October 6, 2012
New California sex offender lawsuit challenges local restrictions on access to public parks and beachesAs reported in this new Los Angeles Times article, it is not just local Halloween ordinances being subject to constitutional attack by sex offenders in California (details on the Halloween suit are here and here). This article, headlined "Four Orange County cities sued over sex offender laws," reports on a new and different federal lawsuit going after another popular restriction on sex offender activities. Here are the details of this distinct lawsuit:
A registered sex offender has filed suit against four Orange County cities, challenging the constitutionality of a law that bans sex offenders from using public parks, beaches and even some roadways. The suit is aimed at Costa Mesa, Huntington Beach, Seal Beach and Lake Forest, which have all modeled local ordinances on the county's sex offender law, which bans offenders from entering county parks and other public facilities. It is considered one of the most aggressive sex offender laws in California.
The lawsuit, filed in U.S. District Court, claims the local laws that ban the plaintiff, a registered sex offender, from entering city parks or visiting beaches violate the Constitution and his protected rights under the law. The San Francisco law firm representing the man, identified only as "John Doe" in the lawsuit, said the ban violates his 1st, 5th and 14th Amendment rights.
The lawsuit alleges that the plaintiff, by being banned from entering public property, is unable to peaceably assemble, speak freely, travel via some public roads, receive information and petition the government. The ban also deprives him of his liberties without a fair hearing and prevents him from judicial access, the lawsuit said.
Susan Kang Schroeder, chief of staff to the Orange County district attorney, defended the local laws as constitutional. Fourteen cities in Orange County have now adopted sex offender rules at the urging of the district attorney. "Protecting children from sexual predators, I believe, is one of the most important duties of government," Schroeder said....
The lawsuit asks the courts to permanently stop the four cities from enforcing their bans and declare the laws unconstitutional. The plaintiff was convicted more than 15 years ago, the suit said, and has long since served his sentence and been treated and is now employed and married with children.
Has the First Circuit blessed disregarding loss in some white-collar sentencings?The question in the title of this post is prompted by this lengthy new piece in the New York Law Journal by attorney Laura Grossfield Birger, which is headlined "The Impact of First Circuit's 'Prosperi' Decision: Does appellate review constrain district courts to follow Sentencing Guidelines?". Here are a few excerpts from the piece:
The recent decision by the U.S. Court of Appeals for the First Circuit in United States v. Prosperi, 686 F.3d 32 (1st Cir. 2012), affords great discretion to sentencing courts to deviate from the Sentencing Guidelines, despite expressing palpable discomfort with the extent of deviation at issue in this particular case. For this reason, the opinion is likely to be cited often in the First Circuit and elsewhere, and its analysis and approach warrants examination....
[I]n reviewing the substantive reasonableness of the sentences, the First Circuit initially focused on whether the district court had offered a plausible explanation for minimizing the impact of the loss amount. The court reviewed the reasons articulated by the district court in detail ... [and] found that the findings and conclusions constituted "plausible" explanations for the district court's refusal to give significant weight to the loss amount it calculated pursuant to the Sentencing Guidelines.
The relaxed review applied by the First Circuit to this aspect of the district court's rationale is significant. As the court recognized, the strength of the justification required to support a variance from a Sentencing Guidelines range fluctuates with the degree of that variance; the greater the deviance from the applicable Sentencing Guidelines range, the more significant the justification required to support it. Here, the government's principal complaint boiled down to the huge extent of the variance — from a more than seven-year sentence to probation. By accepting the district court's decision not to give the loss amount much weight, the First Circuit essentially approved a reduction in the spread; once the loss amount is removed as the pivotal factor driving the sentence, the government's argument that the breadth of the variance between zero and 87 months is unjustifiable loses traction.
The balance of the First Circuit's analysis of the district court's rationale reflects its acceptance of its key tenet — the disregard of the loss amount as the determinative factor. The court reviewed the government's other objections to the district court's proffered justification ... and swiftly rejected them....
Like most sentencing decisions, Prosperi is highly dependent on its facts, yet the opinion is likely to reverberate in white-collar sentencing jurisprudence. The willingness of the district court not just to mitigate the impact of the loss amount on the sentence, but essentially to disregard its effect entirely, will be an attractive precedent to defendants facing staggering sentences driven largely by loss amounts. And while the government will surely strive to limit Prosperi to its facts, it will not be difficult for defense lawyers to analogize other fraud cases to at least some of the factors present in Prosperi. Fundamentally, the Prosperi opinion also signals to district courts that, at least in the First Circuit, there are few restraints on their discretion to impose sentences far below the applicable Guidelines range in fraud cases; as long as they explain why they did so, citing lawful considerations, the sentences will not be disturbed on appeal even when the Court of Appeals plainly disagrees with the result. If embraced by district courts, this may galvanize a trend away from the uniformity that the Guidelines seek to impose, particularly in white-collar cases, and toward a return to the flexibility and discrepancy in sentencing often associated with the pre-Guidelines era.
Related prior post:
October 5, 2012
SCOTUS grants cert to reconsider Harris
I am thankful that I am on the golf course this afternoon, and even more thankful I can blog via my smartphone about the decision by SCOTUS to grant cert to reconsider Harris. Details to follow once back at a real computer.
UPDATE: Lyle Denniston has this lengthy post about this notable cert grant titled "Another revolution on sentencing?". Here are excerpts:
The newly granted case is Alleyne v. United States (docket 11-9335), growing out of the robbery of a convenience store owner in Richmond, Va. Allen R. Alleyne got eighty-four months added to his basic sentence for the robbery, on the theory that he would have known that his accomplice in the robbery would wield a gun as they carried out the robbery. The added sentence was based upon the finding by the judge, not the jury, that Alleyne would have known about the plan to “brandish” a gun — a factor that leads to a mandatory minimum sentence beyond a basic sentence for the crime itself....
Since the Court decided the Apprendi case twelve years ago, various combinations of Justices have adhered to it, and sometimes expanded its reach. But the Court had never extended it beyond enhancement of the maximum sentences that a legislature had laid down. Justice Breyer, whose former leadership of the U.S. Sentencing Commission had made him at least a skeptic about Apprendi, but Alleyne’s public defender lawyers had pointed out in their new petition that Breyer had made comments in 2010 — when the Court was considering United States v. O’Brien — that the time may have come to revisit the Harris precedent.
The new petition argued: “Justice Breyer and the four dissenting Justices in Harris were correct in perceiving the logical and practical inconsistency of the plurality’s position. A strict distinction between maximum and mandatory minimum sentences cannot be reconciled with the rule of Apprendi that the Constitution’s indictment, jury, and proof guarantees apply to all ‘facts that increase the prescribed range of penalties to which a criminal defendant is exposed.”...
In the Alleyne case, the accused was convicted of one count of robbery affecting interstate commerce, because the robbery occurred as a store manager was carrying deposits to a bank, and one count of using a gun during a crime of violence. He received a forty-six-month sentence on the robbery charge. The prosecutors also had charged Alleyne with brandishing a firearm during the robbery. Even though the jury concluded that Alleyne had not done so, the trial judge ruled that Alleyne should have foreseen that his accomplice would brandish a gun during the robbery, so he had to be punished for that himself. The judge then imposed an added eighty-four months of sentence on top of the forty-six months — as required under the federal law that imposes a mandatory minimum sentence for brandishing a gun.
Alleyne’s lawyer at the trial had conceded that the Harris decision did treat brandishing a gun as a sentencing factor, not as an element of the crime, the defense lawyer argued that Harris was inconsistent with Apprendi and later sentencing cases. The judge rejected that challenge, but commented in imposing the added sentence that “I don’t like being the reverser of juries.” The judge said that he had to countermand the jury finding that Alleyne did not brandish a gun because the Harris precedent gave him no choice. The Justices are expected to hold argument on the Alleyne case either in January or February.
ANOTHER UPDATE: Todd Bussert has posted the cert petition in Alleyne in this post at his Federal Prison and Post Conviction Blog.
"Prominent Republicans in Washington state, Colorado endorse legal pot"The title of this post is the headline of this notable new Reuters piece. Here are excerpts:
Some recent and older related posts:
Ballot measures to legalize marijuana in Washington state and Colorado gained support this week from a pair of prominent Republicans -- U.S. Senate candidate Michael Baumgartner and former Representative Tom Tancredo -- who could help sway conservative voters.
No state has ever legalized marijuana for recreational use. The federal government considers it an illegal drug, but 17 states and the District of Columbia allow it as medicine.
Baumgartner, the Republican challenger to Washington state's Democratic Senator Maria Cantwell, said in a phone interview the state initiative, which would allow the sale of marijuana to people 21 and older at state-sanctioned stores, is a "thoughtful way forward."...
Tancredo, who served five terms in the House of Representatives from 1999 to 2009, this week endorsed the legalization campaign in Colorado. He argued government should not interfere with people's choice to use pot.
In Oregon, a third state where voters this November will decide whether to allow recreational use of pot, the campaign has struggled to find big name Republican supporters.
Legalization opponent Kevin Sabet, a former adviser to the Obama administration's drug policy director, disputed the argument of many libertarians that government should not interfere in pot use by people. "The libertarian argument is fundamentally flawed because drug use does not affect just the individual, it affects healthcare costs, criminal justice costs that we see with a legal drug like alcohol and costs to our highway safety," Sabet said.
- Prominent conservative Tom Tancredo supporting marijuana legalization initiative in Colorado
- When and how might pot prohibition or federal pot policy enter the 2012 Prez campaign?
- VP candidate Paul Ryan says states should have right to legalize medical marijuana
- "Drugs, Dignity and Danger: Human Dignity as a Constitutional Constraint to Limit Overcriminalization"
- New astute articles on the modern realities of pot politics, policies and practices
- Colorado the new "ground zero" for debates over pot prohibitions and policies
- Latest Colorado poll showing majority support for marijuana legalization ballot initiative
- "Medical Marijuana in Colorado and the Future of Marijuana Regulation in the United States"
- NAACP gets behind marijuana legalization inititative in Colorado
- A Beastly articulation of my (foolish?) hope candidate Romney might embrace the Right on Crime movement
- Marijuana legalization advocate getting warm reception at CPAC
- "Bummer: Barack Obama turns out to be just another drug warrior"
Gov Jerry Brown's notable (wise? unprincipled? chicken$%#&?) evolution concerning California's death penaltyToday's Sacramento Bee has this intriguing front-page article headlined "Jerry Brown sidesteps death penalty discussion as California voters face choice." Here are excerpts:
Two years ago, in the waning days of the gubernatorial campaign, Jerry Brown was asked why, given his moral reservations about the death penalty, he wouldn't try to stop it anymore. As a young man, Brown had lobbied his father, then-Gov. Pat Brown, to stay a man's execution, and he vetoed death penalty legislation when he was governor before.
"I don't know," Brown said on an airplane between campaign rallies in the Central Valley. "You want to reinvent the world. But we have the world. And this is a matter that's been before the voters … been before the Legislature. At this point in time, it's relatively settled."
It may still be. Though the margin is slight, a plurality of likely voters opposes a Nov. 6 ballot measure to repeal the death penalty, according to the Field Poll. Nevertheless, the measure, Proposition 34, is on the ballot -- and Brown wants no part of it.
The Democratic governor has declined to say how he will vote on the death penalty or other ballot measures, and he is not expected to do so before Election Day. He said is focused solely on his own initiative to raise the state sales tax and income taxes on California's highest earners.
Brown's careful distance from abolishing the death penalty, a cause he once championed, reflects the caution of a governor who has grown more sensitive to the limitations and political hazards of his office than when he was governor before, from 1975 to 1983....
Brown was 21 when, one night in 1960, he called his father to urge a temporary stay of execution for convicted rapist Caryl Chessman. Chessman was ultimately executed, but not before his father granted the temporary stay. The decision was unpopular, and Pat Brown later said his political career suffered badly for it.
Seven years later, when Aaron Mitchell was executed at San Quentin State Prison, Jerry Brown participated in a vigil outside the prison, and 10 years after that, Brown vetoed legislation -- overridden by the Legislature -- to reinstate the death penalty.
He called it "a matter of conscience," a sentiment he expanded upon when he was asked while running for president in 1992 if his opposition to the death penalty was absolute. "Yes," Brown said. "When someone is contained in a cage, then to bureaucratically, coldbloodedly snuff out their life, whether by poison or by electrocution or by gas, it seems, it doesn't seem right to me."
Peter Finnegan, a longtime friend of Brown's and his debate partner in high school, recalled holding candles outside San Quentin with Brown when they were young men. They don't talk about the death penalty anymore. "He just doesn't want to talk about it," said Finnegan, now a retired lobbyist and political activist. "You get nowhere talking about it, really, and it's kind of behind him, and everyone knows where he is, and that's that." When Brown was governor before, Finnegan recalled, "we'd sit around until 2 in the morning (discussing) this stuff." Now, Finnegan said, "he's just more focused … . I just think he's so much more mature."...
His position has been made awkward, however, by the presence of the death penalty initiative. One day in April, Brown called it a "very, very important issue" and said he was glad the measure would be on the ballot, before saying that afternoon that his commitment to enforcing the death penalty was unwavering. "I will carry out the law," Brown said, "without fear or failure and with fidelity to the will of the people."
A governor's endorsement can matter in an initiative campaign, but less so in one that involves a high-profile matter such as the death penalty, about which voters typically hold highly emotional, pre-existing beliefs. Likely voters oppose Proposition 34, the measure to replace the death penalty with life without the possibility of parole, 45 percent to 42 percent, according to a recent Field Poll.
As suggested by the title of this post, I am interested in hearing reader views as to the right adjective to describe Gov Brown's death penalty evolution. I am inclined to pick the adjective "chickenshit" because I consider Brown's effort to stay mute on such a significant and symbolic aspect of the state's criminal justice system to be an act of profound political and personal cowardice. Moreover, I think it would be pretty easy for Brown and his advisers to develop a politically astute and personally satisfying statement on this topic. That statement could read something like:
"Though I have long been morally opposed to the death penalty, I deeply respect those with contrary moral views, and I am personally and professionally committed to vigorous enforcement of any and all duly enacted criminal justice laws reflecting the will of the people in our state. I am thrilled that this important issue is garnering renewed attention and that our citizens will now have the opportunity to express their current position on this matter directly via the ballot box. Based on my long-standing moral beliefs, I expect to vote for Prop. 34, and I am especially excited to learn about the views of all fellow Californians on Prop 34 come November 6."
October 5, 2012 in Campaign 2012 and sentencing issues , Death Penalty Reforms, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack
October 4, 2012
Latest accounting of notable post-Gall reasonableness review decisionA helpful reader alerted me to this updated list of significant circuit reasonableness decisions since Gall, a list assembled by the Sentencing Resource Counsel of Federal Public and Community Defenders. here is how the list is summarized from an e-mail I received:
The cases are divided by circuit. There have been 38 sentences reversed as substantively unreasonable: 5 within-guideline senteces, 12 above- or below-guideline sentences on D's appeal, and 21 below-guideline sentences on govt's appeal.
There have been 138 reversals for procedural error: 81 within-guideline sentences all on D's appeal; 40 above- or below-guideline sentences on D's appeal; and 17 below-guideline sentences on govt's appeal.
To obtain reversal for procedural error, obviously you have to make the argument, and support it with evidence (so that it is nonfrivolous). See this lengthy report. And, when a sentence is reversed for procedural error, the sentence is different on remand more than half the time. Id.
The list does not include reversals where (1) it is clear that the district court did not address an argument because, at the time of sentencing, circuit precedent precluded it from doing so, but now it is allowed; (2) cases reversed because the district court treated the guidelines as mandatory or presumed the guidelines to be reasonable; (3) reversals of sentences imposed upon the revocation of probation or supervised release.
Pennsylvania not really yet ready to get machinery of death started againIn this prior post from a few months ago, I wondered "Might Pennsylvania finally get serious about carrying out death sentences?". As revealed by this new local article, which is headlined "Pa. court spares inmate from execution," the answer would now seem to be not quite yet. Here is how the piece starts:
Terrance "Terry" Williams spent a day on death row waiting for a call that never came. Williams feared he'd be shipped across the state to be executed on Wednesday, the first person sent to the death chamber in Pennsylvania since 1999. But the call never came. Instead, his defense lawyers phoned him that afternoon to say the state Supreme Court had in effect halted the execution.
A state judge last week granted a stay of execution, and the court said it wouldn't overturn her decision before Williams' death warrant expired at midnight. The court plans to review Williams' case over time.
"Today was a very scary day for Terry because the stay could have been lifted, and he could have been taken to Rockview and executed," defense lawyer Shawn Nolan said. "He's very relieved."
Williams, of Philadelphia, admits killing two men in his teens, but now contends both men were sexually abusing him.
Five days before his execution, a state judge found that prosecutors withheld evidence from Williams' capital murder trial in 1986, including evidence the victim in that case was molesting teen boys. Common Pleas Judge M. Teresa Sarmina tossed out Williams' death sentence on Friday but upheld his first-degree murder conviction.
If her ruling stands, a new jury could again condemn Williams to death, or sentence him to life without parole. Williams, 46, has been on death row for nearly three decades. He would have been the first person executed in Pennsylvania in 50 years who had not given up his appeals.
District Attorney Seth Williams, no relation to the defendant, insists Terry Williams is the rare defendant deserving of the death penalty, and prosecutors complained in a response Wednesday that his appeals have tied up the court system long enough.
Related prior posts:
- Might Pennsylvania finally get serious about carrying out death sentences?
- State judge stays Pennsylvania execution scheduled for next week
Updated edition of a terrific federal sentencing and prison resource
Whenever I am asked questions about federal prison realities, I always urge folks to seek more information from Alan Ellis, who has literally written the book (actually, a number of books) on these matters. My faith in Alan Ellis as the go-to resource was confirmed this past week when I received in the mail the latest, greatest, updated edition of the Federal Prison Guidebook authored by him (now along with J. Michael Henderson and Todd Bussert, who also has this blog covering these matters).
This webpage not only provides information about the book and ordering, but also reprints a selection of a few of the innumerable practice pointers in this terrific federal sentencing and corrections resource. And here is how the page explains the book's scope and contents:
Federal prison placement, profiles, and tips. How to ensure that your client gets into the best possible prison and is released at the earliest opportunity.
Although it is Bureau of Prisons policy to place an individual in the least restrictive facility within 500 miles of the inmate's release residence, many inmates end up far from their families in harsher conditions than necessary. It doesn't have to be that way.
You can take three steps to ensure that your clients do their time in the best possible facilities. First, learn how the BOP classifies its facilities, and the characteristics of each type of facility. Second, understand how the BOP decides what type of prison is appropriate. Finally, learn how to increase the odds of a favorable placement.
For assistance with all three steps, turn to Alan Ellis and Michael Henderson’s Federal Prison Guidebook.
In addition, this detailed brochure concerning the book from the publisher provides even more information about this valuable resource.
October 3, 2012
Some questions I might ask during the upcoming Presidential debates
As this recent post noted, crime and punishment — and especially federal crime and punishment — does not seem a big concern for the electorate this campaign season. Nevertheless, there are no shortage of timely and important sentencing law and policy questions that could usefully be posed at the big debate tonight in Denver to the two Harvard Law School graduates seeking to be the US President for the next four years.
I fear there will not be a single question focused on criminal justice issues in tonight's debate, despite the reality that a significant portion of federal government spending and a massive portion of state government spending is devoted to these big government programs. But, in the spirit of the evening, I must articulate some serious questions on serious federal criminal justice topics that might provide an interesting window into the candidates' views:
Do you support the bill introduced by Ron Paul and Barney Frank to get the federal government out of the marijuana regulation business (basics here)? Would you sign or veto such a bill as president if it came to your desk?
If Colorado or another state were to fully legalize (and heavily tax) local marijuana production and sales via a widely-supported voter initiative, what kind of guidance might you issue via the Justice Department to US Attorneys within that state concerning the enforcement of federal criminal law prohibiting any and all marijuana production and sale?
Do you consider the modern "War on Drugs" — a federal government program started by Richard Nixon and increasingly funded at the federal level by every President since — to be an example of a failed government program or an example of government success?
According to a Pew Center report in 2009, state criminal correction spending has quadrupled in the past two decades, outpacing budget growth in education and transportation (basics here). Meanwhile, the Justice Department has written repeatedly to the US Sentencing Commission about federal prison spending and overcrowding (see here and here), and the GAO just last month reported that "the growth in the federal inmate population has negatively affected inmates, staff, and infrastructure" (see report here). Are you troubled by these fiscal and practical challenges now presented by modern incarceration levels and spending at the federal level and in the states?
Regular readers likely know that I could go on and on with these kinds of wonkish questions — concerning the application of the federal death penalty or the problems of federal prosecutorial misconduct or the importance of federal clemency authority — but at this point I will bring this pre-debate post to a close and welcome comments from readers on this front (which can, of course, be posted before during or after tonight's debate).
A few recent and older related posts:
- "Crime not on presidential contest radar"
- Could Romney appeal to independents and minorities with bold crime and punishment vision?
- A Beastly articulation of my (foolish?) hope candidate Romney might embrace the Right on Crime movement
- "The GOP platform’s surprisingly progressive stance on crime"
- When and how might pot prohibition or federal pot policy enter the 2012 Prez campaign?
- "Colorado marijuana legalization among crucial issues in state"
- Is it really true that "conservatives and liberals are increasingly united" on criminal justice reform?
New alliance of Florida business and tax groups talking up incarceration alternativesAs reported in this local article, headlined "Smart Justice: Reducing Recidivism Reduces Taxpayer Costs" a notable group of Florida groups are coming together as "The Florida Smart Justice Alliance" to work on sentencing reform issues in the Sunshine State. Here are the details:
There are many notable aspects of the development of this new alliance in Florida, which is yet another manifestation of the ways in which new political coalitions are forming due to the huge the costs of mass incarceration in an era of tight budgets. And I cannot help but find remarkable and telling that the first person quoted in this local story is Tom Feeney, whom I assume is the same person with that name who, when serving in Congress, sponsored the so-called Feeney Amendment to the 2003 PROTECT ACT which sought to limit drastically judicial departure authority under the guidelines (way back in the pre-Booker days).
A coalition of tax watchdogs and business lobbying outfits is working toward legislation aimed at reducing criminal recidivism and thus saving taxpayer dollars.
The Florida Smart Justice Alliance, which includes Associated Industries of Florida and Florida TaxWatch, says it is seeking alternatives to incarceration that would be more effective and eventually cut some of the $2.1 billion a year price tag on the incarceration of around 100,000 inmates.
The group has already started meeting with judges, sheriffs and others in the criminal justice pipeline as it prepares for a Dec. 12-14 summit in Orlando. The goal of the summit will be to reach consensus on providing assistance in an institutional rehab program -- a program that could be offered to the state Legislature.
“Maybe in the short-run penny wise, but in the long-term it is pound foolish not to give people the treatment and rehab that is available,” AIF President Tom Feeney said Tuesday during a media conference at the Florida Press Center in Tallahassee. “One of the things I like that the Alliance is doing -- I’m not an expert in any of these matters -- is that they are studying what works and what doesn’t work in 49 other states and in fact around the free world.”
Mark Flynn, president and chief executive officer of Florida Smart Justice Association, said one proposal to establish a trio of assistance institutions across the state for nonviolent drug offenders could save Florida $20 million through reducing the cost of incarceration and the risk of those individuals returning to prison. “Our goal is to identify productive alternatives to incarceration on the front end and better transitioning efforts for those prisoners who are being released back into their communities,” Flynn said.
A big hurdle may be the governor’s office. Last April, Gov. Rick Scott vetoed a carefully crafted bill by Sen. Ellyn Bogdanoff that was intended to help people in prison deal with their drug addiction.
The bill (HB 177), backed 40-0 by the Senate and 112-4 in the House, would have offered modest reform by moving a small group of drug-addicted inmates into a treatment program once they serve half their time. They would still have been in custody but not behind bars. Scott said the effort would have broken the state law that requires a prisoner to serve 85 percent of his or her sentence.
“Justice to victims of crime is not served when a criminal is permitted to be released early from a sentence imposed by the courts,” Scott wrote in his veto message. “This bill would permit criminals to be released after serving 50 percent of their sentences, thus creating an unwarranted exception to the rule that inmates serve 85 percent of their imposed sentences.”
Is SCOTUS gearing up to reconsider Harris and the Sixth Amendment's application to mandatory minimums?
The question in the title of this post is prompted by an exciting paragraph deep within John Elwood's exciting new SCOTUSblog post excitingly titled "Relist (and Hold) Watch." Here it is:
I have so much to say on this topic, but I need to first get my confetti ready and also put on my black-striped Charlie Brown yellow shirt.
Unsurprisingly, the first real order list after the Long Conference left us with a boatload of relists. Eleven, in fact. Apprendi purists, ready the confetti: Two of the relists, Alleyne v. United States, 11-9335, and Dotson v. United States, 11-9873 (which we first discussed in May), ask the Court to overrule Harris v. United States (2002). You might recall that, in Harris, a plurality headed by Justice Kennedy plus Justice Breyer’s concurrence in the judgment held that facts that increased the mandatory minimum sentence need not be decided by the jury. Two members of the Harris majority (Chief Justice Rehnquist and Justice O’Connor) are gone, as are two of the dissenters (Justices Stevens and Souter). It would be a pretty big deal if the New ‘n’ Improved Court revisited Harris. But I will try to curb my enthusiasm in case the Court is pulling its Lucy-and-the-football trick again, like it did both during OT2010 and last Term when it relisted cases seeking to revisit another sentencing rule in tension with Apprendi, Almendarez-Torres v. United States (holding that the fact of a prior conviction could be found by a judge rather than submitted to a jury) – only to deny those petitions without comment.
Intriguing political spat over federal plans to purchase of Illinois prisonAs reported in this new ABC News report, headlined "GOP Chafes at Justice Dept. Move to Buy Illinois Prison," an interesting political fight is breaking out over federal prison spending plans. Here are the basics:
Top Republican leaders on Capitol Hill are lashing out at the Obama administration after Attorney General Eric Holder informed congressional appropriations leaders Tuesday that despite congressional objections, the Justice Department is moving forward with a plan to purchase the maximum-security prison in Thomson, Ill.
“Americans would rather their tax dollars be spent preventing attacks from terrorists, than spent bringing them into their cities and towns as the Obama administration has repeatedly tried to achieve,” Senate Minority Leader Mitch McConnell, R-Ky., said in a statement Tuesday, calling it an “election-eve purchase.”
The Obama administration had viewed the facility as a potential location to hold high-security terrorism suspects before the administration’s efforts to close the Guantanamo Bay detention camp in Cuba failed.
Citing 38 percent overcrowding rates in federal prisons, Holder says in the letter to Chairman Frank Wolf, R-Va., of the Appropriations Subcommittee on Commerce, Justice and Science that no Guantanamo Bay suspects would reside at the desperately needed Thomson facility.
Still, Republicans cast the decision as a unilateral move by the administration, one that Congress has opposed. “The unilateral decision to purchase the Thomson Prison – even though Congress has repeatedly opposed the Obama administration’s effort to use taxpayer funds to do so -- underscores the administration’s desire to move forward and bring these detainees to U.S. soil,” Speaker of the House John Boehner, R-Ohio, said Tuesday.
The Justice Department will buy the prison from the state of Illinois for $165 million. Holder noted that building a new facility could cost as much as $400 million. The funds for the purchase will be obtained from DOJ seizures in asset-forfeiture cases. The Thomson prison could hold up to 2,800 inmates, according to Justice Department officials. “The administration is acutely aware of BOP’s need for the facility and the department’s inability to reach a resolution of the matter with you. Under these circumstances, the administration has decided to proceed with the purchase,” AG Holder wrote Tuesday to Rep. Wolf.
“Thomson is still desperately needed to reduce our current high level of overcrowding. And Thomson is specifically needed to house inmates particularly those appropriate for “administrative maximum,” Holder wrote in his letter, making reference to the highest security level in the Bureau of Prisons, “administrative maximum.”
A Government Accountability Office report released in September noted that Bureau of Prisons facilities are severely overcrowded with double- and triple-stacked bunk beds. “According to BOP and our observations, the growth of the federal inmate population and related crowding have negatively affected inmates housed in BOP institutions, institutional staff, and the infrastructure of BOP facilities, and have contributed to inmate misconduct, which affects staff and inmate security and safety,” the GAO report noted.
The lengthy GAO report about federal prison overcrowding referenced here, which I keep meaning to blog about, is titled "Growing Inmate Crowding Negatively Affects Inmates, Staff, and Infrastructure" and is available at this link.
Recent related posts on federal prison overcrowding:
- Annual DOJ letter to USSC urges making "our public safety expenditures smarter and more productive"
- New York Times editorial laments "Too Many Prisoners"
"A Demise Greatly Exaggerated — Apprendi Is Extended to Criminal Fines"
The title of this post is the title of this notable new piece authored by David Debold and Matthew Benjamin appearing in a recent issue of Bloomberg BNA’s Criminal Law Reporter. The piece discusses the Supreme Court's Sixth Amendment work last Term in Southern Union, and here are two notable paragraphs from the piece's introduction:
Although relatively straightforward in its reasoning, the Southern Union holding has potentially farreaching consequences. As Apprendi and later cases did with respect to sentences of imprisonment or death, Southern Union will strengthen the relative bargaining position of criminal defendants in plea negotiations over fines. This is particularly true for corporations and other organizational defendants, for whom the most potent available punishment is a large fine and for whom the most likely resolution of criminal misconduct allegations is a settlement agreement.
Southern Union also can be expected to usher in new battles regarding the admissibility at trial of evidence that the decision now makes relevant to establishing a defendant’s maximum fine.
Finally, Southern Union suggests that the court — including its two newest members, Justices Sonya Sotomayor and Elena Kagan, both of whom joined the majority — is firmly committed to Apprendi and may consider recognizing that its constitutional protection extends to another financial penalty in criminal cases: restitution. In short, reports of Apprendi’s possible demise — which started circulating after the court’s 2009 decision in Oregon v. Ice — appear to have been greatly exaggerated.
AEDPA deference issues before SCOTUS in Johnson v. WilliamsAs effectively previewed in this SCOTUSblog post, which is titled "Argument preview: What does a court’s silence mean?," the Justices this morning have heard argument on an important habeas issue. Here is how Lyle Denniston starts his preview:
In 1996, persuaded that federal courts were second-guessing state courts’ criminal law decisions too often, Congress imposed strict new limits on the power of federal judges to overturn a state conviction or sentence. In short, Congress told the federal judiciary to show much greater respect for the state judiciary and to honor its rulings unless such a decision quite clearly was wrong, under binding prior rulings by the Supreme Court. It is a tough standard, and Congress meant it to be. But the federal courts have now split on how they are to react when a state court has upheld a state guilty verdict, but is simply silent on one or more legal or constitutional issues in the case. While the state court in the end had rejected the prisoner’s challenge, what did its silence on a key question mean? That is what the Supreme Court plans to decide in a California murder case involving the judge’s dismissal of one “hold-out” member of a jury.
The state of California persuaded the Court to hear its plea in the case of Johnson v. Williams partly by complaining strongly that the Ninth Circuit Court has notoriously refused to defer to state courts in criminal law cases. In the 2010 Term, the state said in its petition, the Supreme Court four times had overturned Ninth Circuit rulings for allegedly failing to follow “the highly deferential standard of review” laid down by Congress in the Antiterrorism and Effective Death Penalty Act (AEDPA). The Ninth Circuit ruling in this case, it argued, “strikes at the heart of AEDPA’s cornerstone reform of habeas corpus.” That, of course, is a common tactic by lawyers who appeal Ninth Circuit decisions, since that court each year seems to have considerable trouble with its rulings surviving Supreme Court review.
The specific issue that the Court granted is the effect on federal habeas review if a state inmate had raised a constitutional challenge in an appeal in state court, but the state tribunal did not even mention it in ruling against the prisoner on other legal grounds. That question focused on the language of the 1996 habeas law, which requires deference to a state court’s “adjudication on the merits.” If a state court decision does decide the merits, the statute says, a federal court cannot overturn it unless the ruling contradicted or failed to follow “clearly established federal law” as spelled out by the Supreme Court, or else resulted from “an unreasonable determination of the facts” that were before the state court.
More on sex offenders' First Amendment challenge to local halloween challenge in CaliforniaIn this post a few days ago, I reported on a notable (and groundbreaking?) legal action against a common local law this time of year being brought in California. Thanks to this new local article, headlined "Calif. Sex Offenders Sue to Overturn Halloween Restrictions," I can provide more information about this intriguing litigation:
An attorney representing five sex offenders who sued a southern Californian city over limits to their Halloween activities said the lawsuit will be the first of several she expects to file over such restrictions. Lawyer Janice Bellucci heads the 18-month-old advocacy group California Reform Sex Offender Laws. On Friday, she filed a lawsuit in federal court claiming that Simi Valley's ordinance violates her clients' First Amendment rights.
The suit seeks a judge's order prohibiting enforcement of the ordinance in Simi Valley, which has 119 registered sex offenders, according to a city report. Bellucci is representing five unnamed sex offenders, three of their spouses and two minor children, she said.
The ordinance, adopted Sept. 10, prohibits registered sex offenders in the Ventura County city of about 125,000 from displaying Halloween decorations, answering the door to trick-or-treaters or having outside lighting after dark on Oct. 31. Simi Valley councilman and LAPD officer Mike Judge said the law is modeled after similar Halloween laws enforced in other California cities, and is meant to protect children....
Registered sex offenders are also required to post signs with on their front doors reading, in 1-inch letters, "No candy or treats at this residence." Those offenders visible to the public on the state's Megan's Law website and convicted of a crime against a child are required to post the sign.
Sixty-seven of the city's offenders are listed on the website, according to a city report; the rest are convicted of misdemeanors and don't have their names on the public list.
Bellucci said the sign-posting requirement was "particularly egregious." "We consider that to be a violation of the U.S. Constitution," Bellucci said Tuesday.
The ordinance both imposes "forced speech" – the sign – and restricts speech by prohibiting Halloween celebrations, she said. "It's similar to Jews in Nazi Germany who had to wear the yellow star on their clothing," Bellucci said.... Her organization intends to begin filing lawsuits to challenge other statutes, she said.
The office of Simi Valley City Attorney Marjorie Baxter said the city had not been served with Bellucci's complaint, so it had no comment as of Tuesday afternoon. Baxter was quoted in the Ventura County Star, which first reported on the lawsuit, as saying: "We thoroughly researched the ordinance and I don't feel the lawsuit has any merit, and we will defend it vigorously."
Those who are convicted of violating the ordinance would be guilty of a misdemeanor and subject to a fine of up to $1,000 and/or up to six months in county jail, according to a city staff report. California residents who have been convicted of or pleaded no contest or guilty to a sex-related offense must register with local public safety authorities. Offenders are listed on the registry for life.
Recent related post:
An update on just some of the uncertainty surrounding North Carolina's death penaltyNorth Carolina is not only a notable election swing state, but also a state in which the modern intricate history of its administration of the death penalty is almost impossible to sort trough. This new local article, "Unresolved challenges put death penalty on hold in N.C.," reports on part of this lengthy story:
North Carolina has not executed an inmate in six years because issues with the state medical board and unresolved litigation have led to a de facto moratorium. So while the state continues to pay for costly capital trials, no one is actually being put to death.
New Hanover County District Attorney Ben David, who is also president of the N.C. Conference of District Attorneys, said the moratorium has become a point of concern among prosecutors. "Any decision to move forward (with the death penalty) has to include a frank discussion with the victim's family about the realistic possibility of the punishment being carried out," he said....
Prosecutors face a litany of hurdles when seeking death. For one, jurors have shown a growing reluctance to impose the penalty, a shift that some scholars attribute to a string of highly publicized exonerations. Even after a death sentence is secured, ongoing appeals and litigation challenging the constitutionality of lethal injection, the state's sole execution method, have tied up executions for the indefinite future.
Critics say pursuing capital punishment amid a moratorium is an expensive gamble. That argument has gained traction as shrinking budgets and the frustratingly slow growth of the economy prompt some states to re-examine their criminal justice policies....
With 46 executions since 1976, North Carolina had been among the most active users of capital punishment, according to data from the nonprofit Death Penalty Information Center, based in Washington, D.C. But recent years have seen a turnaround. Even before the state's moratorium took hold, executions had grown exceedingly rare for several reasons. The number of death sentences handed out has trended downward since 2000, dropping from 18 that year to three in 2007, according to Isaac Unah, a political science professor at the University of North Carolina at Chapel Hill.
Notably, this story leaves out all the litigation and legislative debate over the application of the Racial Justice Act in North Carolina. I am unsure where that litigation now stands, but I am sure that one could devote volumes to the (non)application of capital punishment in just this one state in recent years.
A few older and more recent posts on battles over the NC death penalty:
- Will NC's new Racial Justice Act effectively kill the state's death penalty?
- NC death row defendant prevails in first case decided under state's Racial Justice Act
- Reviewing the uncertain state of capital justice in the state of North Carolina
- North Carolina legislature trying again to cut back on state's consequential Racial Justice Act
- NC Gov Perdue again vetoes effort by legislature to reform state's Racial Justice Act
- NC legislatue overrides Gov veto of its changes to state's Racial Justice Act
October 2, 2012
Big new report examines New York's use of solitary confinementA helpful reader alerted me to this new report coming from the New York Civil Liberties Union titled "Boxed In: The True Cost of Extreme Isolation in New York's Prisons." This NYCLU webpage, from which the report can be downloaded, provide a summary of its scope and contents. Here is how that summary starts:
This report, Boxed In: The True Cost of Extreme Isolation in New York’s Prisons, is the product of an intensive, year-long investigation that involved communication with more than 100 people who have spent significant amounts of time — in one case, more than 20 years — in extreme isolation. The authors interviewed prisoners’ family members and corrections staff, and analyzed thousands of pages of Department of Corrections and Community Supervision (DOCCS) records obtained through the state’s open records laws.
The report is accompanied by a website — www.nyclu.org/boxedin — featuring excerpts of prisoners’ letters about life in extreme isolation, a library of DOCCS data and records, statistical analyses and a video featuring the voices of family members whose loved ones have been held in extreme isolation.
Over the past 20 years, New York has spent hundreds of millions of dollars to build and operate an extensive network of extreme isolation cells, which DOCCS calls “Special Housing Units” or “SHUs” —and prisoners call “the Box.” New York has nearly 5,000 SHU beds located in 39 prisons across the state, including two dedicated extreme isolation prisons — Upstate and Southport Correctional Facilities — that combined cost about $76 million a year to operate.
New York practices a unique brand of “solitary confinement.” About half of the 4,500 prisoners in solitary confinement spend 23 hours a day in an isolation cell completely alone. The other half are confined in an isolation cell the size of a parking spot with another prisoner, a practice that forces two strangers into intimate, constant proximity for weeks, months and even years on end. The NYCLU uses the term “extreme isolation” to capture the practice of subjecting one or two people in a cell to the conditions most commonly understood as solitary confinement.
Based on a year of study and analysis, the NYCLU found that:
- New York’s use of extreme isolation is arbitrary and unjustified. Extreme isolation is too frequently used as a disciplinary tool of first resort. Corrections officials have enormous discretion to impose extreme isolation. Prisoners can be sent to the SHU for prolonged periods of time for violating a broad range of prison rules, including for minor, non-violent misbehavior.
- Extreme isolation harms prisoners and corrections staff. It causes grave emotional and psychological harm even to healthy and mentally stable inmates. For the vulnerable, particularly those suffering from mental illness, extreme isolation can be life-threatening. The formal and informal deprivation of human necessities, including food, exercise and basic hygiene, compounds the emotional and psychological harm. Prisoners in extreme isolation often lack access to adequate medical and mental health care. For corrections staff, working in extreme isolation has lasting negative consequences that affect their lives at work and home.
- Extreme isolation negatively impacts prison and community safety. The psychological effects of extreme isolation can fuel unpredictable and sometimes violent outbursts that endanger prisoners and corrections staff. Prisoners carry the effects of extreme isolation into the general prison population. They also carry them home. Nearly 2,000 people in New York are released directly from extreme isolation to the streets each year. While in the SHU, prisoners receive no educational, vocational, rehabilitative or transitional programming, leaving them less prepared to successfully rejoin society.
"for the first time, we’re going to elect a candidate from a state that does not execute prisoners"
The title of this piece is a fascinating tidbit of presidential trivia drawn from this intriguing local article headlined "Why The Death Penalty Is Not An Issue In This Campaign." Here are excerpts from the effective piece:
The death penalty used to be an important issue in presidential politics. In 1988, Vice President George Bush used his Democratic opponent Michael Dukakis’s opposition to the death penalty to portray him as soft on crime....
Running against Bush four years later, Arkansas Gov. Bill Clinton didn’t make the same mistake. He flew back to Little Rock to ensure the execution of Ricky Ray Rector, who had killed a police officer and then shot himself in the head. Rector was so brain damaged that he didn’t finish his last meal, saving his pecan pie “for later” before he was led to the execution chamber.
The death penalty also became an issue for Bush’s son, George W. Trying to establish that he was a friend to black voters, Bush boasted that the killers of James Byrd, a Texas man who had been dragged behind a truck by white supremacists, were “going to be put to death.”...
Capital punishment will not be an issue in this year’s campaign. For the first time, both candidates are from states that have abolished the death penalty. Which means that, also for the first time, we’re going to elect a candidate from a state that does not execute prisoners. (Illinois did not abolish capital punishment until 2011, three years after President Obama was elected. As governor of Massachusetts, Romney proposed a bill to restore the death penalty, but his legislature rejected it, denying him an achievement he could tout to conservatives.) Below is a list of such presidential candidates throughout American history. It’s hard to argue that any of them have lost specifically because they opposed the death penalty, but they generally came from states more liberal than the nation as a whole, so their stances were part of a political philosophy that voters did not accept.Lewis Cass, Michigan, 1848Robert M. La Follette, Wisconsin, 1924Hubert Humphrey, Minnesota, 1968Walter Mondale, Minnesota, 1984Michael Dukakis, Massachusetts, 1988John Kerry, Massachusetts, 2004Barack Obama, Illinois, 2012Mitt Romney, Massachusetts, 2012
Significantly, I think the death penalty should be an issue in the 2012 presidential campaign because the federal death penalty has been in a mysterious state of suspension even since the Baze lethal injection litigation created a moratorium on executions more than five years ago. As detailed here at the DPIC website, there are more than 50 persons on federal death row, including an handful sentenced to death during the Obama Administration. Thus, the federal chief executive (and his appointed Attorney General) has some unique death penalty responsibilities and thus ought to at some point in a campaign speak to his views on how best to discharge these responsibilities.
Related post (from 2010!):
Well, ... at least these parolees had a zero recidivism rate (unless they're zombies)The title of this post is the snarky reaction I had to this new local article from Tennessee, which is headlined "Parolees monitored, but no longer alive." Here is how the (unintentionally amusing) article begins:
Tennessee’s Board of Probation and Parole reported in the past year that dozens of dead offenders were alive and being monitored, according to a state comptroller report released on Monday. The state-funded office, which at the time of the audit had an $86 million budget, claimed that at least 82 dead people on probation or parole were still alive, a mistake the comptroller attributed to “inadequate supervision.”
“It’s obviously a problem,” said Sen. Brian Kelsey, a member of the Senate Judiciary Committee. “With that many dead people supposedly being supervised, it makes you wonder how many live people were also not being supervised.”
In one instance, a criminal who died in October 2011 was reported to be “bedridden at home.” In another case, an officer documented contacting a parolee who, the comptroller’s office learned, had been dead for 19 years.
The comptroller’s office declined to identify individual officers, and neither agency was able to say whether anyone had been disciplined for reporting errors. But Comptroller Justin Wilson echoed Kelsey’s concern that the audit raised questions both about the expenditure of public funds and the supervision of parolees statewide. “If parole officers are supervising dead people, this is a waste of taxpayer dollars and makes us wonder about the supervision of parolees living in our communities,” Wilson said.
The state’s Board of Probation and Parole, which keeps track of about 60,000 offenders, has long faced heavy caseloads and contended with high employee turnover. It also has been widely reported that the agency’s resources have been stretched so thin that its ability to monitor some of the state’s most dangerous criminals has been compromised.
Since the economic downturn, the agency has rarely met its supervision standards. Though more probation officers have been added to the ranks, a high turnover rate has made proper supervision nearly impossible, according to previous reporting by The Tennessean. Most officers are tasked with overseeing about 100 offenders.
Deborah Loveless, the comptroller’s assistant director for state audit, would not comment on whether the errors were made by one individual or by many at the agency. How much the blunders have cost taxpayers is unknown, according to Loveless. The audit does suggest, however, that “tax payer resources were used in an ungrateful way,” she said.
In a written response included in the audit, the board admitted that reporting dead people as alive was a problem. All staff will be trained to better detect deceased offenders by the end of the year, the agency said. On Wednesday, the comptroller’s office will present the audit to state legislators, at which point they will recommend whether to continue to fund the agency, or relocate the probation and parole program under a different government arm.
The 83-page audit referenced in this article is available at this link. And while I am being snarky, I have to comment on two lines I love from this article.
First, what a great response from Tennessee Board of Probation and Parole: "staff will be trained to better detect deceased offenders by the end of the year." I am so glad to hear there will be extensive staff training to make sure workers can better detect which offender are truly deceased. After all, we would not want staff to be fooled by offenders who were only pretending to be dead. Even worse, if some seemingly deceased offenders are in fact undead (i.e., are zombies), they may need to be placed under more intensive supervisions. Based on what I have seen in various movies, it seems that zombies have remarkably high violent crime rates.
Second, I adore this double-speak phrasing from the state auditors: by monitoring the deceased, "tax payer resources were used in an ungrateful way." To begin, I question whether this is statement accurate because I suspect that living parolees are in fact grateful that they are being monitored less because dead persons are still being monitored. Moreover, what a polite was to lament government waste: taxpayers should not be angry about massive criminal justice systems misusing our money, we should just not be "grateful" about waste of the scarce state resources devoted to keeping society safe.
October 1, 2012
En banc Fifth Circuit clarifies its standard for restitution in child porn downloading cases
The Fifth Circuit has a huge and potentially hugely consequential en banc ruling today in In re Amy Unknown, No. 09–41238 (Oct. 1, 2012) (available here), concerning the standards for restitution awards in child pornography downloading cases. Here is how the lengthy opinion for the majority begins and ends:
The issue presented to the en banc court is whether 18 U.S.C. § 2259 requires a district court to find that a defendant’s criminal acts proximately caused a crime victim’s losses before the district court may order restitution, even though that statute only contains a “proximate result” requirement in § 2259(b)(3)(F). All our sister circuits that have addressed this question have expanded the meaning of § 2259(b)(3)(F) to apply to all losses under § 2259(b)(3), thereby restricting the district court’s award of restitution to a victim’s losses that were proximately caused by a defendant’s criminal acts. A panel of this court rejected that reading, and instead focused on § 2259’s plain language to hold that § 2259 does not limit a victim’s total recoverable losses to those proximately resulting from a defendant’s conduct. A subsequent panel applied that holding to another appeal, yet simultaneously questioned it in a special concurrence that mirrored the reasoning of our sister circuits. To address the discrepancy between the holdings of this and other circuits, and to respond to the concerns of our court’s special concurrence, we granted rehearing en banc and vacated the panel opinions.
This en banc court holds that § 2259 only imposes a proximate result requirement in § 2259(b)(3)(F); it does not require the Government to show proximate cause to trigger a defendant’s restitution obligations for the categories of losses in § 2259(b)(3)(A)–(E). Instead, with respect to those categories, the plain language of the statute dictates that a district court must award restitution for the full amount of those losses. We VACATE the district courts’ judgments in both of the cases below and REMAND for further proceedings consistent with this opinion....
For the reasons above, we reject the approach of our sister circuits and hold that § 2259 imposes no generalized proximate cause requirement before a child pornography victim may recover restitution from a defendant possessing images of her abuse. We VACATE the district courts’ judgments below and REMAND for proceedings consistent with this opinion
The bold in the last paragraph above was added by me, in part to highlight why this issue seems now destined for a cert grant in some case before too long.