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October 12, 2013

Audio of Sixth Circuit en banc Blewett oral argument available (and drinking game suggestion)

I have been busy and distracted by a variety of work (and non-work) activities ever since attending the remarkable Sixth Circuit en banc Blewett oral argument concerning crack sentencing modifications, and I have not wanted to write up my thoughts on the argument until I had a big block of time to devote to the task.   Ergo, I expect I will be posting commentary on the oral argument in this space sometime toward the end of this weekend.

In the meantime, thanks to the tech-friendly Sixth Circuit website, everyone can listen to an audio recording of Wednesday afternoon's hour-long argument via this link. I encourage everyone interested in these issues to take time to listen to the recording.  (And, if one is eager to make the listening experience even more exciting, I would recommend using the audio as a drinking game during which a listener must take a big drink every time someone says "Professor Berman."  The brief I helped file on behalf of the NACDL, which is discussed and linked via this prior post, was subject to discussion during the argument even though there was, disappointingly, very little focused consideration of the Eighth Amendment jurisprudence I stressed in that brief.)

October 12, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

October 11, 2013

Record-long political corruption sentence for former mayor of Detroit

As reported in this New York Times article, headlined "Kwame M. Kilpatrick, Former Detroit Mayor, Sentenced to 28 Years in Corruption Case," a remarkable case of political corruption culminated yesterday in a remarkable federal sentence.  Here are excerpts from the press account of the sentencing:

Kwame M. Kilpatrick, the former mayor of Detroit, stood before a federal judge on Thursday and apologized for putting the people of his city through a corruption scandal so vast that prosecutors say it helped accelerate Detroit’s march toward bankruptcy. “They’re hurting,” Mr. Kilpatrick said. “A great deal of that hurt I accept full responsibility for.”

They were solemn words from the formerly boisterous figure, a bear of a man at 6 feet 4 inches who many believed would lead Detroit out of its long economic downturn. But on Thursday he stood slouched, wearing a tan prison uniform instead of the flashy suits he once favored.  Court officers replaced the entourage of bodyguards that used to follow him around. The diamond that once studded his ear, an emblem of his reputation as the “hip-hop mayor,” was gone.

Then, declaring an end to the bribery and thieving that marked the Kilpatrick administration, Judge Nancy G. Edmunds of United States District Court imposed the sentence prosecutors had sought: 28 years in prison.

Mr. Kilpatrick, 43, was convicted in March of two dozen counts that included charges of racketeering and extortion, adding his name to a list of at least 18 city officials who have been convicted of corruption during his tenure. His punishment ranks among the harshest major state and local public corruption cases. Lawyers for Mr. Kilpatrick said that they intend to file an appeal of the convictions and sentence.

The hearing came at a sobering moment for the city he once led, which is now remaking itself in bankruptcy court as residents wrestle over whom to blame for the fiscal mess. For Detroiters, Mr. Kilpatrick’s meteoric fall — from potential savior of a struggling city to prison-bound symbol of financial mismanagement — may be the closest they will get to holding past leaders accountable for decades of disappointment and poor fiscal decisions....

In 2008, Mr. Kilpatrick resigned after he lied under oath during a police whistle-blower lawsuit and approved an $8.4 million settlement to try to cover it up. After pleading guilty to charges of obstruction of justice, Mr. Kilpatrick served four months in jail and was ordered to pay $1 million to the city. He was soon behind bars again for hiding assets from the court and telling a judge that he could afford to pay only $6 a month in restitution.

The former mayor and Bobby W. Ferguson, a city contractor and a friend, were indicted in 2010 on sweeping federal corruption charges. All told, prosecutors contend that Mr. Ferguson received $73 million worth of city contracts as a result of an extortion scheme that involved Mr. Kilpatrick, netting $9.6 million in illegal profit. Mr. Ferguson was convicted of nine counts and will be sentenced on Friday. “The amount of crime, it was astonishing and it had a huge impact on this city,” Mark Chutkow, one of the prosecutors, said as he left the courthouse on Thursday.

Mr. Kilpatrick’s lawyer, Harold Z. Gurewitz, who pushed for a sentence of no more than 15 years, argued in court that Mr. Kilpatrick was being unfairly targeted as a scapegoat for Detroit’s insolvency, with people trying to “send him out with the sins of the city over the last 50 years.” The sentence, he said in an interview later, was tougher than necessary and stiffer than some people get for violent crimes.

Among some of the highest penalties for recent public corruption convictions, James C. Dimora, former commissioner of Cuyahoga County in Ohio, was sentenced last year to 28 years in prison for racketeering and bribery. A year before, Rod R. Blagojevich, former governor of Illinois, was sentenced to 14 years in prison for convictions that included trying to sell the Senate seat President Obama left open when he went to the White House.

In her ruling on Thursday, Judge Edmunds said her decision was another strong warning to elected officials. “That way of business is over,” she said. “We’re done. We’re moving forward.”

October 11, 2013 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

October 10, 2013

US District Judge Gleeson assails DOJ use of MM sentencing threats to force pleas

Regular readers have of late become familiar with the remarkable series of opinions being issued by US District Judge John Gleeson in which he forcefully expresses his deep concerns with how federal prosecutors can and will use mandatory minimum sentencing provisions to distort the operation of the federal criminal justice system. Judge Gleeson's latest opinion in this series was handed down yesterday in US v. Kupa, No. 11-CR-345 (E.D.N.Y. Oct. 9, 2013) (available for download below), and its full 60 pages are must-read material for federal sentencing fans. The opinion can not be easily summarized, but its conclusion provide a flavor of what comes before:

I sentenced Lulzim Kupa to a 132-month term of imprisonment for a variety of reasons. The most important by far was because I could, that is, I was not required to impose a sentence of life in prison for his nonviolent drug trafficking offense. And the only reason for that is Kupa buckled under the enormous pressure that looming sentence placed on him.  The prior felony information ushered that 800-pound gorilla into the case at the eleventh hour and it took the case over.  Once it was filed, everything that followed was done with all eyes on the draconian sentence that a jury’s verdict of guilty would require me to impose.  It snuffed out an imminent trial at which Kupa wanted to do what our Constitution and Bill of Rights guarantee him: hold the government to its burden of proving him guilty beyond a reasonable doubt.  And indeed the desire to snuff out that trial was reason the sole reason the prosecutor filed it.

Throughout, I have assumed that both the drug offense mandatory minimums and the onerous enhancements triggered by prior felony informations are here to stay, at least in some form. After all, as a circuit judge wrote in 2009, “[t]he Judicial Conference of the United States for almost 20 years, and the Sentencing Commission for almost 10 years, have pleaded with the judiciary committees of Congress to do something about the serious injustices that these long, mandatory minimum sentences impose -- to no avail.” [footnote citing Gonzalez-Ramirez, 561 F.3d at 31 (Merritt, J., concurring).] I have also assumed the constitutionality of using prior felony informations as bludgeons in federal prosecutors’ efforts to get defendants to plead guilty.  But arguing that it is not illegal for prosecutors to use prior felony informations to produce the guilty pleas and sentences described above is no way to defend such a wayward policy.  Attorney General Holder’s admirable leadership toward sentencing reform should lead him to refocus his attention on prior felony informations.  If DOJ cannot exercise its power to invoke recidivist enhancements in drug trafficking cases less destructively and less brutally, it doesn’t deserve to have the power at all.

Download US v Kupa statement of reasons final

Some prior posts noting Judge Gleeson's recent sentencing opinions:

October 10, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (32) | TrackBack

Please welcome (and often visit) the new Civil Rights Law & Policy Blog

It is with great joy and pleasure that I get to promote a great new blog just started by a great former student of mine, Andrew Ironside.  Andrew explains in this first post, some of his primary plans and aspirations for his new Civil Rights Law & Policy Blog:

CRL&P’s goal is to provide an open space for discussion of civil rights and constitutional law issues.  CRL&P’s analyses will focus on contemporary civil rights debates and the concomitant coverage of these conflicts by the press and the academy.  Further, CRL&P will also highlight historical examples of civil rights disputes as they relate to our current understanding of these issues.

CRL&P also hopes to serve as a resource for anyone interested in learning more about this robust and important area of the law.  In particular, CRL&P will provide daily news rundowns; and, it will highlight forthcoming, newly-released, and generally interesting scholarly works relevant to CRL&P’s areas of inquiry.  Visitors are encouraged to visit CRL&P’s resource page.

CRL&P also welcomes debate — comments and criticisms are encouraged, and responses to both specific CRL&P posts and the blog as a whole are appreciated.

Additionally, CRL&P will consider submissions for guest posts. While the scope of civil rights and civil liberties provides virtually limitless opportunities for inquiry, potential guest contributors are encouraged to consider CRL&P’s goals before sending submissions. Similarly, there is no limit to the length of guest posts. But, potential guest contributors ought to consider the blog format before clicking “send.”  Submissions should be sent here.

The editor is Andrew M. Ironside, a graduate of The Ohio State University Moritz College of Law.  Ironside’s academic interests include civil rights law, election law, the First Amendment, and the right to vote. Currently, with support from the new Institute for the Study of Democracy at Ohio State, his research focuses on the right to vote as protected First Amendment speech (more forthcoming).

I have had the pleasure to work with Andrew on a variety of projects, and his prior work history in journalism as well as his interest in the intersection of civil rights and criminal justice leads me to urge fans of SL&P to make regular visits over his new Civil Rights Law & Policy Blog.  Indeed, here are just a small sampling of the many interesting posts one will find at that space already:

October 10, 2013 in Collateral consequences, On blogging, Recommended reading | Permalink | Comments (9) | TrackBack

October 9, 2013

"Anormative Conceptions of Punishment and Humanitarian Ideals"

The title of this post is the title of this notable new paper available via SSRN authored by the prolific and profound Michael Tonry. Here is the abstract:

For the past quarter century, scholars have identified and attempted to explain large differences and changes over time in countries’ penal policies as expressed in their imprisonment rates.  Explanations differ, and imprisonment rates change, sometimes radically, but one thing has remained the same.  The countries atop the rankings have consistently included the United States, South Africa, Russia, the Baltics, Ukraine, and Belarus.

What distinguishes them, and more recently England and Wales, which has led the Western European league tables for two decades, is that they are countries in which punishment discourses, policies, and practices take little account of the interests of offenders.  "There but for the grace of God…" empathy is largely absent.  Mainstream retributive and consequentialist theories of punishment appear to have little influence. Policies and practices, and the implicit punishment theory might best be described as anormative.

October 9, 2013 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (4) | TrackBack

Arizona and Texas complete executions 29 and 30 in the US in 2013

Throughout the United States, there has been on average less than one execution per week in 2013; this year might end up having the fewest executions in the US in one calendar year in nearly two decades.  (The Death Penalty Information Center has the yearly execution data well assembled here.)  But as reported in the articles linked below, two states today brought total number of executions up to 30:

October 9, 2013 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (14) | TrackBack

District Judge Graham gets in a final word on child porn sentencing despite Sixth Circuit reversals

I am about to head off line for the bulk of the day in order to head down to the Queen City in order to watch the full en banc Sixth Circuit consider crack sentencing modification rules in Blewett. (I hope late tonight to report on what I see in the argument, perhaps with a prediction as to the outcome.)

For my last word before I go to watch the Sixth Circuit in action, I am pleased to post a recent opinion by US District Judge James Graham that provides its own kind of last word about the Sixth Circuit's recent sentencing work in a child pornography downloading case that the Sixth Circuit took out of Judge Graham's hands.  The opinion in US v. Childs (which can be downloaded below) is relatively brief, and it starts and winds down this way:

This is a disturbing case. Defendant is charged with one count of possession of child pornography. I am called upon to decide whether to accept a plea agreement which requires me to impose a sentence which is roughly only one sixth of the lowest sentence recommended by the United States Sentencing Guidelines (“the Guidelines” or “U.S.S.G.”). This is disturbing not because I disagree with the sentence, but because I am convinced that under the law of the Sixth Circuit announced in United States v. Bistline, 665 F.3d 758, 761-64 (6th Cir. 2012)(“Bistline I”), I would not have been free to select such a sentence without the government’s agreement....
The Sixth Circuit's decision in Bistline I blurs the distinction between mandatory and advisory by requiring more deference to congressionally created guidelines than that accorded to Sentencing Commission-created guidelines.  Just what implications this might have under Apprendi was not discussed by the Sixth Circuit.

There have been some very important developments since the Sixth Circuit's decision in Bistline I. In its Report to Congress: Federal Child Pornography Offenses (Dec. 2012), www.ussc.gov/Legislative_ and_ Public_ Affairs/ Congressional_ Testimony_ and_ Reports/ Sex_ Offense_ Topics/ 201212_ Federal_ Child_ Pornography_ Offenses/ (visited October 1, 2013), the Sentencing Commission publicly declared that the existing guidelines for child pornography offenses were flawed and in need of repair.  In a letter to Judge Patti B. Saris, Chair of the Commission, dated March 5, 2013, Anne Gannon, National Coordinator for Child Exploitation Prevention and Interdiction, responded to the Commission’s report on behalf of the Department of Justice.  See Letter from Anne Gannon, Nat’l Coordinator for Child Exploitation Prevention and Interdiction, Office of the Deputy Attorney General, U.S. Dep’t of Justice, to Honorable Patti B. Saris, Chair, U.S. Sentencing Comm’n (Mar. 5, 2013), available at http://sentencing.typepad.com/files/doj-letter-to-ussc-on-cpreport. pdf (visited Sept. 30, 2013). The Department expressed its agreement with many of the Commission’s conclusions, noting that the report “reflects a significant amount of detailed research and thoughtful analysis" and thanking the Commission for "undertaking the important task of laying the foundation for reforming sentencing practices involving non-production child pornography offenses." Id. at 1.

Nevertheless, on June 27, 2013, four months after the Commission’s report, the Sixth Circuit filed its opinion in United States v. Bistline, 720 F.3d 631 (6th Cir. 2013)(“Bistline II”) reaffirming it's holding in Bistline I, with no mention whatsoever of the Commission’s findings or the extent of the Department of Justice's concurrence.  As a judge who has regularly sat on the Sixth Circuit Court of Appeals by designation for more than two decades, I find this inexplicable.  Many of the Commission’s criticisms of the child pornography guidelines, including criticisms which the Justice Department concurred in, are identical to the ones I expressed in my sentencing colloquy in Mr. Bistline’s case.  The Sentencing Commission’s criticism of the crack cocaine guidelines was cited as a reason for diminished deference for those guidelines in Kimbrough, and that part of the Kimbrough decision was cited by the Sixth Circuit in Bistline I to explain why the Supreme Court decided that the crack cocaine guidelines were entitled to less deference. See Bistline I, 665 F.3d at 763. In light of the fact that, in the interim, the Commission had spoken on the child pornography guidelines, why would the court not revisit the applicability of Kimbrough when it decided Bistline II? It seems clear to me that under Kimbrough, the child pornography guidelines should be accorded less, not more, deference than others.

It is a tragic irony that sentencing judges in the Sixth Circuit are required to give enhanced deference to guidelines which the independent Commission, relied upon so heavily by the Supreme Court in upholding the Guidelines, has now declared flawed and in need of reform. It is even more tragic that offenders in this circuit will have to rely on prosecutorial discretion, not judicial discretion, in order to receive a just and fair sentence in these cases.

Download Childs Sentencing Opinion and Order

October 9, 2013 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

"Legal-Marijuana Trend Spreads as More States Weigh Votes"

The title of this post is the headline of this new Bloomberg news piece. Here are excerpts:

Voter support for legal marijuana in Washington and Colorado is spurring similar campaigns in California and three other states that together may bring pot within lawful reach of almost 1-in-5 Americans. 

Advocates are seeking the signatures of registered voters in California, Arizona, Oregon and Alaska, with a combined population of 49 million, to put the question on ballots in 2014.  Colorado and Washington last year legalized marijuana for 12.1 million people.

“Because of Colorado and Washington, it’s created a cannabis tidal wave across the country,” Mike Jolson, 45, a legalization activist in Santa Cruz, California, said by telephone.  “We want to capitalize on this wave.”

Washington and Colorado became the first U.S. states to legalize recreational marijuana through referendums last November, defying federal law that has prohibited pot since the 1930s.  In August, the U.S. Justice Department said it wouldn’t challenge the states, opening the door for others.

In Washington state, regulators are finalizing rules for growing, processing and selling marijuana ahead of a Dec. 1 deadline to begin issuing licenses.  In Colorado, which has finished setting its rules, voters will decide next month whether to tax retail sales at rates of as much as 25 percent. 

“Their success in Colorado was very inspiring, and I thought it would be a good time for us to try here,” said Dennis Bohlke, a computer programmer from Phoenix who said he modeled the Arizona initiative after the Colorado measure....

In addition to recreational use, there are efforts to expand the 20 states that allow medical marijuana.... Ballot proposals to legalize medical marijuana use are being circulated in six states: Arkansas, Florida, Idaho, Nebraska, Utah and Wyoming, according to Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws, a Washington-based group that advocates legalization....

Some marijuana proponents are holding off until the 2016 presidential election, when voter turnout is typically higher. Chris Lindsey, an attorney from Missoula, Montana, and a legislative analyst at the Marijuana Policy Project, said he’s working toward adding a recreational-marijuana proposal to his state’s ballot in 2016. “Elections that involve presidential races tend to bring out a younger set of voters and we think we’ll probably benefit from having younger voters,” Lindsey said by phone.

October 9, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Split Tennessee Supreme Court extensively debates capital proportionality review

This local article from Tennessee, headlined "State Supreme Court Upholds Death Sentence, Maintains Sentencing Review Standards For Death Penalty Cases," provides an effective summary of an extensive opinion handed down yesterday concerning capital proportionality review. Here are excerpts:

The Tennessee Supreme Court, in a 3-2 decision, has upheld a death sentence for a Memphis-area man who was convicted of first-degree felony murder after he killed an elderly man while stealing his car.While the entire Court agreed that Corinio Pruitt was guilty, the dissenting justices would have modified the sentence to life without parole.

In reviewing a death penalty case, the Court is required by Tennessee law to conduct what is called a “proportionality review” to ensure that the sentence of death is appropriate in comparison to similar cases. Before conducting a proportionality review with the specific facts in the Pruitt case, the Court first considered whether the methods for such review should be modified. In fact, after the case was argued before the Tennessee Supreme Court in 2012, the Court determined that the issue of proportionality review required additional briefing and argument. After receiving supplementary information from the parties, the Court held oral arguments a second time earlier this year.

The primary issue is the pool of cases used to conduct the comparison in a death penalty case. In conducting its proportionality review, the Court looks at the pool of cases and considers the facts of the crimes, the characteristics of the defendants, and the circumstances of the crimes, with a goal of determining whether a death sentence is excessive or disproportionate.

In 1997, the Court determined that it would compare all death penalty sentences to other cases in which the death penalty was sought. Prior to that, the Court considered all cases in which a defendant had been convicted of first-degree murder, but was not necessarily considered for a death sentence.

The Court on Tuesday rejected the proposal by the defense that it should broaden the pool of cases to include all first-degree murder cases, including those in which the death penalty was never sought. Instead, the Court upheld its previous decisions since 1997 that have conducted a proportionality review by looking only at cases in which the state sought the death penalty and in which a penalty phase was held, regardless of the sentence actually imposed by the jury.

The Court ruled it was inappropriate to review the prosecutors’ initial decisions regarding whether to seek the death penalty at the onset of the case, reaffirming its 1997 Opinion which “noted that including these first degree murder cases in the pool would equate to an implicit review of prosecutorial discretion, that is generally not subject to judicial review.”...

In their separate opinion, Justice William C. Koch, Jr. and Justice Sharon G. Lee, after noting that all murders are serious crimes, stated that comparing all first-degree murder cases would be more consistent with the Tennessee law that requires proportionality review and with the rule that capital punishment is not appropriate for all murders but is reserved for only the most heinous murders and the most dangerous murderers.

The two dissenting justices also pointed to a 2007 American Bar Association study of Tennessee’s death penalty, which stated that the limited pool of cases the Court adopted in 1997 undercut the purpose of proportionality review. After considering Mr. Pruitt’s background and the nature of his crime in light of similar first-degree murder cases in Tennessee, the two justices determined that Mr. Pruitt should be sentenced to life imprisonment without the possibility of parole.

The 50+ page majority opinion in Tennessee v. Pruitt is available at this link, and the partial dissent which checks in at 18 pages is available here.

October 9, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

October 8, 2013

How should the law — federal or state — deal with a 10-year-old serious sex offender?

The question in the title of this post is prompted by this new article from the Wall Street Journal about a remarkable federal juvenile prosecution.  The article is headlined "Federal Youth Case on Trial: Prosecution of 10-Year-Old on Sex Charges Stokes Debate Over Juvenile Justice." Here is how it starts:

Two years ago federal prosecutors won a delinquency finding against a boy accused of engaging in sex acts when he was 10 years old with other young boys on an Army base in Arizona—one of the youngest defendants ever pursued by the U.S. Justice Department.

The case, now being reviewed by the Ninth Circuit U.S. Court of Appeals, could open a new front in a long-running debate about how to handle juvenile sex offenders, whose cases generally have been tried in state, not federal, courts.  The records are sealed because the defendant was tried as a juvenile, but the case came to light in September at an appellate hearing in San Francisco that was open to the public.

The boy's appeal involves a thorny legal question: Should children be prosecuted for sex acts with other children under a federal law that the boy's lawyers say was designed to target adult predators?  The fight also highlights a broader debate over tagging juveniles as criminal sex offenders, a label that can land them a spot on registries that track offenders and limit where they can live.

The boy was found delinquent — guilty in juvenile-court parlance — on charges of aggravated sexual abuse against five boys between the ages of 5 and 7, under a statute that makes it illegal to engage in a sexual act with a person younger than 12 regardless of whether physical force is involved.  The boy was sentenced to five years' probation, including mandatory psychological treatment, lawyers on the case said.  He must also register as a sex offender in certain states, according to his lawyer.

"I think this is really overreaching on the part of the government," Keith Hilzendeger, a federal public defender representing the boy, said in an interview. He added that he had "never heard of a federal case where a person is 10."

Assistant U.S. Attorney Bruce Ferg said outside the courtroom that federal prosecutors took the case because of "the severity of the conduct" and because it took place on Fort Huachuca, the Army base where the boys lived with their families. "My opinion is this is the best thing that could've happened to the kid," said Mr. Ferg, adding that the case included allegations of anal penetration, repetitive behavior and threats.  He said that prosecutors considered, "What can we do with this child to make sure this doesn't happen again?"

October 8, 2013 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (17) | TrackBack

"Native American Sentencing Disparity and the Case of Dana Deegan"

The title of this post is the title of this notable event taking place next week at the University of North Dakota School of Law.  Long-time readers may vaguely recall this 2010 post about the Eighth Circuit panel's split ruling affirming the defendant's within-guideline sentence in US v. Deegan, No. 08-2299 (8th Cir. May 25, 2010) (available here).  I called the Deegan case remarkable in part because of the criminal offense (second-degree murder of a newborn due to neglect), in part because of the offender (the newborn's mother, a Native American who has suffered a long history of physical and sexual abuse), and in part because of a must-read 50+ page dissent by Judge Myron Bright. 

I am very pleased that the (under-explored) sentencing issues spotlighted by one case and one dissent has now prompted a full panel discussion.  And I am very sad that I am unable to skip out on all my classes to head out to Grand Forks for this event; the topics and speakers looks like it would be worth the trip:

Schedule of Speakers:

Overview of the Disparity Problem and its Origins

  • BJ Jones, Director, Tribal Judicial Institute & Chief Justice of the Turtle Mountain Tribal Court of Appeals
  • Chris Ironroad, Associate Attorney at Sonosky, Chambers, Sachse, Endreson & Perry, LLP

Impact of Disparity on Native Americans - The Case of Dana Deegan

  • Judge Myron H. Bright, United States Court of Appeals for the Eighth Circuit
  • Judge David E. Ackerson, St. Louis County, Minnesota
  • Sarah Deer, Assistant Professor of Law, William Mitchell College of Law
  • Marmie Jotter, sister of Dana Deegan and licensed psychotherapist

How the Guidelines Unfairly Treat Domestic Violence Victims

  • Radmilla Cody - Ms. Navajo Nation 1997-98 and recording artist

October 8, 2013 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

What is the "right" sentencing range for aggravated vehicular homicide as a result of drunk driving?

The question in the title of this post is prompted by this recent lengthy article from my local Columbus Dispatch, and it is a question perhaps likely be be broadly in the run-up to the scheduled sentencing next week here in Ohio in a a high-profile drunk driving homicide case.  The article is headlined "Vehicular homicide sentences not harsh enough, say victims’ families: Others say defendant’s history, remorse should count," and here are excerpts:

When she learned that the drunken driver who killed her 15-year-old son could get no more than two to eight years in prison for aggravated vehicular homicide, Ellenna Houser was shocked....

Cathy Humphries, who struck Austin Houser with her pickup truck a year ago as he walked on a rural route in Logan County and left him there to die, was sentenced in May to eight years in prison — six years for aggravated vehicular homicide and two years for leaving the scene. “Drug dealers get more time than that,” Houser said.

Columbus defense attorney Brad Koffel gets a different reaction to the potential sentence when he speaks to the family members of a client charged with killing someone while driving drunk. “They find it harsh,” he said. “They’ll say, ‘He has no prior record. This wasn’t intentional.’  ”

But Koffel understands that the families of the victims, and those prosecuting such cases, have a different attitude. “If I were the prosecutor, representing the state of Ohio, I would find eight years to be wholly insufficient,” he said. Finding a balance between those positions at sentencing is one of the toughest jobs a judge will ever face, Koffel said.

Franklin County Common Pleas Judge David W. Fais will be in that spot on Oct. 16 when he announces a sentence in an aggravated vehicular homicide case that is drawing national attention.

Matthew Cordle, 22, of Powell, pleaded guilty last month to the charge after posting an online confession that went viral. He admitted that he was driving drunk at 2:40 a.m. on June 22 when he killed 61-year-old Vincent Canzani in a wrong-way crash on I-670 near 3rd Street. In the video, which has garnered more than 2.2 million hits on YouTube, Cordle promises to “take full responsibility” for his actions and begs others not to drink and drive.

Prosecutor Ron O’Brien said taking responsibility in this case means serving the maximum penalty, which his office will request at the sentencing hearing. He is among those who think Ohio’s penalties for causing a death through drunken driving are too lenient.

O’Brien said he has received emails from across the country as a result of the Cordle case. “They’re asking, ‘What’s up with Ohio? How can somebody be totally drunk, driving the wrong way on the freeway, kill someone and the penalty is only eight years?’ And it can be as low as two years,” he said. “I don’t think that’s a fair or appropriate penalty.”

W. Martin Midian, one of Cordle’s attorneys, said a fair sentence for his client, who has no felony record and no previous DUI convictions, is something less than the maximum. “I think if Matt were to receive the maximum sentence, it would send the wrong message about people accepting responsibility for their actions,” he said.

Koffel went further, saying that if Cordle receives the maximum as a first-time offender, “I think he has a very good argument on appeal. Max sentences are to be reserved for the worst of the worst.”...

Those found to be driving recklessly when they cause a fatal crash, for such things as texting behind the wheel or running a red light, are charged with a lower-level felony that has a sentencing range of one to five years in prison.

Ohio’s neighboring states are stricter about drunken drivers who cause a death, according to information compiled by Mothers Against Drunk Driving. A first offense brings a prison term of two to 10 years in West Virginia and five to 10 years in Kentucky. The maximum penalty is 10 years in Pennsylvania and 15 years in Michigan. In Indiana, punishment for a first offense is two to eight years for those with a blood-alcohol content of 0.08 percent to 0.14 percent. Those who test higher can get up to 20 years.

“Ohio is weaker than a lot of states, but we’re not the weakest,” said Doug Scoles, state executive director of MADD. In about half of the states, prison isn’t mandatory, according to MADD’s literature.

The last time Ohio altered penalties for the offense was in 2007. That’s when the legislature passed a law that toughened the sentence for those convicted of aggravated vehicular homicide while drunk who have three or more DUI convictions in the preceding six years. For them, the penalty is 10 to 15 years.

October 8, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (5) | TrackBack

"A messy follow-up to Lafler and Frye: Can 'fun' facts produce 'good' law?"

The title of this post is the title of this great case preview by Rory Little over at SCOTUSblog concerning today's notable Supreme Court oral argument on a topic that ought to interest sentencing fans. Here is how it begins:

When the Supreme Court, two Terms ago, extended Strickland’s “ineffective assistance of counsel” doctrine to plea negotiations (Lafler v. Cooper and Missouri v. Frye), Justice Alito objected in dissent to “its opaque discussion of remedy” and begged the Court to “come to the rescue” by providing better guidance.  Then Michigan’s Solicitor General sought certiorari to review the Sixth Circuit’s grant of habeas relief to a prisoner who claimed that bad lawyering led her to withdraw from a sweet plea deal.  Justice Alito, the only Justice not using the “cert. pool” to evaluate petitions, likely did not object -- and Vonlee Titlow’s pro se cert. opposition failed to highlight the messy and unsettled facts that Michigan’s petition glossed over.  But Tuesday’s oral argument in Burt v. Titlow may highlight problems with sometimes-too-speedy “cert. pool” grants. The Justices are likely to feel frustrated in extracting useful guidance from parties that can’t agree on even the most basic facts.

UPDATE:  With thanks again to SCOTUSblog, I see that the transcript from the oral argument in Burt v. Titlow is now available here.   I will do an additional update if anything special jumps off the page from the transcript.

October 8, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

October 7, 2013

Fifth Circuit panel declares substantively unreasonable (and plainly erroneous) an above-guideline child porn sentence

I am always pleased to see examples of post-Booker reasonableness review being given some more teeth in the circuits, and a panel ruling released today by the Fifth Circuit in US v. Chandler, No. 12-30410 (5th Cir. Oct. 4, 2013) (available here), shows that even defendants convicted of child porn offenses can sometimes benefit from appellate judges taking reasonableness review seriously. Here are excerpts from the start and heart of the of the panel opinion in Chandler:

Richard Chandler pleaded guilty to engaging in a child exploitation enterprise. At sentencing, the district court varied upward by 127 months over the recommended Guidelines range to impose 420 months of imprisonment.  We find that the district court erred by increasing Chandler’s sentence based on the fact that he was a police officer. We remand for re-sentencing....

The parties agree that the district court correctly calculated Chandler’s Guidelines range as 240-293 months. In the PSR, the probation officer stated that he had not identified any factors warranting a departure or variance from the Guidelines range. Chandler did not file objections to the PSR, but he filed a Motion for Deviation from Sentencing Guidelines, arguing that a significant downward departure from the Guidelines was justified in his case because the sentencing scheme for possession of child pornography is unfair and the circumstances of his offense warranted leniency. The district court rejected Chandler’s motion, noting that Chandler was not a “mere possessor” because he had repeatedly posted child pornography. The district court ultimately imposed a sentence of 420 months of imprisonment, an upward variance of 127 months from the top of the Guidelines range. The district court found that the non-Guidelines sentence was justified by the nature and circumstances of the offense, particularly Chandler’s abuse of his public office as a law enforcement officer, his use of other people’s internet connections to attempt to hide his participation in the scheme, and the fact that he posted child pornography 117 times, mostly with children 8 to 14 years of age. Chandler did not object to the sentence. Chandler filed a timely notice of appeal....

Some of the comments made by the district court here, such as those stating that by being a police officer Chandler has placed himself in a different category and should be held to a higher standard, are similar to those in Stout and could be interpreted to cross the line into impermissible reliance on Chandler’s socioeconomic status as a police officer.

To the extent that the district court’s comments regarding Chandler’s position are findings that Chandler abused his position of trust or that the offense was more serious because of Chandler’s position, the district court likewise erred. Though we are mindful that our review in this case is only for plain error, our circuit precedent is clear that a defendant’s status as a police officer, standing alone, is not a justifiable reason to increase a sentence....

[T]hough the district court stated multiple times that it was varying upwards because Chandler abused his position, the district court did not rely on any facts showing that Chandler acted in his capacity as a police officer in posting child pornography on the internet. There is no evidence in the record that he used or exploited his position as a police officer, or used any knowledge or skills he gained from that position, to commit the offense or attempt to hide it.

The district court’s error was compounded by its mischaracterization of the conduct involved in Chandler “stealing” other people’s “identities” or “internet addresses.” The only description of this conduct in the record is in a sentencing memorandum filed by the government, which states that Chandler used other people’s unsecured wireless connections. Though the government refers to this as “stealing,” it essentially amounts to logging onto an open wireless network. While we agree with the government that such activity could have caused innocent people to be subject to investigation, it clearly is not equivalent to identity theft or any sort of skilled hacking activity, though the district court discussed it as if it required highly technical knowledge that Chandler acquired as a police officer.

October 7, 2013 in Booker in district courts, Booker in the Circuits, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

SCOTUS gets back in action ... with a light sentencing docket (for now)

The calendar reports that it is the first monday in October, which means it is time for elite lawyers to throw out the first case to kick off the new Supreme Court season.  (Given that a number of the SCOTUS Justices are baseball fans and have had the privilege to throw out first pitches, I think it would be really cool for them to invite a famous ballplayer to come throw out the first case.  This SCOTUS Term, of course, it should be Mariano Rivera getting the privilege.)

SCOTUSblog is the place to go to keep up with the start of the new Term, and How Appealing has collected here some of the best SCOTUS preview article.  Among the previews, I found especially effective Chris Geidner's coverage here at BuzzFeed under the headline "11 Supreme Court Cases That Could Change The U.S. In The Coming Year."   That article not only spotlights the highest profile cases on the SCOTUS docket, but also notes a few potential sleepers already on the docket and issues on which cert seems likely to be granted in the coming months.

Disappointingly, as the title of this post notes, the new SCOTUS term is right now light on cases that should be of interest for sentencing fans.  Indeed, as of now, there are not any "classic" sentencing issues before the Justices, and I do not see many such sentencing issues in the cert pipeline for SCOTUS unless a group of Justices want to now take up some long-smoldering post-Booker issues or some more recent post-Graham/Miller matters.

That said, there are still more than a few cases that sentencing fans should be keeping an eye on because they deal with concerns ranging from causation standards for restitution awards (Paroline v. U.S.) and causation standards for triggering a 20-year mandatory minimum term (Burrage v. U.S.) to application of the Sixth Amendment ruling in Lafter v. Cooper (Burt v. Titlow) to various death penalty application matters (Kansas v. Cheever and White v. Woodall).

I am sure this too quick SCOTUS preview post has missed a few issues of interest already on the docket and in the pipeline.  Readers are urged to fill up the comments with any and all sentencing or broader criminal justice thoughts on the SCOTUS Term to come.

October 7, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

"Evidence, Ideology, and Politics in the Making of American Criminal Justice Policy"

The title of this post is the title of this notable new paper available via SSRN authored by the prolific and profound Michael Tonry. Here is the abstract:

The development of a large and productive community of criminal justice programs, scholars, and researchers in the United States since the 1970s has not led to the emergence of a general norm of evidence-based policy making. Nor on many subjects have accumulations of improved knowledge had much influence. On a few they have.

The two best examples of influence are policing and early childhood prevention programs. Concerning policing, a plausible story can be told of an iterative process of research showing that police practices and methods do and do not achieve sought-after results, followed by successive changes in how policing is done. Concerning early childhood programs, a conventional scientific process of hypothesis testing and repeated pilot projects with strong evaluations led to widespread adoption of improved programs and techniques.

Concerning sentencing, sanctioning policies, firearms and violence, and drug policy, by contrast, strong bodies of accumulating evidence have consistently been ignored. Correctional rehabilitation research is a hybrid. Eclipsed in the 1970s by a gloomy view that “nothing works,” research on correctional treatment in the 1980s and 1990s demonstrated that a wide variety of programs can improve offenders’ lives and reduce reoffending. The findings have influenced the development of reentry and other programs that focus primarily on risk classification and reduction of recidivism rates, but only incidentally on addressing offenders’ social welfare needs.

October 7, 2013 in Data on sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2) | TrackBack

October 6, 2013

More evidence of the sad perversity of California's administration of the death penalty

SealCAAs the title of this post reveals, I have now decided that the best adjectives to describe the administration of the quasi-dormant death penalty in California are sad and perverse.  This new local article, headlined "Serial killer's death sentence revives capital punishment debate," highlights why:

In 1977, 19-year-old Larry Roggasch cracked open a six-pack of beer, pouring three on his little sister's freshly covered grave in their native San Jose, and made a promise: He would see that the man who raped, strangled and dumped her on a Marin County hillside be punished.

Thirty-six years later, judgment day looms for serial killer Joseph Naso, who at age 79 will become the oldest person ever sentenced to death in California when a judge next month pronounces his penalty for the murders of 18-year-old Roxene Roggasch and three other Northern California prostitutes.

But Larry Roggasch doesn't know whether he can bear to watch Naso receive what seems to him a hollow sentence. With an ongoing moratorium on executions in California and hundreds of convicted murderers awaiting capital punishment, there is virtually no chance the state will ever put Naso to death.

"It's a joke; he's never going to be executed," said Roggasch, a 56-year-old commercial fisherman. "He's going to live out the rest of his life safe and comfortable in his own cell on death row. That's why I want him to go to mainline prison," Roggasch continued. "He needs to suffer, like them -- not just my sister, all of them."

In California, the death penalty appeals process takes so long that men half Naso's age on death row are more likely to die of natural causes or kill themselves than be executed by the state. And while they wait on San Quentin State Prison's death row, they lead a relatively comfortable existence, with single cells and access to the best attorneys fighting for prisoners' rights.

But on the heels of voters narrowly choosing to preserve the death penalty last year, California's district attorneys and peace officers are readying a proposition for the 2014 ballot that they say would expedite executions once the state lifts its moratorium on lethal injection drugs. Among those spearheading the effort are District Attorneys Steve Wagstaffe of San Mateo County, Jeff Rosen of Santa Clara County and Mark Peterson, whose Contra Costa County territory has been the scene of death penalty defendants mocking the threat of capital punishment in recent years.

"Some individuals facing murder charges would prefer the death penalty to life without parole because they believe the conditions on death row are better than among the general population," said Larry Barnes, a private defense attorney and death penalty expert. "They harbor the opinion that with some 720 men on death row, unless they are very young, they don't stand a chance of being executed."

Such was the case with Richmond-San Rafael Bridge toll plaza killer Nathan Burris, who practically begged Contra Costa County jurors to give him the death penalty at his trial last year for the jealousy-fueled ambush killing of his ex-girlfriend and her friend.

"If I was in Texas, I'd be terrified," Burris said from the witness stand in 2012. "California is not real. The death penalty means nothing to me but time to hang out and do what I'm going to do."

In the same courtroom three years earlier, Edward Wycoff received the death penalty for the ambush slayings of his sister and brother-in-law in El Cerrito. He told jurors that he deserved an award, not the death penalty, but still wanted the one-to-a-cell status that death row provides.

Between California resuming executions in 1992 and the beginning of the state's judicially imposed moratorium in 2006, just 13 men who exhausted their appeals have been executed. The California Department of Corrections and Rehabilitation counts 722 men and 20 women currently on death row, nearly 300 of whom have had their sentences affirmed by the Supreme Court. Experts say it takes 12 years on average for condemned inmates in California to exhaust their appeals, more than twice the national average for death penalty states.

Meanwhile, the costs mount; by one estimate, the state has spent more than $4 billion on death penalty trials, appeals and incarceration since 1978. "The death penalty process is broken, there is no dispute about that," said Peterson, who is part of Californians for Death Penalty Reform and Savings, a coalition of district attorneys, law enforcement professionals and victims' rights advocates in the process of raising $1.7 million to get on the November 2014 ballot an initiative they believe would cut the appeal process in half and save the state hundreds of millions of dollars a year....

But Ana Zamora, senior policy advocate at the American Civil Liberties Union of Northern California, said Peterson and his coalition face "a serious uphill battle.  The death penalty system is so broken beyond repair, there is no fixing the system that won't cost millions and millions and won't put at risk executing innocent people," she said.

In the meantime, San Quentin's death row more and more resembles a geriatric ward. Killer and serial rapist Darryl Kemp currently holds the distinction as the oldest person to be sentenced to death in advance of Naso's Nov. 8 sentencing. Kemp was 73 when he slept through his 2009 trial and sentencing for the rape and murder of a Lafayette mother three decades earlier.

It was the second death sentence for Kemp, who killed just four months after he was released from San Quentin in 1978 after a California Supreme Court ruling that made capital punishment unconstitutional and commuted all death sentences to life in prison with the possibility of parole. Today, at age 77, Kemp is in the preliminary stage of his appeal that will stretch for years.

I would like to believe that some kind of successful initiative campaign in California could somehow succeed in making the state's death penalty system less sad and perverse. But I suspect and fear that it is the deep ambivalence of California's populace, politicians and population of lawyers concerning a truly functional capital punishment system that has led to the current mess, and I doubt any set of formal legal changes are likely to be able to effectively transform the system's sad and perverse realities anytime soon.

October 6, 2013 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

"Should Paris Hilton Receive a Lighter Prison Sentence Because She's Rich? Evidence from a Survey Experiment"

The title of this post is the title of this intriguing article now available via SSRN authored by Josef Montag and Tomáš Sobek.  Here is the abstract:

Different people experience the same punishment in with differing intensity. Some legal scholars are proposing that improving scientific knowledge and progressing technologies, such as fMRI, need and should be incorporated in our penal systems.  This would facilitate calibrating the punishment not only to the crime but also to the offender’s persona, so that different people experience the same punishment for the same crime.  However, such a substantial change in the criminal law and policy requires legitimacy and popular approval.

We run a simple pilot experiment in order to ascertain whether such approval is in sight. We found that it may be in the case of pecuniary punishments.  With regard to incarceration policies, however, the possibility of popular acceptance of such changes seems remote.  This finding presents a potential challenge to the literature and may complicate the implementation of suggested reforms.  We aim to extend our study to investigate the factors behind this divergence and to check robustness of our experiments in Germany and the US.

October 6, 2013 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack