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January 21, 2012

Tenth Circuit (grudgingly?) upholds ruling striking down Albuquerque ban on sex offenders in libraries

Late yesterday, a Tenth Circuit panel affirmed in Doe v. City of Albuquerque, No. 10-2102 (10th Cir. Jan. 20, 2012) (available here), a district court's ruling striking down a local ban on registered sex offenders entering public libraries. But, as the start of the ruling hints, it almost seems as though the panel had wished it had the evidence needed to rule the other way:

This appeal presents us with a difficult issue of first impression. John Doe, a registered sex offender, brought a facial challenge under the First and Fourteenth Amendments to a ban enacted by the City of Albuquerque that prohibited registered sex offenders from entering the City’s public libraries.  The district court denied a motion to dismiss brought by the City and ultimately granted summary judgment in favor of Doe.  The court concluded that the ban burdened Doe’s fundamental right to receive information under the First Amendment and that the City failed sufficiently to controvert Doe’s contention on summary judgment that the ban did not satisfy the time, place, or manner test applicable to restrictions in a designated public forum.  The City appeals both the denial of its motion to dismiss and the grant of Doe’s summary judgment motion.

Complicating our inquiry is the fact that the City, relying on a mistaken interpretation of case law regarding facial challenges, erroneously contended that it had no burden to do anything in response to Doe’s summary judgment motion.  Consequently, the City failed to present any evidence as to the reasons or justification for its ban, whether the ban was narrowly tailored to address the interest sought to be served, or whether the ban left open alternative channels for receiving information.  Had the City done so, it is not difficult to imagine that the ban might have survived Doe’s challenge, for we recognize the City’s significant interest in providing a safe environment for its library patrons, especially children.  As an appellate court, however, we are bound by the record and the law.  And in this case they require us to affirm the district court.

January 21, 2012 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (21) | TrackBack

Ohio asks SCOTUS to vacate stay of state execution

As reported in this AP piece, "Ohio has asked the U.S. Supreme Court to uphold the state’s lethal injection procedures, arguing that minor deviations in policy don’t mean the system is unconstitutional." Here are the basics:

The office of Attorney General Mike DeWine says that, without Supreme Court action, Ohio is in danger of having dozens of executions delayed on a case-by-case basis.

The appeal filed Friday asks the court to let Ohio put to death 45-year-old Charles Lorraine, sentenced to die for fatally stabbing an elderly couple in Warren in 1986.

U.S. District Court Judge Gregory Frost halted Lorraine’s execution on Jan. 12, saying the state failed to properly document the drugs used in its last execution in November and failed to review the medical chart of the inmate who was put to death.

Because Lorraine's execution was scheduled for last week, it is unclear to me whether the state expects or even wants the Supreme Court to rule on this motion to vacate the stay very quickly.  Notably, the introduction in Ohio's SCOTUS filing concludes this way:

The State has scheduled executions into 2014, with the next one planned for February 22, 2012.  There are 101 Ohio capital inmates who have raised these equal protection claims — 87 as parties to this litigation and 14 who have filed similar complaints. If this Court does not vacate the district court’s stay, these executions may not go forward because, in the words of the Sixth Circuit, “the federal courts [will] monitor every execution on an ad hoc basis.”  Appx. A at 2.  Given the weakness of the district court’s legal foundation, that result cannot stand.

These points suggest to me that Ohio is right now less concerned with getting Lorraine executed ASAP and more concerned that it may be unable to move forward with the sizeable number of other executions scheduled for 2012 and beyond.

Some related posts concerning Ohio's recent lethal injection litigation: 

January 21, 2012 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

January 20, 2012

"The Law and Economics of Fluctuating Criminal Tendencies"

The title of this post is the title of this interesting-looking new paper up on SSRN from Murat Mungan. Here is the abstract:

Law and economics is one of the most successful legal disciplines, and it is used frequently to study various legal issues, doctrines, and policies.  Its application to criminal law has received great attention by economists as well as lawyers.  But, economic analyses of criminal law are often criticized for employing unrealistic assumptions and performing poorly in providing rationales for various criminal law doctrines.  In light of these criticisms, one may be tempted to jump to the conclusion that law and economics in particular, and consequentialist approaches in general, are inappropriate for studying criminal law and procedure.

In this article, I demonstrate that the poor performance of economic analyses in providing rationales for a number of criminal law doctrines is not the result of some inherent problem with consequentialism, but its narrow application.  Specifically, I show that the two main criticisms mentioned above are interrelated, and that addressing the first — by employing more realistic assumptions — at least partially resolves the second.

In particular, economic analyses of criminal law can achieve greater explanatory power by incorporating two simple facts: (i) the degree of control one can exert over himself to abstain from committing a wrongful act fluctuates over time, and (ii) the incapacitative function of imprisonment contributes to reductions in crime.  Despite the simplicity of observing these two facts, almost all normative economic analyses of criminal law ignore them. Instead, they assume that criminals have constant criminal tendencies, and that the only benefit of imprisonment is deterrence.

This article demonstrates that an economic analysis incorporating the two simple facts mentioned above provides convincing rationales for (i) why repeat offenders are punished more severely, (ii) why there is a de facto tendency to punish offenders, who are believed to be remorseful, less severely, and (iii) why voluntary manslaughter is punished less severely than murder.  Because previous economic analyses employing narrower approaches face difficulties in providing similar rationales, I conclude that the economic approach gains significant explanatory power by applying consequentialism more broadly.

January 20, 2012 in Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (22) | TrackBack

High costs of sex offender civil confinement driving reform talk in Minnesota

This local article, headlined "Cost drives new plan on treating sex offenders," confirms my sense that states may often find it difficult to pay for broad use of civil confinement for sex offenders. Here is how the piece starts:

Citing the high cost of indefinite civil commitment for Minnesota sex offenders, two influential lawmakers will propose a shift to longer prison terms, coupled with intensive -- but cheaper -- treatment.

In addition, the legislators plan to propose a state mental health review court, a move aimed to standardize the civil commitment process for sex offenders and reduce political pressures on local prosecutors and judges, which can be intense in rural communities.

Sen. Warren Limmer, R-Maple Grove, said Thursday that he and Rep. Tony Cornish, R-Good Thunder, are in the final stages of drafting the legislation. He said a team of legislators has spent the past four months reviewing the public safety and civil liberties issues surrounding the more than 600 patients being held indefinitely in the Minnesota Sex Offender Program (MSOP) at Moose Lake and St. Peter.

"The cost is just tremendous, more than $330 a day, as opposed to keeping these offenders in a corrections setting for about $70 a day," Limmer said. "We intend to stay focused on safety, on cost and on the constitutional issues, [but] holding these individuals longer in prison makes sense rather than paying the high cost of civil commitment."

Limmer and Cornish, chairman of the public safety committees in the Senate and House, respectively, attended a packed forum at the William Mitchell College of Law in St. Paul. Human Services Commissioner Lucinda Jesson and Eric Janus, dean and president at William Mitchell, hosted the symposium.

Last spring, Legislative Auditor James Nobles found that the cost of treating Minnesota's sex offenders could be drastically reduced by creating alternative, highly supervised programs similar to those adopted in New York, Texas and Wisconsin. Minnesota is one of 20 states with civil commitment programs, and in 2010 had the nation's highest number of committed sex offenders per capita. "Without releases, Minnesota is susceptible to lawsuits challenging the adequacy of the treatment program," Nobles found.

January 20, 2012 in Criminal Sentences Alternatives, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (15) | TrackBack

January 19, 2012

"First, a sex offender registry. Next, an animal abuser registry?"

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

Animal abusers, take heed.  Efforts to establish online registries for animal abusers, like the ones for sex offenders, are gaining support, with legislation pending or soon-to-be-introduced in at least five states.

Among the efforts is one from Florida state Sen. Mike Fasano, who has proposed Dexter’s law, named after a kitten that was beaten to death in his state.  His proposal would require convicted animal abusers to register with authorities.  Their names, home addresses and photographs would be posted online, and they would be required to pay $50 a year to maintain the registry.

Registries also have been proposed in Maryland, Colorado, Arizona and New York.  Stephan K. Otto, director of legislative affairs for the Animal Legal Defense Fund, expects similar proposals in more states.

Suffolk County on Long Island in 2010 moved to create a registry, and has since been followed by two other New York counties.  No names appear on the Suffolk County registry yet, because it was only recently set up.  Convicted abusers will appear on the registry for five years.  Those failing to register are subject to a $1,000 fine and up to a year in jail.

January 19, 2012 in Criminal Sentences Alternatives, Offense Characteristics | Permalink | Comments (26) | TrackBack

"Mo. Supreme Court chief calls for sentencing fixes"

The title of this post is the headline of this AP article, which begins this way:

Missouri's chief justice urged lawmakers Wednesday to make changes to the state's probation and parole systems to potentially save the state millions of dollars.

Chief Justice Richard Teitelman urged lawmakers in his annual State of the Judiciary address to pass measures to reduce the number of people in prison for probation and parole violations.

"I support your efforts to help make sentencing practices more cost-effective, helping Missouri to become ... both tough and smart on crime," Teitelman said, addressing a joint session of the state House and Senate.

January 19, 2012 in Criminal Sentences Alternatives, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

In DC for event on "The Relevancy and Reach of the U.S. Sentencing Commission"

As detailed in this official notice, I have the honor of being in Washington DC this afternoon to participate in an ACS/ACLU event on federal sentencing.  Here is the set-up by the hosts:

On Thursday, January 19, 2012, at 1:30 p.m., ACS and the ACLU will host The Relevancy and Reach of the U.S. Sentencing Commission.  During the height of the War on Drugs, in 1984, the U.S. Sentencing Commission was created.  The intent behind the Commission was to provide uniformity to the sentences –- many of them drug sentences -- that were imposed upon federal criminal offenders.  However, instead of eliminating racial and other disparities as intended, the mandatory guidelines perpetuated disparities and took away judicial discretion.  Judges’ hands were tied, with many of them forced to render sentences that they felt were unfair and unjust, especially when it came to sentencing for crimes associated with crack cocaine.

In 2005, the U.S. Supreme Court deemed these federal sentencing guidelines in violation of the Sixth Amendment in U.S. v. Booker.  While the Commission could continue to advise on proper sentencing, the guidelines would be advisory. In the years that have followed, the Commission has continued to play a prominent role in sentencing, most recently generating attention for its decision this past summer to make federal crack cocaine sentencing guidelines retroactive after the enactment of the Fair Sentencing Act.  In the wake of this controversial decision, questions surround the Commission, namely, does the Commission remain valid and legitimate in purpose today?

And here is a rough sketch of what I am planning to say on the panel:

The US Sentencing Commission remains quite valid and legitimate, but it should, at this important moment in federal sentencing law and policy, shift its focus to worrying much, much more about unwarranted sentencing severity while worrying much, much less about unwarranted sentencing disparity. Indeed, evidence of sentencing disparity is always contestable and often contested, and efforts to reduce disparities through new sentencing rules often will produce unintended consequences (in part because modern prosecutorial discretion likely impacts disparities much more than judicial discretion). Moreover, and perhaps most importantly, unwarranted sentencing severity is usually the root cause of unwarranted sentencing disparity: white-collar, drug and child porn sentencings are the settings where, because the guidelines can often suggest crazy high prison terms, different judges make different judgments about whether and how much to vary below the applicable guideline range. As a practical matter, reducing unwarranted sentencing severity is probably going to be the most effective way to reduce unwarranted sentencing disparity.

January 19, 2012 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Former Gov Haley Barbour explains "Why I released 26 prisoners"

In today's Washington Post, former Mississippi Governor Haley Barbour has this notable new piece headlined "Why I released 26 prisoners."  Here are some notable excerpts:

The furor over the pardons I recently granted as governor of Mississippi initially focused on numbers.  I would like to set the record straight.

People thought — incorrectly — that I had let 215 prisoners out of jail because the secretary of state reported that many people received clemency.  In fact, 189 of those people were not released from prison.  In most cases, they had already been out for many years.  These folks are no more a threat to society now than they were the week before I gave them clemency.

I believe in the governor’s power to grant clemency, but I granted fewer than 10 pardons or reprieves in my first term as governor.  After Hurricane Katrina hit in 2005, my staff just didn’t have time to deal with the issue, so at the end of my first term I pardoned only the inmates who had worked successfully at the governor’s mansion that term.

This was not a new thing.  For decades, Mississippi governors have granted clemency to the inmates who work at the mansion.  I followed that tradition four years ago and did so again at the end of my second term.  No one should have been surprised.

Despite all the publicity this month, few seem to notice the limited scope of my recent actions.  I authorized the release of 26 prisoners from custody.  As of last week, there were 21,342 inmates in the state corrections system and 60,517 people under Mississippi Department of Corrections supervision.  I released 12 one-hundredths of 1 percent (0.0012) of our state’s inmates.  About 95 percent of the clemencies I approved were recommended by our state parole board, and I accepted the parole board’s recommendations about 95 percent of the time.

When people realized that only 26 prisoners were being released — and that half of those 26 were given suspended sentences for medical reasons — the political attacks on my pardons shifted.  The story became that many of the 13 non-medical releases were murderers.  Of those 13, only 10 were pardoned; the other three were put under house arrest or a revocable, indefinite suspension....

I always intended to follow the tradition of gubernatorial clemency for the mansion inmates.  When I did so at the end of my first term, I was criticized for pardoning murderers.  I never made any secret of the fact that I would again pardon those who successfully completed work during my second term.  The mansion inmates I fully released are not threats to society.  They have paid the price for their crimes, having served an average of 20 years’ imprisonment.

In Mississippi, the constitutional power of pardon is based on our Christian belief in repentance, forgiveness and redemption — a second chance for those who are rehabilitated and who redeem themselves.  Other great religions have similar tenets; so does the U.S. Constitution.

Mississippi spends about $350 million a year on our corrections system, much of it aimed at rehabilitating those who went wrong.  Regrettably there are bad actors who will never be rehabilitated, but many who go to prison can be helped.  Our state recidivism rate is just above 30 percent, far below the national average.

For some who are rehabilitated and redeem themselves, the governor is the only person who can give them a second chance.  I am very comfortable giving such people that opportunity.

I am impressed with this piece, and it reminds me somewhat of some of the comments made by former Governor Mike Huckabee when he was given grief for his clemency practices.  I especially like not only Barbour's number crunching, but also the emphasis on his "Christian belief in repentance, forgiveness and redemption."  

Barbour's reference to the US Constitution also prompts me to note that President Obama has only commuted one sentence from the more than 216,000 inmates in the federal prison system, meaning he has released far less than one ten-thousands of 1 percent (0.000004) of federal inmates during his presidency.  Perhaps if President Obama ever faces any new questions about his faith, he might consider showcasing a true commitment to the Christian belief in repentance, forgiveness and redemption by starting to make serious use of his constitutional clemency power.   (Obama would need to commute about six sentences every week through 2012 to catch up to Barbour's record of (merely) releasing 12 one-hundredths of 1 percent (0.0012) of federal inmates.)

Recent related and older posts:

January 19, 2012 in Clemency and Pardons, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Feds finally set to stop overseeing health care in California prisons

As reported in this Los Angeles Times article, headlined "Federal oversight of state prison healthcare to end," it appears that the federal judiciary may be finally done keeping an eye on prison healthcare in California. Here are the details:

U.S. District Court Judge Thelton E. Henderson said Tuesday that healthcare in state lockups has improved significantly since he seized control of the system, a move that has cost taxpayers billions of dollars. "While some critical work remains outstanding — most notably on construction issues — it is clear that many of the goals of the receivership have been accomplished," Henderson wrote in a three-page order.

State officials were rebuffed when they sought to end the receivership in 2009. On Tuesday, Gov. Jerry Brown applauded the judge's decision. "We have been working very hard to clean up the mess in the prisons and I appreciate the judicial recognition of our efforts," the governor said in a statement.

Henderson directed state officials, receiver J. Clark Kelso and an inmate advocacy group that sued the state over prison conditions to meet and file a report by April 30, spelling out how to go forward. The parties will have to determine how progress will be measured, sustained and monitored, according to Henderson's order.

Matthew Cate, secretary of the California Department of Corrections and Rehabilitation, said in a statement that "the department is ready and willing to start planning for the end of federal oversight of prison medical care."

Donald Specter, director of the Prison Law Office, the inmate advocacy group, warned that progress could be fleeting. "I'm very worried about the state backsliding, especially in times when money is tight," he said. Specter pointed to a court case involving San Quentin Correctional Facility in the 1980s. Medical conditions eventually improved, he said, but problems arose again after the case was dismissed.

January 19, 2012 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

New paper say there "is no need for a 'Booker fix'; Booker is the fix."

The quote in this title of this post comes from the end of the abstract of this new paper by Amy Baron-Evans and Professor Kate Stith entitled "Booker Rules."  Here is the full abstract:

For the first time, this paper examines the fateful 1987 statutory amendment that was interpreted by the Supreme Court to authorize the Sentencing Commission to make its guidelines, policy statements, and commentary binding on sentencing judges. The mandatory nature of the Commission's product ultimately led the Court to hold in United States v. Booker (2005) that the guidelines were unconstitutional.

The advisory guideline system wrought by Booker has brought balance to federal sentencing and has reduced unwarranted disparity.  The proposal of Judge (and former Commission Chair) William K. Sessions for Congress to reenact mandatory guidelines raises substantial constitutional issues, including separation-of-powers issues not previously addressed by the Supreme Court.  The recent proposals of the Commission to establish more tightly constraining Guidelines would appear to violate Booker and subsequent cases.  The purported bases for these proposals, in particular a Commission study concluding that racial disparity has increased, are unproven and methodologically flawed.  There is no need for a "Booker fix"; Booker is the fix.

January 19, 2012 in Booker and Fanfan Commentary, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (2) | TrackBack

January 18, 2012

"Poll: Should felons be allowed to vote after serving their sentences?"

The title of this post is the headline that fronts this new CNN piece reviewing the debate that arose between GOP candidates Mitt Romney and Rick Santorum.  Before getting to the poll, the CNN piece provides this background:

Twenty-three states have eased felon voting restrictions since 1997, but in 2011, Florida and Iowa tightened them. Maine and Vermont are the only states with no disenfranchisement for people with criminal convictions.

“It’s really the first time in a while we have seen significant opposition against restoring rights,” said Marc Mauer, executive director of the Sentencing Project, a Washington-based organization that works for criminal justice reform and advocates for voting rights.

Felony disenfranchisement laws date back to the founding of the United States, when legislation restricted people with criminal convictions from voting. Today, laws vary from state to state, but in Iowa, Kentucky, Virginia and Florida, people with a felony conviction are permanently barred from voting, although the right can be restored through a pardon or a rights restoration process.

States' decisions about who is eligible to vote can have national implications. In the 2000 election, Florida was decided by just 537 votes. In that state, almost 950,000 people are disenfranchised because of felony convictions.

And in a nation where every vote counts, disenfranchisement disproportionately affects black voters. Nationally, 5.3 million people are disenfranchised because of felony convictions and about 38% are African-American, according to Sentencing Project. African-Americans make up only 12.6% of the U.S. population. The American Civil Liberties Union said the largest share of disenfranchised voters is in Florida, where nearly one out of every five black men overall is ineligible to vote.

Mauer said voting rights and limitations have historically been tied to race. “At the same time states were adopting poll taxes, they were also tailoring disenfranchisement laws with the intent of disenfranchising black male voters,” he said, adding that disenfranchisement was tied to certain crimes people then believed black men were more likely to commit....

But Roger Clegg, president and general counsel of the Center for Equal Opportunity, a conservative think tank devoted to issues of race, said it’s a matter of criminal justice, not race. It shouldn’t be a topic of discussion at a national level, but should remain a state issue, he said.

“I think that (Santorum) is wrong to want to favor automatic restoration of voting rights to people just because they have served their sentence,” he said. “Reason one being if you don’t follow the law, you don’t have the right to make the law, and when you vote that’s what you’re doing. You’re always making it, at least indirectly, because you are choosing lawmakers.”

Recent and older related posts:

January 18, 2012 in Criminal Sentences Alternatives, Elections and sentencing issues in political debates | Permalink | Comments (5) | TrackBack

US Sentencing Commission publishes (lengthy) set of proposed guideline amendments and issues for comment

Via a posting on its website, the US Sentencing Commission has now released this document which serves as its "Federal Register Notice of Proposed Amendments to Federal Sentencing Guidelines, Policy Statements, and Commentary," as well as a "Request for Public Comment" (which is due no later than March 19, 2012).  The document runs 94 pages, and here is a summary (with my edits and emphasis added) of its coverage from the initial pages:

The proposed amendments and issues for comment in this notice are as follows:

(1) a proposed amendment on fraud and related offenses, including (A) an issue for comment in response to the issue of harm to the public and financial markets, as raised by each of two [congressional] directives to the Commission... ; (B) a proposed change to 2B1.4 (Insider Trading) to implement [another such] directive ..., and related issues for comment on insider trading, securities fraud, and similar offenses; (C) proposed changes to 2B1.1 (Theft, Property Destruction, and Fraud) regarding mortgage fraud offenses to implement [another such] directive ..., and a related issue for comment on mortgage fraud and financial institution fraud; and (D) issues for comment on the impact of the loss table in 2B1.1(b)(1) and the victims table in 2B1.1(b)(2) in cases involving relatively large loss amounts;

(2) a proposed amendment on offenses involving controlled substances and chemical precursors...

(3) a proposed amendment on human rights offenses....

(4) a proposed amendment to 2L1.2 (Unlawfully Entering or Remaining in the United States) to respond to a circuit conflict over application of the term "sentence imposed" in that guideline when the defendant's original "sentence imposed" was lengthened after the defendant was deported;

(5) a proposed amendment presenting options for specifying the types of documents that may be considered in determining whether a particular prior conviction fits within a particular category of crimes for purposes of specific guideline provisions, and related issues for comment;

(6) a proposed amendment to 4A1.2 (Definitions and Instructions for Computing Criminal History) to respond to an application issue regarding when a defendant's prior sentence for driving while intoxicated or driving under the influence (and similar offenses by whatever name they are known) is counted toward the defendant's criminal history score;

(7) a proposed amendment to 4B1.2 (Definitions of Terms Used in Section 4B1.1) to respond to differences among the circuits on when, if at all, burglary of a non-dwelling qualifies as a crime of violence for purposes of the guidelines, and related issues for comment;

(8) a proposed amendment to 5G1.2 (Sentencing on Multiple Counts of Conviction) to respond to an application issue regarding the applicable guideline range in a case in which the defendant is sentenced on multiple counts of conviction, at least one of which involves a mandatory minimum sentence that is greater than the minimum of the otherwise applicable guideline range;

(9) a proposed amendment to 5K2.19 (Post-Sentencing Rehabilitative Efforts) to respond to Pepper v. United States, 131 S.Ct. 1229 (2011), which held, among other things, that a defendant's post-sentencing rehabilitative efforts may be considered when the defendant is resentenced after appeal; and

(10) a proposed amendment in response to miscellaneous issues arising from legislation recently enacted....

Much of this stuff, at least based on my first too-quick scan, appears to involve status quo tweaking rather than any big-ticket proposed guideline changes.  However, the issue for comment that I have highlighted above might be a first foray into a significant and important aspect of the current fraud guidelines that (I hope) the USSC may eventually be willing to rework significantly.

UPDATE:  The USSC also posted has this "Reader Friendly" compilation of its proposed 2012 amendments to the federal sentencing guidelines.

January 18, 2012 in Federal Sentencing Guidelines, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

SCOTUS gives break to death row petitioners whose lawyers missed deadline

The Supreme Court this morning handed down an opinion today in the high-profile (and low-impact?) capital case of Maples v. Thomas.  Here is the early report on the ruling via SCOTUSblog:

The Court ... holds that Maples has shown cause to excuse his procedural default. It is an RBG opinion. It is 7-2, with Justice Alito filing a separate opinion in addition to joining the majority.  Scalia and Thomas dissent....

Justice Alito explains that he is joining the Court's decision because there were at least 8 facts that combined to deprive Maples of counsel....

It seemed likely after oral argument that Maples would win in some fashion, so this is not a big surprise.

The full opinion is available here, and I may comments on its particulars if/when I see anything that seems of enduring jurisprudential importance.   Readers should, of course, feel free to beat me to the punch via the comments.

January 18, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (55) | TrackBack

Should donating lots and lots of blood justify a below-guideline federal sentence?

The question in the title of this post is prompted by this article discussing federal filings in the run-up to the sentencing of a local Pennsylvania politician convicted of multiple corruption charges.  Here are the details:

Federal prosecutors asked a federal judge Tuesday to reject pleas for leniency from former Lackawanna County Commissioner A.J. Munchak, who claims his years of donating blood and other charitable acts should spare him from what could be a life prison sentence.

Mr. Munchak and his fellow former majority county Commissioner Robert C. Cordaro are scheduled to be sentenced Jan. 30 for their conviction on bribery and extortion charges stemming from kickback schemes and illegal cash payments they pocketed while in office.

Mr. Munchak's lawyer, Chris Powell of Scranton, had argued Mr. Munchak deserved a break from a possible sentence of decades in prison based on his "extraordinary charitable, civil and community service" to various organizations, notably the Red Cross, and clubs over the years.

Federal prosecutors disagreed, saying Mr. Munchak "does not elaborate what, if anything, he did for those organizations." The prosecutors added, "his assertion that he has 'given a total of 236 years in services to his community, church and charitable organizations' is unsupported and incomprehensible."...

In an eight-page brief, the prosecutors also seized on Mr. Munchak's references to his "years long practice of donating blood at regular intervals."

"He notes that he has donated approximately 180 pints of blood to the American Red Cross," the prosecutors said. Years of regular blood donation is exceptional to the Red Cross, the prosecutors stated in court papers, summarizing testimony from a Red Cross representative at a court hearing.

The prosecutors described Mr. Munchak's "exceptional" Red Cross blood donations as the legal equivalent of mixing apples and oranges. "What is extraordinary to the Red Cross and what is extraordinary under the U.S. Sentencing Guidelines are entirely different concepts," the prosecutors said. "... the act of donating blood is a relatively brief, non-interactive event and does not constitute a good work of such magnitude to warrant a downward departure," the prosecutors said, adding, "..the regular donation of blood is an impersonal and detached act ..."

January 18, 2012 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, White-collar sentencing | Permalink | Comments (1) | TrackBack

Delaware Governor commutes death sentence based principally on childhood abuse

As reported in this local article, "Delaware Gov. Jack Markell on Tuesday spared the life of condemned killer Robert A. Gattis, who was scheduled to die by lethal injection early Friday morning." Here are the details explaining why this clemency decision is both historic and intriguing:

It is the first time in modern memory, and perhaps the first time ever, that a Delaware governor has commuted a death sentence to life in prison.

Markell's action means the execution is canceled and the 49-year-old Gattis, who was convicted and sentenced to die for the May 1990 murder of his onetime girlfriend Shirley Y. Slay, will spend the rest of his life in prison without the possibility of parole.

Markell cited the "unusual and perhaps historic" recommendation of the Delaware Board of Pardons, in a 4-1 vote Sunday, to offer Gattis mercy. "I realize my decision may cause pain to the family and friends of Shirley Slay. For that, I deeply apologize," Markell said in a statement.

The Slay family said they were disappointed by the outcome but accepted it. "We are going to look at it as the way God wanted it to be," said Slay's mother, who also is named Shirley.

She said Markell met with members of the family personally before he made his decision public Tuesday, and they appreciated the chance to share their side of the story with Markell and explain their feelings and concerns.

Markell put conditions on his offer of commutation, stating Gattis must agree to surrender all future legal appeals and to spend the rest of his natural life in the Maximum Security Unit of Vaughn Correctional Center.

To that end, according to Markell's office, a hearing is expected to be held today in New Castle County Superior Court, where Gattis will formally waive his appellate rights before a Superior Court judge and agree to the conditions set by Markell.

Attorneys representing Gattis said at last week's clemency hearing and repeated again Tuesday that they see no problem with Gattis' accepting those terms. Attorney Karl Schwartz, with the Federal Defender's Office, said Gattis recognizes that he deserves to spend the rest of his life in prison for what he did.

Off the top of my head, I cannot recall another similar commutation which depended upon a defendant giving up all his legal appeals.  But such a condition on clemency seems an astute and reasonable way to give a different sort of closure to the victim's family in conjunction with a decision to take a killer off death row.

This link to the full statement of the Delaware Board of Pardons discussing its recommendation makes for an interesting read, and here is the heart of the justification given by the Board for its clemency recommendation:

In considering the full record, we accept that if even half of what has been submitted about Mr. Gattis's childhood is true, he was victimized physically, emotionally, and sexually by family members who owed him a duty of care.  There is evidence in the record that Mr. Gattis complained to medical professionals of mental illness and involuntary violent impulses over a year before Ms. Slay’s murder.  Although Mr. Gattis knew right from wrong and was guilty of first degree murder, we, in the exercise of conscience required of us as members of this Board, believe that these are sufficiently mitigating facts to warrant consideration for clemency.

January 18, 2012 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

January 17, 2012

Top-side brief in Southern Union explains why Sixth Amendment Apprendi rule applies to fines

All Apprendi/Blakely fans (and, for that matter, all Apprendi/Blakely haters) will want to check out this SCOTUS merits brief from the petitioner in Southern Union v. US, which was filed last week.  Here is the start of the brief's statement of the case

This case raises the question whether the principle that this Court recognized and applied to sentences of incarceration in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, applies equally to the imposition of criminal fines.  At the outset, the Court might wonder what the argument could be that the Apprendi principle does not apply to criminal fines, given that this Court’s explicit holding in Apprendi was that any fact that increases the “penalty” for a crime must be submitted to the jury and proved beyond a reasonable doubt, and criminal fines are unquestionably “penalties.”  Indeed, prior to the decision below, federal and state courts uniformly held (or assumed) that Apprendi applies to the imposition of criminal fines.  Even the United States agreed that the Apprendi principle applies to fines.

The decision below is the first to hold otherwise.  It did so based on the court of appeals’ view that this Court’s opinion in Oregon v. Ice, 555 U.S. 160 (2009), announced a whole new methodology that fundamentally narrowed the Apprendi doctrine and also suggested that a court can use non-jury fact-finding to impose a fine that exceeds the maximum fine set by the legislature, which is what happened in this case.  As shown below, this reading of Ice, a case which did not involve a criminal fine, is fundamentally flawed and ignores the fact that Ice was an exceedingly narrow ruling.  In particular, the court of appeals’ historical understanding was at a minimum incomplete, and in all events did not support its conclusion that fines are outside the scope of Apprendi.

This Court should reverse the court of appeals’ holding because it would deprive criminal defendants of their fundamental jury trial rights in cases involving fines, and should vacate the fine imposed in this case (which was 360 times greater than that authorized by the jury’s verdict).

Many hard-core Apprendi/Blakely fans were justifiably puzzled by Ice, and this new case presents the Court with its first opportunity to explain if and how Ice was meant to recast the Apprendi/Blakely Sixth Amendment rules.  Also, Southern Union will present the first crisp opportunity for the two newest Justices to indicate how they view Apprendi/Blakely Sixth Amendment rules, which could of course have profound long-term implications for all sorts of punishments beyond fines.

January 17, 2012 in Blakely Commentary and News, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Notable Second Circuit (unpublished) ruling finds way-below-guideline sentence procedurally unreasonable

A helpful reader alerted me to an interesting unpublished reasonableness ruling today from the Second Circuit in US v. LM, No. 10-371 (2d Cir. Jan. 17, 2012) (available here).   The background facts in LM alone make the case noteworthy:

The facts here are undisputed. L.M. began distributing marijuana in the 1980s.  He eventually came to the attention of law enforcement, who executed a search warrant on his home and confiscated ten pounds of marijuana.  That arrest was the genesis of a long and fruitful cooperation with authorities.  L.M. provided information that led to the arrests and successful prosecutions of a number of large-scale international drug dealers.  In addition, he recorded his conversations with various members of drug distribution organizations and made himself available as a trial witness.  Because of his extensive assistance to law enforcement, L.M. received a number of credible threats of violence; to ensure his safety, authorities installed a panic button in his home.  As the government conceded at oral argument, L.M. “uniquely earned” the government’s motion pursuant to Section 5K1.1 of the United States Sentencing Guidelines urging a downward departure.

Letters submitted on L.M.’s behalf, if credited, show that his arrest also marked the beginning of an admirable personal transformation.  In the nearly seventeen years that have elapsed since his arrest, he has built both a family and a business.  His wife of twenty-seven years describes him as a devoted husband and a loving father to their four children, and a colleague reports that L.M. is a widely-respected and fair boss who dramatically reduced his own salary in the economic downturn to avoid laying off employees.  Further, letters from L.M.’s father and sister describe L.M. as a compassionate son and brother, a man who cared for them through their long illnesses.

L.M. pleaded guilty to one count of conspiracy to distribute marijuana and one count of filing a false tax return.  The suggested Guidelines range was forty-six to fifty-seven months of incarceration.  With little explanation, the district court imposed an incarceratory sentence of one year and one day....  L.M. now appeals the district court’s sentence as procedurally and substantively unreasonable.

These facts (in addition to sounding like the first few pages of an alternative openning for the latest Marky Mark thriller) provide an amazing window into how aggravating offense factors rather than mitigating offender factors drive federal guideline calculations.  Though the defendant here likely was a major pot dealer back in the 1980s, a sensible sentencing system ought some way incorporate nearly two decades of law-abiding and law-enforcement helping behavior.  But the federal guidelines just spit out a recommended of roughly 4 years in prison and leave it up to the prosecutor and the sentencing judge to ensure this defendant gets any credit for his extraordinary efforts to make up for prior bad deeds.

The panel deciding upon LM's appeal was plainly moved by these facts; its ruling hints that the judges do not fully understand why LM should now serve any prison time.  But, as often happens in these kinds of quirky cases, the panel decides to remand on procedural (rather than substantive) unreasonableness grounds (while holding the case for potential further review):

The district court did not adequately explain its sentence. Particularly troubling, given the passage of fifteen years between L.M.’s arrest and sentencing, is the court’s failure to discuss the extent to which it considered evidence of L.M.’s rehabilitation in fashioning its sentence. Of course, the district court simply might not have credited L.M.’s claims of rehabilitation, or it might have believed the seriousness of L.M.’s crime outweighed even the most compelling evidence of rehabilitation. However, given the paucity of the district court’s explanation, we cannot be sure that the district court arrived at a reasoned decision over which we can meaningfully exercise appellate review.

For this reason, we vacate the sentence imposed by the district court as procedurally unreasonable. Because we determine that the sentence imposed on L.M. is procedurally unreasonable, we do not address the thorny issue of whether, under the unique circumstances of this case, an incarceratory sentence of one year and one day is substantively unreasonable. On remand, the district court shall have plenary authority to impose a sentence consistent with law.  We further elect to remand in accordance with the procedures set forth in United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994).  Either party may restore jurisdiction to this Court to consider whatever arguments remain or arise relating to L.M.’s resentencing by sending a letter to the Clerk of the Court within 14 days of the district court’s decision.  Any such proceedings will be assigned to this panel.

January 17, 2012 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Iowa legislators talking about special nursing home for aging sex offenders

This local story from Iowa, headlined "Lawmakers consider site for elderly offenders," spotlights one way state officials are thinking about dealig with aging (but still dangerous) sex offenders. Here are the basic details:

Iowa may have to establish a special nursing home for elderly sex offenders and other criminals, according to a handful of local lawmakers. "These individuals should not be turned loose," state Rep. Helen Miller, D-Fort Dodge, said Saturday morning. "We will have to have a facility where these individuals will be contained."

Miller and other legislators addressed the issue during an Eggs and Issues forum in Fort Dodge held months after a registered sex offender living at the Pomeroy Care Center in Pomeroy reportedly sexually assaulted another resident of the facility....

In the Pomeroy case, William Cubbage, 83, is accused of sexually assaulting a 95-year-old woman at the care center in August 2011. Cubbage was convicted of sex crimes in 2000, 1997, 1991 and 1987. He moved into the nursing home in November 2010. He was removed from it following the alleged assault and was placed in the Newton Correctional Facility.

In response to a question from the audience, Shaw said the state government may have to buy a small nursing home and staff it with personnel trained to deal with sex offenders.

He noted that Branstad has proposed a law requiring nursing homes to notify families of residents when a sexual offender moves into the facility. Shaw said stronger measures are needed. "We need something with some teeth to it," he said.

Iverson and Miller also said a separate facility for elderly offenders may be needed. Although Cubbage was reportedly ordered by a judge to live in the nursing home, Iverson and Tjepkes said care facilities don't have to accept offenders. Beall said he believes the legislature will take action on the issue of sex offenders in nursing homes this year.

January 17, 2012 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Felon disenfranchisement gets brief spotlight in latest GOP debate

While I am still (impatiently) waiting for the GOP candidates to get some hard questions about the drug war, my eagerness for some criminal justice talk on the campaign trail was satiated a bit during last night's GOP candidate debate through a verbal tussle on the issue of voting rights for felons.  This CBS News story, headlined "Santorum hammers Romney over felon voting rights," provides this report:

Republican presidential candidate Rick Santorum on Monday took GOP frontrunner Mitt Romney to task for opposing voting rights for felons who have served their time -- and for what Santorum cast as a flip-flop on the issue from his time as Massachusetts governor.

During the Fox News/Wall Street Journal-hosted Republican presidential debate ahead of the January 21 South Carolina primary, Santorum spun a question about the place of attack ads on the campaign trail into a back-and-forth with Romney over whether or not felons should be allowed voting rights after they have been released. The candidate, who is making a hard push to emerge as the race's consensus anti-Romney candidate, appeared to have prepared the line of attack in advance....

"Governor Romney's super PAC has put an ad out there suggesting that I voted to allow felons to be able to vote from prison," [Santorum] said. "I would ask Governor Romney, do you believe people who have -- who were felons, who served their time, who have extended, exhausted their parole and probation, should they be given the right to vote?"

Romney, in response, attempted to address the more general question about the role of super PACs in politics. But Santorum was not having it. "I'm looking for a question -- an answer to the question first," Santorum said, cutting Romney off....

The former Pennsylvania repeated his question, noting that "This is Martin Luther King Day. This is a huge deal in the African-American community, because we have very high rates of incarceration, disproportionately high rates, particularly with drug crimes, in the African-American community."

"The bill I voted on was the Martin Luther King Voting Rights bill," he continued. "And this was a provision that said, particularly targeted African-Americans. And I voted to allow -- to allow them to have their voting rights back once they completed their sentence. Do you agree with that?" he prompted.

"I don't think people who have committed violent crimes should be allowed to vote again. That's my own view," Romney answered.

Santorum was ready with a cross-examination-style response. "You know, it's very interesting you should say that, Governor Romney, because in the state of Massachusetts, when you were governor, the law was that not only could violent felons vote after they exhausted their sentences, but they could vote while they were on probation and parole, which was a more liberal position than I took when I voted for the bill in the Congress." 

Among the interesting aspects of this discussion is Romeny's reference to "people who have committed violent crimes."  Though I am not conversant with all state laws on felon voting rights, I am not aware of any state that makes a crisp distinctions concerning the violence involved in a prior felony when decide who can and cannot vote.  In other words, Romney seems to be expressing support for a felon disenfranchisement policy that does not actually exist anywhere.

January 17, 2012 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (46) | TrackBack

January 16, 2012

"Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences"

The title of this post is the title of this important and potent new paper by Professors Marit Rehavi and Sonja Starr, and it seems especially fitting to post it on MLK Day.  Here is the abstract:

This paper assesses the extent to which the large disparities in sentencing outcomes between black and white defendants can be explained by disparities in prosecutors' initial choice of charges, a critical stage overlooked by existing studies of sentencing disparities. To analyze charging, we pair newly constructed measures of charge severity with a newly linked dataset that traces federal cases from the arrest through sentencing.

We find that black arrestees, especially black males, face significantly more severe charges conditional on arrest offense and other observed characteristics.  The disparities in the use of charges that carry mandatory minimum sentences are particularly striking. These disparities appear to be major drivers of sentencing disparity.  Black males face significantly longer sentences than white males do, on average and at almost every decile of the sentence-length distribution, even after conditioning on arrest offense, criminal history, district, and age.  However, the addition of controls for initial charges renders most of these disparities insignificant.  Indeed, the otherwise-unexplained racial disparities at the mean and at most of the deciles can be almost entirely explained by disparities in a single prosecutorial decision: whether to file a charge carrying a mandatory minimum sentence.

January 16, 2012 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (7) | TrackBack