Sunday, September 19, 2004

Striking Three Strikes?

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

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

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

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

Wednesday, September 01, 2004

Sex offender sentencing

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

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

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

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

Tuesday, August 31, 2004

Judge Presnell Speaks again!

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

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

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

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

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

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

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

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

Saturday, August 21, 2004

The next big Blakely issue: the prior conviction exception

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

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

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

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

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

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

Sunday, July 25, 2004

In other SCOTUS news...

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

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

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

Saturday, July 10, 2004

The story behind the story

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

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

Thursday, July 08, 2004

And now from the business desk...

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

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

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

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

Saturday, May 29, 2004

50 Years After Brown

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


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

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

Thursday, May 27, 2004

USSC Recidivism Reports

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

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

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

Recidivism and the "First Offender"

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

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