May 21, 2011
"States Seeking New Registries for Criminals"
The title of this post is the headline of this new piece from the New York Times. It gets started and finishes this way:
Lawmakers around the country are pushing for online registries, like those used for sex offenders, to track the whereabouts of people convicted of a wide variety of crimes, from arson and drunken driving to methamphetamine manufacturing and animal abuse.
State senators in Illinois are considering a law to create the nation’s first registry for first-degree murderers. In Maine, legislators are debating an online registry of drunken drivers. And proposals to register animal abusers have been put forward in several states; one such registry, in Suffolk County on Long Island, will become operational next week.
Under a canine version of Megan’s Law, Virginia even registers dangerous dogs, including Elvis, a cat-killing collie in Roanoke whose bad acts are among those listed on the state’s database.
Advocates for online registries, many of them searchable by the public, argue that people have a right to know about potentially dangerous offenders in their midst and that the benefit of alerting parents, neighbors and others in a community outweighs any privacy concerns.
But as the registries proliferate, so do questions about their value. Critics say that while the registries are attractive to politicians who want to appear tough on crime, they often do little more than spread fear and encourage vigilantism.
The monitoring systems cost money at a time when recession-strapped states can ill afford the extra expense, the critics say, and their effectiveness is dubious: Sex offender registries, for example, have had little success in reducing repeat crimes, studies suggest....
Perhaps the biggest question about criminal registries is how effective they are in preventing offenders from committing future crimes....
Only a handful of studies have so far examined the effect of registry and notification laws for sex offenders on recidivism, Dr. [Jill] Levenson said, but “so far, the vast majority of those studies do not show a decrease in repeat sex offenses that can be attributed to sex offender registry or notification.”
Murderers have among the lowest rates of recidivism. Only about 1.2 percent of convicted murderers go on to commit another murder within three years of their release; roughly 35 percent commit other types of crimes within the same time period. But in Ms. [Patricia] Rosenberg’s view, if even one murder is prevented by notifying the public it is worth it. “Would it be more plausible if you thought they would commit four, five, six, seven murders?” she asked. “I think any life, one life, is worth saving.”
Revised data from USSC concerning potential impact of FSA guideline retroactivity
The US Sentencing Comission now has posted here this document described as an "Analysis of the Impact of Guideline Implementation of the Fair Sentencing Act of 2010 if the Amendment Were Applied Retroactively." This Commission document provides an updated estimate of the impact on drug offenders currently incarcerated of any decision to make the new revised crack guidelines retroactive. Here are key snippets from the lengthy document:
On October 15, 2010, the United States Sentencing Commission promulgated a temporary, emergency amendment that implemented the emergency directive in section 8 of the Fair Sentencing Act of 2010. On April 6, 2011, the Commission re-promulgated the temporary amendment as a permanent amendment, which will become effective, absent congressional action, on November 1, 2011. The Commission also voted to publish an issue for comment regarding whether, pursuant to 28 U.S.C. § 994(u) and 18 U.S.C. § 3582(c)(2), it should give the amendment retroactive effect, and announced a hearing for June 1, 2011 regarding that issue. This memorandum estimates the impact on offenders currently incarcerated in the federal prison system of portions of the amendment, if the Commission were to make all of the amendment, or those portions, retroactively applicable....
After accounting for those offenders for whom the sentencing range would not change after application of the FSA Guideline Amendment, the total number of crack cocaine offenders incarcerated on November 1, 2011, who are estimated to be eligible to receive a reduced sentence under 18 U.S.C. § 3582(c)(2) is 12,040....
Based on [various] assumptions, the average sentence reduction for all impacted offenders with sufficient information to perform this analysis would be 22.6 percent (or 37 months, from 164 months to 127 months).... [It appears] that 7,152 offenders (78.1%) would receive a sentence reduction of 48 months or less. Conversely, 280 offenders (3.1%) would receive a sentence reduction of more than 10 years.
May 20, 2011
"Obama Pardons: Alligator Hides, Hashish and Satellite TV"
The title of this post is the headline of this Time piece reporting the news that President Obama has now issued his second batch of pardons. Another notable piece about Obama's clemency efforts comes from PS Ruckman at the Pardon Power blog in this post titled "Obama: 8 More Pardons to the Tiny Little Pile."
The Time piece's intro to its list of the eight pardon recipients provides a telling indication of how recent presidents have turning this historic power into a near punchline:
You know it’s a Friday afternoon if the White House sends out the latest list of presidential pardons. Here are today’s lucky winners, all of whom were convicted of non-violent crimes. Some swing states represented, but no campaign contributors.
Relatedly, I received via e-mail a reaction from Families Against Mandatory Minimums (FAMM) president Julie Stewart, who released this fitting statement in response to President Obama's announcement of eight pardons:
"We're happy that these eight people will have their civil rights restored by this presidential pardon, but it's sad that the Justice Department has not brought the president one prison sentence to shorten. It can't be true that there isn't a single person among the 210,000 currently in federal prison who shouldn't be there. In fact, during the campaign the president acknowledged that federal prisons are filled with nonviolent offenders serving excessive sentences. Why, then, can't he find one to commute?"
Wisconsin Supreme Court upholds LWOP sentence for 14-year-old murderer
As reported in this new AP piece, "Wisconsin judges can sentence 14-year-olds to life in prison without parole in homicide cases, the state Supreme Court ruled Friday in upholding a life sentence for a man who participated in a gruesome homicide when he was a teenager." Here are more of the details of the ruling and the underlying crime that presents the setting for the latest juve LWOP debate:
In a case watched by psychiatrists, family advocates and defense attorneys, the court found that neither the U.S. nor the Wisconsin Constitution prohibits life sentences without parole for 14-year-olds in homicide cases and no national consensus has formed against such sentences. "We ... confirm what objective evidence already informs us: Contemporary society views the punishment as proportionate to the offense," Justice Annette Kingsland Ziegler wrote for the majority.
The case stems from a crime that took place more than a decade ago in Green Bay. Omer Ninham, then 14, helped throw another teenager off a parking ramp for no apparent reason. Ninham's attorney, Byron Stevenson of the Equal Justice Initiative, had argued that such sentences amount to cruel and unusual punishment. He vowed to appeal to the U.S. Supreme Court....
Judges across the country rarely sentence juvenile offenders to life without parole. According to statistics compiled by the Equal Justice Initiative the Wisconsin justices cited in their opinion, 73 children 14 or younger across 18 states have received that sentence.
Last year the U.S. Supreme Court ruled such sentences for anything less than homicide was unconstitutional.... But the [Wisconsin] justices said in a 5-2 decision that Ninham failed to show that children 14 and younger deserve different constitutional status in homicide cases. The lack of homicide life sentences for children across the country doesn't signal national sentiment has turned against such sentences, only that juveniles rarely kill people, the justices said.
In Ninham's case, the punishment fit a crime that "cannot adequately be reduced into words," the opinion said. According to court documents, 13-year-old Zong Vang was riding his bike home in September 1998 after picking up tomatoes at the grocery store for his family. A group of five people between the ages of 13 and 14 accosted him for no reason. Ninham and another member of the group started teasing Vang, then punched him. Vang ran into a nearby hospital parking ramp. The group cornered him on the top floor. Ninham and a friend seized him by the wrists and ankles. As Vang cried and screamed, they threw him over the edge. Vang fell five stories to his death. A bystander on the ground said he heard a sound "like a wet bag of cement hitting the pavement."...
Under Wisconsin law, anyone 10 or older accused of homicide can be tried in the adult system. A jury convicted Ninham of first-degree intentional homicide and child abuse in 2000. The other charges were dismissed but the judge was allowed to consider them at Ninham's sentencing.
First-degree intentional homicide carries a mandatory life sentence in Wisconsin. The state does not have the death penalty. The only issue at sentencing is whether a judge will grant parole eligibility. Brown County Judge John D. McKay gave Ninham, who was by then 16, life and denied him any chance at parole. The judge noted Ninham had a tough family life and he snorted cocaine weekly and drank every day, usually until he passed out. But he said the crime devastated Vang's family and the Green Bay community and described Ninham as a "frightening young man."
The full 68-page opinion in Wisconsin v. Ninham, 2011 WI 33 (Wisc. May 20, 2011) is available at this link. Here is part of the majority opinion begins:
Ninham mounts a categorical constitutional challenge, arguing that sentencing a 14-year-old to life imprisonment without parole is cruel and unusual in violation of the Eighth Amendment of the United States Constitution and Article I, Section 6 of the Wisconsin Constitution. In the alternative, Ninham seeks sentence modification on the grounds that (1) his sentence is unduly harsh and excessive; (2) new scientific research regarding adolescent brain development constitutes a new factor that frustrates the purpose of the sentence; and (3) the circuit court relied on an improper factor when imposing the sentence. We disagree with Ninham on all four grounds, and accordingly, we affirm the decision of the court of appeals.
"The Great Writ is dead in this country" ... at least for some illegal sentences, it seems
A number of helpful readers have made sure that I did not miss while joyfully distracted at the US Sentencing Commission's annual conference a big (and in my view ugly) en banc habeas ruling from the Eleventh Circuit. And one reader made my blogging efforts especially easy by providing this terrific review/summary of the ruling:
The Eleventh Circuit finally issued its en banc opinion in Gilbert, the case about collaterally attacking an illegal sentence. (Previously covered here and here on this blog.) The Eleventh Circuit rules for the government, 8-3, with Judge Carnes writing, Judges Tjoflat, Pryor, and Dubina each writing a separate concurring opinion, and Judges Martin, Barkett, and Hill each writing a separate dissenting opinion.
Here's the majority:
Ezell Gilbert, a federal prisoner, wants to have an error of law in the calculation of his sentence corrected based upon a Supreme Court decision interpreting the sentencing guidelines, even though that decision was issued eleven years after he was sentenced. Gilbert insists that prisoners have a right to have errors in the calculation of their sentences corrected no matter how long it has been since the sentences were imposed. His insistence calls to mind Justice Holmes’ observation that “All rights tend to declare themselves absolute to their logical extreme.” Hudson Cnty. Water Co. v. McCarter, 209 U.S. 349, 355, 28 S.Ct. 529, 531 (1908). But as Holmes also explained in the same thought, “Yet all [rights] in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached.” Id.
The principles of policy that limit the right to be resentenced in accord with the latest guidelines decisions are those regarding finality of judgment and the important interests that finality promotes. For reasons we will discuss, the statutory provisions and the decisions furthering finality of judgment are strong enough to hold their own against Gilbert’s claimed right to have a long-ago error in calculating his sentence corrected.
And here's Judge Hill's dissent:
Today, this court holds that we may not remedy such a sentencing error. This shocking result -- urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice and accepted by a court that emasculates itself by adopting such a rule of judicial impotency -- confirms what I have long feared. The Great Writ is dead in this country.
Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence. The government hints that there are many others in Gilbert’s position -- sitting in prison serving sentences that were illegally imposed. We used to call such systems “gulags.” Now, apparently, we call them the United States.
Nancy King over at the Habeas Book blog has this post describing the Gilbert ruling further, with particular emphasis on the discussion of the Constitution's Suspension Clause in the dueling opinions.
DSK formally indicted, though gets bail with lots of conditions
The latest notable news about the highest-profile NY sex offense come via this MSNBC article, which includes these details:
Former International Monetary Fund chief Dominique Strauss-Kahn, accused of a sex attack on a New York City hotel maid, was awaiting release from jail Friday morning after having been granted bail on Thursday.
After Strauss-Kahn spent nearly a week in police custody and then jail, the judge agreed to free him on $1 million cash bail plus an additional $5 million bond — provided he's confined to a New York apartment. He will be subject to electronic monitoring and under the watch of an armed guard, a prosecutor said....
Strauss-Kahn wasn't immediately released from the city's bleak Rikers Island jail, where he had been kept in protective custody and on a suicide watch. But his lawyers expect he'll get out Friday, after he posts the bond and authorities review the security arrangements involved in his house arrest....
Lawyers arguing whether the ex-IMF chief would be released from jail pending a trial have used two famous examples from different sides of the spectrum to make their case — Roman Polanski and Bernard Madoff. Prosecutors brought up Polanski, the French filmmaker whom U.S. authorities pursued for decades after he jumped bail in a 1977 child-sex case. Defense lawyers, meanwhile, have mentioned Bernard Madoff, the financier who was freed on high bail and strict house arrest, the same conditions that a judge approved Thursday in a bail package for Strauss-Kahn....
"The proof against him is substantial. It is continuing to grow every day as the investigation continues," Manhattan assistant district attorney John "Artie" McConnell told the judge Thursday as prosecutors announced that Strauss-Kahn had been indicted on charges including attempted rape and a criminal sex act. The maid had told a "compelling and unwavering story," McConnell said.
The indictment, a crucial procedural step in a felony case, marked a grand jury's "determination that the evidence supports the commission of non-consensual, forced sexual acts," District Attorney Cyrus R. Vance Jr. said. Strauss-Kahn, whose lawyers have suggested evidence won't support a forcible encounter, is due back in court June 6.
May 19, 2011
In praise of the USSC's annual conference and its (still developing) website
Becuase I am having so much fun already at the US Sentencing Commission's annual conference (seriously!), I decided to use my lunch break to again praise/thank the USSC for inviting me to participate again and also to follow-up a comment I made during this morning's first plenary session. Specifically, I expressed to the Commissioners this morning my appreciation for their efforts to improve the official USSC website, but then I also suggested the website could be improved further still.
Proving yet again that the USSC always welcomes constructive criticism, a member of the USSC staff asked me to consider developing a Top 10 list of possible ways to make the new USSC website even better. (My #1 suggestion likely is to be to urge the USSC to have the text of I8 USC 3553 and other critical federal sentencing statutes readily linked (and even annotated) on its website.)
In addition to being grateful for this chance to provide input, I thought it would be useful to ask the readership of this blog for thoughts about how the USSC website could be improved and/or expanded ito better serving not only federal practitioners, but also any and everyone else who makes regular use of the data and other materials that appear (or should be readily available) via the USSC's website.
UPDATE: Paul in the ends of the comments provides this quite specific and therefore very helpful comment that I hope gets noticed and that I hope might prompt still more folks to chime in with details and concerns about the USSC's website:
There are places where "Topics of Interest" highlight the 2009 Sourcebook, even though the 2010 is available. Last Congressional Testimony is may 2009? The categories of "Research," "Data and Statistics," and "Publications" have substantial overlap and is confusing. Really, if you didn't know the site, where would you start to look for a statistical research report?
Oregon Supreme Court says federal law does not allow denial of local gun permits for state marijuana users
As detailed in this AP report, today the "Oregon Supreme Court unanimously ruled Thursday that a retired school bus driver can have her medical marijuana and a concealed handgun, too." Here are the basics:
The ruling upheld previous decisions by the Oregon Court of Appeals and circuit court that determined a federal law barring criminals and drug addicts from buying firearms does not excuse sheriffs from issuing concealed weapons permits to people who hold medical marijuana cards and otherwise qualify. "We hold that the Federal Gun Control Act does not pre-empt the state's concealed handgun licensing statute and, therefore, the sheriffs must issue (or renew) the requested licenses," Chief Justice Paul De Muniz wrote in the ruling issued in Salem.
Cynthia Willis, one of four plaintiffs, welcomed the ruling. "I feel like a big girl now," Willis said. "I feel like a real human being now, not just a source of revenue to the county."
Leland Berger, the attorney representing Willis and other medical marijuana patients in the state, said the ruling was important in the continuing national debate over making marijuana legal to treat medical conditions. "I am hopeful we will end cannabis prohibition the same way we ended alcohol prohibition, which was by refusing to enforce federal laws within the state," Berger said....
Willis, 54, has carried a Walther .22-caliber automatic pistol for personal protection since a messy divorce several years ago. She volunteers at a Medford smoke shop that helps medical marijuana patients find growers, and teaches how to get the most medical benefit from the pound-and-a-half of pot that card carriers are allowed to possess. She uses marijuana cookies, joints and salves to treat arthritis pain and muscle spasms.
Elmer Dickens, a lawyer representing the sheriffs of Washington and Jackson counties, said the ruling provided needed clarification on whether the defendants should follow federal or state law on what has been a cloudy issue. Dickens did not anticipate an appeal to the U.S. Supreme Court, because the ruling focused so tightly on state law. "Every sheriff knows now what the rules are, and we got what we needed," he said.
The ruling also said Congress has no constitutional authority to require states to use gun licensing statues to enforce a federal law like the prohibition on handguns for marijuana users....
Oregon Attorney General John Kroger had argued in favor of the medical marijuana patients and against the sheriffs of Jackson and Washington counties who withheld handgun permits....
Nearly 40,000 Oregonians hold medical marijuana patient cards, with more than 36,000 of them for severe pain, according to Oregon Medical Marijuana Program statistics. Another 22,000 are registered as growers, and 21,000 as caregivers.
The unanimous ruling from the Oregon Supreme Court is available at this link. It will be interesting to see if any federal officials either at the Justice Department or in Congress have any official reaction to this ruling or the broader issues or "lawful" possessors of pot and guns. Because the pot use issue skews left and the gun possession issue skews right politically, I suspect that most federal folks and politicians will just seek to avoid having to discuss this ruling and the intersection of drug policy and gun policy in states like Oregon that tend to favor individuals on both fronts over government control.
Federal prosecutors cut probation deal for rich woman who hosted cocaine parties for years!?!?
I am about to head off (and off-line) for the US Sentencing Commission's annual conference, where tomorrow I will be on a panel discussing plea bargaining. With that background, and especially given that crack and powder cocaine sentencing will be a frequent topic of discussion, I found especially timely this remarkable (and shocking?) local federal story out of Montana. The piece is headlined "Billings businesswoman sentenced for holding cocaine parties," and here are the details:
A U.S. District Court judge on Wednesday sentenced Billings businesswoman Dru Cederberg to two years probation, including eight months of house arrest, and fined her $550,000 for attempting to maintain a drug-related premises.
For about a decade, Cederberg, a millionaire and an heir to the Brach's Confections fortune, hosted series of dinner parties at her home. After the dining ended, people moved to the back of her home, and Cederberg laid out cocaine in the bathroom for the guests' use, testimony showed.
Cederberg, 52, is the latest person convicted and sentenced in the high-profile conspiracy involving cocaine in Billings and the surrounding area. Cederberg had testified for the federal government when her drug dealer and friend, Domingo Baez, was convicted. She also testified in the trials of some other defendants.
U.S. District Judge Charles C. Lovell said his first inclination was to reject the proposed plea agreement worked out between the U.S. Attorney's Office and Cederberg's lawyer that she be sentenced to two years' probation and a $50,000 forfeiture or fine. "The plea agreement on its face is exceptionally lenient compared to the sentences imposed on the other defendants," Lovell said. Lovell told Cederberg she was more culpable than Terri Jabs Kurth, who served eight months in prison, and was second in culpability only to Baez, who is serving 15 years in prison.
He did praise her role in cooperating with the Justice Department and testifying against some other defendants. But then Lovell tacked on an additional $500,000 fine and said he would have fined Cederberg more had he been allowed to do so under federal sentencing guidelines.
Marcie Zinke, a federal probation officer, had recommended that Cederberg be incarcerated for 18 months, be sentenced to three years of supervised release afterward and be fined $250,000. "The reason I have accepted this plea agreement ... is certain mental health concerns and the yeoman's service you provided to the United States," Lovell said.
He said the evidence would support a greater charge than the Justice Department brought forward. "But I think the appropriate penalty here is a financial one, rather than one of incarceration," he said. "A prison sentence is not appropriate for you -- at least not at this time."
Cederberg has net assets of at least $14 million, including three homes valued at a combined $3 million, including the $2 million home in which she lives, Lovell said, quoting the federal probation officer's report. Cederberg is a single mother with a 15-year-old daughter....
Friends and business associates, in letters submitted to the court, testified to Cederberg's compassion and widespread anonymous generosity in the Billings area.
"You do have an extreme history of a usage of illegal drugs, I think beginning at about age 17," Lovell said in sentencing her. "I do understand that you have given up that habit and are not using any illegal drugs. You are what we would refer to as a wealthy individual here in Montana." Cederberg's attorney, Mark Parker, testified that his client has said she hasn't that used cocaine since 2008. Lovell told Cederberg he believes she introduced the use of cocaine to a number of who otherwise may not have used the illegal drug....
Cederberg will be required to wear monitoring devices provided by the probation officer so it can monitor her locations. She cannot leave her home for eight months except for medical reasons, court appearances and any other activities approved in advance by the court.
Lovell said each one of the dinner parties where Cederberg laid out cocaine for her guests' use amounted to "a distribution of an illegal controlled substance," Lovell said, saying it amounted to thousands of dollars worth of drugs.
Cederberg's attorney presented the $50,000 check agreed to under the plea deal to the judge, and the Thaggard turned it over to someone from the U.S. Marshals Service. As for the $500,000 additional fine, Lovell told Cederberg: "If you pay the fine within 30 days, the court won't apply interest to that amount. I think from your net worth, you'll be able to do it."
I could and perhaps should make this remarkable case the focal point of an entire federal sentencing course, because almost every hot-button issue in modern federal drug sentencing policy and practice is implicated here. What an amazing example this case is concerning, e.g., charge bargaining by prosecutors, a sweet plea deal for a cooperator, lenient (and special?) treatment for a female and well-to-do (white?) defendant involved with powder cocaine and not crack, the relationship between prison, home confinement and financial sanctions, the impact of addictions and mental health on crime and punishment, and the role and impact of prosecutors, probation officers and judges at sentencing.
Especially given the addition of a big fine (which I wish was even higher), I am not asserting that the deal cut by prosecutors and accepted by the district judge here is misguided or unjust. Indeed, a pretty good argument can be made in this context that Dru Cederberg's novel and notable sentence does achieve 3553(a)'s mandate of being "sufficient but not greater than necessary" to achieve the punishment goals set forth by Congress. However, given that a large number of poor urban men and women are serving not merely years, but decades, in federal prison for distributing small amounts of crack cocaine, it is still somewhat stunning to hear of a case of involving rich rural woman getting probation for hosting cocaine parties for a decade.
Might private prisons actually cost taxpayers more than public prisons?
The important question in the title of this post is prompted by this new piece in the New York Times, which is headlined "Private Prisons Found to Offer Little in Savings." Here is how the piece starts:
The conviction that private prisons save money helped drive more than 30 states to turn to them for housing inmates. But Arizona shows that popular wisdom might be wrong: Data there suggest that privately operated prisons can cost more to operate than state-run prisons — even though they often steer clear of the sickest, costliest inmates.
The state’s experience has particular relevance now, as many politicians have promised to ease budget problems by trimming state agencies. Florida and Ohio are planning major shifts toward private prisons, and Arizona is expected to sign deals doubling its private-inmate population.
The measures would be a shot in the arm for an industry that has struggled, in some places, to fill prison beds as the number of inmates nationwide has leveled off. But hopes of big taxpayer benefits might end in disappointment, independent experts say. “There’s a perception that the private sector is always going to do it more efficiently and less costly,” said Russ Van Vleet, a former co-director of the University of Utah Criminal Justice Center. “But there really isn’t much out there that says that’s correct.”
Such has been the case lately in Arizona. Despite a state law stipulating that private prisons must create “cost savings,” the state’s own data indicate that inmates in private prisons can cost as much as $1,600 more per year, while many cost about the same as they do in state-run prisons.
Some recent related posts on private prison sale plans in Ohio and Florida:
- "Effort to privatize Florida prisons raises questions of cost"
- "5 prisons to be put on block by state"
- ACLU of Ohio releases new report assailing Governor's plan to sell state prisons
- Robust debate in Ohio over Governor's plan to sell prisons to private company
In Arizona, there are "[m]ore conservatives joining push to change sentencing guidelines"
The quote in the title of this post is the headline of this effective lengthy article in from a local Arizona media outlet. Here are snippets from the reporting:
Since the late 1970s, state and federal lawmakers have reacted to rising crime and the illicit drug trade by mandating prison time for many non-violent offenses, ranging from driving under the influence to possession of small amounts of marijuana. Those sentencing guidelines also targeted repeat offenders regardless of whether their offenses were violent.
Advocates, generally offering a liberal perspective, have responded that eliminating the options of fines, work release, substance-abuse treatment and house arrest in favor of prison time can turn non-violent offenders into career criminals. Losing contact with their families, communities and jobs contributes to this, they argue.
As states face large budget deficits, calls for reforming sentencing for non-violent offenders also are coming increasingly from conservatives who call prison costs unsustainable....
The Goldwater Institute, a private think tank dedicated to limited government and free markets, has included alternative sentences for non-violent offenders in its recommendations for reducing the state budget.
Byron Schlomach, director for the Institute’s Center for Economic Prosperity, said judges and juries should be allowed to look at whether options other than incarceration would allow low-risk offenders to earn money to pay restitution and help cover the cost of their supervision. “Anything that’s cheaper than what we are spending on incarcerated individuals now -- that’s just fiscal sense,” he said. “So why wouldn’t we do that, especially if there’s evidence, and there is, that it’s at least as effective as a deterrent on future crime as the current system is.”
Schlomach said he sees a “weird confluence” of liberal and conservative arguments on the subject. “That just sounds all kinds of conservative to me, and it also sounds merciful to these other people who come from a different point of view,” he said.
Should the federal system welcome and encourage more plea deals with binding sentencing terms?
The question in the title of this post is prompted by (1) my presence at the USSC Annual Conference at which I will be discussing plea bargaining on Friday, and (2) this new article on SSRN by Wes Porter titled "The Pendulum in Federal Sentencing Can Also Swing Toward Predictability: A Renewed Role for Binding Plea Agreements Post-Booker." Here is the article's abstract:
Binding plea agreements once served an important function of counterbalancing the vast judicial discretion at sentencing. The federal judiciary enjoyed wide discretion in imposing a sentence; the government and defendant’s freedom to contract for an appropriate sentence mirrored that discretion. The United States Sentencing Guidelines (the Guidelines) effectively replaced, and marginalized the role of, binding plea agreements. Binding plea agreements became a stigmatized novelty in federal criminal practice. The valuable tool has remained underutilized and unavailable to criminal defendants for more than 20 years.
Aside from its legislative goals of uniformity and proportionality, the Guidelines promoted predictability and informed decision-making for the defendant. In its 2005 decision in United States v. Booker, the Supreme Court relegated the Guidelines to a mere sentencing “consideration” and introduced a new process in federal sentencing. The sea change that resulted from Bookerseemingly improved federal sentencing for the judiciary, the prosecution and the defense. After several years of “advisory Guidelines,” courts have exercised their discretion decidedly in favor of the criminal defendant imposing lower sentences than were called for when the Guidelines were mandatory. The fall of the Guidelines may benefit defendants statistically, yet the new process will never be as predictable and informative.
This Article argues that in addition to the swing toward increased judicial discretion and overall lower sentences, the pendulum also can swing toward predictability and informed decision-making for the defendant. Increased use of binding plea agreements in federal court could complement the progressive developments following Booker. After years of isolated and inconsistent use, binding plea agreements could again restore some predictability and informed decision-making for the defendant. This Article proposes that Congress should enact a new standard for judicial acceptance of binding plea agreements post-Booker, as well as policy and perception changes. While binding plea agreements are not appropriate in most cases, the parties must be permitted to enter into agreements for a specific sentence that is “reasonable” and consistent with Congress’ original intent underlying Rule 11(c)(1)(C).
I am eager to hear from practitioners whether they agree with this article's endorsement and recommendation for "increased use of binding plea agreements in federal court."
"Enron exec Andy Fastow nears prison release"
The title of this post is the headline of this new CNN piece. Here are snippets:
Former Enron executive Andrew Fastow has been transferred from prison to a halfway house, the last stage of incarceration before his scheduled release later this year, according to the federal Bureau of Prisons.
Fastow, who was chief financial officer at the now-defunct energy company, was moved on Monday to a facility in Houston, according to the bureau. Moving into a halfway house is a typical move for most prisoners during the last portion of their sentence. "It's a bridge, if you will, a transition period," said bureau spokesman Edmond Ross.
The purpose of the halfway house is for prisoners to reestablish family ties and adjust to society outside of prison, he said. Prisoners are allowed to leave the facility to go to their jobs, but their movements are still controlled. "They cannot come and go as they please," said Ross. "Their lives are restricted to the rules of the halfway house."...
Fastow pleaded guilty in 2004 to two counts of wire and securities fraud for his role in the accounting scandal that brought down Enron.... Fastow provided information on Enron's sketchy financial shenanigans, including the names of bankers who he considered complicit, to lawyers representing Enron shareholders.
May 18, 2011
On way to San Diego for USSC annual conferenceBlogging will be light today and likely for the rest of the week as I travel to the west coast to attend and participate in the US Sentencing Commission's annual conference in San Diego. I hope to be able to blog some of the doings, though SoCal trappings may keep me off line much of the day.
Fifth Circuit rules that secret sentencing was improper
As reported in this Houston Chronicle article, the Fifth Circuit late yesterday "ruled it was illegal for a judge to lock the public and the press out of a Houston courtroom while a man who was once one of the most wanted, feared and violent drug traffickers in the world was sentenced, without giving the Houston Chronicle a chance to challenge the secrecy." The full Fifth Circuit opinion in this matter is available at this link, and it starts this way:
This case involves a district court’s order to close the sentencing proceeding of a drug cartel leader without first giving the press and public notice and an opportunity to be heard regarding the decision to close the hearing. We conclude that the press and public have a First Amendment right of access to sentencing hearings, and that the district court should have given the press and public notice and an opportunity to be heard before closing the sentencing proceeding in this case.
May 17, 2011
"IMF head on suicide watch at NYC jail as he adjusts to life behind bars"
The title of this post is the headline of this latest AP update on the highest-profile sex offense case in the world right now (and perhaps ever?). Here are some interesting excerpts:
Guards at New York City’s massive Rikers Island jail complex are taking unusual precautions to make sure IMF chief Dominique Strauss-Kahn doesn’t come to any harm behind bars. The 62-year-old banker and diplomat has a whole jail wing to himself, a medical device to make sure he doesn’t stop breathing during the night and guards checking him 24 hours a day to make sure he doesn’t kill himself....
Since his arraignment Monday on charges that he tried to rape a hotel maid, Strauss-Kahn has been held at the city’s massive Rikers Island jail complex, home to thousands of prisoners serving short sentences or inmates awaiting trial. Because of his stature, Strauss-Kahn has been assigned to a facility at the jail that normally houses inmates with very contagious diseases, like measles or tuberculosis....
As a pre-trial detainee, Strauss-Kahn isn’t required to wear a prison uniform. He may bring his own clothing and wear what he chooses in his cell, whether it be designer suits, or something more casual. There are two exceptions: First, he has had to give up his shoes. All prisoners are required to wear standard-issue, lightweight, slip-on sneakers (although he is allowed to don regular dress shoes for court appearances, if he wishes). Secondly, to see visitors, he is required to put his civilian garb aside and don a gray jumpsuit, specially designed without pockets or other hiding places where contraband could be stashed.
Prisoners at Rikers island are not given an inmate number like in the movies, but are identified by a statewide criminal justice system code that sticks with them for life, even if they are incarcerated later somewhere else. Strauss-Kahn’s NYSID number is 09132366L.
Judge Weinstein's final order finding Eighth Amendment prohibits 5-year minimum term for young child porn offender
In March in this post, I reported on Judge Jack Weinstein's "Tentative Draft for Discussion Purposes" in United States v. C.R., in which Judge Weinstein suggesting a 30-month sentence was appropriate for a young child porn offender after deciding that application of the statutory five-year mandatory minimum would be constitutionally problematic. I have learned from a helpful reader that Judge Weinstein has now filed his final opinion in C.R. in which he decides that a five-year mandatory minimum prison term as applied to this defendant violates the Eighth Amendment's prohibition against cruel and unusual punishment. I have the full opinion available for download below, and here is just some of many notable passages from the very long opinion (which covers a lot more than just the constitutional issues discussed below):
The law described in this section, as well as the science and particulars of defendant‘s background, leads to the conclusion that, as applied to this defendant, a five-year term of imprisonment would be cruel and unusual. Requiring five-years of incarceration, most of it without effective treatment, would constitute a violation of the Constitution.
Mere peer-to-peer file sharing of pornography by teenage boys, even if it includes pictures of minors, does not signify the sort of social deviance which would support long minimum prison terms for such immature persons. A teenager confused about his developing sexuality in a splintered and dysfunctional family, who uses easily available Internet facilities to look at lewd pictures of children, is not fully responsible. The defendant was fifteen and had just entered puberty when he began viewing these pictures. And, even at nineteen, he was emotionally much younger than his chronological age.
Courts have recognized these developmental factors in cases involving teenagers and child pornography. Interest in lewd images of minors by one who is emotionally a minor himself does not manifest the same kind of sexual perversion as would a mature adult‘s focus on the same pictures. In United States v. Stern, 590 F. Supp. 2d 945, 953 (N.D. Ohio 2008) the district court emphasized the peer-level nature of the sexual interest when imposing a sentence far below the guideline range for a college student who had begun viewing child pornography at age fourteen. In addition to citing the scientific literature on "the unformed nature of the adolescent brain," id. at 953 n.6, it recognized that "the 14-year-old is acting on normal impulses in an unacceptable manner (and may well be unaware of the impact of his crime), whereas the forty-year-old is acting on deviant impulses and is expected to understand the terror that this crime inflicts upon its victims." Id....
A five-year minimum sentence as applied to this defendant serves no legitimate penological goal. "A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense" and therefore, unconstitutional under the Eighth Amendment." Graham, 130 S. Ct. at 2028. Neither "retribution," "deterrence," nor "rehabilitation," id. at 2028-2029, justifies a five-year mandated prison sentence for an adolescent, plus what could constitute lifelong strict supervised release. Excessive and unnecessary imposition of suffering and destruction of opportunity for a constructive life as a youngster constitutes cruel and unusual punishment. See David Gray, Punishment as Suffering, 63 Vand. L. Rev. 1619, 1692-93 (2010) (discussing relationship between suffering and punishment and arguing that "excessive suffering requires remediation").
One the one hand, treatment and supervision within the community are necessary for C.R. to mature into a responsible, productive, law-abiding individual. Requiring the defendant to spend the formative years of his young adulthood in a sex offender penal treatment unit, on the other hand, presents significant risks. Hr‘g Tr. 216, Jan. 26, 2011 (Testimony of Dr. Kaplan) ("He could spend three or five-years fantasizing about 12-year-old boys and being reinforced by pedophiles . . . and come out with more of an interest in young boys."). While the treatment program at FMC Devens will provide the defendant an opportunity for focused therapy, a sentence of five years in such an environment for an immature and impressionable defendant is counterproductive.
Ninth Circuit panel split on capital habeas appeal concerning IAC
Today in Leavitt v. Arave, No. 08-99002 (9th Cir. May 17, 2011) (available here), a panel of the Ninth Circuit split 2-1 when reviewing Idaho's appeal of the grant of habeas relief to a murder defendant sentenced to death. The authors of the rulings in this case listed on page one of the 37-page opinion provide knowledgeable readers with an immediate notion of the outcome: "Opinion by Chief Judge Kozinski; Dissent by Judge Reinhardt." Lest there is any uncertainty, here is the start of the majority opinion authored by Chief Judge Kozinski:
With fifteen strokes of his knife, Richard Leavitt slashed and stabbed Danette Elg to death in her bedroom. Then, as Ms. Elg lay dying on top of her punctured waterbed, Leavitt hacked out her womanhood — just as his ex-wife had seen him do to “play[ ] with the female sexual organs of a deer.” State v. Leavitt (Leavitt I), 775 P.2d 599, 602 (Idaho 1989). We decide whether Leavitt’s lawyer rendered ineffective assistance of counsel while trying to have him acquitted of the death penalty.
And here is the start of the dissent authored by Judge Reinhardt:
The circumstances of Richard Leavitt’s murder of Danette Elg are indeed horrendous. That alone should have been a signal that there was something radically wrong with Leavitt, who was otherwise a law-abiding citizen, a father and a husband. I agree with the trial judge who sentenced Leavitt to death that “the fact that” such a person “would do this act leaves one[ ] asking why.” Leavitt’s counsel, David Parmenter, failed to provide an answer to that question that could have saved his client’s life: Leavitt suffered from an organic brain disorder in the part of the brain responsible for regulating emotion and impulse control. Despite the majority’s many tangents and alternative holdings, Leavitt’s habeas petition concerns one simple point: whether counsel should have made a motion for the MRI examination of his brain that the courtappointed neurologist had recommended. Had Parmenter done so, the examination would have revealed Leavitt’s organic neurological disorder — powerful mitigating evidence that could well have altered the sentencing decision of the trial court. That alone is sufficient to resolve this case. Parmenter’s failure, despite the neurologist’s recommendation, to seek the examination that was necessary to establish the existence of Leavitt’s organic brain disorder unquestionably rendered his performance deficient; and that inexplicable conduct prejudiced his client under any reasonable standard. Not surprisingly, the United States District Court for the District of Idaho so found, and we are asked simply to affirm the lower court.
"Five Years for Opening a Bottle of Ketchup? Trying to Make Sense of New Jersey’s Patchwork Sentencing Guidelines"
The title of this post is the headline of this interesting new piece from The Jersey City Independent, which in turn reports on an interesting public policy report from the Drug Policy Alliance. Here is how the piece starts:
If you ever have to decide between opening a bottle of ketchup and placing it back on the supermarket shelf, or engaging in a fisticuffs with a consenting adult, go for the latter. Giving and taking punches in public might earn you a 30 day sentence, but popping that ketchup seal could cost you five years hard time. And if, by some chance of fate, you find yourself deliberating between attending a dog fight or punching someone in the eye, take a swing. The black eye will cost you 180 days in jail, but watching the dog fight could land you in prison for five years.
If the disparities between those sentences don’t seem rational, that’s because they aren’t. They are the product of decades of ad hoc legislative revision of the New Jersey criminal code that has resulted in overlapping charges, inconsistently graded offenses, and mandatory minimums whose penalties conflict with the values of New Jersey residents. Many of those irrationalities and redundancies have been compiled in “Crime and Punishment in New Jersey,” a new report published by the Drug Policy Alliance (DPA) that the group has been distributing in an attempt to create momentum for sentencing reform legislation.
In 1978, New Jersey, like the majority of states, adopted the Model Penal Code, a comprehensive code of criminal justice that was designed to incorporate most of the serious criminal activity a creative mind might engage in. In total, the version of the Model Penal Code adopted in New Jersey included 243 offenses and suboffenses, a large but not unmanageable number. But since then, Garden State legislators have added an additional 407 offenses and suboffenses. Which raises the question: Are New Jersey’s criminals so creative they have discovered 407 new ways to create mischief in 33 years, or has something gone wrong in the legislature?
According to the DPA, the fault lies with the legislature. In its study, the Alliance surveyed New Jersey residents about the seriousness of criminal offenses. They asked respondents to grade crimes by grouping them according to perceived seriousness. Respondents were also asked about what penalties should be assessed for crimes such as opening ketchup at the supermarket, watching a dog fight, or punching someone in the eye, and found that 90 percent of the time New Jersey residents believed the appropriate punishment was less severe than the criminal code currently calls for.
Often when respondents thought offenses were comparable (ketchup vs. fist fight; dog fight vs. black eye), the criminal code assigned wildly disparate penalties to them. “I think the big take-home message is really that voters’ positions on criminal sentencing are a lot more nuanced and reasonable than the general perception,” Roseanne Scotti says.
Scotti is the New Jersey state director of the DPA, and therefore most interested in the portion of the report that documents the public’s opinion of drug sentences. “I think most people have no idea you can get 10 or 20 years for a few marijuana plants in New Jersey,” she says, referencing one of the report’s findings.
Might Arizona mass murderer Jared Loughner be incompetent to stand trial?
The question in the title of this post is prompted by this Wall Street Journal article headlined "Loughner's Mental Competence Is Doubted." The piece starts this way:
Two federal court filings Monday in the criminal case of the man accused in the January shooting of Rep. Gabrielle Giffords and 18 others in Tucson, Ariz., strongly suggest that two health professionals who evaluated his mental state have determined he isn't competent to stand trial, according to legal experts.
The filings, one by the defense and one by the prosecution, indicate that a competency hearing for Jared Loughner scheduled in a Tucson federal court for May 25 could largely be a formality. Both filings agreed that the two doctors who evaluated Mr. Loughner wouldn't need to testify. The filings also said neither side would dispute the doctors' written reports.
If these reports, which are under seal, hadn't concluded Mr. Loughner was incompetent to stand trial, the defense would almost certainly be planning to put up a fight, experts said. "My initial gut reaction would be that both have found him not competent to stand trial," said Kurt Altman, a former assistant U.S. attorney in the Phoenix office who isn't involved in the case. Mr. Altman said defense lawyers wouldn't object to a finding of incompetence since it would delay Mr. Loughner's trial. Mr. Loughner could face the death penalty.
At the same time, prosecutors wouldn't be in a position to argue the findings of the two doctors, given that they pushed to have the competency exams done, say people familiar with the matter. A decision by Judge Larry Burns, who is presiding over the case, that Mr. Loughner was currently incompetent could postpone any trial of Mr. Loughner for months or even years, say legal experts.
In cases where a defendant is found incompetent to stand trial, the defendant is kept in custody until it is determined he is able to understand the charges against him and able to aid his lawyers in his own defense. Such people could be treated with drugs, possibly without their consent, legal experts said.