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July 7, 2011

Willie Nelson sweet plea deal for pot possession goes up in smoke

This New York Times piece, headlined "Case of Willie Nelson Pot Bust Isn’t Extinguished Yet," reports on the latest notable turn of events in a high-profile pot possession case.  Here are the details:

The seemingly routine occurrence of Willie Nelson’s being found in possession of marijuana has stoked a small conflagration in a Texas county where a judge says she will not permit what she sees as the lenient punishment of this singer by an overly deferential prosecutor.

Judge Becky Dean-Walker of Hudspeth County said on Tuesday morning that she would not accept a mailed-in plea agreement for Mr. Nelson that stemmed from a 2010 drug arrest there and that she believed that the county attorney, Kit Bramblett, was giving the singer preferential treatment because he is famous.

“He’s supposed to file the charge he feels is appropriate,” Judge Dean-Walker said of Mr. Bramblett in a telephone interview.  “Not what he feels he should do for his favorite singer. It is up to the judge to agree or not.”  Judge Dean-Walker added, “If you’re not going to do it for the guy in the corner, why do it for a celebrity?”

Mr. Nelson was arrested at a border stop in Sierra Blanca, Tex., on Nov. 26 when a Border Patrol agent there smelled marijuana on the musician’s tour bus.  Though agents said they had found about six ounces of marijuana on the bus, Mr. Bramblett later said that weight included containers and paraphernalia, and that the total amount of the drug was about three ounces.

The case drew headlines in March when Mr. Bramblett said Mr. Nelson could plead guilty to a misdemeanor charge if he paid a small fine and sang “Blue Eyes Crying in the Rain” in court.  Judge Dean-Walker quickly responded that she would not accept such an arrangement.

In June Mr. Bramblett said Mr. Nelson had pleaded no contest to a misdemeanor charge of possession of drug paraphernalia and would pay a $500 fine and about $280 in court costs. But on Friday Reuters reported that the judge would not accept this deal, either.

Judge Dean-Walker said on Tuesday that Mr. Bramblett previously asked to have Mr. Nelson’s charge reduced to a Class C misdemeanor and that she had refused. She added that Mr. Bramblett “has made a habit of speaking with the press before anything has been resolved.”...

Judge Dean-Walker said she was not concerned that the disagreement over Mr. Nelson’s plea was denying the singer his due process. “At no point do I have to let him off,” the judge said. “If Willie Nelson gets off with nothing, I’m not going to be part of it.”

July 7, 2011 in Celebrity sentencings, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (3) | TrackBack

July 6, 2011

Eleventh Circuit panel re-issues (updated) opinion finding FSA lower crack mandatories apply all sentenced after FSA

Regular readers may recall this post a few weeks ago about the important Eleventh Circuit panel ruling in US v. Rojas late last month declaring that the reduced statutory crack sentencing terms of the Fair Sentencing Act apply "to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter."  Today, the Eleventh Circuit released a new version of the Rojas opinion, available here, which now starts this way:

We sua sponte modify our previous opinion in this appeal to reflect recent developments in the law of the First and Seventh Circuits. See United States v. Fisher, 635 F.3d 336, 340 (7th Cir. 2011); United States v. Douglas, No. 10-2341, 2011 WL 2120163 (1st Cir. May 31, 2011).

The issue in this appeal is whether the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372 (2010), applies to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter.  We conclude that it does.

Here is what appears to be a key new paragraph from the new Rojas opinion:

We do not disagree with our sister circuits in one major sense — absent further legislative action directing otherwise, the general savings statute prevents a defendant who was sentenced prior to the enactment of the FSA from benefitting from retroactive application.  Further, we share in the well-reasoned view of the First Circuit that Congress intended for the FSA to apply immediately.  See Douglas, 2011 WL 2120163, at *4 (“It seems unrealistic to suppose that Congress strongly desired to put 18:1 guidelines in effect by November 1 even for crimes committed before the FSA but balked at giving the same defendants the benefit of the newly enacted 18:1 mandatory minimums.”).

Some posts on this FSA pipeline issue:

July 6, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Fort Hood shooter to face court martial with death penalty in play

As detailed in this new Reuters piece, which is headlined "Fort Hood shooting suspect to face court martial," a mass murder on a military base is now on the path to be the subject of a military trial.  Here are the basic details:

A U.S. Army psychiatrist charged in a 2009 killing rampage at a Texas military base will face a court-martial where he could be sentenced to death, a military official ruled on Wednesday.  Major Nidal Malik Hasan, 40, who U.S. officials have linked to a radical Muslim cleric in Yemen, is charged in the Fort Hood shootings killed 13 people and wounded 32 others.

Lieutenant General Donald Campbell, Fort Hood's commander, referred Hasan's case to a general court martial which "is authorized to consider death as an authorized punishment," according to a statement issued by Fort Hood.

A date has not been set for the court martial, the statement said.  The first likely step would be for a military judge to inform Hasan of his rights at an arraignment, it said.

According to witnesses who testified at evidentiary hearings at Fort Hood in 2010, Hasan shouted "Allahu Akbar" -- Arabic for "God is Greatest" -- just before opening fire on a group of soldiers undergoing health checks before being deployed to war zones in Iraq and Afghanistan.

Hasan is confined to a wheelchair after he was paralyzed from the chest down by bullet wounds inflicted by civilian police officers during the Nov. 5, 2009 shooting.

July 6, 2011 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Imagining a (sound and satisfying?) sentencing script in the Casey Anthony case

With Casey Anthony's sentencing coming up tomorrow, and with so many apparently unsatisfied with her acquittal on all the felony counts she was facing, I have now been thinking a lot about what could and what should happen at her sentencing on the four misdemeanor convictions based on her lies to the police.  Specifically, I wonder what folks would think if this is what we were to hear from Judge Perry at sentencing for Casey Anthony:

Ms. Anthony, I respect the jury's verdict of not guilty of all the felony counts against you relating to the death of your daughter.  However, the lies for which you were convicted by this same jury were not merely run-of-the-mill statements of false information to the police.  Rather, they were knowing and willful false statements to the police while they were investigating the disappearance of your own daughter. 

These many false statements to investigators for which you stand convicted may well have delayed greatly the effort to discover just how and when your daughter died.  In addition, these false statements, as well as the evidence presented at trial, leave me with a firm conviction that you had some role in the death, or at the very least in the cover-up of the circumstances of the death, of your young daughter.   Consequently, because I view the nature and circumstances of your false statements to be highly aggravated, I have decided to impose the maximum sentence allowed for your crimes of conviction under Florida law.

Ms. Anthony, you shall serve a year in prison for each of your four false statement convictions, to run consecutively.  With credit for time served, you shall be imprisoned until October 2012.

Recent related posts on Casey Anthony verdict:

July 6, 2011 in Celebrity sentencings, Offense Characteristics | Permalink | Comments (31) | TrackBack

Interesting split Eighth Circuit ruling on uncounseled prior convictions used to enhance sentence

The Eighth Circuit has a very interesting ruling today in US v. Cavanaugh, No. 10-1154 (8th Cir. July 6, 2011) (available here), concerning both the Sixth Amendment right to counsel and sentencing enhancements based on priro convictions. Here is the start of the majority opinion (Per Judge Melloy):

Roman Cavanaugh, Jr., was charged for the offense of domestic assault by a habitual offender, 18 U.S.C. § 117.  As elements of the offense, the government must prove Cavanaugh received "a final conviction on at least 2 separate prior occasions in Federal, State, or Indian tribal court proceedings" for certain abuse offenses.  Id. § 117(a).  Below, the district court dismissed the indictment because, although Cavanaugh had received prior misdemeanor abuse convictions in tribal court on three separate occasions, Cavanaugh had not received the benefit of appointed counsel in the proceedings that resulted in the convictions.

The issues presented in this appeal are whether the Fifth or Sixth Amendments to the United States Constitution preclude the use of these prior tribal-court misdemeanor convictions as predicate convictions to establish the habitual-offender elements of § 117. Cavanaugh's prior convictions resulted in actual incarceration that, pursuant to Gideon v. Wainwright, 372 U.S. 335 (1963), and Scott v. Illinois, 440 U.S. 367 (1979), would have been unconstitutional in violation of the Sixth Amendment right to appointed counsel if the convictions had originated in a state or federal court.  The district court, recognizing that the Sixth Amendment imposes no duty on Indian tribes to provide counsel for indigent defendants, noted that the prior convictions were valid at their inception and that the prior terms of incarceration were not in violation of the United States Constitution, tribal law, or the Indian Civil Rights Act, 25 U.S.C. § 1302.  The court, nevertheless, held that the uncounseled convictions were infirm for the purpose of proving the habitual-offender, predicate-conviction elements of the § 117 offense in these subsequent federal court proceedings.

The government appeals, and we reverse.  In doing so, we note an apparent inconsistency in several cases dealing with the use of arguably infirm prior judgments to establish guilt, trigger a sentencing enhancement, or determine a sentence for a subsequent offense. Ultimately, however, we are persuaded in this case that the predicate convictions, valid at their inception, and not alleged to be otherwise unreliable, may be used to prove the elements of § 117.

And here is the start of Judge Bye's dissent:

I agree with my panel colleagues' observation as to the Supreme Court's jurisprudence failing to provide clear direction in determining whether the Sixth Amendment precludes a federal court from using an uncounseled tribal court misdemeanor conviction to prove the elements of a subsequent federal offense.  The majority's opinion exhaustively covers the subject matter and aptly describes the tension in the decisions which we must consider.  I can also agree the lack of clarity means reasonable decision-makers are likely to differ on the conclusions they reach with respect to allowing or prohibiting such use of an uncounseled tribal court conviction.  I disagree with the conclusion reached by the majority, however, and therefore respectfully dissent.

July 6, 2011 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

"Assessing Racial Discrimination in Parole Release"

The title of this post is the title of this notable new paper available via SSRN. Here is the abstract:

We investigate possible racial discrimination in the context of discretionary parole release.  We develop a rational choice model of release whereby a parole board must balance parolees risk of violation with the cost of not releasing prisoners who may not violate their parole.  A color-blind parole board would release all individuals below a certain risk threshold.  To test this prediction, we take advantage of a unique data set that reports all prisoners released on parole between 1983 and 2003 in the U.S.  We apply the outcome test methodology recently used to assess racial profiling in police search decisions.  Here, a higher rate of parole violation within a group suggests that the parole board used a less restrictive paroling criterion, and is thus biased in favor of that group. To overcome the concern of inframarginality that traditionally plagues outcome tests we provide evidence that parole boards strategically time the release of parolees.  In turn, both minority and white prisoners become marginal from the perspective of their probability of parole violation.  Parole boards operating under an indeterminate sentencing regime appear biased against white prisoners whose violation rate is significantly smaller than that of African Americans.  In contrast, this gap is smaller or null when there is no discretion in the paroling system.  Further evidence rules out post-release discrimination. We propose different hypotheses to account for the evidence.

July 6, 2011 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Hunger strike among California prisoners growing

As detailed in this new article, "[i]nmates in at least 11 of California's 33 prisons are refusing meals in solidarity with a hunger strike staged by prisoners in one of the system's special maximum-security units, officials said Tuesday." Here is more:

The strike began Friday when inmates in the Security Housing Unit at Pelican Bay State Prison stopped eating meals in protest of conditions that they contend are cruel and inhumane.  "There are inmates in at least a third of our prisons who are refusing state-issued meals," said Terry Thornton, a spokeswoman for the California Department of Corrections and Rehabilitation....

Some inmates are refusing all meals, while others are rejecting only some, Thornton said. Some were eating in visitation rooms and refusing state-issued meals in their cells, she said.  Assessing the number of actual strikers "is very challenging," Thornton said....

More than 400 prisoners at Pelican Bay are believed to be refusing meals, including inmates on the prison's general-population yard, said Molly Poizig, spokeswoman for the Bay Area-based group Prisoner Hunger Strike Solidarity....

The group's website claims that prison officials attempted to head off the strike by promoting a Fourth of July menu that included strawberry shortcake and ice cream. According to the website, the wife of a Security Housing Unit inmate said her husband had never had ice cream there and "has never seen a strawberry."...

The strike was organized by Security Housing Unit inmates at Pelican Bay protesting the maximum-security unit's extreme isolation. The inmates are also asking for better food, warmer clothing and to be allowed one phone call a month. 

The Security Housing Unit compound, which currently houses 1,100 inmates, is designed to isolate prison-gang members or those who've committed crimes while in prison.  The cells have no windows and are soundproofed to inhibit communication among inmates. The inmates spend 22-1/2 hours a day in their cells, being released only an hour a day to walk around a small area with high concrete walls.

Prisoner advocates have long complained that Security Housing Unit incarceration amounts to torture, often leading to mental illness, because many inmates spend years in the lockup.  Gang investigators believe the special unit reduces the ability of the most predatory inmates, particularly prison-gang leaders, to control those in other prisons as well as gang members on the street.

Recent related post:

July 6, 2011 in Prisons and prisoners | Permalink | Comments (0) | TrackBack

"Mexican National Set for Execution in Texas Despite Obama's Pleas for Delay"

The title of this post is the headline of this ABC News report on the latest news from Texas surrounding a scheduled execution with state, federal and international elements.  Here is how the piece starts:

Lawyers for the Obama administration are taking the unusual step of asking the Supreme Court to delay the execution scheduled for Thursday of a Mexican national who is on death row in Texas.  

Humberto Leal, who has lived in the United States since he was 2 years old, is set to be executed for the 1994 kidnapping, rape and murder of Adria Sauceda, a 16-year-old girl.

But Leal's case has been complicated by the fact that he and other Mexican nationals on death row across the country were never informed of their right to seek legal assistance from the Mexican consulate.  Such a failure of notification is a violation of the Vienna Convention on Consular Relations -- a treaty that the United States is a party to -- which says that foreigners in custody have the right to consular notification, communication and access.

"The violation of the Vienna Convention in Mr. Leal's case was no mere technicality," said Sandra Babcock, who serves as Leal's lead counsel.  "The Mexican consulate would have provided experienced and highly qualified attorneys who would have challenged the prosecution's reliance on junk science to obtain a conviction and would have presented powerful mitigating evidence at the penalty phase, including expert testimony regarding Mr. Leal's learning disabilities, brain damage, and sexual abuse at the hands of his parish priest."

The case is generating interest at the highest levels of the U.S. government from officials who do not want to send a message abroad that foreigners in custody have no right to consular notification.  But it also has stirred a debate about the role of international courts and state death penalty convictions.

In 2004, the International Court of Justice (ICJ), the principal judicial body of the United Nations, determined that Leal and some 50 other Mexican Nationals on death row in the United States were entitled to judicial hearings to determine whether there had been a breach of their rights.

After the ruling, then President George W. Bush directed state courts to review the cases. But Texas pushed back, arguing that state courts were not subject to the rulings of an International Court.  In 2008, the issue reached the Supreme Court, which said that Congress would have to pass legislation in order for the ICJ decision to be enforced.

But it was only last month that Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, introduced the Consular Notification Compliance Act, which was meant to facilitate U.S. compliance with consular notification and provide judicial review for these particular foreign nationals who were denied access to their consulate.

As things stand now, the law has no chance of passing before the planned execution of Leal.Only the Supreme Court or Gov. Rick Perry of Texas have the power to delay the execution and Perry has indicated that he is not sympathetic to the international court's finding.  "If you commit the most heinous of crimes in Texas, you can expect to face the ultimate penalty under our laws" Perry's spokesman Katherine Cesinger. Cesinger added that the governor has yet to make a final decision on the case.

Solicitor General Donald V. Verrilli jury asked the Supreme Court on Friday to delay Leal's execution until the end of the next congressional session, Jan. 3, 2012, in order to give time for congress to pass the law.

Verrilli writes that without a stay of execution, the relationship between the United States and Mexico will be strained. "Those relations are enjoying an unprecedented level of cooperation but they are also unusually sensitive, so that a breach resulting from petitioner's execution would be particularly harmful," Verrilli writes.

July 6, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Crime paying pretty well for doctors in California's prison system

As detailed in this AP article, headlined "Data show prison doctors at top of state pay scale," it appears that in California doctors working within the state correction system are finding ways to profit from the state's prison problems. Here are some details:

Doctors, dentists and psychiatrists with the federal receiver's office overseeing inmate medical care are the highest paid state employees in California, according to government salary data the state controller's office released Tuesday.

Two prison doctors make more than $700,000 a year.  Dozens of other prison medical personnel, some with the Department of Mental Health, make more than $300,000 a year. A top official with the California Department of Forestry and Fire Protection makes $309,000 annually.

The controller's office began requesting the data in response to the compensation scandal in the Los Angeles County city of Bell.  Residents there voted the entire city council out of office in March after learning that council members and other top officials were giving themselves enormous salaries and pensions.

The people with the top four state salaries are two doctors, a dentist and a psychologist, all working for the Department of Corrections and Rehabilitation, who were paid salaries ranging from $777,323 to $582,609....

The information is available on a website that shows salary ranges as well as actual compensation in calendar year 2010, said Hallye Jordan, spokeswoman for Controller John Chiang.  It lets users see the employees' true earnings, including overtime, bonuses, and if they cashed in vacation time or sick leave, she said.  "There are people who are making more than the maximum salary (range)," Jordan said, by the time additional income is added to their base salaries.  All five of the top-paid state employees earned more than the maximum salary listed for their position....

Nancy Kincaid, spokeswoman for the court-appointed federal receiver who controls prison medical care, said many of the prisons' health care providers do not earn the maximum salary listed for their professions.

July 6, 2011 in Prisons and prisoners, Who Sentences? | Permalink | Comments (1) | TrackBack

Ohio's queue for executions now 11 deep and more than a year long

As detailed in this Columbus Dispatch article, headlined "2012 execution dates set for two murderers," the Ohio Supreme Court continues to line up executions dates, roughly one each month, for condemned Ohio murderers. Here are the details:

The Ohio Supreme Court yesterday set two more execution dates in 2012, meaning the line of condemned killers scheduled to die is now more than a year long.

The court set a July 26, 2012, execution date for John Eley, 62, who shot and killed Youngstown store owner Ihsan Aydah in 1986.  The court also set Sept. 20, 2012, as the execution date for Donald Palmer, 46, of Belmont County, who killed Charles Sponhaltz and Steven Vargo in 1989.

The state has executed four killers this year; five more executions are scheduled through the end of the year. Now six are set for 2012.

The next lethal injection is set for July 19. Kenneth Smith of Butler County is to be put to death for murdering a Hamilton couple in their home in 1995.  The Ohio Parole Board unanimously recommended that Gov. John Kasich not grant clemency.

Though Ohio is continuing to set a notable execution pace (especially for a state not named Texas), the state still has a very long way to go to clear even its current death row.  At latest count, Ohio has 152 persons on death row; even if it could regularly complete 10 or 11 executions each year, the state would still not execution all those its juries have already condemned to death until around 2026.

July 6, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

"The GOP's Born-Again Prison Reformers"

The title of this post is the headline of this recent piece over at The Daily Beast.  Here is how it begins:

Back in the early 1990s, William Kennedy was a power player who toed the Republican Party line and put the likes of Ed Meese, Ronald Reagan’s tough-on-crime attorney general, on the cover of his Conservative Digest magazine.  Then some business deals went south and he was convicted of racketeering and money laundering and spent 17 years behind bars (his first night in Colorado’s Ed Meese Detention Center, of all places). Recently dozens of leading conservatives gathered at a private home in Virginia to welcome him back to society.  Kennedy insists he was the victim of prosecutorial misconduct, but a bitter irony still overwhelms him.  “I helped push the same laws that put me away all these years,” he told us in his first interview since his release in January . “I was a law-and-order conservative.  What an idiot I was.”

His is not the only transformation.  The party of Nixon’s 1968 law-and-order campaign, Just Say No, and the Willie Horton ad is now seeing a growing number of leaders tackling what once would have been political suicide: reforming the country’s overwhelmed criminal justice system.  While the recent Supreme Court decision to free tens of thousands of California prisoners due to overcrowding has upset conservatives (Justice Antonin Scalia dissented strongly, describing the potential release of “46,000 happy-go-lucky felons”), the magnitude of the decision makes it even harder to pretend the U.S. doesn’t have a problem.  And these days many conservatives are leading the charge for a solution.

Conservative governors in lock ’em up states are suddenly talking about rehabilitation and redemption, not throwing away the key.  Gov. Nathan Deal signed legislation in April that opens the door to overhauling Georgia’s sentencing laws; Louisiana’s Bobby Jindal in January announced a partnership to help fix the state’s ballooning incarceration rate — the highest in the country.  In Indiana, Mitch Daniels says he is fighting for legislation to reduce recidivism (nationally, 43 percent of offenders are back in jail within three years). And Ohio’s new Republican governor, John Kasich, is being feted by conservatives for pushing a prison reform bill through the state house in early May, calling the reform “low-hanging fruit.”  Legislation that would keep more people out of prison has also recently passed in such right-leaning states as Kentucky, Arkansas and South Carolina.

Inside the Beltway it’s the same story.  Newt Gingrich’s Contract with America once called for more prisons and tougher sentencing, but these days the presidential candidate is co-authoring passionate editorials about the need for “common-sense left-right agreement” on prison reform and “encouragement and love” for offenders who have served time.  He’s joined other conservative icons like Meese, Grover Norquist, William Bennett and NRA president David Keene to pledge their names to the Texas Public Policy Foundation’s recently launched “Right on Crime” website, designed to make the rehabilitation of non-violent offenders and the end of skyrocketing incarceration rates the new conservative cause célèbre.

July 6, 2011 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

July 5, 2011

Several sentencing reasons Casey Anthony should be thankful she is not in federal court

Ever the sentencing nerd, my chief reaction to today's surprise verdict in the high-profile Casey Anthony murder prosecution (basics here and here) was that Anthony should be very thankful (while I am a bit grumpy) that her sentencing is forthcoming in state court rather than federal court.  Savvy and regular readers know that this reaction is due largely to the serious sentencing terms available for the federal offense of obstruction of justice and the ugly reality that the federal guidelines require consideration of acquitted conduct at sentencing. Let me briefly explain.

To begin, Casey Anthony should be pleased she will learn her state sentencing fate later this week, rather than having the process play out over many months as is the federal sentencing norm.  (This reality essentially eliminated any defense need to seek Anthony's release pending sentencing.)  Though there are often benefits from an extended sentencing process in many cases, sentencing speed seems to help Anthony because this case carries so much emotion and because the jury verdict is already  so widely questioned.

More substantively, Anthony faces sentencing on only four Florida misdemeanor counts based on her lies to police during the investigation of her daughter's disappearance.  In the federal system, such lies might have been charged as a felony count of obstruction of justice, and then each conviction would carry a five-year maximum prison term.  In Florida state court, Anthony is looking at a maximum prison term of four years (a one-year max on all four misdemeanor counts of conviction); were this matter in federal court, she could have been facing up to 20 years total imprisonment based on four lies to authorities.

Most critically, the federal sentencing guidelines would instruct a judge to sentence Anthony based essentially on the crime he believes, based on a preponderance of evidence, she covered up even after a jury has acquitted her of that crime.  In other words, it is not only possible, but surprisingly common, for a federal judge to sentence a defendant for a murder that the defendant has been acquitted of!

Regular readers are no doubt tired of hearing my complaints about the use of acquitted conduct to increase sentences dramatically in the federal courts (some of which are linked below). But my sense is that very few persons other than federal criminal practitioners realize that federal law not merely allows, but often urges, sentences enhanced on the basis of acquitted conduct. This is why I am a bit grumpy that Anthony is not to be sentenced in federal court: if she were, the practice of acquitted conduct sentencing would be in full display in the highest-profile criminal case in many years.

Related posts on uncharged or acquitted murder sentencing enhancements as well as other examples of acquitted conduct sentencing in the federal sentencing system:

July 5, 2011 in Celebrity sentencings | Permalink | Comments (9) | TrackBack

Crackerjack coverage of new crack guidelines and retroactivity decision on USSC website

I am very pleased to see and to report that the US Sentencing Commission's ever-improving website now has this special webpage titled "Materials on Federal Cocaine Offenses."  This new special page provides especially effective and comprehensive coverage of the USSC's decision last week to make its new crack sentencing guideline retroactive.  This new webpage also brings together in one space via links all the most important USSC materials concerning federal crack sentencing law and policy, including a helpful "Reader-Friendly" Version of Amendment on Retroactivity, which becomes effective November 1, 2011.

I sincerely hope that the US Sentencing Commission will continue to build these sorts of specialized pages with collected materials on all hot federal sentencing topics.  I believe additional special pages on the immigration guidelines, the child porn guidelines, the fraud guidelines and others could and would be very helpful to both practitioners and researchers.

July 5, 2011 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Recommended reading | Permalink | Comments (2) | TrackBack

Should Casey Anthony's lawyer be grateful for, not critical of, Florida's use of the death penalty?

I caught a snippet of the comments made by Casey Anthony's chief defense lawyer, Jose Baez, shortly after a Florida jury returned not guilty verdicts on all of the felony charges against his client.  I was especially struck when Baez asserted this case showcased why the death penalty should be abolished; I actually believe the pursuit of capital charges against Anthony may help explain why the jurors refused to convict her on the homicide and abuse charges.  Let me explain my thinking.

By turning this case into a capital prosecution, prosecutors ensured jurors would have to be "death qualified" and thus would know from the outset that prosecutors wanted Anthony executed for her alleged crimes.  Though sometimes death-qualified juries may show a greater willingness to convict, here I suspect that the death-qualification process could have primed the jurors to expect a forensic smoking gun showing conclusively that Casey Anthony murdered her daughter in cold blood.  When no such smoking gun was presented by the prosecution, the jurors may have ultimately been much more willing (and perhaps even eager) to find reasonable doubt on all serious charges.

Similarly, by seeking a capital conviction, prosecutors made it that much harder for the jury to return a compromise verdict in which Casey Anthony got some (but not complete) blame for her daughter's death.  Because the prosecution pushed an intentional killing theory for conviction to support its capital charge, jurors believing that Caylee Anthony's death was perhaps an accident would be pushed to vote not guilty in response to the prosecution's contentions.

And, not to be completely discounted, perhaps many members of the jury were exhausted by the whole process and concluded that it would be near impossible to get a unanimous verdict on the serious charges with talk of the death penalty and/or a life sentence hanging in the air.  Jurors eager to get back to their regulars lives may have concluded that a quick not guilty verdict was the surest means to this end.

Of course, none of this has any impact on the pros and cons of the death penalty in cases in which factual guilt for a murder is not in dispute.  Still, if the death penalty gets jurors to take their responsibilities extra seriously, maybe defense attorneys like Jose Baez should be somewhat less critical of its impact on the criminal justice system in some cases.

July 5, 2011 in Celebrity sentencings, Death Penalty Reforms | Permalink | Comments (16) | TrackBack

Seventh Circuit rejects all attacks on acquitted conduct sentencing enhancements

Though not breaking new ground, a lengthy ruling today from the Seventh Circuit in US v. Waltower, No. 09-3967 (7th Cir. July 5, 2011) (available here), thoroughly reviews why federal defendants continue to be sentenced by federal judges for conduct relating to federal criminal charges on which they have been acquitted by a federal jury. Here is the start of the opinion along with an excerpt of note from Waltower:

Stephen Waltower was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was acquitted of several other drug-related offenses, but the district court took the underlying (acquitted) conduct into consideration at sentencing. The result was a statutory maximum sentence of 120 months. On appeal, Waltower challenges the use of the acquitted conduct at sentencing. He also maintains that his lawyer should have argued that certain post-arrest, self-incriminating statements he made were solicited in violation of Miranda v. Arizona, 384 U.S. 436 (1966).  We affirm ....

In rejecting Waltower’s constitutional argument, we blaze no new trails.  Every circuit to have considered the question post-Booker, including ours, has held that acquitted conduct may be used in calculating a guidelines sentence, so long as proved by a preponderance standard....  

Although we, like the D.C. Circuit, understand why defendants consider it unfair to take acquitted conduct into account at sentencing, Settles, 530 F.3d at 924, their use does not violate the United States Constitution under existing doctrine. Waltower enjoys no more success with his less ambitious arguments that the use of acquitted conduct in this case was contrary to the guidelines or otherwise unreasonable. Recall, the district court determined that Waltower’s adjusted base-offense level was 30 instead of 26, because the gun conduct and the drug conduct were part of the same relevant offense conduct for sentencing purposes.

July 5, 2011 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (15) | TrackBack

Fourth Circuit (splitting with other circuits) finds problem with appeal wavier demand for extra acceptance reduction

Hard-core sentencing fans (and perhaps only hard-core sentencing fans) should find very interesting and perhaps somewhat surprising a ruling today from the Fourth Circuit in US v. Divens, No. 09-4967 (4th Cir. July 5, 2011) (available here).  Here is the start of the opinion along with an excerpt from part of the opinion spotlighting why the Fourth Circuit is splitting from its sisters on this issue:

Lashawn Dwayne Divens pled guilty to possession with intent to distribute cocaine. Divens signed an acceptance of responsibility statement but declined to sign a plea agreement waiving certain rights to appellate review and collateral attack.  Solely because Divens would not waive these rights, the Government refused to move for an additional one-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b).  Divens appeals, challenging the district court’s failure to compel the Government to move for the § 3E1.1(b) reduction.  For the reasons that follow, we vacate Divens’s sentence and remand for further proceedings consistent with this opinion.....

Section 3E1.1(a) of the Guidelines provides for a two-level decrease in a defendant’s offense level if he "clearly demonstrates acceptance of responsibility for his offense."... The district court awarded Divens the two-level reduction under § 3E1.1(a), but because the Government refused to file a motion under § 3E1.1(b), the court did not award Divens the additional one-level reduction provided by that subsection. The Government makes no claim that Divens does not qualify for a decrease.... [;] the Government’s sole contention is that Divens’s failure to sign the appellate waiver justifies the Government’s refusal to move for the additional one-level reduction under § 3E1.1(b)....

[In our view], under § 3E1.1(b) the Government retains discretion to refuse to move for an additional one-level reduction, but only on the basis of an interest recognized by the guideline itself — not, as with § 5K1.1, on the basis of any conceivable legitimate interest.

We recognize that this holding does not accord with that of other circuits.  See United States v. Deberry, 576 F.3d 708 (7th Cir. 2009); United States v. Johnson, 581 F.3d 994 (9th Cir. 2009); United States v. Beatty, 538 F.3d 8 (1st Cir. 2008); United States v. Newson, 515 F.3d 374 (5th Cir. 2008). Those courts have concluded that the Government may withhold a § 3E1.1(b) motion based on any rational interest. This conclusion relies heavily on cases interpreting § 5K1.1.

In our view, for the reasons explained above, the commentary to § 3E1.1(b) forecloses courts from relying on § 5k1.1 cases in interpreting § 3E1.1(b). This commentary, however, has received little attention from our sister circuits. Instead, those courts focus almost exclusively on the fact that Congress in 2003 amended § 3E1.1(b) to insert the governmental motion requirement. See PROTECT Act, Pub. L. No. 108-21, § 401(g). According to those courts, the mere fact of this 2003 amendment somehow demonstrates that Congress intended that the Government possess the wide discretion under § 3E1.1(b) that it enjoys under § 5K1.1. But nothing in the 2003 reforms evinces such an intent. After all, Congress could have amended the § 3E1.1(b) commentary so that it conformed to the commentary surrounding § 5K1.1. Congress declined to do so; it instead left unchanged § 3E1.1(b)’s mandatory commentary and inserted language suggesting that the Government’s newfound discretion applies only to the question of "whether the defendant has assisted authorities in a manner that avoids preparing for trial." U.S.S.G. § 3E1.1 cmt. 6.

July 5, 2011 in Federal Sentencing Guidelines, Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (14) | TrackBack

"McCann: Clemens facing 15-21 months in jail"

The title of this post is the headline of this new story including an expert's sentencing prediction if (and when?) former all-star pitcher Rogers Clemens is convicted in his upcoming federal trial.  Here are the basics:

Sports Illustrated legal analyst Michael McCann joined the Dennis & Callahan show to talk about the perjury trial of former Red Sox star Roger Clemens, who allegedly lied to Congress when he said he never used performance-enhancing drugs while playing, that begins this week with jury selection and opening statements by both sides....

If Clemens is convicted on charges that he lied to Congress about not using performance-enhancers, he could face jailtime of 15-21 months, according to McCann, however that number could change a bit.

"That's the recommendation from the sentencing guidelines," McCann said. "Now [U.S. District Judge Reggie Walton] could deviate from that. He could say, 'Well, Clemens is really unapologetic. I don't like him. Let's give him a stronger sentence. Let's really send a message.' Or he could find Clemens more appealing for whatever reason and give him a shorter sentence. But the targeted range is 15-21 months. Now if he's only convicted of one or two counts, then Walton will likely assign a much shorter sentence. It's possible he could assign home confinement which is what Barry Bonds, there's a good shot that's what he'll get ultimately."

As is my tendency, I am disinclined to make sentencing predictions early in a case (especially before even a trial starts).  I am inclined to be amused that Clemens' already high-profile trial is now likely to get even more attention now that all the legal pundits and talking heads are not going to have the Casey Anthony case to cover much longer (basics here).

July 5, 2011 in Celebrity sentencings, Offense Characteristics | Permalink | Comments (3) | TrackBack

Casey Anthony found NOT guilty on all felony charges, misdemeanor sentencing later this week

As detailed in this CBS News report, this year's trial of the century concluded with a somewhat surprising verdict today down in Florida:

After deliberating for more than 10 hours, a jury of seven women and five men found Casey Anthony not guilty Tuesday of first-degree murder in the 2008 death of her 2-year-old daughter Caylee.

Anthony was also found not guilty of aggravated child abuse and aggravated manslaughter. She was found guilty of four lesser charges of providing false information to a law enforcement officer.

Here are follow-up sentencing details, about which I will blog more in future posts:

Judge Belvin Perry will sentence Anthony Thursday morning on those charges.  While she could receive up to a year in jail for each count, legal expert Mark O'Mara told CBS affiliate WKMG he expects Perry to give Anthony time served. She has been in the Orange County Jail since October 2008.

July 5, 2011 in Celebrity sentencings, Procedure and Proof at Sentencing | Permalink | Comments (8) | TrackBack

Mid-year thoughts on (slow?) 2011 for sentencing stories

As folks get back to work after the long holiday weekend, I have been thinking about what might become big sentencing stories through the second half of 2011. Nothing really major jumps to mind, perhaps in part because this current year has been relatively calm on various sentencing fronts.

In the death penalty arena, the Supreme Court issued no big rulings this past Term, and no major capital cases appear on the Court's horizon. illinois' decision to abolish the death penalty made for big news, though capital punishment had been functionally dead for a decade there already. Other states continue to struggle getting drugs needed for executions, though we have still had the usual pace of 4 or 5 executions each month nationwide through 2011.

In the federal sentencing arena, the US Sentencing Commission's retroactive application of the new lower crack guidelines is consequential (though not surprising). But Congress seems not yet interested in any broader sentencing reform in the wake of last year's passage of the Fair Sentencing Act. Likewise, while the Justice Department and perhaps the USSC will keep expressing concerns about troublesome features of the federal sentencing status quo, I doubt either will be proposing or pushing major reforms anytime soon.

Because of tight budgets and crowded prisons, state sentencing reforms have been the most dynamic and dramatic in the first part of 2011. And, thanks to the Supreme Court's Plata ruling, California is among the states having to prioritize sentencing and corrections reform.

Of course, for defendants, prosecutors and counsel directly impacted by 2011 developments to date, this year has already been eventful. But after more than half a decade in which a landmark SCOTUS ruling, or a Justice transition, or a national election made headlines through the summer months, right now 2011 feels a bit sleepy by comparison to this blogger

July 5, 2011 in Recap posts, Who Sentences? | Permalink | Comments (2) | TrackBack

July 4, 2011

"California 'three-strike' sentences used less often 15 years later"

18PXb9.Hi.4 The title of this post is the headline of this front-page article in the Sacramento Bee.  Here are some hightlights:

Fifteen years after passage of the state's landmark "three strikes" sentencing law, prosecutors in Sacramento and throughout California have become far more selective in applying the full force of the statute, reducing the number of lifetime prison terms being sought for third strikers to a relative trickle.

While it used to obtain the maximum sentences anywhere from 50 to nearly 100 times a year, the Sacramento District Attorney's Office now asks for life terms for third strikers fewer than 20 times a year, according to the California Department of Corrections and Rehabilitation.  The office obtained 16 such sentences in 2010 compared with a high of 94 in 1996.....

District attorneys across the state used to collectively pack off criminals on maximum three-strikes terms by the hundreds -- more than 1,700 in 1996 alone.  In the past three years, the numbers have dropped to well short of 200 annually.  California prisons housed 8,727 three-strike lifers as of Dec. 31.

Explanations for the decrease vary.  One factor, said legal experts, is the 1996 California Supreme Court decision that gave judges a say in three-strikes sentencing.  They also point to a basic supply-side issue: Voters and lawmakers have approved a collection of tough sentencing laws that have depleted the pool of eligible offenders earlier in their criminal careers, taking them off the streets before they qualify for 25-to-life terms under the three-strikes statute.

Sacramento prosecutors say they've simply gained a better sense of which offenders truly deserve the harshest measure of the law. "Have we evolved over time? Yes," said Sacramento County District Attorney Jan Scully, whose 17-year tenure in office closely tracks the history of California's three-strikes law.

But she also believes there just aren't as many people to sentence anymore, noting Sacramento County has imprisoned 557 offenders on 25-to-life terms since the law went into effect. "Not just in Sacramento but across the state, we've put away people on three strikes and they aren't now in our communities," Scully said.

Passed by the Legislature and overwhelmingly approved by voters in 1994, the three-strikes law can be used to impose 25-to-life prison terms on repeat serious and violent offenders if they pick up a third felony, no matter how minor. It also doubles prison terms for new offenders with single past convictions for serious or violent felonies.

Prosecutors have always had discretion under the law to reduce potential life terms to lesser sentences, but many didn't exercise it. Los Angeles County prosecutors, in particular, refrained from "striking strikes," or dismissing prior serious or violent convictions for the purpose of lowering prison terms.

The approach changed when Steve Cooley was elected L.A. County district attorney in 2000. Elected largely on a platform of refining the law's application, Cooley took the lead in putting a new policy in place. He reserved the heavier sentences for defendants with serious or violent third strikes, but built in exceptions to target offenders with horrific pasts even if their latest charge wasn't so serious.

Cooley said over-application of the law by some California prosecutors -- hitting people for third strikes for minor felonies such as drug possession and pizza theft -- prompted a public backlash. A 2004 statewide ballot measure that would have dumped three strikes altogether came within three percentage points of winning.

"If you have a good law, and you abuse it, you will predictably lose it," Cooley said at a recent symposium on the three-strikes law in Los Angeles.  "If somebody has a rock (of cocaine) in his sock, you give him 25 to life? Give me a break."

In an interview, Cooley said that Proposition 66, the 2004 initiative, "scared the bejesus out of everyone." In its aftermath, prosecutors developed policies "to make sure we're not very disparate in our handling of these cases," Cooley said....

Sometimes, judges dial down life terms on their own.  Over the prosecutor's objection, Sacramento Superior Court Judge Richard K. Sueyoshi recently removed a prior strike from the complaint on defendant David C. Boult, convicted of being an ex-con with a gun. Instead of 25-to-life, Boult got 10 years and four months.

Sueyoshi's action once would have have been impossible.  The three-strikes law initially allowed only prosecutors to dismiss strikes.  But the state Supreme Court, in a 1996 decision, gave judges the authority to do it.

Even with discretionary authority returned to the judges and prosecutors exercising a softer approach, plenty of critics still think the California statute is unduly harsh and applied unevenly in different parts of the state.  "You still have some district attorneys out there who are still using it to capture aging felons on relatively minor third felonies," said McGeorge School of Law professor Michael Vitiello.

In addition, Vitiello said, the prisons house thousands of offenders who are doing 25-to-life sentences whose cases may not have triggered that term today.  Vitiello said the state needs a "broad sentencing scheme" overseen by an appointed commission that would review the state's entire sentencing structure in order to reserve limited prison space for the most dangerous offenders.

July 4, 2011 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack