Sentencing Law and Policy

Governor receives competing death penalty requests in Kentucky

News articles this morning in The Courier-Journal report on competing requests being made of the Governor of Kentucky.  Here is one story's lead: "Gov. Steve Beshear has been asked to halt all executions until a 10-member team of state lawyers and former judges recently appointed by the American Bar Association can assess Kentucky’s flawed death-penalty system."  Here is another story's lead: "Attorney General Jack Conway on Monday asked Gov. Steve Beshear to set execution dates for three death-row inmates."

Though I am inclined to assume that the AG's request for execution dates will surely eclipse the ABA's request for a moratorium, Kentucky has a funny history with respect to executions.  Though many of its neighbors (especially Virginia and Ohio and Indiana) have executed a significant numbers of murderers, Kentucky has had only three executions in the modern era, and I believe two of those who were most recently executed were volunteers who had dropped some appeal opportunities.

"Right and Left Join to Challenge U.S. on Criminal Justice"

The title of this post is the headline of this terrific (and heart-warming?) new article in the New York Times by Adam Liptak.  Here are excerpts:

In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption.  Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.

But so have conservative, libertarian and business groups.  Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.

The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration. “It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers.  “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”

Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.  Mr. Meese once referred to the American Civil Liberties Union as part of the “criminals’ lobby.” These days, he said, “in terms of working with the A.C.L.U., if they want to join us, we’re happy to have them.”

Dick Thornburgh, who succeeded Mr. Meese as attorney general under President Ronald Reagan and stayed on under President George Bush, echoed that sentiment in Congressional testimony in July....

Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, “Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)...

Several strands of conservatism have merged in objecting to aspects of the criminal justice system. Some conservatives are suspicious of all government power, while others insist that the federal government has been intruding into matters the Constitution reserves to the states.  In January, for instance, the Supreme Court will hear arguments in United States v. Comstock, about whether Congress has the constitutional power to authorize the continued confinement of people convicted of sex crimes after they have completed their criminal sentences.

Then there are conservatives who worry about government seizure of private property said to have been used to facilitate crimes, an issue raised in Alvarez v. Smith, which was argued in October....

Some religious groups object to prison policies that appear to ignore the possibility of rehabilitation and redemption, and fiscal conservatives are concerned about the cost of maintaining the world’s largest prison population....

The roots of the conservative re-examination of crime policy might also be found in the jurisprudence of Justices Antonin Scalia and Clarence Thomas.  The two justices, joined by liberal colleagues, have said the original meaning of the Constitution required them to rule against the government in, among other areas, the rights of criminal defendants to confront witnesses....

The conservative re-evaluation of crime policy is not universal, of course.  Two notable exceptions to the trend, said Timothy Lynch, director of the Cato Institute’s criminal justice project, are Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.  “Roberts and Alito are coming down consistently on the side of the government in these criminal justice cases,” Mr. Lynch said.

Some scholars are skeptical about conservatives’ timing and motives, noting that their voices are rising during a Democratic administration and amid demands for accountability for the economic crisis.  “The Justice Department now acts as a kind of counterweight to corporate power,” said Frank O. Bowman, a law professor at the University of Missouri.  “On the other side is an alliance between two strands of conservative thinking, the libertarian point of view and the corporate wing of the Republican Party.”

Mr. Meese acknowledged that the current climate was not the ideal one for his point of view. “We picked by accident a time,” he said, “when it was not a very popular topic in light of corporate frauds.”

So, it seems that anyone inclined to complain about President Obama's failure to bring the left and the right together on important issues should be sure to acknowledge that at least partisan lawyers have recently been working in a bipartisan fashion to oppose Prez Obama's Justice Department.

Also, notably missing in this discussion is my favorite new arena for some right/left convergence: the Second Amendment.  Of course, many on the left and the right disagreed on the basic question of whether the Second Amendment protects an individual right.  But now that Hellerhas resolved this issue, I sense that folks on both sides generally agree that the Second Amendment should be incorporated against the states and that the scope of gun rights can and should be significantly restricted by lots and lots of reasonable regulations.

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.”

Is there a conflict-of-interest (and a real bias problem) when district judges help define a circuit's sentencing standards?

As noted in this post, today Sixth Circuit panels in two cases split over whether district judges had sentenced reasonably in two drug cases.  Beyond the specifics of the two rulings, I find especially noteworthy the fact that the "swing" voter helping to make up the two-judge majority opinions in these cases are district judges from within the Sixth Circuit sitting by designation.  Though I think there are practical benefits from district judges sitting by designation on circuit courts, I feel it is hinky for district judges in these kinds of cases to be key votes deciding the nature and application of reasonable review.

One might develop a general argument that district judges when sitting by designation are always likely to be inclined to affirm the work of fellow district court judges.  But whatever one thinks of this general notion, there can be little doubt that district judges will have a considerable personal/professional bias when considering an appellant's claim that the sentence imposed below was unreasonable.  Circuit reversals of sentences on reasonableness grounds (as opposed to guideline calculation errors) are relatively rare, and district judges know that any and every such reversal will be an important and consequential precedent that litigants will stress in future sentencing proceedings.  District judges, knowing that they have to impose reasonable sentences in all future cases, surely will be disinclined when sitting by designation to declare unreasonable any sentencing practice or result that seems anywhere close to any sentencing practice or result they have ever embraced in the past or might be inclined to embrace in the future.

I am sure that district judges when sitting by designation will always try to avoid being unduly influenced by their personal/professional bias to see circuit law develop in a manner that serves their own district court interest.  And, in legal settings where the daily work of district courts are not really at issue, this effort to avoid bias is probably good enough for government work.  But, in the sentencing universe after Booker, and especially when the circuit judges on the panel are split, having district judges as swing voters on reasonableness review just does not seem quite right.

Sixth Circuit panels splitting over many aspects of reasonableness review

Anyone longing for some juicy federal circuit court opinions on reasonableness review to discuss over the long weekend now need look no further than a couple of split panel rulings — dare I say turkeys? — handed down by the Sixth Circuit this morning.  Specifically, via US v. Petrus, No. 08-1706 (6th Cir. Nov. 23, 2009) (available here), and US v. Simmons, No. 07-3449 (6th Cir. Nov. 23, 2009) (available here), two different Sixth Circuit panels talk lots of turkey concerning both substantive and procedural reasonableness review after Booker and its progeny. 

Neither Petrus (which runs 17 pages) or Simmons (which runs 76 pages!) can be easily summarized, and thus I will be content here to quote a key section from the start of Judge Clay's potent 50-page dissent in Simmons:

Even more troubling [than doctrinal errors] is just how fundamentally unbalanced and unjust the approach endorsed by the majority is.  On the one hand, the majority is willing to speculate as to what the district court “appears” to have “implicitly” considered, while on the other hand faulting defense counsel for not “specifically” identifying the procedural errors to which she was objecting.  The majority also insists that the procedural rule confirmed in Vonner somehow eliminates the need for a contextual inquiry when determining the sufficiency of a defendant’s objection, despite the fact that Vonner explicitly requires us to conduct such a contextual review when evaluating the sufficiency of the district court’s sentencing pronouncement. See Vonner, 516 F.3d at 387 (explaining that a “lengthy explanation” of the sentence chosen may not be required in all cases “because ‘circumstances may well make clear that the judge rests his decision upon the Commission’s own reasoning that the Guidelines sentence is a proper sentence’” (quoting Rita v. United States, 551 U.S. 338, 357 (2007)); see also Rita, 551 U.S. at 356 (“The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances.”).

In both respects, the majority’s decision typifies a troubling imbalance that plagues our case law in this area.  It also reveals that the majority’s professed concern for clarity in this area is disingenuous.  If the majority truly was interested in adopting rules that will lead to a clear record for appeal, then its first order of business obviously should be to hold the district court accountable for failing to address Simmons’ primary, repeated, and nonfrivolous argument in favor of downward departure.  Instead, the majority bends over backward to guess at whether the court considered Simmons’ argument.  It makes no sense, and is fundamentally unfair, to place the burden for creating an adequate record for appeal on criminal defendants rather than district court judges.

Let me be clear: I acknowledge that we are bound to apply the rule that the en banc majority announced in Vonner, but I emphatically reject the assertion that Vonner requires the outcome reached by the majority.  The narrow scope of the majority’s inquiry and its insistence on a rigid application of the plain-error standard is contrary to the “common-sense” approach required under Vonner, and repeatedly confirmed in subsequent reported decisions.  If the majority is right, however, and Vonner requires either the inquiry undertaken or the outcome reached by the majority, then the time has come for this Court to reconsider the wisdom of our decision in Vonner.  And if this Court is unwilling to acknowledge its mistake, then perhaps the Supreme Court should intervene to rectify this imbalance.

Notably, the "swing" voter helping to make up the majority opinions in Petrus and Simmons  — both of which declare procedurally reasonable a sentence imposed in a procedurally questionable manner — both happen to be district judges sitting by designation.  Though I do not generally have a problem with district judges sitting by designation, I think there is a worrisome sort of conflict-of-interest for district judges to be very involved in defining a circuit court's standards for when district judges are sentencing in a reasonable manner. 

Couldn't (and shouldn't) prosecutors keep going after KSM until the "right" outcome is achieved?

Ever since AG Holder announced the decision to try Khalid Sheikh Mohammed in civilian court in New York City, there has been much hand-wringing in the media (and on this blog) about the possibility that KSM could be acquitted or avoid the death sentence that would seem justified in this case.  But these professed fears fail to appreciate that various limits on double jeopardy would enable prosecutors many bites at the KSM apple, if needed.

First, the federal charges to be brought in New York may just focus on KSM's role in the bombing of the Twin Towers and the deaths that resulted in NYC.  If shrewd, the feds can (and perhaps should) decide not to charge KSM with the the bombing of the Pentagon and the deaths that resulted in Virginia or with the crash of United flight 93 and the deaths that resulted in Pennsylvania.  Then, if the NYC trial does not reach the "right" outcome, the feds can go after KSM again in federal court in Virginia for his role in the Pentagon deaths and again in federal court in Pennsylvania for his role in the flight 93 deaths.

Second, even if the feds decide to bring all of these charges for all of KSM's federal crimes in the planned NYC trials, state prosecutors in New York and Virginia and Pennsylvania can (and arguably should) bring state prosecutions against KSM.  Of course, New York does not have a functional death penalty and Pennsylvania capital system is stuck in arrested development.  But Virginia has a well-functioning death penalty system, and the citizens of that state have every reason to hope (and perhaps demand) that Virginia state prosecutors go after KSM if the results of the planned federal prosecutions do not seem satisfactory.

Usefully, another major modern terror attack on US soil provides recent precedent for potential dual prosecutions.  After the feds only secured a life sentence for Terry Nichols for his role in the Oklahoma City bombing, Oklahoma state officials brought a state capital prosecution in order to seek to vindicate the state interests implicated by this act of mass murder.  (Notably, state jurors were unable to decide to give Nichols a state death sentence, though the fact that Tim McVeigh was sentenced to death and executed for his role in the Oklahoma City bombing probably explains why even state jurors decided to go soft on Nichols.)

Some recent related posts:

• Obama Administration making key decisions on how to prosecute key terror suspects
• "Obama suggests 9/11 suspect will get death penalty"
• "The Real Price of Trying KSM: Defense lawyers will inevitably create bad law"

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.

Interesting report on US Sentencing Commission regional hearing in Texas

As noted in this prior post, the US Sentencing Commission today started another  of its regional public hearing, this one at the University of Texas School of Law.  As detailed in this official agenda (where some of the written testimony is now linked), an interesting group of invited witnesses are testifying in this regional hearing. And this new AP report, which is headlined "Dallas DA promotes implementing 'smart justice'," details some of today's hearing highlights: 

Implementing "smart justice" can help ease the criminal case load on prosecutors and keep society safe, Dallas County District Attorney Craig Watkins told a federal sentencing commission Thursday.  That means using programs for youthful first-time offenders who can work toward getting their charges dismissed or fast-tracking of repeat low-level offenders into state jails, said Watkins, who is known for working to free wrongly convicted inmates.

Watkins said in his nearly three years in office, he has worked to implement such "smart justice." "At the end of the day the goal is public safety," he said, adding that it's smart use of taxpayer money to attempt to ensure that imprisoned inmates don't repeat their crimes when they get out of jail. "The goal is rehabilitation, as opposed to just punishment."...

The commission heard from several Texas experts.  One commission member kept referring to the "Texas success story" of how the state has moved to more community-based corrections programs over the past two years.  Adam Gelb, director of the Public Safety Performance Project at the Washington, D.C.-based Pew Center on the States, said Texas is a law-and-order and fiscally conservative state and that it is using methods besides imprisonment in sentencing convicts.  Parts of Texas have a "very robust system of community corrections and alternatives," Gelb said....

Three federal judges also addressed the panel Thursday.  Judge Robin Cauthron of Oklahoma said she is glad judges now have more discretion in varying from federal sentencing guidelines. That came about because of a U.S. Supreme Court ruling in recent years.

In presenting her recommendations, she said she believes federal sentencing guidelines are often too harsh for possession of child pornography when there's no indication that the defendant who viewed the pornography would actually molest a child.

"Does the punishment fit the crime for child porn?"

The question in the title of this post is the headline of this effective local article from Ohio.  Here are excerpts, which also serve to spotlight how different sentences for this crime can often be depending upon whether a defendant is prosecuted in state or federal court:

Legal experts on all sides agree that downloading and watching child pornography is repugnant behavior. What they are at odds over is whether such defendants are as much of a threat to society as rapists or murderers. Nationwide, judges are questioning whether mandatory and recommended sentences for child porn are too harsh....

In 1991, a person with no criminal history who possessed violent child pornography images and movies and shared them with others would face a maximum of two years in prison in federal cases. Today, that same person could face more than 20 years behind bars....

[U]nder guidelines set by the U.S. Sentencing Commission — a federal agency that turns legislation into rules that guide judges on sentencing — child porn viewers often accumulate penalties, known as "enhancements" that add time for those who use the Internet and other circumstances that appear in nearly every child pornography case. This means the recommended sentences for viewers can easily be higher than those for predators.

"Simply stated, a defendant whose only crime is personal use typically receives the same sentence as a commercial peddler or someone who has molested a child," attorney Joseph W. Gardner stated in his sentencing memorandum on behalf of client Anthony Campana. Campana, 41, of Fairport Harbor was sentenced to 20 years in prison Oct. 30 by U.S. District Judge Peter C. Economus in Cleveland.

Campana, a truck driver with no prior criminal record, was previously convicted by a jury of possession and distribution of child pornography. Gardner requested Campana receive no more than six years in prison out of a possible life term. The defense attorney argued, "His crimes were perpetrated on a computer, not on children."...

Lake County Common Pleas Judge Vincent A. Culotta said watching child porn is far from a victimless crime — as real children are forced into the underground sex world to make the images. Yet Culotta said as a judge, his job is to compare child porn cases with other cases of similar nature.

Earlier this month, he was widely criticized on an online forum for sentencing an Eastlake man who swapped a large amount of child pornography to four years in prison — six years less than the prosecutor recommended. The judge explained in court that 10 years was too much time in the case of Paul Skala, a 62-year-old man with no prior criminal record. "You do realize that he never actually touched a child, right?" Culotta told Assistant Prosecutor Lisa Neroda.

He then gave recent examples in which the prosecutor's office recommended far lesser sentences for child porn cases in which the offender did have a prior criminal record. He also pointed out cases in which physical contact between the offender and victim occurred — but the recommendations were still less than what they had asked for in Skala's case. "There are a number of cases where people are being sentenced for actually harming children, and the recommendation does not even come close to 10 years," the judge said.

Experts say it has not been clearly established whether most viewers of child pornography are likely to commit acts of physical abuse.  Meanwhile, an increasing number of judges are starting to rebel against sentencing recommendations and guidelines in certain situations.

A few related recent child porn sentencing posts:

• ABA Journal covers the controversies over federal child porn sentences
• Potent DOJ response to ABA Journal article about federal child porn sentencing
• Potent response to DOJ account of federal child porn sentencing
• Strong sentencing opinion noting disparities in federal child porn downloading cases
• More examples of sentencing uncertainty surrounding federal child porn cases
• Effective review of federal uptick in child-porn prosecutions
• Documenting the uptick in child porn prosecutions

Two notable new speeches from AG Eric Holder

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

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

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

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

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

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

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

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

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

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

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

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

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

"Does death for 9/11 plotters offend federalism?"

The question in ths title of this post is the headline of this post from Josh Gerstein in his "Under the Radar" blog at Politico.com.  Here are excerpts from an interesting piece:

The attorney general's call for capital punishment [for certain terrorist defendants] was criticized in some quarters for running the risk that the alleged Al Qaeda men could be seen as martyrs for their cause.  But missing from the commentary on Holder’s announcement was the observation that, by seeking the death penalty in a state which currently does not have it, the attorney general is treading into territory that triggered an outcry from liberal activists against the Bush administration not so long ago.

When Attorney General John Ashcroft ordered a federal death penalty prosecution in Vermont in 2002, there were howls of outrage that Ashcroft was abusing federal authority by essentially forcing the death penalty on a state that didn't have one in local law.  "We've rejected the death penalty as part of our criminal justice system,'' Burlington Mayor Peter Clavelle said at the time. "Many of us resent the imposition of a death penalty as an option in this state by John Ashcroft and his friends from Washington. I think it's an affront to state's rights and is not consistent with the values of a majority of Vermonters.''

Many New Yorkers have welcomed Holder’s decision to seek death in connection with the 9/11 attacks, which killed nearly 3000 people.  However, strictly as a factual matter, it is the case that the Justice Department will be seeking capital punishment in a state which presently doesn’t have that option in its courts.  “If New York itself was to pursue the case, they wouldn’t and couldn’t use the death penalty,” said Richard Dieter, a death penalty critic at the Death Penalty Information Center said in an interview. “That’s how the state law has come down now.”...

Dieter pointed to a couple of distinctions between Ashcroft’s actions and Holder’s decision.  Critics complained that Ashcroft was pursuing the death penalty over the objection of local U.S. attorneys and in cases where there was no particular federal interest. In the 9/11 case, prosecutors appear to be on board and the national quality of the crimes is evident.  “This is not a carjacking that occurred in Vermont. It is more a national terrorism kind of crime that people would probably feel doesn’t raise quite the same federalism issues as prosecuting a local crime would,” Dieter said....

When I asked Holder last month how he might take a different tack than the Bush administration in considering death penalty cases, the top lawman and former U.S. Attorney for Washington, D.C. stressed his respect for local federal prosecutors.  “I will say that based on my experience having been a United States Attorney and given the respect that I have for the career people who handle these kinds of matters, the recommendation that I get from the field carries a great deal of weight with me,” the attorney general said.

As regular readers may recall, I tend to be a big fan of criminal justice federalism.  But, when it comes to the matter of the punishment of death in major criminal cases that generate national attention, I think the nation as a whole and the federal government in particular has every reason and every right to take over a prosecution and subject it to the special (and often better) federal capital procedures.  Indeed, as suggested in some prior posts on this topic (which are linked below), I seriously believe that persons seriously interested in a serious, sound, sober and sensible system of capital punishment ought to be drawn to the idea that all modern capital prosecution ought now to be exclusively federal matters.

Some related (and mostly dated) posts:

• Feds decide to seek death in local(?) killing in state without the death penalty
• "Death penalty decisions loom for Barack Obama"
• More support for an exclusively federal death penalty
• A poster child for the (federal) death penalty?
• The federal law gap in the NJ death penalty report
• The federal death penalty in America's paradise
• Ashcroft's death penalty "legacy"
• Expansion of the federal death penalty?

Justice Scalia is coming to town...

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

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

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

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

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

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

Another US Sentencing Commission regional hearing on tap for this week in Austin

As detailed in this press release, the US Sentencing Commission has another one of its regional public hearings on tap for later this week.  This sixth regional public hearing is scheduled for November 19-20, and this one is taking place at the University of Texas School of Law.  Though I suspect former USSC Chair Judge Hinojosa had a hand in picking the Longhorn locale for this hearing, this event will be run by the recently confirmed new USSC Chair, Judge Sessions.

As detailed in this official agenda, another fascinating group of invited witnesses are scheduled to testify regarding federal sentencing policy in this regional hearing.  I suspect some of the written testimony will be available via the USSC's website next week.  I would bet that the challenges of child porn sentencing is again a topic of discussion as it has been in many prior regional hearings.

The shameful state of clemency in the Buckeye state (and in the United States)

This notable new article from my own Columbus Dispatch, which is headlined "Clemency requests piling up," documents the shameful state of clemency in the state of Ohio.  Here are some of the sorry details of what is going on (or, should I say, not going on) in the Buckeye state:

When her father went to prison nearly 10 years ago, Amberley Tapp was a precocious girl of 7 with hair of golden ringlets and a sunny disposition living in a nice home in Delaware, Ohio.  Fast forward to 2009, to an angst-ridden 16-year-old with deep, sad eyes who cries frequently and sometimes feels as if she can't breathe.

Meanwhile, a unanimous recommendation by the Ohio Parole Board that Bradley Tapp, Amberley's father, be granted executive clemency sits on Gov. Ted Strickland's desk.  It has company: 712 pending clemency applications in other cases, some dating to 2005.

In nearly three years in office, Strickland, a former congressman, prison psychologist and Methodist minister, has delayed executions several times and twice commuted the death penalty.  But he has not acted on any other clemency requests, a break with the practices of past governors....

Tapp, 45, who is serving a 14-year sentence for two second-degree felony counts of assault, has twice been recommended for clemency by the Ohio Parole Board. The charges resulted from a drunken encounter he had with two Delaware County homeowners in September 1999. Tapp's victims suffered serious but not life-threatening injuries.

Judge Henry S. Shaw of Delaware County Common Pleas Court threw the book at him. Now retired, Shaw has twice since said he regrets the harsh sentence, calling it "manifest injustice." Former Gov. Bob Taft rejected Tapp's clemency plea without comment in November 2005.

Strickland's predecessors, going back to Gov. James A. Rhodes, rejected the vast majority of clemency requests they received, but they usually handled several hundred cases each year to prevent a backlog like the one Strickland now faces.

Strickland spokeswoman Amanda Wurst said he is now reviewing requests submitted before 2008, including some carried over from the Taft administration.  "Once the governor has completed his review process he will begin reviewing 2008 clemency requests," she said.  "Mr. Tapp's request was made in 2008, so his request will be reviewed as a part of the 2008 clemency-request review process." Wurst said there is no "set time for an announcement."...

Amberley acknowledges that her father "did something stupid" and deserved punishment.  But she said he's done his time -- more time, in fact, than some murderers.  "All the governor has to do is look on his desk ... to take 30 seconds of his life to sign a piece of paper," she said.  "I don't think he even realizes how much a family is being tortured. I want him to care about Ohio's justice system.  Right now, he's showing he doesn't care."

This article captures the sorry state of disrepair into which the historic power of clemency has fallen. It would be bad enough if Governor Strickland was to denied all clemency requests during his nearly three years in office; the fact that these requests all sit upon his desk unaddressed is especially iniquitous.  Gov Strickland and his staff have surely had more than enough time to establish a general policy for dealing with clemency requests and to start applying that policy to the hundreds of cases that have been awaiting a decision for many years.  But rather than have the courage to grant or deny clemency requests, Gov Strickland is content to just let these requests (and the many humans impacted thereby) rot away from neglect.

Of course, Gov. Strickland might now say that he is just taking a cue from the current leader of his party and his country, President Barack Obama.  As I have previously noted, Prez Obama is already historically slow in using his clemency power as he approaches the end of a full year in office without a single clemency grant.  Indeed, as this official webpage reveals, it appears that Obama has over 3,000 requests for pardons and commutations siting unresolved on his Oval Office desk.

Some related posts on federal and state clemency realities:

• "President Barack Obama proving stingy with his pardon power"
• Notable press stories noting Obama's lack of clemency action
• A simple plea for Prez Obama: grant at least a single clemency in your first 100 days
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• Still waiting ... and waiting ... and waiting ... on the clemency front
• Another public and potent call to reinvigorate the pardon power
• "Judge urges Obama to cut coke dealer's sentence"
• ACS issue brief on the pardon power
• Latest FSR issue on "Learning from Libby"
• "The Fall of the Presidential Pardon"
• The telling failure to make serious use of the clemency power in Maryland
• What might 2009 have in store for . . . executive clemency?

"Obama Backers Fear Opportunities to Reshape Judiciary Are Slipping Away"

The title of this post is the headline of this story in today's New York Times.  Here is how it starts:

President Obama has sent the Senate far fewer judicial nominations than former President George W. Bush did in his first 10 months in office, deflating the hopes of liberals that the White House would move quickly to reshape the federal judiciary after eight years of Republican appointments.

Mr. Bush, who made it an early goal to push conservatives into the judicial pipeline and left a strong stamp on the courts, had already nominated 28 appellate and 36 district candidates at a comparable point in his tenure.  By contrast, Mr. Obama has offered 12 nominations to appeals courts and 14 to district courts.

Theodore Shaw, a Columbia University law professor who until recently led the NAACP Legal Defense and Educational Fund Inc., said liberals feared that the White House was not taking advantage of its chance to fill vacancies while Democrats enjoy a razor-thin advantage in the Senate enabling them to cut off the threat of filibusters against nominees.  There are nearly 100 vacancies on federal courts.

“It’s not any secret that among the civil rights community and other folks there has been a growing concern about the pace of nominations and confirmations,” Mr. Shaw said.  “You have to move fairly quickly because things are going to shut down before you know it, given that next year is an election year and who knows what is going to happen in the midterm elections.  No one wants a blown opportunity.”

As I have noted before, the slow pace of judicial nominations from the Obama White House is especially significant for the development of sentencing law and practice.  Lower court sentencing outcomes in the wake of Blakely and Booker have tended to be pro-guideline in part because many federal judges appointed during the Bush years were eager to preserve the toughness of the guidelines and the power these guidelines provided prosecutors.  New blood in the lower federal courts might change these dynamics, but the Obama Administration needs to get cracking to make this a reality.

Some related new and old posts:

• Should President Obama be praised or assailed for his approach to judicial nominations so far?
• Seeking thoughts on a "professional judiciary" for sentencing law
• Judge Gerard Lynch becomes first lower-court Obama nominee confirmed by Senate
• "Obama moving slowly on judges"
• Should President Obama practice ageism when making judicial nominations?
• Noticing the biggest bias in the federal judiciary
• How a new administration is likely to impact federal sentencing practice
• Why federal sentencing reformers must focus on the USSC and lower courts
• Judging, politics, sentencing and elections
• A modest(?) proposal for filling the bench from the ivory tower
• Urging President-elect Obama to elevate district judges to the circuit courts
• A partially justified(?) celebration of "Diversity on the federal bench"
• The growing (and justified) complaints about Obama's approach to judicial nominations

California submits new plan for complying with federal prison-population order

As detailed in this Los Angeles Times article, which is headlined "Governor submits plan to cut prison population: But he also disavows the proposed solutions as being illegal," California's "Gov Arnold Schwarzenegger on Thursday gave federal judges a road map to reducing state prison overcrowding by waiving some state laws to allow sentences to be reduced and new private prisons to be built." Here are more of the particulars:

An initial plan that Schwarzenegger submitted in September was rejected three weeks ago by the three judges, who threatened him with contempt of court for failing to meet their demand for a proposal to reduce the inmate population by 40,000 prisoners over two years.

With his new proposal, the governor appeared to be trying to avoid open defiance of the judges without giving the impression that he is contradicting his opposition to their efforts in an appeal now pending before the U.S. Supreme Court. The state is arguing that it is improper for the federal courts to intrude into the state's affairs. "We're saying the court . . . doesn't have the authority to do any of this, but the court obviously disagrees with us," Matthew Cate, the governor's prisons chief, told reporters.

The governor said the new plan would open up a total of 42,000 prison beds by December 2011, some through new construction and some by sentencing changes to limit the number of inmates the state incarcerates. He heeded the judges' Oct. 21 order to identify state laws that they would need to suspend to meet their goal. But Schwarzenegger also told the judges he did not believe it would be legal for them to waive those laws....

Some of the governor's new plan echoes what he submitted previously: reduction in the inmate population through sentencing changes, which would need approval by lawmakers, and construction for which the state already has authority. But it also includes measures, accounting for more than 25,000 inmates, that the Legislature rejected during the budget fight last summer: home detention with satellite tracking devices for some inmates; permitting some felony offenders to serve time in county jails instead of state prisons; and reducing sentences for property crimes.

As I have noted before, the blog California Corrections Crisis is the must-read resource for keeping up with all the craziness in California.

Some related posts:

• Federal judicial panel orders California to drastically cut prison population
• California begins SCOTUS appeal process for federal ruling ordering prisoner release
• Updates on all the prison craziness in California
• Editorial suggests why federal judges have had to be involved in California prison reform
• California's court-ordered plan for prison population reductions to come up short
• Details on California's not-quite-complete prison population reduction plan
• "Court rejects governor's plan to solve prison overcrowding"

Noticing the mandate from Congress to the US Sentencing Commission on mandatory minimums

This new Wall Street Journal article, which is headlined "U.S. Commission to Assess Mandatory Sentences," discusses the recently-enacted legislation instructing the US Sentencing Commission to study mandatory sentencing statutes.  Here are excerpts:

Congress has ordered the panel that advises judges on prison terms to conduct a review of mandatory-minimum sentences, a move that could lead to a dramatic rethinking of how the U.S. incarcerates its criminals.

The review is a little-noticed element of the National Defense Authorization Act signed into law last month by President Barack Obama.  The defense-spending bill calls on the commission to perform several tasks, including an examination of the impact of mandatory-minimum sentencing laws and alternatives to the practice....

The U.S. Sentencing Commission, which advises judges on all other sentences, has now been charged with issuing recommendations on mandatory minimums.  Any final change in sentencing law would have to come from Congress. "It's going to be a massive undertaking," said the new chairman of the Sentencing Commission, William Sessions III.

Mr. Sessions, who is also the chief federal judge in Vermont, said the review would include everything from determining the effects of minimums on the size of the prison population, to spending and the social impact of the policies. "In my view," he said, "it's a very open-ended request."

The inmate population in federal prisons has risen from 24,000 in 1980 to 209,000 as of Nov. 5.  Over the same period, the federal Bureau of Prisons staff has grown from 10,000 to about 36,000 employees.

The commission has pushed for changes in mandatory minimums, such as ending the disparity in sentencing for crimes involving crack-cocaine and powder cocaine.  Several proposals are pending in Congress to address the crack-cocaine issue.  But the commission has not done a full-scale examination of federal sentencing laws since 1991.  At the time, there were only 60 mandatory-minimum laws on the books. Now there are about 170.

According to a limited review released by the commission in July, most mandatory-minimum cases in 2008 concerned drugs or weapons crimes.  The review found that 21,023 offenders were convicted of crimes that could have triggered the mandatory-minimum sentence.  Many got more lenient sentences for a variety of reasons, including cooperation with authorities.

The commission will examine the effects of mandatory minimums on plea agreements.  Critics of the system say the threat of such sentences is used to coerce plea bargains.  Members of the commission have been traveling the country to meet with judges, prosecutors and defense attorneys.  Many have pressed the commission to provide alternatives to imprisonment for nonviolent, low-level drug defendants.

Given that there has been no real movement on even crack-powder mandatory reform over the last three years while Democrats have been in control of both houses of Congress, I am not especially optimistic that this newly-ordered USSC review will lead to "a dramatic rethinking of how the U.S. incarcerates its criminals."  Still, it is encouraging to hear the new head of the USSC talking about this ordered review being done in a grand manner.

Some related recent posts:

• New hate crimes bill requires US Sentencing Commission to complete mandatory minimum study
• US Sentencing Commission's "Overview of Statutory Mandatory Minimum Sentencing"
• House hearing on "Mandatory Minimums and Unintended Consequences"
• Can concerns for dollars and cents finally bring sense to federal mandatory minimum sentencing statutes?

Texas jury sentences FLDS member to 10 years in prison for sexual assault

This local article, headlined "Jury gives Jessop 10 years for sexual assault," reports on the sentencing outcome in a high-profile sexual offense prosecuion.  Here are the details:

Jurors took about six hours before handing down the sentence of 10 years in prison and an $8,000 fine.  Jessop, who faced a maximum sentence of 20 years and a $10,000 fine, will have to serve at least five years before becoming eligible for parole.

[Raymond Merril] Jessop’s conviction of sexually assaulting a 16-year-old girl in November 2004 at the Yearning for Zion Ranch and the punishment determined by a seven-man, five-woman jury mark a victory for prosecutors in the first of what may be many trials springing from the April 2008 raid on the ranch.

“Today, justice was served,” prosecutor Eric Nichols of the Texas Attorney General’s Office said, flanked by Texas Rangers, 51st District Attorney Stephen Lupton and other law-enforcement officials.

Besides Jessop, 11 other members of the Fundamentalist Church of Jesus Christ of Latter Day Saints face charges ranging from aggravated sexual assault to failure to report child abuse.  Another trial is set to start in about three weeks. Asked if he thinks the conviction sent a message to the FLDS church about underage marriage, Nichols said, “We try one case at a time.”