May 3, 2011
Shouldn't crack sentences within old guideline ranges no longer be presumptively reasonable?
The question in the title of this post is inspired by a relatively uninspiring final paragraph from a relatively minor Eighth Circuit ruling today in the cocaine case US v. Hill, No. 10-3421 (8th Cir. May 3, 2011) (available here). Here is the factual and legal lead up and the final paragraph that has me worked up:
Appellant Kevin Hill was convicted of three counts of distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1). On appeal, the appellant claims [inter alia] that the district court ... erred in not granting a variance from the advisory guideline sentencing range of 188 to 235 months....
The appellant was charged with three counts of distribution of cocaine base (crack cocaine). The indictment alleged that the appellant had distributed a total of 7.8 grams of crack cocaine to a confidential informant on three separate occasions. However, he later confessed to distributing an additional 198 ounces of cocaine, and the use of his confession is the primary subject of this appeal....
Finally, the appellant contends that the district court erred in not granting a downward variance from the guideline range. He asserts that the ratio of crack cocaine to powder cocaine creates an unwarranted sentencing disparity within the meaning of 18 U.S.C. § 3553(a)(6)....
Here, the district court properly considered all the arguments, including the crack to powder cocaine ratio argument, and the 18 U.S.C. § 3553(a) factors and sentenced the appellant to the bottom of the advisory range. A sentence within the guidelines range is presumptively reasonable. See United States v. Vinson, 631 F.3d 476, 487 (8th Cir. 2011) (citations omitted). The district court did not abuse its discretion in sentencing the appellant to 188 months in prison.
I would need more information than what's provided in this opinion to come to a judgment as to whether Hill's 15.6-year sentence here for distributing 7.8 grams of crack cocaine to an informant is reasonable. But I long ago came to the judgment that the presumption of reasonableness for within-guideline sentencing ought not apply to within-guidelines crack sentences which the US Sentencing Commission had repeatedly and emphatically determined to be contrary to 3553(a)'s purposes. And now that crack guidelines have been reduced via statutes by Congress and new amendments by the Commission, I find it even harder to stomach the notion that within-guideline crack sentences imposed under defunct and unjust old law merit a presumption of reasonableness (a presumption which, to my knowledge, has never been rebutted)!
Again, to be clear, in the absence of more information about Kevin Hill's crimes and history, I cannot readily assail the decision to affirm his 15.6-year sentence here. But I can and do readily assail the decision to affirm this sentence by presuming the reasonableness of guidelines that Congress in 2010 determined were so bad that they needed to be dramatically reformed. The rationale of the Supreme Court's work in Rita was that a presumption of reasonableness for within-guideline sentence was permissible (though not required) to adopt because a within-guideline sentence generally indicated that both the USSC and a district judge assessed the need for a particular sentence under 3553(a) similarly. But in crack cases sentenced under the old guidelines, there is long line of USSC reports and actions as well as now clear Congressional reforms, indicating that the old guideline ranges were unfair and unjust.
In short, given that Congress has change crack sentencing laws to be more fair, why should the Eighth Circuit or other reviewing courts still declare sentences imposed under the old unfair guidelines essentially immune from substantive reasonableness review by mere invocation of the "presumption of reasonableness"? It just makes no sense, and perhaps reveals just how resistant some (most? all?) circuits are to developing a true common-law of sentencing even six+ years after Booker called upon them to do so.
"Moral Character, Motive, and the Psychology of Blame"
The title of this post is the title of this interesting new piece on SSRN, which is authored by Janice Nadler and Mary-Hunter McDonnell. Here is the abstract:
Blameworthiness, in the criminal law context, is conceived as the carefully calculated end product of discrete judgments about a transgressor’s intentionality, causal proximity to harm, and the harm’s foreseeability. Research in social psychology, on the other hand, suggests that blaming is often intuitive and automatic, driven by a natural impulsive desire to express and defend social values and expectations. The motivational processes that underlie psychological blame suggest that judgments of legal blame are influenced by factors the law does not always explicitly recognize or encourage.
In this Article we focus on two highly related motivational processes -- the desire to blame bad people and the desire to blame people whose motive for acting was bad. We report three original experiments that suggest that an actor’s bad motive and bad moral character can increase not only perceived blame and responsibility, but also perceived causal influence and intentionality. We show that people are motivated to think of an action as blameworthy, causal, and intentional when they are confronted with a person who they think has a bad character, even when the character information is totally unrelated to the action under scrutiny. We discuss implications for doctrines of mens rea definitions, felony murder, inchoate crimes, rules of evidence, and proximate cause.
Though this piece ends by exploring implications for various traditional criminal law doctrines, I see the psychology of blame as uniquely important for sentencing law, policy and practice.
May 2, 2011
Bin Laden's killing, visions of justice and the death penalty
Unsurprisingly, today folks seem interested in talking about the topics in the title of this post, so here is a dedicated post to enable commentors to go at it.
UPDATE: The BLT has this notable post headlined "What Was the Legal Basis for the Bin Laden Strike?". It begins this way:
The killing of al-Qaeda leader Osama bin Laden is engaging some of the thorniest questions of the United States' post-Sept. 11 campaign against terrorism, including the government's legal justification for carrying out the targeted killing of suspected terrorists.
Lawyers who specialize in national security said today that the United States had several possible legal justifications for carrying out Sunday’s strike. But the operation in Abbottabad, Pakistan, raises other issues, too.
Interesting buzz about possible new marijuana initiative in Ohio
My local Columbus Dispatch has this notable new "daily briefing" piece about an interesting issue percolating in my backyard. The piece is headlined "Billionaire Peter Lewis floating marijuana ballot issue," and here is how it starts:
Billionaire Peter Lewis is floating a proposal for an Ohio ballot issue to legalize medical use of marijuana.
Lewis, a Clevelander who is head of Progressive Insurance, the nation's third-largest insurer, has given millions over the years to marijuana-related causes. Now he wants to bring the issue to his home state. Through his attorney, Lewis put out a request for proposals to pass an Ohio issue that will "create a model for future campaigns in other states."
Following California in 1996, 14 other states have passed ballot issues legalizing marijuana for medically qualified patients, most through ballot issues.
The RFP says Ohio "stands out as having particularly high levels of voter support. This provides an opportunity to enact a new law that will directly help patients and to do so in a manner that will serve as a model for other states."
Lewis is seeking a proposal to include drafting ballot language, qualifying for the ballot, building an organization, communicating with voters, and raising money.
SCOTUS summary reversal in another Ohio capital habeas case
As effectively reported over at SCOTUSblog, the Supreme Court this morning issued "a summary disposition in Bobby v. Mitts, No. 10-1000, [in which a] decision of the Sixth Circuit is reversed; the opinion is a per curiam one, with no separate statements or dissents." This summary reversal, which concerns a habeas challenge to the penalty-phase instructions in an Ohio capital case, can be accessed here.
A quick glance at this brief PC opinion suggests there is not much of broader interest/concern here, but perhaps readers have another perspective.
"Internet Lets a Criminal Past Catch Up Quicker"
The title of this post is the headline of this recent New York Times piece, which includes these interesting passages with data on criminal histories and their potential employment impact:
The pool of Americans seeking jobs includes more people with criminal histories than ever before, a legacy in part of stiffer sentencing and increased enforcement for nonviolent crimes like drug offenses, criminal justice experts said. And each year, more than 700,000 people are released from state and federal prisons, a total that is expected to grow as states try to reduce the fiscal burden of their overcrowded penal institutions.
Almost 65 million Americans have some type of criminal record, either for an arrest or a conviction, according to a recent report by the National Employment Law Project, whose policy co-director, Maurice Emsellem, says that the figure is probably an underestimate....
In a 2010 survey by the Society for Human Resources Management, almost 90 percent of the companies surveyed, most of them large employers, said they conducted criminal background checks on some or all job candidates. Advocates for workers say that the indiscriminate use of background checks by companies has made finding employment extremely difficult for millions of Americans....
There is no federal law that prohibits discrimination against people with criminal records. But the Equal Employment Opportunity Commission has set guidelines on how employers can use such records. Because African-Americans, Hispanics and other minorities have higher rates of criminal convictions, a blanket policy that screens out anyone with a criminal history will discriminate against these groups, the commission says, and is unlawful under Title VII of the Civil Rights Act of 1964.... The studies have been cited in some lawsuits over criminal background checks. Taken collectively, they indicate that “it is no longer accurate to say that individuals with criminal records are always a higher risk than individuals without a criminal record,” said Shawn Bushway, an associate professor of criminal justice at the University at Albany, one of several researchers who have conducted redemption studies.
May 1, 2011
Guest thoughts on the Ninth Circuit's recent significant child porn sentencing work
In the last few weeks, the Ninth Circuit has issued two significant federal child porn sentencing opinions in Apodaca (discussed here) and Henderson (discussed here). I invited Joshua Matz, who authored a Harvard Law Review comment on the Second Circuit's big Dorvee case (noted here) and who hosted me at an HLS event last month, to author a guest-post on these cases. Here is his effort:
Powerful Shots Across the Commission’s Bow on Child Porn Guidelines — This Time from the Ninth Circuit
It is no secret that the federal child porn sentencing guidelines have sustained withering criticism from the academy and district courts. Motivated in part by a surge in federal prosecutions, commentators have strongly encouraged the Sentencing Commission to revisit guidelines widely decried as unduly severe and unmoored from empirical evidence.
In two recent cases, the Ninth Circuit staked out an aggressive position amongst these critics — first raising the specter of aggressive review for substantive reasonableness in US v. Apodaca, and then holding in US v. Henderson that district courts are free to vary from § 2G2.2 based solely on policy disagreement with that guideline. These opinions likely will transform child porn sentencing practice in the Ninth Circuit and signals to the US Sentencing Commission that its failure to produce meaningful reform justifies unilateral judicial action.
The Ninth Circuit hardly stands alone. In US v Dorvee, an opinion issued last May, the Second Circuit overturned a within-Guidelines sentence under U.S.S.G. § 2G2.2 as substantively unreasonable. Its opinion sharply assailed the guideline’s empirical foundations and inability to achieve either parsimony or proportionality in sentencing. A few months later, in US v. Grober, the Third Circuit affirmed a district court child porn sentencing opinion that mounted a sustained assault on the relevant guidelines provisions by discussing thirteen days of expert testimony presented to the lower court.
In Apodaca, the Ninth Circuit reprised many of these themes while exploring a defendants’ claim that his within-Guidelines term of lifelong supervised release was substantively unreasonable. Focusing on the Guidelines’ failure to distinguish between contact and possession-only offenders — notwithstanding studies that strongly suggest different recidivism rates — Apodaca raised serious questions about the empirical support for a choice to treat these groups similarly. Invoking Kimbrough in a concurring opinion, Judge William Fletcher went farther and argued that the Commission did not act in its “characteristic institutional role” when it failed to translate § 3583(k) into sentences appropriate to § 3553(a)-relevant subtypes of child porn crimes. Because the Guidelines impose the same terms of supervised release on a broad range of offenders, he argued, they raise concerns about empirical support, similar treatment for dissimilar defendants, and focusing on particular characteristics of the offense and the offender.
The most surprising thing about Apodaca is that it affirmed the sentence below, turning aside at the last minute from its forceful criticism by finding that available evidence falls short of conclusive proof. Given that the court identified only a single study questioning strong empirical support for different recidivism rates — and that a co-author of that single study has disowned the suggestion that his work disturbs a scholarly consensus — the ApodacaCourt’s own reasoning could easily have justified reversal of the sentence below. Instead, the Court merely observed that additional evidence might provide “grounds to find that sentencing an individual like Apodaca to a lifetime term of supervised release is substantively unreasonable.”
This challenge, which defense counsel should treat as an invitation to press their empirical case in the district courts, suggests that the Ninth Circuit has joined the Second and Third in its willingness to searchingly explore the underlying justification for child porn sentences in light of § 3553(a)’s framework. Indeed, the court’s use of substantive reasonableness review grounded in statutory principles of parsimony, proportionality, individualization, and empirical support mirrors Dorvee and participates in an important trend in appellate review of the Guidelines.
These same methods of reviewing a guideline should also play a significant role in post-Hendersonsentencing. By holding that § 2G2.2 does not reflect the Commission’s “characteristic institutional role” and permitting variance based purely on policy disagreement, the Ninth Circuit opened the door to searching district court review of § 2G2.2’s rationality as both an exercise in administrative rulemaking and a guide to reasonable sentences in particular cases. Judge Berzon actively encouraged such reflection and criticism in her concurring opinion, writing separately “to emphasize that unjust and sometimes bizarre results will follow if § 2G2.2 is applied by district courts without a special awareness of the Guidelines anomalous history.”
Now that district courts are required by Henderson to “appreciate” their Kimbrough discretion, and given the partial overlap between critiques of § 2G2.2 and § 5D1.2, trial counsel arguing the infirmity of child porn guidelines can simultaneously achieve two goals: (1) elaborating empirical and § 3553(a) grounds for future appellate findings of substantive unreasonableness and (2) providing district judges with concrete information relevant to a determination of whether their Kimbrough discretion ought to be exercised to vary from § 2G2.2 as a matter of policy.
These developments point to an explanation for why the Apodaca Court stayed its hand from an outright finding of substantive unreasonableness. In that case, Judge William Fletcher concurred and called upon the Commission and Congress to “address the undifferentiated treatment of the dissimilar groups of sex offenders covered by § 3583(k) and U.S.S.G. § 5D1.2(b)(2).” Just one week later, the Ninth Circuit essentially allowed each district judge to place § 2G2.2 under review. These opinions strongly signal to the Commission that its policy statements are lacking and that, if it wants its Guidelines to avoid rougher judicial treatment in the future, the Commission should embrace the opportunity for reform provided by an upcoming reassessment of its child porn guidelines. In the interim, courts wielding Kimbrough discretion and substantive reasonableness doctrine will refine their own careful assessment of the Commission’s efforts.
Private providers seeking piece of prison health care pie in Texas
The Austin American-Statesmen has this fascinating new piece on prison health care cost debates in Texas. The piece is headlined "Lawmakers chafe as push continues to privatize prison health care," and here are excerpts:
Efforts by private companies to get a piece of Texas' nearly $1 billion prisoner health care system are quietly continuing behind the scenes as company representatives make sales pitches to lawmakers and seek changes in state law to authorize privatization.
Some legislative leaders and others are chafing about the continued privatization push, saying the idea has not been studied or vetted publicly — and is being advanced by outside interests even though neither the House nor the Senate has embraced it.... The American-Statesman first reported the privatization efforts in March and that top aides to Gov. Rick Perry have been involved in some of the meetings with vendors and lobbyists....
Under current law, the University of Texas Medical Branch at Galveston and Texas Tech University Health Sciences Center are in charge of providing health care to Texas' 154,000 imprisoned felons. Skeptics say Texas could be embarking on the next privatization boondoggle.
"Privatization usually means significantly higher costs and poorer care," said Tom "Smitty" Smith, Texas director of Public Citizen, a government watchdog group. "This should be done in the open, not in the dark, after a full-blown analysis ... or it will end up just being another corporate giveaway."... Ana Yanez Correa, executive director of the Texas Criminal Justice Coalition, also opposes the idea.... "It's a horrible idea. The only way to save money is to minimize the care that's provided."
Under the House-approved budget, correctional health programs would receive more than $700 million over the next two years. The Senate version, not yet voted on, would allocate about $900 million. At either amount, it's a big prize for private vendors. Though officials with the various companies decline to discuss their lobbying or their proposals, lawmakers confirm that the sell is on.
In a written proposal circulated to lawmakers, Correctional Medical Services Inc. — which provides prison medical services to 277,000 inmates in 330 lockups in 18 states — says it could save Texas $30 million to $50 million annually.
Company officials could not be reached to elaborate, but its written proposal says it would cut costs by reducing admissions of prisoners to hospitals and by reducing the number of inpatient days that prisoners are there — a rate that the company says is 300 percent higher in Texas than the average at its locations. It would also enhance medical treatment in prison clinics, as a way to keep convicts from being sent to a hospital, where the costs would be higher. Reducing annual admissions by 140 percent would yield a potential savings of $34 million, the proposal states....
Though state prison officials have indicated that they will probably seek information from potential bidders to determine whether privatization would provide savings, they and legislative veterans say they are wary of pushing ahead for privatization based on experiences with past prison outsourcing projects.
For example, the Texas Department of Criminal Justice has several times hired private companies to provide substance-abuse treatment programs in state prisons, only to face rising costs after the contracts started because the companies lowballed their bids and could not continue providing the services at the low prices....
Despite the concerns, members of the Board of Criminal Justice, which governs the prison system, say the potential savings are worth exploring, as a start.... Board members Tom Mechler of Amarillo and David Nelson of Lubbock said the continuing losses of the two university health care providers, and the state's tight budget, are driving interest in alternatives. "We should be considering every option — to reduce the cost to taxpayers, to improve the quality of care, to make the system better," said Nelson, who until last month headed the board's health care committee. "In my view, everything is on the table."
"Sheriff's Program Teaches Prisoners To Get Out Of Jail"
The title of this post is the headline of this new NPR piece. Here are excerpts from the provided text:
Los Angeles County Sheriff Lee Baca has a big job. He's responsible for the country's largest local jail jurisdiction, which held more than 160,000 inmates last year alone. But Baca isn't interested in locking up criminals and throwing away the key; he wants to give them an education.
His Education-Based Incarceration initiative focuses on promoting intellectual growth in prisoner... Menial jobs aren't the best way for inmates to spend their time in prison, Baca says, because "that's not what gets you a job outside the jail." What does is reliability, he says, and proving "you're smart enough to be trained in a new job."
The program launched this year and has about 2,000 inmates participating in the beta phase. Once incarcerated, individuals are given academic evaluations. Correctional personnel then create a personalized curriculum, which ranges from basic reading and writing skills to core subjects like science and history. It's a mixture of classes and reading materials, plus newer learning tools like MP3 players with pre-loaded lectures.
Baca wants his prisoners to accomplish more than academic achievement. He wants the program to equip inmates for a better life outside prison walls. Courses in life skills like leadership and decision making give time in prison a constructive purpose. "They are learning a different way of how to assess their time as they are serving time in jail," he says....
Right now, only Los Angeles County uses Education-Based Incarceration, but Baca knows for the program to truly be a success, the state jails will have to follow suit. "My belief is that you can incarcerate a body, but you should never incarcerate a brain," Baca says. "The brain must develop regardless of what the environment is."
Tackling the challenges of prisoner fathers who owe child support
This new AP piece, headlined "Conn. to help inmates pare child-support bills," discusses a new state programs dealing with an enduring prisoner problem:
[For] incarcerated parents across the country, the vast majority of them fathers, [being] in prison does not mean they won't have to pay child support or repay the state for welfare paid to their families in lieu of child support. Experts say the debt can make overwhelmed parents less likely to pay when they are released, and potentially damage relationships with their children.
Jessica Pearson, director of the Center for Policy Research in Denver, said her studies of state programs for the federal government show that more than half the inmates in both state and federal prisons are parents with children under 18, and half of those have active child-support cases. "In general, inmates seem to go in owing about $10,000 in child support and come out owing about $20,000," she said.
In several states, such as Tennessee, incarceration is considered "voluntary unemployment," and inmates cannot get child support obligation amended while in prison. Those laws are designed to ensure inmates are not being rewarded for committing a crime, and children don't get penalized, Pearson said....
States such as Massachusetts and Texas allow inmates to have child-support orders modified to a minimum payment, which can range from $20 to $80 a month depending on the state, according to the federal Office of Child Support Enforcement. Others, including Connecticut, allow a judge to eliminate the payments entirely while a parent has no income....
Several states, including Illinois and Maryland, have begun programs that will forgive any debt owed to the state, if a former inmate makes regular child-support payments for a specified amount of time, as little as six months in the case of Illinois, Pearson said. Federal grants have been made available from the federal Office of Child Support Enforcement to states for programs to help inmates become better fathers, access state services and get jobs. But Pearson said there is little incentive for states to pass legislation to forgive child-support debts.
"It's a land mine for politicians," she said. "To be soft on prisoners, and cut them deals, and forgive state debt for prisoners? T hey also don't want to make the poor chap who is doing the right thing and working two or three jobs to pay off his debt feel like a fool."