Friday, April 22, 2005
Morning sentencing stories
Here are just a few of the many sentencing items in the morning papers:
- This article in the Houston Chronicle discussing yesterday's sentencings of two Enron Nigerian barge defendants (discussed here and here) suggests that, because the defendants received "far less than the government requested Thursday, [the result gave] white-collar criminal defense attorneys hope the sentences herald a better day for their clients."
- This article from North Dakota discusses the Eighth Circuit's decision yesterday in a major fraud case (discussed in this post).
- This commentary from Wisconsin about a federal sentencing has the compelling title of "Polite bandit gets a polite sentence."
- This article from Pennsylvania reports on a federal sentence in which the defendant received "more than three years in prison for selling mail-order videotapes of fighting pit bulls."
Wednesday, April 20, 2005
Two for Tuesday from the 7th Circuit
Though the discussion of plain error coming from Eleventh Circuit judges is perhaps the most noteworthy of the Booker circuit developments Tuesday (details here), two opinions from the Seventh Circuit caught my eye and merit brief mention:
- In US v. Lewis, No. 03-4100 (7th Cir. Apr. 19, 2005) (available here), Judge Easterbrook expounds on Shepard and the use of criminal history under the guidelines, explaining along the way that "[w]hat matters is the fact of conviction, rather than the facts behind the conviction."
- In US v. Cunningham, No. 03-3006 (7th Cir. Apr. 19, 2005) (available here), Judge Coffey explains, in a decision that also has a brief discussion of reasonableness, why a Paladino remand is not required in a case in which the sentencing judge departed upward based on (uncharged) relevant conduct in a child pornography case.
April 20, 2005 in Almendarez-Torres and the prior conviction exception, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack
Wednesday, March 30, 2005
The intersection of sex offenses and juvenile offenders
Thanks to TalkLeft's post here, I see this interesting abc-news article about a young man who committed a sex offense when 13 years old now forced at age 18 to be placed on a sex-offender registry. The article thoughtfully explores the challenging issues raised by the intersection of sex offenses and juvenile offenders.
The case noted in the article presents another example — along with the recent California case noted here overturning a three-strikes sentence of 25-years-to-life for the "technical violation" of a sex offender failing to update his registration — of the extensive reach and impact of sex offender registration laws. Also, the article perhaps implicates ideas I developed here in the wake of the Supreme Court's juvenile death-penalty decision in Roper about whether the High Court's statements in Roper about the "mitigating force of youth" should come to bear in some non-capital sentencing settings.
25 years too long for failure to register
As first noted by Appellate Law & Practice here, a California intermediate appellate court in People v. Carmony, No. C038802 (Cal. App. 3d Dist. Mar. 25, 2005) (available here) has found unconstitutional a three-strikes sentence of 25-years-to-life for the "technical violation" of a sex offender failing to update his registration within 5 days of his birthday. The Carmony court called the defendant's failure to re-register "completely harmless and no worse than a breach of an overtime parking ordinance," and it concluded that this application of three strikes to the sex offender registration law violates the federal Eighth Amendment prohibition on "cruel and unusual punishments," as well as California's constitutional prohibition on "cruel or unusual punishment."
The extended Carmony opinion provides a useful primer on both California's three-strikes law and modern Eighth Amendment analysis. It also brings to mind this recent post about the development of state constitutional law, and post here and here about sex offender sentencing. Of course, this is the type of non-violent case that, I believe, would no longer have been subject to California's three-strikes law if last year's amendment to the law had been approved by votes in Proposition 66 (see discussion here and here).
Monday, February 21, 2005
Perspectives on sex offender sentencing and treatment
In recent Booker-related posts here and here, I have stressed the importance of focusing upon data rather than anecdote when assessing federal sentencing post-Booker. In an interesting post here, TalkLeft spotlights this very important issue in the context of sex offender sentencing and treatment. In addition to encouraging a review of that post, here are some earlier related posts on sex offender sentencing:
- The power of the headline-making crime
- Intriguing report about sex offenders
- Sex offender sentencing
Wednesday, January 12, 2005
A brief Booker break (sort of)
I will have a lot more Booker commentary tomorrow, but a few other notable sentencing items caught my eye tonight.
First, this New York Law Journal article provides a thoughtful account of "the latest in a series of cases where judges struggle with the legal, pragmatic and appropriate Internet restraints that may be imposed as a condition of probation or parole." The piece had me wondering again about California's new law, discussed here, making it a crime for registered sex offenders to enter the state's Megan's Law database.
Second, Marty Lederman at SCOTUSblog here notes that Roper v. Simmons, concerning the constitutionality of the juvenile death penalty, is now the only opinion outstanding from the October session. He also notes that Justice Kennedy almost certainly was assigned to write the majority opinion.
And speaking of Justice Kennedy, I found it very interesting and notable that he did not speak at all in Booker. Justice Kennedy has always seemed keenly interested in sentencing issues, as reflected in his potent speech to the ABA in 2003 assailing federal sentencing policies and in the various interesting opinions he has authored in sentencing cases. Of course, especially since, practically speaking, Justice Breyer's Booker opinion echos aspects of Justice Kennedy's ruling for the Court in Koon (which championed judicial discretion through departures under SRA), it certainly seems possible that Justice Kennedy may have played a behind-the-scenes role in the ultimate Booker outcome.
Thursday, January 06, 2005
Sentencing and religion
The intersection of sentencing issues and religion is a fascinating (and, in my view, underexamined) topic. These matters are actively percolating in the corrections setting, with the faith-based prison movement and a forthcoming Supreme Court case about RLUIPA (background here). We also often see opposition to the death penalty influenced by religious views, as evidenced by developments last year in Ohio and the work of Sister Helen Prejean. But on occasion, as evidenced by an intriguing Sixth Circuit case today, these matters can also intersect in individual sentencings. (Thanks to How Appealing and a reader for the tip.)
In today's Sixth Circuit decision in Arnett v. Jackson, No. 03-4375 (6th Cir. Jan. 6, 2005), a divided panel reversed a grant of habeas corpus in favor of a state prisoner in a child rape case. The district court granted habeas due to the state trial judge's reference to the Bible during petitioner's sentencing hearing, based on the conclusion that the "trial court's use of the Bible as a 'final source of authority' constituted an impermissible factor for sentencing."
The Sixth Circuit, over a vigorous dissent, disagreed: it contended that "the principle embedded in the referenced Biblical passage (of not harming young children) is fully consistent with Ohio’s sentencing consideration to the same effect," and it suggested that the state trial judge "cited to the Biblical passage to underscore the contention that our society has a long history of sternly punishing those people who hurt young children." The whole case is a very interesting read, as this provocative passage from the Judge Clay's dissent highlights:
If the Constitution sanctions such direct reliance on religious sources when imposing criminal sentences, then there is nothing to stop prosecutors and criminal defense lawyers from regularly citing religious sources like the Bible, the Talmud, or the Koran to justify their respective positions on punishment. The judge would be placed in the position of not only considering statutory sentencing factors, but also deciding which religious texts best justify a particular sentence. Under this approach, the judgments of trial courts could begin to resemble the fatwas of religious clerics, and the opinions of appellate courts echo the proclamations of the Sanhedrin. The result would be sentencing procedures that create the perception of the bench as a pulpit for which judges announce their personal sense of religiosity.
The power of the headline-making crime
I have often lauded Minnesota for its handling of Blakely issues (see here and here), and Professor Richard Frase's recent article (discussed here) highlights Minnesota's guideline system as a model for other jurisdictions. But the latest news from Minnesota highlights that even this state can have its sentencing policy influenced greatly by one headline-making crime.
As detailed in this article, as a result of the disappearance of Dru Sjodin, a college student kidnapped from a North Dakota mall, the state has been considering sex-offender legislation and Governor Tim Pawlenty has labeled sex offenders "his number public safety issue." In this well-done editorial, the Minnesota Star-Tribune highlights the problem with such an approach to criminal justice policy-making:
Not every tragedy can be prevented by legislation. Not every crime is reason to revamp the criminal code. These are lessons Minnesota leaders should take to heart as they think about how to handle Minnesota's sex offenders. Though the topic sits near the top of this session's agenda, it's not at all clear that any of the various "reforms" so far proposed would actually enhance public safety.
It's easy to see why state leaders are now so keen to crank up sentences for sex crimes, They are properly horrified by the 2003 kidnapping and murder of student Dru Sjodin and the subsequent arrest of a just-released repeat sex offender for the crime. When constituents get riled about a particular crime, lawmakers scramble to toughen penalties.
It's a natural impulse, and this session has given rise to at least two proposals for cracking down on sex offenders: Gov. Tim Pawlenty's plan to require "indeterminate" prison terms for all sex offenders and a bid by the state's Sentencing Guidelines Commission to stretch sentences for all sex crimes and reserve indefinite terms only for serious repeaters. Both plans call for a parole board to decide whether and when inmates can be released.
Reviving the parole board is indeed appealing -- so long as it's empowered to consider all inmates' fates. The move would likely be unnecessary if the Sentencing Guidelines Commission, which replaced the board in 1982, were left alone to fulfill its term-setting charge. But the legislative habit of tinkering with sentence lengths has hobbled the commission's ability to assure a fair system of punishment -- thereby raising doubts about whether all wrongdoers are ending up where they should. In fact, it seems likely that many Minnesotans would agree that too many prison beds are now filled by offenders who could more readily be helped and held to account in some other venue....
Lawmakers should be skeptical of all proposals to revamp Minnesota's approach to managing sex offenders. After all, it could very well be that the current system generally works very well -- so long as people follow the rules. The heartbreak of Sjodin's murder -- a crime for which Alfonso Rodriguez Jr. stands accused -- can't be attributed to a flaw in state law.... This isn't to say that state sex-crime laws couldn't benefit from fine-tuning. But it's simply incorrect to blame Sjodin's death on feeble state statutes. Fault is more properly placed on a moment of misjudgment, most certainly related to cost-saving pressures within state departments. It could be that the smartest thing lawmakers can do this year is to assure that the programs charged with handling sex offenders have everything they need to perform well.
Sunday, January 02, 2005
Sunday's stimulating sentencing stories
After reading about all the bowl games in the sports pages — how 'bout that Rose Bowl — there are a number of thought-provoking articles in today's newspapers:
- Emily Bazelon has this interesting essay entitled "Sentencing by the Numbers" in the New York Times Magazine, which thoughtfully discusses Virginia's fascinating and controversial risk-assessment sentencing that encourage "judges to sentence nonviolent offenders the way insurance agents write policies, based on a short list of factors with a proven relationship to future risk." (As detailed here, the Federal Sentencing Reporter recently devoted a full issue to risk assessment, and Grits for Breakfast here has some thoughtful comments on the Times article.)
- This article thoughtfully reviews the state of the death penalty in Louisiana, as well as nationwide death penalty developments in 2004. I was surprised and intrigued to learn that Louisiana has not executed anyone since 2001 and that "Orleans Parish counted its seventh year without a single death sentence, despite ample opportunity [because the local DA seeks the death penalty in every first-degree murder case] and a high murder rate." UPDATE: And, thanks to TalkLeft here, I see that the Washington Post has this editorial applauding the recent declines in the use of the death penalty.
And, thanks to How Appealing, from South Carolina we get this article about the juvenile death penalty in that state, as well as a set of companion stories (linked here), which details the potential impact of the Supreme Court's coming constitutional ruling in Roper on the juvenile death penalty (background here and here).
January 2, 2005 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack
Thursday, December 30, 2004
Another way to be punished without conviction
The Blakely ruling at its core seems sound to me because it will generally prevent persons from being punished for crimes for which they were not convicted (which is a not-uncommon practice under the existing federal guidelines). But this interesting article from Utah shows that, even after Blakely, there are still some ways persons can be punished for unconvicted conduct.
The article reports on a decision by the Utah Board of Pardons and Parole to keep a man in jail for armed robbery after DNA evidence linked him to a series of rapes:
Some legal observers say the case of Rudy Michael Romero, 40, sets a dangerous precedent, because Romero is effectively being held in prison on an indeterminate sentence for crimes for which he was never convicted.
Romero was sentenced to five years to life for aggravated robbery, and was scheduled to be paroled July 27 after serving 10 years of his sentence. But the parole board rescinded the date after learning June 22 he had been implicated in five rapes committed in the early 1990s after the crime lab matched his DNA with preserved evidence.
Romero has no known sexual-assault convictions and wasn't implicated in the cases until the state crime lab began to take saliva samples from prison convicts to match against DNA evidence in unsolved crimes. However, Romero cannot be tried for the Jordan River rapes because the four-year-statute of limitations has expired.
The article also notes that "according to state law, the board's decisions are absolute and cannot be appealed." However, in a post-Blakely world, it will be interesting to see if courts might be more willing to intervene in a decision of this sort than in the past.