March 5, 2012
Split Ninth Circuit panel rejects Tucson shooter's effort to end forced medication
As reported in this AP piece, a Ninth Circuit panel today "denied a request by the Tucson shooting suspect's lawyers to halt their mentally ill client's forced medication with psychotropic drugs and end his treatment at a Missouri federal prison facility." Here are more of the details surrounding the ruling:
Loughner is being treated at a Missouri prison facility where he has been forcibly medicated for about seven months in a bid to try to make him mentally fit for trial.
U.S. District Judge Larry Burns had ruled that Loughner isn't psychologically fit to stand trial after experts concluded he suffers from schizophrenia. But Burns has said Loughner can eventually be made ready for trial after more treatment in Missouri. His current stay is set to end June 7.
Even though psychologists have said Loughner's condition is improving, his lawyers have vigorously fought the government's efforts to medicate him. This summer, the appeals court temporarily halted Loughner's forced medication, but it resumed once mental health experts at the prison concluded that his condition was deteriorating further.
Loughner has demonstrated bizarre behavior since his arrest. He was removed from a May 25 court hearing when he lowered his head to within inches of the courtroom table, then lifted his head and began a loud and angry rant. But his psychologist has said that since Loughner has been forcibly medicated, his condition has improved. He sat still and expressionless for seven hours at a hearing in September.
At issue is whether prison officials or a judge should decide whether a mentally ill person who poses a danger in prison should be forcibly medicated. Prosecutors said the decision is for prison officials to make, while Loughner's lawyers said it's up to a judge. Thus far, prison officials have made the decision to medicate Loughner.
Loughner's attorneys argued that the decision to forcibly medicate their client solely on the basis of an administrative hearing by prison officials had violated his due-process rights. Prosecutors said Loughner's attorneys are asking Burns to substitute his ruling on whether Loughner poses a danger while in prison with the conclusions of mental health professionals.
"Loughner has made no argument beyond his own comfort level to demonstrate the superiority of judicially directed hearings over medically directed hearings," Judge Jay Bybee wrote in the court's majority opinion. Bybee noted later in the ruling that the prison didn't act arbitrarily in finding Loughner to be a danger to himself and that psychotropic medication was in his best interest.
In a dissenting opinion, Judge Marsha Berzon wrote that a judge must be the person to determine whether involuntary medication is justified when the judge is committing a person to such a facility for the purpose of making him or her psychologically fit to stand trial.
The full opinion in this round of US v. Loughner runs a full 117 pages, is available at this link, and includes also a separate concurrence by Judge J. Clifford Wallace.
"Surprising Judge-to-Judge Variations Documented In Federal Sentencing"
As previously "previewed" in this post, today the Transactional Records Access Clearinghouse (aka TRAC) has released important new data and a report concerning federal sentencing practices in recent years. This TRAC report, which carries the same title as this post, is now available at this link, and it gets started this way:
An analysis of more than 370,000 cases completed in the nation's federal courts during the last five years has documented extensive and hard-to-explain differences in the sentencing practices by the judges working in many federal districts.
This first-of-its-kind, judge-by-judge review by the Transactional Records Access Clearinghouse (TRAC) of federal sentences imposed for drugs, white collar and other kinds of crimes from FY 2007 to FY 2011 indicates that the typical sentence handed down by a federal district court judge can be very different than the typical sentences handed down for similar cases by other judges in that same district. This finding raises questions about the extent to which federal sentences are influenced by the particular judge who was assigned to decide it rather than just the specific facts and circumstances of that case.
Caution. A key requirement for achieving justice is that the judges in a court system have sufficient discretion to consider the totality of circumstances in deciding that a sentence in a specific case is "just." No set of rules, including the federal sentencing guidelines, can substitute for this necessary flexibility.
But a fair court system also requires "equal justice" under the law. This means that the average or typical sentences of the judges will not be widely different for similar kinds of cases. So the goal of systematically examining sentences is not to develop a lockstep sentencing system. Rather, the goal is to provide both the courts and the public with accurate information so that they can examine whether justice is being achieved.
There is a whole lot here to consume and discuss in this TRAC report, and I hope to discuss what I see as soon as I get back from my afternoon class and have time to consume it.
Recent related post:
Ohio judges (and prosecutors) lament new limits discretion to send offenders to prison
In the federal sentencing system, judges and defense attorneys frequently complain about mandatory sentencing provisions that require imposition of long prison terms on certain offenders. Now, as this new local article reports, in Ohio judges and prosecutors are complaining about new mandatory sentencing provisions that require imposition of no prison terms on certain offenders. The piece is headlined "Judges are offended by new law on sentencing," and here are excerpts:
A Fairfield County judge ran up against Ohio’s new sentencing law last week and was prevented from sending an offender to prison. Instead, Common Pleas Judge Richard E. Berens must ask the state Department of Rehabilitation and Correction for non-prison alternatives before he sentences embezzler John W. “Bill” Elder.
Berens said the requirement amounts to asking permission from state bureaucrats to send someone to prison. Other common pleas judges around Ohio agree. At issue is a requirement that judges who want to sentence offenders to prison must first ask state prison officials for alternative sanctions lasting at least one year. If prison officials either cannot identify suitable local sanctions or fail to respond to a judge’s request within 45 days, the judge may go ahead with a prison sentence.
The requirement applies to the sentencing of first-time, nonviolent offenders convicted of fourth- and fifth-degree felonies. Rather than prison, they must now be sentenced to a community-control program unless none is available. The community-control programs may range from probation and drug treatment to county jail and other locked community correction centers.
The provision is included in a comprehensive sentencing law that took effect on Sept. 30. It is part of a package of changes intended to divert lower-level offenders from crowded state prisons into community-control programs.
This was the first time that Berens had run up against the requirement, which he said is bad public policy that removes judicial discretion and may violate the constitutional separation of powers by allowing the executive branch of government to override the judicial branch. Other judges aren’t happy, either. They all noted, however, that they will follow the law. “This, in my opinion, is essentially an executive agency co-opting a judicial function,” said Hocking County Common Pleas Judge John T. Wallace.
The provision will be challenged, predicted Hancock County Common Pleas Judge Reginald J. Routson, a former president of the Ohio Common Pleas Judges Association who worked with lawmakers when the bill was being drafted. He says legislators should have listened more to judges. “It needs to be tested,” Routson said. “It is unlike any piece of legislation that I’ve ever seen.”
Sen. Bill Seitz, the Cincinnati Republican who was the law’s principal architect, disagreed that the provision undermines judicial discretion or the separation of powers. The legislature continually enacts laws that affect what judges can do, including the requirement to impose mandatory minimum sentences for certain crimes, he said.
The debate reflects a tug of war between judges who want complete discretion in sentencing and elected leaders who have to fund the state prison system, Seitz said. “If people want to raise Cain over this provision, how much in higher taxes are you willing to pay to build more prisons?” he said....
Fourth-degree felonies used to carry a maximum of 18 months in prison, and fifth-degree felonies a maximum of a year in prison. County Prosecutor Gregg Marx said he and his assistant prosecutor decided to ask for up to 10 years [in the Eller case] because that punishment fit the crime.
Marx said he agreed with judges that the new law’s requirement to sentence lower-level felons to non-prison alternatives improperly removed judicial discretion and allowed the executive branch to encroach on the judiciary.
It is telling (and not all that surprising) that when the mandate to judges from applicable sentencing law is to impose more lenient sentences, prosecutors begin talking about the need for sentencing judges to be given more discretion. It is also worth noting that in Ohio it was a Republican-dominated legislature that passed this mandate to seek non-prison sentences for low-level offenders and a Republican governor (John Kasich) that signed the bill into law. As regular readers know, when money gets tight, the politics of sentencing reform will often change. And, as this story highlights, when judicial discretion to increase sentences gets limited, who advocates for more judicial discretion will also change.
Unanimous SCOTUS opinion resolves counsel rules for federal habeas
In its last day of action before another Supreme Court hiatus, the Court today issued a unanimous ruling in the federal habeas case Martel v. Clair, No. 10-1265 (S. Ct. March 5, 2012) (available here). The opinion, per Justice Kagan, gets started this way:
A federal statute, §3599 of Title 18, entitles indigentdefendants to the appointment of counsel in capital cases,including habeas corpus proceedings. The statute contemplates that appointed counsel may be “replaced . . . upon motion of the defendant,” §3599(e), but it does not specify the standard that district courts should use in evaluating those motions. We hold that courts should employ the same “interests of justice” standard that theyapply in non-capital cases under a related statute, §3006A of Title 18. We also hold that the District Court here did not abuse its discretion in denying respondent KennethClair’s motion to change counsel.
March 4, 2012
New TRAC federal sentencing data (with judge identifiers!) highlights post-Booker variations
A potential blockbuster new set of federal sentencing data is emerging this coming week thanks to the folks at TRAC, as first reported in this new AP article headlined "Federal sentences still vary widely." Here are excerpts from this first report on a story which I suspect will garner lots of attention (and posts) in the coming days and weeks:
A new study shows that federal judges are handing out widely disparate sentences for similar crimes 30 years after Congress tried to create fairer results, but the differences don't line up with the party of the president who appointed the judges, despite any impressions that Republicans or Democrats may be tougher or softer on crime.
Sentencing data from the past five years that was analyzed for The Associated Press by the Transactional Records Access Clearinghouse during this presidential election year show that sentences for the same types of crimes vary significantly between judges in the same courthouse. But the party of the president who picked a judge is not a good predictor of whether a judge will be tough or lenient on a defendant found guilty at trial.
The analysis showed the judges who meted out the harshest average sentences after trials for three of the most common types of crime — drugs, weapons and white-collar charges — were split evenly between the two parties, based on which president appointed them....
The sentencing disparities can be vast, but the study shows they are not partisan. For example, defendants convicted in a drug trial in the Southern District of California got an average sentence of 17 years before Republican-appointed judges, compared with six years before Democratic counterparts. But a weapons conviction after trial in the Eastern District of Michigan resulted in an average sentence of 21 years before the Democratic-appointed judges and an average of less than 12 from the Republican ones.
Those figures come from TRAC, a research center at Syracuse University that uses the Freedom of Information Act to collect data about federal law enforcement activities.
On Monday, TRAC planned to launch the first publicly available database of sentencing records, sortable by judge, after a 15-year struggle to get records from a reluctant Justice Department. The center has filed FOIA lawsuits against the department four times, dating to 1998, and combined the hundreds of thousands of records it ultimately obtained with information directly from the federal courts to produce the database.
The database, available to anyone who pays $65 a month for a TRAC subscription, shows how many sentencings each federal judge has handled from the 2007-2011 budget years, the average sentence each issues and how long on average it takes the judge to dispose of a case. It compares each judge's figures with others in the same district and across the country, as well as the percentage of their cases by type of crime. That data could be useful to researchers or attorneys trying to gauge the odds their clients face with a particular judge.
TRAC co-director David Burnham said the data raises questions about the extent to which the goal of equal justice under the law is being served in some districts. He said TRAC doggedly pursued the data because it's vital the public and the courts have evidence that could improve the justice system....
A striking difference jumps out on first glance at the database: The huge variation in workloads between judges. Eleven judges in Southwest border states handled more than 800 cases on average a year, because of the large number of illegal immigrants captured in the region. All of the judges ranked in the top 25 for heaviest caseload are from Southwest border districts, led by U.S. District Judge Robert Brack in New Mexico with 6,331 sentencings over the five years and Judges George Kazen and Micaela Alvarez from the Southern District of Texas with more than 5,750 each.
There is so much of political and practical importance to this story and the data that TRAC has assembled (and I have placed the important data backstory in bold because it merits extra attention).
Most fundamentally, the data TRAC have assembled involve, to my knowledge, the first major compilation of federal sentencing outcomes with specific information about which judges imposed what sentences. For that reason (and many others), I suspect a lot of folks (myself included) will be looking to buy this valuable data from TRAC and will be eager to figure out (a) how accurately it is assmebled and reported, and (b) how best to utilize this important new data for various purposes.
Wowsa! And stay tuned federal sentencing fans...