidelines are too harsh with respect to perpetrators who assault children to produce pornography. To the contrary, Dean’s stepdaughter has suffered the kind of grave harm described by our en banc Court in Irey.
It may not seem too surprisng or ground-breaking to see a court distinguish "the first-time typical downloader" from "a predator or active abuser" in the context of reviewing the soundness of a child pornography sentence. However, I cannot recall any other circuit ruling drawing this important distinction and using it so clearly to justify its ruling. That fact alone does not make Dean a monumental opinion, but it sure does make blogworthy.
"Drug Shortage Disrupts Lethal-Injection Mix"
The title of this post is the headline of this new ABC News piece discussing both yesterday's new that the DEA has seized Georgia's lethal injection drugs (background here) and today's new that Texas is changing a key drug in its protocol. Here ae the details:
Prison officials in two states have been forced to take dramatic measures in the past 24 hours because one of the drugs used to carry out executions by lethal injection is no longer manufactured in the United States.
The Texas Department of Criminal Justice said today that because its supply of sodium thiopenthal has expired, it will change its three-drug protocol. Effective immediately, pentobarbital will now be substituted for sodium thiopenthal, officials said.
Both drugs are used to induce a coma-like unconsciousness. They are normally followed up in Texas by pancuronium bromide, which paralyzes the inmate, and potassium chloride, which induces cardiac arrest. Texas has executed more death row inmates than any other state. There are 337 inmates on death row there, according to the Death Penalty Information Center, which is opposed to the death penalty.
Meanwhile, the Georgia Department of Corrections was forced to turn over the state's entire supply of sodium thiopenthal to the federal Drug Enforcement Administration after the agency expressed concern that the state may have improperly imported the drug from a foreign supplier. Confirming the seizure, a DEA spokesman said the agency acted because of "compliance-related issues" with the importation of the drug. Georgia has no executions scheduled.
Of the 34 states that allow the death penalty, 31 use sodium thiopenthal.... The attorneys general of 13 states wrote a letter Jan. 25 to Attorney General Eric Holder asking for his "assistance" in identifying an approved source of the sodium thiopenthal or making supplies held by the federal government available to the states.
Eleventh Circuit rejects notable ACCA selective prosecution claim
The Eleventh Circuit today in US v Jordan, No. 10-11534 (11th Cir. March 16, 2011) (available here) rejects an interesting selective prosecution claim brought by a Georgia defendant asserting that "prosecutors in the Northern District of Georgia target African Americans for prosecution under the Armed Career Criminal Act." Here is the heart of the panel's discussion of the claim:
The district court correctly denied Jordan’s motion to dismiss for selective prosecution because, at the very least, he failed to establish discriminatory effect. As the record shows, Jordan was convicted of possession of a firearm and subject to the Armed Career Criminal Act sentencing enhancement under 18 U.S.C. § 924(e)(1), because he had been convicted of at least three prior qualifying convictions for purposes of the ACCA. In order to establish discriminatory effect, Jordan would have to present clear evidence that a similarly situated defendant of another race was treated differently than he. The data that Jordan submitted in his motion to dismiss showed only that African Americans account for approximately 93% of ACCA prosecutions in the Northern District of Georgia, while they account for significantly less than 93% of the general population or of the population of convicted felons who carry firearms. Jordan’s data did not, however, include the criminal histories of the other defendants. As a result, his figures are not probative of the “similarly situated” inquiry of the discriminatory effect test. See Bass, 536 U.S. at 864; Quinn, 123 F.3d at 1426. Indeed, Jordan did not show that a single arrestee who was not prosecuted under the ACCA qualified for such prosecution, much less possessed a criminal history as substantial as his own. Therefore, he “has not presented ‘some’ evidence tending to establish selective prosecution,” much less facts sufficient to create a reasonable doubt about the constitutionality of his prosecution. Accordingly, Jordan was not entitled to an evidentiary hearing or discovery on the claim, and his selective prosecution claim fails.
I think the Eleventh Circuit is right on the law here, but I hope I am not the only one troubled to learn that there is evidence indicating that "African Americans account for approximately 93% of ACCA prosecutions in the Northern District of Georgia." That data point alone does not itself prove or even necessarily suggest constitutionally-biased prosecutorial decision-making, but it is a data point that is deeply disturbing even if it is not in any way the product of constitutionally questionable decision-making.
Judge Weinstein issues 420-page tentative opinion(!?!) indicating views on unconstitutionality of 5-year man min for CP distribution
Today's New York Law Journal includes a remarkable report on US District Judge Jack Weinstein's latest remarkable "ruling" in a federal chil porn sentencing case. The article is headlined "Judge Battles 'Harsh' Sentence for Distribution of Child Porn," and here are excerpts:
After a four-year battle with the Second Circuit over whether the required five-year minimum sentence for distribution of child pornography is too harsh, Eastern District Judge Jack B. Weinstein has now proposed cutting in half the minimum sentence of a 19-year old who pleaded guilty to distribution....
[I]n United States v. C.R., 09 cr 155, Judge Weinstein is tackling the federal minimum head on, proposing in a draft opinion that applying the five-year sentence to the 19-year-old would be a violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Instead, Judge Weinstein is proposing a 2 1/2-year sentence for CR....
In the case of CR., who pleaded guilty in September 2009, Judge Weinstein began last June to lay the groundwork for sentencing. On his own motion in a June 3, 2010, order, he directed the prosecution and defense to address questions at a hearing that would enable him to assess what punishment would be fair to both CR and the community. He asked the parties to weigh in on the risk CR. poses to children, the risk that he will be abused in prison and his developmental maturity at the time of the crime and presently. The hearing took place over seven days and ended in January.
Last Friday, Judge Weinstein issued a "tentative draft" 420-page opinion, setting forth his reasoning that CR. should be sentenced to only 2 1/2 years in prison, followed by long-term therapy and close supervision by the probation department in the community. Judge Weinstein also proposed finding "grossly excessive" the U.S. Sentencing Guidelines calculation prepared by U.S. Probation Department, which called for a sentence in the range of 14 to 17 years.
The judge convened a hearing for May 13 and ordered the two sides to file their briefs a week earlier. He said he was issuing the draft opinion to "facilitate a focused discussion of relevant issues." In his March 10 order, like the June 3 order, Judge Weinstein listed issues for the parties to address, and advised them that his draft is subject to change based on their briefs, arguments and further consideration by the court.
CR, who began viewing child pornography at age 15, was arrested at age 19 after a sting operation by the FBI in which he shared images with an agent posing as a "buddy" in a peer-to-peer file sharing program. The FBI seized two computers showing that he had shared pornographic images with between 10 and 20 users through two peer-to-peer programs. Forensic analysis of computers revealed that CR had shared 100 images and 200 videos of child pornography. CR pleaded guilty to one count of distributing child pornography.
In preparing its pre-sentencing report, the probation department, added five points to its guideline calculation because CR. acknowledged in interviews with probation officers "having sexual interaction" with his half-sister who is seven years younger than he....
In the case of CR, hearings have produced thousands of pages of testimony and documents exploring such technical issues as the reliability of methods used to assess the likelihood that CR will commit sex crimes in the future. Judge Weinstein noted that neuropsychological research as to CR's insight, judgment and culpability "weighs heavily in the court's determination that the five-year mandatory sentence is unconstitutional."
A mandatory term, as applied to CR, Judge Weinstein added, "lacks any legitimate penological justification." After his release, CR will require long-term treatment in the community, he added, to enable him "to mature into a responsible, productive, law abiding individual."
Wowsa! I will provide links to both this NYLJ article and to Judge Weinstein's 420-page "tentative draft" opinion when they possible.
March 16, 2011 in Assessing Graham and its aftermath, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (36) | TrackBack
In memoriam: Professor Bill Stuntz
I am saddened to learn from this post by Orin Kerr that Harvard Law Professor Bill Stuntz, whom Orin describes as "the leading criminal procedure scholar of his generation," passed away earlier this week after a long battle with cancer. I always learned a lot and re-thought a lot whenever reading Bill's extraordinary scholarship, and both the legal academy and those interested in criminal justice reform have lost a distinctive and important voice.
Here are just a few of the many important pieces by Bill that I consider must-reads for sentencing law and policy fans (and should remain so for quite some time):
- Unequal Justice, 121 Harv. L. Rev. 1969 (2008)
- Plea Bargaining and Criminal Law’s Disappearing Shadow, 117 Harv. L. Rev. 2548 (2004)
- The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505 (2001)
- The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 Yale L.J. 1 (1997)
In Maryland, de jure death penalty repeal stalls as de facto moratorium persists
Because of a once-motivated anti-death-penalty governor, there was a lot of talk a few years ago about Maryland abolishing its state's death penalty. But as reported in this notable Washington Post piece, which is headlined "Death penalty repeal gets hearing but lacks momentum," it looks like Maryland will persist for the time being as a state with the death penalty (principally in law, but not in practice). Here are the details:
Much of the same cast of characters from previous debates over repealing Maryland’s death penalty were present in the House Judiciary Committee on Tuesday afternoon. At the hearing, those speaking in favor of this year’s repeal bill included Kirk Bloodsworth, a former Maryland death row inmate later exonerated by DNA evidence. Those opposed included Scott Shellenberger (D), the state’s attorney for Baltimore County, the Maryland jurisdiction which has sent more inmates to death row than any other....
Yet Tuesday’s hearing lacked the drama of those during the first term of Gov. Martin O’Malley (D), when he made abolishing capital punishment a priority. This year, O’Malley has not put much muscle behind the bill. House leaders seem unlikely to embrace it. And Senate President Thomas V. Mike Miller Jr. (D-Calvert) told reporters Tuesday that the interest isn’t there in his chamber. “I don’t believe there’s a sentiment in the Senate to repeal,” Miller said.
Part of the reason remains an uneasy truce reached in 2009, under which higher evidentiary standards are required in capital cases. Those are now limited to those that include at least one of three types of evidence: DNA or biological evidence, a videotaped confession or a videotape linking the suspect to the crime.
In arguing for a repeal of the death penalty, one witness, American University Law School professor David Aaronson, said the “ambiguous and vague” terms of the 2009 laws is likely to invite a wave of litigation.
Maryland has had a de facto moratorium on the death penalty since December 2006, when the state’s highest court ruled that regulations on lethal injection had not been properly adopted. New regulations have still not been implemented.
More prosecutions but fewer criminal appeals in federal courts in FY 2010
Thanks to How Appealing, I now see that the Administrative Office of the US Courts has published this news release, headlined "Filings in the Federal Judiciary Continued to Grow in Fiscal Year 2010," which documents the latest case statistics concerning criminal cases in the federal court system. Here are the interesting specifics:
Filings in the regional courts of appeals dropped 3 percent to 55,992 in FY 2010, due to a 7 percent drop in criminal appeals to 12,797 and a 9 percent drop in administrative agency appeals to 7,813.... Prisoner petitions fell 3 percent to 15,789. Appeals involving pro se litigants declined 2 percent to 27,209....
Filings of criminal cases (including transfers) increased 2 percent to 78,428. The number of criminal defendants (including transfers) also rose 2 percent to 100,366, surpassing the previous record of 97,982 set in 2009. Proceedings were concluded against 98,311 defendants, 91 percent of whom were convicted, with 89 percent pleading guilty.
Immigration cases, which climbed 9 percent to 28,046, constituted 36 percent of all criminal cases filed, compared to 34 percent in 2009. The majority of immigration filings involved improper reentry of aliens, and 73 percent of all immigration cases were filed in the District of Arizona, the Southern District of California, the District of New Mexico, and the Southern and Western Districts of Texas.
Filings addressing fraud grew 12 percent to 9,371 for cases, and rose 13 percent to 12,639 for defendants in these cases.
Twenty percent of all criminal cases were drug offenses, compared to 22 percent in 2009. Cases involving drug offenses decreased 5 percent to 15,785, and defendants in those cases declined 2 percent to 29,410. Marijuana cases dropped 10 percent overall, but filings related to possession of marijuana increased, with cases climbing 26 percent to 1,248 and defendants rising 28 percent to 1,305. Drug cases involving non-marijuana offenses declined 3 percent to 10,817, and defendants in those cases fell 2 percent to 21,918.
Firearms and explosives cases, which account for 9 percent of total criminal case filings, declined 7 percent to 7,248. Defendants in those cases dropped 6 percent to 8,376.
This data could (and should?) be spun a number of different ways. First, we continue to see how immigration offenses drive and shape the overall story reporting on the cumulative data: a relative large increase in immigration prosecutions in FY 2010 offset relatively smaller decreases in prosecutions of drug and firearm offenses. Relatedly, the decrease in criminal appeals is itself likely related to the increase in immigration prosecutions in which, thanks to fast-track plea policies, many defendants waive their appeal rights in exchange for a reduced sentence.
Second, there are lots of interesting non-immigration stories lurking in this data. For example, during these economic hard times, we are seeing a (justified?) spike in federal fraud prosecutions. And, following years of many states liberalizing their marijuana prohibitions and Supreme Court cases emphasizing gun rights, we are seeing a (justified?) decline in federal marijuana and firearm prosecutions. Very interesting data.
The news release from the Administrative Office of the US Courts also reports these notable data concerning pretrial services and post-conviction supervision:
The number of cases opened in the pretrial services system, including pretrial diversion cases, grew nearly 6 percent to 111,507 cases from 105,294 cases in 2009. Forty percent of the cases opened involved immigration as a major offense. Cases involving property offenses represented 14 percent of the cases opened, up from 13 percent in 2009. There was a two percent drop in cases involving firearms offenses and in cases in which the major offense charged involved drugs.
In 2010, Pretrial Services Officers prepared 107,256 pretrial services reports, an increase of more than 6 percent over 2009. A total of 32,500 defendants were released with specified conditions such as pretrial services supervision or location monitoring. Pretrial supervision was imposed on 89 percent of the defendants released. Substance abuse treatment and testing were ordered for 50 percent of the defendants.
The number of persons under post-conviction supervision on September 30, 2010, was 127,324, an increase of 2.5 percent over the 124,183 persons under supervision one year earlier. The 102,521 persons released from correctional institutions who were serving terms of supervised release on September 30, 2010, accounted for 81 percent of all persons under supervision. Cases involving probation imposed by district and magistrate judges fell less than 1 percent to 22,619 cases, accounting for 18 percent of all persons under post-conviction supervision. Parole cases dropped more than 5 percent to 2,058 cases.
Of the persons under post-conviction supervision at the end of the fiscal year, more than 47 percent had been convicted of drug offenses, 22 percent of property offenses, and nearly 12 percent of firearms offenses.
Minnesota considering returning to indefinite prison over civil commitment for some sex offenders
As detailed in this local Minnesota article, which is headlined "Bill seeks to keep sex offenders jailed," a state that pioneered determinate sentencing is thinking about a return to indeterminate sentencing for a notable class of offenders. Here are the particulars:
Minnesota's most predatory sex offenders, repeatedly branded "the worst of the worst," would be kept behind bars indefinitely under a bill moving through the Legislature. Members of the House Public Safety and Crime Prevention Committee unanimously approved a bill Tuesday to keep those offenders in prison instead of diverting them to a costly and controversial state program that has civilly committed hundreds of offenders in state treatment centers.
Rep. Tony Cornish, R-Good Thunder, the bill's sponsor, said that asking Minnesotans what the state should do with sex offenders would produce three answers: "life without parole, castration or the death penalty." "I don't mean to be sensationalistic," Cornish added, "but the public expects us to do something drastic."
Under the bill, which was sent to the House Judiciary Committee, convicted offenders would face open-ended prison sentences, known as "indeterminate," if members of a jury found that them to be predatory, meaning they lack control over sexual impulses and pose a danger to others. Such offenders would have to serve at least twice the recommended sentence and could be released only if the corrections commissioner determined they were no longer a threat to society.
If the bill becomes law, it would mark a return to the system of indeterminate sentencing that was replaced several years ago with sentencing guidelines. The bill moved out of committee days after the state's Legislative Auditor concluded that the 17-year-old Minnesota Sex Offender Program (MSOP) is deeply flawed.
The audit found that more than 575 offenders now held in two state treatment centers receive inadequate therapy from underqualified staff members at excessive cost. About 55 other offenders have been temporarily housed in other correctional facilities. The program's population has nearly quadrupled over the past decade, and Minnesota now confines more sex offenders per capita than any other state. Noting that the number of sex offenders is expected to double again in the next 10 years, Cornish said legislators "are facing a huge decision point right now. We're spending a heck of a lot on housing."
The bill was supported by Hennepin County Sheriff Rich Stanek and Hennepin County Attorney Mike Freeman. Under the current system, convicted offenders not in the program who have served their sentences are "the criminals who moms and dads want to see locked up a long, long time," Stanek said.
March 15, 2011
"DEA seizes Georgia's supply of lethal injection drug"
The title of this post is the headline of this notable new article in the Atlanta Journal-Constitution about the latest chapter in the seemingly never saga over lethal injection drugs and protocols. Here is how the piece starts:
The Drug Enforcement Administration has seized Georgia's supply of a key execution drug over questions about how it was imported to the United States. "Drugs were seized today by the DEA from our facility in Jackson," Department of Corrections spokeswoman Kristen Stancil told the AJC.
The seizure comes more than two weeks after an attorney representing a death row inmate from Cobb County wrote a letter to U.S. Attorney General Eric Holder saying the Georgia Department of Corrections circumvented federal law in trying to quickly secure a scarce drug used in lethal injections.
"DEA did take control of the controlled substances today," DEA spokesman Chuvalo Truesdell told the AJC. "There were questions about the way the drugs were imported over here." Truesdell declined further comment, saying it is now "a regulatory investigation."