Sentencing Law and Policy

Trying out the Droid

I got a new toy today: the new Droid phone. And this post is a test of Droid-blogging.

Blogger being prosecuted for threatening judges gets transfer and restricted bail

This new article from the National Law Journal, which is headlined "Blogger Charged With Threatening 7th Circuit Judges Gets Home Confinement," reports on the latest developments in a notable federal criminal case:

U.S. District Judge Donald Walter has ordered the release of Internet blogger and Web talk show host Hal Turner, who was arrested in June for declaring in an online posting that three Chicago-based federal judges "deserve to be killed."

Turner is on his way back to his home state of New Jersey after Walter decided in a Wednesday conference call meeting with lawyers that Turner could be released under "strict conditions," including a prohibition on his speaking to the media, home confinement and electronic monitoring, said Michael Oroczo, who represents Turner. He said his client was currently in the U.S. Marshal Service's custody in Oklahoma City as he's being transferred to New Jersey....

The release order by Walter, a U.S. district judge from Western Louisiana who was assigned the case to avoid potential bias, runs counter to a decision made last month by Chicago-based U.S. Magistrate Judge Martin Ashman, who found that Turner should remain in custody until his trial. It's not clear if a bond amount was set for the release.

Turner was charged by the U.S. Attorney's Office in Chicago with threatening to assault and murder three judges in retaliation for a June 2 decision they made. In a Web posting the same day, Turner called the 7th Circuit ruling, which declined to overturn laws banning handguns in Chicago and a nearby suburb, an "outrage" and said that the judges behind the decision "deserve to be killed." The judges who decided the case were Chief Judge Frank Easterbrook, Judge Richard Posner and Judge William Bauer. In a second posting on June 3, Turner provided the names, work addresses, phone numbers and photos of the judges.

Walter last week also allowed Turner's case to be transferred to the Eastern District of New York, granting his request for a change of venue from Chicago to Brooklyn. Walter granted the venue change partly because he agreed the defendant would have a harder time getting a fair trial in Chicago where there was significant media coverage of the 2005 murder of U.S. District Judge Joan Lefkow's mother and husband.

Turner said in his postings that federal judges in Chicago hadn't gotten "the hint" from those killings. "Memories are not so short as to erase the event from the public mind," Walter wrote in a Sept. 8 decision. "On balance, it is this court's opinion that granting the motion would best serve, not only justice, but the appearance of justice.

A great new blog for resources on criminal informants, aka snitches

CrimProf Alexandra Natapoff has done ground-breaking work on criminal informants in articles and a book, and I am pleased to learn that she has now brought her expertise to the webvia a new blog called Snitching Blog.   An introductory post here provides details of the project:

Snitching Blog is about a part of our criminal system that most people know little or nothing about: criminal informants, or snitches.  At any given moment, thousands of informants are trying to work off their own criminal liability by giving information to the government. These informants may be in court, in prison, on the street, or in the workplace.  Police and prosecutors often rely heavily on information obtained from snitches — especially in drug enforcement but also in white collar crime, organized crime, and terrorism investigations.  In fact, it is impossible to fully understand the U.S. legal system without understanding snitching.  Nevertheless, there is very little public information available about this important public policy.  That's where Snitching Blog comes in.

This blog does a bunch of things.  It discusses how snitching works — on paper and in reality. It provides resources to individuals, lawyers, law enforcment, and legislators — check out the links on the left.  It covers current events and news stories. And it lets you share your own experiences by posting a "Testimonial" — click on the link at the right.

Looks like I have another regular must-read to add to my blog browsing, especially since so many big sentencing cases have a snitching element.  For example, Sasha has this recent post on the Troy Davis case, titled "Troy Davis Gets a Hearing — Recantation Redux."

The re-leaunch of CrimProf blog

I am pleased to be able to report on an exciting new development in the climinal law blogosphere. Here is the news (with links) from an e-mail I received today from Professor Kevin Cole:

My CrimProf colleagues here at the University of San Diego School of Law — Larry lexander, Don Dripps, Yale Kamisar, Adam Kolber, and Jean Ramirez — and I are happy to report that we have re-launched the CrimProf blog.  You can find our introductory post here and can access the entire site at http://lawprofessors.typepad.com/crimprof_blog/.

We hope to continue the efforts of the blog’s previous editors to make this site a valuable resource for criminal law and procedure teachers.  Please send comments and content suggestions to crimprofblog@gmail.com.

If you would like to receive daily email updates about new postings on the blog, you can “subscribe” by going to the blog at http://lawprofessors.typepad.com/crimprof_blog/ and entering your email address in the column at the left under the heading “News Readers and Feeds."

The "new" CrimProf blog already has lots of new content, including links to lots of new criminal law papers appearing on SSRN.  I made a regular habit of checking the "old" CrimProf blog, and now I suspect that site will be a daily must-read.

Who will get the first e-book into the law school classroom?

Thanks to this post by Jonathan Alder at Volokh, I see from this article that Case Western Reserve University will soon have students in certain classes getting their their textbooks via the Amazon Kindles.   This Wall Street Journal report explains that Amazon "on Wednesday plans to unveil a new version of its Kindle e-book reader with a larger screen and other features designed to appeal to periodical and academic textbook publishers."  Here's more:

Beginning this fall, some students at Case Western Reserve University in Cleveland will be given large-screen Kindles with textbooks for chemistry, computer science and a freshman seminar already installed, said Lev Gonick, the school's chief information officer. The university plans to compare the experiences of students who get the Kindles and those who use traditional textbooks, he said.

The new device will also feature a more fully functional Web browser, he said.  The Kindle's current model, which debuted in February, includes a Web browser that is classified as "experimental."  Five other universities are involved in the Kindle project, according to people briefed on the matter. They are Pace, Princeton, Reed, Darden School at the University of Virginia, and Arizona State.

Over at Law School Innovation, we have been talking about Kindle and other e-readers in the law school classroom for almost two years already (see 2007 posts here and here and here).  From the get go, I have never doubt that e-books would eventually take over the law-school classroom.  Because of the extraordinary costs and inconveniences of traditional law school casebooks, the issue in my view has always been, not whether e-books become common, but rather just when and exactly how they will enter the law school classroom.

Cross-posted at LSI

UPDATE:  The new Kindle, known as the Kindle DX, can be seen in the picture above, and this report on its launch highlights why e-books are the future and also has a great quote from my former OSU College of Law colleague (who is now a tech rock-star):

Bezos reminded the assembled journalists at this week's launch event that the Amazon Kindle will soon be able to offer "every book ever printed, in any language, all available in less than 60 seconds."

"Eighteen months ago, we launched Kindle, and at the time we had 90,000 books available for Kindle. (We had) 230,000 books just three months ago when we launched Kindle 2," Bezos said. "We've added another 45,000 books in just the last three months. We're actually accelerating."

"The display is 2 and a half times the size of the Kindle 2," added Bezos, adding that with the "Built in PDF reader, you never have to pan, you never have to zoom, you never have to scroll. You just read."   Also, rather niftily (just as with Apple's iPhone), "You just rotate the device and you go to widescreen mode."...

"Textbooks shine with this display," Bezos continued, telling the assembled crowd in NYC that he was "excited to announce today that we've reached an agreement with three leading textbook publishers."

As for students, Bezos confirmed that they already have five universities involved in piloting the Kindle DX this autumn, welcoming in Barbara Snyder, President of Case Western Reserve to give her own opinions on the new electronic textbook.

"We believe this will revolutionize learning," said Snyder. "As a research university, we're bound to test our hypothesis -- will the Kindle change how students work?  We're going to look at these questions.  To all the reporters here, can you imagine what it would be like to craft your story using paper, a typewriter, white out?"

Too much of a good thing at the new site The Legal Workshop?

I am pleased to report on a new scholarly on-line project (which I hope will evolve to better achieve its laudatory goals).  The project is the Legal Workshop, and here is its basic mission statement:

The Legal Workshop is a website providing a single online forum for cutting-edge legal scholarship from the top law journals in the country....

The Legal Workshop features “op-ed” versions of the articles published by the member journals. These concise and lively pieces are written for a generalist audience, combining the best elements of print and online publication.

Each Legal Workshop Editorial undergoes the same rigorous editorial treatment and quality screening as the journals’ print content, but readers are able to offer comments and esteemed academics have the option of submitting response pieces, which are checked for citations and substance.

By aggregating the work of multiple law reviews, The Legal Workshop is able to provide frequently updated content. New article-based content is posted every Monday and most Wednesdays and Fridays. The Legal Workshop provides a one-stop forum for readers wishing to stay abreast of contemporary legal scholarship.

Larry Solum has a terrific early analysis here, which includes these three spot-on reactions:

First, the basic idea of creating an outlet for short-form legal scholarship is to be applauded....

Second, I am a bit skeptical of the ambitious claims in the press release about reaching "the general public."...

Third, I am also skeptical about potential for the format of "The Legal Workshop" to produce pieces that will directly influence practitioners -- lawyers and judges, who are most interested in descriptive doctrinal scholarship.

The fact that there is currently only this single criminal law piece now posted on the site, and that it runs nearly 4000 words and proposes a radical change to modern habeas law, confirms all that Larry has to say about this new project.  It is great to have a short-form version of this 70-page habeas article from the Duke Law Review, but I doubt that either the general public or practitioners are going to find the short-form version much more useful and accessible than the long form version. 

Plus, on a very practical level, I will be much less likely to cite the short-form version of the article inbecause its cite form -- which much include this cumbersome URL: http://legalworkshop.org/2009/03/18/habeas-corpus-and-state-sentencing-reform-a-story-of-unintended-consequences -- is much longer than the cite form for the full article.

Cross-posted at LSI here

Off-line while participating in Stanford Law Review symposium about media

Ironically, I may be off-line and unable to comment on media, justice and the law for a little while because I am participating the Stanford Law Review's symposium on "Media, Justice, and the Law."  The details of the event are here and here.  All of the papers written for the event are really interesting; I am looking forward to an exciting event and I think a webcast should be available here.

In praise of How Appealing (and a call for more criminal justice blogs in 2009)

I suspect that all fans of the legal blogosphere already know that they must make regular stops at How Appealing to keep up with all the legal news that's worth following.  But Howard Bashman's most recent two posts, both which hit on sentencing topics I likely cannot give their due, reminds me of how essentially he remains to my ability to keep up with the sentencing news of note.  Here are the two posts, with titles drawn from notable major newspaper headlines:

• "Long Held in Capital Case, Man Sues to Get a Lawyer"

• "Court case: Hide a hamster, go to the slammer?"

In addition to wanting to again praise Howard for all he does to make my life easier, I also wanted to use this post as an opportunity to encourage any and every sentencing fans and/or potential bloggers to consider starting a new criminal justice blog in 2009. 

Though blogging my now seem old hat, the fact remains that many smaller criminal justice issues would be well-served by a focused blog.  Recent entrants to this part of the blogosphere — sites like Pardon Power and Sex Crimes — have been so valuable and successful not only because of the insights and energies of their authors, but also because there are so many criminal justice topics that can and should be covered by smart folks from so many different perspectives.

I would like to thank the ABA, Justices and judges, sentencing commissions, criminals and their lawyers....

Of course, it is an honor just to be nominated.  But, since nominations were not ever made public, it is more exciting to win again a place on the ABA's list of the best legal blogs.  This poston the ABA's blog, titled "50 New Sites Make 2nd Annual ABA Journal Blawg 100," provides the basic back story:

On our second annual list of the best legal blogs, just half of last year’s honorees make a return appearance.

What explains the high turnover? For one thing, every day new legal blogs are started, and some existing blogs—including some that appeared on last year’s list—cease to be updated regularly. Plus, some of the upstart blogs are just plain better than some that made the cut last year.

This year, blogs that aren’t updated at least weekly—no matter how interesting—often didn’t make the grade. We put a premium on blogs that broke news in 2008, or were among the first to provide trenchant analysis of one or more breaking legal news stories.

All kidding aside, I am grateful and honored that the folks at ABA put this blog on its Top 100 list in the crime category for the second year in a row.  The full list of the ABA Journal Blawg 100 can be accessed at this link, where one can also find links to some fun blog feature stories.

The law blogosphere continues to grow...

with the appearance of the Marquette University Law School faculty blog.  I will be following this blog regularly, in part because I expect Professor Michael O’Hear to post with some regularity on federal criminal justice matters.  In fact, he already has this post on the recent Carter case, titled "A Galling Case in the Seventh Circuit," which ends with these potent insights:

Those who practice criminal law in the federal courts will find much to interest them in Carter (for instance, the discussion of the use of comparative statistics in litigating sentences) but what strikes me most deeply about the case is the way it illustrates the crazy disproportionality of the federal criminal justice system. We live in a odd world when two years in prison is regarded as an extraordinary act of mercy for a first-time, nonviolent offender whose crime was largely technical in nature.  It is odder still to realize that the sentencing guidelines called for more than seven years in this case–especially considering that the average sentence for violent felonies in this country is only about six years (which also happens to be about what Mr. Carter–the real crook in the story–received).  Why the Department of Justice felt it would be a good use of taxpayer resources to appeal Carter’s sentence (and, if successful, to imprison her for seven years) is a mystery–this seems to me a case of carrying an attractive abstract principle (sentences should be imposed in a uniform, objective manner) to absurd lengths.

Those interested in law professor blogging also will want to check out this post, titled "Teaching, Scholarship, Service … and Blogging? Decanal Encouragement of Law Faculty Blogging."

Reflections on the (criminal justice) blawgosphere

Here are three very interesting and thought-provoking posts about the history and state of the blawgosphere from the "practical blawgosphere":

• From Simple Justice, Are Law Professors Afraid of the Practical Blawgosphere?

• From CrimLaw, A Brief History of Blogging: Is It a LawProf's World?

• from Simple Justice, Is This What They Think of Criminal Defense Lawyers?

These posts all suggest, directly or indirectly, that there is a big divide between the blogs and blogging habits of law professors and practicing lawyers.  Of course, there is a huge divide between the day-to-day work and responsibilities of law professors and practicing lawyers, but I love the blawgosphere in part because it has always seemed by a terrific cyber-meeting-space for the academy and the bar (as well as the bench and law students and non-lawyers).

Indeed, I have generally believed that most (though not all) of the law professors who blog are much more interested in the day-to-day work of practicing lawyers than most of their academic colleagues.  Similarly, I have generally assumed that most (though not all) of the practicing lawyers who blog are much more interested in academic perspectives and debates over broad legal ideas than most of their practicing colleagues.  In other words, I generally views most law bloggers, whether profs of practitioners, as birds of a feather. 

But the posts above have led me to seriously question my assumptions about the blawgosphere (though as my posts title spotlights, my focus and hands-on knowledge is only within and among criminal justice blogs).  Do readers generally see relative harmony or a big divide between bloggers in the academy and in the bar?

Tangled up in cites

Over at Race to the Bottom, Jay Brown has this very kind and cool post, headlined "Law Blogs v. Rockers: CItations in Court Opinions."  Riffing off this list from the New York Times, which details court citation counts from renown rock-n-rollers, the post puts me in terrific rock-poet company. 

Inspired by the comparison, and one of my all-time favorite albums, here is a law-blog-cite version of one of my all-time favorite songs:

Early one mornin' the sun was shinin', I was surfin' the web

Wond'ring if courts had changed at all, if their cites were still dead

--

Some folks they said all the posts together, sure was gonna be rough

They never did like cyber-scholarship, using new tech wasn't snooty enough

--

And I kept bloggin' all the sentencing issues, cases fallin' in my sights

Keeping up with the Justices, lord knows I've not been always right,

Tangled up in cites.

Will Our Courts game include sentencing (and have a Wii version)?

As detailed in this Reuters article, the first woman to serve on the US Supreme Court has now "unveiled a videogame project ... to teach children how courts work, saying she wanted to counter partisan criticism that judges are 'godless' activists."  Here are more details:

Sandra Day O'Connor, 78, who served as U.S. Supreme Court justice from 1981 until her retirement in 2006, said she never imagined she would be asked to address a conference about digital gaming.  She said she got involved with developing the project called "Our Courts" out of concern over public ignorance about the judiciary and partisan attacks on what should be an independent institution....

She said the only way to preserve an independent judiciary was through public education, which she said was failing to produce citizens with enough knowledge about the three branches of U.S. government -- legislative, executive and judicial.  The Our Courts project will have two parts, O'Connor said. The first is on online interactive civics program designed to be used by children from 7th to 9th grades either to supplement existing courses or as a distinct unit in the curriculum....

She said the web site at http://www.ourcourts.org/ should have some initial material by this September and be fully operational with interactive elements a year later.

The second part of the project will be for young people to use in their free time, O'Connor said, noting that studies showed children spend around 40 hours a week using media, including computers, television, videogames or music. "If we can capture just a little bit of that time to get them thinking about government and civic engagement rather than playing shoot-'em-up video games, that's a huge step in the right direction," she said.

The Our Courts website already has a lot of useful links, and I am very excited that Justice O'Connor see the opportunity and the value of innovative ways to share her wisdom and ensure the judiciary gets the respect it deserved.  I look forward to watching this project develop (and will hope lots of sentencing content appears on-line, despite Justice O'Connor vocal opposition to the modern Apprendi-Blakely jurisprudence).  Over at TalkLeft, T Chris has this fitting reaction to this news:

After kids learn how to steal cars by playing Grand Theft Auto IV, they can learn what happens after a car theft arrest by playing Our Courts.

On Judge Nancy Gertner as blogger

Thanks to How Appealing, I discovered this Boston Globe article discussing federal judge Nancy Gertner's recent blogging Slate's Convictions blog.  (Of course, regular readers know that Judge Gertner's many provocative and thoughtful sentencing opinions have long made great blog fodder.)   Here are a few interesting snippets from the Globe article:

Gertner appears to be the only judge in Massachusetts who shares her unfiltered legal views in the blogosphere, according to officials in the federal and state judiciary. A favorite of the state's defense bar and plaintiffs' attorneys, and the bête noire of some in law enforcement, she is also the only jurist among nearly two dozen contributors to what Slate calls its "blogging destination for smart legal conversation and commentary."...

For the past nine years, she has also taught two courses on sentencing, one a semester, at Yale Law School, her alma mater, where she shares her insights in her characteristically chatty manner.  So blogging, she says, is not a radical departure. "I saw this as the new media version of what I've always been doing," the former criminal defense lawyer said recently at her office at the John Joseph Moakley Courthouse. "If this is where people are getting information, this is where we have to be."

Not everyone agrees.  Bruce M. Selya, a senior judge on the Court of Appeals for the First Circuit, which reviews cases from Gertner's court, said he respects her and is sure she has thought out the potential ramifications of blogging.  But he would never do it.  "I think it would be a great strain on me to be careful not to say anything that could come back and make it seem like I prejudged a matter when it actually came before me," said Selya....

Gertner says judges are too often silent on issues they should publicly address, such as how federal sentencing guidelines have led to what she and other jurists consider unreasonably long prison terms for nonviolent drug offenders.  Judges must also do a better job explaining why the judicial code forbids them from discussing cases, she said, because their silence after controversial rulings is misread as arrogance or cowardice.

Slate starts impressive (and confusing) new blog called "Convictions"

I got the news today that Slate.com has launched a group legal blog, called Convictions. According this this post at Volokh by Orin Kerr, the blog boasts this amazing group of contributors:

Ben Wittes, David Barron, Deb Pearlstein, Adam White, Dawn Johnson, Doug Kmiec, Diane Amann, Judge Nancy Gertner, Jack Balkin, Kenji Yoshino, Marty Lederman, Orin Kerr, Patrick Keefe, Eric Posner, Richard Ford, Tim Wu, Viet Dinh, Walter Dellinger, Dahlia Lithwick, Emily Bazelon, Phil Carter, and David Feige.

Though the content is already amazing, the blog's format and plans are quite confusing.  Though I have seen two reports that the Convictions blog launched today, there are posts going back a week.  In addition, what is right now the top post seems to just be "borrowed" from Jack Balkin's home blog, rather than "fresh" materials.  And I cannot find any official list of contributors or any explanation of why Slate.com — which is already kind of bloggy — decided to start a group legal blog.

I have long been hoping that the "technological infrastructure" of blogs would improve and advance with new entrants, but Convictions seems to be a step back technologically.  Still, this blog is clearly to be a must-read because of its participants.  And, if the Slate folks ever decided to do a follow-up blog called Sentences, I hope I will be asked to join in the fun.

Where the bugged water cooler must reside

A couple of years ago, at a law blogger conference at Harvard Law School where folks debated the scholarly potential of blogs, Kate Litvak derisively described law professors blogs as a "bugged water cooler."  As suggested by my paper for this conference, I have never thought much of this analogy; but this great-looking new group blog by law professors, because it is titled  "The Faculty Lounge," makes me now think Litvak was perhaps on to something.

The Faculty Lounge, which is sub-titled "Conversations about law, culture, and academia," has a great group of contributors.  Also, its first four category archives all involve topics dear to my heart: Blogs and Blogging, Constitutional Law, Criminal Law, Law School Hiring.  I am already looking forward to frequently visiting TFL.

My bloggy interview at LexBlog discussing start of OSJCL Amici

In this post at LexBlog, Rob La Gatta has put up an interview we did last week discussing, inter alia, how my blogging here (and the thoughtful comments of so many readers) inspired me to help create OSJCL Amici: Views from the Field.  Here is this part of our Q and A:

Rob La Gatta: How did the idea for Views From The Field first develop?

Doug Berman: I’ve been blogging on my Sentencing Law & Policy Blog for a while, and have been inspired by the number of thoughtful practitioners who will say things in comments and through e-mails that give me really distinctive views on the federal sentencing world.  Being involved with the Ohio State Journal of Criminal Law, I thought we ought to have an online supplement, one that avowedly focused on getting the perspective of thoughtful practitioners (rather than just providing opportunities for law professors to write smaller versions of longer ideas). That was the model.

I lucked out that there was a very capable student who had just joined the journal, who indicated an interest in getting involved in some new projects. He helped us run with it and put together a lot of the infrastructure. I’ve [also] been lucky — through my work on federal sentencing — to get to know a number of federal judges....I sent out an e-mail to a bunch of district judges and said "Hey, we’d like you to write for this." Fortunately, out of the 10 I wrote to, 4 not only wrote back, but actually wrote...and wrote really interesting stuff that, in a sense, comprised our first issue.

A shout-out to great blog work getting noticed

Scott Henson has started 2008 on fire at Grits for Breakfast, and some of the powers-that-be are taking note.  Specificaly, on Friday in this post, titled "Court of Criminal Appeals Workload Declining under Judge Sharon Keller," Grits documented a caseload decline in Texas's highest criminal court and suggested that "CCA judges just don't work as hard as they used to."  Within 48 hours, Grits had received and posted this thoughtful response from a judge on the court.  This passage provide a flavor of the overall response:

The total number of petitions for discretionary review that were filed with the CCA in fiscal 2007 was 1,661.  The court has no control over that number.  Both defendants and the State have a statutory right to file such petitions.  The Court granted 149 petitions–that is, it agreed to hear 149 new discretionary cases in 2007.  By comparison, the total number of cases filed in the U.S. Supreme Court during its 2006 Term was 8,857, and it heard 78 civil and criminal cases.

Beyond my interest in the substantive specifics of this debate, it is great to see a serious reform advocate and a prominent judge engaging on these important topics directly in the blogosphere. 

Further, as the links below document, Scott is off to a flying start in 2008 covering a number of other important criminal issues dear to my heart:

• Partisan labels provide little guide for identifying criminal justice reformers
• Federal corruption investigation includes Harris County Jail contracts among targets
• Clergy seeking to respond to violent crime should look to restorative justice
• More on what clergy can do to respond to and reduce violent crime

A little weekend campaigning

This post is a weekend pitch asking readers to go over to the ABA's Blawg 100 list and vote here for this blog as among your favorite criminal justice blogs.  This is my first campaign post, precipitated by the fact that I have now fallen to third in the voting behind a "blawg" that only does about one or two posts each week.

Thanks!

UPDATE:  As of Sunday morning, I've jumped to first place.  Thanks everyone, and keep stuffing this virtual ballot box on my behalf.

An intriguing new blog focused on judicial independence

l I received an e-mail from folks at the Justice at Stake Campaign announcing an interesting looking new blog.  Here part of the pitch I received:

A new legal blog, Gavel Grab, [will] focus on attacks on the independence and impartiality of the courts — in judicial elections, in legislatures, and on the airwaves.  We launched this week with posts on the Supreme Court’s Guantanamo cases (by Slate’s Dahlia Lithwick), growing calls for a Wisconsin high court justice to recuse herself from a campaign supporter’s case, and a look at how the Terri Schiavo episode continues to ripple through the Presidential primaries.  And each day our staff provides links to interesting legal stories and blog posts.

As regular readers know well, sentencing decisions are often the focal point for judicial attacks.  I'll be reading this new blog regularly.