Sentencing Law and Policy

Speculating about SCOTUS sleeper cases

After this sleepy SCOTUS week, the Justices will be back in action with new opinions likely to be issued each and every week until the end of the Term next month.  Constitutional law fans are focused, of course, on what the Justices will do with the Second Amendment in the Heller DC gun case and with the long-pending detainee cases.  Death penalty followers, meanwhile, are focused of what the Justices will do with the Eighth Amendment in the Kennedy child rape case.

But there are a number of other cases still stewing at One First Street that could end up being very consequential: there is the porn case Williams, which could cover some notable First Amendment ground; I am thinking the ACCA case Rodriquez might include a little Sixth Amendment talk about criminal history; and the Irizarry case might say something very consequential about the departure/variance story after Booker.

What SCOTUS rulings are you eagerly awaiting, dear readers?  Does anyone predict that some sleeper case will end up being a bigger story than some of the more anticipated cases?

Have pro-defendant rulings gotten Justices Scalia and Thomas thrown off the "Justices like..." list?

John McCain has this new statement on judicial selection on his official website.  There is a lot of interesting stuff that merits comment, but I was particularly intrigued to see the discussion of the type of Justices he promises to nominate:

I will look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint.  I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist -- jurists of the highest caliber who know their own minds, and know the law, and know the difference.

My first reaction was what about Justices Scalia and Thomas, are they chopped liver?  Or are they no longer part of the classic "Justices like..." list because of their votes in cases like Blakely and Booker?  Have these two been thrown off (or should I say under) the Straight Talk Express because they are big fans of jury trial rights for criminal defendants?

DOJ criminal division needs a new top prosecutor

As detailed in this official press release, the head of the criminal division of the DOJ has announced her resignation: "Today, the Department of Justice announced that Assistant Attorney General of the Criminal Division Alice S. Fisher will end her current service to the Department on May 23, 2008."

Since a new administration is likely to bring in new people in 2009, a replacement for AAG Fisher will not have a long shelf-life.  Still, President Bush might try to fill this important position, and I am sure he will read the comments of this blog if any readers have thoughtful candidates to propose.

Another sound attack on Eighth Amendment jurisprudence

In this post last week, I noted Benjamin Wittes attack on modern Eighth Amendment jurisprudence this thoughtful article in the December 2005-January 2006 issue of Policy Review.  Today, I see that Wittes is keeping up his justified attack with this new essay at the New Republic, titled "Unusual Nonsense: The Supreme Court's continued failure to rationalize its decisions about cruel and unusual punishment."  Here is how it starts:

The Supreme Court last week gave the country an object lesson in the absurdity of the Eighth Amendment — at least, as it is currently understood by the justices.  On a single day, it handed down a decision upholding as constitutional the specific mixture of drugs by which thirty states put condemned prisoners to death, and it then went on to hear oral arguments over the question of whether states may constitutionally execute child rapists.  That may not sound absurd, and it wouldn't be if the court had any kind of coherent approach to cases alleging "cruel and unusual punishment."  But it doesn't.  So the one-two punch, like so most of the court's recent hand-wringing over the amendment, operated more as a kind of philosophical and — let's face it — political Rorschach test for the justices than anything else.

Some related posts:

• "The Eighth Amendment is a jurisprudential train wreck"
• Hoping (foolishly?) that the Chief uses Kennedy to transform Eighth Amendment jurisprudence
• CJ Roberts and sentencing law: fixing Eighth Amendment jurisprudence
• Why so much fear about a robust Eighth Amendment doctrine?

A strong argument for limiting prosecutorial immunity

In this commentary over at Reason, titled "Suing the DA: Should prosecutors be immune from civil lawsuits?", Radley Balko makes a strong case for affording prosecutor only qualified immunity, rather than absolutely immunity, for their official behavior.  Here are excerpts from the strong piece:

There's plenty of evidence that this [absolute immunity] shield from accountability is allowing some prosecutor's offices to run roughshod over civil rights. The New York-based Innocence Project reports that prosecutorial misconduct played a role in about 40 percent of DNA exonerations over the last decade or so. Such misconduct could include knowingly putting on false testimony, withholding exculpatory evidence from defense attorneys, and coercing witnesses, among other transgressions....

Downgrading prosecutorial immunity would not only go a long way toward puncturing the air of invincibility that pervades some prosecutors' offices, but the discovery process in the cases that are allowed to go forward might reveal other cases of misconduct or wrongful conviction.

We shouldn't allow every aggrieved defendant to sue his prosecutor. But in cases where someone is exonerated after being convicted of a crime, where there's clear evidence that something went terribly wrong at trial, and certainly where a single prosecutor has overseen more than one exoneration, allowing civil rights suits against these government officials in their capacity as government employees might shine some needed — if uncomfortable — sunlight on a part of the criminal justice system that has for too long been immune from real accountability.

Another ACCA case and the Baze aftermath from SCOTUS

Lyle Denniston in this post at SCOTUSblog provides a report on the SCOTUS order list this morning, which includes yet another ACCA cert grant and some of the post-Baze fall-out:

The Supreme Court agreed on Monday to rule on the government’s power to impose “anti-dumping” import fees on foreign goods that are re-manufactured from U.S. raw materials, and returned to the U.S. at a low price.  The Court also granted a second case, testing whether a failure to report to prison that leads to a conviction for escaspe can be the basis for enhanced sentencing under the Armed Career Criminal Act.

In a series of orders following up its ruling last week allowing states to use the lethal injection method of capital punishment, the Court simply denied review of 11 appeals by death-row inmates. Justic e John Paul Stevens noted in two of the case that denial of review was not the same as a rejection of the inmates’ legal challenges on the merits. Although some inmates have claimed that the procedure in their states differs in some ways from the procedure upheld by the Court in Baze v. Rees, the Court did not order lower courts in any of the 11 cases to reconsider and take Baze into account.

Quick SCOTUS sentencing argument day report

I'm still on the road, but have long enough on-line to note this post at The BLT about today's two SCOTUS sentencing cases argued today and also to provide links to the transcripts thanks to SCOTUSblog:

The transcript of today’s argument in in Greenlaw v. United States (07-330) is now available here.

The transcript of today’s argument in in Irizarry v. United States (06-7517) is now available here.

I likely won't get a chance to process these transcripts and all the other day's sentencing developments until very late, but readers are encouraged to share their thoughts before I even get a chance to develop mine.

On the road during SCOTUS sentencing day

SCOTUSblog has this effective preview of a Tuesday full of sentencing action in front of the Justices:

At 10 a.m., the Court is scheduled to hear argument in Greenlaw v. United States (07-330), involving appellate judges’ ability to increase sentences sua sponte....  At 11 a.m., the Court is scheduled to hear argument in Irizarry v. United States (06-7517), involving judges’ duty to notify parties before departing from the sentencing guidelines....

In advance of the arguments, the Justices may release one or more opinions.

Because I will be on the road most of today, readers should head over to How Appealing and SCOTUSblog for early reports on all the SCOTUS happenings.  If my travels go smoothly, I hope to be able to recap all the highlights this evening.

Big SCOTUS sentencing week ahead

As previewed here at SCOTUSblog, this coming week brings some notable sentencing cases before the Justices:

On Tuesday, the Court is scheduled to hear argument in Greenlaw v. United States (07-330), involving appellate judges’ ability to increase sentences sua sponte, and Irizarry v. United States (06-7517), involving judges’ duty to notify parties before departing from the sentencing guidelines....

On Wednesday, the Court is scheduled to hear argument in Kennedy v. Louisiana (07-343), involving the constitutionality of imposing the death penalty for child rape....

In addition, there will be SCOTUS orders released on Monday and probably a few opinions released on Tuesday and Wednesday.  Many criminal justice cases are among those that have been pending before the Justices for the longest time since argument, so sentencing fans should gear up for what might be a very exciting week.  As evidenced by some media coverage assembled here at How Appealing, the Kennedy capital child rape case is likely to garner the most attention.  But I'll try to cover all the action, even though I am on the road much of this week.

UPDATE:  More proof today that Kennedy is the big SCOTUS case of the week comes from this front page article in the Washington Post, headlined "Child Rape Tests Limits Of Death Penalty: La. Law Spurs Review Of Eighth Amendment."

SCOTUS sentencing cases involve unusual advocates

Writing in the Legal Times, Tony Mauro has this interesting piece headlined, "Supreme Court Justices Turn to Ex-Clerks for Unusual Role: Former clerks tapped to make the arguments others have abandoned."  Here is how it starts:

On Jan. 7, Jay Jorgensen took an unusual call from his former boss, Supreme Court Justice Samuel Alito Jr.  Alito's request: Would Jorgensen have time to argue a Supreme Court case in April — a case Jorgensen had never heard of — for free?

In Greenlaw v. United States, it seems the government had decided that it agreed with plaintiff Michael Greenlaw on the main sentencing-related issue in the case.  So the Court needed someone else to argue against lawyers for Greenlaw, a Minneapolis drug dealer.

Jorgensen, a partner with Sidley Austin, eagerly agreed to the invitation, and on Tuesday he will make his debut before the high court. In doing so, he follows a little-known and rarely available pathway that has launched the Supreme Court appellate careers of several former high court clerks.  Among them: John Roberts Jr., now chief justice, and Maureen Mahoney, who heads the appellate and constitutional practice at Latham & Watkins.

Even more rare is the fact that Jorgensen won't be the only lawyer arguing as an appointed counsel under these circumstances on Tuesday. In a separate sentencing case called Irizarry v. United States, Catholic University law professor Peter "Bo" Rutledge, a former Clarence Thomas clerk, will also be appearing as "amicus curiae in support of the judgment below," as the Court phrases it.  This will also be Rutledge's first time before the Court.

"I've been talking to Bo. We're both honored and both scared," says Jorgensen. Rutledge declines comment.

These once-in-a-lifetime opportunities to argue before the Court arise when, as in Greenlaw, the respondent abandons the lower court decision that the petitioner is challenging. That scrambles the usual adversary nature of Supreme Court cases, because it means, in essence, that both sides think the lower court decision was wrong or should be vacated.  In that circumstance, which has not arisen for five years before this term, the Court appoints a lawyer — almost always a former clerk — to make the orphaned argument.

Lots of new goodies from the USSC

Just in time for a Masterful weekend, the US Sentencing Commission has this set of exciting new items posted on its official website:

• Public Comment on Proposed Amendments to the Sentencing Guidelines: The Commission received comment from the judiciary, the executive branch, members of the defense bar, and interested organizations in response to its request for public comment on proposed amendments to the sentencing guidelines (see 73 FR 4931).  The public comment is accessible through this link.

• April 2008 Preliminary Post-Kimbrough/Gall Data Report: A updated set of tables presenting preliminary data on fiscal year 2008 cases sentenced on or after December 10, 2008. The numbers are prepared using data received, coded, and edited by the Commission by April 8, 2008 (available here).

I am especially exciting to consume the latest, greatest post-Kimbrough/Gall data, though I am hopeful Sunday in Augusta will have my attention a bit more than sentencing data this weekend.

Official coverage of President Bush signing the Second Chance Act

Now available on the White House's official website is this press release with the heading, "President Bush Signs H.R. 1593, the Second Chance Act of 2007."  Here are a few excerpts from the statements of the President of the United States that many lawyers might find useful to quote whenever they address state and federal sentencing judges throughout the United States:

I'm about to sign a piece of legislation that will help give prisoners across America a second chance for a better life.  This bill is going to support the caring men and women who help America's prisoners find renewal and hope.

I can't thank the folks who care enough about a fellow citizen to offer their love and compassion. It's through the acts of mercy that compassionate Americans are making the nation a more hopeful place, and I want to thank you all for joining us today....

The country was built on the belief that each human being has limitless potential and worth. Everybody matters.  We believe that even those who have struggled with a dark past can find brighter days ahead.  One way we act on that belief is by helping former prisoners who've paid for their crimes -- we help them build new lives as productive members of our society.

The work of redemption reflects our values. It also reflects our national interests.  Each year, approximately 650,000 prisoners are released from jail.  Unfortunately, an estimated two-thirds of them are rearrested within three years.  The high recidivism rate places a huge financial burden on taxpayers, it deprives our labor force of productive workers, and it deprives families of their daughters and sons, and husbands and wives, and moms and dads.

Our government has a responsibility to help prisoners to return as contributing members of their community.  But this does not mean that the government has all the answers.  Some of the most important work to help ex-convicts is done outside of Washington, D.C., in faith-based communities and community-based groups. It's done on streets and small town community centers. It's done in churches and synagogues and temples and mosques.

I like to call the folks who are engaged in this compassionate work, "members of the armies of compassion."  They help addicts and users break the chains of addiction. They help former prisoners find a ride to work and a meal to eat and place to stay.  These men and women are answering the call to love their neighbors as they'd like to be loved themselves.  And in the process, they're helping prisoners replace anger and suffering and despair with faith and hope and love.

The bill I'm signing today, the Second Chance Act of 2007, will build on work to help prisoners reclaim their lives.  In other words, it basically says: We're standing with you, not against you....

In [various] ways, the Second Chance Act will live up to its name; will help ensure that where the prisoner's spirit is willing, the community's resources are available. It will help our armies of compassion use their healing touch so lost souls can rediscover their dignity and sense of purpose....

And now it is my honor to sign this important piece of legislation.  May God bless the country, and may God bless those who are trying to help.  Thank you very much.

Though I have never had the honor and privilege to serve in the US Armed Forces, I like the idea that I am a foot soldier in our nation's many "armies of compassion."  I also like hearing President Bush ask God to help me for trying to help those who have made a mistake in their lives but need and perhaps even deserve a second chance.  The President's inspiring words make me proud to be an American, despite the ugly realities of our collective blissful ignorance about the many economic and human cost of mass incarceration, and I am excited that I am going to go teach a Legislation class in which the signing of this important piece of federal legislation will be the first substantive topic for discussion.

Some recent related posts:

• Second Chance Act finally poised to become law
• Second Chance Act (finally!!) passed by Congress
• More on the passage of the Second Chance Act
• The right's prison conversion
• Looking at some the realities of reentry
• Previewing forthcoming FSR issue on reentry issues
• Great public radio series on prisoner reentry

A web pitch for a Webb VP pick

The folks at Politico have this new piece about possible VP picks for the Democratic nominee, and I cannot help but add my two cents: I strongly favor Senator Jim Webb as the VP choice for the Dems.  Let me explain as a matter of political strategy and policy substance:

Political Strategy: As detailed in his official and wikipedia bios, Senator Webb was born in Missouri and elected to the Senate from Virginia.  If the Democrats can carry both these swing states, they have a huge advantage getting to 270.  In addition, Senator Webb has an extraordinary resume, both in terms of military and (outside-the-Beltway) achievements, which should draw support from all sorts of people from all parts of the country.  For example, during the Reagan years, Webb became the "first Naval Academy graduate in history to serve in the military and then become Secretary of the Navy."  In addition, Webb "has authored eight books, including six best-selling novels, and has worked extensively as a screenwriter and producer in Hollywood."  In addition, Webb "taught literature at the Naval Academy as their first visiting writer, has traveled worldwide as a journalist, and earned an Emmy Award from the National Academy of Television Arts and Sciences for his PBS coverage of the U.S. Marines in Beirut."

Policy Substance: To my knowledge, Senator Webb is the only prominent national politician who has held a congressional hearing directly addressing the problems of mass incarceration (details here and here and here).  In addition, I believe Senator Webb is an avid supporter of individual gun rights, which is sure to become a campaign issue once the Supreme Court decides Heller.  I am not deeply familiar with Webb's other policy positions, but his insightful concern about mass incarceration suggests to me that he is a thoughtful observer of national policy problems.

Listing a con for Senator Webb, the Politico piece says "Blunt and unpredictable, he might be a reluctant campaigner."  With a nation clearly tired of politics as usual, I view "blunt and unpredictable" as a pro rather than a con.  And I think Webb's military resume and anti-Iraq-war stance should make him the ideal person to attack Senator McCain on all sorts of policy issues.

Cross-posted at PrawfsBlawg

Judge Weinstein makes notable headlines with notable jury-based ruling

Famed EDNY Judge Jack Weinstein has found a creative, questionable and headline-making way to avoid the application of a mandatory minimum federal sentence in a child porn case.  Here are the headlines:

• From the New York Post here, "Judge's Bizarre Ruling Aids Perv"
• From the New York Daily News here, "Father convicted of downloading child porn not given jail time"

Here is the start of the Post article:

In a decision that turns hundreds of years of legal precedent on its head, a judge ruled yesterday that juries should be made aware of "harsh mandatory minimum" sentencing rules in certain cases.  Maverick Brooklyn federal Judge Jack Weinstein issued the ruling in a child-porn case over which he presided - chastising himself for not telling the jury that the defendant faced a minimum five-year sentence before it found him guilty.

The drastic ruling says juries should be told what sentences certain criminals face, especially if the prison terms are particularly long.  It attempts to reverse the long-standing rule that jurors not be given sentencing information so they can decide guilt or innocence, without letting the potential punishment color their thinking.

"The judge has gone out on a limb here," said a law-enforcement source. "There's clear case law that says the jury should not be informed about mandatory minimums."

A great event to gear up for National Crime Victims' Rights Week

As detailed at this Justice Department webpage,  April 13-19 this year marks National Crime Victims' Rights Week.  As detailed below, I will have the good fortune of being able to attend an event a few days before this week to get me all geared up:

The Criminal Justice Research Center, the Department of Sociology and the Ohio State Journal of Criminal Law will host the 19th Annual Walter C. Reckless-Simon Dinitz Memorial Lecture on Monday (4/7).  The event will occur from 6:30 to 8:30 p.m. at the Barrister Club located at 25 W. 11th Ave.  The speaker for the evening will be the Honorable Paul G. Cassell, Professor of Law at the S.J. Quinney College of Law, the University of Utah, and Former Federal District Court Judge for the District of Utah, who will be lecturing on the topic, "In Defense of Victim Impact Statement: Recognizing the Proper and Important Role of Crime Victims in the Criminal Justice Process."

Here is the official abstract for the lecture:

In the last two decades, the criminal justice systems of every state and the federal government have protected the right of crime victims to deliver a victim impact statement at sentencing.  Yet while these reforms have proven popular with the public and politicians, legal academics remain skeptical.  These critics have argued that victim impact statements have no proper role to play at sentencing and that they unduly inject emotion into what should be an objective decision about the appropriate sentence for a defendant.  On this important issue, the critics are wrong and the public is right.  Crime victims have a vital role to play throughout the criminal justice process, particularly at sentencing where judges need a wide range of information to determine the proper sentence for an already-convicted criminal. Moreover, criminal sentencing can never be a completely emotionless process. Even though victim impact statements may be emotional, crime victims provide vital information to judges about the harm caused by a defendant -- a critical component of the sentencing decision. By delivering victim impact statements, victims also regain some of the dignity that was taken from them by criminal offenders.  Victim impact statements at sentencing are therefore a proper part of our nation's approach to criminal justice.

Some SCOTUS goodies from SCOTUSblog

For a variety of different reasons, these new posts at SCOTUSblog might be of interest to sentencing fans:

• New StatPack, Plus More on Monday’s Orders
• Analysis: Competency and the criminal trial

In addition, there have been lots of great posts over at SCOTUSblog about the Supreme Court's Medellin opinions.  However, I have not yet seen anyone predicting whether Medellin might give us some insight as to what will happen in the Baze lethal injection case (which, of course, raises some important federalism issues against the backdrop of administering the death penalty).

"States win over President on criminal law issue" in Medellin

I have borrowed for my title of this post the title of this post at SCOTUSblog, which reports on today's Supreme Court ruling in the capital/international case of Medillin.  The full opinion is available at this link, and here is the start of Lyle Denniston's summary:

The Supreme Court, in a sweeping rejection of claims of power in the presidency, ruled 6-3 on Tuesday that the President does not have the authority to order states to relax their criminal procedures to obey a ruling of the World Court. The decision came in the case of Medellin v. Texas (06-984). Neither a World Court requiring U.S. states to provide new review of criminal cases involving foreign nationals, nor a memo by President Bush seeking to enforce the World Court ruling, preempts state law restrictions on challenges to convictions, the Court said in a ruling written by Chief Justice John G. Roberts, Jr.

The decision, aside from its rebuff of presidential power, also treats the World Court ruling itself as not binding on U.S. states, when it contradicts those states’ criminal procedure rules. The international treaty at issue in this dispute — the Vienna Convention that gives foreign nationals accused of crime a right to meet with diplomats from their home country — is not enforceable as a matter of U.S. law, the Roberts opinion said. And the World Court ruling seeking to implement that treaty inside the U.S. is also not binding, and does not gain added legal effect merely because the President sought to tell the states to abide by the decision, the Court added.

Big SCOTUS sentencing week, starting with Burgess argument

As detailed in SCOTUSblog posts here and here, an exciting sentencing week for the Justices gets off to a flying start with argument this morning in Burgess over the on what qualifies as a "felony drug offense" for federal sentencing purposes.   Burgess provides the Supreme Court with a great setting to discuss the application of the "rule of lenity" in the interpretation of federal sentencing statutes (with sentencing guru Jeff Fisher arguing for the defendant). SCOTUSwiki has more on Burgess here (including links to briefs).

In addition to Burgess, this week also brings oral argument in Ressam concerning whether the federal law mandating 10 years in prison for carrying an explosive during the commission of a felony requires the explosives to be carried "in relation to" the underlying felony.  I think sentencing guru  AG Michael Mukasey is supposed to argue this matter for the government.

Further, new briefs will be filed this week in Irizarry, the post-Booker Rule 32(h) case.  I will discuss this case more in future posts.  And, we are due to get an order list this morning and will likely see some opinions handed down by the Justices later this week.  I am hopeful that there will be some sentencing action in both the order list and in released opinions. 

In short, SCOTUS sentencing fans should be sure to stay tuned to SL&P all week!

SCOTUS getting busy (though I doubt summer vacations are at risk)

Over at SCOTUSblog, Jason Harrow has this new post spotlighting that the Justices appear to be on pace for taking more cases next Term than in recent years.  Here are snippets:

[T]he rate that the Court is granting cases [is] far higher in 2008 than it’s been in recent memory. Consider that since returning from Winter Recess on January 4, the Court has granted 31 cases in the first two-and-half-months of the year. If the Court continued on this pace — admittedly, this is perhaps an unrealistic assumption — they would hear roughly 150 cases next Term.  That number is not unprecedented, as the modern record for oral arguments was set in the 1983 Term, when the Court heard 159 cases according to Oyez.org.  But since then, the total cases heard each term has steadily declined, reaching the nadir with this term’s 70 arguments, a decline of more than 50% in 25 years. Given that trend, an immediate jump back to hearing 150 cases in a single term would be a stunning turnaround (and that’s an understatement). Yet that is precisely what the Court is now on pace to do.... 

It’s too soon to tell if this is a long-term trend or whether the grant rate will slow down once again for any number of reasons.  For now, however, it appears that Court-watchers can look forward to an unusually full docket next Term.

Regular readers know that I have often critized the Court's recent docket dynamics.  The apparent increase in grants — especially when it includes Blakely cases like today's grant in Ice — is pleasing to see.  And, notwithstanding the extra work the Justices are giving themselves, I have a feeling that they will still be able to enjoy their summers off with the globe-trotting they often have done in the past.

Some related SCOTUS posts:

• What SCOTUS should be doing
• Solving the SCOTUS docket mystery
• More on the SCOTUS deadly, but still shrinking, docket
• Roberts, the cert pool, and sentencing jurisprudence
• Dissecting the SCOTUS docket dilemma
• Additional SCOTUS docket dissection

Conviction of Qwest's Nacchio reversed on appeal, could Enron's Skilling be next?

Though technically not about sentencing, it is relevant to the white-collar sentencing world that (according to this WSJ report), "the U.S. Court of Appeals for the 10th Circuit in Denver has ordered a retrial of former Qwest head Joseph Nacchio [voting] 2-1 to overturn all 19 guilty counts ... saying that Judge Edward Nottingham had improperly excluded an expert witness ready to testify for Nacchio."  As also reported by the WSJ Law Blog here, a different attack by defense counsel claiming government misconduct threatens to bring down the conviction of Enron's Jeff Skilling. 

Good lawyers often can make white-collar trial convictions look questionable, especially when appearing before business-friendly appeal courts (just like good lawyers can often make capital convictions look questionable when appearing before abolition-friendly appeal courts).  To add a sentencing spin, I think the severe sentences that white-collar defendants now often receive after going to trial can often play a role (albeit usually unspoken) in the willingness of appellate courts to reverse what they might consider iffy convictions.

I look forward to the bloggy coverage of this interesting news at The Race to the Bottom and White Collar Crime Prof and WSJ Law Blog.

AG Mukasey going through the sentencing looking glass

My last two posts have me really wondering whether being a inside-the-Beltway must be like being in Alice's mixed-up Wonderland.  To date, United States Attorney General Michael Mukasey has expressed two notable sentencing viewpoints: (1) in a discussion concerning the sentencing of crack defendants, AG Mukasey has advocated to Congress against the U.S. Sentencing Commission's unanimous decision to make some prior drug defendants eligible for retroactive sentencing justice, and (2) in a discussion concerning the sentencing of 9/11 defendants, AG Mukasey has indicated to Europeans that he hopes leniency be shown to defendants who played a role in the murder of thousands of Americans.

Wow!  The symbolic impact of these two notable sentencing viewpoints coming from the top US law enforcer is telling: apparently we should not be too concerned about really achieving sentencing justice in either the war on drugs or the war on terror.  In both wars, it seems, the US Attorney General believe we should just lock everyone away in tiny cages for as long as possible and hope that this (very expensive) approach to crime will keep us safer.

Once again, I am surprised to discover that I am missing the "wisdom" of Attorney General Gonzales.

Some recent related posts:

• Guantánamo detainee cases now about sentencing issues
• Why the #$@! is AG Mukasey speaking out against execution for 9/11 plotters and suggesting US justice is sadist?
• Is AG Mukasey going soft on the federal death penalty?
• More details on DOD seeking the death penalty in GTMO cases
• AG Mukasey comes out swinging on crack retroactivity
• Mukasey's crack testimony and reactions from public policy groups
• Division in the Justice Department over crack retroactivity

Brennan Lecture on a topic that the Justice surely would have cared about

As documented at this official site, Justice Michael Wolff focused on sentencing issues at NYU when giving the 14th Annual Justice Brennan Lecture on State Courts and Social Justice last month. Justice Wolff, who sits on the Missouri Supreme Court and is the Chairman of the state's Sentencing Advisory Commission, titled his lecture "Evidence-Based Judicial Discretion: Promoting Public Safety through State Sentencing Reform."  Here is how his lecture began:

Americans put more people behind bars per capita than any country in the western world. But this rate of incarceration is not necessarily helping to reduce crime. In fact, when we put the wrong people in prison, we make them — and the problem of crime — worse. As we come to realize this, hopefully a new way of thinking about sentencing will emerge that will focus on sentencing outcomes as a way to ensure that public safety is a top national priority.

Sentencing is a complex topic that needs to be approached with humility, an open mind and common sense. I believe we have the analytical tools available to help create a system that minimizes recidivism and maximizes public safety.

Yet another potent analysis of Booker's structural impact

A new piece now on SSRN creates a troika of must-reads about post-Booker sentencing realities (together with the works recently noted by Dan Richman and Michael Simons).  This new piece comes from Kate Stith and is titled "The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion."  Here is the abstract:

Early analyses of the federal Sentencing Guidelines focused on the transfer of sentencing authority from judges to the Sentencing Commission; more recent analyses have noted the transfer of discretion from judges to prosecutors.  Of equal significance are two other power struggles: between local federal prosecutors and officials in the Department of Justice, and between Congress and the Supreme Court.  In its 2005 decision in United States v. Booker, and its recent decisions elaborating Booker, the Supreme Court made a high-stakes move that boldly asserted significant responsibility and authority in sentencing judges, local prosecutors, and the Supreme Court itself.

Although it was not the goal either of sentencing reformers, the actual result of the Guidelines regime that took effect in late 1987 was to transfer sentencing authority not to the United States Sentencing Commission, but to federal prosecutors and — particularly in recent years — to the Department of Justice in Washington. Congress' 2003 decision, in reaction to sentencing data that appeared to reveal that sentencing judges were willfully ignoring the Guidelines in a growing proportion of cases, to enact the Feeney Amendment represented a direct challenge to every level of the federal judiciary, to the Sentencing Commission, and to line-prosecutors. By design, this legislation, Feeney simultaneously empowered Congress' partner in the endeavor, the Justice Department in Washington.

Booker (as well as Booker's immediate predecessor, Blakely v. Washington, and Booker's progeny handed down in 2007) can be understood as a collective decision by the Supreme Court — which for more than a decade had been loathe to intervene or even seriously analyze constitutional and other issues raised by the Guidelines — that it was constitutionally and institutionally obliged to act in order to undo the Feeney Amendment, to constrain the leverage that inheres in prosecutors in a mandatory sentencing regime, and to counteract the centralizing impulse of the Department of Justice.  By introducing the opportunity for judges openly to exercise judgment independent of the Guidelines, Booker and its progeny not only allow judges to provide a counterweight to prosecutorial leverage over defendants, but may also counteract the constraints that the Justice Department moved to impose (in the wake of the Feeney Amendment) on line-prosecutors.  Once again, sentencing is primarily a local event.  After Booker, the Department in Washington may be calling signals, but the decision-makers on the playing field — prosecutors and their judges — need not hear the calls or abide by them.

On the topic of high-profile federal prostitution investigations...

a reader suggested that I check out this article from this weekend's Rocky Mountain News.  Here are the tawdry details:

Chief federal Judge Edward W. Nottingham, who admitted to indiscretions at a downtown topless club, also may have been a client of a high- priced escort service, according to a television news report. The U.S. Court of Appeals for the 10th Circuit is investigating Nottingham for judicial misconduct, according to 9News.

The judge allegedly was a customer of Denver Players, also known as Denver Sugar, which operated out of a four-bedroom home in the Commerce Park neighborhood and was raided and closed by Internal Revenue Service agents and Denver police in January, 9News reported.

Nottingham was the judge in the insider-trading trial of former Qwest CEO Joseph Nacchio....

Federal and local authorities spent more than a year investigating Denver Players at 1675 Fillmore St., according to federal affidavits that were unsealed last month. A man identified as a chauffeur told 9News that he was responsible for driving prostitutes to meet their clients, including Nottingham.

Another insightful prosecutorial perspective on modern federal sentencing

I noted here a new article by Dan Richman focused on the story of federal prosecutors in the wake of Booker.  I now see on SSRN is this fascinating new piece by Michael Simons in the same vein.  This article is titled "Prosecutors as Punishment Theorists: Seeking Sentencing Justice," and here is the abstract:

Federal criminal law in the last 100 years has seen three distinct sentencing eras. Most surveys of these three sentencing eras have focused on the changing power of the judge: from unfettered discretion before the Sentencing Guidelines, to severely restricted discretion under the mandatory guidelines, to our current system of guided discretion under United States v. Booker.  This article, however, focuses on the role of the prosecutor, which has changed dramatically over time.  In the era of individualized sentencing, prosecutors typically either abdicated sentencing responsibility or made non-binding recommendations based on individualization principles. There was little reason for prosecutors to become more involved, given the breadth of judicial discretion and the absence of appellate review. During the mandatory guidelines era, prosecutors became much more active at sentencing, advocating for particular guidelines ranges and appealing sentences that departed from those ranges. Our current system of advisory guidelines combines elements of the first two eras.  Prosecutors must still compute and advocate for particular guidelines calculations, but now they must also argue - both at sentencing and on appeal - that the sentences they recommend are reasonable. Put differently, prosecutors now must justify the sentences they seek by reference to the traditional principles of punishment.

This article examines prosecutors' new role as punishment theorists. In particular, the article argues that by forcing prosecutors to justify their sentences, Booker has caused an unintended, but potentially important, shift in prosecutorial engagement with sentencing justice. The article then examines whether this new engagement with sentencing justice can improve other aspects of prosecutorial discretion. In particular, the article argues that the principles of sentencing justice being developed by federal courts in the wake of Booker can inform not just prosecutorial sentencing arguments, but also prosecutorial charging decisions.  In the end, the article proposes a solution the persistent challenge of mandatory minimum sentences: prosecutors should use Booker's reasonableness standard in determining whether to file charges that will result in a mandatory sentence above the advisory guidelines range.

Let the sunshine in ... to SCOTUS and all other federal courts

I am extraordinarily pleased to see this news that today the "Senate Judiciary Committee today passed out a bill that would allow TV coverage of all federal courts."  Here's more from Lawrence Hurley's interesting report:

The committee has approved similar bills on several occasions in recent years but the legislation, known as the Sunshine in the Courtroom Act, has never been close to becoming law.

Sen. Ben Cardin, D-Md., (pictured) narrowly failed in his attempt to exempt district courts.  His amendment failed on a 9-9 tie. 

Cardin had argued that while there is a need to show the inner workings of the appellate process, especially the Supreme Court, trials in district court are more problematic.  That's because the media would not cover trials from gavel to gavel, he said.

But the bill's sponsors fought back, noting that the latest version of the legislation allows trial judges to exclude the cameras in certain instances, such as to protect witnesses and minors.  Sen. John Cornyn, D-Texas, added that coverage of trials would help the American people understand that trials are a lot more complex - and less entertaining - than legal TV dramas make them appear.  "I think it's important for them to see what happens," Cornyn said of the public.

A House version of the bill has already been approved by the judiciary committee.

Readers will not be surprised to learn that I think it is especially important to see what happens in district courts at sentencings.  Indeed, I think all law professors should lobby hard in favor of this Act in order to have a terrific corpus of teaching materials in the form of courtroom video.  I might even be able to develop a sentencing-only version of YouTube.

"Are Liberals Responsible For Mass Incarceration?"

The title of my post here comes from this intriguing post by SHG over at the great blog Simple Justice: A New York Criminal Defense Blog.  At that blog, SHG indicates that he "look(s) forward to lively and thoughtful discussion," and we engaged in just such a discussion when SHG took issue with my support here for a Kentucky forfeiture bill. 

SHG kindly let me have the last word in our debate over asset forfeiture as an alternative punishment, in part because he rightly realized that I "took this discussion to a much deeper place."  That, in turn, prompted SHG's long post with the title above.  The full post should be read for context, but here's how it concludes:

What I found so jarring by Doug's position is that we share a concern for the over-incarceration, over-criminalization of American society.  We similarly share a concern about the disparate impact of criminal law on minorities.  There is much we agree on.  Yet, it never occurred to me that beneath these areas of agreement, Doug harbored such a smoldering hatred of liberals.  Indeed, but for a few odd choices, one might well have concluded that Doug was quite the liberal himself.  And everybody is entitled to make some unexpected choices from time to time.

But Doug has come out clearly as a liberal-blaming conservative, and challenges us libs with being small-minded, unimaginative, brainwashed and beaten.  I'm not buying, and I'm frankly shocked by the depth of Doug's hatred of liberals and the nature and scope of his attack.

Just because we agree on the problem does not mean that we have to accept any potential "solution" that comes along.  By disagreeing with Doug's acceptance of asset forfeiture as a Utopian ideal, I am not prepared to accept being pigeonholed.  Mass incarceration is a very real problem.  Asset forfeiture is a very bad solution.  We need to solve the problem, and Doug is right that we all need to open our minds to alternatives that fall outside the realm of the usual answers....

But in our zeal to find alternatives, seizing upon solutions that are worse than the problem is not progress.  Legislatures tend to do that a lot, coming up with a brand new idea that ultimately proves to exacerbate the problem rather than fix it....

Doug has, in effect, accused me of liberal myopia because I do not accept his view that any alternative to mass incarceration is a good one.  Since Doug's views don't reflect mainstream conservatism, it would be unfair to make any accusations against conservatives based upon Doug's comments.  But I have one to levy directly at my accuser:  Professor Douglas Berman, you are just a liberal in sheep's clothing who is grasping at straws to find a cure to the societal nightmare of over-incarceration.  Stop fighting it and come over to the side of truth and justice.  We will forgive you this one mistake. 

Because he has addressed me directly, I want to clarify a few points:

1.  I do not have a "smoldering hatred of liberals," but I do have a smoldering concern that Americans who vocally and aggressively oppose the death penalty, and shaming punishments, and property punishments, and other non-incarceration responses to crime fail to realize (while being eager to deny) that they bear at least some partial responsibility for contributing to the various social and political realities that have produced modern mass incarceration in the United States.

2.  I am genuinely worry that most Americans (and not just "libs" as SGH describes himself) have become "small-minded, unimaginative, brainwashed and beaten" by a Kafkaesque US criminal justice system.  I am not sure how else I can otherwise explain, e.g., why federal defendants are still regularly punished for acquitted conduct even four years after Blakely or why New Jersey gets hailed after eliminating a (dormant) death penalty for murderers while nobody pays attention to its extreme and racially skewed drug offense imprisonment realities.

3.  I am proud to say that I am neither a "liberal in sheep's clothing" nor a sheep in liberal's clothing.  Especially since working on this blog, I have concluded that political labels (as well as some clothing) tend to restrict critical thinking rather than inspire reasoned dialogue.  And once I stopped worried about labels, I discovered that many so-called "conservatives" advocate ideas that have great sentencing reform potential — ideas ranging from support for faith-based prisons and reentry programs to a stated concern for doing away with any "tired philosophy [like the war on drugs] that trusts in government more than people." 

4.  I readily admit that I am "grasping at straws to find a cure to the societal nightmare of over-incarceration."  I do so because so many others who focus on criminal justice systems — and especially those who proudly assert that they are on "the side of truth and justice" — have for decades been unable (or unwilling) to pursue effectively cures for over-incarceration (perhaps because they are so darn busy trying to end capital punishment or trying to prevent crime victims from having rights or trying to ensure accused terrorists at GTMO have habeas rights or trying to prevent the recognition of an individual right to keep arms).

In short, SHG, I am not sure — nor do I really care about — which "side" I am on in these debates.  But I am sure that, as a believer in America's founding principles of liberty and freedom, I am deeply ashamed to be a citizen in the only country in world history that locks more than 1% of its adult population in small cages with iron bars.  I am also ashamed that very few on any "side" of the political fence are complaining about the failure of our nation's leaders to address these critical issues.

How do I love thee (USSC data), let me count the ways (to sentence)

I noted here that I was hoping to see some US Sentencing Commission data on whether the Gall and Kimbrough rulings might be having a big impact on district court sentencing outcomes.  Joyfully, the USSC today scratches my data itch with the release of this new data report, which is descibed this way on the USSC website:

February 2008 Preliminary Post-Kimbrough/Gall Data Report:  A set of tables presenting preliminary data on fiscal year 2008 cases sentenced on or after December 10, 2008.  The numbers are prepared using data received, coded, and edited by the Commission by February 21, 2008.

In addition, the USSC also now has available its official 2007 data sets:

2007 Annual Report and Sourcebook:  The 2007 Annual Report presents an overview of major Commission activities and accomplishments for fiscal year 2006.  See the Commission's 2007 Sourcebook of Federal Sentencing Statistics for descriptive figures, tables, and charts, and selected district, circuit, and national sentencing data.

An important prosecutorial perspective on modern federal sentencing

Just posted on SSRN is this terrific looking new article by Dan Richman, titled "Federal Sentencing in 2007: The Supreme Court Holds —  The Center Doesn't."  Here is the abstract:

This article takes stock of federal sentencing after 2007, the year of the periphery.  On Capitol Hill, Attorney General Gonzales discovered that U.S. Attorneys can bite back — at least when Congress wants them to. In the Supreme Court, the trio of Rita v. United States, Gall v. United States, and Kimbrough v. United States enshrined the reasonable district court as the ineffable place where federal criminal policy, sentencing philosophy and individualized judgment merge.  In contrast to the Supreme Court's sentencing cases, which focus on the allocation of authority between judges and juries, and the bulk of the sentencing literature, which pits prosecutors against judges, the institutional pairing highlighted here is Main Justice vs. the Districts, with Justice Department sentencing policies since 2001 considered in the larger context of DOJ efforts to exercise power over U.S. Attorneys' Offices.

What has often been framed as judicial discretion might better be seen as a coordinated exercise in local norm setting, an exercise in which line prosecutors, through charging power and shared control over investments in information gathering (in tandem with agencies), inevitably play a critical role. The extent to which prosecutors will be allowed to explicitly embrace the power they tacitly exercise already, and whether an illusory regime of sentencing uniformity will give way to a real one of collaborative norm articulation and development remains to be seen. But the suggestion here is that the new sentencing cases may point the way to a healthier federal criminal justice system.

Dan's scholarship has always brought an important (and too-often-overlooked) prosecutorial perspective to the impact of sentencing reforms and real-world criminal justice developments.  Based on a quick skim, this piece appears to continue Dan's strong and very sophisticated work in this arena.

I have long viewed the "real" story behind federal sentencing issues ranging from the 2003 Feeney Amendment to the 2008 debate over crack retroactivity often have a lot to do with the backstory of, as Dan puts it, Main Justice vs. the Districts.  I am glad Dan is spotlighting this part of the federal sentencing onion in light of the new SCOTUS rulings, and I highly encourage reader reactions to his distinct insights.

Insider myopia and the diverse benefits of a short bench

Jeffrey Rosen has this remarkable — and depressingly telling — article online at The New Republic, titled "Short Bench: Why the Dems lack Supreme Court nominees."  Here is a taste:

As Democrats dream about the possibility of retaking the White House in 2008, they are also fantasizing about their first Supreme Court appointments since 1994. But the bench of potential candidates is surprisingly thin....

[M]ost of the sitting Democratic appellate judges are too old to be considered plausible Supreme Court candidates.... Democrats have a strong incentive to pick younger justices this time around....

The next Democratic president will also feel strong pressure to appoint a woman or a Latino justice -- or both. Here, the pool of potential candidates is also shallow....

[T]he next president could try to appoint [a BigLaw lawyer like Beth S. Brinkmann] directly from private practice. (The last lawyer to be appointed directly from practice to the Court was Lewis Powell in 1971.) But a choice like this might be controversial among Democratic activists in the John Edwards wing of the party, who feel the current Democratic justices are already too sympathetic to business....

Another possibility would be for the next