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July 2, 2011

"Cruel and Unusual Federal Punishments"

The title of this post is the title of this interesting and important new article by Professor Michael Mannheimer. Here is the abstract:

In recent years, federal prison sentences have often far outstripped state sentences for the same criminal conduct.  This is the result of the confluence of two trends.  First, crime has become increasingly federalized, so that the very same criminal conduct typically punished by state law, such as drug trafficking, gun possession, and child pornography offenses, is increasingly being punished in federal court.  Second, the federal sentencing guidelines and statutory mandatory minimum sentences for many of these offenses have grown so as to far exceed the sentences available in state court.

Virtually all federal defendants who have challenged their sentences as, “cruel and unusual punishment,” in violation of the Eighth Amendment have failed.  This is not surprising. The Supreme Court jurisprudence on cruel and unusual carceral punishments is extraordinarily deferential to legislative judgments about how harsh prison sentences ought to be for particular crimes.  This deferential approach stems largely from concerns of federalism, for all of the Court’s modern cases on the Cruel and Unusual Punishments Clause have addressed state, not federal, sentencing practices.  Thus, they have addressed the Eighth Amendment only as incorporated by the Fourteenth.  Indeed, one must go back a century to find a Supreme Court case addressing proportionality in the context of federal sentencing, and that case was highly atypical.  Thus, federal courts find themselves applying a deferential standard designed in large part to safeguard the values of federalism in cases where those values do not call for deference.

The task of this article is to re-discover the meaning of the, “pure” Eighth Amendment, unmediated by the Fourteenth.  Recent academic commentary about the original understanding of the Eighth Amendment correctly focuses our attention on the Clause’s main purpose of comparing a given punishment to those generally meted out at common law for the same conduct.  Yet these commentators fail to adequately appreciate the extent to which the Eighth Amendment, like the rest of the Bill of Rights, was an attempt by the Anti-Federalists to secure individual rights through the preservation of a robust form of state sovereignty.  Moreover, the Anti-Federalists, and their political heirs, the Republicans, rejected a, “pre-realist,” vision of common law in favor of an approach that recognized the common law as varying State to State.  Thus, the Anti-Federalists took a decidedly State-centered and State-specific approach to the common-law rights that the Eighth Amendment was designed to encapsulate.  And the views and general outlook of the Anti-Federalists are critical to a complete understanding of the Bill of Rights, for it was they who won the concession of the adoption of the Bill as the price of union.

This contextualized account of the ratification of the Eighth Amendment evidences a design to limit the power of the federal government to inflict punishment for crimes to the same extent that the States limited their own power to punish.  That is to say, whether a federal punishment for a crime is, “cruel and unusual,” can be answered only in reference to the punishment for the same conduct meted out by the States.  Moreover, the Anti-Federalists’ views on the nature of the common law indicate that the appropriate comparator is the State where the criminal conduct occurred, not the States generally. But, in either event, the standard for determining whether a federal sentence is “cruel and unusual” ought to be far more stringent than that used in reviewing Eighth and Fourteenth Amendment challenges to State sentences.

July 2, 2011 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Can a hunger strike by state prisoners in SHU have an impact?

The question in the title of this post is inspired by this new AP article, headlined "Pelican Bay prison inmates go on hunger strike." Here are the basics:

Dozens of inmates in an isolation unit at Pelican Bay State Prison went on a hunger strike Friday to protest conditions they describe as inhumane.

Advocates for the prisoners at the Security Housing Unit said inmates are subjected to solitary confinement and forced interrogations — the latter as prison officials try to elicit information about gangs.  "The inmates see this strike as their only shot at trying to get improvements," said Carol Strickman, an attorney with the group Legal Services for Prisoners with Children, which represents some of the striking inmates.

A lawsuit filed in 1990 accused officials at Pelican Bay of abusing inmates.  A federal judge ruled in the inmates' favor in 1995 and ended the case in March after determining the state corrections department had made sufficient reforms to protect inmates from abuse by guards.

Terry Thornton, a spokeswoman for the California Department of Corrections and Rehabilitation, said additional restrictions on those prisoners are needed to reduce the influence of gangs.  However, officials denied that prisoners in the unit are kept in solitary confinement or subject to forced interrogations.  "We encourage them to walk away from that (gang) lifestyle," Thornton said. "But it's their choice."

Several dozen inmates in the Security Housing Unit declined to eat their morning meal on Friday, advocates said.  The unit holds about a third of the 3,100 inmates at the maximum-security prison.

State prison officials confirmed the strike, though they did not immediately know how many inmates were participating.

The Security Housing Unit segregates prisoners from the general population who have been determined to be prison gang members or have committed a serious crime while in prison.  About 4,000 of the 162,000 inmates in the state corrections system are housed in such units, which exist at three other prisons in addition to Pelican Bay.

July 2, 2011 in Prisons and prisoners, Who Sentences? | Permalink | Comments (1) | TrackBack

July 1, 2011

Lots of notable news and notes on the death penalty as second half of eventful 2011 begins

Though white-collar crime and punishment, and crack guideline retroactivity, were the most interesting sentencing story lines the last week of June, a new month starts with lots of very interesting capital punishment stories from lots of different states:

Meanwhile, the folks at DPIC provide this mid-year update on death penalty developments so far in 2011:

Between January and June 2011, there have been 25 executions in nine states.  Of the 25 executions, only eight were carried out using the drug sodium thiopental, while the rest involved a new drug, pentobarbital.  Earlier in 2011, Hospira Inc., the sole U.S. manufacturer of sodium thiopental, announced that it will no longer manufacture the drug, forcing states to search for alternative sources or alternative drugs for their lethal injection protocols. 

Many states, inlcuding Alabama, Arizona, Mississippi, Ohio, Oklahoma, Texas, and South Carolina, have used pentobarbital instead of sodium thiopental in their executions in 2011.  Ohio is the only one of those seven states to use pentobarbital as the sole drug in its lethal-injection process.  Additionally, at least five states (Alabama, Georgia, Kentucky, Tennessee, and South Carolina) that acquired sodium thiopental through an overseas source have had the drug seized by the U.S. Drug Enforcement Administration.

In the first half of 2011, there have been 18 death cases in which a clemency was granted, commuting the defendant's sentence to life without parole. Fifteen of such pardons were in Illinois, where Governor Pat Quinn signed a bill that repealed the state's death penalty statute. Illinois' death penalty repeal bill, which was signed on March 9, goes into effect today.

July 1, 2011 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

US Sentencing Commission makes new crack guidelines retroactive

As detailed in this official press release, as expected the USSC "voted unanimously ... to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines that implements the Fair Sentencing Act of 2010." Here is more from the Commmission's press release:

Retroactivity of the amendment will become effective on November 1, 2011― the same day that the proposed permanent amendment would take effect ― unless Congress acts to disapprove the amendment. ...

Not every federal crack cocaine offender in federal prison will be eligible for a lower sentence as a result of this decision. The Commission estimates, based on Fiscal Year 2010 sentencing data, that approximately 12,000 offenders may be eligible to seek a sentence reduction.  The average sentence reduction for eligible offenders will be approximately 37 months, and the overall impact on the eligible offender population will occur incrementally over decades.  The average sentence for these offenders, even after reduction, will remain about 10 years.  The Bureau of Prisons estimates that retroactivity of the Fair Sentencing Act of 2010 amendment could result in a savings of over $200 million within the first five years after retroactivity takes effect.

The Commission’s vote to give retroactive application to the proposed amendments to the federal sentencing guidelines does not give retroactive effect to the Fair Sentencing Act of 2010. Only Congress can make a statute retroactive.  Many crack offenders will still be required under federal law to serve mandatory five- or 10-year sentences because of the amount of crack cocaine involved in their offenses.....

A federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and by how much that sentence should be lowered in accordance with instruction given by the Commission.  The ultimate determination will be made only after consideration of many factors, including the Commission’s instruction to consider whether reducing an offender’s sentence would pose a risk to public safety.

This New York Times report on the decision provides some notable quotes in reaction:

Calling the difference between crack and powder “cultural, not chemical,” Jim E. Lavine, the president of the National Association of Criminal Defense Lawyers, said that the old sentencing policy placed the heaviest penalties on minorities and the poor.  “A civilized society doesn’t mete out punishment based on a defendant’s culture or skin color,” Mr. Lavine said....

A number of lawmakers had opposed retroactive sentence reductions, arguing that they would endanger communities. Representative Dan Lungren, Republican of California, said in an interview that he was “very disappointed” in the commission. Mr. Lungren said he supported the 2010 law in part because it was not retroactive.  “That was not our intent,” he said.

Some recent related posts:

July 1, 2011 in Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

DSK to be freed from house arrest as victim's rape story being questioned

As reported in this new Wall Street Journal article, "Manhattan prosecutors have agreed to end the house arrest of former International Monetary Fund leader Dominique Strauss-Kahn following new revelations about a hotel maid who accused him of sexual assault."  Here is more:

Mr. Strauss-Kahn appeared in court Friday morning, and prosecutors are expected to also agree to end electronic monitoring.  They will keep his passport as part of the change in bail terms....

The developments come as both prosecutors and his defense team prepared to raise questions about the credibility of Mr. Strauss-Kahn's accuser, people close to the case said. Problems with the prosecution's main witness are expected to be made public at the hearing before State Supreme Court Justice Michael Obus....

Mr. Strauss-Kahn, 62 years old, has pleaded not guilty to charges of sexually assaulting the maid in his suite May 14 at the Sofitel hotel in Manhattan.  Prosecutors aren't expected to immediately ask for dismissal of the charges against Mr. Strauss-Kahn, who faces a seven-count indictment, people familiar with the matter said.

Prosecutors are expected to reveal in court that the maid told them she had been the victim of a gang rape in her home country of Guinea and later admitted that she had made the story up, a person familiar with the matter said.  Prosecutors also believe that she made some false statements about her asylum application and some details from the day of the alleged attack, the person said.

The revelations about the witness also involve her interaction with a man jailed on drug charges with whom she was taped in a telephone call, one person familiar with the situation said.  Prosecutors and defense lawyers met Thursday to discuss the issues....

The May 14 arrest of Mr. Strauss-Kahn, an international political figure, at New York's John F. Kennedy International Airport as he prepared to depart on a flight for Paris has generated headlines and debate around the world, cost him his job at the helm of the IMF and has apparently dashed his hopes for a run at the French presidency.  It has also fueled speculation in Mr. Strauss-Kahn's home country of conspiracies against him driven by politics and profit.

Prosecutors had previously said in court that the maid, a 32-year-old immigrant, had immediately cried out to witnesses upon leaving the room, indicating the veracity of her story.  Investigators also found DNA evidence from Mr. Strauss-Kahn at the scene, law-enforcement officials have said.

But the defense lawyers had indicated they would argue the encounter was consensual and hired investigators to scrutinize the woman's credibility.  In recent weeks, according to people familiar with the situation, investigations by the defense team and law enforcement have resulted in the discovery of the false statement by the maid to prosecutors and the association with the man jailed on drug charges.

July 1, 2011 in Celebrity sentencings, Procedure and Proof at Sentencing | Permalink | Comments (23) | TrackBack

"California given strict deadline to reduce prison population"

The title of this post is the headline of this new Los Angeles Times article, which gets started this way:

A three-judge court that has ordered California to reduce its prison population issued strict deadlines Thursday for what will amount to a reduction of 37,000 inmates in two years.

The special panel of federal judges set June 27, 2013, as the deadline for compliance, paying little heed to the U.S. Supreme Court's call for flexibility. In May, the high court cited California's cash crisis in suggesting that officials might need more time to resolve the overcrowding problem.

The three-judge court ruled in August 2009 that conditions in state prisons violated the Constitution's ban on cruel and unusual punishment. The inmate population — then exceeding 160,000 — was twice the number for which the state's 33 prisons were built, the court said, and the crowding resulted in deprivation of medical and mental health care for many inmates. By Dec. 27, the number of prisoners must be at or below 133,600, or 14,400 fewer than were in state custody last week.

Further cuts of 9,600 by next June and 6,400 by December 2012 were also ordered. In two years, the population must be no larger than 111,000. Some reductions have already been accomplished since the original court order.

July 1, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Fraudster gets 355 years less than federal prosecutors sought...

but still gets what amounts to an virtually an effective life sentences, as detailed in this Bloomberg report headined "Ex-Taylor Bean Chairman Farkas Gets 30 Years for $3 Billion Mortgage Fraud." Here are the details of a high-profile white-collar federal sentencing:

Lee Farkas, the ex-chairman of Taylor, Bean & Whitaker Mortgage Corp., was sentenced to 30 years in prison for leading a $3 billion fraud involving fake mortgage assets.

Farkas, who has been in custody since his conviction in April of 14 counts of conspiracy and bank, wire and securities fraud, was also ordered by U.S. District Judge Leonie Brinkema in Alexandria, Virginia, to forfeit more than $38 million. “I actually don’t believe you accept responsibility for these criminal acts,” Brinkema said today as she handed down the sentence. “This was a very serious series of crimes.”

Prosecutors said Farkas, 58, orchestrated one of the U.S.’s largest and longest-running bank frauds, which duped some of the country’s biggest financial institutions, targeted the federal bank bailout program and contributed to the failures of Taylor Bean and Montgomery, Alabama-based Colonial Bank....

Thomas O’Brien, counsel to the Federal Deposit Insurance Corp. as receiver for Colonial Bank, spoke at the sentencing as a victim of Farkas’s crimes. He said the collapse of Colonial Bank was the sixth-largest bank failure in U.S. history and the third largest failure since “the 2007 financial crisis.”...

Assistant Attorney General Lanny Breuer, head of the Justice Department’s criminal division, said he was pleased with the sentence even though it was less than what prosecutors had pushed for. “I think 30 years has a very powerful deterrent message,” Breuer said in an interview with reporters in the courthouse. “If that’s not a deterrent to you then you’re brain dead.”

In court papers, prosecutors sought 385 years or no less than 50 years. Prosecutors said in a sentencing memorandum that the recommended punishment would be consistent with sentences imposed on “similarly situated” white-collar defendants, such as Bernard Madoff and former WorldCom Inc. Chairman Bernard Ebbers. Madoff, 73, is serving a 150-year sentence for $17 billion in losses and Ebbers, 69, received 25 years for an $11 billion accounting fraud.

Brinkema in court today called a sentence of 385 years “silly.” Patrick Stokes, deputy chief of the Justice Department’s fraud section, told the judge today that the crimes committed by Farkas contributed to the “financial crisis of 2008” and that anything less than a life sentence would send the wrong message. “He killed a bank, Colonial Bank,” Stokes said. “He killed his own company, TBW.”

U.S. Attorney Neil MacBride in Alexandria said the 30-year term “ensures that Lee Farkas will spend the rest of his life in prison.”

William Cummings, one of Farkas’s lawyers, said his client is planning an appeal. He said the actual time Farkas will serve behind bars is about 25 years. Bruce Rogow, a lawyer for Farkas, urged Brinkema to send his client to prison for no more than 15 years....

Six conspirators to the fraud scheme who pleaded guilty have been sentenced by Brinkema to prison terms ranging from three months to eight years.

July 1, 2011 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (3) | TrackBack

June 30, 2011

"Poll shows support for death penalty strong, confidence in justice system weak"

The title of this post is the headline of this new piece from the Dallas Morning News, which provides this report:

Support for the death penalty remains strong in the U.S. according to a recent poll from Rasmussen Reports. Sixty-three percent of adults favor capital punishment, while 25 percent oppose it and 12 percent are undecided. Whites are more supportive than blacks and people over 30 years of age are more in favor than those under 30.

[In addition] less than half of adults nationwide believe the American justice system is fair to most Americans. Their biggest concern is that the guilty go free. Perhaps most disturbing is that confidence in the system has dropped sharply from a year ago.  Study the survey for yourself here.

Perhaps the nost notable tidbit from this Rasmussen poll, in my view, is this item: "More adults than ever report that crime in their community has increased over the past year, and most think the continuing bad economy will cause the crime rate to rise even higher."

June 30, 2011 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (32) | TrackBack

US Sentencing Commission voting today on making new FSA crack guidelines retroactive

As previously noted here and as indicated in this official public notice, this afternoon at a public meeting, the US Sentencing Commission will vote on whether and how to make the new reduced crack offense federal sentencing guidelines applicable retroactively to previously sentencing defendants.  The new guidelines reflect the 18-1 quantity ratio between crack and powder cocaine quantities that became the new federal sentencing standard after the Congress passed the Fair Sentencing Act of 2010.

As I have detailed in prior posts (some of which are linked below), a decision to make the crack guidelines retroactive would potentially impact the sentences of many thousands of federal prisoners, and this fact has made this issue a subject of considerable controversy.  Still, the smart money is on the Sentencing Commission voting to make the new crack guidelines retroactive with a few (but not too many) limitations on which previously sentencing defendants can get the benefit of the new lower guidelines.

A few related posts on this particular retroactivity decision before the USSC are linked below, and readers interested in a broader understanding of the FSA should check out this February 2011 issue of the Federal Sentencing Reporter on the FSA and those interested in a broader discussion of the last round of crack retroactivity should check out this April 2008 FSR issue on crack retroactivity:

I will be on the road and likely off-line until very late tonight, but the folks at FAMM are all over this issue, as evidenced by this new item on FAMM's homepage:

Today! Historic Sentencing Commission vote on retroactivity

At 1 p.m., the U.S. Sentencing Commission will vote on retroactivity of the crack guidelines.  FAMM's Mary Price told the Associated Press, "there is a tremendous amount of hope out there ... there is a potential that people could see their sentences reduced, some quite dramatically."  Learn more -- read FAMM's latest factsheet, "Myths and Facts on Crack Guideline Retroactivity" and other resources.  FAMM will also report live from the vote on Twitter.

June 30, 2011 in Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

District judge finds Eighth Amendment problem with stacked mandatories for juve gun offender

Thanks to this post at the Southern District of Florida Blog (which always has lots of interesting coverage of federal law and sentencing), I have learned of this important Eighth Amendment ruling based on Graham and the application of federal gun mandatories.  Here are key excerpts from Judge Cook's opinion in US v. Mathurin:

Here, Mathurin faces a mandatory minimum 307-year sentence.  Because Congress hasabolished the federal parole system, this sentence gives Mathurin no possibility of release basedon demonstrated maturity and rehabilitation.  A significant portion of this sentence is comprisedof mandatory 25-year consecutive sentences required under § 924(c)(1)(D)(ii), which provides:

[N]o term of imprisonment imposed on a person under this subsection shall runconcurrently with any other term of imprisonment imposed on the person,including any term of imprisonment imposed for the crime of violence or drugtrafficking crime during which the firearm was used, carried, or possessed.

Under Graham, this provision of § 924(c)(1)(D) is unconstitutional as applied to Mathurin, a juvenile offender convicted of non-homicide offenses.  To apply the statute in accordance withthe Eighth Amendment, severance of the constitutionally offensive portion of § 924(c)(1)(D) is necessary....

[C]onsistent with Congress’s intent and with Supreme Court precedent on thedoctrine of severability, I find that the language of § 924(c)(1)(D)(ii) mandating consecutive sentences for subsequent violations is excisable from the remainder of the statute as it applies to Mathurin and similarly situated juvenile defendants.  This holding is limited to the unique circumstances of this case, which involves a non-homicide juvenile offender sentenced under § 924(c)(1) for multiple counts of possession of a firearm during the commission of a violent crime; it does not affect the consecutive sentence requirement as applied to adult offenders or juvenile offenders under different factual circumstances....

Under this narrow holding of this case, Mathurin’s sentence amounts to 492 months in prison.  Additionally, under 18 U.S.C. § 3624(b), Mathurin may reduce his sentence by 54 days per year of incarceration if he “display[s] exemplary compliance with institutional disciplinaryregulations.”  Pursuant to 18 U.S.C. § 3624(b), Mathurin may reduce his total sentence byapproximately 5.5 years.  Thus, if Mathurin demonstrates maturity and rehabilitation, he may beeligible for release at around the age of 53.

Mathurin’s total term of incarceration, consideringthe potential reductions under 18 U.S.C. § 3624(b), complies with both the Eighth Amendmentand Congress’s statutory requirements.

June 30, 2011 in Assessing Graham and its aftermath, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

"Sentencing-overhaul law to reduce Ohio's prison population"

Criminal-law-art0-gfnd7k9s-10630gfx-criminal-law-tab-eps The title of this post is the headline of this article in today's Columbus Dispatch.  Here are the details:

The tough-on-crime cycle that began in the 1980s came full circle yesterday when Gov. John Kasich signed criminal-sentencing reform that could reduce the prison population by several thousand inmates in the next three years.

Former Attorney General Jim Petro, who was there to watch Kasich sign House Bill 86 into law, said he was relieved. "It didn't work then, and it isn't working now," Petro said of the crime crackdown that he supported as a Republican state lawmaker and enforced as attorney general from 2003 to 2007.  He said the 1980s view of crime is too costly to maintain.

It is projected that the reform law will save taxpayers $46.3 million over three years, while reducing the prison population by about 7.5 percent.  State prisons now hold 50,655 inmates, about 31 percent over the design capacity.

Legislative backers consistently said savings would reach $78 million, based on an estimate from a study done for the state by the Council of State Governments.  But Carlo LoParo, spokesman for the Department of Rehabilitation and Correction, said the actual savings will be almost $46.3million.  He said that's because not all elements proposed by the study ended up in the final version of the legislation.

The law will divert some nonviolent offenders, including drug offenders, to community programs; give inmates the chance to earn up to 8 percent credit off their sentences by completing treatment and training programs; and allow the release of inmates, with court approval, after they have served at least 80 percent of their sentences.  The law also equalizes penalties for crack and powder-cocaine possession and raises the threshold for a felony theft charge to $1,000 from $500.

Kasich signed the bill in an Ohio Senate hearing room jammed with lawmakers and past and present prison officials.  "I get emotional about this because I think the passage of this bill and the changing of this law is going to result in the saving of many, many lives, maybe even thousands," Kasich said.

Ohio prisons director Gary C. Mohr called it "a day of hope."  He said the law will keep nonviolent offenders out of prison where they now come into contact with -- and are negatively influenced by -- long-term offenders and violent gang members....

Other provisions of the law will require the prisons agency to issue a report justifying why they are keeping inmates 65 or older, provide certificates to help former inmates get jobs and create an instant diversion program for shoplifters.

The bill also includes reforms related to youth offenders.  "These reforms will mitigate placing kids on a conveyor belt to adult crime," said Judge Theresa Dellick of Mahoning County Juvenile Court.

June 30, 2011 in Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

June 29, 2011

Split Third Circuit applies Padilla retroactively, but disagrees on prejudice determination

A notable new Third Circuit ruling today in US v. Orocio, No. 10-1231 (3d Cir. June 29, 2011) (available here), gets started this way:

On October 7, 2004, pursuant to a plea agreement and on advice of counsel, Gerald Orocio pled guilty in the United States District Court for the District of New Jersey to one count of simple possession of a controlled substance in violation of 21 U.S.C. § 844(a). This 2004 conviction triggered removal proceedings initiated against Mr. Orocio some years later. Removal proceedings were initiated in 2007 or later. The record does not establish the precise date. Mr. Orocio then filed a petition for writ of error coram nobis in the District Court to challenge the plea conviction, arguing that his attorney’s failure to advise him of the immigration consequences of pleading guilty to a federal drug charge constituted ineffective assistance of counsel in violation of the Sixth Amendment rights pronounced in Strickland v. Washington, 466 U.S. 668 (1984). On January 6, 2010, the District Court denied Mr. Orocio’s petition, and Mr. Orocio filed the timely appeal now before us. During the pendency of this appeal, the Supreme Court decided Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473 (2010). In Padilla, the Court, addressing for the first time a factual scenario akin to Mr. Orocio’s, ruled that Strickland requires plea counsel to advise an alien defendant of the potential removal consequences of a recommended plea. The government contends that Padilla’s holding is not pertinent to Mr. Orocio’s situation for the reason that Padilla, decided in 2010, announced a “new rule . . . not dictated by precedent existing at the time [2005] the defendant’s conviction became final.” Teague v. Lane, 489 U.S. 288, 301 (1989). Hence, in the government’s view, Padilla lacks retroactive applicability. For the reasons that follow, we hold that Padilla is retroactively applicable on collateral review, and we therefore vacate the judgment of the District Court and remand for further proceedings.

The dissent gets started this way:

I join the majority’s opinion as to section III, parts A, B, and C, but I cannot join section III, part D (“Was Mr. Orocio prejudiced by his plea counsel’s ineffectiveness?”).  In particular, I disagree with my learned colleagues that Padilla v. Kentucky, 559 U.S. ___, 130 S. Ct. 1473 (2010) compels the conclusion that our jurisprudence originating in United States v. Nino, 878 F.2d 101 (3d Cir. 1989) “is no longer good law.”  Majority Op. 22.  I believe our jurisprudence remains fully intact and I therefore respectfully dissent. I also disagree with the majority as to its conclusion and judgment.

June 29, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

"How California and Texas May Help End the Death Penalty"

The title of this post is the headline of this notable new commentary by Conor Friedersdorf at The Atlantic.  The sub-heading explains the theme of the piece: "In the Golden State, it costs too much to execute the guilty -- and in the Lone Star State they've likely killed an innocent."  And here is the closing paragraph:

California or Texas getting rid of capital punishment would be a significant blow against the practice. And taken together, events in those states suggest that it's very difficult to get the death penalty right.  Due diligence to ensure innocents aren't executed can easily get so costly that continuing to pursue capital cases is a bad use of taxpayer resources.  And insufficient due diligence can result in the execution of an innocent person -- something most voters find even more barbaric and revolting than the notion of strapping a legitimately guilty man to an elephant.

June 29, 2011 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (10) | TrackBack

Bold (and misguided?) prediction of 20-25 years in the federal pen for Blago

Attorney Jami Floyd has this notable new commentarysuggesting that a very stiff sentence is in Rod Blagojevich's future.  The commentary is titled "His Own Worst Enemy: Why Rod Blagojevich Should Expect a Stiff Sentence," and here are excerpts:

[W]hatever the relative arguments for or against conviction, the jury has spoken.  Now, comes the penalty.  It will take weeks, if not months to formulate the sentence in the case. At first blush, the sentence is somewhere in the neighborhood of 250-300 years.  As the verdict came down Monday, the pundits were quick to point out that Judge James Zagel will have to follow the federal sentencing guidelines, leaving most to surmise that Blago will get somewhere in the neighborhood of 7-10 years.

I think Blagojevich will do much more time, however, and here's why:

1. His Testimony....

2. The Public Trust....

3. The Madoff Example....

You will recall that many of the experts who are now predicting a ten-year sentence for Blagojevich also predicted a ten-year sentence for Bernard Madoff.  Madoff was older (71). He was also convicted in federal court and the sentencing guidelines in that case suggested a 13-year term.  Instead, Madoff was sentenced to 150 years and will never see the light of day. I predict a slightly kinder, gentler sentence for Blagojevich; something in the order of 20-25 years.

I am not yet ready to make my own Blago sentencing predictions, but I am ready to assert that this sentencing commentary seems quite misguided.  Blago's crimes strike me a radically different than Madoff's, especially because there are no proverbial widows or orphans who had their life savings wiped out by Blago.  (And I am certain that Floyd is badly mistaken when asserting that Madoff's guideline calculation called for only a 13-year term from bad Bernie.)

That all said, if Judge Zagel is eager to send a stern message with his sentencing of Blago, I do think it is quite possible that Blago will having to count down years, not merely months, when ultimately in federal prison awaiting release.

Some recent related posts:

June 29, 2011 in Celebrity sentencings, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"Writing About Criminal Punishment?"

The question in the title of this post is posed by colleagues whom have asked me to post this announcement:

If you're writing about a criminal punishment-related topic this summer, consider participating in the ABA-AALS joint conference "Reducing Our Reliance on Incarceration," October 27-28 in D.C.  In addition to a fantastic line-up of confirmed speakers, there will be an opportunity to present works-in-progress in a roundtable format, scheduled for the first afternoon of the conference, Oct. 27th.  Be on the look-out later this summer for a Call for Submissions (helpfully timed to coincide to when you might be uploading your abstract to Express-o).  If you'd like more information before then, feel free to contact Giovanna Shay at gshay@law.wne.edu.

June 29, 2011 in Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Georgia execution raising new questions (and more litigation) about new drug protocols

As detailed in this AP article,which is headlined "Ga. Execution Is Fodder for Challenges to New Drug," a notable recent execution is prompted the usual classic complaints from lawyers for death row defendants. Here is how the article begins:

The thrashing, jerking death of Roy Willard Blankenship has lawyers for death row inmates plotting fresh arguments against the drug used to execute him, even though they may never be able to prove that it caused the spasms in his last moments.

Medical experts say it's possible that Georgia prison staff botched the procedure last week using a controversial new sedative, that Blankenship had some sort of jarring reaction to the drug, or even that he faked it. Still, defense attorneys around the nation say they plan to cite Blankenship in requests to stop executions using pentobarbital, a chemical being adopted by a growing number of states as they run out of another commonly-used drug.

Blankenship jerked his head several times, mumbled inaudibly and appeared to gasp for breath for several minutes after he was pumped with pentobarbital on Thursday in Georgia's death chamber. Inmates are usually much more still during a lethal injection, but medical experts are split about what whether Blankenship's movements were a sign that his execution was bungled.

"As he's going to sleep, there could be many kinds of reactions. He could have had the same reaction with sodium thiopental," which was once the predominant execution drug, said Dr. Howard Nearman, who chairs the anesthesiology department at Case Western Reserve University's medical school. "And he could have been faking it. Anything's possible."

Georgia's prison department has stopped short of publicly launching an investigation, but said in a statement it will work with the state attorney general's office to ensure "execution procedures are medically appropriate."

Whatever conclusions the state reaches, defense attorneys said they are planning to invoke Blankenship's execution in court filings as evidence that pentobarbital could violate the ban on cruel and unusual punishment. "It is clear that something went very wrong during the Blankenship execution and lawyers challenging lethal injection in other states will be taking a very close look at what happened," said Ty Alper, a California attorney who represents several death row inmates and works with the death penalty clinic at the University of California-Berkeley.

The execution of Blankenship, condemned for the 1978 murder of an elderly Savannah woman, was the first in Georgia using pentobarbital as part of a three-drug execution combination. The state was forced to switch after it surrendered its supply of sodium thiopental to federal officials amid an investigation into how the drug was obtained.

Georgia is one of several states that have adopted pentobarbital, which is commonly used to destroy dogs and cats, since the sole U.S. manufacturer of sodium thiopental stopped making it in 2009 and dropped plans to resume production earlier this year.

Among the objections to the new drug were multiple challenges by Blankenship's attorneys, who argued in state and federal court that it could cause him needless pain and suffering. Each request was rejected.

As the injection began, Blankenship jerked his head toward his left arm and began rapidly blinking. He then lurched toward his right arm, lunging twice with his mouth wide open as if he were gasping for air. A minute later, he pushed his head forward while mouthing inaudible words. His eyes never closed. The movements stopped within three minutes, and he was declared dead 12 minutes later.

June 29, 2011 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (3) | TrackBack

June 28, 2011

Judge Denny Chin and Bernie Madoff talk about a sentence of 150 years

The New York Times has this fascinating new lengthy article about the famous sentencing of an infamous white-collar offender.  The piece is headlined "Judge Explains 150-Year Sentence for Madoff, and here is how it starts:

With the sentencing of Bernard L. Madoff only a week away, Judge Denny Chin received a letter from Mr. Madoff’s lawyer asking for a prison term substantially below the 150-year maximum.  The lawyer, Ira Lee Sorkin, listed several reasons, including Mr. Madoff’s confessing to his sons, knowing he would be turned in; his “full acceptance” of responsibility for his crimes; and his efforts to assist in the recovery of lost assets.

Citing data that showed Mr. Madoff, who was then 71, could expect to live about 13 more years, Mr. Sorkin asked for a term of 12 years — “just short of an effective life sentence,” as he put it — suggesting that Mr. Madoff might be allowed a year of freedom before he died. Mr. Sorkin also proposed another option: 15 to 20 years.

Judge Chin says he understood Mr. Sorkin’s goal.  “It’s a fair argument that you want to give someone some possibility of seeing the light of day,” the judge said, “so that they have some hope, and something to live for. And,” he added, “that was one of the struggles in Madoff.”  

Judge Chin said he quickly rejected the idea of a 12-year sentence for Mr. Madoff, but pondered whether 20 to 25 years might be acceptable.  The judge ultimately concluded that even that “would have been just way too low.”

“In the end, I just thought he didn’t deserve it,” he said. “The benefits of giving him hope were far outweighed by all of the other considerations.”

Judge Chin would impose a term of 150 years on Mr. Madoff, perhaps the most stunning and widely discussed sentencing in the history of American white-collar crime.  In doing so, he seemed to find a way to translate society’s rage into a number.

Two years later, Judge Chin’s recollections resurrect all the anger, shock and confusion that surrounded Mr. Madoff’s crimes, and provide a rare peek at the excruciating pressure faced by a judge who had to balance the law, the public’s emotions and his own deeply held beliefs while meting out a sentence that was just and satisfied the court’s need to send a message.

Judge Chin agreed to an extensive series of interviews as part of a broader look into his sentencings in Federal District Court in Manhattan, which will appear in a later article. “Most judges will tell you sentencing is the most difficult thing we do,” he said.

The New York Times also interviewed Mr. Madoff, who offered his first comments about the judge and the sentence, which will have occurred two years ago on Wednesday.  Mr. Madoff, speaking by phone from federal prison in Butner, N.C., said he believed that Judge Chin went along with “the mob psychology of the time.”

“Explain to me who else has received a sentence like that,” Mr. Madoff said.  “I mean, serial killers get a death sentence, but that’s virtually what he gave me.  I’m surprised Chin didn’t suggest stoning in the public square,” he added.

This piece has a lot more quotes from Judge Chin, and this companion piecehas more interesting quotes from Madoff.  Here is an excerpt from that piece: 

Bernard L. Madoff remains upset that Judge Denny Chin did not give him a shorter term, which might have allowed him the chance someday to regain his freedom, even as a very old man.... “[Q]uite frankly, there’s a big difference with dying in prison, you know, and dying outside with your family.”

Judge Chin has said in recent interviews that he considered a sentence that might have allowed Mr. Madoff to be freed when he is in his 90s.  But he concluded that Mr. Madoff simply did not deserve it, and in court called his conduct “extraordinarily evil.”

Mr. Madoff, in a recent series of interviews and e-mails, took issue with the judge’s description. To characterize him as “this monster and this evil person,” he said, “I just think that was totally unrealistic and unfair.”

“In my mind, Chin was anything but fair, with zero understanding of the industry,” Mr. Madoff added.  He said the judge had made him “the human piñata of Wall Street,” while financial firms and government officials “walk away free.”

“Remember,” he said, “they caused the recession, not me.”...

He said he had pleaded guilty to spare his family the trauma and expense of a trial.  Did he expect a long sentence?  Yes, he said. “But, did I think it was going to be 150 years?  No.”

June 28, 2011 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (14) | TrackBack

You make the sentencing call: What sentence should Blago get?

As highlighted by this Chicago Tribune article, which is headlined "Rod Blagojevich sentencing: Experts weigh in on possible prison term," there is already no shortage of speculation as to what kind of sentence the former Governor of Illinois will be getting following his conviction on 17 counts of corruption in federal court yesterday.  Here is some of that speculation:

On paper at least, former Gov. Rod Blagojevich could be sentenced to as much as 300 years in prison following his conviction Monday on 17 counts of corruption. But how much does he really face?   Seasoned criminal-defense attorneys and former prosecutors consulted by the Tribune estimate Blagojevich could be looking at about 10 years, based on recent public corruption sentences here.  The sentence could take months to formulate.

While many factors will go into the decision by U.S. District Judge James Zagel, Blagojevich's unorthodox strategy to repeatedly go public with his claims of innocence could come back to haunt him, the experts said.  His conviction also means Blagojevich's decision to testify could hurt him at sentencing if the judge concludes the former governor lied under oath, they said.

Zagel's displeasure with the former governor's behavior has been on display at his retrial as well as the first trial last summer that ended with the jury largely deadlocked except for one guilty count.  The judge "is not going to sentence him on who he is," veteran attorney Robert Loeb said of Blagojevich. "He is going to sentence him on what he has said and done."

Blagojevich already faces sentencing for lying to the FBI, the lone count on which he was convicted at the first trial.  That jury deadlocked on the remaining counts, setting the stage for the retrial.

Before Blagojevich is sentenced, a probation officer using federal sentencing guidelines will calculate the range of punishment faced by Blagojevich.  Then prosecutors and Blagojevich's lawyers will argue about why more time should be added or shaved off.  Since the sentencing guidelines were made advisory and not mandatory about six years ago, Zagel has wide discretion to impose the sentence he thinks is just and fair....

The experts said Zagel is likely to punish Blagojevich as well as a deterrent for other elected officials.  With four Illinois governors convicted — three on charges related to their office — since the 1970s, Zagel could decide to send a strong message.  "Apparently the convictions have not served as a deterrent to the culture of corruption," Loeb said.

As suggested in this article, the way in which the guideline range gets calculated for Blago will be subject to much discussion and debate.  And yet, this unique prosecution hardly seeming like it is within the "heartland" of the usual political corruption offenses; plus, the sentencing judge now has a distinct obligation to work through all the 3553(a) sentencing factors to decision what kind of sentence would be "sufficient but not greater than necessary" to achieve congressional sentencing purposes.

As the question in the title of this post suggests, though I am interested in reader predictions as to what Blado will get, I am especially keen to hear what folks think he should get.  Months?  Years? Decades?  Severe lternative sentencing terms (like daily head-shavings)?  Feel free to answer with clever Blago jokes, though I am turly interested in what folks truly think ought to be Blago's punishment.

June 28, 2011 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

"Rethinking the Indefinite Detention of Sex Offenders"

The title of this post is the title of this notable new piece by Fred Vars now available via SSRN.  Here is the abstract:

Thousands of sex offenders in the United States are being held indefinitely under civil commitment programs.  The analysis in this Article suggests that none (or precious few) belong there. Specifically, in a large dataset, an instrument as good as the one most widely used by experts (the “Static-99”) could not identify even one sex offender who met the legal standards for commitment. Supplementing such instruments with additional information appears not to improve matters, so the failure of the instrument is profoundly disturbing.

There are three possible responses: (1) improve instruments to meet existing standards; (2) lower the standards; and (3) abandon sex offender civil commitment.  This Article focuses on the first response, identifying and correcting flaws in the most widely-used instrument. But the greater significance of the Article is to reframe the debate around the other two potential responses.  Can we predict the future well enough to justify the indefinite detention of “dangerous” people?

June 28, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Do would-be white-collar offenders actually "get the message" from long sentences?

The question in the title of this post is prompted by this new piece by Professor Peter Henning from the New York Times headlined "Long Sentences Send a Message Few May Hear."  Here are excerpts:

The Justice Department has asked for a sentence of as much as 385 years for Lee B. Farkas, former chief executive of the Taylor, Bean & Whitaker Mortgage Corporation, who was convicted of orchestrating a $2.9 billion fraud that caused the collapse of Colonial Bank.  The reason for seeking such a severe penalty is to “draw the attention of corporate executives” to the potential for severe punishments for fraudulent activity, but the question is whether anyone will actually listen.

Mr. Farkas was convicted by a jury on 14 counts for selling falsified mortgage loans in a scheme that lasted from 2002 to 2008, and then trying to orchestrate a $533 million investment by the federal government through the Troubled Asset Relief Program to keep Colonial Bank afloat. Prosecutors say that he diverted some $40 million from Taylor Bean for personal investments in bars in Atlanta and Fort Lauderdale along with various trinkets, including a $28 million jet....

In order to grab the attention of other executives, Justice Department officials have asked for more than just a life sentence, instead requesting the maximum term for each charge to be served consecutively, which adds up to 385 years.

In seeking a punishment even greater than that imposed on Bernard L. Madoff, now serving a 150-year sentence, the Justice Department wants to use Mr. Farkas’s sentence as an example to other corporate officers who might be tempted to stray into illegality. According to prosecutors: “Sentencing him to the maximum penalty allowed by law will send the most forceful and unequivocal message to senior corporate executives that engaging in fraud and deceit in order to pump up your company or line your own pockets is unacceptable and will have severe consequences.”...

It is an interesting question whether the “unequivocal message to senior corporate executives” from a particularly harsh sentence would in fact be heard.  I think the answer is that it would not. 

Taylor Bean was a privately held company based in Ocala, Fla., and its primary lender, Colonial Bank, was based in Montgomery, Ala. Both were far from the major financial and banking centers. Taylor Bean was not a major player in the mortgage-backed securities market, and the prosecution took place somewhat off the beaten path for financial prosecutions: in the Eastern District of Virginia in Alexandria, not in New York where it might have garnered more attention....

It is unlikely that Mr. Farkas will become the face of the government’s efforts to root out criminal conduct arising from the financial maelstrom that hit in 2008.  The intended audience for the government’s recommendation may well write off whatever sentence Mr. Farkas receives as hardly a blip on their radar screen.  Packaging fake mortgages and diverting corporate funds to private ventures like bars is not something any self-respecting Wall Street executive would ever stoop to doing, at least so the thinking might go.  Mr. Farkas can be classified an outlier who engaged in the type of naked fraud that corporate executives would never be so crass as to try, at least in their own minds....

In United States v. Martin, a case involving the sentencing of a former chief financial officer at HealthSouth, the United States Court of Appeals for the 11th Circuit asserted that “because economic and fraud-based crime are more rational, cool, and calculated than sudden crimes of passion or opportunity these crimes are prime candidates for general deterrence.”

I wonder whether corporate executives can be deterred by sentences given to others when they can rationalize misconduct they might engage in as necessary to preserve the company or to make a quarterly estimate, and they would never be caught doing something blatantly illegal.  Even Mr. Madoff did not view himself as doing anything particularly troublesome while taking money from new investors and passing much of it on to old investors -- he even described some of his victims as “greedy.”

If executives can convince themselves that there’s nothing “really” wrong with what was done, like inflating revenue or paying a foreign official to obtain a contract, because there was a good reason for doing it, then the likelihood of being deterred by a long prison sentence seems fairly minimal.  Corporate executives might not be good candidates for deterrence because they perceive themselves as different from -- and often better than --those who have been caught and punished, even if they are not.

Recent related post:

June 28, 2011 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

June 27, 2011

California legislator offers bill to put state death penalty repeal on 2012 ballot

As detailed in this local article, a California "lawmaker on Monday introduced a bill seeking a public vote on whether California should abolish capital punishment and convert death sentences to life in prison, citing a study that said most condemned inmates die of suicide or old age despite billions in taxpayer costs." Here is more:

Democratic Sen. Loni Hancock, of Berkeley, said the state can no longer afford the cost of trying capital cases, defending them through a lengthy appeals process and housing inmates in the nation's most populous death row....

"Capital punishment is an expensive failure and an example of the dysfunction of our prisons," Hancock said in a statement. "California's death row is the largest and most costly in the United States. It is not helping to protect our state; it is helping to bankrupt us."...

There are 714 California inmates now awaiting execution. That's nearly twice the number than in Florida, the state with the next largest death row population, according to the Death Penalty Information Center in Washington, D.C.

On average, executions take 20 years to carry out from the time of sentencing. No one has been put to death in California since 2006 because of an ongoing legal challenge to how the state carries out executions by lethal injection and, more recently, a shortage of execution drugs.

Of inmates who had been awaiting execution, 78 have died of suicide or natural causes. Hancock's bill would amend state law to require life in prison without parole for those convicted of what are now capital crimes. It would put the question before voters on the November 2012 ballot.

One Republican lawmaker said Hancock's bill was misguided. "I appreciate that they're trying to save money, but I don't think we should put a price on justice," said Sen. Joel Anderson, of La Mesa.

Anderson, vice chairman of the Senate Public Safety Committee, said costs could be reduced by streamlining the appeals process for death row inmates and carrying out executions more quickly. "Death row was never intended to be a retirement home," he said....

Hancock needs only a majority of lawmakers to approve her bill in a Legislature controlled by Democrats. Gov. Jerry Brown, also a Democrat, has said he personally opposes the death penalty but defended the law when he was attorney general.

June 27, 2011 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (3) | TrackBack

"Jury Convicts Blagojevich"

The title of this post is the headline of this Wall Street Journal piecereporting on the outcome of a high-profile retrial.  Here are the details:

A federal jury on Monday found former Illinois Gov. Rod Blagojevich guilty of 17 counts of corruption, including trying to sell the U.S. Senate seat vacated by President Barack Obama.  The jury found Mr. Blagojevich not guilty on one of 20 corruption counts in his second trial and deadlocked on two other counts.  The verdicts came more than two years after Mr. Blagojevich, 54 years old, was arrested by federal agents.

Jurors told the judge they couldn't agree on two counts and were confident they wouldn't concur even if they kept deliberating.  Scores of onlookers gathered outside the courthouse to await the verdict.  Mr. Blagojevich arrived looking pale and shook hands and kissed a woman on the cheek when she wished him good luck.

The verdict was a victory for U.S. Attorney Patrick Fitzgerald, who initiated "Operation Board Games" just a few months after Mr. Blagojevich took office.  In the hours after the then-governor's arrest, Mr. Fitzgerald said he had "interrupted a political corruption crime spree" and that Mr. Blagojevich had "put a for-sale sign on the naming of a United States Senator."...

Unlike his first trial, in which the former Chicago congressman escaped conviction on 20 of 21 counts, Mr. Blagojevich testified for seven days at his second trial.  He said his intent was to use the seat as leverage to pass legislation that would have benefited the residents of Illinois....

After court was dismissed, Mr. Blagojevich hugged his wife and kissed her on the top of her head.  Mr. Blagojevich was found guilty on counts including wire fraud and attempted exortion.  He was found not guilty of soliciting bribes.

His attorneys have until July 25 to request a retrial.  The judge told Mr. Blagojevich he may not travel outside the northern district of Illinois without permission of the court. "That doesn't mean I will never grant permission," Judge Zagel said.

Among other notable features, the conviction of Blagojevich now raises lots of interesting issues in the application of the 3553(a) sentencing factors.  Readers are highly encouraged to suggest they think would be "sufficient, but not greater than necessary" for this former Governor of Illinois.

June 27, 2011 in Celebrity sentencings, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (4) | TrackBack

Justice Scalia's amusing assault on ACCA jurisprudence in dissent from denials of cert

As mentioned briefly in this prior post, Justice Scalia got in another complaint about the vagueness of the Armed Career Criminal Act as he dissented from a denial of cert in a set of ACCA cases.  Here is the heart of his complain from this entertaining little opinion in Derby v. US:

Before us are petitions for certiorari by criminal defendants asking us to decide whether four more of the “vast variety of . . . criminal offenses” that we have not yet addressed, see Sykes v. United States, ante, at 2–4, 7 (SCALIA, J., dissenting), are crimes of violence under the residual provision of the Armed Career Criminal Act (ACCA).  See 18 U. S. C. §924(e)(2)(B)(ii)....

How we would resolve these cases if we granted certiorari would be a fine subject for a law-office betting pool.  No one knows for sure.  Certainly our most recent decision interpreting ACCA’s residual clause, Sykes v. United States, ante, p. 1, would be of no help.  The “rule” we announced there, as far as I can tell, is as follows: A court must compare the degree of risk of the crime in question with the degree of risk of ACCA’s enumerated offenses (burglary, extortion, arson, and crimes involving the use of explosives) as a “beginning point,” ante, at 6–7; look at the statistical record, which is not “dispositive” but sometimes confirms “commonsense conclusion[s],” ante, at 8; and check whether the crime is “purposeful, violent, and aggressive,” unless of course the crime is among the unspecified “many cases” in which that test is “redundant with the inquiry into risk,” ante, at 11.  And of course given our track record of adding a new animal to our bestiary of ACCA residual-clause standards in each of the four successive cases we have thus far decided, see ante, at 2–4 (SCALIA, J., dissenting), who knows what new beasties our fifth, sixth, seventh, and eighth tries would produce?  Surely a perfectly fair wager.

If it is uncertain how this Court will apply Sykes and the rest of our ACCA cases going forward, it is even more uncertain how our lower-court colleagues will deal with them. Conceivably, they will simply throw the opinions into the air in frustration, and give free rein to their own feelings as to what offenses should be considered crimes of violence —which, to tell the truth, seems to be what we have done.  (Before throwing the opinions into the air, however, they should check whether littering — or littering in a purposeful, violent, and aggressive fashion — is a felony in their jurisdiction.  If so, it may be a violent felony under ACCA; or perhaps not.)

Since our ACCA cases are incomprehensible to judges, the statute obviously does not give “person[s] of ordinary intelligence fair notice” of its reach.  United States v. Batchelder, 442 U. S. 114, 123 (1979) (internal quotation marks omitted).  I would grant certiorari, declare ACCA’s residual provision to be unconstitutionally vague, and ring down the curtain on the ACCA farce playing in federal courts throughout the Nation.

In addition to be joyfully amusing, I think there are some very interesting and important jurisprudential ideas lurking in this opinion for lower courts.  I will expand on this thought in some future posts.

June 27, 2011 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Any speculations on criminal justice echoes from SCOTUS rejection of violent video game regulation?

The Supreme Court rejected California's effort to regulate minors' access to violent video games as violative of the First Amendment today in EMA v. Brown (opinion here). Here is a key passage from the end of the opinion for the Court authored by Justice Scalia:

California’s effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors. While we have pointed out above that some of the evidence brought forward to support the harmfulness of video games is unpersuasive, we do not mean to demean or disparage the concerns that underlie the attempt to regulate them — concerns that may and doubtless do prompt a good deal of parental oversight. We have no business passing judgment on the view of the California Legislature that violent video games (or, for that matter, any other forms of speech) corrupt the young or harm their moral development.  Our task is only to say whether or not such works constitute a “well-defined and narrowly limited clas[s] of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem,” Chaplinsky, 315 U. S., at 571– 572 (the answer plainly is no); and if not, whether the regulation of such works is justified by that high degree of necessity we have described as a compelling state interest (it is not).  Even where the protection of children is the object, the constitutional limits on governmental action apply.

California’s legislation straddles the fence between (1) addressing a serious social problem and (2) helping concerned parents control their children. Both ends are legitimate, but when they affect First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously overinclusive.  See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993).  As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto.  And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime. And the overbreadth in achieving one goal is not cured by the underbreadth in achieving the other. Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny.

Nothing jumped out from a quick scan of Justice Scalia as obvious fodder for use by criminal justice advocates in other contaxts.  But, as the question in the title of this post is meant to prompt, I think the ruling could have echo effects and I am eager to hear early reader perspectives on this front.

June 27, 2011 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Lots of interesting last-day SCOTUS action on a variety of fronts

Today marks the last big day of the Supreme Court's October 2010 Term, and the action reported at SCOTUSblog is fast, furious and intriguing.  Though there are no criminal justice blockbuster decisions in the mix, there are lots of interesting developments such as:

As time and energy permits and thoughts justify, I will have separate posts discussion any big sentencing stories lunking in these and other SCOTUS developments today. 

June 27, 2011 in Who Sentences? | Permalink | Comments (1) | TrackBack

Interesting commentary on the comments here at SL&P

Over at Crime & Consequences, Bill Otis has this interesting lengthy post commenting on the nature of comments here at SL&P.  Here are excerpts:

I frequently comment at Sentencing Law and Policy because, among other reasons, I like to keep my finger on the pulse of what the other side is thinking.... The commenters are something else.  Some are anti-American hotheads.  Some are ex-cons.  Some are defense counsel, who can range from snark specialists to extremely thoughtful and fair-minded people.  A few are conservatives and/or libertarians....

I have found some common blind spots that recur on the Left no matter what the topic. Right now I want to talk about three of them.  They are the failure fully to understand that (1) every act of government, in law enforcement and otherwise, costs money; (2) every institution of government is unavoidably fallible, because human beings are unavoidably fallible; and (3) everything in life involves trade-off's, often painful ones.

I want to emphasize what an appreciation of these errors, taken together, means, to wit, that it's frivolous for our opponents to engage in blinkered sloganeering and think they've made an "argument."  For example, to bullhorn constantly about the costs of X, without being candid about what X achieves, or the costs the alternative to X is likely to create, is unpersuasive and dishonest.

Even more than dishonest, it is, I have come to believe, childlike -- not in the sense of charming or innocent, but in the sense of bedazzlement with things that sparkle combined with disinterest in things that don't, but are equally or more important to the task at hand. The juvenile quality of Leftist thinking, perhaps more than anything else, is what makes it consistently untrustworthy in matters of consequence.

There are a number of topics current in criminal law: Drug legalization, the big price tag for incarceration, and the costs of the death penalty.  The errors I have described are rampant in the Left's analysis of all three.

Let's start with the costs of the death penalty.  We hear that it costs a lot to litigate a capital case, and it does.  What we don't hear about is the trade-off, i.e., the costs saved by resolving murder cases with a guilty plea brought about in part by the threat of the death penalty if the case goes to trial.  We also don't hear about the significant extra costs it will take to house (and, in his elder years, provide medical care for) a (say) 30 year-old killer of the especially ruthless or conscienceless kind -- the kind who are most likley to find themselves in a capital prosecution....

Now let's talk about the costs of incarceration.  Again, they are substantial, and they've been growing significantly over the last 25 years or so.  It's easy to illustrate how, if we just release inmates, we save dollars.  And we save those dollars now, in time, shall we say, for the next election.  But what's the never-mentioned trade-off?

Well, first, there's justice.  These people were not in prison for no reason.  To release them prematurely is to give them a parole they had yet to earn.  Second, there's increased crime.  The incidence of recidivism is not zero.  Indeed it's way, way above zero.  When we release inmates early, we are sentencing innocent and unsuspecting people to be crime victims.  The difference, of course, is that the number and identity of those victims is not yet known.  These facts are therefore easy for politicians to sweep under the rug, even as they hold a smiley-faced press conference to announce that -- see there! -- we're saving the taxpayers X number of dollars next year.

Unmentioned are the human and financial costs of the additional crime they have made inevitable.  And if any of the release-them-now crowd pushing for this solution has ever said that, well, we should make some effort to at least keep track of the coming, increased crime-related costs -- so we can re-visit the cost question with more information -- I never heard of it.

There is a good deal more to say on this question, and I'm afraid I might have promised more than I have delivered right now, anyway, but I wanted to get these thoughts down.  I'll have more to say later.  But the three analytical errors I mentioned are so pervasive that I wanted to get this on the table now.

I am greatly appreciative of Bill Otis's history of service to criminal justice law and policy and also his engagement on this forum.  But this extended discussion highlights for me that Bill's thinking is often subject to the very same "childlike" problems and "blind spots" he assails.  Let me give a few examples.

Bill claims he has "never heard of" efforts to track "increased crime-related costs" of early prison releases.  It seems, then, that Bill is blind to the fact that the US Sentencing Commission has studiously kept track of recidivism rates of those released early under the 2007 lower crack guidelines (details here), and that the folks at Pew have been doing broad evidence-based assessments of recidivism rates nationwide (details here).  I share Bill's instinct that we should have more evidence-based analysis of many crime and punishment issues, but I dispute his suggestion that all advocates of reform are eager to avoid serious examination of cost-benefit realities.

Even more fundamentally, Bill (eagerly?) overlooks how the Left's approach to many criminal justice matters is driven by a deep understanding that "every institution of government is unavoidably fallible, because human beings are unavoidably fallible."  This is most obvious in the death penalty debate, where many abolitionists say that because we can never be sure the criminal justice system will always get it right, this system should never terminate life.  I personally do not find this argument convincing, but it is very much based on the essential belief that the death penalty is a bad idea precisely because "every institution of government is unavoidably fallible."

This fallible reality also often informs advocacy for prison reform and is critically missing in Bill's understanding of support for reductions in incarceration.  Bill, in a childlike and blind way, seemingly believes "justice" is always achieved by keeping folks in prison because they "are not in prison for no reason [and] releas[ing] them prematurely is to give them a parole they had yet to earn."  But whether we are considering extreme crack sentences some other too-long nonviolent sentencing terms (like those given, say, to Scooter Libby), what about the possibility that the original prison terms are unjust, reflecting a fallible criminal justice system that often will over-punish in the heat of the latest crime concern?

I throw out Scooter Libby as a telling example because Bill Otis obviously appreciated the societal value of early prison release when he forcefully and successfully advocated for presidential commutation of Libby's prison term following his perjury convictions.  Bill seems blind to the possibility that many on the Left believe that, among the 2.3 million people in prison, there are a lot more folks like Libby who could and should be safely released early to the benefit of both these offenders and society itself. 

I hope that when Bill has "more to say later" he will explain why his advocacy for Libby's early release is distinct from comparable advocacy by those on the Left whom his clearly disdains.

June 27, 2011 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (38) | TrackBack

US Sentencing Commission slated this week to vote on new FSA crack guideline retroactivity

As indicated in this official public notice, this Thursday, June 30, a public meeting of the US Sentencing Commission is scheduled at which the USSC is expected to vote on whether and how to make the new reduced crack offense sentencing guidelines applicable retroactively to previously sentencing defendants.  The new guidelines reflect the 18-1 quantity ratio between crack and powder cocaine quantities that became the new federal sentencing standard after the Congress passed the Fair Sentencing Act of 2010.

As I have detailed in prior posts (some of which are linked below), a decision to make the crack guidelines retroactive would potentially impact the sentences of many thousands of federal prisoners, and this fact has made this issue a subject of considerable controversy.  The Sentencing Commission has posted here on its website a lot of interesting links to the input the USSC has received about this consequential issue.  (Enterprising researchers and students can learn a lot about the politics and practicalities of federal drug sentecing by reviewing these materials.)

Based on the (incomplete and non-insider) buzz that I have heard surrounding this issue, I predict that the Sentencing Commission will vote to make the new crack guidelines retroactive with a few (but not too many) limitations on which previously sentencing defendants can get the benefit of the new lower guidelines.

A few related posts on this particular retroactivity decision before the USSC are linked below, and readers interested in a broader understanding of the FSA should check out this February 2011 issue of the Federal Sentencing Reporteron the FSA and those interested in a broader discussion of the last round of crack retroactivity should check out this April 2008 FSR issue on crack retroactivity:

June 27, 2011 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Tucson shooter Jared Loughner to be forcibly medicated in prison

As detailed in this CBS News piece, the appointed attorneys "for the Tucson shooting rampage suspect say federal prison officials have decided to forcibly give him anti-psychotic drugs." Here is more:

Attorneys for Jared Loughner filed an emergency motion on Friday asking U.S. District Judge Larry Burns to stop them from doing so.  Burns has twice denied their requests to be given notice before their client is drugged.

Defense attorney Judy Clarke wrote that a prison administrative hearing on June 14 found Loughner was a danger to himself.  She doesn't know if they have started giving him drugs.  Loughner has pleaded not guilty to 49 charges stemming from the Jan. 8 shooting that killed six and injured 13, including Rep. Gabrielle Giffords.

Mental health experts who examined Loughner concluded he suffers from schizophrenia; he has been at a federal prison facility in Springfield, Mo., since May 28, where experts will try to make him psychologically fit to stand trial.  He will spend up to four months there. If Loughner is later determined to be competent enough to understand the case against him and assist his lawyers, the court proceedings will resume.  His stay at the facility could also be extended.

USA Today reported earlier this month that it's likely Loughner will eventually be cleared to stand trial. "It's a fairly routine part of criminal justice," Richard Bonnie, director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia, told the newspaper.  Bonnie said about 85 percent of patients initially ruled mentally unfit are eventually cleared to stand trial or otherwise face charges against them.

June 27, 2011 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

June 26, 2011

Interesting sentencing news from China

Two reports on sentencing developments in China caught my eye this weekend:

Based on these stories, it now sound like sentencing law and policy in China is now quite a lot like in the old USA.

June 26, 2011 in Sentencing around the world | Permalink | Comments (2) | TrackBack

Feds ask for (inappropriate?) 385 years(!) for white-collar offender

As detailed in this Wall Street Journal article, headlined "U.S. Seeks 385 Years in Prison for Ex-Taylor Bean Chairman, the federal government is asking for a sentencing term of biblical proportions in a high-profile white-collar case out of Virginia. Here are the particulars:

Federal prosecutors said the former chairman of mortgage lender Taylor, Bean & Whitaker Mortgage Corp., Lee Farkas, should spend the rest of his life behind bars because he continues to deny responsibility for the devastation he wrought as the mastermind of a multibillion-dollar "fraud of staggering proportions."

Prosecutors on Thursday filed court papers urging U.S. District Judge Leonie M. Brinkema to impose the statutory maximum prison sentence of 385 years on Mr. Farkas, whom a jury in April found guilty of 14 counts of conspiracy and bank, wire and securities fraud.  Mr. Farkas, 58 years old, is set to be sentenced next Thursday.

On Friday afternoon, Mr. Farkas's attorneys filed court papers requesting a sentence of 15 years, which they said would not only "adequately punish" Mr. Farkas but could also effectively be a life sentence for the 58-year-old man with a heart stent....

Mr. Farkas, who built up Ocala, Fla.-based Taylor Bean into one of the nation's biggest mortgage lenders, was found guilty of misappropriating about $3 billion from banks such as Colonial Bank of Montgomery, Ala., and of trying to fraudulently obtain more than $550 million from the government's Troubled Asset Relief Program, or TARP.

Prosecutors said Mr. Farkas personally pocketed $40 million from the scheme, which he used to buy a jet, an "exotic" car collection, multiple homes and businesses.  "Farkas fueled his lifestyle of ostentatious wealth by ripping off banks and attempting to steal from the government, all with little to no regard for the consequences to TBW's or Colonial Bank's employees, thousands of whom lost their jobs when TBW and Colonial Bank closed," prosecutors said.  "And to this day … Farkas continues to deny any responsibility for the devastation brought on by the staggering fraud scheme that he initiated and led."...

In addition to the 385-year prison sentence, prosecutors are also asking that Judge Brinkema order the forfeiture of $42.2 million from Mr. Farkas.

Meanwhile, dozens of letters from Mr. Farkas's friends, family members, former employees and other acquaintances have come in urging the judge to be lenient.  The letters describe Mr. Farkas's philanthropy not only in the Ocala community but also in their lives, from helping people care for sick relatives, start their own businesses and fund college educations.

This month, Judge Brinkema handed down sentences for Mr. Farkas's co-conspirators in the scheme.  Taylor Bean's former chief executive, Paul Allen, and former president, Raymond Bowman, received 40 months and 30 months in prison, respectively.  Taylor Bean's former treasurer, Desiree Brown, received a six-year sentence, while Colonial Bank officials Catherine Kissick and Teresa Kelly received sentences of eight years and three months, respectively.

The disparity between those sentences and the proposed sentence for Mr. Farkas is warranted, prosecutors said.  "Farkas's co-conspirators are generally decent people who made terrible decisions and failed to extricate themselves from a fraud scheme spiraling out of control. Farkas can hardly be included in this category," they said.  "For years, he manipulated his co-conspirators and others to his personal advantage...Farkas exemplifies the adage that there is 'no honor among thieves'."

Prosecutors also said that handing down the highest-possible sentence to Mr. Farkas would serve as a powerful deterrent to executives lured by the promise of easy corporate profits and substantial riches for themselves.

I do not dispute (and neither does the defense team here, it seems, that Farkas merits a serious punishment for his serious crimes.  But it strikes me as a bit silly and arguably inappropriate for the Government to assert that only a maximum term of 385-years imprisonment qualifies as "sufficient, but no greater than necessary" for Lee Farkas under the terms of 3553(a).  Seem to me that for a 58-year-old offender, a sentence of, say, 100 years would seem to be more than enough to achieve whatever purposes that prosecutors deem critical.  But, remarkable, the feds think they need to ask for more than triple that length of sentence for this offender.

June 26, 2011 in Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (7) | TrackBack

Does Casey Anthony case really "show Florida's death-penalty system is broken"?

The question in the title of this post is prompted by this notable recent commentary in the Orlando Sentinel, which is healined "Casey Anthony case, others show Florida's death-penalty system is broken." Here are excerpts:

Support of the death penalty is almost a prerequisite to holding statewide office in Florida. Kill more. Kill them faster. But this political agenda is clashing ever more often with the constitutional requirement of due process.

And so we are spending millions of dollars sentencing far more people to death than we can possibly kill. The result has been a growing glut of death-row inmates. Consider these statistics:

  • Since the 1970s, Virginia has executed 121 inmates. It currently has 14 death-row inmates.
  • Oklahoma has had 96 executions. It currently has 85 death-row inmates.
  • Florida has had 69 executions. We have 399 inmates on death row.

At our current pace of executions, it would take 200 years to clear them out. More people on Florida's death row have been exonerated, resentenced to a prison term or died while awaiting execution than have been executed.

The 23 inmates exonerated and set free are the most of any state, making our system the most error-prone in the country. Some of these inmates were obviously innocent. Some probably were guilty, but trial errors, prosecutorial misconduct or other issues nullified their convictions.  Ironically, if these freed inmates had been sentenced to life in prison without parole instead of death, they probably would still be in jail because they wouldn't have had access to the scrutiny and appeals granted death-row inmates....

There also is no rhyme or reason to which cases are pursued as capital crimes.  The original purpose of the death penalty was to execute the worst of the worst.  But legislators have consistently expanded the types of crimes eligible for the death sentence, so now it can be pursued with most all murder charges.  This gives state attorneys wide leeway in deciding what cases to pursue as death-penalty cases.  Most state attorneys don't have written guidelines, making their decisions completely arbitrary.

Sometimes they are driven by politics, as with Casey Anthony.  This is not a death-penalty case, and in the unlikely event she is sentenced to death, it will be overturned on appeal.

So why pursue it?  A death case requires jurors who state beforehand they are willing to impose a death sentence.  Such jurors are more prone to deliver guilty verdicts.  If you have a shaky, circumstantial case in a high-profile trial like this, you increase the odds of a conviction by stacking the deck with a death jury....

All this comes with a cost.  Death cases are very expensive because they require two trials, one establishing guilt and the second to impose the sentence.  Then come years of appeals. One death-row inmate had his case reviewed 20 times by state and federal courts before his sentence was reduced to life in prison.  Judge Eaton cites estimates that each execution costs Florida about $20 million....

And yet this year Gov. Rick Scott and legislators abolished the Commission on Capital Cases, a small state agency that tracks cases, keeps statistics and makes recommendations to the courts and lawmakers.

June 26, 2011 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (7) | TrackBack

"Sex Offender Registration and Notification Laws at Home and Abroad: Is an International Megan’s Law Good Policy?"

The title of this post is the title of this new piece by Christopher King available via SSRN. Here is the abstract:

Comparative reviews of sex offender laws at the foreign level have been rare; discussions at the international level are nonexistent. This article seeks to address these needs in the following ways.  First, federal, US sex offender laws are reviewed.  Countries with sex offender registration and/or notification laws are then identified and their sex offender schemes compared (with a focus on registration, community notification, retroactive application, and/or international travel reporting).  Next, the International Megan’s Law proposal that has recently been surfacing in Congress is discussed and critiqued. Finally, an alternative, more cost-effective proposal is offered.

June 26, 2011 in Criminal Sentences Alternatives, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack