December 29, 2004
More Texas sentencing grits
Scott Henson at Grits for Breakfast (which I have now added to my blogroll) has been doing an especially strong job lately covering drug sentencing and the economics of sentencing in Texas.
For example, this morning Scott has this interesting post about Texas criminal justice officials pleading with the Texas Legislature to restore drug treatment funding for parolees, while claiming that cuts to treatment programs in 2003 led to greater recidivism. Scott's report is an interesting follow-up to this prior post about the efficacy of drug courts in Texas.
And yesterday, Scott thoughtfully reported here on a state bill "which would lower the penalty in Texas for possession of less than an ounce of pot to a class C misdemeanor, which is the equivalent of a fine-only traffic ticket." Both Scott's post and this news story highlight the state economic benefits that could flow from such a sentencing reform.Main
December 27, 2004
Noteworthy (and unconstitutional?) sex offender collateral consequence
In conjunction with a recent Ohio conference on "Collateral Sanctions in Theory and Practice," I have blogged a bit here on the array of collateral legal sanctions which flow from criminal convictions and their impact on offender reentry. (For the full story on this important issue, the folks at the Sentencing Project have the goods here.) But, thanks to Jonathan Soglin at Criminal Appeal, I see that California has come up with a noteworthy (and possibly unconstitutional) new restriction on sex offenders.
As thoroughly detailed in Jonathan's thoughtful post here, a couple weeks ago, California's Attorney General Bill Lockyer announced the unveiling of the Megan's Law sex offender locator site. This site, which is quite user-friendly and provides access to information on more than 63,000 persons required to register in California as sex offenders, is itself noteworthy. But particularly catching my attention is Jonathan's report that the California law which led to the creation of this resource (AB 488) also includes a provision making it a crime for registered sex offenders to enter the site. Here's the text of Cal. Penal Code § 290.46(i), which I am inclined to call a web-surfing prohibition:
(i) Any person who is required to register [as a sex offender] who enters the Web site is punishable by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail for a period not to exceed six months, or by both that fine and imprisonment.
Jonathan's post details some of the illogic and unfairness of this web-surfing prohibition, and I share his instinct that there may be constitutional problems as well as policy concerns with barring sex offenders from accessing a website which provides information about them.
On this interesting constitutional issue, I would especially like to hear from legal mavens like Profs Orin Kerr or Eugene Volokh at The Volokh Consiparacy or Prof. Larry Lessig. My first question is whether this law breaks new ground simply by making it a crime for certain people to access a publically-available website. (I am way outside my field of expertise here, since all I know about computer crimes is that you can get a pretty serious sentence for hacking.) I can imagine a number of ways to challenge such a law, but I suspect there is already some relevant cyber-jurisprudence to inform this issue.
At a broader policy level, both the sex offender website and this questionable California law reflects the pariah status of sex offenders in society today. I have spotlighted this issue and related sentencing matters in a few prior posts:Main
December 15, 2004
The continued rehabilitation of rehabilitation
This summer, I noted here that many states have recently taken a fresh look at rehabilitation in their criminal justice systems, primarily through elimination of some mandatory sentences and expanded treatment-centered alternatives to incarceration. And just last week, this post detailed that Texas policy-makers are also caught up in this tangible modern shift from penal retribution toward rehabilitation. (For more on the Texas story, consider this recent editorial from the Austin-American Statesman, as well as continued great Texas coverage by Scott Henson at Grits for Breakfast and from the site Effective Solutions for the Texas Criminal Justice System.)
The news from other states this week provides additional evidence of what might be viewed as rehabilitation's resurgence:
- This article from Arizona discusses the opening of new rehabilitation-focused prison units, which a state representative says "represent the first step in what we hope will be the increased focus on corrections and rehabilitation."
- This article from South Dakota discusses the rehabilitation-focused recommendations of a state task force, which called for state and local corrections officials to "prioritize services for criminals with a chance of turning their lives around."
As revealed by these articles and other materials (such as this 2002 VERA Institute report), budget concerns may be driving many of these developments, especially as we see traditional "tough-on-crime" Republicans serving as leading proponents of this shift toward rehabilitation. Nevertheless, whatever the reasons, it is useful to note that Blakely is not the only force prompting reconsideration of modern sentencing laws and policies. And for more on these topics, see:Main
December 14, 2004
Pondering the link between sentencing policy and crime rates
Sequential posts at CrimProf Blog this morning — titled "Use of Death Penalty Dropped in '04 for Fifth Year in a Row" and "Crime Rates Decline in Early '04, FBI says" — has me thinking about the links (or lack of links) between sentencing policy and crime rates.
There has long been, of course, a robust debate over whether and how the criminal law deters, but social scientists still struggle with more refined questions of whether and how marginal changes in sentence lengths and types may impact crime rates. I find fairly compelling the conclusions of Professors Paul Robinson and John Darley from this recent paper's abstract:
There seems little doubt that having a criminal justice system that punishes violators, as every organized society has, does have an effect in influencing conduct. Having a punishment system does deter. But the evidence increasingly accumulates that there is little added deterrent effect that can be derived from the manipulation of criminal law rules for the distribution of criminal liability and punishment within that system.
I flag these issues in part because 2004 ought to be a uniquely rich and interesting time period for examining the relationship between sentencing policies and crime rates. First, on the death penalty front, as noted here, 2004 has given us the first execution-free month in a decade and in the last few years we have seen nationwide declines the total number of death sentences and in the total number of executions. And yet it appears that murder rates continue to decline even though we apparently are making less frequent use of capital punishment.
Second, in the non-capital sentencing arena, though the Blakely earthquake has had a profound impact on sentencing law and policy, I am inclined to doubt Blakely is having any real impact on crime rates. Under rational deterrence theory, I think we should expect crimes rates in the second half of 2004 to rise in at least some jurisdictions: rational criminals doing cost-benefit analysis ought to realize that Blakely means it will be harder for those jurisdictions with constitutionally problematic guideline systems to impose long sentences. But, especially for the most serious crimes, I do not think there are really any "rational criminals doing cost-benefit analysis."
Because I do not have any economics or social science training, I can do no more than spotlight these issues and hope that other folks much smarter than me start giving these matters serious attention.Main
December 9, 2004
More on Rockefeller and other drug sentencing reform
The discussion and analysis of New York's reform of its harsh Rockefeller drug sentencing laws (noted here) continues to be nuanced. As detailed in articles and editorials from various New York papers, there is praise that something has been done, but criticisms of how limited the reforms are. This NPR report captures all the perspectives quite effectively.
This New York Times article particularly focuses on the disappointment felt by advocates for major drug sentencing reform, and it notes data that the new reforms may only affect the sentences of 446 prisoners from a total New York state population of 15,600 felons imprisoned on drug charges. This Newday opinion piece by Robert Gangi, executive director of the Correctional Association of New York, echoes similar themes; Gangi complains that the law still does not give judges sufficient discretion in drug sentencing cases.
Meanwhile, in a developing story that will surely get much less press, this AP article coming from South Dakota details that drug sentencing reform is a key component major changes proposed by the South Dakota Criminal Code Revision Commission. The proposed reforms apparently suggest eliminating a number of mandatory minimum sentences, while also increasing the available maximum sentence for many drug crimes:
One measure endorsed by the commission would remove mandatory minimum sentences for some drug crimes. For instance, judges no longer would be required to put people in prison for at least one year if caught dealing methamphetamine, cocaine or heroin.
The proposal also would increase several drug penalties, and it attempts to add uniformity in the link between penalties and the quantities of drugs involved in crimes.
Currently, people can be put in prison for up to 10 years if they are convicted of dealing any amount of hard drugs. A trace quantity is treated the same as 100 pounds. The legislation provides up to 15 years for selling one pound or less of cocaine, methamphetamine or heroin and 25 years for more than a pound.
Mandatory minimum sentences should be repealed, said Circuit Judge Tim Dallas Tucker of Madison. He said judges should have full discretion to determine if the facts of cases merit tough prison terms or leniency. "The individual judge is in the best position to decide ... what penalty should be imposed," Tucker said.
Changes also are recommended in marijuana laws. The current mandatory minimum sentence of 30 days in jail for felony marijuana dealing would be eliminated, but maximum sentences would be lengthened. The bill also would provide a lighter sentence for simple marijuana possession....
December 8, 2004
Another side to Texas justice
As detailed here and here, the stories of Texas justice is pretty grim when considering capital punishment. But thanks to Scott Henson at Grits for Breakfast, I see from this encouraging Austin American Statesman article that there is another side to Texas justice. Here are some snippets from an article which provides another example of how tight budgets and the high costs of mass incarceration are forcing states to reconsider "tough on crime" policies:
These days [Texas state Representative Ray] Allen is among a growing list of key state leaders and officials who are arguing for more programs to benefit convicts -- such as drug treatment, therapy and education in prisons as well as job placement, mentoring and re-entry initiatives once they get out. It is part of growing national trend, experts say, a stark contrast to the days of passing three-strikes laws, building more prisons and cutting programs in order to make the environment inside the lockups as punitive as possible.
"These wouldn't have been things I'd have thought about or said back in those days," said Allen, chairman of the House Corrections Committee, who earned the nickname "No Way, Ray" for his hard-line views on crime a decade ago. "Tight budgets have forced fiscal conservatives like myself to ask the same questions liberals were asking 10 years ago. We're all at the same reality now on criminal justice, I think: We simply cannot afford to keep everyone behind bars."
It costs Texans about $2 a day to keep a convict on probation, and $45 a day to keep him in prison, Allen said.
Signs of the slow shift in public policy are everywhere as lawmakers prepare to return to Austin in January.
Last spring, the Department of Criminal Justice created the Rehabilitation and Re-entry Programs Division to consolidate and better coordinate existing state and local initiatives to help the 60,000 inmates who leave Texas prisons each year. Top prison administrators are participating in a Travis County experiment establishing a community network to help ex-offenders. New programs are being offered for convicts who are leaving solitary confinement to return home.
Scott Henson provides more excerpts and commentary on this article and Texas justice here. And for just a few other recent examples of state officials expressing concerns about the high costs of mass incarceration, see:Main
November 29, 2004
A restorative ending to "Truth in Sentencing" coverage
The Milwaukee Journal Sentinel concludes its terrific series of sentencing articles, entitled "Locked In: The Price Of Truth In Sentencing," with this fascinating article discussing the restorative justice movement in Wisconsin. Another article today discusses the operation of drug courts in Wisconsin. Terrific and informative graphics about recidivism rates accompany both pieces and can be accessed here and here.
The prior articles in the Milwaukee Journal Sentinel series are discussed and linked here and here, and the already significant impact of the series is detailed here. In addition, the newspapers were buzzing all through the long weekend with first-rate sentencing coverage, as detailed in the following posts:
- Feeney speaks about Blakely
- Broad public support of juries and Blakely
- Media reports from the front lines
- In praise of the Fourth Estate
November 19, 2004
Resources on drug courts
With so much going on in the sentencing world, yesterday I buried here the link to Eighth Circuit Judge Donald Lay's powerful NY Times op-ed calling for greater use of drug court programs in the federal system. Here's one of many highlights from the piece:
Given the success of drug courts in the states, the federal government should study how to modify its sentencing to incorporate elements of the drug court model and to assess the effectiveness of community-based alternatives to imprisonment for nonviolent federal drug felons.
In conjunction with giving this insightful op-ed some more attention, I thought it might be useful here to marshal some of the terrific on-line resources concerning drug court programs. Though this is only a tiny slice of the materials to be found on the web, persons interesting in learning more about drug courts might consult:
- This (link-filled) list of "Drug Court Resources - Facts and Figures" from the National Criminal Justice Research Service
- This data-rich account of drug court facts from the National Drug Court Institute
- The home page for the OJP Drug Court Clearinghouse and Technical Assistance Project
- This drug courts page for the White House's Office of National Drug Control Policy
- Descriptions and accounts of drug courts in California and New York and Texas and Utah
UPDATE: With thanks to a wonderfully helpful reader, here is a link to an encouraging article about drug court successes in south Boston on a webpage that also has links to additional drug court articles.Main
November 18, 2004
Lots of sentencing in the papers
I am feeling a bit of sentencing overload, as I have a lot of commentary percolating about the US Sentencing Commission's hearing this week, and also about Judge Paul Cassell's work in his noteworthy sentencing rulings in Angelos and Visiniaz. In addition, as I will post soon, there is a lot of Blakely state news to discuss as well. Fortunately, the press helps cover and comment on some of these matters.
For starters, Gina Holland has helpful this account at law.com of the USSC hearings. This article correctly observes that the Justice Department essentially backed the "Bowman fix" (or "topless guidelines"), and I will have a lot more on this topic later today.
Meanwhile, the Angelos decision is the subject of continuing coverage in the Salt Lake Tribune, Knight Ridder Newspapers and the New York Times, and broader commentary on the opinion came be found at The Republican and the Cato Institute. Relatedly, Kemba Smith, a first-time drug offender subject to a long mandatory sentence who was ultimately pardoned by President Clinton, had this op-ed in yesterday's USA Today.
Meanwhile, back in the NY Times, Eighth Circuit Judge Donald Lay has this potent op-ed calling for the establishment of a federal drug courts program. And, on a different front, this article details that New York state is unlikely to legislatively fix its death penalty statute (which, as detailed here, was declared unconstitutional by New York's highest court on the same day Blakely was decided).Main
November 10, 2004
Lots of morning sentencing news
The papers are filled with two sets of sentencing-related stories. The Supreme Court's decision in Leocal v. Ashcroft — holding that DUI is not a "crime of violence" for which an immigrant can be subject to automatic deportation — is thoughtfully discussed in articles in the NY Times and LA Times. Both pieces suggest that the impact of this seemingly little decision could be very big; the NY Times article quotes Ira Kurzban, a prominent immigration lawyer in Miami, saying Leocal is "going to have an immediate and significant impact on a large number of cases."
The work of the Enron sentencing jury (detailed here) is also discussed widely, and this Houston Chronicle story covers the sentencing angle most effectively. In the article, one of the defense attorneys describes the Blakely-inspired sentencing phase of the trial as "exceedingly weird — pure guesswork." An AP story here provides broader coverage.Main
November 9, 2004
SCOTUS makes news by not deciding
During election week I spotlighted the important issue of felony disenfranchisement here and here, and many expected the issue to again be in the spotlight because the Supreme Court seemed poised to grant cert. on a case challenging, on the basis federal voting rights law, state felony disenfranchisement laws. But, as detailed in this post from the SCOTUS Blog, the High Court yesterday denied review without explanation in Locke v. Farrakhan (03-1597) and Muntaqim v. Coombe (04-175), cases from the Ninth and Second Circuits respectively, even though those cases establish a circuit split on federal voting rights law.
Though the Supreme Court may make much bigger news if it decides Booker and Fanfan today, the Court got the attention of serious court watchers through these cert. denials. Here are thoughtful articles about these developments from the NY Times, the AP, and law.com. The articles sensibly suggest that the Justices may be waiting for the legal issues to percolate more in the lower courts; a case challenging Florida's broad disenfranchisement law now being considered en banc by the Eleventh Circuit may get the Supreme Court's attention before long.Main
November 2, 2004
In honor of election day, I have done some posts on felony disenfranchisement here and here. For more on this topic, check out this Legal Affairs on-going Debate Club event with Marc Mauer of The Sentencing Project facing off against Roger Clegg on the question "Should ex-felons be allowed to vote?".
And, for all things election law, check out Election Law @ Moritz.Main
November 1, 2004
Felony disenfranchisement in the swing states
Following up this recent post on the important issue of felony disenfranchisement, this distressing Miami Herald article reminded me of the notable contrast in the treatment of the felons' right to vote in the swing states of Ohio and Florida.
As discussed more fully here, though the Ohio Constitution expressly authorizes the Ohio General Assembly "to exclude from the privilege of voting, or of being eligible to office, any person convicted of a felony," the Ohio General Assembly has chosen to prohibit only incarcerated felons from voting; in Ohio offenders on probation, paroled felons, and all ex-felons are permitted to vote, and the restoration of the franchise occurs automatically once a felon is paroled, pardoned, or granted judicial release. See Ohio Revised Code § 2961.01. By disenfranchising felons only while they are imprisoned, Ohio maintains one of the least restrictive felon disenfranchisement policies in the nation (although Vermont and Maine permit even incarcerated felons to vote as noted in this NY Times article today). See generally The Sentencing Project, Felony Disenfranchisement Laws in the United States (2004).
In sharp contrast, as this this Miami Herald article details, Florida has the most restrictive felony disenfranchisement laws in the nation and more than one-half million Floridians will not be able to vote because of these laws. And, as the Herald article explains, for ex-felons in Florida "the hope of having their civil rights restored — including the right to vote — has been frustrated by an overwhelmed and troubled clemency system." After reading the Herald article, I could not help but wonder whether at least some of our monies and energies spent trying to spread democracy around the world might be better spent trying to improve democracy at home.Main
October 31, 2004
A focus on the franchise
Only now a matter of hours away from election day seems like a good time to spotlight again the important sentencing law and policy issue of felon disenfranchisement. I continue to find it remarkable, and remarkably depressing, that an estimated 5,000,000 Americans currently lack the right to vote as a result of a felony conviction. Sadly, of this number, 1.4 million are African American men, and an estimated 1.7 million disenfranchised persons are ex-offenders who have fully completed their sentences.
The Sentencing Project has a collection of links to major felon disenfranchisement media stories here, as well as a wealth of additional materials here. Similarly, Right to Vote provides additional information as part of its campaign to end felony disenfranchisement. And, as I have noted before, my own OSU Moritz College of Law has this great site covering all sorts of election law issues, and here you can find some basic and broad coverage (and lots of links) on the topic of felon disenfranchisement.Main
October 16, 2004
Having faith in prisons
This past week, the US Supreme Court agreed to hear Cutter v. Wilknson, an interesting case from the Sixth Circuit addressing the constitutionality of the Religious Land Use and Institutionalized Persons Act (RLUIPA). In Cutter, prisoners sued the State of Ohio claiming they were denied access to religious literature and ceremonial items, and the Sixth Circuit rejected the claim by invalidating RLUIPA as a violation of the Establishment Clause. More background on the case can be found in this AP article.
The case is big news at The Ohio State University Moritz College of Law because it involves something of a law school civil war. As detailed here, Professor David Goldberger, Director of Clinical Programs at OSU, represents the prison inmates, while Ohio Solicitor Douglas Cole, who is on leave from the OSU faculty, will represent the State of Ohio in the Supreme Court.
Though many will be watching this case for its broader implications for church-state relations, I find the case interesting against the backdrop of recent developments in church-prison relations. As detailed in interesting articles here and here, Florida has been experimenting with "faith-based" prisons, which house inmates who have chosen to take part in rehabilitation programs run by volunteers from religious groups. Though the constitutionality and efficacy of "faith-based" prisons are not without dispute, less-than-stellar recidivism data from other prison programming makes me at least "agnostic" about experimenting with faith-based approaches to criminal rehabilitation. Though Cutter may not directly impact the faith-based prison movement, the law and policy of religious involvement in corrections will likely be an issue of on-going concern for quite some time.Main
September 29, 2004
Fascinating (non-Blakely!!) Ohio decision
Today Ohio continued its recent trend (noted here and here) of being a very interesting sentencing state when the Ohio Supreme Court handed down its decision in State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888 (Sept. 29, 2004) (available here). The case involves the sentencing of a defendant who pled guilty to "two counts of nonsupport ...., a fifth-degree felony." And the decision's opening paragraph, written by (Ohio State College of Law alum) Chief Justice Thomas Moyer, gives you the essentials:
Appellant, Sean Talty, challenges the imposition of a condition of community control that ordered him to make "all reasonable efforts to avoid conceiving another child" during his five-year probationary period. Because we hold that the antiprocreation order is overbroad, we vacate that portion of the trial court’s sentencing order.
Significantly, the majority of the Ohio Supreme Court in Talty, while recognizing that an antiprocreation order raises serious constitutional issues, decides the cases on state law/statutory grounds:
[W]e hold that the antiprocreation order is overbroad under Jones, 49 Ohio St.3d at 52, 550 N.E.2d 469, and vacate that portion of the trial court’s sentencing order. Given our disposition, we need not address Talty’s constitutional and remaining nonconstitutional challenges to the antiprocreation condition.
Notably, two of the seven Justices of the Ohio Supreme Court dissented. Justice Paul Pfeifer (also an Ohio State College of Law alum) has this to say:
Talty was ordered to "make all reasonable efforts" to avoid fathering another child. I consider this sanction appropriate, or reasonable, and proportionate, under the egregious circumstances of this case because the sanction relates directly to the crime of which Talty was convicted and is tailored to prevent even more instances of felony nonsupport. Given Talty's propensity to sire children, the antiprocreation condition must also be considered in the nature of punishment.Main
September 24, 2004
So much "collateral" work to do
I have on-line access at the University of Toledo College of Law just after the conclusion of this conference on "The Legal Barriers to Reentry in Ohio: Collateral Sanctions in Theory and Practice." The event was very well-run and I learned quite a lot about the national and Ohio stories of collateral sanctions. Though the folks at the Sentencing Project here provide, better than I can, a full background on these pressing issues, I came away from the conference with a renewed apprecition of the importance of, and challenges of, addressing and reforming the sometimes unknown and yet always consequential collateral legal sanctions which flow from criminal convictions.
For the conference, students on the Toledo Law Review prepared a chart which detailed that there was a total of all 359 (!) collateral penalties and disqualifications in the Ohio code alone. (And, of course, one main point of this conference was to highlight that, in contrast to the ABA's recommendation, most of these collateral sanctions do not appear in the criminal code.) Speakers at the conference, which included practitioners, policymakers and scholars, detailed the many ways in which these law and related social realities pose problems with America being, in President Bush's words, "the land of second chance." President Bush is to be praised for discussing these re-entry issues in his 2004 State of the Union address, and I wonder what has become of his proposal for "a four-year, $300 million prisoner re-entry initiative to expand job training and placement services, to provide transitional housing, and to help newly released prisoners get mentoring, including from faith-based groups."Main
September 23, 2004
The NY Times has this important article about the important issue of felon disenfranchisement laws. The article reports on two studies documenting that "those laws have a disproportionate effect on African-Americans because the percentage of black men with felony convictions is much larger than their share of the general population." The folks over at TalkLeft have terrific coverage of this article and all the issues it raises here, and they note that they have lately been posting a lot on this topic "because it's that important."
As I have note before here, the intersection of election law and policy and sentencing law and policy runs deep. And I am proud that my own OSU Moritz College of Law has this great site covering all sorts of election law issues, to which I have contributed here some broad coverage (and lots of great links) on the topic of felon disenfranchisement.Main
September 15, 2004
Last month, as discussed here, the Ninth Circuit in US v. Gementera, 2004 WL 1770101 (9th Cir. Aug. 9, 2004), upheld a sentence which, as a condition of supervised release, required convicted mail thief Gementera "to spend a day standing outside a post office wearing a signboard stating, 'I stole mail. This is my punishment.'" And, as detailed here, attorney Dan Markel has been a thoughtful critic of the Ninth Circuit's endorsement of shaming punishments since Gementera was handed down.
Dan has now completed a "working draft" of an "Amici Curiae Brief of Law Professors Submitted on Behalf of Appellant Shawn Gementera's Petition for Rehearing with Suggestion for Rehearing En Banc." Upon Dan's request, I am happy to post his draft brief (available to download below) to help Dan "collect signatories from criminal law/constitutional law professors who might be interested in the position." Dan has indicated he will have an updated version of the draft "by Sunday or so," and he encourages people interested in signing on (or in sharing comments) to email him directly at firstname.lastname@example.org.Main
September 10, 2004
Non-Blakely news from the First Circuit
The First Circuit still has not yet officially weighed in on Blakely's applicability to the federal guidelines. But, somewhat disconcertingly, the First Circuit in unpublished rulings (noted here and here) seemed to be trying hard to limit the opportunity for certain defendants to raise Blakely claims.
Yet news from the First Circuit in a non-Blakely case has restored my faith in that court's balanced concern for the rights of federal defendants. The court in Goldings v. Winn, No. 03-2633 (1st Cir. Sept. 3, 2004), strongly rejected the government's statutory arguments for a new policy limiting federal inmates' eligibility for placement in a community corrections center. Though legally intricate, Goldings is, according to folks involved directly in federal sentencing proceedings, a very potent and important ruling as the first appellate decision concerning, in the words of the court, a "change in policy [that] has generated a flood of lawsuits in the federal district courts." TalkLeft has some additional helpful explanation of the case here.Main
September 4, 2004
Tennessee's functionality meets Blakely's formalism
In this post I focused on Ohio sentencing law to highlight that Blakely's formal rule is so consequential (and confusing) because functionality, not formalism, is the hallmark of many facets of sentencing reform. Another interesting example of these dynamics emerged from Tennessee this past week in State v. Bellamy, 2004 WL 1936384 (Tenn. Crim. App. Aug. 31, 2004), where the court was addressing the state's functional presumption for "alterntive sentencing" in its sentencing laws.
The majority's opinion in Bellamy actually avoided discussing what Blakely might mean for the state presumption for an alterntive sentence, though it did helpfully explain this part of Tennessee sentencing law:
In regards to alternative sentencing, Tennessee Code Annotated section 40-35-102(5) provides as follows: "In recognition that state prison capacities and the funds to build and maintain them are limited, convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society, and evincing failure of past efforts at rehabilitation shall be given first priority regarding sentencing involving incarceration." A defendant who does not fall within this class of offenders "and who is an especially mitigated offender or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the contrary." Id. § 40-35-102(6).
Though the majority did not speak at all to how Blakely might impact the application of this provision by sentencing judges, Judge James Curtwood Witt concurring did so in this thoughtful way:
In my view, we must recognize the possibility that Blakely v. Washington, hampers a trial judge's authority to make the fact findings necessary to overcome the statutory presumption of favorable candidacy for alternative sentencing....Main
The defendant in the present case enjoyed the presumption of Code section 40-35-102(6), and it behooved the trial court, in imposing a sentence of confinement, to offset the presumption by finding any, or any combination, of the factual premises listed in section 40-35-103(1), such as, the need to protect society from an offender with a long history of criminal conduct or the ineffectiveness of prior non-confinement measures. See id. § 40-35- 103(1)(A)(C) (2003). That factual determination is in addition to the facts explicitly or implicitly established by the defendant's guilty plea....
[T]he High Court in Blakely did not speak in narrow terms that targeted merely the length of an accused's sentence; rather, it spoke in broad terms of the state's power to punish: "When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts 'which the law makes essential to the punishment,'... and the judge exceeds his proper authority." Id. (quoting 1 J. Bishop, Criminal Procedure, § 87, p. 55 (2d ed. 1872) (emphasis added). Thus, Blakely seems to have impact on Tennessee's scheme of presuming favorable candidacy for alternative sentencing because whether to confine or not confine is, in a general sense, an issue of punishment....
That said, we know that the Sixth Amendment's prohibition of increasing punishment beyond the "statutory maximum" based upon an additional judge-made finding does not apply to "the fact of a prior conviction." In the present case, the defendant's record of prior convictions is substantial. Although the pertinent factual premise for overcoming the presumption of favorable candidacy for alternative sentencing addresses prior "history of criminal conduct," a standard that does not necessarily limit consideration to conduct that resulted in convictions, the defendant does have an extensive record of prior convictions. For that reason, I believe that the trial judge could have properly based his confinement order on the record of prior convictions, and even if Blakely does apply to Code section 40-35-102(6)'s presumption, the court's use of sentencing factors other than prior criminal convictions would be harmless beyond a reasonable doubt.
August 31, 2004
More from the Seventh Circuit (and Judge Easterbrook)
Just out from the Seventh Circuit is US v. Messino, 02-1411 (7th Cir. Aug. 31, 2004), which provides more guidance on the holdings of Blakely and Booker. Though a quick analysis is hard because there are three defendants' claims involved, it does not appear that any new ground is broken by the majority on basic guideline issues. But the opinion includes this interesting discussion about Blakey's effect (or lack of ) on forfeiture:
We have previously held that Apprendi has no effect on criminal forfeiture proceedings because forfeiture provisions have no statutory maximum. United States v. Vera, 278 F.3d 672, 673 (7th Cir. 2002). Apprendi’s statutory maximum was supplied by the statute of conviction; Blakely's is external—the statutory maximum is found not in the criminal code, but instead, the sentencing guidelines. See Booker, 2004 WL 1535858, at *1. The criminal forfeiture provisions do not include a statutory maximum; they are open-ended in that all property representing proceeds of illegal activity is subject to forfeiture. Vera, 278 F.3d at 673; U.S.S.G. § 5E1.4; 21 U.S.C. § 853. Therefore, we conclude that Blakely, like Apprendi, does not apply to forfeiture proceedings.
In addition, Judge Easterbrook dissenting in part in Messino has a number of interesting and important points to make about plain error review and also burden of proof issues. Further commentary on Judge Easterbrook's important (and contestable) insights will have to await another post late tonight.Main
August 26, 2004
As I have noted in few older posts (example here), many states in recent years have taken steps to lessen sentences and expand treatment-centered alternatives to incarceration. And, as highlighted in this article from Governing Magazine, from Alabama to Maryland to Michigan to Texas, Republicans have been leading proponents of the modern shift from penal retribution toward rehabilitation.
After some important legislative action in California Tuesday, we will soon discover if Governor Arnold Schwarzenegger plans to jump on this bandwagon or to again play the Terminator. Here are some key parts of this Los Angeles Times article discussing these developments:
Signaling a sharp turn in attitudes about rehabilitating state prisoners, lawmakers Tuesday approved a sweeping new program to give inmates more schooling and job training to better prepare them for release. By the slimmest of margins, the state Assembly endorsed a bill aimed at reducing the huge proportion of ex-convicts who commit new crimes or parole violations and wind up back behind bars. If signed by the governor, the bill would trigger "an unprecedented shift" in the mission of state prisons, an Assembly analysis said....
A spokesman for Gov. Arnold Schwarzenegger said the governor had no position on the bill. At the Department of Corrections, however, officials were opposed for fiscal reasons. They said the legislation would create an onerous and costly new burden, requiring them to craft an individualized education and job-training plan for each inmate. "We are committed to providing a range of rehabilitation opportunities for inmates," said spokeswoman Margot Bach. "But this sort of individualized approach would be difficult, considering that we have 160,000 inmates." Bach said no official cost estimate was available but said the changes would "run in the tens or hundreds of millions of dollars." An Assembly analysis of the bill predicted costs of at least $400 million a year.
Notably, there is also an opportunity for President George Bush and the federal Republican leadership to join on-going efforts to rehabilitate rehabilitation. Earlier this year (in fact the day after Blakely was decided), the Literacy, Education, and Rehabilitation Act (H.R. 4752) was introduced in the House. As I understand it, LERA would award federal prisoners additional credit — up to 60 additional days per year beyond the 54 days per year already awarded — toward the service of a sentence for participating in designated educational, vocational, treatment, assigned work, or other developmental programs. The Federal Prison Policy Project, a nonprofit organization working on prison reform, has a useful summary of LERA here, as well as additional information about LERA on its main website. Main
August 22, 2004
Collateral Sanctions and Blakely
One reason Blakely is such a big deal is because its core principle could extend so very far. Though I suspect we will see continuous efforts to reign in Blakely, the decision's suggestion that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment" could have a profound impact on so many different facets of the criminal justice system.
For example, I have of late been thinking about whether Blakely might in some way impact so-called collateral sanctions — i.e., legal restrictions on voting, licensing, employment and government benefits which can flow from a criminal conviction in many jurisdictions. Part of what is prompting this thinking is my participation in a conference next month that will examine in detail the law and policy of collateral sanctions.
Margaret Colgate Love is one of the organizers of the event, and she sent me this formal announcement:
On September 24 the University of Toledo Law Review will host a symposium on "The Legal Barriers to Reentry in Ohio: Collateral Sanctions in Theory and Practice." The symposium will showcase the new ABA Standards on Collateral Sanctions and Discretionary Disqualification of Convicted Persons, whose black letter and commentary has recently been published (available here). The Standards propose a novel analytical approach to the collateral legal consequences of conviction, that they be considered an integral part of the sentencing process. Speakers will include practitioners, policymakers and scholars with broad expertise on collateral sanctions, both in Ohio and on the national level.
More details about this event can be accessed here, and below you can download a letter of invitation to the symposium (which is free to attend) and the program (which lists speakers and their topics).
August 17, 2004
For Shame ... I mean, Against Shame
As detailed here, a divided panel of the Ninth Circuit issued a very interesting opinion in US v. Gementera, upholding a sentence in which, as a condition of supervised release, the district judge required a convicted mail thief to spend a day standing outside a post office wearing a signboard stating, "I stole mail. This is my punishment." Now, commentator Dan Markel has produced this very interesting essay available today online at The New Republic entitled "Dirty Shame: The Ninth Circuit's dangerous endorsement of shaming punishments."
Dan makes a number of powerful arguments against shaming punishments and effectively assails the Ninth Circuit's decision in Gementera. But given the failed efficacy of our traditional approaches to punishment and our society's over-reliance on incarceration (background here), I am a bit more open than Dan to experimenting with various forms of alternative punishments. In other words, I think I am comfortable with a district judge using his or her discretion to impose a (relatively mild) shaming sanction in lieu of a lengthy imprisonment term.
Dan rightfully notes in his TNR piece that in Gementera "the shaming punishment was used as a supplement to incarceration, not as a substitute." However, the Ninth Circuit at the end of its statutory analysis was very careful to make clear it was simply approving the district courts' "sensible logic underlying its conclusion that a set of conditions, including the signboard provision, but also including reintegrative provisions, would better promote this defendant’s rehabilitation and amendment of life than would a lengthier term of incarceration." slip op. at 20 (emphasis added).
In other words, I read Gementera more as an embrace of judicial sentencing discretion and experimentation, rather than a broad endorsement of extreme shaming sanctions. But, for many of the reasons Dan astutely highlights, we should be wary of the Gementera decision being misused in potentially harmful ways.
I wonder what the wise folks over at Punishment Theory think about all this.
UPDATE: Dan Markel, whose longer writings on this topic and other important sentencing issues can be found here, was kind enough to send me some additional thoughts on what I consider to be a fascinating and important (non-Blakely!) topic. Thus, at some length, here is Dan's addendum:
Doug, like you, I'm not in favor of our infatuation with incarceration and I don't like the length of so many of our sentences for people who do belong in prison. I've written before about how to develop various alternatives to incarceration that are nonetheless compatible with retribution properly understood -- especially the use of guilt punishments and conditional sentences for nonviolent offenders (available here). My argument was about shaming being execrable, and while I'm not against some sentencing experimentalism, the district courts shouldn't get to make up anything they want and then stick a label on it, and get a blessing. There should be some effort made by judges to do their homework....
I have no trouble with how the court required the defendant to watch people make claims about their lost mail. But there's nothing reintegrative about that. Similarly, there was nothing reintegrative about the requirement that he go to express his remorse before a bunch of adolescents in high school. It would be one thing if this is something he volunteered to do; but he didn't challenge it on appeal because, as I understand it, he was put in the hobson's choice of having to spend 100 hours of "community service" being exhibited like a bearded lady in a circus, or do that. Just because he had the choice to do the talks at high schools or face a worse punishment doesn't make it sensible for us to impose that choice. What if the judge said wash my car, or cut off your left toe, and you can forgo further punishment? The choices have to be reasonable and reasonably tailored to the ends in mind.
In sum, I resist the conclusion that I am less open to alternatives to incarceration. I also resist the ascription of logic to a court that developed reintegrative provisions, or that this was for the benefit of the offender. Shaming hurts offenders, the studies show it, and it degrades us all.
Good points, which serve as yet another reminder of how much work there still is to be done on the theory and practices of punishment and sentencing without even thinking about Blakely.
August 10, 2004
Ain't that a shame
The Ninth Circuit rendered an interesting (non-Blakely!) sentencing decision on Monday: in US v. Gementera, Ninth Circuit Judge Diarmuid O'Scannlain (joined by Sixth Circuit Judge Eugene Siler Jr., sitting by designation) upheld a sentence by US District Judge Vaughn Walker which, as a condiction of supervised release, required convicted mail thief Gementera "to spend a day standing outside a post office wearing a signboard stating, 'I stole mail. This is my punishment.'"
The defendant argued that the "sandwich board condition violates the Sentencing Reform Act," as well as the First, Fifth, Eighth, and Fourteenth Amendments. In a wide-ranging opinion that broadly addresses theories of punishment and academic literature on shaming sanctions, Judge O'Scannlain rejected all of the defendant's complaints. Here's a key concluding paragraph:
[W]e hold that the condition imposed upon Gementera [is] reasonably related to the legitimate statutory objective of rehabilitation. In so holding, we are careful not to articulate a principle broader than that presented by the facts of this case. With care and specificity, the district court outlined a sensible logic underlying its conclusion that a set of conditions, including the signboard provision, but also including reintegrative provisions, would better promote this defendant’s rehabilitation and amendment of life than would a lengthier term of incarceration. By contrast, a per se rule that the mandatory public airing of one’s offense can never assist an offender to reassume his duty of obedience to the law would impose a narrow penological orthodoxy not contemplated by the Guidelines’ express approval of "any other condition [the district court] considers to be appropriate."
Ninth Circuit Judge Michael Hawkins filed a passionate dissent which asserted that "public humiliation or shaming has no proper place in our system of justice." The opinion cited this interesting article on the theory of shaming punishments, by Dan Markel.
The opinions in Gementera are thoughtful and provocative, and they cover both theortical, academic and caselaw highlights concerning shaming sanctions. I am already thinking about using the case in my sentencing class this fall, if only to break up the Blakely discussion. However, I cannot help but consider even this decision in the light of Blakely for two reasons:
(1) the concepts and doctrines of supervised release — which were created by the Sentencing Reform Act and are the focal point of debate in Gementera — are legal in doubt if the entire federal guidelines/SRA scheme is deemed unconstitutional after Blakely. (Recall, though, that the Ninth Circuit in Ameline decided that the unconstitutional portions of the guidelines were severable from the rest of the system);
(2) the opinions in Gementera reveal how thoughtful — and yet perhaps how indeterminate — appellate review of sentences can be when appeals courts are only required to explore "whether the sentencing judge imposed [a sentencing term] for permissible purposes, and ... whether [that term is] reasonably related to the purposes." Many urging a move to a true "guideline" system after Blakely contend that appellate review would still be viable and valuable within such a discretionary system. The opinions in Gementera could arguably support, and yet also arguably refute, claims about the value of appellate review within discretionary sentencing systems.Main
June 23, 2004
ABA Kenndy Commission report
After a nearly yearlong review of U.S. prison and correctional systems, the ABA's Justice Kennedy Commission has completed its work and today presented its final report to Justice Kennedy. Copies of the reports can be accessed here through the ABA website. The report --- which address four primary sets of issues: sentencing and incarceration issues, racial and ethnic disparities in criminal justice systems, prison conditions and prisoner reentry issues, and pardons and clemency processes--- will be considered by the House of Delegates in August. A succinct summary of the Commissions recommendations is available here. Here are excerpts from the ABA's press release to provide a flavor of the Commisson's findings and recommendations:
The commission noted that the United States imprisons more people than any other country in the world. With more than 2.1 million people behind bars, and some 650,000 set to be released this year, the commission urged jurisdictions to invest in programs that help inmates return to communities, provide alternatives to incarceration for offenders who would benefit from substance abuse and mental illness programs, and help eradicate the disproportionate impact "tough on crime" laws have on minorities. The commission also called on Congress to repeal mandatory minimum sentences.
The commission noted that about one-third of the more than 650,000 inmates who will be released this year can be expected to return to prison. Many of its recommendations are intended to help jurisdictions find ways to reduce the recidivism rate. One method, the commission noted, is for Congress and state legislatures to eliminate unnecessary legal barriers that make it difficult for some to become productive members of society. People with drug convictions-even minor possession charges, for example, are permanently ineligible for federal student loans, housing assistance or public assistance.Main
June 21, 2004
Sentencing in Alabama
For another interesting and important document concerning state sentencing systems, here is the recently released 2004 Annual Report of Alabama Sentencing Commission, which outlines the progress that has been made toward a reformed sentencing system for Alabama, the current state of Alabama's criminal justice system, and the recommendations of the Commission for further improvements.
As the report details, the Alabama Sentencing Commission is urging the Alabama Legislature to approve the Commission’s Sentencing Standards, which are a set of voluntary sentencing guidelines. In advocating for these Sentencing Standards, the Alabama Sentencing Commission tellingly states:
We believe everyone will recognize the value of the voluntary standards and realize that they are nothing like the federal guidelines or other state mandatory sentencing guidelines. Instead, they will preserve judicial discretion and promote sentencing uniformity. Moreover, these standards are the first step toward truth-in-sentencing and more informed sentences.Main
May 18, 2004
Positive Developments in State Sentencing
The State Sentencing and Corrections Program at the Vera Institute is doing a lot of terrific work studying and advancing reforms in state sentencing systems. Its latest publication, Changing Fortunes or Changing Attitudes?: Sentencing and Corrections Reforms in 2003 surveys the most recent changes to sentencing and corrections policies and identifies the range of reforms being implemented. Using case studies of changes in four states, it also explores the role of changing attitudes toward crime and the possibility that the shifts in policy may outlast the budget crises that precipitated them. The report can be accessed here.