Wednesday, December 29, 2004

More Texas sentencing grits

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.

December 29, 2004 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Monday, December 27, 2004

The politics of sentencing reform

Monday's New York Times had this powerful editorial by Brent Staples which, in addition to assailing the harms done by harsh mandatory sentencing laws, details some of the often overlooked political forces which impede reform.  Here's an excerpt:

The business of building and running the jailhouse has become a mammoth industry with powerful constituencies that favor the status quo. Prison-based money and political power have distorted the legislative landscape in ways that will be difficult to undo.

December 27, 2004 in Offender Characteristics, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

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:

December 27, 2004 in Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (30) | TrackBack

Thursday, December 23, 2004

Did Rowland sign a Blakely waiver?

As detailed in this AP article, and also as discussed here by White Collar Crime Prof Blog, former Connecticut Governor John Rowland pleaded guilty today to one count of conspiracy to steal honest service, a felony that carries a sentence of up to five years in prison.

The AP story details that Roward struck a plea deal with prosecutors, and reports that the federal sentencing "guidelines call for a sentence of 15 to 21 months in prison, the lawyers involved said."  That report has me wondering whether Rowland's plea deal includes some sort of Blakely waiver providing that he would be subject to this sentencing range no matter what the Supreme Court says about the fate of the federal guidelines in Booker and Fanfan.

The Rowland case will be interesting to keep an eye on because we should (I dearly hope) have a decision in Booker and Fanfan by the time of Rowland's March sentencing.  And, with a statutory sentencing maximum of five year for the count of conviction, but with Rowland likely able to claim that prison time is not need to serve the purposes of punishment, a post-Booker sentencing in this case could be really interesting.  And yet, it also seems possible that all the lawyers in this case have already thought through and planned for the various possible legal contingencies in the plea agreement.

If any readers know and can share more information or insights about the Rowland deal and its sentencing components, I would be grateful.

December 23, 2004 in Blakely Commentary and News, Booker and Fanfan Commentary, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Monday, December 20, 2004

Debating sentencing data

A few weeks ago, as noted here, the Washington Post ran this op-ed entitled "Mandatory Madness" in which law professor and NACDL president Barry Scheck calls for reform of harsh federal mandatory drug sentences.  In the middle of his wide-ranging and powerful critique of federal sentencing laws, Professor Scheck stated: "According to the Bureau of Prisons, more than half of the 180,000-plus people in federal institutions are there for drug law violations. Most are low-level, small-time and nonviolent offenders."

This weekend, the Washington Post ran this letter in response from Dan Bryant, who is identified as "assistant attorney general for legal policy at the Justice Department."  The letter asserts that Scheck's claim about low-level, federal drug offenders "is inaccurate," and then rattles off the following statistics:

Justice Department data show that 91 percent of all prisoners (state and federal) are either recidivists or violent offenders. Of those in state prisons, 76 percent are multiple offenders and 62 percent have a history of violence, while a full 66 percent of federal offenders have been convicted of multiple or violent crimes.

Furthermore, most nonviolent criminals are neither low-level nor small-time: 84 percent of these "nonviolent" offenders in state prison have prior criminal records, averaging more than nine arrests and four convictions apiece. In fact, a third of these nonviolent offenders could even be classified as "previously violent," as they have previous arrests for violent crimes. Federal nonviolent inmates have only marginally less criminal backgrounds than their state counterparts: 79 percent have prior records, averaging more than six arrests and two convictions. The notion that our prisons are filled with nonviolent, first-time offenders is simply not true.

This letter concludes: "We agree that there should be a healthy debate about sentencing, but we insist that this requires equipping Congress and the American people with the facts, not misleading rhetoric."  (The use of the "we" hints that this letter may represent a semi-official Justice Department response, rather than Dan Bryant's personal views.  Indeed, the letter echoes points and phrases used by Assistant AG Christopher Wray, in his official testimony to the US Sentencing Commission last month.)

Over the weekend, this letter and its data-based rebuttal of Professor Scheck's assertions have been the buzz of a listserve to which I subscribe.  In the dialogue, I noted that the letter makes heavy use of state statistics (or combined state/federal statistics) in response to an op-ed which was focused exclusively on federal sentencing.  Another person spotlighted that the letter makes a "rhetorical slip from 'low-level' to 'first-time' offenders."  Others noted that even some minor federal drug offenses are statistically categorized as "crimes of violence."  For a letter espousing the importance of facts over misleading rhetoric, the letter does a mighty good job stressing facts which could mislead.

Putting aside dickering over rhetorical use of facts, the data stressed in the Bryant letter actually prove Scheck's chief points.  The statement that "66 percent of federal offenders have been convicted of multiple or violent crimes" in turn means that 34% (more than 1/3) of all federal offenders are one-time, nonviolent offenders (and I suspect the percentage of low-level, nonviolent drug offenders may be even higher).  With a federal prison population of over 180,000, this suggests that in excess of 60,000 persons are serving time in a federal prison as a result of a one-time, nonviolent offense.   It seems our federal prisons are in fact filled with nonviolent, first-time offenders.  (Notably, the 60,000 persons now serving federal time as a result of a one-time, nonviolent offense is more than double the total federal prison population 25 years ago.)

I am glad to see from the Bryant letter that the Justice Department welcomes "healthy debate about sentencing," and I am also glad to see an emphasis on offenders "convicted of multiple or violent crimes."  The states have generally been effective at focusing long sentences on repeat and violent offenders, and federal law should follow their lead.  Indeed, based on the themes and claims in the Bryant letter, it would seem that DOJ would and should be against all mandatory sentencing except for serious recidivist or violent criminals.  That was the main thrust of Scheck's op-ed, and a careful analysis of the Bryant letter perhaps reveals more harmony than discord in views about sensible federal sentencing policy.

December 20, 2004 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (10) | TrackBack

Sunday, December 19, 2004

New California report on women and parole

This weekend I received a copy of "Breaking the Barriers for Women on Parole," a report recently produced by California's Little Hoover Commission, a governmental watchdog agency.  This sizeable report — which runs over 100 pages but has an effective executive summary (and can be downloaded here) — addresses not only parole issues, but also California's entire correctional structure while urging using female offenders as pioneers for system-wide reforms.   

This fact sheet from the Commission details the growth in California's female prison population over the last two decades, as well as interesting statistics about male and female offenders.  And this press release provides both background and context for the report.  Here are some highlights from the press release:

The State could save money, improve public safety and break the cycle of crime if it reformed the way it incarcerates women offenders and supervises them on parole, the Little Hoover Commission concluded Wednesday....

Most female felons were victims before they were offenders, most are single parents, and most were convicted of non-violent, drug or property crimes. The Commission urged the State to develop a new strategy for women offenders that relies less on large and remote prisons designed to incapacitate violent offenders and more on community correctional facilities that can better reconnect paroling women to jobs, housing, emotional supports and their families....

In this report, the Commission challenged the State to be smart on crime — not just tough on crime — and to start with women offenders.  "Fixing the system for women parolees also can be a good test of the correctional system’s desire and capacity to improve.  Lessons learned improving outcomes for women can inspire and guide the management of the critically necessary larger reforms," Commission Chairman Michael E. Alpert said.

December 19, 2004 in Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Thursday, December 16, 2004

Racial disparity and sentencing reform

The Atlanta Journal-Constitution today has this potent opinion column entitled "Fix sentencing guidelines: Move to end disparity along racial lines hasn't worked" authored by John Lewis and Robert Wilkins.  In addition to providing effective background on the Booker/Fanfan story, the piece gives particular attention to the important issue of racial disparity in federal sentencing:

[R]ather than reducing unfair racial disparities in federal sentencing, the evidence shows that the guidelines made the problem worse. Just before Thanksgiving, the Sentencing Commission released a report assessing whether the federal sentencing system has achieved the goals of the 1984 reforms. It confirmed what many observers have long known: In the past 20 years, the federal prison population has gotten significantly darker.

The report also shows that while the average federal prison sentence for black offenders was about five months longer than for whites in 1984, by 2001, the average sentence for blacks was almost 30 months longer.... The report should serve as a catalyst for major discussion about the racial impact of federal sentencing policy, though, to date, it has received scant attention. Of course, data showing vast racial disparities do not necessarily prove that the federal sentencing system discriminates.

But a critical goal of the federal sentencing guidelines was to eliminate unfair racial disparities in sentencing, and the Sentencing Commission has now concluded that "the sentencing guidelines and mandatory minimum statutes have a greater adverse impact on black offenders than did the factors taken into account by judges in the discretionary system in place immediately prior to guidelines implementation."

Racial disparity in incarceration has been a moral blight on America from the beginning days of our criminal justice system. That this disparity continues despite (and indeed because of) the guidelines highlights the need for serious thinking and action on the issue.

Regardless of whether the Supreme Court strikes them down in the Booker and FanFan cases, Congress should repeal the federal sentencing guidelines along with the mandatory minimum drug sentences. Then, Congress should allow the Sentencing Commission to draft new guidelines that treat the minority community fairly. The experiment with the federal sentencing guidelines has failed — it's time to go back to the drawing board.   

December 16, 2004 in Booker and Fanfan Commentary, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (7) | TrackBack

Wednesday, December 15, 2004

Intriguing report about sex offenders

A few months ago in this post I noted that the law and policy of sex offender sentencing is always interesting and often quite depressing.  A recent report from the Washington Sentencing Guidelines Commission reveals that it can also be surprising.

The report, entitled simply Sex Offender Sentencing, is available here, and the executive summary reports these notable and perhaps unexpected facts:

The full report is an intriguing and even heartening read, in part because presents an example of the sentencing reform process at its best: the Washington Sentencing Guidelines Commission conducted many public hearings and marshaled an array of data and information in the process of assessing the state's sex offender laws and policies.  Here's the report's own account of all the stakeholders who worked with the Commission on these issues:

During the seven public hearings, the Commission heard comments and concerns on almost every aspect of sex offenders and offenses. Persons who made written and oral presentations to the Commission included victims (teenagers and seniors), parents and family members of victims, professional victims’ advocates, victim treatment providers, legislators, judges, city and county officials, law enforcement officers, prosecutors, defense counsel, community custody/supervision officers, sex offender treatment evaluators and treatment providers, sex offender family members, proponents of a citizen’s initiative aimed at enhanced punishment, students, educators and members of the general public who attended the meeting to learn about the issues. In two locations, Seattle and Vancouver, the Commission staff spoke with convicted sex offenders and their supporters.

December 15, 2004 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, State Sentencing Guidelines | Permalink | Comments (302) | TrackBack

Wednesday, December 08, 2004

Rockefeller reform a (compromise) reality

Yesterday I pondered whether we might soon see movement on mandatories, and the news from New York came quick.  As this New York Times article explains:

After years of false starts, state lawmakers voted Tuesday evening to reduce the steep mandatory prison sentences given to people convicted of drug crimes in New York State, sanctions considered among the most severe in the nation.

The push to soften the so-called Rockefeller drug laws came after a nearly decade-long campaign to ease the drug penalties instituted in the 1970's that put some low-level first-time drug offenders behind bars for sentences ranging from 15 years to life.

Under the changes passed Tuesday, which Gov. George E. Pataki said he would sign, the sentence for those same offenders would be reduced to 8 to 20 years in prison. The law will allow more than 400 inmates serving lengthy prison terms on those top counts to apply to judges to get out of jail early.

Quotes throughout the Times article, as well as additional effective articles from other New York newspapers here and here and here and here, highlight that the changes are the product of a legislative compromise that has disappointed many who were pushing for broader drug sentencing reform.  As noted in the lead of this Albany Times Union article:

Depending on who you talked to Tuesday, state lawmakers either broke a long-standing logjam and took real steps to reform the Rockefeller Drug Laws, or merely tinkered with the harsh laws and frittered away any chance of future negotiations.

TalkLeft here provides more highlights, and more concerns, about the Rockefeller reform outcome in Albany.  Ever the optimist, I am inclined to celebrate an important (and overdue) step forward, and hope it is only the first step toward continued rethinking of drug sentencing policies and practices both in New York and throughout the nation.

December 8, 2004 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (30) | TrackBack

Tuesday, December 07, 2004

More on Pablon-Cruz

With thank to a favorite reader for the link, the New York Times today has this article discussing the Second Circuit's remarkable recent ruling in US v. Pabon-Cruz, No. 03-1457 (2d Cir. Dec. 3, 2004).  As noted in my post here and in Howard Bashman's coverage here, the Second Circuit in Pablon-Cruz determined that a (now amended) federal sentencing statute provides that a sentencing judge has authority in a child pornography case to impose a fine or a 10-year (or longer) imprisonment term, but nothing in between.

The full opinion in Pablon-Cruz merits attention not only for its thoughtful explanation of this ruling, but also because it reviews the efforts of US District Judge Gerard Lynch (also a likely nominee for my imaginary Sentencing Judges Hall of Fame) to inform juror about the sentencing consequences of a conviction.  (The Second Circuit last year disallowed Judge Lynch's proposed jury instruction in a mandamus action brought by the government, and it reaffirms that decision in this latest Pablon-Cruz ruling.) The NY Times article merits a full read because it provides more of the factual and social stories surrounding this bizarre and sad case.

December 7, 2004 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (10) | TrackBack

Compelling reading from the drug war front

In July, US District Judge Gregory Presnell made a strong case for inclusion in my imaginary Sentencing Judges Hall of Fame through his opinion in US v. King, where Judge Presnell not only found the federal sentencing guidelines unconstitutional in light of Blakely, but also identified the illogic in the government's tortured severability claims (background here).  Judge Presnell followed up King with other noteworthy rulings in recent months (accessible here and here) that spotlight injustices in the current federal sentencing system.  And, last week, Judge Presnell in US v. Williams, No. 6:04-cr-69-Orl-31KRS (M.D. Fla. Nov. 30, 2004), once again detailed how ugly the "war on drugs" can appear on the judicial front lines.

Williams, a to-the-point, four-page opinion, can be downloaded below and it is a must-read for anyone concerned about mandatory drug sentencing or cooperation credit or the human realities of our criminal justice system.  Here are some highlights:

Torrey Williams was caught in a sting operation selling 12.3 grams of crack cocaine to an undercover law enforcement officer for a total of $500.00.... [T]he government seeks to impose a sentence of 188-235 months [for this] 24-year-old unemployed African-American male [who] has been convicted of two prior drug-related felonies both involving relatively minor amounts of crack cocaine.

Defendant has metastic medullary thyroid cancer [and his] prognosis is uncertain; however his doctor does note that this form of cancer portends a poorer prognosis than some of the other forms of thyroid cancer. [FOOTNOTE: recent publicity concerning our Chief Justice’s thyroid cancer [suggests] the three-year survival rate for this type of cancer is 20%.] Indeed, the cancer appears to have metastasized into his lungs [and] Defendant will require adjunctive therapy (radiation and chemotherapy) as well as possible additional surgery in the future.

As a result of this medical condition, Defendant moves for a downward departure... [which the law suggests] is appropriate in only "extraordinary circumstances." ... Therefore, the question becomes, is this an "extraordinary circumstance"?  Many people sentenced by this Court are incarcerated with physical or medical disabilities, and the Court has always been assured that the Bureau of Prisons will provide all reasonable and necessary medical care to its inmates. Indeed, it may well be that Defendant would receive better health care as a ward of the federal government than he would as a poor, uneducated and unemployed citizen of this state.

A guideline sentence in this case starkly illustrates the problem of attempting to fit the human experience into a discrete mathematical matrix.  It just can’t be done, and this Court cannot in good conscience do it, because it offends the Court’s concept of justice.... [Departing on th basis of extraordinary physical impairment and overstated criminal history] Defendant will, therefore, be sentenced to a term of 70 months incarceration....

In the meantime, the "war on drugs" goes on. Others will undoubtedly replace Torrey Williams in the chain of drug commerce, and the Courts will continue to incarcerate them for long periods at alarming rates.

Download presnell_williams_sentencing_memo.pdf

December 7, 2004 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (265) | TrackBack

Compelling capital cases nationwide

The media provided lots of coverage of the Miller-El case argued before the Supreme Court yesterday, and Linda Greenhouse's NY Times account here includes all the highlights.  The Texas case now in front of the Supreme Court for the second time (details here and here) is about jury selection more than sentencing, though it is a stark reminder of how, as we have seen throughout American history, racial dynamics infect the administration of capital punishment.  Reading tea leaves, it was interesting that, according to the Times account, Justice Breyer said jokingly during the Miller-El argument that "It might be in my interest if people followed dissents more often."  Perhaps this reveals Justice Breyer has Blakely on the brain.

In other interesting capital news, it now appears virtually certain that next month Connecticut will have its first execution in the modern death penalty era.  As detailed in this news story, Connecticut Governor M. Jodi Rell stated yesterday that she will not issue a reprieve for serial killer Michael Ross, who is scheduled to be executed in January.  In her public statement, which you can read here, Governor Rell also said she would veto any legislation that repeals the state's death penalty.

Replaying a common pattern for the first execution in a state, Michael Ross is a "volunteer" who is seeking to speed his path to Connecticut's death chamber.  (The very first person executed after Furman was volunteer Gary Gilmore; here in Ohio, the first person executed was volunteer Wilford Berry; the federal death penalty got back in business with volunteer Timothy McVeigh.)  In this case, defendant Ross even wrote a long letter to Governor Rell asking her not to use her reprieve power, which you can read about in this AP story.

And, on the other coast, this news story reports on the California Supreme Court case which will try to resolve which criminal defendants qualify as "mentally retarded" and thus constitutionally ineligible for execution.  In 2002, the Supreme Court in Atkins v. Virginia declared that executing persons with mental retardation was now unconstitutional, but the Justices punted to the states the tough medical/legal question of who qualifies as "mentally retarded."

UPDATE: Thanks to Howard Bashman at How Appealing for the links here, you can read more this morning from the The Hartford Courant about Connecticut Governor Rell's decision not to issue a reprieve for serial killer Michael Ross.

December 7, 2004 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (35) | TrackBack

Monday, December 06, 2004

Seventh Circuit remedies ugly case of prosecutorial (in)discretion

The recently released US Sentencing Commission 15-year report (highlights here) and the recent Wall Street Journal article on inconsistent application of cooperation credit (details here) both suggest that variations in the exercise of prosecutorial discretion may produce disparities in federal sentencing outcomes.  And a decision last week from the Seventh Circuit in US v. Wilson, No. 03-2170 (7th Cir. Dec. 2, 2004), in which the court found prosecutors acted in bad faith in denying a sentence reduction to a defendant for "substantial assistance," reveals how this discretion can be badly abused.  (Hat tip to CrimProf Blog for noting the case here.) 

In recent posts, I noted a Kafkaesque quality to recent federal and state sentencing cases; but the Wilson case was precipitated by facts which might make even Franz Kafka blush.  Defendant Wilson in a previous case had been granted a two-year reduction in his sentence, but

on account of a bureaucratic bungle, the reduction was never communicated to the individuals who could effectuate it (presumably officials at the Bureau of Prisons). Thus, Wilson neither learned about nor received the benefit of the two-year reduction the district court had granted him.

In the current case, Wilson's defense attorney sought to get him the benefit of the lost two years, in addition to a reduction Wilson was promised for his substantial assistance with authorities.  But, after an elaborate series of events, prosecutors refused to make a necessary motion for the promised reduction.  However, the Seventh Circuit in Wilson ultimately held that the USA's Office in Southern Illinois acted in "bad faith" and "abused" its discretion by conditioning the reduction on concessions that had absolutely nothing to do with "substantial assistance".

December 6, 2004 in Federal Sentencing Guidelines, Offender Characteristics, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, December 05, 2004

A Kafkaesque federal sentencing story

I have now had a chance to review the Second Circuit's decision in US v. Pabon-Cruz, No. 03-1457 (2d Cir. Dec. 3, 2004) (mentioned here), and the only fitting adjective for the case is Kafkaesque. 

Though the history of the case, not to mention the circuit court's interpretation of a federal sentencing statute, has too many twists and turns to recount here, Pabon-Cruz highlights substantively and procedurally how bewildering federal sentencing can be.  Howard Bashman provided the essentials of the case here, and the bizarre upshot now is that US District Judge Gerard Lynch — in a case which he described as "without question the worst case of [his] judicial career" due in part to the inconsistencies in federal sentencing of child pornography offenses — has discretion to impose a fine or a 10-year imprisonment term but nothing in between.

December 5, 2004 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Monday, November 29, 2004

Great WSJ article on cooperation disparity

I have been praising the press a lot lately (examples here and here) for its coverage of various sentencing law and policy issues, and today the Wall Street Journal vindicates my extra praise for its continuing coverage of federal sentencing realities.  A front-page WSJ article by Laurie Cohen, entitled "Split Decisions: Federal Cases Show Big Gap in Reward For Cooperation," provides the most complete and effective media examination of federal cooperation practices (and the disparities they create) that I have seen.  (Earlier powerful WSJ articles can be found here and here and here.)

Wsj_5k This article (available to subscribers) focuses particularly on the authority of federal prosecutors to reward, through "substantial assistance" letters to the judge, significant sentencing reductions for cooperation (that is, for being a snitch, as PBS has put it).  And the WSJ article provides both anecdotal and empirical evidence to support a wide-spread concern, articulated by one defense attorney in the article, that sentencing reductions for cooperating often means that the "big fish gets off and the little fish gets eaten."  As the article explains:

[T]he procedure for deciding who gets these valuable letters is often haphazard and tilted toward higher-ranking veteran criminals who can tell prosecutors what they want to know. U.S. attorneys in different parts of the country vary widely in how they reward cooperation, even though they're all part of the same federal justice system. Studies suggest blacks and Hispanics are less likely to get credit than whites, perhaps partly because they are more mistrustful of authorities. And once prosecutors decide that cooperation is insufficient for a letter, their word is usually final -- defendants can't appeal the decision to a judge....

Disparities in one aspect of cooperation letters have attracted the attention of the Department of Justice. Robert McCampbell, the U.S. attorney in Oklahoma City and head of a sentencing subcommittee advising the attorney general, says the department is worried that while some prosecutors have strictly followed the requirements for giving the letters, others seem to hand them out more liberally. Following a September 2003 memo by Attorney General John Ashcroft to all federal prosecutors, Mr. McCampbell says the department's message is now: "Only use substantial assistance departures where cooperation is truly substantial."

And last week, a report by the U.S. Sentencing Commission reviewing the 15-year record of the guidelines warned that "unwarranted disparity" in cooperation letters may play a role in increasing sentence variation.

November 29, 2004 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, November 23, 2004

Highlights from the Executive Summary of the USSC's 15-year report

I have now had a chance to do a very quick read of the Table of Contents and the Executive Summary the the US Sentencing Commission's 15-year report (basics here).  I am already quite impressed with what I see.

Though it will take a lot of time (and a lot of help from others) for me to consume this massive work — which has, to its great credit, lots and lots of data — I thought it valuable to highlight some of the highlights from the report's executive summary.  With headings that I have added, here's a list of 10 findings/quotes taken directly from the text of the 15-year report's Executive Summary (sorry for the length, but I wanted to try to capture all the important context):

November 23, 2004 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, November 21, 2004

The law and policy of criminal history

As Blakely followers know, Blakely did not disrupt Almendarez-Torres' "prior conviction" exception to the Apprendi jury trial rule.  And, because Booker and Fanfan do not directly address the exception, it seems likely, as previously discussed here and here, that the validity, scope and application of the "prior conviction" exception to the Apprendi/Blakely rule will remain uncertain even after a ruling in Booker and Fanfan

In my forthcoming FSR article, "Conceptualizing Blakely," I suggest a rationale for the "prior conviction" exception (which resonates somewhat with the Court's discussion in Almendarez-Torres, but perhaps not fully with its discussion in Apprendi). Of course, establishing a rationale for the exception is key for determining its scope and application — e.g., as previously detailed in this post, there is a fascinating legal debate over whether juvenile adjudications come within the "prior conviction" exception, which turns on the exception's perceived rationale.  (On this topic, I was recently sent an interesting Wisconsin brief, which can be downloaded here, that argues in detail why a juvenile adjudication should not come with the "prior conviction" exception: Download wisconsin_brief_on_use_of_juvenile_convictions.doc.)

Of course, beyond the Blakely issues, there are a host of other legal and policy issues that surround the use of criminal history at sentencing.  The pitched political battle this fall over amending California's Three Strikes Law (partially detailed here and here and here) is just one of many hot topics relating to the import and impact of criminal history at sentencing. 

And, as we gear up for the full USSC 15-year report coming soon, we should not overlook the important reports the Commission has already released this year on criminal history, available here and here.  Helpfully, some of the highlights from these reports, as well as additional insights, are usefully developed in a recent Fordham Law Review article by Commissioner Michael Edmund O'Neill and USSC researchers, Past as Prologue: Reconciling Recidivism and Culpability, 73 Fordham L. Rev. 245 (Oct. 2004). In this article, the authors conclude that

the criminal history categories used in the Federal Sentencing Guidelines have served as a reasonably reliable indicator in determining both culpability and the likelihood the offender will commit future criminal acts ... [but] the criminal history categories need to be refined to improve recidivism measures.

My FSR co-editor Nora Demleitner is currently developing an issue of Federal Sentencing Reporter focused on these criminal history matters.  No matter what the Supreme Court does in Booker and Fanfan, these issues of criminal history law and policy will surely remain of great importance.

November 21, 2004 in Blakely Commentary and News, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Saturday, November 20, 2004

Brief (and compelling) weekend reading about mandatories

In this post, I criticized Utah US District Judge Paul Cassell's decision in the Angelos mandatory minimum case for its summary Eighth Amendment analysis.  In addition, I wonder if Judge Cassell considered whether Angelos arguably had a claim based in Due Process and/or the Sixth Amendment stemming from prosecutors' apparent (and successful) efforts to penalize Weldon Angelos for initially seeking to exercise his constitutional right to a trial. 

Consider this description from Judge Cassell's Angelos opinion of exactly why Angelos ended up with a mandated 55-year sentence:

[T]he government told Mr. Angelos, through counsel, that if he pled guilty to the drug distribution count and the § 924(c) count, the government would agree to drop all other charges, not supersede the indictment with additional counts, and recommend a prison sentence of 15 years. The government made clear to Mr. Angelos that if he rejected the offer, the government would obtain a new superseding indictment adding several § 924(c) counts that could lead to Mr. Angelos facing more than 100 years of mandatory prison time. In short, Mr. Angelos faced the choice of accepting 15 years in prison or insisting on a trial by jury at the risk of a life sentence. [He] rejected the offer and decided to go to trial. The government then obtained two superseding indictments, eventually charging twenty total counts, including five § 924(c) counts which alone carried a potential minimum mandatory sentence of 105 years....

Perhaps recognizing the gravity of the situation, Mr. Angelos tried to reopen plea negotiations, offering to plea to one count of drug distribution, one § 924(c) count, and one money laundering count. The government refused his offer, and the case proceeded to trial.

Though perhaps the issue was not fully briefed, I think these facts make out at least a colorable claim that prosecutors violated Due Process and/or the Sixth Amendment by penalizing Weldon Angelos for initially seeking to exercise his constitutional right to a trial.  I know these claims are at least arguable because I was recently sent a compelling brief from a Pennsylvania case in which exactly these claims are argued.

The case is US v. Hernandez, and the brief you can download below provides another moving example of the power and discretion that federal prosecutors possess due to long, mandatory sentencing provisions.

Download penn_brief_assailing_mm.doc

November 20, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, November 19, 2004

Judge Cassell's remarkable, and remarkably disappointing, decision in Angelos

I have finally had a chance to give Utah US District Judge Paul Cassell's decision in the Angelos mandatory minimum case a careful read (basics here). I am glad to see that the decision has the editorial pages humming, with strong pieces in the LA Times, the Daytona-Beach News Journal, and the Salt Lake Tribune (and I will be doing this NPR radio show on the topic tonight). 

I was particularly pleased to see Judge Cassell's home paper, the Salt Lake Tribune, assail Judge Cassell for having "passed the buck."  For though the Angelos opinion is remarkable in many respects, the opinion is also remarkably disappointing in its fairly summary treatment of Weldon Angelos' strongest claim — namely that his sentence constituted cruel and unusual punishment under the Eighth Amendment. 

Part of what makes the Angelos opinion remarkable was that Judge Cassell spends 40 pages considering whether the 55-year gun enhancement was "irrational" (which seems like a stretch in light of deterrence arguments), but then he spends less than 10 pages considering whether this enhancement is "cruel and unusual" (which seems far more plausible in light of the modern proportionality/retributivist understanding of that provision).  Moreover, after explaining for 5 pages that "the three Harmelin factors ... lead to the conclusion that Mr. Angelos' sentence violates the Eighth Amendment," Judge Cassell in two pages summarily concludes that, because in Hutto v. Davis, 454 U.S. 370 (1982), the Supreme Court upheld 40-year sentence in a marijuana case, Mr. Angelos' "Eighth Amendment challenge must be rejected."

With all due respect to Judge Cassell, the truncated analysis here suggests the Judge simply got tired.  Even beyond the fact that Hutto is arguably not good law after Solem and Ewing (a point which Judge Cassell notes), and even beyond the fact that the scope of the Eighth Amendment "is not static [and] must draw its meaning from the evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, 356 U.S. at 101, the holding and facts in Hutto are readily distinguished.  As a matter of context, the Hutto ruling (as well as Harmelin and Ewing) is influenced by principles of federalism not implicated in the review of a federal criminal sentence.  And, even more tangibly, the defendant Davis in the Hutto case "previously had been convicted of selling LSD, and the two offenses for which Davis had just been found guilty were committed while on bail pending appeal from the previous conviction for selling LSD."  Thus, in Hutto the court considered a true repeat offender, which readily distinguishes that case from the case before Judge Cassell.

November 19, 2004 in Clemency and Pardons, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Tuesday, November 09, 2004

Friends in high places

With many thanks to Michael Ausbrook of INCourts for the head's up, I was extremely pleased to discover that I apparently have readers and fans in the Indiana Prosecuting Attorneys Council (IPAC).  Yesterday, two days before the Indiana Supreme Court hears its Blakely cases of Heath and Smylie (background here and here), IPAC filed an amicus brief in which my forthcoming article "Conceptualizing Blakely" and its discussion of an offense/offender distinction play a prominent role.  (Over at INCourts you can get more background here and here on the Indiana brief and the Heath and Smylie arguments.)

The full IPAC brief, which you can access here, is an interesting read not only for the offense/offender discussion, but also for its views on consecutive sentencing after Blakely and its assertion that Indiana "courts need not await action by the legislature to establish remedial procedures to insure compliance with Blakely."  But, of course, ever the egoist and egotist, my favorite parts of the brief are those where my "Conceptualizing Blakely" article (available at this post) gets heavy play.  And I especially liked the brief's conclusion, which states: "If Blakely is held to govern Indiana sentencing statutes making a distinction between offense facts and offender characteristics is essential to conducting a rational sentencing system."

November 9, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in the States, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Monday, November 08, 2004

No so fast?

Responding to my speculation here that Booker and Fanfan are coming from SCOTUS tomorrow, Marty Lederman in comments here says he "would be very surprised if the Court decided Booker and Fanfan tomorrow. If I had to predict, I'd say December 7th, 8th or 13th." He and the always knowledgeable Howard Bashman reasonably suggest that the complexity of the severability issue may prevent the Court from such quick action. As Howard explained to me in an e-mail:

Those who are predicting that opinions in the Federal Sentencing Guidelines (FSG) cases won't be issued tomorrow are probably basing their prediction on the complexity of the FSG cases and the likelihood that they will draw one or more dissenting opinions. The first opinion(s) of the Term tend to be quick, short, unanimous rulings.

And Marty followed-up: "if the Court perceives that there really is a crisis that needs immediate resolution, it could well decide the cases this week, or next Monday, or November 30th/December 1st."  So, even if we do not get Booker and Fanfan tomorrow, we will at least have some more tea leaves to read about what the Court is thinking.

And speaking of reading tea leaves, I wonder if Appendi/Blakely/Booker issues came up in today's Supreme Court oral argument in Shepard v. US.  The SCOTUS Blog has this helpful summary of the case, and I have highlighted previously here that the case might provide the Court a chance to speak to the continued validity and scope of the Appendi/Blakely "prior conviction" exception.

November 8, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Offender Characteristics | Permalink | Comments (0) | TrackBack

Sunday, November 07, 2004

Imagining a "Sentencing Judges Hall of Fame"

In a (personal favorite) post here last month, I cast current Supreme Court Justices as legendary baseball players while speculating about who would write the opinion for the Court in Booker and Fanfan.  Today, I found myself imagining a "Sentencing Judges Hall of Fame" — an institution like the Baseball Hall of Fame which would seek to foster an appreciation of the historical development of sentencing and its impact on our justice system.  (Compare the mission statement of the Baseball Hall of Fame.)

The first inductee of the Sentencing Judges Hall of Fame would be easy: Judge Marvin Frankel, whose text Criminal Sentences: Law Without Order helped launch modern sentencing reforms.  (Compare the "First Five" in the Baseball Hall of Fame.)  But tough questions follow: should there be separate capital and non-capital wings, state and federal wings, trial and appellate wings?  Would Supreme Court Justices and judges who serve on sentencing commissions have an unfair advantage because of the visibility of their sentencing work?  Would pre-guidelines judges be unfairly disadvantaged for sentencing during the "dead law" era?

You should blame these perhaps silly ruminations on US District Judge Nancy Gertner, whose latest sentencing effort made me want to bestow some kind of award.  This weekend I had a chance to read Judge Gertner's amazing opinion in US v. Green, 2004 WL 2475483 (D. Mass. Nov. 03, 2004) (also available here), in which she astutely explains why in a federal capital case she "will impanel two different juries, if necessary, for each death-eligible defendant, one jury to determine guilt or innocence and the other to reject or to impose the death penalty." (A Boston Globe account of the decision is available here.) 

Of course, regular readers know we can thank Judge Gertner for trenchant Blakely analysis in US v. Mueffelman, 327 F. Supp. 2d. 79 (D. Mass. 2004). Moreover, in the last month alone, Judge Gertner has added to her corpus of compelling sentencing opinions with US v. Woodley, 2004 U.S. Dist. LEXIS 21904 (D. Mass. Oct. 29, 2004) and US v. Jurado-Lopez, 2004 WL 2251832 (D. Mass. Oct. 06, 2004). It seems that Judge Gertner hits a home run every time she steps to the sentencing plate.  (However, Judge Gertner's sentencing dingers are not quite as timely as Judge Paul Cassell's recent efforts, and no one can match Judge Jack Weinstein's tape-measure sentencing opinions).

I encourage readers to use the comments to nominate inductees for the Sentencing Judges Hall of Fame.  It helps pass the time as we await a decision in Booker and Fanfan, a decision which may change sentencing history and will surely add to modern sentencing lore.

November 7, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (8) | TrackBack

Saturday, November 06, 2004

Continued Prop. 66 post-game analysis

A number of California newspapers continue to run interesting stories as follow-up to the defeat of Proposition 66, the initiative to amend the state's Three Strikes Law that was defeated in a close vote in on Tuesday.  For example, here is an interesting article from the Oakland Tribune discussing the impact of Prop. 66's defeat on two-strike parolees. In contrast, this Ventura County Star article and San Mateo Daily Journal piece details that prosecutors and other law enforcement officials were gratified by Prop. 66's defeat.

Meanwhile, this Sacramento Bee editorial, entitled "Scaremongering wins," analyzes the political forces leading to Prop. 66's defeat and urges continued efforts to amend California's Three Strikes Law:

California's prison-industrial complex is strangling the state's future. It's soaking up dollars that could go to education, housing, transportation and other basic infrastructure that enhances the state's prosperity and quality of life. That system locks away for too long people who are not dangerous and makes them more dangerous. Yet it fails to lock away for long enough people who truly are dangerous.

Proposition 66 was defeated, but that shouldn't end efforts to reform California's irrational sentencing system. Reformers should bring this one to voters again — and be better prepared for last-minute scare tactics.

November 6, 2004 in Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, November 04, 2004

The next chapter for California's Three Strikes?

Additional articles about the defeat of Proposition 66 in the Victorville Daily Press and in the San Francisco Chronicle provide additional details about the initiative's defeat and the possibility of future efforts to limit the reach of the nation's toughest Three Strikes Law. The SF Chronicle story explains the precise role Governor Arnold Schwarzenegger played in Prop. 66's defeat:

A last-minute advertising blitz featuring Gov. Arnold Schwarzenegger successfully shifted debate on the proposition from images of drug addicts and petty thieves serving unfairly harsh prison sentences to hardened criminals receiving get-out-of-jail-free passes, and the final count ended with 53 percent of voters opposed.

It will be interesting to see if Governor Schwarzenegger will also play an active role in a more moderate restriction on the reach of Prop. 66. The SF Chronicle article concludes by suggesting this is a possibility:
Even some who opposed Tuesday's try [to amend the Three Strikes Law] aren't adamantly against some kind of fix that prevents using the law for some nonviolent felonies.

San Mateo County District Attorney James Fox, a vocal opponent of Prop. 66, said he believed there "was sentiment out there to make some corrections to three strikes to eliminate the possibility of prosecutorial indiscretion.'' Fox said his office does not use three strikes against those accused of nonviolent crimes.

Schwarzenegger said Wednesday he hoped to talk to Attorney General Bill Lockyer -- the state's top criminal justice official -- about the issue.

November 4, 2004 in Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

After Proposition 66's defeat

Lots of interesting newspaper coverage and analysis this morning of the defeat of Proposition 66, the California ballot initiative to amend the state's Three Strikes Law, with two articles of note in the San Jose Mercury News here and here, and other interesting articles from the Contra Costa Times, the North County Times and the San Mateo Daily Journal.

In addition, the blogsphere has some commentary on Prop. 66's defeat from Criminal Appeal and Patterico's Pontification.

November 4, 2004 in Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, October 27, 2004

Roper v. Simmons oral argument transcript now on-line

You can now access on-line here the oral argument transcript Roper v. Simmons, the case addressing the continued constitutionality of executing offenders who committed their crimes while juveniles. (Some of my earlier coverage of the case can be found here and here and here.)

The oral argument transcript is a fascinating read, in part because of the range of tough jurisprudential questions the Justices touch upon — e.g., can age be an aggravating factor as well as a mitigating factor at capital sentencing? would the Founders have thought world opinion was relevant in a determination of what constitutes an "unusual" punishment? The transcript alone suggests that the Supreme Court's decision in Roper v. Simmons will be interesting and important.

October 27, 2004 in Blakely Commentary and News, Booker and Fanfan Commentary, Offender Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, October 15, 2004

Roper and categorial capital bars

The folks at the SCOTUS Blog have all the press accounts of the Roper argument assembled here, and many accounts highlight that Justice Kennedy was apparently moved by this amicus brief, authored by the state of Alabama and submitted on behalf of six states, which details a number of heinous murders committed by 16 and 17 year olds. Crime & Federalism explains here how the brief won him over, and further explains the effectiveness of the brief's advocacy for allowing states to execute persons who commit capital crimes as juveniles.

Though the facts of the murder cases in the Alabama brief are compelling, what really makes the brief effective is its framing of the issue before the Supreme Court in terms of individual cases. Such a framing is not inappropriate, since the Supreme Court is being asked to preclude the application of the death penalty in any individual case involving a juvenile offender. But, of course, the issue before the Court in Roper could be (and perhaps should be) framed in more systemic terms. For a terrific account of how best to cast arguments for categorical bars on the application of capital punishment, I highly recommend Carol Steiker & Jordan Steiker, Defending Categorical Exemptions to the Death Penalty: Reflections on the ABA's Resolutions Concerning the Execution of Juveniles and Persons with Mental Retardation, 61 Law & Contemp. Probs. 89 (Autumn 1998), which is available on-line here.

In other words, the real debate and question in Roper is whether a majority of the Supreme Court will focus on the sinner or on the system. I do not know how Roper is going to come out, but I do know the world is watching.

October 15, 2004 in Death Penalty Reforms, Offender Characteristics, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, October 14, 2004

Highlights of Roper highlights

As is to be expected, there is lots of media coverage of Wednesday's Supreme Court argument in Roper v. Simmons, the case exploring whether it is still constitutional to execute persons who committed capital crimes before turning eighteen. Some of the longer pieces I have seen come from the New York Times, Boston Globe, St. Louis Post-Dispatch, USA Today, Bloomberg News, Knight Ridder.

Relatedly, you can hear Nina Totenberg doing her usual fine SCOTUS work for NPR at this link, and the always entertaining and amusing Dahlia Lithwick of Slate adds her distinctive insights here.

UPDATE: Howard Bashman does his usual amazing job collecting news stories here, and he also continues to promise post his thoughts about the case soon.

October 14, 2004 in Death Penalty Reforms, Offender Characteristics, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, October 13, 2004

Conceptualizing Blakely

As noted before here, I have been starting to conceptualize Blakely in terms of an offense/offender distinction, and thus I was pleased to see that a New Jersey appellate court in NJ v. Abdullah, 2004 WL 2281236 (N.J. Super. A.D. Oct. 12, 2004), relied on an offense/offender distinction when applying Blakely (details here). The Abdullah court's discussion of this distinction is a bit truncated, and I have now had a chance to write up my views more formally. Here is the first part of an article, entitled "Conceptualizing Blakely," that I am working on for the next issue of the Federal Sentencing Reporter:

The Blakely rule, its underlying principle, and its key limit could be better understood and appreciated if the Supreme Court linked its rulings to the constitutional text it purports to be applying. Notably, the jury right at issue in the Blakely line of cases actually appears twice in the U.S. Constitution. Section 2 of Article III provides: “The trial of all crimes, except in cases of impeachment, shall be by jury.” And the Sixth Amendment, in pertinent part, provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” In addition to highlighting the favored status of the jury trial right, the language of these provisions helps to chart the proper metes and bounds of the right itself.

The Constitution frames the jury trial right in terms of the trial of “crimes,” which are the basis for a “prosecution” of “the accused.” This language connotes that the jury trial right attaches to all offense conduct for which the state seeks to impose criminal punishment, but also connotes that the jury trial right does not attach to any offender characteristics which the state may deem relevant to criminal punishment. That is, all facts relating to offense conduct which the law expressly makes the basis for criminal punishment are subject to the jury trial right; such facts are in effect fundamental parts of those “crimes” which the state wishes to be able to allege against “the accused” in a “criminal prosecution.” Put simply, the state accuses and prosecutes persons for what they do, not for who they are; consequently the jury trial right concerns offense conduct while having no application to offender characteristics.

Stated another way, the jury trial right ensures that a defendant can always demand that a jury determine whether the defendant in fact did whatever offense conduct the state seeks to punish. But once offense conduct has been properly established — either through a jury trial or a defendant’s admission — a judge may properly consider whether and to what extent offender characteristics may justify more or less punishment in response to the properly established offense conduct. And, critically, a state may structure through statutes or guidelines how a judge considers offender characteristics without implicating the jury right.

In short, there is an essential offense/offender distinction at the heart of the jury trial right. In addition to being faithful to the text of the Constitution, the offense/offender distinction resonates with the distinctive institutional competencies of juries and judges in the context of sentencing determinations. Juries can reasonably be expected to determine offense conduct at trial; the state should have to prove to a jury beyond a reasonable doubt exactly what “the accused” did. But judges are generally better positioned to consider offender characteristics at sentencing; the state should be allowed to offer (potentially prejudicial) information concerning an offender’s life and circumstances directly to a judge to assist in determining an appropriate punishment. (Of course, the state is certainly permitted to provide for jury consideration of offender characteristics, but the Constitution does not demand as much.)

Thoughts, anyone?

October 13, 2004 in Blakely Commentary and News, Booker and Fanfan Commentary, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (21) | TrackBack

Roper reading redux

The newspapers bring more stories on Roper v. Simmons, the case to be argued today in the Supreme Court exploring whether it is still constitutional to execute persons who committed capital crimes before turning eighteen. This morning you can find thoughtful coverage in articles from The Washington Post, The New York Sun, and two pieces from the Christian Science Monitor here and here. (Other stories and materials on the case were previously assembled here and here.)

Additional background on the Roper case can be found from the folks at the SCOTUS Blog here. That post reminds me that the Roper case, in addition to addressing an important symbolic aspect of how the US administers capital punishment, could prompt interesting (and perhaps contentious) opinions addressing whether and how to give evolving meaning to the Eighth Amendment's prohibition on cruel and unusual punishments.

In addition, this USA Today op-ed by Jimmy Carter on Roper v. Simmons spotlights the question of whether the Supreme Court's interpretation of the Eighth Amendment ought to be influenced by international human rights norms. (Recall that the role of international law was hotly debated in the Justices' opinions in Atkins v. Virginia, when the court reconsidered the constitutionality of executing persons with mental retardation.)

October 13, 2004 in Death Penalty Reforms, Offender Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, October 11, 2004

Monday morning (sentencing) quarterback

At this national moment of sentencing second thoughts, the writers of newspaper editorials are sharing their views on where sentencing law and policy should be heading. Here's an editorial from the Baltimore Sun urging the Supreme Court to affirm in Booker and Fanfan, and here an editorial from the The Republican in Massachusetts urging the Supreme Court in Roper v. Simmons to rule it is unconstitutional to execute an offender who committed his crime as a juvenile. (Background on the Roper case can be found here.)

And, in other news about sentencing second thoughts, here an interesting article about the campaign over Proposition 66 which would amend California's harsh 3-strikes law. (Background on Prop. 66 can be found here and here.)

October 11, 2004 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Offender Characteristics, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, 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.

September 29, 2004 in Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Monday, September 27, 2004

Downward departures, Koon and Blakely

The West merits some sort of award for being the most interesting arena for sentencing developments these days. (Consider news here and here from California alone, and then throw in Judge Cassell's work in Utah and Blakely happenings in Oregon and Colorado). And, of course, thoughtful readers of the blog perhaps now realize that I think the Ninth Circuit in Ameline (details here) has been the closest to getting Blakely "right" for the federal system.

Today, the Ninth Circuit today issued this order and amended opinion in US v. Rivas-Gonzalez, an interesting case (from Montana) in which the district court downward departed "by eight levels (from seventeen to nine), which even exceeded by three levels the degree of departure that Rivas had requested" based on "cultural assimilation." The Ninth Circuit reversed this downward departure in a pre-Blakely decision, and today's action only slightly amended the decision and reported on the circuit's decision not to go en banc.

The case is interesting on the facts, especially in light of my recent posts here and here about sentencing windfalls and the possibility that purely advisory guidelines might create lower overall sentences. In addition, the dissents by Judges Pregerson and Wardlow contain interesting discussions of the Supreme Court's decision in Koon v. US, 518 U.S. 1 (1996), and departure decision-making, and Judge Pregerson's dissent for three judges also has a very interesting footnote about the possible impact of Booker and Fanfan.

September 27, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Offender Characteristics, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, September 23, 2004

Felon Disenfranchisement

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.

September 23, 2004 in Criminal Sentences Alternatives, Offender Characteristics, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Sunday, September 19, 2004

Striking Three Strikes?

Today's LA Times Magazine has this (very long) article about Proposition 66, the initiative on the November ballot to amend California's Three Strikes law. The article is well worth the time it takes to read; there is a wealth of information and insights about the realities of the law itself and about the politics surrounding efforts to change the law. Relatedly, Jonathan Soglin over at Criminal Appeal has collected here an array of recent newpaper articles on Proposition 66.

Interestingly, and not surprisingly, there are a number of websites and web resources which provide a lot of (competing) information about California's Three Strikes laws and the Proposition 66 amendment effort. For example, here is one site called Restore Three Strikes, and here is a competing site called No On 66. In addition, I recently was informed that the Justice Policy Institute (JPI) will soon release a new report entitled "Three Strikes and You’re Out: An Examination of the Impact of Strike Laws 10 years after their Enactment," which asserts that the majority of people incarcerated under three strikes laws are "non-violent" offenders and that states without Three Strikes laws actually saw greater decreases in violent crimes than those with Three Strikes laws. JPI, which describes itself as "a nonprofit research and public policy organization dedicated to ending society’s reliance on incarceration and promoting effective and just solutions to social problems," has done a lot of previous important and valuable work on three strikes laws and on other issues relating to the scope of imprisonment (see, e.g., publications available here and here).

In my mind, the debate over Proposition 66 reflects many aspects of the current, often confused, public dialogue over crime and punishment. Everyone wants violent, repeat offenders put away for a long time, and but the broad reach (and great expense) of California's Three Strikes law raises questions about the justice and efficacy of its approach to achieving that goal. How politicians and the public come to view and frame these issues in the context of Proposition 66, and the ultimate fate of using "direct democracy" to cut back on a harsh mandatory sentencing law, may well provide important insights into the the future of sentencing reform and its relationship to concepts of democracy (a topic I recently discussed here). Stay tuned.

September 19, 2004 in Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (16) | TrackBack

Wednesday, September 01, 2004

Sex offender sentencing

The law and policy of sex offender sentencing is always interesting and often quite depressing. My FSR co-editor Professor Nora Demleitner has put together a number of Federal Sentencing Reporter issues related to this topic, including this recent FSR issue focused particularly on risk assessment. And as many know, the infamous Feeney Amendment to the PROTECT Act provided for the most dramatic changes to federal sentencing in the arena of sex offenses — even though, as I discuss in Deciphering a Rosetta Stone of Sentencing Reform, 15 Fed. Sent. Rep. 307 (June 2003), the initial impetus for reform seemed to flow from DOJ concerns about undue leniency in white-collar cases.

Two recent cases involving sex offenders have today caught my attention. First, earlier this week, the Supreme Court of California, in People v. Barker, ruled that a sex offender "just forgetting to register" could be convicted as a "willful" violator of the state's sex offender registration requirements. Though the case is principally about the meaning of "willful," I found staggering the fact that Barker, by forgetting to register in a timely manner (he had registered properly before), could have received under the operation of California's three-strikes law a sentence of 25 years to life! Interestingly, the trial judge in Barker's case used his discretion to dismiss "all but one of his 10 prior strike convictions in the interests of justice" so that he could sentence Barker to only 9 years' imprisonment for his failure to register.

Second, as briefly noted last week, a Michigan state judge declared Michigan's state sentencing guidelines unconstitutional after Blakely. I was graciously provided with a copy of the ruling by Judge Timothy Pickard, in which he explains his view that parts of Michigan sentencing law involve mandatory guidelines and that, following the logic of Judge Cassell's opinion in Croxford, no part of the Michigan system should be applied when one part is constitutionally defective. Though I do not know enough about Michigan law to comment on the soundness of this ruling, it is noteworthy that this article suggests that Judge Pickard reached his conclusion in order to be able to sentence a child molester to a much longer prison sentence than the state guidelines provided.

September 1, 2004 in Offender Characteristics, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (86) | TrackBack

Tuesday, August 31, 2004

Judge Presnell Speaks again!

Despite being in hurricane alley, US District Judge Gregory A. Presnell of the Middle District of Florida continues to do amazing and important sentencing work (his prior rulings can be found here and here). His latest contribution comes in US v Shelton, No. 6:04-cr-72-Orl-31KRS (M.D. Fla. Aug. 30, 2004), which can be downloaded below.

After running through standard guideline calculations in a relatively standard crack case, here's what Judge Presnell says in Shelton:

There you have it — a simple, rational, fair and humane way to determine an appropriate sentence under the U.S. Sentencing Guidelines. In sum, Defendant is not an individual, he is a number, i.e., 31-VI.

In U.S. v. King, Case No. 6:04-cr-35-Orl-31KRS, this Court held the U.S. Sentencing Guidelines unconstitutional, but indicated that it would look to the Guidelines for guidance. In this case, the Guidelines do not produce a just result. Mr. Shelton is a small-time drug user/dealer. The instant offense involved a trivial amount of drugs and his prior convictions (all served in one concurrent sentence) are subjectively stale by any reasonable standard. Under these circumstances, a 15-year sentence is clearly unwarranted.

This case illustrates the concern Justice Kennedy expressed by America’s reliance on incarceration as a means of criminal punishment, especially for drug-related offenses. At its meeting on August 10, 2004, the American Bar Association’s House of Delegates approved the Kennedy Commission’s recommendations which, among other things, urge repeal of mandatory minimum sentences and the exercise of judicial discretion; reserving lengthy sentences (like this) for offenders who pose the greatest danger to the community. Defendant is not one of these people.

Considering all relevant factors, including Defendant’s criminal history, the Court believes that a sentence of 70 months is appropriate.

Download us_v. Shelton (04-cr-72).pdf

August 31, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Offender Characteristics, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Saturday, August 21, 2004

The next big Blakely issue: the prior conviction exception

As noted before here, the theoretical soundness of Almendarez-Torres' "prior conviction" exception to the Apprendi/Blakely rule has been widely questioned, and Justice Thomas' statements suggest that there are no longer five Justices who support this exception. Nevertheless, the "prior conviction" exception remains good law (for now), and we are continuing to see courts in the wake of Blakely giving this exception a broad reading.

The recent Indiana state court decision in Carson (details here) is one very recent example of a (questionable) state ruling applying this exception expansively to escape Blakely's reach. Similarly, a recent unpublished order from California in People v. Cairati, No. A104764 (Cal. Ct. App., Aug. 19, 2004) (available here) gave the Almendarez-Torres exception a broad application through this holding:

Here, in imposing the aggravated term of 11 years in state prison, the court relied on several aggravating factors including defendant's "prior convictions [that] show a continuing pattern of violence and escalation which is frightening," the viciousness of the current offense, that defendant was armed with a shovel when he committed the offense, and his prior poor or unsuccessful performance on probation. That defendant had prior convictions that were numerous or of increasing seriousness is a specific factor supporting an aggravated term. Assuming Blakely applies to the California determinate sentencing scheme, under Apprendi, as reiterated in Blakely, the fact of defendant's prior convictions does not require a jury determination. Because even a single aggravating factor is sufficient to justify the imposition of the aggravated term, the trial court could properly rely on defendant's prior convictions without a jury determination in imposing the aggravated term.

The Booker and Fanfan cases will not give the Justices a direct opportunity to address the scope and application of the prior conviction exception. It has been noted here that the High Court, just before Blakely came down, granted cert in a case, US v. Shepard, 03-9168, that could turn out to be a vehicle for revisiting Almendarez-Torres in light of Blakely. Yet, as detailed here and here, Shepard is a federal case technically about a little issue in federal law. And oral argument in Shepard likely will not take place before next year.

Just as the federal criminal justice system needs a quick clarification of Blakely's applicability to the federal guidelines, I think both state and federal criminal justice systems will soon need a direct clarification of the validity and scope of the prior conviction exception in the wake of Blakely.

August 21, 2004 in Blakely Commentary and News, Blakely in the States, Blakely in the Supreme Court, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (11) | TrackBack

Sunday, July 25, 2004

In other SCOTUS news...

Though when and how the Supreme Court returns to Blakely is to be determined, the Supreme Court already has another important sentencing case on its agenda for the fall. In Roper v. Simmons, the court will re-examine the constitutionality of the death penalty for offenders who were juveniles when they committed their crimes. The case started making headlines last week when numerous austere groups and individuals files amicus briefs urging the Court to declare unconstitutional the execution of persons for crimes they committed before turning 18. (This post from the SCOTUSBlog collects newspaper articles discussing the amicus filings.)

The Roper decision, practically speaking, will impact only a few dozen cases across the country, but its symbolic importance cannot be overstated. As one of the amicus briefs explains, the "United States position on the juvenile death penalty isolates us diplomatically from our close allies and has been condemned by the international community." The Death Penalty Information Center has a large collection of materials concerning the Roper case available here, and the American Bar Association's Juvenile Justice Center has compiled copies of the amicus briefs here.

July 25, 2004 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (3) | TrackBack

Saturday, July 10, 2004

The story behind the story

To the list of famous names like Gideon, Miranda, Katz, Terry, Furman, McClesky that have shaped the modern criminal justice system, we now add Blakely. (Feel free to add the names I have missed in the comments.) In all that will surely be written about the Blakely case and its aftermath, we perhaps ought not forget the man, Ralph Howard Blakely, behind the now famous case that bears his name. However, this article about Ralph Howard Blakely's latest doings suggests we might indeed want to forget him very soon.

July 10, 2004 in Blakely Commentary and News, Offender Characteristics, Offense Characteristics | Permalink | Comments (14) | TrackBack

Thursday, July 08, 2004

And now from the business desk...

Today has proven to be a big day in the business crimes arena, and I cannot help but look at everything through the lens of Blakely. First, I wonder if anyone has had a chance to review the Ken Lay indictment to see if it is "Blakely-friendly." (As the Blakely Blog reports, Professor John Coffee this morning on NPR had to explain the chaos created Blakely when asked about Lay's possible sentence.) Second, Marcia Oddi at the Indiana Law Blog sensibly askes "Will Blakely impact Martha Stewart sentencing?"

Finally, in a related story which could get overlooked in the Blakely mania, the AP reported late yesterday that President Bush issued full pardons in two fraud cases from Oklahoma and Wisconsin. Here's a link to the brief report, which says that these pardons are the 18th and 19th of Bush’s presidency. The newly pardoned are Craven Wilford McLemore of Oklahoma, who served six months in prison, 18 months probation and was fined $10,000 in February 1983 for a fraud conspiracy conviction, and Anthony John Curreri of Wisconsin, who was sentenced to three years’ probation for mail fraud in March 1976. Anyone know anything more about these cases or offenders or why these pardons were granted now?

UPDATE: As discussed in this Newsday article, Martha Stewart's lawyers moved, citing Blakely, to have U.S. District Court Judge Miriam Goldman Cedarbaum declare the federal sentencing guidelines unconstitutional. The article asserts that, if granted, "the motion could mean that Cedarbaum would have more discretion in deciding a prison sentence that is substantially less than the current estimated range of 10 to 16 months and instead impose a term of as little as probation."

July 8, 2004 in Clemency and Pardons, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, May 29, 2004

50 Years After Brown

Earlier this month, the Sentencing Project produced a brief and discouraging report on incarceration rates for African Americans 50 years after the Supreme Court's decision in Brown v. Board of Education. Here's a link and the Sentencing Project's description:


Fifty years after the historic Supreme Court decision in Brown v. Board of Education, a new report by The Sentencing Project finds that there are nine times as many African Americans in prison or jail as in 1954. The current figure of 884,500 dwarfs the estimated 98,000 blacks in prison or jail at the time of the Brown decision. The report attributes these developments to a punitive response to social problems along with a set of harsh criminal justice policies that have been enacted in recent decades.

May 29, 2004 in Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Thursday, May 27, 2004

USSC Recidivism Reports

The U.S. Sentencing Commission, as part of its on-going 15-year-study of the operation of the federal sentencing guidelines, has recently released two sizeable reports on recidivism and the calculations of criminal history under the guidelines. Here are the Commission's description and links to these reports:

Measuring Recidivism: The Criminal History Computation of the Federal Sentencing Guidelines

The first release in the Research Series on the Recidivism of Federal Offenders, this report examines in detail the predictive statistical power of the Chapter Four Criminal History guidelines. The study uses pre-conviction and instant offense information for a sample of guideline federal offenders sentenced in fiscal year 1992, matched with their post-sentencing criminal behavior collected from FBI records. Both tabular and statistical models of recidivism outcomes report findings by criminal history category and point groupings, as well as by offender demographics, instant offense characteristics, and recidivating offense types.

Recidivism and the "First Offender"

This second release in the Research Series on the Recidivism of Federal Offenders provides an empirical foundation for the Commission’s study of recidivism rates among federal offenders with little or no criminal history prior to the federal instant offense. Using definitional frameworks established in several earlier Commission staff working group studies on “first offenders,” the data documents recidivism risk for three plausible first offender groupings. The analysis reports that recidivism risk is lowest for those offenders with least experience in the criminal justice system.

May 27, 2004 in Federal Sentencing Guidelines, Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (4)