Sentencing Law and Policy

Governor Ted Strickland grants clemency to 78 persons in Ohio

In this post a few weeks ago, I noted with great dismay and disappointment that Ohio Governor Ted Strickland had failed to act on any of a large number of clemency requests during his three years as the state's chief executive.  I am now pleased to report with excitement that Governor Strickland today made up for lost time by announcing decisions on hundreds of petitions today, and granted clemency to 78 persons.  This Columbus Dispatch article provides the basics: 

Gov. Ted Strickland approved clemency today in 78 criminal cases, including commuting the life sentence of Willie Knighten Jr., convicted for a 1996 murder in Lucas County.

Knighten, 37, is scheduled to be released Tuesday from the Allen County Correctional Institution, officials said.  "The trial and sentencing judge in Mr. Knighten's case determined that his original finding of guilt was in error and that Mr. Knighten has now served 12 years in prison for an offense he likely did not commit," Strickland said in a statement.

Knighten's clemency was among 296 requests decided by Strickland and released today. He approved 78 of them, or 26.3 percent.  Strickland OK'd 33 of 63 cases left over from 2005 and 2006, Gov. Bob Taft's last years in office, and 45 of 233 cases submitted to him in 2007.

In a conference call with reporters, Strickland said he and his legal staff spent more than 1,000 hours reviewing the cases.  "This responsibility to consider commutations is an awesome one," he said. "We take it very seriously. I have looked at every one of these cases early and many of them multiple times as I have asked questions and sought additional information."...

Strickland said in the cases in which he granted pardons after the person served their time, he considered their record outside prison.   "People have become nurses, successful business people, they have obtained master's degree's and bachelor's degrees," he said.  The vast majority of the favorable clemency decisions were pardons for minor, nonviolent offenses....

However, Strickland also approved clemency in a total of 10 cases because of what he called "fundamental injustice" or because the sentence was disproportionate to that of other inmates who committed similar crimes....

The governor has another 403 clemency requests pending from 2008 and this year.

For the true clemency junkies out there, Governor Strickland's office has provided a lot more information about the clemency decisions made today.  Specifically, this official press release describes the process and the particulars of Strickland's actions, and this huge excel spreadsheet goes into case-by-case specifics.

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.”

NC Governor trying every possible means to avoid releasing certain prisoners

As detailed in this local article, which is headlined "Perdue: Lifers got no time credits; More questions arise in controversy over life-sentence inmates seeking to be released," the Governor of North Carolina is trying every possible means to avoid the release of certain lifers pursuant to a state supreme court ruling. Here are the particulars of an interesting controversy:

Gov. Bev Perdue's third take: Prison officials never doled out credits for good behavior to those sentenced to life in the 1970s. It's the latest position Perdue's administration has taken on the question of freedom for dozens of inmates convicted of murder, rape and robbery more than three decades ago. The inmates have argued in court that state law and prison policies entitle them to immediate release.

Perdue said Thursday that she and prison officials will be happy to release them in 2054, when the youngest and healthiest among them will be approaching 100.

Six weeks ago, the state's highest court affirmed that a law in place in the 1970s defined a life sentence as 80 years, but only for lifers sentenced between 1974 and 1978. The inmates argued that policies in place then entitled them to credit for good behavior and meant that they should go free.

The administration at first appeared to agree. Within days, prison officials made a list of inmates in that category and began preparing for their release. They called the inmates' mothers and fathers; they warned the families of the victims.

Perdue then said she would not stand for it. Days before prison officials promised to turn the first batch of inmates loose, Perdue forbade their release, saying prison officials never had the authority to award the credits. On Thursday, she offered a third stance: The Department of Correction had never awarded those credits and never meant to....

Advocates for the prisoners met the governor's newest tack with exasperation. "This is simply an extension of the state's political efforts to buttress the governor's sagging poll ratings by defying the rule of law," said Staples Hughes, the state appellate defender, whose office has represented some of the inmates. "We don't believe they will be able to substantiate their opinion in a court of law before impartial judges."

Republican legislators were also befuddled. "This entire controversy was caused by the governor's own department misunderstanding an appellate court decision, miscalculating sentence credits, and misinforming victims and the public," House Minority Leader Paul Stam of Wake County said in a statement Thursday. "Now, she claims credit for protecting us from her own error. This is really appalling and inexplicable."

Ultimately, the courts will be asked to settle the issue of credits. In the coming months, superior court judges across the state will be forced to settle the matter in cases filed by inmates sentenced to life in the 1970s.

Hughes said he has great faith that judges will free the inmates. "Every lawyer reading this can come but to one conclusion: The dates that DOC calculated immediately after (the court's ruling) are more or less accurate and this is nothing more than a continued defiance of the law," he said.

New ABA Criminal Justice magazine issue on "Postconviction Practices"

Thanks to this post at StandDown, I discovered that the latest issue of the Criminal Justice magazine from the American Bar Association has a symposium focused on Postconviction Practices.  Here are the main pieces from this valuable issue:

• Priming Postconviction Representation by Andrew E. Taslitz

• Procedural Obstacles to Reviewing Ineffective Assistance of Trial Counsel Claims in State and Federal Postconviction Proceedings by Eve Brensike Primus

• Postconviction Claims of Innocence by Myrna S. Raeder

• Gubernatorial Clemency Powers: Justice or Mercy? by Kathleen “Cookie” Ridolfi and Seth Gordon

• From Arrest to Reintegration: A Model for Mitigating Collateral Consequences of Criminal Proceedings by J. McGregor Smyth, Jr.

SCOTUS corrects another circuit capital case error through summary reversal

As detailed in this SCOTUSblog post, following up a similar summary reversal last week in a capital case from the Sixth Circuit (discussed here), the Supreme Court started another week today with another summary reversal in another capital case.  Here is the SCOTUSblog summary of the ruling:

In a summary decision, the Court ruled that a defense attorney had not provided inadequate legal assistance to a California death row inmate in a murder case by carefully composing the offering of favorable evidence so as not to provide an opening for prosecutors to bring in evidence of an earlier brutal murder.   The unsigned ruling in Wong v. Belmontes(08-1263) apparently will reinstate the death penalty against Fernando Belmontes, Jr., for a bludgeoning murder and a robbery in which the killer obtained $100 and used it to buy beer and drugs to consume that same night.  The “Per Curiam” ruling — decided with formal briefing or oral argument — was tightly confined to the specific facts of the case, and did not appear to provide any new legal standard on the effectiveness of criminal trial lawyers’ work.

The Belmontes ruling, which is available here, is so fact-specific that it is hard to find even a broader principle in what is plainly an error-correction ruling from SCOTUS.  Perhaps the only line that might be quoted in later cases is this description of what Strickland's ineffective assistance prejudice standard  means in capital cases: "Strickland does not require th eState to “rule out” a sentence of life in prison to prevail. Rather, Stricklandplaces the burden on the defendant, not the State, to show a 'reasonable probability' that the result would have been different."

SCOTUS adds a habeas case (with a sentencing spin) to its docket

As detailed in this new SCOTUSblog post, the Supreme Court has added yet another case to its docket that should interest sentencing fans.  The case is Magwood v. Culliver, and here is the question that the Court has taken up:

When a person is resentenced after having obtained federal habeas relief from an earlier sentence, is a claim in a federal habeas petition challenging that new sentencing judgment a “second or successive” claim under 28 U.S.C. § 2244(b) if the petitioner could have challenged his previous sentence on the same constitutional grounds?

Though a habeas case arising in a death penalty context, it seems quite possible that Magwood (which is has sentencing's old friend Jeff Fisher as counsel of record) could address some legal issues that could impact lots of other types of cases in lots of types of sentencing settings.

Reflecting a bit more broadly on this newest cert grant, it is becoming easier and easier to conclude that the addition of Justice Sotomayor to the Court has continued the trend of the early Roberts Court to take up many criminal justice cases and issues with important day-to-day implications for many criminal practitioners. 

Some related old and new posts on SCOTUS docket issues:

• Should we thank new Justices Alito and Sotomayor for all the big criminal law SCOTUS action?
• SCOTUS cert grants: Guns, sex offenders, and sentencing factors ... oh my!
• Is the "culture of death" slowly dying at the Supreme Court?
• How exactly do transitions impact the SCOTUS docket and cert grant decisions?
• A big SCOTUS oral argument week on tap for sentencing fans
• The 10 biggest cases to watch for sentencing fans in the new SCOTUS term
• Reflections on the politics of SCOTUS and personhood of its members
• Will the next SCOTUS nominee have any criminal law background?
• Brave New Justice and sentencing issues
• Roberts, the cert pool, and sentencing jurisprudence
• Can Roberts bring consensus to SCOTUS sentencing jurisprudence?
• Justice Alito jumping out of the cert pool!!
• Final version of my article on the SCOTUS death docket

Big dissent from Ninth Circuit's denial of en banc review of reasonableness ruling

A helpful reader made sure that I did not miss the decision by the Ninth Circuit to deny en banc review in US v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009) (discussed here), a case decided this past June in which the panel had reversed a within-guidelines sentence as substantively unreasonable.  What makes this latest development especially blog-worthy is the dissent from the denial of en banc review, which is authored by Judge O'Scannlain and joined by six other Ninth Circuit judges.  Here is how this dissent gets started:

This is the first published opinion in this circuit reversing a within-Guidelines sentence as substantively unreasonable.  The panel reaches this unprecedented result by casting aside Supreme Court and Ninth Circuit precedent in three ways: first, by failing to apply the appropriate standard of review; second, by recognizing a brand-new category of sentencing factors whose consideration by the district court warrants virtually no deference; and finally, by assuming a policymaking role properly reserved to the district court.  I must respectfully dissent from our failure to rehear this case en banc.

The closing paragraph of the dissent also seems worth quoting:

This is not just another sentencing case.  Employing what amounts to a de novo standard of review, the panel becomes the first in our circuit to publish an opinion reversing a within-Guidelines sentence as substantively unreasonable.  In the process, the panel recognizes a brand-new category of sentencing considerations purportedly undeserving of deference, and usurps the policymaking role of the district court as well as the Sentencing Commission.  For these reasons, I respectfully dissent from the denial of rehearing en banc.

I doubt that the Supreme Court would take up this case even if the Solicitor General now considers an appeal to SCOTUS.  But this dissent sure suggests that at least a few Ninth Circuit judges are eager to have this case added to the Justices' future dance card.

Brief Sixth Circuit opinion rejects Blakely challenge to Michigan sentencing system

This morning the Sixth Circuit issued a short opinion in Chontos v. Berguis, No. 08-1031 (6th Cir. Nov. 10, 2009) (available here), in which the panel concludes that Michigan's distinctive structured sentencing scheme does not have a Blakely problem.  I have taken the liberty of reprinting some critical comments about this ruling from an e-mail sent my way by a helpful reader:

As detailed in this article appearing now as Mandatory Sentencing Guidelines by Any Other Name: When 'Indeterminate Structured Sentencing' Violates Blakely v. Washington, 57 Drake L. Rev. 643 (2009), the issue is a lot more complicated than the Sixth Circuit panel assumed today, and deserves a lot more attention.  Michigan does not have an "indeterminate" sentencing scheme, at least not as the Supreme Court has used that term.  Further, Harris does not save the Michigan scheme because Michigan's mandatory guidelines regularly raise the ceiling on judges' discretion, not just the floor.  In short, Michigan's scheme doesn't deserve the free pass that the Sixth Circuit just handed out.

Chief Justice apparently taking command in the Graham and Sullivan juve LWOP cases

This early report from SCOTUSblog, which is titled "Analysis: The Chief leads on juvenile sentences?," concerning on this morning's arguments in the big juve LWOP cases argued this morning heightens my expectation and hope that we could get some interestingly different line-ups in the decisions in these cases.  Here is the start of Lyle Denniston's analysis:

Chief Justice John G. Roberts, Jr., made a strong — and repeated — effort on Monday to recruit a majority of the Supreme Court in favor of giving juveniles more chance to use their age to challenge life-without-parole prison terms, as an alternative to a flat constitutional bar against ever imposing that sentence.  With a number of Justices wondering where to draw an age line if the categorical approach were used, the Chief Justice’s initiative seemed to have a good chance of gaining adherents as the Court heard Graham v. Florida (08-7412) and Sullivan v. Florida (08-7621).

Interesting.....!  And more commentary on this front to follow when I get a chance to consume the transcripts in these cases late tonight.

A few older CJ Roberts-related posts and some newer posts on the Graham and Sullivan cases:

• CJ Roberts and sentencing law: fixing Eighth Amendment jurisprudence?
• CJ Roberts and sentencing law: the virtues (and vices?) of consensus
• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• Analyzing the cert grants in both Graham and Sullivan
• Should religious doctrines influence Eighth Amendment jurisprudence?
• Watching and wondering about the three SCOTUS newbies in Graham and Sullivan juve LWOP cases

"Sex With Informant Voids Prostitution Case"

The title of this post is the headline from this lengthy new report from The Legal Intelligencer.  Here is how the piece starts:

In a case of first impression, the Pennsylvania Superior Court ruled last week that state troopers committed "outrageous government conduct" when investigating alleged prostitution at a massage parlor in the Lehigh Valley by giving money to an undercover informant to have sex four times with two different women at the parlor.

On Thursday, the unanimous panel of Judges John T. Bender and Jack A. Panella and Senior Judge John T.J. Kelly Jr. upheld Lehigh County Common Pleas Judge Robert L. Steinberg's 2008 order dismissing charges of prostitution and promoting prostitution against defendant Sun Cha Chon.  Steinberg found the state police investigating alleged prostitution at Shiatsu Spa committed outrageous government conduct and violated Chon's constitutional rights to due process.

Though this ruling clearly hinges in part on the nature of the criminal activity which the government instigated, the notion that a criminal prosecution should be thwarted because of "outrageous government conduct" involving a confidential informant could have broad implications.  The press report indicates that the Lehigh County District Attorney's office plans to appeal the decision, and this case is worth watching if and when it gets to the Pennsylvania Supreme Court.

Virginia clears final big legal hurdle for executing DC sniper on Tuesday

As detailed in this new Washington Post piece, today the Supreme Court "denied John Allen Muhammad's request to stay his execution, clearing the way for Virginia to put to death the man who terrorized the Washington region as the Beltway Sniper."  Here's more: 

Justices John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor objected to the court's haste, saying it "highlights once again the perversity of executing inmates before their appeals process have been fully concluded."  Stevens, writing for the three, said Virginia had short-circuited the process by scheduling Muhammad's execution for Tuesday night, earlier than the court would normally have reviewed his petition for the court to take his case.

I am not sure what I find most remarkable about this case: the fact that Virginia has been successful in getting Muhammad to the door of the death chamber "only" six years after he was sentenced to death for his horrific crimes is almost as remarkable as the fact that the capital review process is usually so cumbersome that we call a six-year appeal process hasty in a seemingly open-and-shut capital case.

SCOTUS argument transcripts for two criminal justice cases argued today

As noted in this prior post, the Supreme Court today heard arguments in Pottawattamie County v. McGhee, which concerns potential liability of prosecutors for arranging false testimony, and in Wood v. Allen, which concerns the scope of federal court review of facts in state criminal proceeding.  Now, via SCOTUSblog, the "oral argument transcripts for Pottawattamie County v. McGhee and Wood v. Allen are here and here."

With a faculty meeting and then a baseball game in my near future, I may not get a chance to comment on either of these arguments anytime soon.  But that should not stop others from noting anything especially noteworthy via the comments.

A Canadian perspective of appellate sentencing review

I just saw via SSRN this notable article about appellate sentencing review, which is titled "Wrestling with Punishment: The Role of the BC Court of Appeal in the Law of Sentencing." Here is the abstract:

This article, one in a collection of articles on the history and jurisprudential contributions of the British Columbia Court of Appeal on the occasion of its 100th anniversary, looks at the role and the work of the court in the area of sentencing since the court was first given jurisdiction to hear sentence appeals in 1921.  In the three broad periods that we canvass, we draw out the sometimes surprising, often unique, and frequently provocative ways in which the BCCA has, over its history, wrestled with the practice of criminal punishment and, with it, the basic assumptions of our system of criminal justice.  We explore the important role that the BCCA has played in articulating a vision of what constitutes a just social response to criminal wrongdoing.

The court’s work in this area has been rich, its views on sentencing as mercurial as the practices of punishment.  At times the court has served quite directly as an institutional voice for dominant social views of punishment, whether they were of a more sternly retributive form or reflected an era of hope in rehabilitation.  Yet, in more recent years, the jurisprudence of the court has also included strong voices reflecting a critical posture towards traditional assumptions in our theories and practices of sentencing.  In the current political climate that finds a retributive ethos in the criminal law in ascendancy, this jurisprudence reminds us of the value of this posture — one that asks us to think more deeply, critically, and cautiously about the assumptions that tacitly guide our system of criminal justice.

DC Sniper makes (final?) appeal to SCOTUS before scheduled execution

As detailed in this Washington Post article and this SCOTUSblog post, lawyers for "sniper John Allen Muhammad, mastermind of the terrifying 2002 Washington area shooting spree, asked the U.S. Supreme Court on Tuesday to halt their client's execution, saying he was paranoid and delusional during his trial."  Here is how SCOTUSblog describes the legal particulars:

The new petition asked the Supreme Court to review two issues.  Paraphrased, they are: whether the Fourth Circuit was wrong in the standard it used to analyze the performance of his lawyers on the incompetency issue, and whether Congress has set a one-year filing period for the first habeas plea and thus that period cannot be shortened by federal judges.

The first question is a mixture of an inquiry into counsel’s performance, and a question of the scope of prejudice that may result from a flawed performance regarding competency.  Muhammad’s petition contends that, in judging whether Muhammad’s case was harmed when his lawyers failed to bring forth evidence of his incompetence, when the judge was considering whether to let Muhammad act as his own lawyer, the test is whether there was a reasonable chance the accused would have been found incompetent to waive his rights.  The Fourth Circuit, it adds, erred in focusing only on whether there was a reasonable prospect that the trial would have ended differently if Muhammad had not been his own lawyer (for two days of the trial)....

The second issue focuses on what the petition says is a truly novel practice, under which federal District Courts in Virginia routinely deny first-time habeas applicants a full year to prepare their habeas pleas.  Thus, the question raised is whether the one-year time provision in federal habeas law (enacted as part of the Antiterrorism and Effective Death Penalty Act) bars a federal judge from ordering an earlier filing.  Federal judges ordered Muhammad to proceed with plenty of time left in the one-year span, the petition says.

My gut instinct is that it is unlikely that the Justices will take up this high-profile capital case.  But, especially in death penalty settings, unexpected factors can sometimes lead to unexpected results. 

A SCOTUS week for criminal justice fans who like fed courts issues

As detailed in posts here and here from SCOTUSblog, the Supreme Court is not involved in many criminal justice issues that are likely to make huge headlines this week.  (The big SCOTUS headlines will be next week when the Court hears argument in the two juve LWOP cases of Graham and Sullivan.)  As these likes from SCOTUSblog spotlight, however, the Court is hearing argument in three cases this week that should be of great interesting to hard-core habeas and fed courts fans:

Mon., Nov. 2:

Beard v. Kindler (08-992) – enforcement of state procedural rule in federal habeas

Wed., Nov. 4:

Pottawattamie County v. McGhee (08-1065) – liability of prosecutors for arranging false testimony

Wood v. Allen (08-9156) – scope of federal court review of facts in state criminal proceeding

I suspect the Pottawattamie County will garner the most attention because it deals with the issue of wrongful convictions and prosecutorial misconduct.  But, as is often the reality, the case that gets the most media attention probably is not the one likely to have the most day-to-day impact on the operation of modern criminal justice systems.

Mississippi Supreme Court looking into capital case delays

As detailed in this local article, which is headlined "Death row case delays flagged," the Mississippi Supreme Court is trying to figure out why a number of state capital cases are stuck in the post-conviction appeal pipeline.  Here is how the piece begins:

The Mississippi Supreme Court has asked trial judges why they have not ruled on post-conviction claims of nine death row inmates.  At least four of the cases involve claims of mental disability.

The Supreme Court issued the orders Thursday. The justices said they want to know what is taking so long on the cases and if they should force on the trial judges a timetable to render decisions. In a post-conviction petition, an inmate argues he has found new evidence — or a possible constitutional issue — that could persuade a court to order a new trial.

"The Court has undertaken a systematic review of all pending post-conviction death penalty cases and has sought information on the status of cases for which there appears to be a lack of activity," Chief Justice Bill Waller Jr. said.  He said the reviews will continue. "We will systematically review the status of death penalty post-conviction cases ... to assure that the fair and efficient administration of justice is being carried out.

This story provides a useful reminder of the fact that capital case delays can often be the result of actions by foot-dragging lower courts (or even prosecutors); they are not produced soley by just death row defendants and their defense attorneys (though I suspect many defendants do not much mind such delays).

How should positive behavior in prison impact resentencings after Booker?

This local article about an interesting sentencing hearing spotlights a number of challenging conceptual issues that surround federal resentencings in the post-Booker world.  The piece caught my eye due to its headline, "Victim helps press for longer sentence for nurse in 'nude therapy' case," but these snippets spotlight the array of legal issues this case presents:

Linda Kaufman, a nurse convicted of defrauding and abusing the mentally ill residents of the Newton home she ran with her husband, Arlan, told a federal judge she has been a positive influence on fellow inmates during her four years in prison.   But a former resident of the home said Kaufman still needs to be held accountable for what happened there.

Not because she "married a monster," said Nancy Jensen, but because Kaufman was a registered nurse.   "She was to do no harm, and she was to advocate for the people that she was to help," Jensen said.

The statements came Tuesday in the courtroom of U.S. District Judge Monti Belot, who has been required by the 10th Circuit Court of Appeals to reconsider factors that could lengthen the seven-year prison sentence he originally imposed on Kaufman. After a two-hour hearing, Belot took the matter under advisement and said he'd make his ruling in a written memorandum. He didn't say when he'd issue it.

Linda Kaufman, 66, and Arlan Kaufman were convicted in November 2006 of enslaving the home's residents, forcing them to work naked and perform sex acts. Belot gave Arlan Kaufman a 30-year sentence and Linda Kaufman a seven-year sentence.

The appeals court said Belot should reconsider Linda Kaufman's sentence because she was alleged to have used a stun gun, which the government said was a dangerous weapon; because the offenses involved a large number of vulnerable victims; and because she obstructed justice by interfering with a federal audit and investigation of the home.

The government has recommended a sentence of at least 20 years. Kaufman's attorney, Steve Gradert, asked Belot to reimpose his original sentence. That sentence was below sentencing guidelines. Belot had shown her leniency, believing she was manipulated by her husband....

Jensen, in an emotional statement, said the Kaufmans "did horrible things to us in the name of mental health and in the name of taking care of clients." Linda Kaufman was a nurse who was responsible for taking care of people with mental illnesses, she said. "The harm that she did is not easily seen because it was emotional and affected our behavior and our belief systems," Jensen said. "She used our diagnosis to blame us and abuse us. So, therefore, Linda knew how to hide the harm she caused us and blamed us for."...

Linda Kaufman told Belot that during her confinement she had done a lot of volunteer and self-improvement activities.   She had coexisted peacefully with other inmates, had no disciplinary reports, worked faithfully at her prison jobs and received high scores for her job performance and cooperation, she said. She also participated in continuing education and religious classes. She said she won a humanitarian award last year for her work with inmates and for her quilting.

Kaufman said if she had another chance, she "would do many things differently," but she was looking to the future. "I long to join, and re-join, my grandchildren as soon as possible," she said.

Important sentencing issues ranging from co-defendant influence and disparity to the impact of the victim's testimony to the significance of the defendant's status as a nurse are all richly presented in this notable case.  But, as highlighted by the question in the title of this post, I am especially interested to hear views on whether readers think Linda Kaufman's positive behavior while incarcerated can (or should or must) be a significant consideration in her resentencing in light of Booker and the terms of 3553(a).

Infamous "Lipstick Killer" case provides historical perspective on juve sentencing debate

I noticed this interesting recent piece on CNN headlined "'Lipstick Killer' behind bars since 1946."  The article is fascinating for various reasons, and here are a few highlights:

William Heirens, the "Lipstick Killer," is believed to be the longest-serving inmate in the United States. He turns 81 on November 15.  Diabetes has ravaged his body, but his mind is sharp.

"Bill's never allowed himself to be institutionalized," said Dolores Kennedy, his long-time friend and advocate. "He's kept himself focused on the positives." The days are spent mostly watching television and reading magazines.  Using a wheelchair and sharing a cell with a roommate in the health unit of Dixon Correctional Center, he still yearns for a chance at freedom.  It is something he has not tasted since 1946.

Heirens has been locked behind bars and walls for 63 years, making inmate C06103 the longest-serving prisoner in Illinois history, state officials say.  According to Steven Drizin, the legal director of the Center on Wrongful Convictions at Northwestern University, Heirens "has served longer than anyone in the U.S. that I can find."

He was put away a year after the end of World War II. It is a dubious record, but fitting for the man dubbed the Lipstick Killer, whose crime spree remains among the most infamous in the history of Chicago...  "Pray for my release," he wrote in a letter dated October 11. "There is no reason to keep this man behind bars," said Drizin. "He meets all the criteria for parole."

While Drizin, who has represented Heirens since 2001, and others passionately plead for his release and prepare to re-petition the state parole board that has consistently refused to free Heirens, others are convinced he is a manipulative murderer.  "He was the bogeyman," said Betty Finn of the man convicted of strangling her sister.  "I don't think you need to feel sorry for him. He chose his life and he chose his actions."...

He pleaded guilty to three counts of murder.  In exchange for the plea, Heirens was spared the death penalty and given three consecutive life sentences.

Heirens has distinguished himself in prison.  He was the first inmate in Illinois to receive a college degree . "He helped redesign the library system in the department of corrections," said Drizin, who also commended Heirens for becoming a "first-rate jailhouse lawyer."   Drizin said Heirens has been eligible for parole nearly every year since the 1970s. 

There are so many notable elements to this interesting story, ranging from claims that Heirens was tortured into a confession back in 1946 to the fact that he was able to avoid the death penalty by virtue of pleading guilty.  It is also interesting and notable that Heirens was only 17 at the time of his crimes; the Supreme Court's consideration of Eighth Amendment standards for juve sentencing in the upcoming Graham and Sullivan cases could arguably have some relevance to the "Lipstick Killer."  Then again, the issue in Graham and Sullivan concerns sentences of life without the possibility of parole for non-homicide crimes, whereas the "Lipstick Killer" is serving three life sentences with the possibility of parole for homicides.

Sixth Circuit officially joins bulk of other circuits declaring limits on 3582(c) sentence modifications

The Sixth Circuit today describes effectively the current state of the circuit law concerning sentence modifications pursuant to 18 U.S.C. § 3582(c)(2) in US v. Washington, No. 09-5110 (6th Cir. Oct. 27, 2009) (available here).  Here is how the majority opinion in Washington starts:

Defendant Errol Eugene Washington appeals the district court’s order denying, in part, his motion to reduce and modify his otherwise valid sentence pursuant to 18 U.S.C. § 3582(c)(2).  Washington’s appeal presents an issue of first impression in our circuit: whether the district court, in modifying a sentence pursuant to § 3582(c)(2), has authority under United States v. Booker, 543 U.S. 220 (2005), to reduce a sentence beyond the retroactive United States Sentencing Guidelines amendment range.  For the reasons explained below, we hold that the district court does not have such authority and therefore affirm the judgment of the district court.

For some reason that she fails to explain, Judge Moore does not join the majority opinion in Washington and just concurs separately.

"The Case Against Juvenile Life Without Parole: Good Policy and Good Law"

The title of this post is the title of this new Findlaw commentary by Kristin Henning, who is Co-Director of Juvenile Justice Clinic and Professor of Law at Georgetown University Law Center.   As the piece's title suggests, the author has a clear view of how the Graham and Sullivan juve LWOP cases ought to be resolved by the Supreme Court.  Here are snippets from the commentary:

In Sullivan and Graham, the Court is not considering whether juvenile offenders should be punished — or punished severely — for their crimes.  The Court is considering the narrow question of whether juvenile offenders should be afforded meaningful opportunities for parole.

Youth offenders, like all offenders, should be held accountable for their crimes — even by life imprisonment. Regardless of the Court's decisions in Sullivan and Graham, the very worst juvenile offenders still may spend the rest of their lives in prison. An opportunity for parole is just that: a chance for a prisoner to show strong evidence of rehabilitation.  If a juvenile offender does not demonstrate change and is deemed a threat to public safety, the parole board will not grant parole.  Victims' rights have long been protected through the parole hearing process, with victims retaining a right to participate and be heard before any decision on parole is granted....

When a child is robbed of the chance to reform, our country is robbed as well.  The overwhelming majority of juvenile offenders can and do become thriving, productive citizens.  This is not an unattainable ideal — it is an irrefutable truth, supported by the research of acclaimed scientists and the stories of inspiring youths like Kareem Watts.

This fall, the Supreme Court has the chance to follow the law — and ensure that Joe Sullivan's and Terrance Graham's path becomes the road not taken for other juvenile offenders.

Some recent posts on juve LWOP and the Graham and Sullivan cases:

• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• Analyzing the cert grants in both Graham and Sullivan
• Gearing up for the SCOTUS juve LWOP cases on the horizon
• New Heritage Foundation report defending juve LWOP sentences
• An early preview of Graham and Sullivan, the SCOTUS juve LWOP cases
• ABAJ coverage of SCOTUS cases on constitutionality of juve LWOP
• Should religious doctrines influence Eighth Amendment jurisprudence?