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October 12, 2011

"Should the USSC publish sentencing data for individual judges?"

The question in the title of this post is the provocative first question asked by Rep. Sandy Adams (R-FL), a former Deputy Sheriff, which references this blog and particularly this post reporting on comments by Judge Kopf endorsing judge-identifier data be released.  (She also alsked so very tough questions of Judge Saris concerning the high rate of downward variances in child porn cases.)  I wish she was also given more time to ask question of all the witnesses.

October 12, 2011 in Who Sentences? | Permalink | Comments (4) | TrackBack

"Should sentences reflect the will of the public?"

The question in the title of this post is the provocative final question asked by Rep. Trey Gowdy (R-SC), a former federal prosecutors who has been, by far, the most impressive of the members of House Judiciary Committee asking questions this morning at the hearing to examine the post-Booker federal sentencing system.

In his tough questioning of USSC Chair Judge Patti Saris, Rep. Gowdy suggested he would favor having Congress "codify" the guidelines via statutes (which would, of course, require jury findings of all aggravating factors based on Apprendi/Blakely).  Rep. Gowdy also noted that some states have jury sentencing.  

I wish Rep. Gowdy would have a lot more time to ask questions and that all the witnesses were asked the question in the title of this post.

October 12, 2011 in Who Sentences? | Permalink | Comments (4) | TrackBack

Webcast of House hearing on federal sentencing after Booker available

As reported in this prior post, this morning  the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee is conducting a hearing to examine the post-Booker federal sentencing system.  The hearing is titled "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker," and a webcast can be accessed via this calender entry  [Update: Written testimony from the witnesses are now linked here].  I will do a little live-blogging as I follow along.

10:04:  Rep. James Sensenbrenner (R-WI) has begun the hearing and is reading a prepared statement in which he complains at great length about sentencing disparities and says that Booker, in his view, "destroyed the guidelines."  He is also complaining that the US Sentencing Commission has not proposed a "Booker fix" in the last six years, and also complaining about the USSC making its new lower crack guidelines retroactive, and also complaining about the USSC's operating budget going up.

10:06:  Rep. Bobby Scott (D-VA) has begun his opening statement and says that Booker was the fix, not something that needs fixing.  He also is noting that the number of judicial variances from the guidelines went down in the last quarter of FY11 and that prosecutors sponsor and/or do not object to the vast majority of non-guideline sentences.

10:10 Rep. John Conyers (D-MI) says a few things off the cuff that do little more than make Rick Perry seem eloquent by comparison.

10:20: USSC Chair Judge Patti Saris (very detailed written testimony here) begins witness testimony by stressing how Supreme Court Booker caselaw has impacted federal sentencing.  She says the guidelines exert a "demonstrable gravitation pull" on sentencing, but also says that USSC recognizes "weaknesses" in the advisory guideline system.  Chair Saris says USSC recommends these legislative changes by Congress:

  1. Congress should make reasonableness review tougher, especially for non-guideline sentences
  2. Congress should clarify statutory directives that are in tension
  3. Congress should clarify and codify that guidelines should be given substantial weight

Saris also indicates that three reports are forthcoming from the USSC: one on mandatory minimums, one on child porn sentencing, and one based on the testimony offered today about the post-Booker system.

10:26:  Matthew Miner, White & Case partner (written testimony here), begins his testimony by stressing disparities between sentencing outcomes in Southern and Northern districts of New York.  He urges a "presumptively applicable" guideline system and recognizes that this system needs to comply with Apprendi/Blakely rights and says that it should not be too hard for juries to make special sentencing-related findings. Paraphrasing: "If we can trust juries to make findings in death penalty cases, we can trust them to find aggravating factors for guideline sentencing."  As a first step, making reasonableness review tougher would be a modest reform that would "go a long way" to reducing disparity.

10:31:  William Otis, Georgetown Professor Law (written testimony here), begins his testimony by stressing importance of being a nation of laws, but says sentencing is now not a system of law but "a lottery."  He notes that downward departures, which "favor the criminal," are 20 times more common than upward departures.  He complains that the USSC has "compounded the problem" of Booker by encouraging departures based on offender characteristics, and that it has embraced a system that is "random and watered-down."  

10:36:  James Felman, Kynes, Markman & Felman partner (written testimony here), begins his testimony by saying advisory sentencing system "best achieves" the goals of Sentencing Reform Act.  He stresses that sentences have not gone down since Booker in fraud and child porn cases, but rather have gone up greatly since Booker.  Says Mr. Otis is "incorrect" that the recent trend show continued movement away from guidelines, and he also notes that departures and variances from guidelines are modest.

I will cover follow-up Q & A in a separate post...

October 12, 2011 in Advisory Sentencing Guidelines, Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Florida legislator introduces bill to replace lethal injection with firing squad as execution method

This local story out of Florida, headlined "State Rep. files bill to add firing squad to death penalty laws," reports on a notable legislative reaction to litigation over lethal injection protocols. Here are excerpts:

State Rep. Brad Drake filed a bill Tuesday that would eliminate lethal injection as a method for execution in Florida.  Instead, people facing the death penalty would be allowed to choose execution by firing squad.  Electrocution still would be allowed under the bill [which is available here].

Drake, R-Eucheeanna, said in a news release issued Tuesday night [available here] that he filed the bill in response to debate over the effectiveness of certain drugs used in lethal injection executions.  “So, I say let’s end the debate,” he said in the release. “We still have Old Sparky. And if that doesn’t suit the criminal, then we will provide them a .45 caliber lead cocktail instead.”

In the release, Drake said the bill was in reaction to a group of doctors and legal experts who had been asking Gov. Rick Scott for a stay of execution for Manuel Valle, a 61-year-old man convicted of murder in the death of a law enforcement officer in Miami in 1978.

Valle was executed late last month after 33 years on death row. He was the first Florida inmate executed using pentobarbital as the first of three drugs in the injection.  His lawyers questioned the drug, saying it had not been tested for use to render an inmate unconscious.

“I am sick and tired of this sensitivity movement for criminals,” Drake said.  “Every time there is a warranted execution that is about to take place, some man or woman is standing on a corner holding a sign, yelling and screaming for humane treatment.  I have no desire to humanely respect those that are inhumane,” he said in the release.

Some recent and older related posts:

October 12, 2011 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (6) | TrackBack

"The Costs of Judging Judges by the Numbers"

The title of this post is the title of this relatively short paper by Marin Levy, Kate Stith and José Cabranes, which is available via SSRN. (Though not directly focused on judging judges based on sentencing numbers, I think it is telling and not too surprising that two of the authors of this paper have a long distinguished history of federal sentencing scholarship.)  Here is the abstract:

This essay discredits current empirical models that are designed to “judge” or rank appellate judges, and then assesses the harms of propagating such models.  First, the essay builds on the discussion of empirical models by arguing that (1) the judicial virtues that the legal empiricists set out to measure have little bearing on what actually makes for a good judge; and (2) even if they did, the empiricists’ chosen variables have not measured those virtues accurately.  The essay then concludes that by generating unreliable claims about the relative quality of judges, these studies mislead both decision-makers and the public, degrade discussions of judging, and could, if taken seriously, detrimentally alter the behavior of judges themselves.

Especially because sentencing judges are (too?) often judged by the numbers of years of prison they impose on various offenders, I think this essay should be read by advocates of sentencing reforms.

October 12, 2011 in Who Sentences? | Permalink | Comments (1) | TrackBack

SCOTUS adds capital Double Jeopardy case from Arkansas to its docket

As reported in this SCOTUSblog post, yesterday the Supreme Court granted cert on a case from Arkansas which coincerns "the scope of the Constitution’s ban on double jeopardy, when a jury has voted against a guilty verdict on a serious offense, but deadlocks on a lesser crime and prosecutors seek a retrial on the greater crime."  Here are the basics via Lyle Denniston's reporting:   

The [criminal justice] newly granted case was Blueford v. Arkansas (docket 10-1320). At the murder trial of Alex Blueford, the trial judge told the jury to consider capital murder and three lesser crimes — first-degree murder, manslaughter, and negligent homicide. It should not consider any of those, the judge said, unless it first agreed unanimously that Blueford was not guilty of a greater offense, in order of the seriousness of the offense. The forewoman announced in court that the jury had voted unanimously against capital murder and first-degree murder, and had deadlocked on manslaughter so it did not consider the negligent homicide charge, a more serious charge.   The judge granted a mistrial, rejecting defense lawyers’ plea to declare a partial verdict of acquittal on capital murder and first-degree murder.  When Blueford was retried, prosecutors pursued guilty verdicts on all of the prior charges.  The trial judge refused to dismiss the more serious charges, and Blueford then lost a pre-trial appeal to the Arkansas Supreme Court.  Lower courts are split on the double jeopardy question.

October 12, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

October 11, 2011

Witnesses identified for House hearing on post-Booker federal sentencing

As reported in this prior post, tomorrow morning (Oct. 12, 2011), the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee will be conduction a hearing to examine the post-Booker federal sentencing system.  The hearing is titled "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker," and the witness list has now been published at this calender entry.  The prominent persons scheduled to testify should be well known to many readers of the blog:

The Honorable Patti B. Saris; Chair, United States Sentencing Commission

Mr. Matthew Miner; Partner, White & Case LLP

Mr. William Otis; Adjunct Professor, Georgetown Law

Mr. James E. Felman; Kynes, Markman & Felman, P.A.

As I have said before and will say again, I am extremelypleased to see that the House is showing some interest in the current state and potential future of both the federal sentencing system and the USSC.   On so many modern federal sentencing fronts — on issues ranging from mandatory minimums for drug and gun offenses, to crack/powder sentencing after the FSA, to fraud sentencing, to child porn sentencing (and restitution), to reasonableness review, to fast-track departures, to acquitted conduct and on and on — there is uncertainty not only as to whether justice is being served, but also as to just what the USSC is doing in response to all this uncertainty.

If my schedule permits and if the hearing is webcast, I may try to live blog at least parts of the festivities scheduled to take place tomorrow morning in the Rayburn House Office Building.  In addition, I welcome/encourage anyone who is involved with or who attends the hearing to send me any and all blog-friendly text or materials in conjunction with this (important?) congressional hearing on the federal sentencing system.

October 11, 2011 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (9) | TrackBack

Fourth Circuit provides 100 pages of ACCA's application to indecent liberties

If you cannot get enough of appellate litigation over intricate issues in the definition of a crime of violence under the federal Armed Career Criminal Act — and, really, who can? — then you are going to adore the work of the en banc Fourth Circuit today in US v. Vann, No. 09-4298 (4th Cir. Oct. 11, 2011) (available here). This summary of the disposition and the opinions in Vann provides a small taste of the fun the case potends:

Vacated and remanded by published opinion. A per curiam opinion, in which Chief Judge Traxler and Judges Motz, King, Gregory, Agee, Davis, Keenan, Wynn, and Diaz joined, was issued on behalf of the en banc majority.  Judge King wrote a concurring opinion, in which Judges Motz, Gregory, and Davis joined.  Judge Agee wrote an opinion concurring in the judgment, concurring in the en banc majority opinion, and concurring in the opinion of Judge Keenan.  Judge Davis wrote a concurring opinion.  Judge Keenan wrote a concurring opinion, in which Chief Judge Traxler and Judges Agee, Wynn, and Diaz joined.  Judge Wilkinson wrote an opinion concurring in the judgment.  Judge Niemeyer wrote an opinion concurring in part and dissenting in part, in which Judge Shedd joined.

Got that?  As for the substance prompting all this opinion writing (totalling 100 pages), here is part of the start of the per curiam opinion from the Fourth Circuit majority:

On January 20, 2008, following a domestic altercation, Torrell Vann was arrested in possession of a handgun.  In November of that year, the grand jury returned a single-count superseding indictment charging Vann with violating 18 U.S.C. §§ 922(g)(1) and 924. The indictment also alleged that Vann had at least three previous convictions for ACCA violent felonies, rendering him eligible for the sentencing enhancement provided for in § 924(e)(1).  On December 15, 2008, Vann pleaded guilty to the offense charged, and his sentencing proceedings were scheduled for the following March.

A § 922(g) offense typically carries a statutory maximum sentence of ten years in prison. See § 924(a)(2).  If the accused has three or more previous convictions for ACCA violent felonies, however, he is subject to an enhanced minimum sentence of fifteen years with a maximum of life imprisonment.  See § 924(e)(1). Vann’s presentence investigation report (the "PSR") reflected that he had three previous convictions for violating North Carolina General Statute section 14-202.1 (the "Indecent Liberties Statute" or "Statute") that, according to the probation officer, constituted ACCA violent felony convictions and subjected Vann to the sentencing enhancement....

Vann objected to the district court’s application of the enhancement, asserting that recent Supreme Court and Fourth Circuit decisions undermined the PSR’s contention that his previous convictions were for ACCA violent felonies....

The district court rejected Vann’s characterization of his three previous indecent liberties convictions, concluding that they were for ACCA violent felonies and that he was thus subject to § 924(e)(1)’s sentencing enhancement.  As a result, on March 17, 2009, the court sentenced Vann to the statutory minimum of fifteen years in prison....  A divided panel of this Court affirmed Vann’s sentence....  Upon granting Vann’s petition for rehearing en banc, we vacated the panel opinion.

October 11, 2011 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Another GOP debate, another chance to (fail to) discuss drug war and mass incarceration

Tonight brings another debate among the Republican presidential hopefuls, and this Washington Post entry sets up the basics:

For 90 minutes in New Hampshire tonight, eight Republican presidential hopefuls will sit around a wooden table and take shots at each other and President Obama.  The theme of The Washington Post/Bloomberg debate, which starts at 8 p.m, is the economy.   As Karen Tumulty, who will be one of the journalists asking questions, wrote, previous debates definitively shifted the momentum of the race.  And tonight’s debate will likely set off yet another a new phase.

This new Wall Street Journal commentary by Fred Barnes highlights how central these debates have become to the national political conversation, and that is why I will keep hoping and rooting for one of these many debates to explore with the candidates their views on the war on drugs and mass incarceration.  

The recent PBS documentary on America's experience with alcohol prohibition provided yet another reminder of the many ways in which criminalization of certain market transactions impact national and local economies, as well as federal and state government spending and tax revenues.  (The Prohibtion series mentioned, though did not discuss sufficiently, that those folks pushing for alcohol prohibition recognized they had to first push through a constitutional amendment authorizing a national income tax to make up for the federal tax revenue that would be lost once alcohol sales were banned.  Imaginging an alternative modern US politics and history if we did not have a national income tax is mind-boggling.)

As has been the case before, I am expecting to be disappointed by tonight's debate because I doubt we will get any focus on the drug war and mass incarceration despite the fact that a significant portion of federal government spending and a massive portion of state government spending is devoted to these big government programs.   Still, in the hope someone in charge of tonight's debate or future ones, let me repeat some of my favorite free-market-oriented questions about these topics that I would like to hear discussed by all the GOP hopefuls:

Some recent and older related posts:   

October 11, 2011 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (15) | TrackBack

Habeas, deportation and strip searches on SCOTUS docket this week

Despite a short work week, there is a good bit of criminal procedure on the SCOTUS docket as the Court closes out its October sitting.   Via SCOTUSblog, here are the basics:

10-637, Greene v. Fisher: For purposes of adjudicating a state prisoner's petition for federal habeas relief, what is the temporal cutoff for whether a decision from this Court qualifies as clearly established Federal law under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996?

10-694, Judulang v. Holder: Whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable and excludable under differently phrased statutory subsections, but who did not depart and reenter the United States between his conviction and the commencement of removal proceedings, is categorically foreclosed from seeking discretionary relief from removal under former Section 212(c) of the Immigration and Nationality Act.

10-945, Florence v. Board of Freeholders: Whether the Fourth Amendment permits a jail to conduct a suspicionless strip search whenever an individual is arrested, including for minor offenses.

October 11, 2011 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

October 10, 2011

Oklahoma using electronic monitoring to enable earlier prisoner releases

As detailed in this interesting local article, headlined "Hundreds of Oklahoma prisoners could be released Nov. 1," a notable sentencing reform plan incorporating technocorrections goes into effect this week in the Sooner State.  Here are the particulars (along with the usual expressions of concern from the tough-on-crime crowd):

Oklahoma corrections officials say they are preparing to put as many as 250 to 300 inmates in ankle monitors and release them. Prosecutors throughout the state are upset.

The inmates, convicted of nonviolent offenses, are set to be released starting Nov. 1. That is when a new law intended to relieve prison overcrowding goes into effect.  The law changes when certain nonviolent inmates become eligible for ankle monitors.

“I suspect that many — if not most — of the legislators that voted for this didn't realize it was going to have the result of releasing several hundred inmates on Nov. 1,” said Michael Fields, district attorney for Blaine, Canadian, Garfield, Grant and Kingfisher counties.

“I have a hard time believing that legislators understood that whenever they agreed to vote for this law,” Fields said.  “I doubt that would have been their intent because many of those legislators are our allies on public safety issues. I think that this clearly does undermine public safety.”

House Speaker Kris Steele, R-Shawnee, said the goal actually is to increase public safety. He said the change will put more low-risk, mostly female inmates into the successful electronic monitoring program so corrections officials can focus their limited resources on inmates who are truly threats to society....

Currently, in general, no nonviolent inmate is eligible for an ankle monitor until he gets down to the last 11 months of his sentence. Starting Nov. 1, offenders with sentences of five years or less become eligible once they have served 90 days, if no other restrictions apply.

Prosecutors said Friday public confidence in sentences will be undermined if quick releases start happening. “Then, I will stop sending people to prison for less than five years,” said Greg Mashburn, district attorney for Cleveland, Garvin and McClain counties. “I mean, I'll have no choice. If I intended them to go to prison, I intended them to stay for more than 90 days. I will absolutely adjust what I'm doing on my cases so this isn't happening.”

Mashburn said ankle monitors haven't worked well in his counties. He recalled three instances where offenders on ankle monitors committed crimes. “Ankle monitors, it's not the great answer. ... A lot of people think, ‘Well, if they're on an ankle monitor, we can stop them from committing crimes.' All we're going to be able do is know where they were when they were committing the crime,” Mashburn said.

Oklahoma County District Attorney David Prater said he worries whether the overburdened and underfunded Corrections Department will have enough officers to keep track of the hundreds of new inmates on ankle monitors. “It's almost impossible for them to adequately supervise even people on probation,” Prater said. “There's no way that the Department of Corrections has the capability to adequately supervise those prisoners on ankle monitors and assure the public that they will be kept safe.”

Corrections Department Director Justin Jones said few inmates will get ankle monitors after only 90 days. Most will need more time. “It would be the exception and not the rule,” Jones said. “Some needs are going to have to be addressed … before we put them into a re-entry program. … Rational behavior training, substance abuse, anger management, parenting skills, fatherhood skills, those kinds of things.”

Corrections officials originally came up with a list of 1,133 nonviolent offenders already serving sentences to be considered for ankle monitors because of the new law.

The original list included burglars, drug offenders, embezzlers, drunken drivers and thieves. Officials have been eliminating from that list inmates who do not qualify for ankle monitors for other reasons, such as they have no suitable residences where they can go.

Prosecutors say they have been told as many as 600 inmates will get ankle monitors Nov. 1. But the Corrections Department director said the list is now down to around 400 and will probably be cut down to 250 to 300.

“We consider it a very successful re-entry program,” Jones said. “And it is controlled. And it is custody because of the devices and the supervision by an officer.” The director said more than 90 percent of the females who get ankle monitors succeed and 86 percent of the males do....

About 450 convicts already are on ankle monitors, a Corrections Department spokesman said. Their movements are tracked by GPS.  The House speaker and Corrections Department director both said most of the inmates who will be getting ankle monitors Nov. 1 are already in halfway houses and other community correction centers. Steele said he understands more officers have been hired to track their movements. “I really do think it's much ado about nothing,” Steele said of prosecutors' concerns.

Whatever Oklahoma prosecutors might say say about what they think their state legislators did not realize, I suspect somebody behind this legislation concluded that it was more politically palatable than raising taxes to pay for more prison beds.  (I have long thought that if state sentencing reforms included an automatic increase in prosecutorial funding based on a percentage of savings that come from decreases in incarceration levels, prosecutors would not always have such a predictable reaction to sentencing reforms that result in some early releases.)

October 10, 2011 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Technocorrections, Who Sentences? | Permalink | Comments (5) | TrackBack

"Obama: From First to Worst on Medical Marijuana"

MPP The title of this post is the headline of this commentary now appearing at the Huffington Post, which is authored by Rob Kampia, the Executive director of the Marijuana Policy Project.  Here are excerpts: 

During his run for the presidency, Barack Obama instilled hope in medical marijuana supporters by pledging to respect state laws on the matter.  And for the first two years of his term, he was generally faithful to his promise.  Yet suddenly, and with no logical explanation, over the past eight months he has become arguably the worst president in U.S. history regarding medical marijuana....

This past spring, Obama's U.S. attorneys in Arizona, California, Colorado, Hawaii, Montana, New Hampshire, Rhode Island, Vermont, and Washington state issued letters to local and state government officials at carefully chosen times, for the purpose of killing medical marijuana reform measures or hampering implementation in each state....

On September 21, Obama's ATF issued an open letter saying that gun shops cannot sell guns to medical marijuana patients -- or people who are known to be addicted to drugs other than alcohol or tobacco, ironically enough....

But there may be a way forward through this mess: Since Colorado, Maine, and New Mexico set up state-licensing systems for medical marijuana businesses in recent years, literally zero such businesses in these three states have been raided by the feds.

(All the raids we hear about -- in California, Michigan, Montana, and Washington state -- do not involve any state-licensed businesses.  At best, some of the targeted businesses were licensed by local governments in California under a loosely worded provision of California state law.)

Technically, federal prosecutors can civilly or criminally target any marijuana businesses they want -- in any state -- until we change federal law. But, for the time being, the feds appear not to be targeting medical marijuana businesses with state licenses.

It's worth noting that my organization has successfully enacted new laws that include state licensing in Arizona, Delaware, Rhode Island, and Vermont over the last two years.  (And D.C. and New Jersey have licensing systems, too.)

So we may have a way forward.  Unfortunately, the plan now assumes hostility from the former marijuana user in the White House who used to profess notions of hope, change, and compassion toward the less fortunate.  Shame on him.

This commentary reinforces my sense that the shrewd Republican 2012 candidate could get lots of (politically valuable) attention by just raising provocative questions about these latest anti-gun and anti-state moves by the Obama Justice Department in this area.  Such questions need not (yet) be in the form of a wholesale challenge to the war on drugs as articulated by Representative Ron Paul, but they could involve expressions of doubt about the focus on DOJ on these matters while violent crime rates continue to drop and economic frauds of all sorts continue to be of greater concern to the American people.

Of course, as detailed in this post from last year, House Republicans like Judiciary Committee Chair Lamar Smith have been giving the Obama Administration (seemingly unjustified) grief about being soft on the drug war.  I suspect and fear that the latest Obama DOJ surge in the war on pot has been prompted by these big-criminal-justice-government Republican criticism.  In turn, I suspect and fear that even those eager to brandish an outsider reputation among the GOP candidates will have the guts to attack this facet of big government under the Obama Administration.  But, until a GOP candidate other than Ron Paul questions the big-government drug war, I will be persistently suspicious of anyone who asserts they truly support a smaller federal government across the board.

Some recent and older related posts on the modern politics of the drug war:

October 10, 2011 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Georgia prosecutor in Troy Davis case comments on "doubt campaign"

Gerogia's legal newpaper, the Daily Report, has this notable new piece authored by Spencer Lawton, the lead prosecutor in the trial of Troy Davis, which is headlined "Prosecutor: Troy Davis appeals driven by 'doubt campaign' rather than truth."   Here is the start of the lengthy commentary:

As the lead prosecutor in the trial of Troy Davis, I can say that the case has been badly mismanaged by one of our most important institutions, one impressed with a profound public trust.  And while the criminal justice system isn't irretrievably broken, it is very badly damaged.  People are right to wonder how the system could put to death a man with so much doubt remaining.  How is this to be explained?

There are two Troy Davis cases.  Davis I was decided on the facts in courts of law, where he was fairly convicted and sentenced, and his appeals were denied.  Davis II is still under way as a public relations campaign where his innocence is proclaimed on the strength of a "doubt" that is manufactured and false, the overarching purpose being to defeat the death penalty.

The mantra has become "no physical evidence, and seven out of nine eyewitnesses recanted."  Neither is true.  There was physical (ballistic) evidence and persuasive circumstantial evidence.  Some of the so-called recantations weren't recantations at all, others were flatly unbelievable, and others were subsequently abandoned by the defense in a federal evidentiary hearing.

October 10, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

October 9, 2011

New AP article perpetuates notion (myth?) that federal sentencing is still about luck of the draw

This new AP article, which provides a partial preview of an upcoming high-profile white-collar federal sentencing, has a headline and a theme that suggests that luck of the judicial draw matters more than anything else in modern federals sentencing.  The piece is headlined "Sentencing is a wildcard in busy NYC courthouse," and here are excerpts:

The prison term awaiting a one-time billionaire hedge fund founder convicted of insider trading charges is unpredictable at best in a Manhattan courthouse where judges vary considerably in their assessment of how justice should be dispersed at sentencing.

Raj Rajaratnam, 54, is scheduled to be sentenced Thursday for his conviction at trial earlier this year.  If federal prosecutors have their way, he'll get between 19½ and 24½ years in prison for what they say were more than $72 million in profits for himself and his Galleon Group of hedge funds.  If defense lawyers are persuasive, he'll face between 6½ and 9 years for what they say was about $7 million in illegal profits.

Regardless of the outcome, his fate may have been decided when Judge Richard J. Holwell was selected to hear the case after the Sri Lanka-born Rajaratnam's October 2009 arrest.

"Welcome to the Southern District of New York," said Rita Glavin, a former federal prosecutor who leads the white-collar crime unit at the Manhattan law firm of Vinson & Elkins.   "The judge you are assigned to is critical," Glavin said.  "Having been on the prosecution side, there were certain judges from a government perspective you loved being in front of whether for trial, sentencing or evidentiary issues.  Now that I've moved to the defense side, it's not necessarily the same judges."...

The tone and result in sentencings have varied widely for those charged in the case against Rajaratnam and two dozen co-defendants, all of whom have been convicted, most as a result of guilty pleas.  Most of the sentencings have resulted in prison terms ranging from a few months to a few years.  Besides the sentencing guidelines, judges are supposed to take into account various other factors, including the defendant's personal history and the need to deter others from committing similar crimes.

The longest sentence handed down — 10 years — came from a stern Judge Richard Sullivan, who last month dispensed some finger-wagging words toward Zvi Goffer immediately after telling him that he viewed Goffer's sentencing as "a tragic day," not a day "for lecturing or finger wagging or table pounding."

He told Goffer that he had a gambler's mentality after his arrest. "You decided to double down and gamble on a trial," Sullivan said, adding that Goffer acknowledged his crimes post-trial.  "Had you made that acknowledgement before trial, you might have shaved almost three years off your guideline's sentence," he said as he gave him a sentence near the lower end of the guideline's range....  He added: "I am not saying you are going to be punished for going to trial, but there are consequences that flow from that.  You don't get the benefit of people who accept responsibility."

A few hours later, Winifred Jiau, 43, of Fremont, Calif., was sentenced to four years in prison after her conviction in an insider-trading probe that focused on Wall Street consultants who matched up public company employees willing to divulge secrets about earnings and mergers with hedge fund managers. The investigation was a spinoff of the Rajaratnam-Galleon probe.

Jiau received half the prison term recommended by sentencing guidelines from Judge Jed Rakoff, who had a different view of the effects of going to trial.   "I know judges vary.  It will never be the policy of this court to make a huge difference in sentence between those who exercised their right to go to trial and those who plead guilty, because at that point I think it becomes no longer a recognition of the credit that should justly be given for acceptance of responsibility, it becomes a veiled price of going to trial," he said.  "There should be no price on going to trial."...

Annemarie McAvoy, a Fordham Law professor, said she learned as a young federal prosecutor in Brooklyn from 1989 to 1992 that the judge assigned to each case "makes a huge difference."

"There were clearly judges who were more favorable to the government.  They did longer sentences.  They didn't make it as easy for defendants," she said.  "And there were other judges always trying to do as much as they can for defendants and always trying to give them the lowest sentence they could.  That was luck of the draw."

October 9, 2011 in Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (21) | TrackBack

"Civilized society demands the death penalty"

The title of this post is the headline of this notable new commentary authored by a local pastor in Ohio providing a spirited and spiritual defense of the death penalty.   Here are excerpts:

There has been a lot of talk recently about Ohio's death penalty.  We have all heard the tired old arguments both for and against the death penalty.  In arguing the death penalty issue, people fight about whether it is a deterrent but that is not the issue.  Similarly, we argue about whether the death penalty is revenge or justice.  It usually is both, but again, we are missing the big issue.

The real issue about capital punishment is whether we value life or not.... I think we all could agree that you cannot put a dollar amount on one's life.  So what penalty for a person who intentionally takes an innocent life speaks to the value of the victim's life?... I find it chilling when one can intentionally take the life of another and the consequences are 10, 20, 30 years in prison.  I regularly preach in prisons here in Ohio, and I can tell you that one-third of the world's population would consider an American prison a step up from their current existence.

Now let's talk about why a civilized society demands the death penalty. The death penalty is not about vengeance.  If the law were about vengeance, then we would allow the victim's family to beat the inmate to death rather than give him a tranquilizer before we execute him.  The death penalty is not about deterring someone else from committing murder; otherwise we would hang the inmate in the town square and televise it for all to see.  

The death penalty is about putting the proper value on the life of the victim.  No, executing killers won't bring their victims back.  Yet, the death penalty says to our society that the only true price that can be asked for the life of the victim is the life of the perpetrator.  It says we value life so much that we can ask the ultimate price be paid for the ultimate crime committed.  To do less diminishes the value of the victim's life and thus diminishes all of our lives....

Perhaps if we were not so quick to look for excuses and more concerned about defending life, the death penalty could be applied more fairly and consistently.  Perhaps if we made the death penalty automatic for a murder conviction and allowed the jury (not a judge or prosecutor) to decide whether or not to commute the sentence to life without parole, we would not have to spend millions of dollars and decades of time to carry out this necessary, albeit, ugly form of punishment.

October 9, 2011 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (28) | TrackBack