Sentencing Law and Policy

SCOTUS summary reversal of Sixth Circuit capital ineffective assistance ruling

As detailed in this SCOTUSblog post, the Supreme Court issued "no new cert. grants this morning ... [but there was a] summary disposition in the case Bobby v. Van Hook(09-144), which was granted and reversed."  The per curiam ruling in Van Hook can be accessed at this link, and here is how it starts:

The Court of Appeals for the Sixth Circuit granted habeas relief to Robert Van Hook on the ground that he did not receive effective assistance of counsel during the sentencing phase of his capital trial.  Because we think it clear that Van Hook’s attorneys met the constitutional minimum of competence under the correct standard, we grant the petition and reverse.

Justice Alito has an interesting one-paragraph concurrence to the ruling in Van Hook.  Here it is:

I join the Court’s per curiam opinion but emphasize my understanding that the opinion in no way suggests that the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003) (2003 Guidelines or ABA Guidelines) have special relevance in determining whether an attorney’s performance meets the standard required by the Sixth Amendment.  The ABA is a venerable organization with a history of service to the bar, but it is, after all, a private group with limited membership.  The views of the association’s members, not to mention the views of the members of the advisory committee that formulated the 2003 Guidelines, do not necessarily reflect the views of the American bar as a whole.  It is the responsibility of the courts to determine the nature of the work that a defense attorney must do in a capital case in order to meet the obligations imposed by the Constitution, and I see no reason why the ABA Guidelines should be given a privileged position in making that determination.

Fourth Circuit affirms reliance on uncharged conduct in sex offender sentencing

The Fourth Circuit today in US v. Grubbs, No. 07-5040 (4th Cir. Nov. 6, 2009) (available here), considers and rejects a number of procedural challenges to a federal sex offense sentence. Here is how the opinion begins:

Jimmie Vance Grubbs pled guilty to six counts of knowingly transporting someone under the age of eighteen in interstate commerce with intent to engage in a sexual activity, in violation of 18 U.S.C. § 2423(a), and six counts of traveling in interstate commerce for the purpose of engaging in a sexual act with a person under the age of eighteen, in violation of 18 U.S.C. § 2423(b).  The district court sentenced Grubbs to 240 months of imprisonment and a life term of supervised release.  On appeal, Grubbs does not contest his convictions, but contends the district court erred in imposing his sentence for three reasons: (1) the district court violated his Sixth Amendment rights by considering uncharged conduct when deciding an appropriate sentence; (2) the district court violated his Fifth Amendment rights by failing to require the Government to prove uncharged conduct by more than a preponderance of the evidence standard; and (3) the district court committed procedural errors in calculating his United States Sentencing Guidelines ("Guidelines") range.  For the reasons that follow, we disagree with Grubbs and affirm the judgment of the district court.

A potent pitch for potent jury power after Apprendi

This new article by Jenny Carroll available via SSRN, which is titled ""Of Rebels, Rogues and Roustabouts: The Jury's Second Coming," makes a robust pitch for giving juries even more power in a post-Apprendi world.  Here is the article's abstract:

This article examines the role of the jury in a post-Apprendi justice system.  Apprendi and its progeny recognize the vital role the jury plays in establishing the legitimacy of criminal convictions and sentences.  I contend that the Apprendi line confirms the jury’s responsibility, as representatives of the community, to give the law meaning in their determination of criminal culpability.  In this, Apprendi seeks to restore the original role of the jury as the bridge between the law itself and the community the law seeks to regulate.  This restoration is incomplete, and the jury’s true significance cannot be realized, without a recognition of the jury’s original right to judge law as well as fact.  Only through the revitalization of this power to nullify can the jury assume its intended role and provide community sanction to the designation of criminal culpability.  I conclude that democracy, and indeed the underlying goals of the criminal justice system, are best served when criminal processes allow forums for dissenting perspectives and juries are allowed to assess both the legal and factual bases of guilt.

"Let juries determine sex offenders’ fate"

The title of this post is the headline of this interesting new editorial in the Boston Globe.  Here is how it begins and ends:

Middlesex District Attorney Gerard Leone wants state lawmakers to give juries more say in whether some sex offenders should be civilly committed after completing their criminal sentences.  It’s a reasonable proposal that could help gain broader community acceptance of verdicts in an explosive area of the law.

In Massachusetts, convicted sex offenders who complete their sentences get to choose whether a judge or jury will determine if they suffer from a mental abnormality that makes them a likely risk to reoffend.  Such a finding results in confinement and, equally important, treatment in Bridgewater State Hospital.  Leone wants the Legislature to change the law so that either the defendant or the prosecutor can demand a jury trial, as is the case in other civil matters.  Leone notes that juries in Middlesex County since 1999 have been almost twice as likely as judges to commit offenders for periods that can last from one day to life.  But juries are not acting reflexively, either.  In a quarter of the cases decided by jury, the convicted sex offender was found to be no longer sexually dangerous.

This is a challenging area in which judges or juries are not asked to determine what, if anything, someone did, but what they are likely to do in the future.  Experts argue over whether convicted sex criminals are more likely to reoffend than other criminals. But the law already recognizes the uniquely compulsive nature of sex crimes by allowing for civil commitments in limited cases.  It is only reasonable, therefore, to expect that the state should be on equal footing with the convicted sex offender when deciding how those cases should be heard initially.  That’s how it works already when convicted sex offenders get to appeal their commitment after one year — either the offender or the prosecutor can demand a jury trial....

The cases are often awash in conflicting medical testimony and legal fine points.  Witness that of David Flavell, a 40-year-old homeless man accused of trying to rape a woman last month in a bathroom stall at Massachusetts General Hospital. Flavell’s record is littered with sexual offenses ranging from indecent exposure and lewdness to an attempt to rape a woman outside an American Legion Post in Methuen.  Twice prosecutors had tried to convince judges to commit Flavell.  Twice they failed, based on conflicting medical reports and Flavell’s apparent willingness to engage in treatment.  Would a jury have seen it the same way?  It’s not certain.  But it is certain that the public would be more understanding of the decision to free him had it been rendered by a group of fellow citizens.

This is no small matter.  Community acceptance of verdicts is a pillar of the legal system, as any judge would attest.  And jurors have proven time and again that they are up to the task of fact-finding when deciding difficult cases.

As regular readers may know, I am a fan of greater jury involvement in the operation of various aspects of the criminal justice system.  I am intrigued to learn that juries already can and do play a role in Massachusetts' sex offenders civil commitment scheme, and I am pleased to see this editorial make an effective case for this kind of community involvement in tough criminal justice decisions.

"White Collar Innocence: Irrelevant in the High Stakes Risk Game"

The title of this post is the title of an important and timely new piece by Professor Ellen Podgor.  Here is the abstract:

When one thinks of “wrongful convictions and reliability in the criminal justice process” one often thinks of street crime convictions of defendants later proven innocent through DNA or other scientific evidence.  But this Essay presents a new dimension to this issue— the white collar crime context. Three stories are considered here: Arthur Andersen LLP, Jamie Olis, and Jeffrey Skilling — all who proceeded to trial after criminal charges were brought against them; and contrasting these three with KPMG, Gene Foster, and Andrew Fastow, all who secured plea agreements or deferred prosecution agreements with reduced sentences and finite results.  The concern here is that innocence or guilt does not always frame the judicial process in white collar cases. 

The risk of trial becomes so great that in order to minimize the possible consequences, innocence becomes an irrelevancy.  Although the plea bargain to trial differential existed for many years in crimes outside the white collar crime context, the high sentences now being given to individuals and entities charged with white collar crimes place these crimes in comparable stead with street crimes.  This gives pause to whether the next phase of wrongful convictions might move beyond street crimes into the white collar world.

I am eager to hear reactions to her suggestions that "the next phase of wrongful convictions might move beyond street crimes into the white collar world."

Effective review of the decline of the criminal jury trial in Virginia and elsewhere

The News Virginian has this interesting and effective article, headlined "Number of juried trials slumps both in Virginia, nationwide," that spotlights a trend that many shrewd criminal justice observers have known for some time. Here are excerpts from the piece:

Jury trials remain a favorite of American film and literature but not of the criminal-justice system, where their use long has been in decline here and across the country. The trend has accelerated in recent decades as tougher sentencing laws leave more defendants unwilling to assert a right found in Magna Carta and the U.S. Constitution and that is recognized by all states.

In the year that ended June 30, 2008, little more than 1 percent of felony convictions in Virginia courts were at the hands of jurors. Nearly 90 percent were the result of guilty pleas and the rest in trials before judges.

Guilty pleas help keep courts running efficiently, but as relatively fewer people perform one of the most serious of civic duties, experts believe public confidence in the criminal-justice system, if not justice itself, might suffer.

Josh Bowers, a professor of law at the University of Virginia, said, “We’re already at what would seem to be almost a bare minimum of jury trials for a criminal-justice system that recognizes a jury trial right.” It did not happen overnight.

Thirty years ago, Albert Alschuler, a law professor at the University of Chicago, complained in Time magazine that “here we have an elaborate jury trial system and only 10 percent of the accused get to use it.” “That’s like solving America’s transportation problems by giving 10 percent Cadillacs and making the rest go barefoot,” he said. Reached by telephone recently, Alschuler said “things are much worse” these days.

“Trials and, especially, sentencing proceedings have become ever more complicated, and legislatures have made many additions to the prosecutors’ ‘tool kit,’” he said. The jury trial rate has been cut in half across the country — even more so in Virginia — since Alschuler’s complaint of 1978....

According to the Virginia Criminal Sentencing Commission, in the year that ended June 30, 2008, juries were responsible for just 1.3 percent of 27,195 felony convictions in Virginia — the lowest percentage yet recorded by the commission. Nationally, of the more than 1 million felony convictions in 2004, 95 percent were resolved by guilty pleas, with the remaining 5 percent in judge or jury trials, according to the U.S. Bureau of Justice Statistics.

Bowers, Alschuler and others believe that tough sentencing laws passed by Congress and the states in the 1980s and 1990s in response to rising crime — and predictions of rising crime — are a factor contributing to the national decline in jury trials....

Virginia is one of only a handful of states where juries sentence in addition to determining guilt. Also, since 1994, juries here have been told about a defendant’s prior criminal record when deciding on a sentence. Unlike judges, juries are not informed of the sentencing guidelines and must sentence within the minimum and maximum terms that remain in the state code.

So in cases where the state law calls for a minimum sentence of five years, five years is the best a defendant can hope to get from a jury.  If the defendant pleads guilty, however, a judge complying with the guideline can suspend four years of the five-year term.  Also, because the judge, defendant and the prosecution must all agree to waive a jury trial, by threatening to demand a jury, prosecutors are in a better position to negotiate, or force guilty pleas.

In the first full fiscal year after the 1995 truth-in-sentencing reforms, jury convictions in Virginia were cut in half — from 4 percent of all felonies to 2 percent. The number has risen and fallen since, to the most recent level of 1.3 percent. And since 1995, jury sentences tend to be far stiffer than those from judges.

In a 2004 study of jury sentencing in Virginia and two other states, two professors at the Vanderbilt University School of Law confidentially surveyed judges, prosecutors and defense attorneys. They found that jury sentencing is supported overwhelmingly by Virginia prosecutors — and among some defense attorneys — because they believe it deters jury trials....

John Douglass, a former federal prosecutor and dean of the University of Richmond School of Law, said, “It’s ironic — jury sentencing in Virginia is suppressing the right to jury trial.” “The notion that your opportunity for a jury trial should come at the cost of a significantly higher sentence is troubling,” he said. “It seems odd that a jury can be used as a threat, rather than a right, or an opportunity.”...

Bowers said the trend toward fewer juries was going on before tougher modern sentencing and the use of guidelines.  Long ago, he said, when there were far fewer procedural protections for defendants, there were far more jury trials. “It wasn’t uncommon for a court to hear 20 felony jury trials in a day in the 18th-century court.”...

The full jury trial of today, however, is expensive and time-consuming.  Douglass said heavy caseloads make it difficult to try many cases.  “So prosecutors and defense counsel are looking for an alternative, and it leads to plea bargaining,” he said.

Effective coverage of SCOTUS criminal forfeiture case argued today

Over at The Volokh Conspiracy in this post, Ilya Somin has lots of effective coverage of Alvarez v. Smith, a criminal-justice-related forfeiture case heard by the Supreme Court. Here is part of his effective summary of the argument as it went off today:

Somewhat surprisingly, many of the justices seem to think that the case should be dismissed on technical mootness grounds. If this were really a problem, one wonders why the Court agreed to hear the case in the first place, focusing on the property rights issue in its official question presented.  Still, a dismissal on procedural grounds would be far less dangerous than a decision overruling the Seventh Circuit decision, which I feared might happen.  The oral argument transcript also suggests that many of the justices – both liberal and conservative – are skeptical of the government’s position on the merits.  They were clearly not pleased with the government lawyer’s admission that his position implies that the police could hold valuable property for a year or longer without any kind of hearing.  At the same time, some of the justices seem to believe that the Seventh Circuit ruling would hamper the police unduly.

The transcript from oral argument in Alvarez v. Smith (08-351) is available here.

Should there special doctrines concerning "inflammatory" pre-sentencing publicity?

Among the fascinating aspects of the SCOTUS cert grant in the Skilling case today (basics here) is the pretrial publicity issue raised in the defendant's cert petition. Specifically, here is the second question presented in Skilling's cert petition:

When a presumption of jury prejudice arises because of the widespread community impact of the defendant’s alleged conduct and massive, inflammatory pretrial publicity, whether the government may rebut the presumption of prejudice, and, if so, whether the government must prove beyond a reasonable doubt that no juror was actually prejudiced.

Given that the first question presented in the Skilling cert petition relates to a fraud issue that is already before SCOTUS in two other cases, I cannot help but speculate that the Justices are somewhat interested in this separate claim related to "massive, inflammatory pretrial publicity."  And though I am not fully up-to-speed on the jurisprudence concerning "inflammatory pretrial publicity," I cannot help but speculate (and hope?) that the Skilling case might indirectly prompt lawyers and jurists to give some consideration to whether "massive, inflammatory" pre-sentencing publicity could be the basis for some kind of due process claim in some extreme cases.

Recent related post:

• SCOTUS to review fraud convictions of Jeff Skilling, former Enron executive

DOJ reviewing some DNA testing waivers in federal plea agreements

This new article in today's Washington Post, which is headlined "Justice Dept. to Review Bush Policy on DNA Test Waivers," spotlights an interesting issues concerning the use of rights waivers in some federal plea agreements. Here are some of the basics:

Attorney General Eric H. Holder Jr. has ordered a review of a little-known Bush administration policy requiring some defendants to waive their right to DNA testing even though that right is guaranteed in a landmark federal law, officials said.

The practice of using DNA waivers began several years ago as a response to the Innocence Protection Act of 2004, which allowed federal inmates to seek post-conviction DNA tests to prove their innocence.  More than 240 wrongly convicted people have been exonerated by such tests, including 17 on death row.

The waivers are filed only in guilty pleas and bar defendants from ever requesting DNA testing, even if new evidence emerges. Prosecutors who use them, including some of the nation's most prominent U.S. attorneys, say people who have admitted guilt should not be able to file frivolous petitions for testing.  They say the wave of DNA exonerations has little impact in federal court because all those found to be innocent were state prisoners, and the waivers apply only to federal charges. DNA evidence is used far more frequently in state courts.

But DNA experts say that's about to change because more sophisticated testing will soon bring biological evidence into federal courtrooms for a wider variety of crimes.  Defense lawyers who have worked on DNA appeals strongly oppose the waivers, saying that innocent people sometimes plead guilty -- mainly to get lighter sentences -- and that denying them the ability to prove their innocence violates a fundamental right.  One quarter of the 243 people exonerated by DNA had falsely confessed to crimes they didn't commit, and 16 of them pleaded guilty....

Interviews and documents show that language allowing for DNA waivers was inserted into the law at the behest of Republican senators and that the Bush Justice Department lobbied against the measure even with the waiver provision.  Soon after the law passed with bipartisan support, the department sent a secret memo to the nation's 94 U.S. attorney's offices urging them to use the waivers, several federal officials familiar with the memo said.

Holder, a former U.S. attorney in the District, has called for expanded DNA testing in federal courts. After inquiries by The Washington Post, his spokesman, Matthew Miller, said Holder "has ordered that the department review its DNA waiver policy."...  Oregon prosecutor Joshua Marquis, who sits on the executive committee of the National District Attorneys Association, said he's never heard of DNA waivers in state court and that the organization opposes the concept. "I think it's important to always leave the door open for actual proof of innocence," he said.

In federal court, the waivers are part of the standard plea agreement filed by prosecutors in the District, Alexandria and Manhattan, which are among the nation's highest-profile U.S. attorney's offices.  Waivers are used in some or all pleas by at least 16 other offices, including such large ones as Chicago and Los Angeles and such smaller ones as Arkansas and West Virginia. Prosecutors in Maryland rarely use the waivers. "It saves us a lot of spurious litigation down the pike," said G.F. Peterman III, acting U.S. attorney in the Middle District of Georgia. "All they have to do is say I'm not guilty, go to trial and they've waived nothing. It's their decision."

Defense attorneys disagree, saying prosecutors give defendants the choice of signing the waiver or not getting the benefits of a plea agreement, which usually include a lighter sentence. "It's a horrendous provision, and I can never get them to take it out," said Christopher Amolsch, a lawyer whose client recently waived DNA testing rights in a cigarette smuggling case in U.S. District Court in Alexandria. Other lawyers said they don't usually fight the waivers, considering it a losing battle....

At least 24 U.S. attorneys don't use the waivers. It could not be determined how many inmates have been affected by the policy, because the remaining 50 U.S. attorney's offices did not respond to inquiries or declined to comment.  It is also unclear how many federal prisoners have filed petitions seeking post-conviction DNA testing since 2004.  Justice Department officials said the number is small but have also said they expect more petitions over time.

Though this Postarticle is focused on waiver of the right to DNA testing, I am hopeful that the Justice Department is examining critically all the disparate and disturbing use of broad waivers in federal plea agreements.  I am glad to see the Post focusing on one part of this issue, but I hope the inquiry into waivers of rights in plea deals extend beyond DNA concerns.

As this article highlights, though the Justice Department and federal prosecutors are often raising concerns about disparate sentencing practices, the reality of federal criminal practice is that plea bargaining practices and plea agreement terms are often wildly disparate from district to district.  The different and disparate fast-track sentencing programs (discussed in the most recent FSR issue) are the most tangible example of prosecutor-produced disparity, but use of different types of waivers is also profound and pervasive, too. 

The most pervasive and pernicious plea agreement waiver involves waivers of the right to appeal.  Though statistics are hard to come by, I suspect that some (if not most or even all) federal districts include appeal waiver in some (if not most or even all) plea agreement.  As I explained in long ago posts here and here right after Booker, I think a strong argument could and should be made that appeal waivers are void as against public policy as enshrined in the Sentencing Reform Act and Booker.  But, to my knowledge, only a very few federal judges and courts refuse to endorse and uphold appeal waivers.

Personal liability for Texas parole official for ex-convict denying ex con required hearing

Among lots of great new stuff at the always great Grits for Breakfast, Scott notes this remarkable new story from the Austin Statesman headlined "Jury says state officials violated parolees right to hearing." Here are the basics:

An Austin federal jury on Thursday found that two top state parole officials violated the constitutional rights of an ex-convict who was denied a required hearing for 576 days.  Jurors also held Board of Pardon and Paroles Chairman Rissie Owens liable for $21,250 in damages and awarded Curtis Ray Graham attorney's fees that are expected to top $100,000.

The verdict came after an unusually contentious trial presided over by U.S. District Judge Sam Sparks, who in August had declared a mistrial in the case and who earlier this week fined an assistant attorney general for disregarding his warnings about making prejudicial comments in front of jurors.

Graham sued the parole board after he was classified as a sex offender even though he was never convicted of a sex crime.  He was arrested on aggravated rape charges in the 1980s, and parole officials used that as a basis for classifying him as a sex offender five years after he had been released on parole.  Graham alleged he was never allowed to review evidence against him before the parole board made its decision in December 2007, despite several federal court orders requiring such hearings.

It is rare for ex-convicts in Texas to win such legal challenges in state or federal courts. It is almost unheard of for parole officials to be held liable for official omissions. State parole director Stuart Jenkins, a second defendant in the high-profile case, was not held liable.

At a time when several similar lawsuits are pending against state parole officials, attorneys have argued that a win by Graham could force new hearings in perhaps thousands of parole cases in which offenders were classified as sex offenders without proper hearings.  Such a finding can bring more stringent limitations on their freedom.  "This should send a message to the parole board that their arrogance not to change their policy won't work any longer, that constitutional rights matter in how they do their business," said William Habern, a noted parole-law attorney from Riverside who represents Graham.

Perhaps needless to say, I am interested to hear what Supremacy Claus and some other frequent commentors think about this case.

Two notable (little?) Seventh Circuit sentencing opinions

The Seventh Circuit today handed down two published sentencing opinions today, both of which seem to deal with relatively little issues but seem notable nonetheless. Here are the basics from the start of each opinion's first paragraph:

US v. Poetz, No. 09-2359 (7th Cir. Oct. 9, 2009) (available here):

Suzanne Poetz pleaded guilty to theft of government property in violation of 18 U.S.C. § 641. Her advisory sentencing guidelines range was 24 to 30 months, and the district court sentenced her to imprisonment of a year and a day. Poetz argues on appeal that her sentence is unreasonable because the judge did not adequately consider her medical problems or the impact of incarceration on her family, which in her view warranted a sentence of home confinement.

US v. Anderson, No. 09-1958 (7th Cir. Oct. 9, 2009) (available here):

Only one thing links the three cases that we have consolidated for argument and disposition here: the question whether the district court correctly understood our decision in United States v. Head, 552 F.3d 640 (2009), as precluding its authority to impose, as a condition of supervised release, placement in a halfway house.  Ronald Maceri, Kevin Anderson, and Rick Harre each violated the conditions of his supervised release, and each asked that he be given a shorter term of re-imprisonment to be followed by placement in a halfway house as one condition of his new supervised release.  Understanding Head to preclude that disposition, the district court instead imposed a new term of imprisonment with a recommendation to the Bureau of Prisons (“BOP”) that it place each man in a halfway house during the last six months of his sentence.  All three now argue that this violated 18 U.S.C. § 3553(a), because it resulted in a term of imprisonment longer than necessary.  We must decide whether Head requires this result.

For Friday fun, folks can try to guess the results.  Or just click through to the opinion if the only games of great interest to you today, as is the case for me, are the pair of ALDS games taking place in a few hours.

"The Prisoners’ (Plea Bargain) Dilemma"

The title of this post is the title of this important article in Summer 2009 issue of The Journal of Legal Analysis. Here is the abstract, where I have placed in bold the important conceptual contribution of this piece by Professors Oren Bar-Gill and Omri Ben-Shahar:

How can a prosecutor, who has only limited resources, credibly threaten so many defendants with costly and risky trials and extract plea bargains involving harsh sentences?  Had defendants refused to settle, many of them would not have been charged or would have escaped with lenient sanctions. But such collective stonewalling requires coordination among defendants, which is difficult if not impossible to attain.  Moreover, the prosecutor, by strategically timing and targeting her plea offers, can create conflicts of interest among defendants, frustrating any attempt at coordination.  The substantial bargaining power of the resource-constrained prosecutor is therefore the product of the collective action problem that plagues defendants.  This conclusion suggests that, despite the common view to the contrary, the institution of plea bargains may not improve the well-being of defendants.  Absent the plea bargain option, many defendants would not have been charged in the first place.  Thus, we can no longer count on the fact that plea bargains are entered voluntarily to argue that they are desirable for all parties involved.

"The American Inquisition: Sentencing after the Federal Guidelines"

The title of this post is the title of this draft article I just noticed on SSRN from Professor Ricardo Bascuas. Here is the abstract:

Despite the series of important Supreme Court sentencing decisions of the past ten years, federal sentencing remains fundamentally inquisitorial.  Although the guidelines are no longer legally binding, they continue to taint the entire federal criminal justice system by needlessly discouraging defendants from exercising their trial right and pressuring them to confess.  Their continued vitality is largely due to Justice Breyer’s persistent view, first as one of the architects of the original guidelines and later as a Supreme Court justice, that sentencing is an administrative problem requiring an administrative solution.  The heart of this solution is that the facts of each case and the appropriate punishment are to be determined not through the parties’ competing presentations, but through a probation officer’s purportedly 'neutral' investigation.  This method of resolving factual issues, together with the guidelines’ harsh penalties for invoking the right to trial and lavish rewards for incriminating others, result in a system that is not only unfair but also intrinsically incompatible with our adversarial system of justice.

Existing scholarship on the Federal Sentencing Guidelines has not examined how the guidelines purposefully discourage exercise of the right to trial and pressure defendants to admit to every allegation against them (and others).  The central role that the United States Probation Office plays has also not been thoroughly examined. Far from undertaking merely ministerial and innocuous tasks, as most of the existing scholarship assumes, probation officers are tasked by the guidelines with the most critical role at sentencing.  Often, they exert far greater influence on case outcomes than defense lawyers and prosecutors. The article concludes that the present sentencing process is unconstitutional but can be easily reformed by restoring control over each case to the parties.

Split Ohio Supreme Court upholds criminal punishment for DUI arrestee refusing chemical test

As detailed in this official press release, this morning the Supreme Court of Ohio "upheld as constitutional a state law that imposes 10 additional days of mandatory jail time on a driver with a prior DUI conviction if that person refuses to take a chemical test after being arrested for a subsequent DUI violation."  The majority opinion in the 4-3 ruling in State v. Hoover, No. 2009-Ohio-4993 (Ohio Sept. 30, 2009) (available here), starts this way:

In this case, we consider the constitutionality of R.C. 4511.19(A)(2), which requires the imposition of criminal penalties upon certain persons who refuse to consent to chemical testing upon being arrested for operating a motor vehicle while under the influence of alcohol or a drug of abuse (“DUI”).  We hold that R.C. 4511.19(A)(2) does not violate the Fourth Amendment to the United States Constitution or Section 14, Article I of the Ohio Constitution.

The dissenting opinion starts this way:

The majority’s interpretation of R.C. 4511.19(A)(2) signals a fork in the road.  R.C. 4511.19(A)(2) veers from the traditional administrative punishment for refusal to consent to a chemical test upon an arrest for DUI and goes down a separate path, beyond the regulation of licensing; for certain DUI arrestees, R.C. 4511.19(A)(2) criminalizes the refusal to take a chemical test.  Since imposing a criminal penalty for refusing to consent infringes on a suspect’s rights under Section 14, Article I of the Ohio Constitution and the Fourth Amendment to the United States Constitution, I dissent.

SCOTUS cert grants: Guns, sex offenders, and sentencing factors ... oh my!

Reviewing (thanks to SCOTUSblog) the details of the ten cert grants announced by the Supreme Court this morning (basics here and here), I cannot help but feel a bit like a legal Dorothy heading through a jurisprudence thicket on the ways to learn what the Wizards of SCOTUS will have to say on some of the hottest legal topics for sentencing fans.  Specifically, these there grants as described at SCOTUSblog are huge news for anyone involved in modern sentencing law and policy issues:

Docket: 08-1301
Title: Carr v. United States
Issue: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.

Docket: 08-1521
Title: McDonald, et al.  v. City of Chicago
Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

Docket: 08-1569
Title: United States v. O’Brien and Burgess
Issue:Whether the mandatory minimum sentence enhancement under 18 U.S.C. § 924(c)(1) to a 30-year minimum when the firearm is a machinegun is an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or instead a sentencing factor that may be found by a judge by the preponderance of the evidence.

Of course, the Second Amendment incorporation issue is the biggest story with the biggest potential jurisprudential impact.  But I think the outcome of that case is almost a given, as I would be shocked to see the Justices decide Heller only applies to the federal government.  The other cases seem more in play, and how the Justices approach and decide these cases could make them both sleepers for sentencing fans to watch closely.

I will have a lot more to say about both Carr and McDonald in subsequent posts, and I am already looking forward to the discussions and debate both cases are likely to generate in the months ahead.

An international perspective on the right to remain silent

This article from New Zealand, which is headlined "Crime victims slam right to silence," provides an interesting international perspective on what is often viewed as a cherished American constitutional right.  Here are some highlights:

Crime victims want an end to defendants "hiding" behind the right to silence in court but civil rights experts and defence lawyers argue this would be a serious erosion of human rights.

Sensible Sentencing Trust spokesman Garth McVicar outlined a proposal to ditch defendants' right to silence when he headed up a high-profile conference at Taupo at the weekend. He said at present the law sheltered people accused of serious crimes including murder. "It doesn't mean defendants will be forced to talk it just means if they don't, juries can take it into account."

There were two murder trials involving Waikato people last week where defendants did not take the stand: Joshua Woodcock who was found guilty of the manslaughter of his baby daughter, and the three men found guilty of murdering Waharoa man Ollie Gage in a drive-by shooting.

The Sensible Sentencing Trust's lawyer, former ACT MP Stephen Franks, said New Zealand should follow Britain's lead in allowing police to advise defendants that their silence could be used against them, and in permitting juries to "draw a sensible inference". "There are occasionally valid reasons for invoking the right to silence but it has become part of the ritual game-playing by justice system insiders."

Police-rape complainant Louise Nicholas, who lost her own case but sparked a damning inquiry into police conduct, said the right to silence should be abolished. "Nine times out of 10, the defendant exercises his right to silence, but the victim has to take the stand and have her entire life raked over and her character put under the spotlight," she said.

But the call to remove defendants' right to silence was criticised by two senior Waikato defence lawyers.  Paul Mabey QC said a law change forcing defendants to take the stand would erode a fundamental legal right that the prosecution had to prove the guilt of the defendant. "The right to silence is fundamental and preserved in the Bill of Rights. It's consistent with the presumption of innocence, and no person must prove their innocence," Mr Mabey said.  Defendants "should not be forced to give evidence".... Philip Morgan QC described any push to end the right to silence as "just nonsense, really"....

Ms Collins told the conference: "Law-abiding New Zealanders are sick and tired of seeing their rights eroded and, in many cases, ignored in favour of the rights of criminals. This Government is not standing for that."

Shrewd readers likely know that the US Supreme Court had an interesting discussion of the sentencing aspects of "right to silence" issues in its 1999 ruling in Mitchell v. United States (available here).

Crooked state juve judges indicted now on federal racketeering charges

This new piece from the Legal Intelligencer, which is headlined "Pa. Judges in Corruption Scandal Indicted for Racketeering," provides the latest news on the remarkable case involving two allegedly crooked state juve judges:

A federal grand jury has handed down a 48-count indictment against two former Luzerne County, Pa., judges, alleging the men engaged in racketeering and related charges, the U.S. Attorney's Office for the Middle District of Pennsylvania announced Wednesday.

The indictment, a copy of which was not available at press time Wednesday, comes about 5 1/2 weeks after a federal judge rejected the conditional plea agreements of Michael T. Conahan and Mark A. Ciavarella Jr. and nearly two weeks after the men withdrew their conditional guilty pleas in the matter.

The indictment charges Conahan and Ciavarella with fraud, money laundering, extortion, bribery and federal tax violations while alleging they received "millions of dollars in illegal payments," according to Dennis C. Pfannenschmidt, U.S. Attorney for the Middle District of Pennsylvania. Each charge is related to the judges' ties to two juvenile detention facilities: PA Child Care and Western PA Child Care.

The indictment also seeks forfeiture of more than $2.8 million -- an amount the government alleges were proceeds from the judges' criminal activity. That amount is slightly higher than the $2.6 million the judges originally admitted to accepting in their conditional plea agreements....

The indictment is the latest twist in a story that has seen several since late summer. Conahan and Ciavarella made a joint filing Aug. 20, petitioning U.S. District Judge Edwin M. Kosik to reinstate their agreed-upon sentence of 87 months in prison because neither could be found at fault for his post-plea hearing actions. Kosik rejected that Aug. 24. That same day, the former judges withdrew their guilty pleas and formally entered pleas of not guilty to the charges.

Kosik threw out the plea agreements July 31, citing, in part, Conahan and Ciavarella's conduct following the announcement they had agreed to plead guilty to federal fraud charges and their refusal to accept responsibility for the crimes they had committed. Ciavarella's public comments were self-serving, he said, and Conahan was being obstructionist....

While the government's press release made no mention of any charges beyond those related to the juvenile detention center, several sources said they expected the government to come back at some point with a superseding indictment seeking additional charges against Conahan and Ciavarella.

While the federal government's case against the former judges centers on their roles in taking money from attorney Robert Powell, the owner, and Robert Mericle, the builder, of a juvenile detention facility and the judges' alleged abuse of the rights of juveniles sentenced to the facility, sources close to the investigation and inside Luzerne County say the scam some in the media have labeled "kids for cash" was just the tip of the iceberg and only the most blatant example of the corruption allegedly overseen by the two judges.

Fascinating district court refusal to accept a (coercive?) plea deal

A helpful reader sent me copy of a fascinating five-page district court ruling from earlier this week in US v. Taliaferro, No. 08-cr-7-1-SM (D.N.H. Sept 1, 2009) (available for download below). The start and end of the order highlights why the full order is a must-read and why I look forward to hearing from commentors about the ruling:

In this case, the government has effectively removed the court from the sentencing process, and dictated the sentence to be imposed. Exercising its considerable charging discretion in the context of applicable statutory mandatory minimum sentences, the government extended an offer that the defendant could hardly refuse: be subjected to a mandatory minimum sentence of 20 years in prison, or accept a binding plea agreement providing for a sentence of 15 years (based upon a drug charge carrying a mandatory minimum of 10 years, with the government declining to file a notice of prior conviction under 21 U.S.C. § 851, which would trigger the mandatory sentence of at least 20 years)....

Based upon this record, ... the court would likely impose a sentence in the 8 to 10 year range, but for the applicable mandatory minimum, and certainly not more than 12 years. Therein lies the rub — if the court rejects the plea agreement without knowing whether the government will, in turn, withdraw from the plea agreement, imposition of a mandatory sentence even more severe than 15 years could result. That version of blind man’s bluff is inconsistent with fundamental notions of justice and fairness, and the court chooses not to play.

The Department of Justice is headed by a new Attorney General who, consistently with the position of the new Administration, has publicly declared a change in policy and approach both to the powder-crack cocaine disparity and mandatory minimum sentences....

This district also has a new United States Attorney. Given the publicly announced intent by the Department to take a new look at sentencing policy, particularly with respect to mandatory minimums and crack/powder disparities, and given the inflexible and seemingly out-of-step approach embodied in the plea agreement and underlying exercise of charging discretion in this case, I have directed that a copy of the sentencing hearing transcript be prepared and forwarded, along with this order, the presentence investigation report, and defendant’s sentencing memorandum, to the United States Attorney for his personal review and determination of the government’s intent to withdraw or not withdraw from the plea agreement should the court impose a sentence substantially below that called for in the agreement....

Sentencing in this case will be rescheduled after the United States Attorney has had an opportunity to review and consider the issue and advises the court whether the government intends to withdraw from the plea agreement should a sentence substantially below 15 years be imposed.

Download USDC order re overreaching ausa

Split Seventh Circuit panel discusses importance of right to allocute

A split Seventh Circuit has an extended and interesting discussion of a defendant's right to allocute and lots of other notable issues in US v. Noel, No. 07-2468 (7th Cir. Sept. 4, 2009) (available here), which is yet another ugly federal child porn case.  The start of the dissenting opinion from Judge Williams provides a good summary of all the issues discussed in the Noel opinions:

I join my colleagues wholeheartedly in affirming Noel’s conviction and agree that any errors that may have occurred during trial were harmless due to the overwhelming evidence of his egregious conduct. I write separately, however, because I disagree with the panel’s conclusion that the denial of his right to allocute did not undermine the fairness of the judicial proceedings. Instead, I would remand for resentencing.  In light of Chief Judge Easterbrook’s concurrence, I also write to stress the importance of the presumption of prejudice afforded to a defendant who has been denied the opportunity to allocute, and to reiterate why the standard adopted in United States v. Luepke, 495 F.3d 443 (7th Cir. 2007), should remain the law of this circuit.

"Links to Sex Crimes to Follow Texas Suspects"

The title of this post is the headline of this interesting article in today's Wall Street Journal.  Here is how it begins:

Desirée Wood gave up hope that the man who raped her 20 years ago in Dallas would ever be caught and sentenced for the crime. Now, she says, she has reason to believe her attacker might see some form of justice, after all.

On Tuesday, a law takes effect in Texas that lets prosecutors and parole boards for the first time see DNA evidence that links a suspect to an old sexual assault, even though the statute of limitations has expired on the case and the suspect was never tried. Previously, there would be no record linking the suspect to the old crime.

Supporters of the law, the first of its kind in the country, hope it means that suspects in those old cases will face more-vigorous prosecutions and sterner parole boards should they find themselves in trouble with the law again. Opponents say the law could rob suspects of due-process rights.

And here is how the piece articulates the due process concerns with this new Texas law being articulated by others:

The law has its critics. The American Civil Liberties Union is concerned that it could punish suspects without the benefit of due process.  After objections from the ACLU, the proposed law was revised to allow only law-enforcement agencies to access DNA information linking someone to an old sexual assault.  The law also allows suspects to petition for removal of the information from their files if they believe it has been wrongly included.

The ACLU still has concerns about how the information could be used.  "This is something we will definitely be monitoring to make sure there aren't negative unintended consequences," said Rebecca Bernhardt, policy director of the Texas ACLU.