April 9, 2011
Noting state resistance to federal law on sex offender registries
This new Wall Street Journal article, headlined "States Resist Federal Sex-Offender Registry," discusses states' continued disaffinity for adopting the federal sex offender registry rules enacted through the Adam Walsh Act. Here are excerpts:
The federal government's attempt to track sex offenders more effectively is hitting resistance from states concerned over the plan's costs and reliability. A federal law, named the Adam Walsh Child Protection and Safety Act after the murdered son of "America's Most Wanted" host John Walsh, seeks to create a uniform national system out of a hodgepodge of sex-offender-registration laws in different states. Proponents of the law, which passed in 2006, say it will close loopholes they believe allow criminals to move from state to state undetected.
States have until July 27 to comply, or they will lose federal funds. Ohio, Delaware, South Dakota and Florida already have adopted the law. The Justice Department says many states have introduced legislation that would put them in compliance.
Objections have arisen in such states as Texas, where officials say existing local laws are tougher on sex offenders than the new standards. The federal act "contradicts what our research over 30 years indicates," said Allison Taylor, executive director of Texas's Council on Sex Offender Treatment, an advisory body with a governor-appointed board. "Public safety would not be enhanced."
Texas also complains that the price of implementing the federal law — about $38.8 million, according to one state estimate — far exceeds the $1.4 million in federal money the state would lose if it didn't comply.... Federal officials say states' worries about costs are overblown. Scott Matson, a senior policy adviser in the U.S. Justice Department office that is helping states implement the act, said one estimate pegged the cost at $18 million in Ohio, but the program turned out running closer to $400,000....
Police say the vast majority of sexual assaults are committed by family members or acquaintances of victims, not unknown perpetrators who might appear in a database. In Houston, Lt. Ruben Diaz, who heads the sex crimes unit at the Harris County sheriff's department, said it was very rare to find the perpetrator of a new sex crime among those already in the registry....
Other states are also balking at the federal standards. In a letter to Congress last month, the office of California's attorney general cited "serious concerns" with implementing the Adam Walsh act, including not only cost, but also its inclusion of some juvenile offenders. Some states are raising another concern: that the federal standards use the crimes for which offenders were convicted to assess the threat they pose. Several states, including Arizona and Texas, prefer a ranking system that uses factors such as the offenders' ages and their relationships to their victims to determine how likely they are to offend again.
Those states fear that implementing the federal act would increase the number of offenders that law enforcement has to monitor, rather than focusing on the most dangerous risks. "We're concerned Adam Walsh would decrease the standards of monitoring," said state Sen. Krysten Sinema, a Democrat who represents part of Phoenix.
Linda Baldwin, who directs the U.S. Justice Department office that is helping states implement the act, said that while some states would have to track more offenders under federal rules, the act is often misunderstood and its burdens overstated.
"Not In My Name: An Investigation of Victims’ Family Clemency Movements and Court"
Purpose: The goals of this project are 1) to document the patterns of opposition to the death penalty promoted by victims’ families following the ascendency of the retribution and closure arguments in support of capital punishment, and 2) to assess the scope and primacy of newspaper coverage of death penalty cases with anti-capital punishment covictims.
Methods: Content analysis of nationwide newspaper reports on capital offense trials from 1992-2009 is used to assess patterns of victim resistance to the death penalty over time, the reasons given for support or resistance to the death penalty, and the scope and primacy of the newspaper coverage of the capital case.
Results: The analysis reveals a significant increase in co-victim clemency movements across the study time period. Further, articles representing pro-death penalty covictims received both significantly higher primacy of media coverage in section and page number and word count than did their anti-death penalty counterparts. Lastly, a qualitative assessment of covictims' statements reveals several reasons for co-victim support or resistance to the death penalty.
Conclusions: Co-victim opposition to the death penalty in reaction to the ascendancy of retribution and closure justifications for capital punishment must be integrated into ongoing debates about the death penalty.
Forger who forged doctor's note for sentencing delay gets significant prison term
Regular readers may recall this comical California sentencing story from a few weeks ago involving a woman to be sentenced for prescription drug forgery who presented a forged doctor’s note in an attempt to delay the proceedings and then collapsed in court when her scheme was discovered. This AP story, headlined "California forger who showed up in court with phony doctor note gets nearly 5 years in prison," updates the tale:
A forger who showed up in court with a phony doctor note seeking a sentencing delay has been sentenced to nearly five years in prison. Michelle Elaine Astumian pleaded no contest in January to felony forgery counts. She collapsed in court last month when the prosecutor said the note was a fake and the judge ordered her into custody.... This week, she was back in a San Luis Obispo County courtroom and was sentenced to four years and eight months in prison.
April 8, 2011
Judge Mark Bennet thoroughly explains why he is stil going to use 1:1 ratio in crack sentencings
In a week full of important crack sentencing news, I think the most interesting development come from Iowa in the form of a lengthy new opinion by US District Judge Mark Bennett in US v. Williams, No. CR 10-4083-2-MWB (D. Iowa Sept. 27, 2010) (available for download below). I could say so much about so many notable passages in this 82-page opinion, but I will be content to let the first paragraph and the conclusion of the Williams opinion speak for itself:
Defendant Billy Williams, Sr., came before me on March 15, 2011, for a presentencing hearing on his motion for downward variance, objections to the presentence report, and other legal issues, following his guilty plea to four crack cocaine charges. Although there were numerous other issues to be resolved in the course of Williams’s sentencing, this Memorandum Opinion And Order focuses exclusively on the issue of whether I should continue to adhere to my prior determination that a 1:1 crack-to-powder ratio is appropriate to calculate the guideline sentencing range for crack cocaine offenses, or should now adopt the roughly 18:1 ratio adopted by the Sentencing Commission on November 1, 2010, pursuant to a congressional mandate in the Fair Sentencing Act of 2010. When I first learned that the 2010 FSA was about to be passed, I just assumed that I would change my opinion from a 1:1 ratio to the new 18:1 ratio, because I assumed that Congress would have had persuasive evidence — or at least some empirical or other evidence—before it as the basis to adopt that new ratio. I likewise assumed that the Sentencing Commission would have brought its institutional expertise and empirical evidence to bear, both in advising Congress and in adopting crack cocaine Sentencing Guidelines based on the 18:1 ratio. Failing that, I assumed that the prosecution would present at the presentencing hearing in this case some evidence supporting the 18:1 ratio. This Memorandum Opinion And Order addresses whether my modest expectations have been fulfilled and whether I should now also adopt the 18:1 ratio adopted in the amended Sentencing Guidelines....
Make no mistake: I believe that the replacement of the 100:1 crack-to-powder ratio of the 1986 Act and associated Sentencing Guidelines with the 18:1 crack-to-powder ratio of the 2010 FSA and the November 1, 2010, amendments to the Sentencing Guidelines was a huge improvement, in terms of fairness to crack defendants. While such incremental improvement is often the nature of political progress on difficult social justice issues — and, in this instance, the increment is perhaps unusually large — an incremental improvement is not enough to make me abdicate my duty to “[c]ritically evaluat[e] the crack/cocaine ratio in terms of its fealty to the purposes of the Sentencing Reform Act.” See Whigham, ___ F. Supp. 2d at ___, 2010 WL 4959882 at *7.
Performing that duty here, I must reject the Sentencing Guidelines using the “new” 18:1 ratio, just as I rejected the Sentencing Guidelines using the “old” 100:1 ratio, based on a policy disagreement with those guidelines, even in “mine-run” cases, such as this one. I must do so, because I find that the “new” 18:1 guidelines still suffer from most or all of the same injustices that plagued the 100:1 guidelines, including the failure of the Sentencing Commission to exercise its characteristic institutional role in developing the guidelines, the lack of support for most of the assumptions that crack cocaine involves greater harms than powder cocaine, the improper use of the quantity ratio as a “proxy” for the perceived greater harms of crack cocaine, and the disparate impact of the ratio on black offenders. I also find that the “new” guidelines suffer from some additional concerns, in that they now create a “double whammy” on crack defendants, penalizing them once for the assumed presence of aggravating circumstances in crack cocaine cases and again for the actual presence of such aggravating circumstances in a particular case.
In one respect the “new” 18:1 guideline ratio is more irrational and pernicious than the original 100:1. When the 100:1 ratio was enacted, Congress and the Sentencing Commission did not have access to the overwhelming scientific evidence that they now have. This overwhelming scientific evidence now demonstrates that the difference between crack and powder is like the difference between ice and water — or beer and wine. Can anyone imagine a sentence that is many times harsher for becoming legally intoxicated by drinking wine rather than beer? Of course not.
I also reiterate that the proper methodology, in light of my policy-based rejection of the 18:1 ratio in the Sentencing Guidelines, is to calculate the guideline range under existing law (i.e., using the 18:1 ratio) and any appropriate guideline adjustments or departures, including the “new” adjustments for aggravating and mitigating circumstances, but then to calculate an alternative guideline range using a 1:1 ratio, again including appropriate guideline adjustments or departures, again including the “new” adjustments for aggravating and mitigating circumstances. The court must ultimately use or vary from that alternative guideline range based upon consideration of the 18 U.S.C. § 3553(a) factors in light of case-specific circumstances.
I will sentence defendant Billy Williams, Sr., accordingly.
April 8, 2011 in Booker in district courts, Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (11) | TrackBack
Is it clear that Barry Bonds would have a 15-21 months guideline range?
This brief AP report about the Bonds case includes this sentencing tidbit: "If convicted on any of the charges, federal guidelines recommend a prison sentence of between 15 and 21 months, though Bonds' punishment could be far less severe." I am pleased to see a press report that seeks to go beyond just noting the broad statutory sentencing ranges for the charged offenses, but I wonder how the AP can so confidently report that Bonds will be looking at a guideline range of 15-21 months if convicted on any of the charges.
I am not asserting that the AP guideline calculation is obviously wrong. But I am eger to hear from practitioners about (a) whether a different guideline calculation is reasonably possible, and (b) whether the AP ought to be reporting with such confidence that the guidelines would recommend a prison sentence of between 15 and 21 months.
Recent related Bonds post:
Talk of profound changes to North Carolina's potent Racial Justice Act
As detailed in this local story, which is headlined "N.C. Republicans' bill would weaken Racial Justice Act," debates over race and the application of the death penalty continue to rage on in the North Carolina legislature. Here are the basics:
Four state Republicans propose to alter the Racial Justice Act so that anyone seeking relief under the law would have to show that prosecutors intentionally used race as a discriminatory factor in seeking the death penalty or selecting the jury to hear the case.
The amendment, proposed this week in the state House, comes as more than 150 death row inmates are seeking relief from their sentences under the 2-year-old law. North Carolina is one of two states to offer inmates and defendants a chance to challenge their sentences or cases using statistics.
The Racial Justice Act, which passed narrowly along party lines in August 2009, allows death row inmates and defendants in death penalty cases to challenge prosecutions on grounds of bias. It also allows judges to consider statistics and anecdotal trends of racial disparities in death sentences, as well as testimony, to change a death sentence to life in prison without parole. A judge also could consider the same kind of information to keep prosecutors from seeking capital punishment at the outset of a case.
Death penalty critics lauded the act as a step toward a more just justice system. Prosecutors, law enforcement organizations and victims' rights groups were critical of the law, saying bias claims would be time-consuming and costly.
The proposed amendment, titled "No Discriminatory Purpose in Death Penalty," was sponsored by Republican Reps. Justin Burr, a bail bondsman from Albemarle; Sarah Stevens, a lawyer from Mount Airy; Dan Ingle, a retired police chief from Burlington; and Paul Stam, a lawyer from Apex.
The act "was designed to put a semi-permanent moratorium on the death penalty by clogging the courts and it's accomplished that," Stam said. "It was probably the sloppiest piece of legislation I've ever seen and it's costing tens of millions of dollars a year."
But supporters of the act dispute such claims. They have pushed for a streamlined process so many of the weightier legal issues could be ruled on early and set out a foundation for any claims to follow.
Under the Racial Justice Act, inmates could have death sentences changed to life-terms without possibility of parole if they prove racial bias played a part in their prosecution or sentencing.
The proposed amendment would require the courts to find that prosecutors acted "with discriminatory purpose" in seeking the death penalty or selecting the jury. It would also require the courts to find that jurors acted "with discriminatory purpose" in determining guilt or innocence.
April 7, 2011
Another foreign source of key lethal injection drug to stop sales to US
As detailed in this AP article, which is headlined "Pharmaceutical company in India stops sale of key lethal injection drug to US states," another source for states to acquire materials needed for execution has now dried up. Here is how the piece begins:
A pharmaceutical company in India that supplied a key lethal injection drug to at least one U.S. state and reached out to a half dozen others announced Thursday it was no longer selling the drug to American prison officials, drying up yet another source of the drug amid a severe shortage.
Kayem Pharmaceutical was fast becoming a major supplier of sodium thiopental, a sedative in the three-drug lethal injection cocktail that most of the 34 death penalty states use. The sole American manufacturer stopped making the drug last year and since then at least seven states have obtained the scarce drug overseas; others got it from fellow states.
Mumbai-based Kayem said on its website it made the decision to “refrain ourselves in selling this drug where the purpose is purely for lethal injection and its misuse” because it cherished the “ethos of Hinduism.”
Nebraska announced in January it had acquired 500 grams of the drug from Kayem, and a company salesman said he also sold the drug to South Dakota prison officials. A spokeswoman for the South Dakota attorney general said the state bought 500 grams for $5,000, but Sara Rabern wouldn’t say what company the state purchased the drug from.
The salesman, Tony Atwater, said he and a colleague reached out to about eight states. “We were seeing a lot of interest in sodium thiopental, but states are scared,” said Atwater, who is planning on leaving the firm. “They want to wait until all the lawsuits are hashed out.”
New NAACP report laments shift of state funds from education to prison spending
As detailed on this new page from the NAACP website, today "the NAACP released a new report, Misplaced Priorities, that examines America's escalating levels of prison spending and its impact on state budgets and our nation’s children." Here are the basics:
Misplaced Priorities tracks the steady shift of state funds away from education and toward the criminal justice system. Researchers have found that over-incarceration most often impacts vulnerable and minority populations, and that it destabilizes communities.
The report is part of the NAACP’s “Smart and Safe Campaign,” and offers a set of recommendations that will help policymakers in all 50 states downsize prison populations and shift the savings to education budgets.
The full report is available at this link, and here is a snippet from its executive summary:
In this new report, Misplaced Priorities: Over Incarcerate, Under Educate, NAACP researchers assembled data from leading research organizations and profiled six cities to show how escalating investments in incarceration over the past 30 years have undermined educational opportunities. Misplaced Priorities represents a call to action for public officials, policymakers, and local NAACP units and members by providing a framework to implement a policy agenda that will financially prioritize investments in education over incarceration, provide equal protection under the law, eliminate sentencing policies responsible for over incarceration, and advance public safety strategies that effectively increase healthy development in communities.
Misplaced Priorities echoes existing research on the impact excessive prison spending has on education budgets. Over the last two decades, as the criminal justice system came to assume a larger proportion of state discretionary dollars nationwide, state spending on prisons grew at six times the rate of state spending on higher education. In 2009, as the nation plummeted into the deepest recession in 30 years, funding for K–12 and higher education declined; however, in that same year, 33 states spent a larger proportion of their discretionary dollars on prisons than they had the year before.
"Orange County bans sex offenders from some parks, beaches"
The title of this post is the headline of this effective Los Angeles Times article reporting on the latest extreme local sex offender restriction. Here are the details:
Orange County supervisors have approved a law significantly restricting the movements of registered sex offenders, banning them from entering some beaches, parks and harbor areas. Under the rules, sex offenders who visit any of dozens of public spaces without prior approval from county officials face up to six months in jail or a $500 fine. The ban covers some of the region's top attractions including the Orange County Zoo, Irvine Regional Park, Newport Harbor and Dana Point Harbor.
The law, approved unanimously by the board Tuesday, is the latest in a controversial series of ordinances across the country aimed at limiting where sex offenders can live and visit. It was championed by Orange County Dist. Atty. Tony Rackauckas, who said the idea was to keep sex offenders away from children and families. "We are setting up a safety zone by keeping parks and recreation zones safe from predators," Rackauckas said.
But critics immediately expressed skepticism about the law, saying it would be difficult to enforce and appeared politically motivated. Franklin Zimring, a UC Berkeley law professor, said the law was overly broad and misdirected, because more than nine out of 10 sex crimes targeting children are committed not by strangers in a park, but by family members or acquaintances....
Orange County's ordinance appears to be the first legal move in California imposing across-the-board restrictions on where sex offenders can be. Los Angeles County in 2009 passed legislation banning registered sex offenders from "loitering" within 300 feet of "child safety zones," which include schools, public libraries and parks. Existing state law also prohibits sex offenders from living within 2,000 feet of any school or park in California.
Illinois passed a law last year making it a misdemeanor for sex offenders to be in or within 500 feet of a public park, and a South Carolina lawmaker introduced similar legislation after a 17-year-old was raped and murdered by a convicted sex offender at a park on the other side of the country, in San Diego County.
At the board meeting Tuesday, some supervisors asked exactly how the new law would be enforced. Rackauckas and Orange County Sheriff's Capt. Adam Powell said only that it would be enforced on a "case by case" basis. One supervisor, John M.W. Moorlach, also raised concerns about whether the ordinance would infringe on constitutional rights and end up forcing the county to spend more money defending the rules in court.
A bill in the California Legislature last year initially included a provision banning all sex offenders from parks where children regularly gather. But lawmakers ultimately limited the language to parolees whose victims had been under age 14. The change made the ban more enforceable because these parolees are required to wear GPS devices.
Constitutional litigation over this new Orange County law seems inevitable, and it should be quite interesting to see how local, state and federal courts sort through the wide range of dynamic constitutional issues that potential facial and as-applied challenges to this law could implicate.
Is Barry Bonds going to have to worry soon about federal sentencing realities?
As detailed in this New York Times report, after more than a week of testimony in Barry Bonds’s perjury trial, "the jury was on the cusp of being able to discuss its opinions about the case" because following "closing arguments Thursday morning, jurors will begin determining Bonds’s fate [and a] decision could come as early as Friday." The NYT piece notes that the Bonds defense team called no witnesses in defense; the pundits on ESPN and elsewhere have suggested that this decision was designed to signal to the jury that the defense believes the government has not proven its case beyond a reasonable doubt.
I have not followed the Bonds trial closely, so I am not in a position to make predictions about the timing or likely results of jury deliberation. But I can and will express my own parochial interests in the outcome: I am rooting for an acquittal on all but the least serious charge against Bonds so that the case become another very high-profile setting for the media to give attention to the operation of the federal sentencing guidelines and the ugly persistent reality of acquitted conduct sentencing enhancements.
I also love the idea of how lawyers on both sides might argue over whether Bonds' "history and characteristics" (and particularly his record-setting on-field achievements) are an aggravating or a mitigating sentencing factor under 3553(a)'s mandates. (Of course, I am biased in my parochial interests by the fact that, as detailed here, Bonds' possible sentencing fate got me mentioned a few years ago on ESPN's Mike & Mike in the Morning radio show right after Bonds was indicted. I already have foolhardy dreams of becoming a regular guest on Mike & Mike if a Bonds' sentencing proceeding is forthcoming.)
April 6, 2011
Fifth Circuit makes former Enron CEO Skilling's SCOTUS victory Pyrrhic
As detailed in this Reutersreport, "[f]ormer Enron Chief Executive Jeffrey Skilling was unsuccessful in his latest bid to overturn his criminal conviction as a U.S. appeals court called any errors in his trial 'harmless.'" Here is how the Fifth Circuit's opinion in US v. Skilling, No. 06-2088 (5th Cir. April 6, 2011) (available here), gets started:
Former Enron Corporation CEO Jeffrey K. Skilling was convicted of conspiracy, securities fraud, making false representations to auditors, and insider trading. After we affirmed his convictions, the Supreme Court invalidated one of the objects of the conspiracy charge — honest-services fraud — and remanded, instructing us to determine whether the error committed by the district court in submitting the honest-services theory to the jury was harmless as to any of Skilling’s convictions. Because we find that the error was harmless, we affirm the convictions. In addition, for the reasons stated in our previous opinion, we vacate the sentence and remand for resentencing.
So while Skilling's trip to the Supreme Court created some important new federal criminal law, it appears that he will get no substantive relief from the SCOTUS ruling in his favor last year. That all said, Skilling's High Court success might not end up being completely for naught, as he still has a resentencing ahead and perhaps he can contend that he deserves some measure of sentencing credit for his troubles.
Meanwhile, I would be surprised if resentencing is the next development in the long-running Skilling saga. I would expect Skilling's lawyers to seek en banc and/or certiorari review of today's Fifth Circuit panel holding. But if further review of his convictions are not forthcoming, then Skilling's case will become a high-profile resentencing proceeding; as some may recall, the Fifth Circuit reversed in a prior opinion a key guideline determination that led in part to Skilling's original 24+ year (within-guideline) prison term.
UPDATE: Over at White Collar Crim Prof blog, Ellen Podgor has this lengthy new post titled "Commentary on Skilling Remand Decision."
US Sentencing Commission makes guideline crack reductions permanent
As detailed in this official press release from the US Sentencing Commission, the USSC today promulgated a permanent amendment implementing the provisions of the Fair Sentencing Act of 2010." Here is more:
Commission chair, Judge Patti B. Saris (District of Massachusetts) said, “The Fair Sentencing Act was among the most significant pieces of criminal justice legislation passed by Congress in the last three decades. For over 15 years, the Commission has advocated for changes to the statutory penalty structure for crack cocaine offenses. The Commission applauds Congress and the Administration for addressing the sentencing disparity between crack cocaine and powder cocaine offenders.”
No crack cocaine offender will see his or her sentence increase based solely on the quantity thresholds the Commission set today in the federal sentencing guidelines. As a result of today’s action, the federal sentencing guidelines will focus more on offender culpability by placing greater emphasis on factors other than drug quantity.
Based on an analysis of the most recent sentencing data, the Commission estimates that crack cocaine offenders sentenced after November 1, 2011, will receive sentences that are approximately 25 percent lower on average as a result of the changes made to the federal sentencing guidelines today. Moreover, the Commission estimates that these changes may reduce the cost of incarceration for crack cocaine offenders in the federal prison system in the future.
Today’s vote by the Commission will set the triggering quantities of crack cocaine for the five and 10-year mandatory minimum penalties (28 grams and 280 grams, respectively) at base offense levels 26 and 32, which correspond to a sentencing range of 63-78 months and 121-151 months, respectively, for a defendant with little or no criminal history. This action maintains proportionality with other drug types insofar as the quantity of illegal drugs, including crack cocaine, required to trigger the five- and ten-year statutory mandatory minimum penalties is subject to the same base offense level no matter the drug type.
Pursuant to statute, the Commission must consider whether its amendment to the federal sentencing guidelines implementing the Fair Sentencing Act should apply retroactively. The Commission plans to hold a hearing on June 1, 2011, to consider retroactivity, and voted today to seek public comment on the issue.
April 6, 2011 in Drug Offense Sentencing, Federal Sentencing Guidelines, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report | Permalink | Comments (7) | TrackBack
The latest, greatest district court opinion applying FSA to pipeline cases
A couple of veru helpful readers have alerted me to a notable new district court opinion concerning the application of the Fair Sentencing Act to pipeline cases. Here is one report I received via e-mail concerning the opinion:
Although there are a litany of FSA retroactivity cases being decided on a weekly bases..., I thought the attached opinion was worthy of highlighting to you. The case is US v. Watts, 09-cr-30030-MAP (D. Mass. April 5, 2011) [available for download below].
It's a 50 page Memorandum from Judge Ponsor that describes the history of crack sentencing and then explains in a thorough analysis why the FSA must be applied to defendants who are pending sentencing and why the General Savings Statute is no bar to that conclusion. Consistent with your amicus letter [discussed here], it also distinguishes between individuals who have already been sentenced vs. defendants pending sentence.
There are a lot of choice passages, [including]:
- "A review of the background of [the General Savings Statute], and the authorities construing it, reveals that it is simply not the straitjacket some courts have supposed it to be." (slip op. at 33-34).
- "An examination of the muddied jurisprudential history of the General Saving Statute reveals the impertinence of the government’s position." (slip op. at 37).
- "It is only by covering his eyes and plugging his ears that any fairminded person could avoid the conclusion that Congress intended, by 'fair implication,' to treat the statutory amendments, whose effect was even more unjust than the effect of the Guidelines, the same way it directed the Guidelines to be treated, that is, to mandate that the amended statutes be applied to all defendants coming before federal courts for sentencing." (slip op. at 42).
Some posts on this FSA issue:
- Second Circuit demands application of old 100-1 crack mandatories ... with laments
- Seventh Circuit rejects FSA's application to defendants sentenced after it changed crack statutes
- 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
UPDATE: Another helpful reader suggested that I spotlight this additional quote from the first few pages of the Watts opinion:
The broader question is whether federal trial courts will be required, for roughly the next five years, to perpetuate a congressionally recognized injustice. It is disturbing enough when courts, whose primary task is to do justice, become themselves the instruments of injustice, as in the history of our nation it must be acknowledged they sometimes have. But this discomfort reaches its zenith when the injustice has been identified and formally remedied by Congress itself. For a trial judge, the distastefulness of being forced to continue imposing a rejected penalty becomes unendurable in light of the fact that Congress acted partly because the injustice is racially skewed and, as everyone now agrees, will fall disproportionately upon Black defendants such as Mr. Watts.
The government’s position here is that this court, and all federal trial courts in this country, must robotically continue to impose penalties that all three branches of government -- executive, legislative, and judicial -- and all elements of our political system -- Republicans and Democrats from the most conservative to the most liberal -- have now formally condemned as racially tainted and have explicitly rejected as not only unjust but mistaken from the outset. For the reasons set forth below, the affront to manifest and undisputed congressional intent advocated by the government here is not required by law.
"Prison reform advocates press states to shift money out of corrections system"
The title of this post is the headline of this notable article from the Washington Post. Here are excerpts:
Advocates of overhauling the U.S. criminal justice system see a bright spot in the dire financial straits that states are facing: Politicians eager to trim budgets are willing to cut spending on prisons and corrections programs.
Several liberal and conservative groups have joined together to take advantage of the moment. A coalition that includes the evangelical Prison Fellowship Ministries, the NAACP, the American Conservative Union and the American Civil Liberties Union is working to push changes that they hope will lower the U.S. prison population. “We find ourselves with a new crop of allies,” said NAACP President Benjamin Jealous. “This is a place where we’ve found commonality.”
His organization is to release a report Thursday, endorsed by conservative activists Grover Norquist and Pat Nolan, calling on states to cut spending on corrections and to direct that money to education. The study, which bemoans the increasing amount of money spent on incarceration, notes that state spending on prisons has grown at six times the rate of spending on higher education in the past 20 years....
In 2005, Texas began implementing sentencing changes and poured money into drug treatment and probation programs. The overhaul slowed the state’s incarceration rate, led to a 12.8 percent drop in violent crime since 2003 and saved the estimated $2 billion that would have gone to building new prisons to house inmates, according to a 2010 state report and advocates. Lawmakers in Florida and Georgia are considering similar changes.
“Prisons are necessary but way overused,” said Nolan, vice president of Prison Fellowship Ministries. “As conservatives, we are suspicious of government and [also] suspicious of the cost of government. But we have turned sort of a blind eye on the spending on prison. It has skyrocketed without a parallel increase in public safety.”...
Jealous has also made the issue a top priority for the NAACP. His group brought together the coalition of conservatives and liberals and will begin posting billboards in major cities with slogans such as: “Welcome to America, home to 5 percent of the world’s people & 25 percent of the world’s prisoners.” He will also meet with state officials to ask for cuts to corrections spending and corresponding increases in spending to public higher education.
That could prove difficult. Even states that have begun to lower their prison populations have difficulty achieving substantial savings, said Marc Mauer, executive director of the Sentencing Project, which advocates for lower imprisonment rates. “The only way you can really reduce spending is close prisons,” Mauer said. “There’s a lot of resistance [to that] in some states.”
Scott Burns, executive director of the National District Attorneys Association, said the resistance also stems from concerns that violent criminals could released if the cuts go too deep. “It is very hard to earn your way into prison in the United States,” he said. “These aren’t people who just had a baggie of marijuana or shoplifted.”
Ohio shows again it is the most dynamic (and (dys)functional?) death penalty state
While most of the nation and the world still thinks of Texas as the leading death penalty state in the US, this local article from Ohio spotlights that my home state is continuing to make the case for being the most dynamic and perhaps the most important 21st century death penalty state. The piece is headlined "Ohio's death sentences in 2010 most since 2003," and here are excerpts:
Already second in the nation in executions, Ohio bucked a national trend last year by sending seven people to Death Row -- the most since 2003....
Since Ohio's death penalty was reinstated in 1981 (after being found unconstitutional three years earlier), Franklin County has sent 18 men to Death Row. Two were executed: William D. Wickline and John Glenn Roe.
In contrast, Hamilton County issued 56 death sentences and Cuyahoga County 52 in the same period. Other counties that issued death sentences: Lucas (21), Summit (18), Mahoning (11) and Montgomery (10).
Nationally, the number of new death sentences has leveled off or declined in recent years.
Ohio has executed 43 killers, including two this year, since resuming capital punishment in 1999. Clarence Carter of Hamilton County is scheduled to be lethally injected next Tuesday. Seven other executions are scheduled this year, and two more have been set for early 2012. Ohio was second in the nation in executions last year, with eight to Texas' 17. Ohio was the only state to increase its number of executions last year.
DeWine's report showed that the sentences of 14 Death Row prisoners have been commuted, beginning with eight clemencies that Gov. Richard F. Celeste granted just before leaving office in 1991. One inmate was spared by Gov. Bob Taft, and five received clemency from Gov. Ted Strickland.
Twenty inmates on Death Row have died in prison of natural causes before execution. Courts ruled that eight others were not subject to execution because they are mentally retarded. The average age of the inmates who were executed was 43, and the average time they spent on Death Row was 15.3 years, the report said.
The full report, including details on all pending cases and executed prisoners, can be viewed online at this link.
Especially now that Ohio has been pretty serious about the death penalty both in terms of sentencing and executions for over a decade, I strongly believe that serious capital researcher should be focusing a whole lot more attention on what is working and what is not working in the application of capital punishment in the Buckeye state. The political and social dynamics of Ohio make it a state much more representative of the national as a whole than most other serious death penalty states, and the public information and sample sizes of murder rates and prosecutorial decision-making ought to be quite good for serious empirical research.
Sadly, I doubt that many folks without a pre-set agenda will start looking at Ohio's capital punishment experiences closely. Nevertheless, if and when serious researchers want an opportunity to look for new death penalty stories through a rigorous review of modern capital punishment realities, they can and should be heading to Ohio.
Gitmo and military commissions as sentencing law and policy
I do not do too much Gitmo/"war on terror" blogging because the key legal issues involved in these high-profile matters are rarely about sentencing and often well covered by many others both in the MSM and in the blogosphere. Nevertheless, especially in a week in with the Obama Administration has decided to embrace military commissions, spotlighting some of the MSM coverage of the latest developments seems worthwhile. Specifically, these two headlines really caught my attention over at How Appealing:
- From the AP here, "Gitmo: The prison that keeps causing trouble"
- From the Los Angeles Times here, "Might a military jury deny 9/11 suspect's death wish? Under military commission rules, Khalid Shaikh Mohammed cannot plead guilty to a crime that carries the death penalty, even though he wants it. And a military jury might be less likely than a civilian one to grant his wish."
Though the AP story is mostly focused on the politics of Gitmo, I am not eager to engender or engage in the political debate over where and how terror suspects should be tried. But, inspired in part by the LATimes piece, I am eager to hear just how (and with what sentencing purposes most in mind) folks think terror offenders should be punished.
April 5, 2011
In Massachusetts to talk about federal sentencing at my alma mater
I am about to go off-line for the day because I have the pleasure of spending the afternoon and evening in (rainy) Cambridge, Massachusetts because of a kind invitation to participate in an event organized by the Harvard Law School Chapter of the American Constitution Society." Here is the official event announcement:
Tuesday at 7PM in Ropes Gray (Second Floor of Pound Hall) at Harvard Law School:
Judge Nancy Gertner & Professor Douglas Berman
“The New Sentencing Regime — Or Not!”
Come join two amazing speakers for dinner and a conversation about the future of sentencing in the federal system, touching on issues ranging from the crack/cocaine-powder disparity to child pornography, immigration, and white collar crime. Judge Nancy Gertner is one of the nation’s leading progressive district judges and will join the HLS faculty next fall as a Professor of Practice. Professor Douglas Berman, HLS ’93, maintains the Sentencing Law and Policy Blog, edits the Federal Sentencing Reporter, and regularly participates in high-profile sentencing litigation throughout the country.
I think this event is open to the public, so if you are in Cambridge and want a sentencing-related excuse to get out of the rain, head up Mass Ave this evening.
Budgets and litigation have shrunk California's prison population ... but not enough
Stateline.org has this fantastic new piece on the state of California's prison system under the headlined "California shrinks its prisons, but overcrowding persists." Here are excerpts:
As the financially battered state enacts huge budget cuts, it has no choice but to downsize its sprawling correctional system, which now consumes 10 percent of the state budget and swallows more taxpayer dollars than higher education — a fact that, if public opinion surveys are accurate, Californians abhor. A single prison bed costs taxpayers $44,500 a year.
The federal courts have dialed up the pressure, putting state officials on notice that severe overcrowding — a fact of life in California prisons for years — is no longer acceptable. Two years ago, a panel of three federal judges found that overcrowding had created unconstitutionally inhumane conditions, ordering the state to reduce its inmate population by more than 40,000 — a staggering figure that eclipses the entire prisoner total of all but nine states.
Now, the U.S. Supreme Court is about to weigh in on the overcrowding problem by deciding whether to uphold, strike down or modify that order. Oral arguments in the case, Schwarzenegger v. Plata, made clear that the court’s decision could break along familiar ideological lines....
California’s prison downsizing efforts began before the Supreme Court’s involvement. In 2006, when the state's inmate population reached an all-time high of more than 172,000, then-Governor Arnold Schwarzenegger declared an overcrowding emergency, warning that inmates and guards alike faced “extreme peril.”
About 10,000 inmates were promptly shipped to private prisons in Arizona, Mississippi and Oklahoma. More recently, thousands of others had their release dates moved up as state lawmakers, usually known for enhancing criminal penalties, were forced to change course. Through an expansion of so-called “good-time credits,” they authorized many inmates to leave prison ahead of schedule while reducing parole supervision for others, hoping to reduce the number sent back for relatively minor technical violations. Today, California's in-state inmate population is down to 152,000.
Governor Jerry Brown, who took office in January, hopes to keep going. Brown wants to shift tens of thousands of low-level state inmates to county jails, even though many of those jails themselves are at capacity. If enacted, Brown's plan could reduce the state prison population by another 38,000 within four years, according to a nonpartisan legislative estimate. It also may force counties to release thousands of offenders from their jails to make room for the state transfers....
In the notoriously divided Legislature, where budget negotiations between Brown and Republicans collapsed last week, it is difficult to find consensus on any policy, let alone one as emotionally and politically charged as prisons. Not a single Republican voted for Brown’s plan to shift inmates to the counties. And with funding for the plan now uncertain, there is discussion of leaning more heavily on spending reductions to balance the budget — cuts that could speed prisoner releases and decimate what remains of inmate rehabilitation programs.
Meanwhile, fears about a spike in crime are common. Law enforcement officials warn that more releases — whether they are ordered by the Legislature or by the Supreme Court — will have predictable long-term consequences on crime, given that parolees in California are far more likely than in other states to run into trouble again. “I’m not Nostradamus, but we have a 70 percent recidivism rate. That is a fact,” says Sacramento County Sheriff Scott Jones. “If you release 40,000 inmates, 28,000 of those will reoffend.”
SCOTUS stays executions in Arizona and Texas apparently based on lethal injection drug concerns
As detailed in this new CNN piece, the litigation over the use of new execution drugs in execution planned for this week has made it up to the US Supreme Court and it seems a majority of Justices are bothered enough by the issue to grant stays. Here are the details from CNN's piece headlined "Texas, Arizona executions stayed by high court":
The Supreme Court for the second time this week has stopped a pending execution, giving lawyers for the condemned inmates more time to file their appeals. The justices Tuesday morning issued an order granting a stay of execution for Cleve Foster, about eight hours before his scheduled lethal injection. The Gulf War veteran was convicted along with another man of the 2002 murder of Nyanuer "Mary" Pal, a Sudanese immigrant he met at a Fort Worth bar.
The court said it needed more time to rule on the inmate's claims of prior ineffective assistance of counsel, and related claims of innocence of the murder. The state has now been given 30 days to respond to Foster's request for a rehearing of his appeals. The high court will then revisit the petition, and could then decide the execution can go forward. The court's brief order noted Justice Antonin Scalia would have denied the stay of execution.
This is the second time Foster, 47, has been granted a reprieve. His scheduled execution was stopped in January after he had already been given his last meal. It was to be the state's first execution using a new sedative, the first in the lethal drug cocktail. A nationwide shortage of sodium thiopental forced corrections officials to recently announce they would use pentobarbital, a barbiturate that has alternately been used to put animals to sleep.
Foster's lawyers challenged that change, saying Texas foisted the new protocols so late, with little time for legal or medical review. "I'm enormously relieved on behalf of my client and his family, and I'm glad that the Supreme Court will be looking, at least preliminarily, at the important issues we've raised," Maurie Levin, representing Foster, told CNN. "I'm very relieved Texas will not be going forward in light of all the questions and chaos using their new execution protocol."...
A Texas corrections spokeswoman said the change in chemicals was prompted by an expiration date at the end of March for the state's ready supply of sodium thiopental. Foster's execution was to be one of seven scheduled in Texas through August. Two men had already been executed this year in the nation's busiest execution state.
The justices had also stopped Tuesday's planned execution in Arizona of Daniel Wayne Cook, issuing an order the previous evening. He was convicted of the 1987 murder/rape/torture of two men. His lawyers had filed appeals similar to Foster's: contesting his earlier legal representation; and contesting the drugs to be used in the lethal injection, claiming they were illegally imported and may be unsafe. Cook now has several more weeks to challenge his capital punishment, and the Supreme Court may not revisit the petition perhaps until the fall. Arizona officials had executed another inmate last week, and they had also planned on using the anesthetic pentobarbital in future executions.
Pentobarbital has become the new legal flashpoint over capital punishment. It was used in a U.S. execution for the first time in December, when it was administered as the first ingredient in a three-drug cocktail used in a lethal injection given to an Oklahoma inmate. It also has limited Food and Drug Administration approval in smaller doses for humans as a mild anesthetic and to treat some seizures. Many physicians say they no longer administer it to people for medical purposes.
Ohio last month became the first state to use the chemical as a single lethal dose. There were no reported complications and this could encourage other states to follow suit, barring any future constitutional challenges to this drug's safety and application. An execution is scheduled there next week.
"Felony to misdemeanor: How Jack Camp did it"
The title of this post is the headline of this lengthy article from the Daily Report, which carries the subheading "DOJ may have been 'outlawyered' as plea deal fell apart for gun-toting former jurist caught in cocaine deal." Here is how the piece starts:
Prosecutors who missed charging opportunities, a loosely crafted plea agreement and defense lawyers who excavated a little-known Michigan case that turned on the difference between "a" and "the" allowed former federal Judge Jack T. Camp Jr. to walk away with a misdemeanor last month even though he pleaded to a felony after the FBI snared him in a cocaine deal.
Camp's sentence, which the government said it will not appeal, amounts to a new legal precedent in Georgia affecting whether a felon's prior convictions may be used to enhance criminal charges against anyone helping that felon commit a crime. The Michigan opinion and prosecutors who may have been wary of relitigating a decade of Camp's cases would prove critical in the surprising outcome.
Camp could have served four years in prison under his original plea deal, which included a felony and was made with prosecutors from the Department of Justice in Washington after local prosecutors and judges recused. Instead, U.S. District Senior Judge Thomas F. Hogan from Washington, sitting as a visiting judge in Atlanta, reduced the 67-year-old Camp's felony plea to a misdemeanor, then gave him a 30-day sentence plus a good scolding for criminal behavior that combined cocaine, narcotic painkillers, a prostitute drug felon, a stolen government laptop, and loaded guns he brought to a drug deal. Camp also will serve 10 weeks of community service, pay a $1,000 fine, and reimburse more than $13,000 to the government for the cost of his prosecution. As part of his plea, Camp also resigned his judicial post and surrendered his law license. He will begin serving his sentence on April 15 at a minimum-security federal prison camp in El Reno, Okla.
For Camp, the biggest relief likely was avoiding more prison time and the stigma of a felony conviction. As a misdemeanor offender, he will not be stripped of his civil rights —including the right to vote and carry a firearm (once his probation is complete) — and could even apply for reinstatement to the State Bar.
Criminal defense lawyers who have followed the case were stunned. Arthur W. Leach, a former federal prosecutor in Alpharetta who now does defense work, called the conversion of Camp's pleaded felony to a misdemeanor "absolutely amazing." The downgraded plea, he said, creates "the perception that because [Camp] was a district court judge, he was treated differently."
"The consensus among criminal defense attorneys in this district is please bring in a prosecutor from Washington whenever we have a case," said Atlanta criminal defense attorney Steven H. Sadow. The government was "outlawyered," defense attorney Wilmer "Buddy" Parker, another former federal prosecutor in Atlanta, concluded.
Related prior posts (which have 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?
- "Ex-judge Camp sentenced to 30 days in prison"
- Fascinating backstory for why former judge Jack Camp does not even have a felony conviction