Wednesday, June 08, 2005

Legislative briefing on "The Girlfriend Problem"

I have received an announcement of a legislative briefing planned for next week in Washington DC entitled "The Girlfriend Problem: How Sentencing Laws Affect Women & Children."  Though the briefing is aimed at House staffers and Representatives, I have been told that this event is open to others to attend. More details are available at this link, and here is part of the announcement's account of issues to be covered:

Women are the fastest growing group in the ever-expanding prison population. Sentencing laws have caused the number of women behind bars to explode, leaving in the rubble displaced children and overburdened families. Current drug laws punish not just those who sell drugs, but also a wide range of people who help or associate with those who sell drugs....

In too many cases, women are punished for the act of remaining with a boyfriend or husband engaged in drug activity, who is typically the father of her children. Many of these women have histories of physical and sexual abuse and/or untreated mental illness.

June 8, 2005 in Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (19) | TrackBack

Thursday, May 19, 2005

The diktats of criminal history and Booker's potential virtue

The Seventh Circuit's decision today in US v. Rosas, No. 04-2929 (7th Cir. May 19, 2005) (available here) does not break any new Booker ground, but it does provide a stark reminder of the significance of the federal guidelines' criminal history diktats.  It also highlights why the post-Booker world, if properly constructed and kept free from too much Congressional interference, could be a much better federal sentencing world than what came before.

The facts of Rosas are hardly unique: the case involved a defendant with a criminal past who pled guilty to various drug and firearm charges.  The legal issue is whether the defendant's prior conviction for fleeing a police officer qualifies as a "crime of violence," which would in turn requiring sentencing as a career offender under USSG § 4B1.1.  Rosas caught my eye because this seemingly small (and substantively irrelevant?) legal dispute over whether fleeing a police officer is a "crime of violence" had enormous impact on the defendant's fate:  the defendant's guideline range was to be 77 to 96 months, but it jumped to 262 to 327 months if his fleeing prior was classified as a "crime of violence."

The Rosas court's legal analysis of this issue under pre-Booker law seems sound (circuit precedent apparently compels treating fleeing a police officer as a "crime of violence").  But, tellingly, the court's analysis never includes any consideration or judgment about the factual specifics of the defendant's priors or, more importantly, whether it makes sense for 15 years of a man's life to hinge on a legal debate over whether fleeing qualifies as a "crime of violence." 

Thankfully, Booker provides a remedy that could allow these case to be treated in a much sounder way.  No longer do criminal history diktats define an unalterable sentencing range; though a district judge must consider the diktats, she must also now consider the broad mandates of 3553(a) to explore whether a sentence for Rosas in the range of 262 to 327 months is "sufficient, but not greater than necessary" to achieve the purposes of punishment and the other goals set forth in 3553(a).  Though a judge post-Booker might still opt to follow the guidelines' diktats, that decision will now necessarily flow from a broader exercise of judgment, and a form of judgement that after Booker must be attentive to many factors that seem, at least to me, a lot more significant than whether fleeing a police officer qualifies as a "crime of violence."

May 19, 2005 in Almendarez-Torres and the prior conviction exception, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (4) | TrackBack

Tuesday, May 17, 2005

Another FSR issue heading to press

I am pleased to report that a new Federal Sentencing Reporter issue is headed to press.  This FSR issue, Volume 17, Number 3, is principally concerned with criminal history matters and was in the works before Blakely and Booker came along (although those cases find mention in the final product.)   

My co-editor Nora V. Demleitner was in charge of this issue, and her introductory essay is entitled "Constitutional Challenges, Risk-based Analysis, and Criminal History Databases: More Demands on the U.S. Sentencing Commission."  That essay, along with the Table of Contents for the full issue, are available for download below. 

Relatedly, details about FSR's three recent Blakely issues are here and here and here, and the journal can be ordered here and accessed electronically here.  In the coming months, the Federal Sentencing Reporter will be providing lots more Booker and Blakely coverage, so stay tuned.

Download 173_fsr_cover.pdf

Download demleitner_173_ed_obs.pdf

May 17, 2005 in Almendarez-Torres and the prior conviction exception, Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

Fascinating circuit cases revealing unique victim perspectives

This past weekend I spotlighted in this post a number of newspaper accounts of quite interesting federal sentencing cases.  On Monday, interesting cases cropped up in the circuit courts through the Seventh Circuit's decision in US v. Beith, No. 03-2530 (7th Cir. May 16, 2005) (available here) and the Eighth Circuit's decision in US v. Rodriguez-Cebalos, No. 04-3390 (8th Cir. May 16, 2005) (available here).

Both Beith and Rodriguez-Cebalos are so factually and legally dynamic, I could readily imagine teaching a whole course around these decisions.  (There are issues in these cases which cut across all 11 chapters of my sentencing casebook.)   And though so much could be said about these decisions, I will focus on the interesting victim angles in the cases (an issue I find quite interesting, as detailed in this post with links).  Both Beith and Rodriguez-Cebalos reveal that, if victims are allowed to be involved in sentencing proceedings, they might sometimes provide evidence and arguments to mitigate, rather than aggravate, a defendant's sentence.

Beihl involves the sentencing of "the former principal of Liberty Baptist Bible Academy, who pled guilty to fleeing from Indiana to Nevada so that he could continue his illicit sexual relationship with his eleven-year-old student."  Though it does not appear the defendant's victim directly provided evidence for the sentencing, her role in the offense suggests she might have wanted to plead for leniency on the defendant's behalf.  And in Rodriguez-Cebalos, which involves sentencing for illegal re-entry, the victim in a prior offense testified at a sentencing hearing in order to explain that the defendant's prior conviction was not as serious as it seemed.

Rodriguez-Cebalos is also notable because the Eighth Circuit found Booker plain error satisfied, in part because, at an initial pre-Blakely sentencing, the sentencing court had departed downward (although on a ground later declared invalid by the Eighth Circuit).  In the course of its ruling now on Rodriguez-Cebalos, the Eighth Circuit had this amusing explanation of the need for a third sentencing:

To say the least, the Guidelines landscape under which district courts operated for nearly two decades changed drastically from the time Rodriguez-Ceballos pled guilty on December 20, 2002, to the time the Supreme Court decided Booker on January 12, 2005.  During the course of the monumental sea change occurring in the Guidelines area, the district court was tasked with sentencing Rodriguez-Ceballos.  Indeed, the district court was required to hit a moving target, and, through no real fault of its own, missed both times.  Now that Booker and Pirani have steadied the target, we believe the district court should get a third shot at sentencing Rodriguez-Ceballos, this time under the advisory Guidelines system.

May 17, 2005 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, May 13, 2005

Another potent (and hilarious) opinion from Judge Kopf

In my Sentencing Judges Hall of Fame, US District Judge Richard Kopf has earned a special plaque for consistently writing the most engaging and entertaining sentencing opinions. (Recall his fine and often amusing work in Wanning and in Tabor.)  Judge Kopf has outdone himself with his opinion in US v. Bailey, No. 4:02CR3040 (D. Neb. May 12, 2005), which is available for download below. 

Bailey is Friday's must-read for everyone interested in federal sentencing issues, or for anyone interested in seeing how a well-crafted opinion can deliver drama and humor, as well as astute legal analysis. (I am tempted to declare Bailey a great legal dramedy for the sentencing set.)  To provide just a flavor of Bailey, consider these opening passages:

Most of the time, we should sentence a person without regard to the pain and damage our sentence will inevitably inflict upon his or her children.  The exceptions to this rule are few and far between.  Indeed, when I first skimmed the motion to depart under U.S.S.G. § 5K2.0 in this case, my reaction was quick and visceral: "Are you kidding me?"  The Assistant Federal Public Defender asked me to impose a nonprison sentence on Bailey, a fellow who possessed child pornography, in order to save the defendant's little girl.  No way, I thought, hell will freeze over before that happens.

I next explain how hell froze over. With Booker in mind, I also explain why normal departure theory, rather than the "mix-and-match" approach that I have previously scorned, is capable of dealing with this truly unusual case.

This opening is only one of many highlights in Bailey.  Among the others are: (1) a reference to SNL's Emily Littela in the course of responding to my comments in this post about Judge Kopf's Tabor opinion, (2) a detailed account of departures based on family circumstances, (3) praise for a expert witness because she is "unlike the soft-headed shrinks I sometimes encounter," and (4) a call for the Court of Appeals, which gets "paid the big money," to address "whether Booker nullified § 3553(b)(2)."

In a closing footnote, Bailey also includes a pitch for Congress to have the "mature wisdom to wait ... a reasonable period of time (say three years)" before responding legislatively to Booker.  An alternative course, says Judge Kopf, could be unseemly: "By acting precipitously, Congress reinforces the (unjustified) image of a bunch of blood-starved cave dwellers looking for a fight.  Sometimes one can win by waiting."

Download judge_kopf_bailey_departure_opinion.pdf

May 13, 2005 in Booker in district courts, Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (5) | TrackBack

Wednesday, May 11, 2005

Might Indiana's Supreme Court be a wise leader on the prior conviction exception?

Michael Ausbrook at INCourt has this notable post which details that the Indiana Supreme Court has ordered supplemental briefing in Ryle v. State focused on two questions concerning the scope of the "prior conviction" exception to the Apprendi-Blakely rule.

Ryle seems like an especially good test case for the scope of the "prior conviction" exception for a few reasons: (1) as detailed by Michael and in this post last year, Ryle directly addresses two key issues and uncertainties surrounding the prior conviction exception; (2) because Indiana's legislature has now passed a Blakely fix which makes Indiana's guidelines advisory, the state Supreme Court can consider the legal issues without pragmatic worries that all future sentencings hang in the balance, and (3) the Indiana Supreme Court's work in its big Blakely case, Smylie (basics here, commentary here and here and here) gave me the impression that this court really understands these issues.

Michael reports that oral argument in Ryle is not until next month, and I am not sure about the briefing schedule.  But I will be eager to see what the parties have to say concerning one of the biggest and most important doctrinal issues still lurking in the post-Blakely world.

May 11, 2005 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Blakely in the States, Offender Characteristics | Permalink | Comments (0) | TrackBack

Tuesday, May 10, 2005

PBS Frontline examines the "new asylums"

Though I have plans to watch tonight's finale of The Amazing Race, my DVR is set to record tonight's airing of a new documentary on PBS's Frontline about the mentally ill in prison. Entitled "The New Asylums," here is a description of the show from the PBS webpage:

There are nearly half a million mentally ill people serving time in America's prisons and jails. As sheriffs and prison wardens become the unexpected and ill-equipped gatekeepers of this burgeoning population, they raise a troubling new concern: are jails and prisons America's new asylums?  With exclusive and unprecedented access to prison therapy sessions, mental health treatment meetings, crisis wards, and prison disciplinary tribunals, FRONTLINE goes deep inside Ohio's state prison system to present a searing exploration of the complex and growing topic of mental health behind bars and a moving portrait of the individuals at the center of this issue.

Today's New York Times has this review of the program, which it calls "enormously disturbing."

May 10, 2005 in Offender Characteristics, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Monday, May 09, 2005

Another busy sentencing day for the 8th Circuit

The Eighth Circuit, which has been recently been producing sentencing decisions at a steady clip as detailed here and here and elsewhere, continued to be productive by issuing at least a half-dozen criminal justice opinions today.  Below I have reprinted the Circuit's official description of two rulings which seemed most notable from the perspective of sentencing law and procedure:

US v. Brown, No. 04-2156 (8th Cir. May 9, 2005) (available here): Because Missouri withholds substantial civil rights from convicted felons, defendant had not been restored to sufficient civil rights to invoke the provisions of 18 U.S.C. Sec. 921(a)(20) and could be convicted of being a felon in possession of a firearm; defendant's prior drug convictions were "serious drug offenses," and he could be sentenced to the mandatory minimum under 18 U.S.C. Sec. 924(g)(1).

US v. SLW, No. 04-2715 (8th Cir. May 9, 2005) (available here): District court did not abuse its discretion in transferring juvenile for criminal prosecution as an adult; district court correctly applied the factors set out in 18 U.S.C. Sec. 5032; while magistrate judge erred in considering uncharged, unadjudicated conduct in making his report and recommendation, the district court corrected the error and did not consider that information in making its decision; hearsay rule does not apply at juvenile transfer proceedings, and the district court could consider hearsay evidence.

May 9, 2005 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

The rhetoric supporting mandatory minimums in the gang bill, HR 1279

I noted in this post that FAMM is sounding the alarm about H.R. 1279, which FAMM calls "an extremely harsh and unnecessary gang bill that includes many new and increased federal mandatory minimum sentences."  Helpfully, today TalkLeft in this post and the PRACDL Blog in this post have provided a lot of additional information, criticisms and links concerning H.R. 1279, and I have now found that there is helpful information about the bill and its status available at this official link.  Also now available is a 291-page House report (House Report No. 109-74 dated May 5) on the bill, which is available here.

A helpful reporter helpfully pointed out an interesting passage concerning mandatory minimums and Booker starting at page 15 of the House report on H.R. 1279.  Here's a selection:

Finally, the bill includes a number of new mandatory minimum criminal penalties with respect to violent gang crimes and other violent offenses.  As explained here, mandatory minimum penalties are effective means for ensuring consistency in sentencing, and promote public safety by deterring violent criminals and incapacitating violent criminals who are likely to commit additional violent crimes.

The Supreme Court's recent Booker decision in has eviscerated long-standing and effective sentencing policies adopted by Congress as part of the Sentencing Reform Act of 1984.  The evidence is starting to come in, and the picture is not a good one.  Federal judges have begun to hand out sentences below the guideline recommended range, citing the discretion they now have under the Booker decision.  The Sentencing Reform Act of 1984 was designed to provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted disparities among defendants with similar records who have been found guilty of similar criminal conduct.  Sentencing judges have started to deviate, and some have announced even prospectively that they intend to do so in more cases.  Given the elimination of an effective determinate sentencing guideline system, Congress will need to act quickly in certain areas by imposing mandatory-minimum sentences to protect the public, particularly when it comes to violent gang crimes....

Moreover, mandatory minimum penalties provide the tools for prosecutors to secure the cooperation of gang members to dismantle violent gang organizations and solve violent crimes where the witnesses may only be other gang members.  Without such a penalty, gang members will not cooperate with law enforcement; they will simply turn their back on cooperation, do the time, and gang violence will continue to expand and to threaten our communities.

Regular readers should find a lot of this language familiar.  This text and other materials in the House report come from a research paper (discussed in this post) that  was making the rounds in Washington last month.  That document, which was full of rhetoric concerning the value and need for mandatory minimum penalties, made over-statement an art-form and was quite one-sided on all the issues covered.  I think the same can be said about what I see so far in this House Report.

I doubt I will get a chance to read the bulk of this House report on the gang bill, but I highly encourage readers to spotlight other sections of the report that merit focused consideration.

May 9, 2005 in Booker and Fanfan Commentary, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, May 02, 2005

11th Circuit says juvenile offenses come within prior conviction exception

Just yesterday I had a chance in this post to spotlight a thoughtful state case which concluded, following the Ninth Circuit's decision in United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001), that a "juvenile adjudication does not constitute a prior conviction under the Apprendi exception."  Coincidently, the Eleventh Circuit had occasion to speak to this issue for the very first time today in US v. Burge, No. 04-13468 (11th Cir. May 2, 2005) (available here).  And fans of circuit court sentencing action will not be surprised to learn that the 11th Circuit in Burge was not convinced by the 9th Circuit's approach to juvenile offenses and the prior conviction exception.

Burge cover a lot of interesting sentencing ground, including Booker and Shepard issues.  But its extended analysis of the place of juvenile convictions within the Apprendi story is the most noteworthy aspect of the decision.  Here's a taste:

"[T]rial by jury in the juvenile court's adjudicative stage is not a constitutional requirement." McKeiver, 403 U.S. at 545.  Further, although the Court's Jones and Apprendi decisions discuss the right to a jury trial as a procedural safeguard, neither case addresses juvenile adjudications and neither case explicitly states that a juvenile adjudication can only count as a prior conviction under the ACCA if the juvenile was afforded the right to a jury trial.  At a minimum, however, Apprendi's prior conviction exception is based on the procedural safeguards that attach to a prior conviction or juvenile adjudication.

Prior to Almendarez-Torres, we recognized that the fact of a prior conviction under section 924(e) "merely links the severity of the defendant's punishment for a violation of the predicate offense § 922(g) to the number of previous felony convictions" and need not be submitted for jury consideration because "the defendant has received the totality of constitutional protections due in the prior proceeding on the predicate offense." United States v. McGatha, 891 F.2d 1520, 1526 (11th Cir. 1990).  We explained that "[i]t was unnecessary for the jury to consider the defendant's prior convictions, for these convictions were not an element of the offense for which he was indicted and to which he entered his plea of guilty." Id. at 1525. And we concluded that "[w]hile the Due Process Clause indeed requires proof beyond a reasonable doubt of every fact necessary to constitute the crime, in sentencing those already constitutionally convicted the courts have traditionally operated without constitutionally imposed burdens of proof." Id. at 1526-27.  Although we did not consider the use of a prior juvenile adjudication in McGatha, its rationale is consistent with [other circuit decisions rejecting Tighe], and can be applied in this case.  Accordingly, "[a] prior nonjury juvenile adjudication that was afforded all constitutionally-required procedural safeguards can properly be characterized as a prior conviction for Apprendi purposes." Jones, 332 F.3d at 696.  Here, we are persuaded that Burge received the totality of constitutional protections due in his prior juvenile proceeding.

May 2, 2005 in Almendarez-Torres and the prior conviction exception, Booker in the Circuits, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Tuesday, April 26, 2005

Split decision for defendants at SCOTUS today (and Blakely-Booker footnotes)

As SCOTUSblog details here, criminal defendants won one and lost one in the two Supreme Court decisions handed down today.  The victory for the defendant came in Small v. US, where the Court held 5-3, with Justice Breyer writing for the majority, that the statute prohibiting a convicted person from possessing a firearm "encompasses only domestic, not foreign, convictions."   Though Justice Breyer's ruling suggests only about a dozen convictions a year under the statute are based on foreign convictions, this ruling might have broader sentencing significance in a broader debate over how foreign convictions ought to be incorporated into criminal history determinations.  [UPDATE: The AP here provides an early account of Small.]

The victory for the government came in Pasquantino v. US, where the Court held 5-4, with Justice Thomas writing for the majority, that a plot to defraud a foreign government of tax revenue violates the US federal wire fraud law.  Though I suspect Tax Prof Blog and White Collar Crime Prof Blog might have more to say about the merits of this case, I will just quickly note (1) that Justice Stevens joined the majority to uphold the defendants' conviction while Justice Scalia dissented, and (2) the case includes some Blakely/Booker "pipeline" discussion in the footnotes, which merits a separate post (that is now here).

April 26, 2005 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Sunday, April 24, 2005

I wonder how Virginia would assess Martha Stewart's risk

Two interesting news items today from east coast posts almost cry out to be merged: this story from the New York Post reports that the "feds are investigating whether former jailbird Martha Stewart violated the rules of her house arrest when she attended a Time magazine gala last week," while this story from the Washington Post reports that Virginia is set to expand the use of its controversial "risk assessment" instrument to "help figure out whether criminals who violate the terms of their probation should be sent back to prison for years or diverted to lower-security detention centers for several months."

Reading the stories in sequence led me to wonder what Martha might score on Virginia's risk assessment measures.  My guess is that all white-collar offenders do pretty well within Virginia's risk assessment instrument (and I think this sample worksheet from Virginia might be similar to what would be used to "score" Martha). 

Needless to say, the NY Post treats the Martha story with levity (quoting comedian Jon Stewart), while the Wash Post treats the Virginia story with gravitas (quoting Virginia sentencing commission director Rick Kern).  Meanwhile, Ellen Podgor over at the White Collar Crime Prof Blog in this post raises some interesting questions about the Martha story.

April 24, 2005 in Advisory Sentencing Guidelines, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, April 22, 2005

More sentencing rhetoric and reality inside the Beltway

This morning I received a copy of an interesting research paper that apparently is making the rounds in Washington to support the enactment of mandatory minimum penalties in the wake of Booker.  I do not have all the details concerning the origins and use of this research paper, but the document, which is entitled simply "Mandatory Minimum Penalties" and principally promotes the mandatory minimum penalties appearing in the "The Gang Deterrence and Community Protection Act of 2005," is a fascinating read even without knowing its background.  (FAMM's website here provides  background on the gang bill and a different view of all of these issues.)

This document, which can be downloaded below, is full of rhetoric concerning the value and need for mandatory minimum penalties (quote from page 2: "Given the elimination of an effective determinate sentencing guideline system [in Booker], Congress will need to act quickly in certain areas by imposing mandatory-minimum sentences to protect the public.").  The document also includes a section extolling the benefits of the death penalty (heading from page 16: "Research Shows That the Death Penalty Saves Lives.") . 

Many claims in the document are arguably accurate, although the presentation is full of over-statement and is quite one-sided on all the issues covered.  For example, the document asserts at pp. 8-11 that "Every defendant may obtain a reduced sentence" based on providing substantial assistance in the prosecution of others (emphasis in original) and claims that without "stiff mandatory minimum sentences ... offenders have no incentive to cooperate with authorities."  But, of course, offenders without information about other offenders cannot get a departure based on substantial assistance no matter how much they cooperate, and federal offenders not subject to mandatory minimum sentences have lots of incentives to cooperate (see, e.g., Rowland and Fastow, as just two white-collar examples.)  Similarly, a footnote in the discussion of the death penalty asserts that "specific data show[s] that the death penalty system, far from broken, is indeed working well," though there is no mention of innocent persons released from death row or the high reversal rate of death sentences.

I understand that an effort is underway to develop a "response" to this document in order to provide a more balanced view on these sentencing issues.  (Of course, the US Sentencing Commission over a decade ago in its 1991 USSC report on mandatory sentencing effectively presented a more balanced view and documented some failings and harms of mandatory sentencing provisions ).  Perhaps readers can use the comments to note aspects of this document that merit a more complete account of the reality that should accompany all the rhetoric.

Download mandatory_minimum_paper_on_benefits.rtf

April 22, 2005 in Booker and Fanfan Commentary, Legislative Reactions to Booker and Blakely, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, April 21, 2005

More news on the Enron Nigerian Barge sentencing

From talking to a reporter this afternoon, I got the impression that former Merrill Lynch executive Daniel Bayly's below-guidelines sentence of 30-months imprisonment for his role in the Enron Nigerian barge fiasco (basics here) was the result of a four-level departure for "aberrent behavior" and that the District Judge Werlein's guideline calculations led him to reject a number of the findings made by the "sentencing jury" in the case (details here).  The word is that Bayly plans to appeal his conviction; I wonder if the government might be inclined to appeal his sentence.

Meanwhile, this afternoon according to this Bloomberg News story, Judge Werlein gave a 46 month sentence James A. Brown. The longer sentence for Brown (the hardest working man in snow business?) can be explained, in part, because he was also found guilty of perjury and obstruction of justice. Nevertheless, compared to the 33-year sentence urged by the government, the sentence of less than 4 years for Brown again raises questions spotlighted here about whether we are seeing a pattern of leniency in white-collar cases post-Booker.

Peter Henning over at the White Collar Crime Prof Blog has a thoughtful discussion of these sentences and related issues in this post.

April 21, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Are the federal guidelines too tough on white-collar offenders?

UPDATE at 1:30pm:  The Houston Chronicle reports in this article that this morning former Merrill Lynch executive Daniel Bayly received a sentence of 30-months imprisonment for his role in the Enron Nigerian barge fiasco.  Here are some very interesting snippets from that article:

U.S. District Judge Ewing Werlein told Bayley he had never sentenced such a defendant with such a sterling reputation.... Werlein said he found the loss caused by Bayly's crimes to be $1.4 million. [N.B. This judicial loss determination is much less than the jury's loss determination in November].

During this morning's hearing, Werlein said Bayly deserved a less harsh sentence than the 4 to 5 years in prison sentencing guidelines would suggest.  The judge said many letters submitted to the court in support of Bayly convinced him of Bayly's good character and reputation. He also said lighter sentences can deter white collar defendants more than other criminals.

In sentencing Bayly, Werlein said he considered the sentences the government has given in plea deals with other Enron defendants. The judge also characterized the barge fraud as relatively benign in the big Enron picture.

ANOTHER UPDATE:  I have also posted, in a separate entry, More news on the Enron Nigerian Barge sentencing.

-------

A few weeks ago, I queried in this post whether we are seeing a pattern of leniency in white collar cases post-Booker.  Professor Weinstein in the comments and others suggested that such a pattern (if it exists) might reflect the fact that, under the federal guidelines, "sentences, keyed to illusory loss numbers, had grown too harsh."

Today sentencing is scheduled for the defendants in the Enron Nigerian barge case (which I discussed at length pre-Booker because the district judge had convened a sentencing jury, details here and here).   This AP story provides background on the sentencing and notes that the PSRs in the case have recommended prison terms of 14 years for one defendant and 33 years for another. 

Interestingly, as detailed in this Wall Street Journal article, the Chamber of Commerce has filed an amicus brief in this case to challenge the way losses are calculated under the guidelines.  Here are a few excerpts from the WSJ article:

The Chamber's brief is an example, observers say, of a feeling within the business community that the government's crackdown on corporate behavior may have gone too far in the wake of the scandals at Enron and other big companies.  With the passage of time, "perhaps the business community feels the climate is a bit better for them to push back" against some of those initiatives, says Robert Litt, a former senior Justice Department official and now a partner at the Washington law firm Arnold & Porter....

In the Nigerian barge case, the Chamber is attacking the Justice Department's method for calculating the financial damage of the fraud.... Under federal sentencing guidelines, which have long been used to determine prison sentences, an important factor in a fraud case is the size of the financial loss that investors suffered as a result of the deceit.  A prison sentence can be altered by years, depending on the results of that calculation.

In the barge case, the math is trickier because questions about the transaction didn't surface publicly until after Enron had collapsed into bankruptcy court in December 2001 and its stock price had fallen to near zero.  The government argues that the bogus profits produced by the 1999 barge transaction artificially inflated Enron's stock price at the time by at least $43.8 million and that this amount should be considered the loss to investors.  In their court filings, the defendants argue that the calculated loss to Enron shareholders should be zero, based partly on the fact that the alleged barge fraud wasn't revealed until after the company's stock price had already crashed.

The Chamber of Commerce's brief supporting the defendants' position argues that the "artificial inflation" of a stock price shouldn't be used to determine loss. A "loss" comes only when disclosure of the alleged fraud causes a drop in the price of the company's stock, the brief says -- adding that the government embraced this definition in a civil securities case that was decided this week by the Supreme Court.  In that opinion, the High Court agreed that investors need to show a link between the alleged fraud and a decline in the company's stock price to proceed with civil suits.

April 21, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (10) | TrackBack

Wednesday, April 20, 2005

Two for Tuesday from the 7th Circuit

Though the discussion of plain error coming from Eleventh Circuit judges is perhaps the most noteworthy of the Booker circuit developments Tuesday (details here), two opinions from the Seventh Circuit caught my eye and merit brief mention:

April 20, 2005 in Almendarez-Torres and the prior conviction exception, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Wednesday, April 06, 2005

5th Circuit on Shepard and prior convictions

In yet another case highlighting possible disputes over the nature and scope of a defendant's criminal history (such as this 10th Circuit decision from earlier this week), the Fifth Circuit in US v. Gutierrez-Ramirez, No. 04-41742 (5th Cir. Apr. 5, 2005) (available here) reversed a district court application of a guideline enhancement based on a prior conviction for a "drug trafficking offense."  The Court held that "the district court erred in using a California abstract of judgment to determine whether the defendant's prior California conviction qualified as a 'drug trafficking offense.'"  Along the way, the Fifth Circuit has a chance to discuss Shepard and Booker and a number of circuit precedents struggling with these sorts of questions.

April 6, 2005 in Almendarez-Torres and the prior conviction exception, Booker and Fanfan Commentary, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Tuesday, April 05, 2005

Notable 10th Circuit ruling on prior convictions

Just available on-line today is an interesting decision from the 10th Circuit in US v. Garcia-Rodriguez, No. 04-8047 (10th Cir. Apr. 4, 2005) (available here).  The principal sentencing issue in Garcia-Rodriguez concerns the defendant's efforts to challenge the fact that he had two prior convictions, which served in part as the basis for a life sentence.  The entire decision is an interesting read with Booker and Shepard elements, but the decision seems most notable for its discussion of the scope of the Almendarez-Torres "prior conviction exception" (basics here). 

Here is perhaps the most intriguing paragraph in what is an important decision on various issues relating to the sentencing consideration of prior convictions:

Additionally, this circuit recently concluded that this [prior conviction] exception permits a district court to find facts underlying a prior conviction that are "intimately related" to the whether a prior conviction exists without violating the Sixth Amendment. United States v. Moore, No. 04-8078, __ F.3d __, 2005 WL 668813, at *5 (10th Cir. Mar. 23, 2005) (judge properly made the determination that prior convictions were “violent felonies” subjecting defendant to increased punishment under recidivist statute). [ED. NOTE: Moore is discussed in this post.]  The question of whether the defendant is the same person as the one who committed the prior crimes is just such an "intimately related" inquiry.  See also United States v. Burgin, 388 F.3d 177 (6th Cir. 2004), cert. denied, __ S. Ct. __, 2005 WL 437775 (2005) (subsidiary finding under recidivist statute that prior offenses were committed on "different occasions" need not have been submitted to a jury); United States v. Santiago, 268 F.3d 151, 156 (2d Cir. 2001) (same); United States v. Wilson, 244 F.3d 1208, 1216-17 (10th Cir. 2001) (fact of prior convictions underlying enhancements in 21 U.S.C. § 841(b)(1) need not be made by a jury). No error occurred in this case because this finding of fact need not have been submitted to the jury.

April 5, 2005 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Booker and Fanfan Commentary, Booker in the Circuits, Offender Characteristics | Permalink | Comments (0) | TrackBack

Jury sentencing and apologies, Texas-style

This article on the jury sentencing of a defendant for murder from the Texarkana Gazette provides a great reminder that Texas (as well as a few other states) has long had true jury sentencing for certain crimes.   As noted in this post nearly a year ago (before Blakely), Professor Nancy King has done ground-breaking work examining non-capital jury sentencing, which she and her co-author right describe as "one of the least understood procedures in contemporary American criminal justice."

In addition, as the newspaper article details, the sentencing involved an (unaccepted) apology from the defendant, who was convicted of murdering a long-time friend during an intoxicated scuffle:

Barfield took the stand during the punishment phase of his trial and expressed sorrow to Burns' family.  "I wish I was dead. I'm so sorry this has happened," he testified.  Acknowledging he is an alcoholic, Barfield testified that he has been sober since the shooting.  "I have not touched a drink since that tragic night and I never will again. I will never touch a gun the rest of my life," he said....

Burns' ex-wife. Donna Burns, addressed Barfield on behalf of the Burns family after the sentence was handed down.  She told Barfield he has shown no remorse for the killing. "This has all been about Arnold.  You should be ashamed for the position you put your family in. You are the biggest coward in Bowie County," she said....

Burns also told Barfield he will never have her forgiveness for the pain he has caused Burns' son Cody.  She told Barfield birthdays and holidays are spent at the cemetery.  "Knowing you are in your own private hell is some comfort because you put us in ours," she said.

These passages provide a fascinating case-specific perspective on this week's debate between Professors Richard Bierschbach and Michael O'Hear addressing "Will An Apology Save you From Jail?" taking place at the Legal Affairs' Debate Club.  That debate, which I first noted here, is already hashing through a number of important sentencing issues.

April 5, 2005 in Blakely Commentary and News, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, March 30, 2005

The intersection of sex offenses and juvenile offenders

Thanks to TalkLeft's post here, I see this interesting abc-news article about a young man who committed a sex offense when 13 years old now forced at age 18 to be placed on a sex-offender registry.  The article thoughtfully explores the challenging issues raised by the intersection of sex offenses and juvenile offenders. 

The case noted in the article presents another example — along with the recent California case noted here overturning a three-strikes sentence of 25-years-to-life for the "technical violation" of a sex offender failing to update his registration — of the extensive reach and impact of sex offender registration laws.  Also, the article perhaps implicates ideas I developed here in the wake of the Supreme Court's juvenile death-penalty decision in Roper about whether the High Court's statements in Roper about the "mitigating force of youth" should come to bear in some non-capital sentencing settings.

March 30, 2005 in Offender Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (28) | TrackBack

Thursday, March 17, 2005

New (depressing) report on women and increased incarceration

Yesterday I reported in this post on a new (depressing) report on race and increased incarceration from the Justice Policy Institute.  Today, the ACLU brings us a new (depressing) report on women and increased incarceration entitled "Caught in the Net: the Impact of Drug Policies on Women & Families."  Grits for Breakfast has terrific coverage of the ACLU report here, and this press release provides more background on the report and the issues it covers.

The full report can be access at this link, and here are some passages from the report's Executive Summary:

Federal and state drug laws and policies over the past twenty years have had specific, devastating, and disparate effects on women, and particularly women of color and low income women. These effects require further study and careful consideration as state and federal decision-makers evaluate existing and prospective drug laws and policies.

Reliance on the criminal justice system to reduce use, abuse, and sale of illegal drugs has had little effect on the supply and demand of these drugs in the United States. It has, however, led to sky-rocketing rates of incarceration of women.

Nationally, there are now more than eight times as many women incarcerated in state and federal prisons and local jails as there were in 1980, increasing in number from 12,300 in 1980 to 182,271 by 2002....

The underlying circumstances contributing to the dramatic increase in women's incarceration for drug offenses, including patterns of women's drug use, barriers to seeking and obtaining treatment, lack of effective and appropriate treatment for women, the nature of women's involvement in the drug trade, and patterns of prosecution and sentencing of women for drug offenses, have yet to be thoroughly examined and addressed by researchers or policy makers. Available research in these areas indicates a strong connection between women's experiences of violence and economic and social pressures, and their drug use or involvement in the drug trade.

March 17, 2005 in Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

Tuesday, March 15, 2005

What sentence should former Gov Rowland get under Booker?

This past December (post-Blakely, but pre-Booker), former Connecticut Governor John Rowland pleaded guilty to one count of conspiracy to steal honest service, a felony that carries a sentence of up to five years in prison (background here).  According to this AP story, Rowland is due to be sentenced this Friday by Connecticut US District Court Judge Peter Dorsey and "more than 200 letters [have been sent] to the sentencing judge from both angry state residents and prominent supporters of the governor, including the president of Yale University."

The many letters sent to Judge Dorsey spotlights that Rowland's sentencing will serve as a fascinating case-study in the new world of Booker sentencing.  Unless the terms have changed, Rowland's federal plea deal (previously discussed here and here) calculates the guideline sentencing range of 15-21 months of imprisonment.  The plea agreement also contemplates that Rowland will argue for a downward departure from the guideline range of 15-21 months on various grounds related to his minor role in the offense and his professional and community contributions.

It will be interesting to see if Judge Dorsey chooses to follow the guidelines, or to depart, or to vary based on the 3553(a) sentencing factors.  I can think of good arguments to support all the possibilities.  Readers are encouraged to use the comments to indicate what they think the sentence should be (or to predict what they think it will be) given our new Booker realities.

March 15, 2005 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (9) | TrackBack

Wednesday, March 02, 2005

Notable 5th Circuit Booker dodge and criminal history decision

A few weeks ago I noted here the surprising Booker silence from the Fifth Circuit.  Every other circuit with the exception of the DC Circuit has now addressed various Booker issues — many in grand ways; but now, a full seven weeks after Booker, we still have not gotten any Booker wisdom from a circuit that typically resolves nearly 70 sentencing appeals each month.  I cannot help but speculate that significant internal debates within the Fifth Circuit is keeping it from addressing Booker issues in the many appeals that are now stacking up.

Notably, the Fifth Circuit did resolve a sentencing appeal yesterday in US v. Montgomery, No. 03-11131 (5th Cir. Mar. 1, 2005)(available here), but did so in a way that allowed it to avoid addressing Booker issues.  The defendant in Montgomery contested a sentencing enhancement based on being classified as an armed career criminal, which in turn was based on the district court's judgment that Montgomery had three prior "violent felonies."  The Fifth Circuit remanded for resentencing by concluding that Montgomery's "prior conviction under a Texas retaliation statute does not qualify as a violent felony."  And, explained the Fifth Circuit, "[i]n light of this conclusion, we need not address the impact of the Supreme Court's recent Booker decision on Appellant's alternative argument that the sentence enhancement violated his Sixth Amendment rights."

Among the interesting aspects of this Montgomery disposition is that the Supreme Court is likely soon to decide the Shepard case, which will address in another context how to interpret and apply Armed Career Criminal Act's sentencing enhancements.  Thus, delaying a decision in Montgomery might have been justified (though not essential) in light of an expected Supreme Court decision.  The same cannot be said for delaying a decision on Booker issues.

March 2, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Thursday, February 17, 2005

Departures, variances and defense advocacy

In emphasizing how important it is for district judges to fully explain and document their post-Booker sentencing decisions, as discussed here, many Commissioners and witnesses at the USSC hearings (basics here) expressed the view that judges at sentencing must now (1) calculate an applicable guideline range, and then (2) make traditional departure determinations under the guidelines, and then (3) decide whether to follow or vary from the (now advisory) guidelines based on the 3553(a) factors. 

I think district judges should carefully follow this protocol not only because it is suggested by Booker (and mandated by the Second Circuit in Crosby), but also because only if judges follow this protocol will we get a precise and complete understanding of Booker's impact on federal sentencing practices.  Moreover, this methodology also should help keep some teeth in 5K1.1 substantial assistance departures (which, as noted here, is a big concern for the Justice Department).

And yet, I suspect it is going to be dangerously easy for courts and counsel to collapse the departure and variance considerations (steps 2 and 3 above), especially in cases where a traditional departure is plausible but unlikely.  I fear particularly in cases of "discouraged" considerations such as prior good works or family circumstances, judges and counsel will not be inclined to go through the hard doctrinal work of deciding whether a case is sufficiently exceptional to justify a departure and will principally focus on variance arguments based on the 3553(a) factors.

For defense counsel, I think there will be significant strategic issues in decided whether and how to develop departure and variance arguments.  Though it might seem sensible to always first pitch for a departure, and then seek a variance as a fall-back position, counsel might risk losing credibility or placing emphasis on less helpful factors by putting greater focus on a departure claim than a variance claim.  Also, it will be interesting to see, in the development of reasonableness review, whether departures get as much (or possibly more) appellate scrutiny as variances.

While defense counsel contemplate these matters in particular cases, they can can and should draw on collected wisdom of two decades of mitigating claims developed in the guideline system.  Helpfully, attorney Michael Levine has long been assembling this wisdom in a regularly updated mega-resource that, pre-Booker, had been entitled "88 Easy Departures."  Michael was kind enough to send my way his post-Booker update of this document which is now, tellingly, entitled "108 Easy Mitigating Factors."  This documents, which can be downloaded below, provides advise to defense counsel and effectively marshalls in a topic fashion "cases granting, affirming, or suggesting mitigating factors."

Download levine_108_easy_mitigating_factors_feb_1.doc

February 17, 2005 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (11) | TrackBack

Tuesday, January 18, 2005

On the lighter side, sort of

You would not think a case about drug sentencing and a defendant with AIDS would make for light reading, but the Eleventh Circuit's decision last week in US v. Barfield, No. 03-14077 (11th Cir. Jan. 14, 2005), has a certain gallows humor quality.  I am thankful to a reader for bringing it to my attention.

In Barfield, the defendant in December 1994 pled guilty to a crack cocaine offense and received, after the benefit of a downward departure because of her cooperation and HIV status, a sentence of 30 months' imprisonment.  Then, in January 1995, the defendant managed to stay execution of her sentence by claiming (falsely) that she had only six months to live.  Eight years later, a spurned boyfriend turned her in, and Barfield then asserted based on a variety of legal theories that she could not, after all this time, be incarcerated.  As detailed in the 11th Circuit's Barfield decision, though the defendant may deserve an award for chutzpah, she did not prevail in her efforts to stay out of prison.

Now I am wondering if defendant Barfield might now try to seek resentencing based on Booker.

January 18, 2005 in Blakely Commentary and News, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

The critical, and still confusing, "prior conviction" exception

I have written in many (pre-Booker) posts about the critical importance — and critical uncertainty — of the "prior conviction" exception to Apprendi/Blakely.  For background, here are just a few of my major prior posts on this subject:

Importantly, though the Booker merits majority did not speak directly to the issue, it did continue to articulate the "prior conviction" exception when stating (and reaffirming) the Apprendi/Blakely rule.  Moreover, as detailed here, a case still pending before the Supreme Court, Shepard v. US, could allow the Court to address the "prior conviction" exception directly.  But, after so many issues went unaddressed (or were poorly addressed) in Booker, I am not holding my breath that Shepard will shine a beacon of light to clarify the darkness that now surrounds the "prior conviction" exception.

Though the advisory guidelines remedy in Booker might suggest this issue is now less important, everyone should appreciate that (1) state courts continue to divide wildly on the application of the "prior conviction" exception when defendants make Blakely claims, and (2) it would be very difficult for Congress to build a new sentencing system without clarification of the viability and scope of this exception.  (Recall that Justice Thomas in Apprendi suggested that he regreted his vote in the 5-4 decision that created this exception.)

Moreover, as documented in part by the DC Circuit's decision dated today in US v. Miller, 2005 U.S. App. LEXIS 862 (DC Cir. Jan. 18, 2005), these criminal history issues can get remarkably intricate even in seemingly simple settings.  (Notably, though Miller was released and is dated Jan. 18, 2005, the DC Circuit's decision affirming the defendant's guideline sentence only discusses Booker as a "pending" case.  The Miller ruling, then, is not just a day late and a Booker short, it is a full week late and a Booker short.)

January 18, 2005 in Blakely Commentary and News, Blakely in Appellate Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Monday, January 10, 2005

News from the Nutmeg State

After a day of travel, I am back on east coast time and trying to get ready for what might be a big week.  But while we wait for Booker and Fanfan, there are interesting capital and noncapital sentencing stories from Connecticut.

In the capital arena, the planned execution of serial killer Michael Ross continues to garner much attention in Connecticut.  How Appealing has assembled some of yesterday's stories here, and this morning there are stories on the costs the case has generated, "on the street" reactions, and USA Today has drawn on the case in this article discussing broader death penalty developments.

In the noncapital arena, this New York Times article provides an interesting analysis of former Connecticut Governor John Rowland's federal plea deal (previously discussed here and here).  Many passages from the article seem to undermine the notion that the federal sentencing guidelines make offense conduct, rather than discretionary decisions by prosecutors or sentencing judges, the key determinate of sentences imposed:

Lawyers said the timing [of his plea deal] increased Mr. Rowland's chance of being sentenced by a senior Federal District Court judge [Peter Dorsey]who has been challenged by prosecutors in the past for leniency....  Judge Dorsey "would appear to be a great draw for Rowland," said Eugene Riccio, a Bridgeport lawyer who represents individuals in the investigation....

Lawyers familiar with the case said the end result had more to do with federal sentencing guidelines ... than with the sum of his transgressions.

They said prosecutors wanted Mr. Rowland to admit to taking gifts worth at least $70,000, to bolster their case that the 15- to 21-month recommended sentence he faced as a public official under the guidelines was warranted. As long as that figure was reached, the lawyers said, prosecutors were willing to give Mr. Rowland leeway on which gifts to acknowledge as improper. At the same time, Mr. Dow sought to keep the figure below $120,000; even a tad more would have added three months to the recommended prison time.

In the end, the $107,000 compromise paved the way for the recommendation that Mr. Rowland receive a 15- to 21-month sentence, which Judge Dorsey can accept or increase or decrease.

January 10, 2005 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, January 06, 2005

Pitched battle over federal sentencing of elderly offender

Today's Knoxville News Sentinel has this remarkable article about a long-running battle over the sentencing of a severely ill 84-year-old federal gun offender.  Here's the lead:

A veteran judge on Wednesday refused to imprison an 84-year-old man, defying federal sentencing guidelines, the Justice Department and an appellate court mandate.

The judge is Senior US District Court Judge James H. Jarvis, and the article reports that Judge Jarvis said he could not, in good conscience, imprison the defendant:

"I think it'd be cruel and inhuman treatment to put this man in the general prison population in the state he's in now," Jarvis said. "We've got to do our best to do justice."  The judge did, however, order Bostic to be under house arrest and electronically monitored for a year.

January 6, 2005 in Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, January 02, 2005

Sunday's stimulating sentencing stories

After reading about all the bowl games in the sports pages — how 'bout that Rose Bowl — there are a number of thought-provoking articles in today's newspapers:

January 2, 2005 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack

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