Sentencing Law and Policy

A notable and curious (and suspect?) sentence "correction"

As detailed in this South Florida Sun-Sentinel article, headlined "Judge resentences Iranian woman, gives her 2 years in prison," something seems a little hinky about a federal judge "correcting" a sentence to add two years' imprisonment to an original sentence of time-served.  Here are the details:

Shahrazad Mir Gholikhan, an Iranian woman accused of trying to export night vision goggles, thought her guilty plea last month would be her ticket back to her family. The federal prosecutor had recommended a term of time served for the 30-year-old mother's role in the illegal plot to trade with Iran, a U.S.-designated terrorist nation. U.S. District Judge James Cohn imposed the sentence at an April 25 hearing in Fort Lauderdale federal court.

But on Tuesday that smooth resolution unraveled. Determining the sentence had been a mistake, Cohn extended Gholikhan's prison term from time served to two years and five months. Under the law, federal judges can amend sentences within seven business days that result from "arithmetic, technical, or other clear error."

In Gholikhan's case, prosecutor Michael Walleisa alerted Cohn last week that both sides had calculated Gholikhan's recommended sentence using the wrong federal sentencing guideline. The correct sentencing range should have been 30 to 37 months, Walleisa said. He asserted in a legal brief that a sentence of time served was far too light a punishment for "a national security offense that involved trade with a state sponsor of terror." "Her crime is serious and warrants an appropriately severe sentence," Walleisa wrote.

William Barzee, Gholikhan's attorney, called the resentencing unfair and un-American, saying after the hearing that his client feels like she's back in Iran. "I don't think it's fair to [agree on a sentence] and have someone plead guilty and then come back and ask the court for a do-over," Barzee said in court Tuesday.

Cohn agreed with Walleisa that the sentence should be recalculated using the correct guideline provision. He reduced the sentence from 30 months to 29 because Gholikhan spent one month in an Austrian prison on related charges....

Jonathan Rosenthal, a Fort Lauderdale defense lawyer who teaches sentencing at Nova Southeastern University, said he found a description of Gholikhan's resentencing "troubling" because the guidelines are only one factor judges should consider. "I don't understand how on Monday a sentence of four-and-a-half months is reasonable, but on Tuesday, all of a sudden, that sentence is no longer reasonable," Rosenthal said. "Judges are not supposed to give guidelines any undue weight."

Writing here at the Southern District of Florida Blog, David Oscar Markus is also curious about this sentence correction.

Interesting (quasi-sentencing?) rulings from the Ninth Circuit

Thanks to fellow bloggers, I see that the Ninth Circuit has released two interesting opinions today in cases that may interest sentencing fans even though that are not technically about sentencing:

• From How Appealing here: "Unanimous three-judge Ninth Circuit panel recognizes a state convict's limited due process right of access to the evidence, used to convict him of sexual assault, for purposes of post-conviction DNA testing."

• From AL&P here: "CA9: Judicial Immunity for Governor’s parole override."

A high-profile (and suspect?) sentencing computation "error"

As detailed in this Los Angeles Times piece, a high-profile California case now involves an interesting new back-end sentencing twist:

California authorities rearrested Sara Jane Olson at noon Saturday, just hours after she was prevented from flying home to Minnesota from Los Angeles, and said she must serve one more year in prison because they miscalculated her release date.  The former member of the radical Symbionese Liberation Army had been paroled Monday from a California women's prison after serving about six years for her role in a 1975 plot to kill Los Angeles police officers by blowing up their patrol cars.

Officials from the California Department of Corrections and Rehabilitation said at a news conference that they had made a mistake in computing the amount of time Olson should serve in a separate case in which she pleaded guilty to second-degree murder for participating in a Sacramento-area bank robbery in which another SLA member killed a customer.  "The department is sensitive to the impact that such an error has had on all involved in this case and sincerely regrets the mistake," Scott Kernan, the agency's chief deputy secretary of adult operations, said at a Saturday afternoon news conference. "The department has launched a full investigation."

Kernan called the case "extremely complicated, given the amount of changes to the sentencing laws that have occurred over the last 30 years."  Olson should have been sentenced to 14 years, not 12, for the two crimes, Kernan said. He said state officials had failed to account for the bank robbery. The earliest possible release date for Olson now is March 17, 2009, he said. At that point, she will have served half of the 14-year term.

Like most California inmates, Olson has earned credit against her sentence for working while in prison. She served on a maintenance crew that swept and cleaned the main yard of the Central California Women's Facility in Chowchilla, according to prison officials....

When news organizations reported Olson's release Friday, law enforcement officials reacted with dismay and raised questions about whether she had been let out too early....  Corrections department officials acknowledged that they began an intensive review of their internal calculations of the sentence after getting questions from the Sacramento County district attorney's office and a local television reporter, but they denied that they had bowed to pressure....

Olson's attorney, Shawn Chapman Holley, said she was outraged by the rearrest and asserted that her client had been illegally arrested and is now being "illegally imprisoned."...   Holley said she planned to file a writ of habeas corpus seeking Olson's release within the next few days.  She scoffed at the suggestion that there had been "a computation error." 

"We received an order from the state parole board more than a month ago informing us that she would be released on March 17," Holley said.  She referred to a decision of the board, saying that on Oct. 12, 2007, the panel had notified a Los Angeles Superior Court judge that "it did not intend to impose" a one-year enhancement that had been challenged by Olson's attorneys. The decision went on to say that Olson's "earliest possible release date has been recalculated to March 17, 2008."

Noting that the decision had been made months ago, Holley said: "The idea that suddenly they discovered an error is untrue. What appears to be the truth is they are bowing to pressure from the Police Protective League or someone else."...

Santa Clara University law professor Gerald Uelmen said he found it "hard to imagine" that state officials made a calculation error. The executive director of the California Commission on the Fair Administration of Justice said he had never heard of an instance in which a prisoner was mistakenly released early.

More coverage of a story that may just be starting comes from the AP and from San Francisco Chronicle.  The Chronicle story has more good quotes from law professors:

Santa Clara University Law Professor Gerald Uelmen said the department's error is bewildering. "I can't imagine how they could have blown that one, in such a high-profile case," said Uelmen.

UC Berkeley law Professor Franklin Zimring said the error can be attributed to a sentencing system he called incoherent.  "From the standpoint of keeping the streets safe, she was a candidate for Social Security when she showed up at the beginning of her term," Zimring said. "This apparatus is all extraordinarily arbitrary."  However, he said she probably doesn't have legal grounds to challenge her increased sentence.

Should dying child justify a federal sentencing break?

A helpful reader sent me this remarkable local story that has to make every sentencing theorist (not to mention ever federal prison official) think hard about modern notions of justice and mercy:

The story of a 10-year-old Lincoln girl who is dying of brain cancer's one dying wish spurred a lot of e-mail to KETV NewsWatch 7. Jayci Yaeger wants her father to be at her bedside, but that isn't likely to happen since Jason Yaeger is in a federal prison in Yankton, S.D.

Vonda Yaeger is pleading with the warden for compassion to grant her daughter's wish. "She wants her dad. She goes to her room crying because she wants her dad," Yaeger said.

Jason Yaeger was convicted of methamphetamine charges nearly five years ago and is scheduled to be released next year. "We've never asked them to release him early. Never asked them to change anything. We've asked them to just give him some time to be here," Vonda Yaeger said.

Several KETV NewsWatch 7 viewers said they've e-mailed the warden themselves after reading the story. Kevin Burton said he e-mailed a link of KETV's story to the warden, along with a note that said in part: "I feel heartbroken for this little girl. It sounds like a drug charge, and not a more serious crime. As a father of a young daughter myself, I hope that there is more to this story. I would hope in cases such as this some compassion can be shown and reasonable accommodations taken that safeguard the public, honor the judiciary, but still let this little girl see her father while she is still living."....

Another viewer suggested starting a nationwide petition to get Jason Yaeger to his daughter before she dies.

Jayci Yaeger has been allowed three escorted visits with her father, but each trip lasts only a couple of hours and costs the family hundreds of dollars. Requests for longer furloughs have been denied. "They say it doesn't constitute an extraordinary circumstance," Vonda Yaeger said.

The Federal Bureau of Prisons Web site states its policy -- that furloughs can be allowed for a family crisis and that decision is left to the warden. "We've asked them numerous times, 'What is an extraordinary circumstance?'" said Vonda Yaeger. "They danced around it. They don't give you a direct answer."

Jayci still gets calls when her father can manage. "He talks to her. We put the phone to her ear and she cries," Vonda Yaeger said. She said there have been several times she didn't think Jayci would make it through the night, but she somehow keeps fighting. "I feel she's hanging on for her dad," Vonda Yaeger said. The family said that what makes the situation even more difficult is that Jason Yaeger is scheduled to be transferred to a half-way house in Council Bluffs, Iowa, in August. That would make it possible to visit Jayci, but her mother said it will probably be too late.

The cert petition in US v. Lett (and amici encouragement)

I reported in this post this morning that today we filed a cert petition in the remarkable case of US v. Lett (which was the topic of this column in today's New York Times).  I can now post a copy of the filed petition, which has this Introduction:

Federal district courts impose more than 65,000 felony sentences every year. Inevitably, sentencing judges occasionally commit reversible legal errors in imposing these sentences. Acknowledging that reality, the Federal Rules of Criminal Procedure expressly afford sentencing judges an efficient means (rather than awaiting appellate reversal) to correct such errors when caught quickly.  Rule 35(a) provides that “[w]ithin 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.”  Here, the district court did just that.  Based on a misunderstanding of the applicable statutory minimum sentence, Judge William Steele at first mistakenly concluded that he was unable to sentence  petitioner Patrick Lett to less than five years’ incarceration for a minor, non-violent drug offense.  Recognizing within the Rule 35 time period that he had erred in determining the sentencing range, Judge Steele corrected his legal error and imposed a lawful (and lower) sentence according to the terms of 18 U.S.C. § 3553(a).

The Eleventh Circuit reversed, holding that the district judge’s conscientious effort to correct his sentencing mistake was improper because the Judge’s legal error did not constitute “other clear error” for purposes of Rule 35. In doing so, the Eleventh Circuit adopted an unduly restrictive view of “other clear error” that undermines Rule 35’s ability to allow efficient corrections to legally erroneous criminal sentences.  The decision below thus threatens the effective and just operation of the criminal sentencing system, an issue of substantial federal importance given the tens of thousands of sentences entered every year in U.S. District Courts.

Compounding the need for review, the court’s decision also conflicts with settled law in other circuits. All courts agree that Rule 35’s purpose is to allow a trial judge to avoid the need for appeal where the result of that appeal will be a reversal for resentencing. Rulings from the First, Second, and Ninth Circuits have correctly concluded in comparable settings that any time that a sentencing judge operates under a legal misunderstanding as to applicable sentencing options, such a mistake necessarily constitutes reversible error requiring resentencing (and thus is the type of error allowing correction under Rule 35). The court below in this case, by contrast, concluded that not all such sentencing errors amount to “clear error” allowing for correction through Rule 35(a). Rather, according to the Eleventh Circuit, an error regarding the judge’s sentencing authority will be “clear” (and thus subject to efficient correction in the district court) only if binding precedent in a factually indistinguishable case plainly reveals that error.

Finally, the Eleventh Circuit also adopted a novel and misguided “remedy” in the wake of its flawed Rule 35(a) interpretation. It ordered the District Court to impose the initial, erroneous five-year prison term — notwithstanding Judge Steele’s conscientious (and unreversed) determination that he had committed error in imposing that sentence, as well as Judge Steele’s express finding that only a much shorter prison term was “sufficient but not greater 4 than necessary” to serve the sentencing purposes Congress set out in 18 U.S.C. § 3553(a).  Nothing in the language of Rule 35 or any other statutory provision justifies the Eleventh Circuit’s order that the district court now impose a legally erroneous sentence on Patrick Lett.

The Eleventh Circuit’s strained interpretation of Rule 35 reverses a “just determination” in this case, while also disrupting Judge Steele’s efforts to achieve “simplicity in procedure and fairness in administration,” and to “eliminate unjustifiable expense and delay.”  See Fed. R. Crim. P. 2. Because the Eleventh Circuit’s ruling creates confusion that will lead to unjust and/or conflicting results in lower courts, this Court should intervene to provide needed guidance as to what constitutes “clear error” under Rule 35(a).  Patrick Lett respectfully urges the Court to grant certiorari and reverse the decision below.

Download lett_cert_petition.pdf

Though we have strong arguments for Supreme Court review, the statistical reality is that less than 1% of all cert. petitions are accepted by the Court.  Consequently, I can state with confidence that Sgt. Lett (and his lawyers) would be happy and eager to have those aggrieved by this case consider filing an amicus brief in support of our cert. petition.

The amazing federal sentencing story of Sgt. Patrick Lett

Regular readers may recall some prior posts about the sentencing of Sgt. Patrick Lett (many of which are linked below).  I am proud that Sgt. Lett is now my client and that, along with my colleague Douglas Cole of Jones Day, I can report that a cert petition is about to be filed on Sergeant Lett's behalf. 

And I am pleased to report that Adam Liptak's Sidebar column in Tuesday's New York Times tells Sgt. Lett's story.  Here are long excerpts from a story that should become a movie (especially if there is the appropriate happy ending):

Matthew Sinor was in his second year of law school at Ohio State a couple of years ago when he heard that an Army buddy had gotten into trouble with the law.  Mr. Sinor rescheduled two exams and flew to Mobile, Ala., to make sure nothing went awry at his friend’s sentencing hearing.

The defendant, Sgt. Patrick Lett, had served 17 years in the Army, including two tours in Iraq, and he had pleaded guilty in federal court to selling cocaine.  It was up to Judge William H. Steele, a former marine, to decide how to punish him. “I don’t normally see people standing before me in uniform,” Judge Steele said.

Sergeant Lett’s commanding officer, Capt. Michael Iannuccilli, testified that the man he knew was “a patriot, father and a good man.” “I would gladly deploy to Iraq with him and entrust my life to him,” Captain Iannuccilli said. “I’d trust my soldiers’ lives to him. He’s been nothing but an exemplary soldier.”...

Judge Steele made plain that he wanted to give Sergeant Lett the briefest possible sentence.  But Congress had set a mandatory minimum sentence of five years, Judge Steele said, and that is the sentence he reluctantly imposed. 

Mr. Sinor, the law student sitting in the courtroom, had studied sentencing law with Douglas A. Berman, an Ohio State law professor and one of the nation’s leading experts on the subject. Judge Steele had, Mr. Sinor believed, overlooked a five-part statutory “safety valve” that permits shorter sentences for defendants with unblemished backgrounds who played minor roles in crimes that did not involve violence and who had told the truth about what happened.  Few defendants qualify.  Sergeant Lett did.  So Mr. Sinor wrote to Judge Steele, with copies to the lawyers, explaining the point they had all missed.

Judge Steele agreed, and he revised Sergeant Lett’s sentence to time served — 11 days.  The next day, the judge invited Sergeant Lett to his chambers for a chat. “You should thank God for a friend like Matt,” Judge Steele said, as Sergeant Lett recalled. “I want you to go back in the military to do some good for your country. I know I will never see you again in my courtroom.”  Later, Judge Steele amended the conditions of Sergeant Lett’s probation to allow him to carry a weapon, a necessity in his line of work....

In April, a three-judge panel of the federal appeals court in New Orleans reversed Judge Steele. The decision was frank in its admiration for a fine soldier and mechanical in its application of the law. The appeals court did not discuss whether Judge Steele had been right to apply the “safety valve,” saying “reasonable arguments can be made on both sides.” Instead, the panel said that the law simply did not allow Judge Steele to revise the sentence once he had imposed it.

True, there is a rule of criminal procedure that allows judges to “correct a sentence that resulted from arithmetical, technical or other clear error,” so long as they do it within seven days. Math can be fixed. But since Judge Steele’s mistake was in his understanding of his own power to do justice, the panel said, Sergeant Lett must serve five years.

Put another way, Judge Steele could have sentenced Sergeant Lett to time served at the sentencing hearing. By the next day, though, it was too late.

Professor Berman and Douglas R. Cole, of Jones Day in Columbus, Ohio, plan to file a petition to the Supreme Court on behalf of Sergeant Lett on Tuesday. They are working without pay. “This is a person who causes those who know him to go to extraordinary lengths to help him,” Mr. Cole, a former Ohio solicitor general, said of his client.

Some related posts:

• Should prior military service reduce a sentence?
• My amicus effort to support our troops
• NLJ coverage of Patrick Lett appeal
• Technicality leads Eleventh Circuit to require 5-year mandatory for veteran
• Petition for rehearing in US v. Lett

Is legislation to lower federal sentences a real possibility in 2008?

In this recent post, I hinted at my own pessimism about the prospects of legislation to lower federal sentences during an election year.  But this new article from the Houston Chronicle strike a distinctly more optimistic tone.  Here a excerpts:

The tough-on-crime crackdown of the 1980s and 1990s is getting a second look in Congress. Some lawmakers, including Houston Rep. Sheila Jackson Lee, are questioning whether the soaring incarceration rates brought about by changes in federal sentencing laws have actually deterred crimes....

Jackson Lee, who serves on the House Judiciary Committee's crime subcommittee, is part of the vanguard re-examining a criminal justice system that has seen the federal prison population double from 1.1 million inmates in 1990 to 2.3 million today [sic: these numbers are national incarceration, not the federal prison population]....

The momentum for change reaches beyond liberal lawmakers and left-leaning interest groups. The Supreme Court and the Sentencing Commission recently moved to give judges more discretion in sentencing crack cocaine offenders....

Rep. Lamar Smith of San Antonio, the top Republican on the Judiciary Committee, will be among those standing in Jackson Lee's way.  After the Sentencing Commission's decision to allow judges to retroactively reduce crack offenders' sentences slightly — though not less than the mandatory minimums — Smith introduced his own legislation seeking to block any early releases. "In addition to endangering our communities, allowing the early release of criminals back into society would cripple our re-entry programs by overburdening probation officers and flood the courts with additional litigation," Smith said....

Jackson Lee, who also is pushing to cut prison rates by half for nonviolent federal offenders who are over the age of 45 and have served at least 50 percent of their sentence, said she is hopeful that the new Democratic majority in Congress will be able to prevail on criminal justice changes.  "The question of liberty is so important to me, and the question of having faith in the integrity of the criminal justice system," she said. "There is a sense of urgency to make right which has been wrong, to improve what has not worked, and to find ways to rehabilitate, to protect the American public from crime but at the same time give people a second chance."  Her views are far from universally shared. Jackson Lee acknowledged the legislation faces a strong challenge, though the congresswoman said she has high hopes of getting it into law this year.

For lots and lots and lots of political and practical reasons, I doubt significant sentencing reforms will emerge from Congress in 2008.  But perhaps I am being too pessimistic at a time when everyone seems to be getting on the change bandwagon. 

A (last?) federal juve parole case

A distinctive case and facts leads to an interesting opinion from the Tenth Circuit in Alexander v. US Parole Commission, No. 06-1343 (10th Cir. Jan 29, 2008) (available here). Here is how the opinion begins:

The Federal Youth Corrections Act (“YCA”), enacted in 1950, was designed to prevent youths from hardening into habitual offenders by providing them with treatment aimed at achieving rehabilitation.  18 U.S.C. § 5010 (repealed 1984).  Because the statute was repealed in 1984, there are few inmates remaining who were sentenced under the Act. Petitioner-appellee Roy Alexander may be the only one.  The brutality of his crime — a murder and robbery of four individuals — sets him apart from most YCA offenders and makes his case particularly difficult. Because Mr. Alexander’s crime was so heinous, the United States Parole Commission (“Commission”) has repeatedly denied parole despite Mr. Alexander’s successful completion of his treatment program. Though on each previous habeas petition the district court found the Commission’s denial supported by the evidence, on his most recent petition the district court granted him relief, ordering the Commission to take into consideration possible conditions on release in its analysis of Mr. Alexander’s parole eligibility, and to develop a pre-release plan for Mr. Alexander, to be followed by the Bureau of Prisons.  The Commission appeals from this order.  We take jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253 and affirm in part and reverse in part.

AG Mukasey talking (seriously?) about pushing legislation to undo crack retroactivity

The end of this New York Times article provides more details on Attorney General Michael Mukasey's position on crack retroactivity:

Mr. Mukasey also revealed [in a Friday news conference] that the department was considering whether legislation should be introduced in Congress to block or modify a federal sentencing commission’s decision to reduce prison sentences for crack cocaine dealers. “We need to see what the prospect is for getting legislation and on what terms,” said Mr. Mukasey, who has criticized the commission’s move since it could result in the early release of potentially violent criminals.

This effective Los Angeles Times piece provides more background on this issue and highlights that crack retroactivity reductions have already become a reality for a few offenders in Oregon:

Atty. Gen. Michael B. Mukasey told reporters Friday that the Justice Department may attempt to derail new sentencing guidelines that are expected to allow the early release of thousands of convicted drug offenders.  But that train already appears to be leaving the station. In a surprising development, federal judges in Portland, Ore., have truncated the prison sentences of five defendants convicted of crack cocaine offenses, getting a jump on controversial guidelines that are scheduled to go into effect in March.  The reduced sentences, including two ordered up in the last week, are believed to be the first in a nationwide program that could ultimately cut federal prison time for more than 19,500 convicts. One of the defendants has been released from prison, and the remaining four are in different stages of the process, said Steve Wax, the federal public defender in Oregon....

The attorney general has been unusually outspoken about the possible effect of the reduced crack cocaine sentences.... "Many of those [defendants eligible for release] were involved in violence, and can be expected to continue after they get out," he told reporters. He added that he was especially concerned that inmates released unexpectedly early would not receive the normal job training and drug treatment offered to offenders before their release. "None of that will have happened, or a lot of it will not have happened, by the time some of these folks get out," he said. "And that's a cause of anxiety."

Wax, the public defender in Portland, said the system there appeared to be handling the cases with care, reflecting the close cooperation of local judges, prosecutors, probation officers and public defenders.  Two of the five prisoners granted sentence reductions, he said, were sent to halfway houses to serve some of their probationary time before their release into the community. One defendant is being deported; another was transferred from federal to state custody to face other charges.  He said the inmate who was released was originally sentenced to 18 months in prison for distributing a small amount of crack.

I was not aware of these interesting Oregon developments, and I hope to blog more about them if/when I get additional information.  Meanwhile, it seems clear to me that AG Mukasey is not seriously interested in a legislative fight over this issue right now: it's unlikely, despite Senator Hillary Clinton's misguided opposition to crack retroactivity (details here and here), that a bill rejecting the new guidelines' retroactivity could secure passage in a Democratic Congress anytime soon. 

I suspect AG Mukasey is now being "unusually outspoken" primarily to influence federal district judges as they consider motions for crack sentencing modifications.  As the AG knows, no defendant will get a reduced sentence without judicial approval.  During the post-Booker period, tough talk by DOJ has led judges to be particularly cautious about lenient sentences that might become "tough-on-crime" political talking points.  I suspect that the AG and main Justice hope that tough talk about going to Congress might make it easier for local federal prosecutors to oppose sentence reductions in individual cases.

Some related posts on the practicalities and politics of crack retroactivity:

• AG Mukasey makes ugly cracks about crack retroactivity when announcing new crime initiative
• Fascinating (and first?) crack retroactivity opinion from SDNY
• Important memo analyzing crack retroactivity issues
• Local perspective on implementing crack retroactivity
• USSC unanimously votes to make new crack guidelines retroactive...
• Official USSC press release on crack retroactivity
• Some legal particulars around crack retroactivity implementation

• A retroactive litmus test on leading Democratic candidates
• Reflections on crack sentencing reform realities
• FSR issue covers crack sentencing
• "Give them McDeath, not McLiberty"
• Seeking to clear up Clintonian confusion on crack retroactivity
• More questions about Clinton's opposition to crack guideline retroactivity
• Bill introduced to overturn USSC's crack retroactivity decision

New HRW report assailing juve LWOP in California

As detailed in this press statement, today a new report was released by Human Rights Watch calling upon the California legislature to "pass a law this month to end the sentencing of children to prison for life with no possibility of parole."  The report is entitled "When I Die, They'll Send Me Home: Youth Sentenced to Life without Parole in California," and it can be accessed in various ways from this link.  Here is the start of the report's summary:

Approximately 227 youth have been sentenced to die in California's prisons. They have not been sentenced to death: the death penalty was found unconstitutional for juveniles by the United States Supreme Court in 2005. Instead, these young people have been sentenced to prison for the rest of their lives, with no opportunity for parole and no chance for release.  Their crimes were committed when they were teenagers, yet they will die in prison. Remarkably, many of the adults who were codefendants and took part in their crimes received lower sentences and will one day be released from prison.

In the United States at least 2,380 people are serving life without parole for crimes they committed when they were under the age of 18.  In the rest of the world, just seven people are known to be serving this sentence for crimes committed when they were juveniles.  Although ten other countries have laws permitting life without parole, in practice most do not use the sentence for those under age 18. International law prohibits the use of life without parole for those who are not yet 18 years old.  The United States is in violation of those laws and out of step with the rest of the world.

Some recent related posts on juve life sentences:

• Nebraska working to reform juve LWOP sentences
• NYTimes coverage of very young lifers
• Juves serving life terms
• Fascinating juve clemency development in Colorado
• Life without parole for juvenile may be cruel, but it is not unusual
• The next issue in sentencing of juveniles?
• California considering eliminating LWOP for juveniles
• Forthcoming PBS program "When Kids Get Life"
• Does Roper suggest young juve LWOP is unconstitutional?

Nebraska working to reform juve LWOP sentences

A helpful reader sent me this encouraging article headlined "Bill would give youngsters sentenced to life in prison hope for parole."  Here are excerpts:

Nebraska would join eight other states that have prohibited sentencing young murderers to life in prison without parole under a bill introduced Thursday in the Legislature. Nebraska currently has 30 people who were sent to prison for life before their 19th birthdays....

Under the bill introduced by State Sen. Dwite Pedersen of Omaha, those convicted of a murder that was committed before their 18th birthday could be considered for parole after 25 years. Those convicted of a murder committed before their 16th birthday could be considered for parole after 20 years.

In a recent report, Nebraska youth advocacy group Voices for Children, which supports Pedersen's bill, said "life without parole is contrary to the mission of juvenile justice."...  Eight states and the District of Columbia now prohibit the sentencing of youth offenders to life without parole. Colorado is the most recent to ban the sentence, acting in 2006.

Some related posts:

• NYTimes coverage of very young lifers
• Juves serving life terms
• Fascinating juve clemency development in Colorado
• Life without parole for juvenile may be cruel, but it is not unusual
• The next issue in sentencing of juveniles?
• California considering eliminating LWOP for juveniles
• Forthcoming PBS program "When Kids Get Life"
• Does Roper suggest young juve LWOP is unconstitutional?

Lots of Gall and Kimbrough GVRs this morning from SCOTUS

The first 17 pages of this new order list released by the Supreme Court this morning are taken up a whole big bunch of Gall and Kimbrough GVRs — which means the Supreme Court Granted the petition for review, and then Vacated the circuit court's decision below, and then Remanded the case for further consideration by lower courts in light of the decisions in Gall and Kimbrough.

I quickly counted about 75 GVRs in those pages and same the names of many of the defendants in some of the better-known crack/powder circuit cases — e.g., Pho from the First Circuit, Eura from the Fourth Circuit, Jointer from the Seventh Circuit, Spears from the Eighth Circuit.  These GVRs are not that surprising, but how the circuit courts deal with all these cases they got wrong the first time will be interesting to watch.

Relatedly, I would be grateful if readers could spotlight in the comments any other notable cases appearing on — or missing from — this long GVR list.

NY litigation over the state of parole

Yesterday's New York Times had this interesting piece about disputes and litigation over the rights of state felons to be granted parole.  Here is how it starts:

Last year, a group of violent felons sued the administration of Gov. George E. Pataki, charging that the state was ignoring the law by categorically denying them parole.  They figured their chances would improve under his successor, Eliot Spitzer, even though Mr. Spitzer was a tough former prosecutor who supported the death penalty.

In the spring, they were heartened when Mr. Spitzer’s new chairman of the State Parole Board, George B. Alexander, reminded his fellow commissioners that they were obligated to consider the potential for rehabilitation, remorse and recidivism as well as the severity of the original crime.

By fall, lawyers for the plaintiffs and Attorney General Andrew M. Cuomo were on the verge of a legal settlement that would have granted 1,000 or so inmates new parole hearings.  At the last minute, word of the settlement was leaked to the press, around the same time that the board approved parole for a man who had taken part in a holdup that led to a police officer’s death.  Among the critics was Patrick J. Lynch, president of the Patrolmen’s Benevolent Association in New York City, who said, “Violent felons should not be eligible for parole, and cop killers should stay incarcerated for life.”

With Mr. Spitzer’s political capital depleted and the governor hardly eager to embark on another unpopular crusade, the Division of Parole, which reports to the governor, rejected the settlement in November.

Fascinating proportionality opinion from Oregon court

A helpful reader alerted me to a fascinating opinion from the Oregon Court of Appeals in Oregon v. Rodriguez, No. A131050 (Or. Ct. App. Dec. 26, 2007) (available here).  Both the underlying facts and the legal discussion in this case are noteworthy, and these lengthy excerpts provide only a small flavor of an opinion worth reading in full:

In early 2004, defendant [Victoria Rodriguez] was employed by the Hillsboro Boys and Girls Club to work with at-risk youths....  The victim was a member of the club....  On February 14, 2005, a staff member ... saw defendant and the victim in the game room at the club. There were approximately 30 to 50 youths and at least one other staff member in the room.  The victim, who had since turned 13, was sitting on a chair.  Defendant, who had since turned 25, was standing behind him, caressing his face and pulling his head back; the back of his head was pressed against her breasts.... The contact lasted approximately one minute....

Defendant was eventually charged with first-degree sexual abuse based on the incident.  A jury found defendant guilty....  At sentencing, the prosecutor asked the court to impose the 75-month sentence prescribed by ORS 137.700 (commonly referred to as "Measure 11").  Defendant objected, arguing that the Measure 11 sentence would be unconstitutionally excessive.  Numerous family members, friends, and coworkers testified in support of defendant.  The court agreed with defendant that a 75-month sentence would be cruel and unusual.  The court observed that defendant had no prior criminal record and that she had "lived an exemplary life" and had "really made a very positive impact into the lives of apparently many children * * *." It further noted that the touching occurred "in a crowded room, over clothing, [and was] not prolonged."  The court concluded that a 75-month sentence "just cries out" as being shocking to any reasonable person.  It imposed a 16-month sentence.  This appeal followed....

The state contends, among other things, that, given the nature of the relationship between defendant and the victim, the 75-month sentence mandated by Measure 11 would not shock the moral sense of all reasonable people....  We agree with the state that, given the nature of the relationship between defendant and the victim, there can be no doubt that the Measure 11 sentence would not shock the moral sense of all reasonable people.  It is undisputed that the victim was young and vulnerable, a prototypical "at-risk" youth. Defendant was in a position of trust and responsibility, akin to that of a teacher or youth counselor, charged with helping children make appropriate behavioral choices.  By engaging in sexual conduct with the victim, defendant seriously abused that trust.

In short, we cannot say that the 75-month sentence required under Measure 11 would shock the moral sense of all reasonable people as to what is right and proper under the circumstances.  It follows that the trial court erred in refusing to impose that sentence.

Evolving images of a killer and the evolving Eighth Amendment

There are so many interesting facets of the Pittman case (first discussed here), which has now been brought to the Supreme Court.  This new National Law Journal article provides the basics and highlights the role of a law school clinic in bringing the case to the Supreme Court:

A group of University of Texas School of Law students has helped file a petition with the U.S. Supreme Court in hopes of getting a South Carolina teenager's sentence reviewed.  The petition, filed on Monday, asks the court to review the case of Christopher Pittman, who is serving a 30-year sentence without parole for murdering his grandparents when he was 12.  Five third-year law students from the school's Supreme Court Clinic in Austin teamed up with five public policy students and spent the semester working on the case.

In addition, as spotlighted in this post at Pharmalot, the Pittman case has already drawn plenty of attention from folks other than those concerned just with the operation of the criminal justice system:

[If the Supreme Court takes this case] another aspect is likely to get attention — Christopher Pittman was taking Zoloft at the time he used a shotgun to shoot his grandparents, and then set fire to their home in 2001.  During his trial four years later, his attorneys argued, unsuccessfully, that the rampage was heavily influenced by the antidepressant, which Pfizer has always denied....  Meanwhile, a [recent] Fox News program, Hannity’s America, ran a segment linking recent mass shootings by teenagers with antidepressants. The episode had its flaws — the reporter failed to include comment from anyone in pharma or at the FDA, and suggested a connection to the recent shooting at the Omaha shopping mall without offering any evidence. Nonetheless, these two items suggest the debate over the proper use of antidepressants won’t go away and, in fact, is likely to remain polarized for the foreseeable future.

While others may be primarily interested in the human and medical stories that surround this case, I am focused on legal issues concerning the interpretation and application of the Eighth Amendment in this (non-capital) context.  Of particular interest to me is how the Eighth Amendment is to be applied in non-capital cases in light of the Court's recent capital rulings in Roper and Atkins (and its forthcoming work in Baze).  Specifically, I wonder whether and how the legal concept of an "evolving national consensus" that was central in Roper and Atkins should be unpacked here.  Against this backdrop, I am especially intrigued by the different images of the defendant that can be in the mind's eye as one thinks about whether the sentence he received is unconstitutional because it would violate societal mores.  As a few shrewd commentors have already noted (and as the pictures in this post highlight) the evolving nature of a young man perhaps has already played a role in his fate, and could continue to play a role in the debate over this case.

A severe juve sentence seeking SCOTUS attention

How Appealing does a great job here collecting resources relating to the cert petition filed yesterday in the in Pittman v. South Carolina.  This AP article provides the basics:

Attorneys have asked the U.S. Supreme Court to hear the case of a teen sentenced to 30 years in prison for killing his grandparents when he was 12, arguing that the sentence is cruel.... In the brief submitted to the high court late Monday, attorneys from the University of Texas School of Law argued that the 30-year sentence violates Christopher Pittman's Eighth Amendment protection from cruel and unusual punishment.

The adverse ruling from the South Carolina's highest court, which can be found here, rejected the defendant's constitutional challenge by stating, inter alia, that "we do not believe that evolving standards of decency in our society dictate that it is cruel and unusual to sentence a twelve-year-old convicted of double murder to a thirty-year prison term."

The cert petition, which Howard Bashman has made available for downloading via this link, presents these three questions:

I.  Is a sentence of 30 years without possibility of parole constitutionally disproportionate as applied to a 12-year-old child?

2.  Are the mitigating qualities of youth relevant to whether a 12-year-old's non-capital sentence is constitutionally disproportionate?

3.  Does the Eighth Amendment prohibit the imposition of a sentence of 30 years without possibility of parole on a 12-year-old child where the sentencer was absolutely precluded from considering youth as a mitigating factor justifying lesser punishment?

For lots and lots of reasons, I really hope the Supreme Court takes this case.  In fact, I think Pittman is a much more important and consequential case than the child rape capital case from Louisiana (Kennedy) that many SCOTUS watchers are watching so closely.  But, because capital cases always seem to drawn unique interest from the Justices, I'd probably bet Kennedy is a more likely grant than Pittman.  (In my perfect (and very, very unlikely) world, these cases would be consolidated for one mega-argument about the modern scope and reach of the Eighth Amendment.)

Seventh Circuit tries to keep post-conviction attacks in order

Though a small per curiam opinion, the Seventh Circuit in Collins v. US, No. 07-1820 (7th Cir. Dec. 6, 2007) ("published" today and available here), makes many big points for defendants and litigants trying to sort through various avenues for seeking post-conviction relief following a federal conviction and sentence.  Here are snippets:

[B]oth the Supreme Court in Felker and this court in several opinions have held that judges must respect the plaintiff’s choice of statute to invoke — whether §2241, §2255, or 42 U.S.C. §1983 — and give the action the treatment appropriate under that law....

A motion in a criminal case — whether nominally under Fed. R. Crim. P. 33, or bearing an ancient title such as coram vobis or audita querela — may be treated as one under §2255, because the caption on a document does not matter... [though] the district judge first must alert the prisoner to the consequences of this step and give him an opportunity to withdraw the request. But §2241 and for that matter §1983 authorize distinct forms of relief in specific courts.  Persons who initiate independent litigation are entitled to have it resolved under the grant of authority they choose to invoke.

I have long believed that, in the wake of Blakely and Booker, enterprising lawyers (or even law students) can make a nice career out by figuring out (and helping others effective litigate) strategies for bringing appropriate collateral attacks to unlawful (but "final") federal sentences.  This ruling in Collins, as well as the similar recent ruling from the Second Circuit in Richter concerning the writ of audita querela (details here), confirms my belief.

Second Circuit confirms writ of audita querela as a viable "hail mary" motion

A tiny per curiam opinion today from the Second Circuit in US v. Richter, No. 06-1930 (2d Cir. Dec. 4, 2007) (available here), has an important sentence that could be a very big deal for criminal defendants needing a special avenue to get into the courthouse door.  In Richter, the panel denies a petitioner's writ of audita querela, but has this important line along the way: "if the absence of any avenue of collateral attack would raise serious constitutional questions about the laws limiting those avenues, then a writ of audita querela would lie."

I think this could mean that if you have a really strong substantive claim for attacking a conviction and sentence, but all the courthouse doors are otherwise closed, a writ of audita querela is the answer.  Of course, as Baltimore Raven fans know well, even when a last-minute hail mary pass connects, victory is not assured.  Still, the Second Circuit's acknowledgement that a writ of audita querela is sometimes available seems of great import.

A retroactive litmus test on leading Democratic candidates

anIf this blog post from The Atlantic Online is accurate, it confirms my deep concerns about how Hillary Clinton would approach crime and punishment issues as president.  The post is titled "Clinton, Obama, Edwards Differ On Retroactivity," and it reports that "Clinton opposes [retroactivity of the USSC's new crack amendments], and Edwards and Obama support it."

So, assuming this is accurate, let's review the line-up: the prominent opponents to retroactivity for the new USSC guidelines are President Bush's Justice Department (noted here), Republican members of the House Judiciary Committee (noted here), and now Senator Hillary Clinton.

As I have detailed in prior posts (some of which are linked below), I have long been troubled by the Clinton "brand" when it comes to criminal sentencing issues.  But, of course, most of the troublesome record on these issues involved decisions by Hillary's husband.  Now, assuming this blog report is accurate, we have a very strong basis to believe that Hillary herself favors tough-on-crime rhetoric over sound sentencing policy.  Now who should be accused of taking a page out of the Republican play book?

Some recent posts on crack guideline retroactivity issues:

• USSC hearing testimony on crack amendment retroactivity
• A report on the USSC crack retroactivity hearing
• Media coverage of crack retroactivity hearing
• Inside the Beltway views on crack amendment retroactivity
• Effective coverage of crack retroactivity debate
• USSC analysis on potential crack amendment retroactivity impact
• Thoughtful review of crack amendment retroactivity debate
• Latest FSR issue covers crack sentencing

Some recent posts on sentencing politics in the 2008 campaign:

• Clinton and Obama, crime and punishment
• Will sentencing issues surface in the Clinton-Obama battle for black votes?
• Politics and the war on drugs
• Should criminal justice reform be the new civil rights movement?
• Honoring MLK by asking hard questions
• Obama talking about serious sentencing reform

UPDATE:  I now see that this item at Politico has more on this story.  Here are some telling details:

Clinton, who said she supports a federal recommendation for shorter sentences for some people caught with crack cocaine, opposed making those shorter sentences retroactive — which could eventually result in the early release of 20,000 people convicted on drug charges.  "In principle I have problems with retroactivity," she said. "It's something a lot of communities will be concerned about as well." 

In an interview after the debate, Clinton's pollster, Mark Penn, pointed out that the Republican front-runner has already signaled that he will attack Democrats on releasing people convicted of drug crimes.

Her five rivals present on stage — Illinois Sen. Barack Obama, Connecticut Sen. Chris Dodd, former North Carolina Sen. John Edwards, New Mexico Gov. Bill Richardson, and Ohio Rep. Dennis Kucinich — all said they favor making the shorter sentences retroactive.

"Rudy Giuliani is already going after the issue," Penn said. "He's already starting to attack Democrats, claiming it will release 20,000 convicted drug dealers."

So, besides suggesting that Hillary Clinton gets her crime and punishment ideas from the Giuliani campaign, this issue ought to help Democratic primary voters who care about principled sentencing reform know that not all the candidates are the same.  (I am now wondering if keep prison populations growing is part of Hillary's universal health-care plan.)

MORE:  I am pleased to see TalkLeft picking up this story, calling Clinton's position "a huge disappointment."  I also see MyDD has this post saying that "Hillary's position is really astonishing."  I hope other prominent political bloggers will keep on this important issue which provides, at least for me, a great litmus test on true principle versus (mis-perceived) political pragmatism.

Unpacking the legal and practical consequences of parole changes

Adam Liptak's latest "Sidebar" column in the New York Times, "Contemplating the Meaning of 'Life,'" highlights an issue that many courts are likely to confront as parole opportunities get tighter and tighter.  Here are snippets from a piece flagging an issue that could justify a lot of serious scholarship:

In 1977, when Gerald L. Hessell was sentenced to life in prison for second-degree murder, a gallon of gas cost 62 cents and a life term in Michigan meant about 15 years. But Michigan changed its parole system in 1992, replacing a parole board made up of civil servants with political appointees. The new board summarized its thinking in a presentation to the state’s judges in 2001: “A life sentence means life in prison.”

Mr. Hessell was released the other day, thanks in part to a decision from a federal judge in Detroit last month ruling that the state had violated the ex post facto clause of the Constitution when it changed the parole rules.  The clause says the government cannot increase punishments retroactively. Mr. Hessell was 19 when he was sentenced, and he is 50 now. “I was told by my attorney at the time that I could look to do about 12 to 15 years provided I had a clean record,” he said last week. “It was a 31-year fight to get out.”

It is not clear how the federal judge’s decision will affect about 1,000 other Michigan lifers sentenced before 1992.  The judge, Marianne O. Battani, has yet to decide exactly what should follow from her ruling, and the state has said it will almost certainly appeal once she does....

It used to be, the plaintiffs in the Detroit suit said, that more than 5 percent of lifers were paroled every year. These days, the number has dropped to less than a fifth of a percent.  A survey of 95 current and retired judges by the Michigan bar released in 2002 indicated that a majority thought that lifers eligible for parole would serve fewer than 20 years....

Courts in other states have also been struggling with how far states can go in changing their pardon and parole systems retroactively. In 1997, for example, the Pennsylvania board of pardons reserved a seat for a crime victim and required a unanimous rather than majority vote.

Last year, a lower court ruled that those changes violated the ex post facto clause.  Last Monday, a federal appeals court in Philadelphia said the particular plaintiffs in the suit may not have had standing to sue and ordered the trial judge to look into that.  It did not address the central question in the case.

Vermont Supreme Court limits retroactivity of its Blakely ruling

As detailed in this AP story, the Vermont Supreme Court "ruled yesterday that a 2005 decision that found Vermont's laws on sentencing murderers unconstitutional did not apply to a long list of killers sentenced before it was issued."  This ruling came in State v. White, 2007 VT 113 (Nov. 9, 2007) (available here), and White is an especially interesting read now that the US Supreme Court is considering state retroactivity authority in the Danforth case (discussed here and here and here).

Paroling the elderly

This morning's New York Times has this interesting article about New York's decision to parole the state's oldest inmate.  Here is how it starts:

A panel of the State Parole Board voted 2 to 1 yesterday to release Charles E. Friedgood, a wealthy Long Island surgeon who was convicted in 1976 of murdering his ailing wife and who is now, at 89, the oldest state prison inmate in New York. He is expected to be freed in mid-December and admitted to a veterans’ hospital.

Reversing a ruling announced on Oct. 10 by a panel of three other parole commissioners, the majority concluded yesterday, “There is reasonable probability that, if released, this inmate will live and remain at liberty without violating the law.”

Mass SJC gives force to due process and fundamental fairness at sentencing

As noted by How Appealing and explained in this Boston Globe article, yesterday the Supreme Judicial Court of Massachusetts concluded in State v. Ly that the "execution of the defendant's sentences, after an unexplained delay of sixteen years on the part of the Commonwealth to have the sentences executed, would violate due process and principles of fundamental fairness."  Here are passages from the ruling (with some cites omitted):

It is a basic principle that a defendant sentenced to incarceration has a due process right to serve the sentence promptly and continuously, rather than "in installments." White v. Pearlman, 42 F.2d 788, 789 (10th Cir. 1930) (premature release).  Otherwise, "[a] prisoner sentenced for one year might thus be required to wait forty under the shadow of his unserved sentence before it pleases the marshal to incarcerate him."  Smith v. Swope, 91 F.2d 260, 262 (9th Cir. 1937) (unexecuted sentence).  Consistent with these cases is the proposition that the execution of a defendant's sentence, including one which has been stayed pending the resolution of an appeal, as a matter of fundamental fairness, must be pursued with reasonable diligence.  We conclude that requiring the defendant to serve his sentences, at this point in time and on these facts, would violate the concept of fundamental fairness that is at the core of due process.  See State v. Roberts, 568 So. 2d 1017, 1019 (La. 1990) (due process and fundamental fairness required release of prisoner [on parole] when government failed to execute sentence for six years).  Other courts considering circumstances like this have reached the same result based on different theories....

This court addressed at length, in Aime v. Commonwealth, 414 Mass. 667, 673-675 (1993), key differences between the constitutional protections against improper governmental action known as "substantive due process" and "procedural due process."  We have decided this case under a traditional procedural due process analysis, similar to that used in determining whether a defendant has been denied the constitutional right to a speedy trial.  We need not decide, therefore, whether incarcerating the defendant (at this point in time and on these facts) would "shock the conscience," thereby violating his right to substantive due process as well.

Crunching the numbers on a presumption of reasonablenss

I was very pleased to learn of this new article on SSRN, which examines empirically the impact of the presumption of reasonableness for within-guideline sentences.  The article by Alex Robbins and Lynda Lao is entitled "The Effect of Presumptions: An Empirical Examination of Inter-Circuit Sentencing Disparities After United States v. Booker," and here is the full abstract:

In the two years since United States v. Booker, the circuits have divided over how to use the Federal Criminal Sentencing G