Sentencing Law and Policy

Atkins, juves and rules versus standards in the Eighth Amendment jurisprudence

The latest Sidebar feature from Adam Liptak in the New York Times has an interesting little discussion of rules and standards in the development of the Eighth Amendment jurisprudence.  The piece is headlined "Bright Lines Blur in Juvenile Sentencing," though it discusses post-Atkins litigation concerning mental retardation as much as it discusses juve sentencing.  Here are excerpts from the piece:

Here is an example of a rule, established by the Supreme Court in Roper v. Simmons in 2005: If you commit murder even hours before your 18th birthday, you cannot be put to death for your crime. The same killing a few hours later may be a capital offense. The court drew a bright-line rule at 18.

Here is an example of a standard, one proposed by Chief Justice John G. Roberts Jr. this month at Supreme Court arguments over whether juvenile offenders may be sentenced to life without the possibility of parole: Why not, the chief justice asked, interpret the Eighth Amendment’s ban on cruel and unusual punishment to require sentencing judges to consider the defendant’s age on a case-by-case basis?

“If you do have a case where it’s the 17-year-old who is one week shy of his 18th birthday and it is the most grievous crime spree you can imagine, you can determine that in that case life without parole may not be disproportionate,” Chief Justice Roberts said.  “If it’s a less grievous crime and there is, for example, a younger defendant involved, then in that case maybe it is disproportionate.”...

Proving age is pretty straightforward, and inmates who were under 18 when they committed the crimes that sent them to death row promptly had their sentences commuted after the court’s decision in Roper.  The Atkins decision, on the other hand, “has spawned extensive, intricate and bitterly contested litigation,” Carol S. Steiker and Jordan M. Steiker wrote in the DePaul Law Review last year....

A new study from three law professors at Cornell, one that resonates with potential lessons for juvenile life without parole, shows that states making case-by-case determinations have taken wildly different approaches.

The study, conducted by John H. Blume, Sheri Lynn Johnson and Christopher Seeds, tried to collect all determinations concerning retardation in capital cases in the six years after Atkins, finding 234.  That means about 7 percent of the nation’s roughly 3,200 death row inmates have claimed to be mentally retarded.

Nationwide, the claims have succeeded about 38 percent of the time. But state success rates vary widely.  North Carolina courts heard 21 Atkins claims and ruled in the inmate’s favor 17 times. Alabama courts heard 26 claims and ruled for the inmate 3 times.

Recall that the Supreme Court said an IQ of “approximately 70” should usually satisfy the first part of the test.  In Alabama, Mississippi and Texas, four inmates with IQ scores of 66 and 67 were held not to be retarded.  But in Pennsylvania, an inmate whose score ranged from 70 to 75 won an Atkins claim.  In California, a score of 84 did the trick.

Professor Johnson said there was a lesson here. “If you look at Atkins, which is supposed to be a categorical rule but has some play in the definitions, you get enormous pushback from the states that don’t want to do it,” she said.  Were the court to adopt Chief Justice Roberts’s approach for juvenile life without parole, she added, “the problem of Atkins’s application would be greatly magnified.”

"Do Defendants Get Enough Warning About a Guilty Plea's Consequences?"

The title of this post is the headline of this effective new article by Tony Mauro from The National Law Journal.  Here is the start of an effective piece that connects the Ballon Boy story to a pending Supreme Court case on this topic:

The attention-seeking parents of the Colorado "balloon boy" must not have had their thinking caps on last month when they told police their son was aboard a runaway hot air balloon.  But when their misadventure got them hauled into court, they suddenly smartened up.

On the advice of counsel, Richard and Mayumi Heene worked out a plea agreement that on Nov. 13 had them confess to different crimes.  The father is now a felon, but the mother pleaded guilty to a misdemeanor charge of false reporting.  Why?  Because she is a Japanese citizen, and if she had pleaded guilty to a felony, a collateral consequence would have been deportation.

The Heenes were lucky, but Jose Padilla, whose case went before the U.S. Supreme Court exactly one month earlier, was not. Padilla, a legal U.S. resident born in Honduras, pleaded guilty to an aggravated felony drug charge in Kentucky.  His lawyer told him the plea would not get him deported, because he had lived in the United States for decades.  The advice was flat wrong, Padilla faces deportation, and now he wants his plea set aside because of the bad advice he got.

Both cases, as different as they are, are casting new light on a legal issue that has been simmering for years: when, whether and how defendants should be informed about the collateral consequences of pleading or being found guilty.

"The Real Price of Trying KSM: Defense lawyers will inevitably create bad law"

The title of this post is the headline of this provocative commentary by David Feige at Slate.  Here is how it starts and ends:

Sometime in the next few months, a small group of experienced criminal-defense lawyers will be assigned to what is likely to be the case of a lifetime: the defense of admitted 9/11 mastermind Khalid Sheikh Mohammed, or, to those enamored of sinister acronyms, KSM.  Their work will not be easy, obviously.  No jury on this continent is going to acquit their client, the government is certain to insist on the death penalty, and KSM will almost certainly try to put the government on trial. S o what's a team of hardworking criminal defense attorneys to do?

Everything they can, which, in this case, will mean a lot of futile maneuvering that will generate a tragic flood of bad law, rendering the defense team's valiant service not merely unsuccessful but actually hostile to the interests of all their other clients....

In an idealized view, our judicial system is insulated from the ribald passions of politics.  In reality, those passions suffuse the criminal justice system, and no matter how compelling the case for suppressing evidence that would actually effect the trial might be, given the politics at play, there is no judge in the country who will seriously endanger the prosecution.  Instead, with the defense motions duly denied, the case will proceed to trial, and then (as no jury in the country is going to acquit KSM) to conviction and a series of appeals.  And that's where the ultimate effect of a vigorous defense of KSM gets really grim.

At each stage of the appellate process, a higher court will countenance the cowardly decisions made by the trial judge, ennobling them with the unfortunate force of precedent.  The judicial refusal to consider KSM's years of quasi-legal military detention as a violation of his right to a speedy trial will erode that already crippled constitutional concept.  The denial of the venue motion will raise the bar even higher for defendants looking to escape from damning pretrial publicity.  Ever deferential to the trial court, the U.S. Court of Appeals for the Second Circuit will affirm dozens of decisions that redact and restrict the disclosure of secret documents, prompting the government to be ever more expansive in invoking claims of national security and emboldening other judges to withhold critical evidence from future defendants.  Finally, the twisted logic required to disentangle KSM's initial torture from his subsequent "clean team" statements will provide a blueprint for the government, giving them the prize they've been after all this time — a legal way both to torture and to prosecute.

In the end, KSM will be convicted and America will declare the case a great victory for process, openness, and ordinary criminal procedure.  Bringing KSM to trial in New York will still be far better than any of the available alternatives.  But the toll his torture and imprisonment has already taken, and the price the bad law his defense will create will exact, will become part of the folly of our post-9/11 madness.

District judge imposes sentence after defendant ordered to take (and fails) lie-detector test

I just came across what strikes me as a very unusual federal sentencing story from the district court of Minnesota. I have bolded below the part of this local press article, which is headlined "Drug sales net prison term, and a lecture from federal judge," that really grabbed my attention:

U.S. District Judge James Rosenbaum was angry.  The target of his wrath, standing before him Tuesday, was Mark Andrew Goetz, 41, of Minneapolis, who had pleaded guilty to selling drugs to an undercover informant.

But it wasn't a run-of-the-mill dope case.  Goetz ran a business registered by the government to destroy outdated or unwanted pharmaceuticals.  But instead of destroying some of the drugs, he sold them on the street.

Goetz was in the middle of sentencing Nov. 5 when Rosenbaum asked him if he'd only sold drugs illegally twice, as the government had alleged in its indictment.  Goetz assured him those were the only times, but the judge didn't believe him, halted the proceedings and ordered Goetz to take a lie-detector test.

As it turned out, Goetz had lied and that visibly rankled Rosenbaum when the man was finally sentenced Tuesday in federal court in Minneapolis.  "Why are you lying to me?" the judge asked, referring to the earlier hearing.  Goetz replied that he'd been scared and thought he had to admit only to the two drug sales prosecutors had charged him with.  "You're playing games," Rosenbaum thundered. "You're a convicted criminal. It's a little late for that."

Goetz told him there were three other instances of illegal drug sales and that was it.  "I give you my word," he said. "How good is that?" the judge shot back.  "It was worthless the other day.  All I know for sure is you're a liar."

The judge sentenced Goetz to four years in prison, with supervised release for three years after that....

On July 28, Goetz agreed to a plea bargain.  In return for pleading guilty to distributing alprazolam and oxycodone, the government would drop the indictment's other count.

At sentencing, DeGree asked Rosenbaum for a "significant variance" from federal sentencing guidelines, which called for a sentence ranging from 57 to 71 months.  He noted that Goetz had started his own business "and ran (it) ethically for 16 years" and had lived an "exemplary" life until "some financial pressures" prompted him to sell drugs he had been entrusted to destroy....

Assistant U.S. Attorney Steve Schleicher opposed leniency, saying Goetz's money troubles boiled down to the fact that he "bought a house he couldn't afford."

I have never before heard of a judge stopping a sentencing hearing mid-stream and then ordering the defendant to take a lie-detector test!  I suppose it is also noteworthy that the district judge here, even after being "angry" at the defendant for his lies during the sentencing proceedings still imposed a below-guideline sentence.

Two notable new speeches from AG Eric Holder

This week on the DOJ website one can find the text of two speeches given by Attorney General Eric Holder that criminal justice and sentencing fans ought to check out.  The more recent one, which was given yesterday at the Financial Fraud Enforcement Task Force Press Conference, includes this notable tough talk:

I am pleased today to announce the launch of an interagency Financial Fraud Enforcement Task Force to combat financial crime. The Task Force is designed to strengthen our collective efforts -- in conjunction with our federal, state, and local partners -- to investigate and prosecute significant financial crimes relating to the current financial crisis; to recover ill-gotten gains; and to ensure just and effective punishment for those who perpetrate financial crimes....

In the tough economic environment we face today, one of this Administration’s most important missions is to draw upon all of the resources of the federal government to fight financial fraud in all of its forms. The Financial Fraud Enforcement Task Force will wage an aggressive, coordinated, and proactive effort to investigate and prosecute financial crimes. We will marshal the criminal and civil enforcement resources of the executive branch to investigate and prosecute financial fraud cases; recover stolen funds for victims; address discrimination in lending and financial markets; and enhance coordination and cooperation among federal, state, local, tribal, and territorial authorities responsible for investigating and prosecuting significant financial crimes and violations.

This Task Force’s mission is not just to hold accountable those who helped bring about the last financial meltdown, but to prevent another meltdown from happening. By punishing criminals for their actions, we will send a strong message to anyone looking to profit from the misfortune of others: We will investigate you, we will prosecute you, and we will incarcerate you. We will be relentless in our investigation of corporate and financial wrongdoing, and will not hesitate to bring charges, where appropriate, for criminal misconduct on the part of businesses and business executives.

Striking a very different tone in a very different context, AG Holder spoke Monday at the Brennan Center for Justice Legacy Awards Dinner.  His remarks there focused on the importance of effective defense counsel, and includes these notable comments:

A recent report commissioned by a joint resolution of the Michigan state legislature, for example, found counties in the state where defendants are charged and plead guilty to crimes that carry jail time without ever speaking to a lawyer.  In other parts of the country, according to another report, defendants may sit in jail cells for weeks, even months, waiting for a lawyer.  In one example, a 50-year-old woman charged with shoplifting spent 11 months in jail waiting for a lawyer to be appointed. Another woman charged with stealing $200 from a slot machine spent 8 months in jail before receiving a lawyer.

Even when counsel is appointed the appointment is oftentimes not meaningful, not truly effective.  The most recent comprehensive national study on the state of indigent defense documented a Missouri county where the public defenders office started to refuse cases after its lawyers began averaging 395 cases a year, causing the State Public Defender Director to acknowledge publicly that with caseloads that high, mistakes were being made....

For me, this is an issue of personal importance and national conscience.  As a judge, I saw firsthand how ill-equipped and unprepared defense counsel distort the entire system.

Ours is an adversarial system of justice — it requires lawyers on both sides who effectively represent their client’s interests, whether it’s the government or the accused.  When defense counsel are handicapped by lack of training, time, and resources — or when they’re just not there when they should be — we rightfully begin to doubt the process and we start to question the results.  We start to wonder: Is justice being done? Is justice being served?...

So, what is to be done?  In order to fulfill the promises of Gideon and Gault, we need the engagement of partners at the federal, state, and local levels, both within and outside of government.  Much good work has already gone into developing model standards for public defense systems, including the American Bar Association’s Ten Principles of a Public Defense Delivery System and the National Juvenile Defender Center’s Ten Core Principles for Providing Quality Delinquency Representation Through Public Defense Delivery Systems.  I am grateful for organizations like the Brennan Center that are on the front lines of this effort, whether it is through education or litigation.

I want to emphasize education because I believe that if more Americans knew more about how some of their fellow citizens experience the criminal justice system, they would be shocked and angered....

At the Department of Justice, I have convened an internal working group to help me identify ways we can do our part in this effort.  I’ve instructed them to leave no stone unturned in identifying potential funding sources, legislative initiatives, and other ways we can work with our state and local partners to establish effective public defense systems.  I have personally met with leaders from the indigent defense community to learn more about the problem and to get their advice and ideas on ways the Department can help.  And our Office of Justice Programs is currently planning a national indigent defense conference in February that will bring together public defenders from all 50 states.

There is much worthy of commentary in both of these speeches, but I am especially intrigued by AG Holder's assertion that he believes "that if more Americans knew more about how some of their fellow citizens experience the criminal justice system, they would be shocked and angered."  I share that belief on a few issues — e.g., the use of acquitted conduct to increase sentences, the pressure innocent defendants may feel to plea guilty for fear of a huge trial penalty, the imposition of long sentences for non-violent crimes by some first offenders.  But, with respect to repeat and violent offenders, I question whether many members of the public would truly be "shocked and angered" about how these defendants experience the criminal justice system.

Justice Scalia is coming to town...

to be the keynote speaker at The Ohio State University Moritz College of Law's event on "Originalism and the Jury".  This exciting event is hosted by the Ohio State Law Journal, and I really like the plug that participant Orin Kerr gives this "very cool symposium" in this post at The Volokh Conspiracy:

We’ll discuss the Sixth and Seventh Amendment jury trial rights, their original meanings, and to what extent courts should or are likely to match the modern jury trial right to what existed at the time of the framing.   The symposium is notable for the unusually diverse perspectives of the speakers: It features judges, professors, and practitioners in roughly equal numbers.  Justice Scalia will deliver the keynote address.

Along with Orin and Judge Nancy Gertner and Professor Stephanos Bibas, I am on the Sixth Amendment panel.  I will be presenting the (radical?) idea that the Framers likely would have wanted juries to play a role in modern habeas actions.  But, candidly, I am most excited to hear what all the other participants have to say about originalism and juries.  And, of course, I am also excited to hear what Justice Scalia has to say about these topics. 

I suspect I will be off-line most of Tuesday while this event is on-going, though perhaps I will find time late in the day to blog about aspects of the event.  I may also try to keep track of how many times Blakely gets mentioned throughout the symposium, though I am not sure if I should count all the times I mention the case in my own remarks. 

UPDATE:  As detailed in this AP report, Justice Scalia focused on originalism rather than on the jury in his keynote speech.  The entire event was remarkable, and I enjoyed all of the panel presentations tremendously.  I also had the honor of sharing a table with Justice Scalia at dinner and was able to confirm first-hand what a personable and engaging gentleman he is.

Obama Administration making key decisions on how to prosecute key terror suspects

As detailed in this new New York Times piece, Attorney General Eric Holder is expected this morning to announce formally a set of important decisions about how federal officials plan to prosecute key terror suspects.  Here are the specifics:

Khalid Shaikh Mohammed, the self-described mastermind of the terrorist attacks of Sept. 11, 2001, and four other men accused in the plot will be prosecuted in federal court in New York City, a federal law enforcement official said early on Friday.

But the administration will prosecute another set of high-profile detainees — Abd al-Rahim al-Nashiri, who is accused of planning the 2000 bombing of the U.S.S. Cole in Yemen, and four other detainees — at the military prison at Guantanamo Bay, Cuba before a military commission, the official said....

No detainee is being moved right away. Under a law Congress enacted earlier this year, lawmakers must be given 45 days notice before the executive branch moves any Guantanamo Bay detainee onto United States soil.

The decision marks a milestone in the administration’s efforts to close the Guantanamo prison, something that President Obama announced shortly after taking office he would do within a year, but which has proven difficult to achieve because of uncertainty about what to do with the detainees housed there.

I hope and suspect that the death penalty is a punishment in the mix for all of these folks.  Indeed, assuming these suspects are guilty of planning and helping to execute the 9/11 terror attacks, these individuals present a challenge for those who are avowed death penalty abolitionists to explain why capital punishment should not at least be an option for perpetrators of these kinds of horrific mass-killing crimes.

Ballon Boy parents cut plea deals providing for probation sentence

As detailed in this new report from CBS News, "Richard and Mayumi Heene will plead guilty Friday to charges stemming from last month's Balloon Boy hoax, the couple's lawyer said."  Here are more of the specifics:

Mayumi Heene will plead guilty to falsely reporting to authorities, a misdemeanor.  Richard Heene's charge — attempting to influence a public official — is a felony.  The deal stipulates a probation sentence for both charges. The deal avoids more serious felony charges against Mayumi Heene, such as perjury, that could result in her deportation to Japan.

"Upon reviewing the evidence, arguably, Mayumi could have possibly ended up being deported and Richard could have proceeded to trial and had a good chance at an acquittal," lawyer David Lane said.  "This, however, would have put the family at grave risk of seeing a loving, caring, compassionate wife and mother ripped from the family and deported. That was not an acceptable risk, thus these pleas."

CBS News legal analyst Andrew Cohen said the deal "makes sense for both sides, especially given the cost of a trial and the risk that the mother involved here would have been deported and separated from her children. So I’m not surprised at all that this ends with a whimper and not a bang."  Cohen notes the judge doesn't have to accept the plea deal and could alter its terms.

Any and all wanna-be sentencing judges among readers are welcomed and encouraged to indicate ad explain whether and why they would accept or reject these plea deals.

Texas conviction of FLDS member resulting in fascinating jury sentencing experience

As detailed in this local report, which is headlined "Testimony in Sentencing for FLDS Member," the recent conviction in Texas of an FLDS member on sex charges has now led to a fascinating jury sentencing proceeding:

A jury that convicted a member of the Utah-based FLDS Church will begin deliberating his sentence. After a day-long hearing on Monday that included hours of testimony, a judge set closing arguments and deliberations on Tuesday in the case of Raymond Jessop. Jessop, 38, was convicted of child sex assault for fathering a child with a 16-year-old girl who was a polygamous wife. He faces up to 20 years in prison.

The jury is deciding the sentence. On Monday, testimony included an FBI agent, a pair of Texas Rangers who testified about documents, and two former members of the polygamous church.

Here are more details about the jury sentencing proceedings in this case from additional media accounts headlined "Talk of 'celestial wives,' long-term effects of assault," and "Sentence is expected Tuesday for FLDS man":

Jurors are to report back 9:30 a.m. today to the improvised 51st Judicial District Courtroom to hear closing statements from the defense and prosecution.  Then they will begin the task of deliberating on what his punishment should be for sexually assaulting a 16-year-old girl in November 2004 at the Yearning for Zion Ranch near Eldorado.

Jurors will have to choose between two portraits drawn in the courtroom of Jessop.  Is he the self-sacrificing, hardworking father who can cross the boundaries of religion and culture to form friendships and who can be trusted not to smoke, drink or cuss around someone’s family?

Or, as the prosecution would have jurors believe, is Jessop the powerful FLDS man who benefited from the church grooming underage girls to accept marriage with men twice their age, married eight “purported” wives in addition to his legal wife, helped hide now imprisoned Warren Jeffs and endangered his unborn child and the victim while she was in labor?

Jessop could receive two to 20 years in prison.  He could also receive community supervision.

Anyone inclined to make predictions about how the jury will sentence in this case?

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.