Sentencing Law and Policy

More juicy data from the USSC

I am extraordinarily excited to discover that, as was promised at terrific Miami FSG conference, the US Sentencing Commission has now made available at its website its 2005 Annual Report and 2005 Sourcebook of Federal Sentencing Statistics. Here is how the Commission describes these new materials:

The 2005 Annual Report presents an overview of major Commission activities and accomplishments for fiscal year 2005. See the Commission's 2005 Sourcebook of Federal Sentencing Statistics for descriptive figures, tables, and charts, and selected district, circuit, and national sentencing data.

I hope to post on a few of my latest provocative post-Booker sentencing theories after I get an opportunity to consume some of the juicy data and analysis in all these USSC materials.  In the meantime, let me just congratulate (and thank) the Commission for getting this data out in a timely fashion.

Reflection on a (record?) variance

I am home from the terrific Miami FSG conference (kudos to everyone involved), and on the way I was thinking about Judge Rakoff's decision this past week to give an enormous variance — the largest I have seen — to a corporate president who apparently faced a life sentence under the guidelines after a fraud conviction that resulted in $260 million in losses (basics here).

More details about the case and the sentencing can be found in this AP article:

The president of a health care company that once was a Wall Street darling was sentenced Tuesday to three and a half years in prison by a judge who rejected arguments that he deserved a much lengthier term.  Richard P. Adelson, 40, faced as much as life in prison for his conviction earlier this year on conspiracy and securities fraud charges for joining a plot to hide financial problems at Impath Inc., a provider of cancer information services....

Defense lawyer Mark S. Arisohn argued for leniency, saying jurors seemed sympathetic to his client and believed he would face months rather than years in prison.  Assistant U.S. Attorney Alex Southwell said Adelson did not deserve much sympathy after causing financial, emotional and physical devastation to so many people.  He said the fraud, which led to the company's collapse, caused more than $100 million in losses to nearly 10,000 investors.  Southwell said it was "among the worst of corporate fraud offenses of recent years."

Southwell said the government was not seeking a life sentence but one that was "just and appropriate" and consistent with federal sentencing guidelines. When the judge told the prosecutor that the guidelines called for a life sentence, Southwell noted that the lives of some victims have been "decimated by the defendant's conduct."

In addition to wondering, as I did before, whether this (record?) variance will be appealed, I wonder whether and how this sentence might impact other up-coming high-profile corporate sentencings. 

In particular, Jamie Olis is due to be resentenced (after now having served more than two full years in prison without having yet been lawfully sentenced).  Olis was a mid-level employee at Dynegy, not a corporate president, and his personal circumstances seem comparable to those of Adelson.  (A lot more background on the Olis can be found here.) 

If we really care about avoiding national sentencing disparity, I would have a hard time understanding why Olis should have to serve any more time than Adelson (who is still free pending appeal) is now facing.

The other Ernon sentencing stories

In a series of posts, I have mentioned some issues of interest in the future sentencing of Ken Lay and Jeff Skilling.  This AP article details the issues arising in the sentencing of all the other persons connected to the case: "Now that Enron Corp. founder Kenneth Lay and former Chief Executive Jeffrey Skilling are felons, the string of ex-executives whose testimony helped the government snag those convictions face punishments of their own."

Catching up with Weldon Angelos

Regular readers will recall the story of Weldon Angelos, a first offender who was begrudgingly sentenced to 55 years' imprisonment by Judge Paul Cassell for marijuana sales under federal mandatory minimums.  This month's issue of The Progressive has this long article that tells the story of Angelos' life and crime and fate.  Here's the start:

Weldon Angelos has matching several-day-old stubble on his scalp and on his face. He has striking steel-blue eyes.  He holds his body confidently, even aggressively, clad in prison-gray slacks and work shirt.  The only visible sign of unease he betrays is the ceaseless intertwining of his fingers. He is twenty-five years old, a resident of the medium security federal penitentiary at Lompoc, California. He is slated to remain behind bars until 2059, when he will be seventy-eight.

Angelos works in the prison's dental lab and takes college classes — studying religion, philosophy, politics, anything to take his mind off the facts of his incarceration.  He hasn't seen his two sons in the year-plus that he has been in prison.  He's only seen his daughter a couple times. And he doesn't know if he'll ever set foot outside the penitentiary grounds again....

Angelos is not a murderer.  Nor is he a rapist, an armed robber, or a kidnapper.  If he were, chances are he'd be staring down a shorter sentence than the fifty-five years he's burdened with.  No, he is a medium-scale Salt Lake City marijuana dealer who had no prior felony convictions.

Some prior Angelos posts:

• Judge Cassell laments, but imposes, harsh mandatory sentence
• Amicus filing in Angelos mandatory minimum case
• Tenth Circuit affirms 55-year mandatory minimum sentence in Angelos
• More Angelos aftermath

Great DC opinion on mens rea and mandatories

In a decision that may interest criminal law and Model Penal Code fans as much as sentencing folks, the D.C. Circuit ruled today in US v. Brown, No. 04-3159 (DC Cir. June 2, 2006) (available here) that the mandatory minimum ten-year federal sentence for discharging a firearm during a crime of violence should not be interpreted to be a strict liability provision.  Here's the start of the interesting and thoughtful opinion in Brown:

Congress has provided a minimum sentence of five years for any person who, in relation to any crime of violence, "uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm." 18 U.S.C. § 924(c)(1)(A)(i).  The minimum penalty increases to seven years if the firearm "is brandished," § 924(c)(1)(A)(ii), and to ten if it "is discharged," § 924(c)(1)(A)(iii).  The question here is whether the accidental discharge of a weapon triggers a ten-year sentence for discharging. Phrased more formally, the question is whether an intent requirement is implicit in the discharge provision. We conclude that it is.

Huge downward variance in white-collar case

As detailed in this article, a corporate president who faced a life sentence under the guidelines after a fraud conviction "because shareholder value fell by more than $260 million after the fraud scheme was disclosed," received an extraordinary break yesterday when sentenced to less than four years' imprisonment:

Former Impath Inc. President Richard Adelson of Montebello, who faced life imprisonment for lying to investors, was sentenced this week to 42 months in prison, fined $1.2 million and ordered to pay $50 million in restitution.  Adelson, 40, was convicted in February of conspiracy, securities fraud and filing false statements with the U.S. Securities and Exchange Commission. He was acquitted of seven counts, including two charges of soliciting a false proxy statement.

U.S. District Court Judge Jed Rakoff in Manhattan said that while federal sentencing guidelines recommended life in jail for Adelson, his crimes weren't comparable "to the kinds of situations that have led to 20- and 25-year prison terms."  Rakoff also agreed to allow Adelson, who was also Impath's chief operating officer, to remain free on $1 million bond pending his appeal.

I am not sure what I find more surprising about this case: that the guideline sentence was life or that Judge Rakoff went all the way down to 42 months.  Especially when the Ernon convictions put a new spotlight on white-collar sentencing, it will be interesting to see if the Justice Department will take this case to the Second Circuit.  I imagine DOJ will view this sentence as unreasonable, but it might worry that the wrong Second Circuit panel might not agree.

Whatever happens on appeal, this is another case reaffirming my instinct (detailed in some posts below) that white-collar offenders are getting the biggest post-Booker breaks.

Pondering white-collar sentencing
The evolution of white-collar sentencing
DOJ brags about white-collar prosecutions (but is silent on sentences)
A pattern of white-collar leniency?
White-collar Booker breaks
Are the federal guidelines too tough on white-collar offenders?
Tough sentences for white-collar offenders

State legislator speaks out against mandatories

In the Philadelphia Inquirer, State Representative Greg Vitali has this notable op-ed entitled, "Mandatory sentences, minimum justice." Here's a portion of the strong piece that should be read in full (especially now that legislation is in the works to create a rigid mandatory federal sentencing scheme):

When some people learn that I'm opposed to minimum mandatory sentencing laws, they accuse me of "voting with the drug dealers and against our children." That's just campaign rhetoric, promoted by those eager to appear "tough on crime." These sentencing laws, regrettably, impede our judicial system's ability to do justice....

The main problem with mandatory minimum sentences is that they take away the ability of judges to consider the individual circumstances of each case when imposing sentence....  Another problem with mandatory minimums is that they skew our system of justice by shifting power from judges to prosecutors....  Finally, mandatory minimum sentences have added huge costs to Pennsylvania's corrections budget....  A much better approach would be to eliminate mandatory minimum sentencing and rely on the sentencing guidelines already set up by the Pennsylvania Sentencing Commission.

As of now, legislators who oppose mandatory minimums are losing the sound bite war. That's why many politicians who oppose mandatory minimums nevertheless will not vote against them - they consider such a vote political suicide. The groups who oppose mandatory minimums must be more vocal in their opposition, particularly groups with a vested interest, such as the judges whose role is being impeded, the lawyers who see how mandatory minimums skew the system, and the groups working for justice in our communities.  Only these groups can educate the public about the problems with mandatory minimums, and provide the political cover that legislators need to make changes.  Those changes need to be made soon. Our system of justice depends on it.

Too insane to die?

The New York Times this morning has this front-page article on the death penalty and mentally ill defendants entitled "Judging Whether a Killer Is Sane Enough to Die."  Here's a taste:

Two decades ago, the United States Supreme Court in Ford v. Wainwright ruled that the Eighth Amendment prohibited the execution of the insane.  Since then, lower courts have struggled to find a way to apply that principle in practice....

"In Texas," said Greg Wiercioch, a lawyer with the Texas Defender Service who has consulted with Mr. Panetti's defense, "if you cast a shadow on a sunny day, you're competent to be executed." Other courts require more.  Relying on a concurring opinion in the Supreme Court decision, they say the inmate actually has to perceive the connection between the crime and the punishment.

New Booker data shows more within-guideline sentences

The US Sentencing Commission now has on its Booker webpage the latest, greatest batch of basic post-Booker sentencing statistics. This latest "Post-Booker Sentencing Update," which can be accessed here, provides an "extensive set of tables and charts presenting data on post-Booker cases received, coded, and edited ... [through] close-of-business on May 1, 2006."

Though the latest data does not seem to reflect any radical shift in post-Booker sentencing results, there is yet another slight up-tick in the number of nationwide within-guideline sentences  (up to 62.6% up from 61.9% in February and from 61.2% earlier).  Though I doubt this is a statistically significant change, I must speculate that the ugly pattern of reasonableness review (discussed here and here and here) could be leading a few more district judges to adhere to the guidelines. 

As I have stressed in prior posts here and here and here, more detailed data are needed for truly a complete view of the post-Booker world.  At the district court level, I remain eager to see data on the most common grounds for departures and variances, as well as data on within- and outside-guidelines sentences for first and/or non-violent offenders.  And, of course, I want to see some concrete appellate disposition numbers as well.

Kind blog words from an insightful commentator

While meeting so many nice folks at the terrific Miami FSG conference, I am reminded how the blog creates an immediate connection with a diverse array of persons interested in sentencing topics.  Writing on related themes, the always insightful (and cutting-edge) Dahlia Lithwick has this great essay in the latest issue of The American Lawyer entitled, "Blawgs on a Roll: Legal reporting is sometimes decried as boring and inaccurate; But a band of savvy law professors have changed all that."  Here's a sample (at some length because it's so kind):

The most compelling, cutting-edge, honest legal writing being produced in this country today is happening on the Internet, and the crop improves daily.  From the fistful of judges (including Richard Posner) who maintain regular blogs, to the vast and growing number of law professors and law students who find the time to post daily, it's clear that the real bones and guts and sinew of the national conversation is happening online, and not in print.

As I write this column, the major newspapers are consumed with two or three big legal stories. And that's fine. But, today in the blogosphere, the debate ranges from free speech on college campuses (at The Volokh Conspiracy) to Yale's decision to admit a Taliban student (at Glenn Reynolds's Instapundit). Douglas Berman — whose blog, Sentencing Law and Policy, has now been cited in 21 judicial opinions — is tracking the fallout from the Supreme Court's sentencing guidelines cases. Lawrence Solum is unpacking the "nuclear option" on his Legal Theory Blog, while Rick Garnett engages PrawfsBlawg readers in a discussion of free speech constraints on religious ministers. Meanwhile, Howard Bashman offers a clearinghouse of all the legal news of the day at his über-blawg, How Appealing.

And that's not even the tip of the iceberg.  Ian Best, a third-year law student at Moritz College of Law, is creating an online taxonomy of blogs by attorneys, judges, and law professors — and he's still counting at 643.  Best's site, which calls itself 3L Epiphany, offers ample proof that the Internet is poised to accommodate an entire universe of lawyers and legal thinkers. Why?  Because it promotes dialogue, offers instant access to primary texts, and imposes no space or time constraints....

[L]egal blogging is wonderfully technical and detailed, but also largely accessible and opinionated. In the blogosphere, the taboo on opinionated legal writing has been lifted. Even better, law professors, who can be exceedingly cautious in print, sometimes become slightly drunk on the Internet's thin air.  Whereas legal thinkers once limited their most serious scholarship to law review articles, occasionally nipping out into the dangerous world to write an op-ed, now many of them offer off-the-cuff observations about everything from partial birth abortion bans to their favorite CDs, several times daily.  The blogosphere thrives precisely because it exists at the interstices of the ivory tower and pop culture.  As a result, it's the most fertile ground for cutting-edge law talk.

To be sure, legal bloggers are still working through their growing pains. Debate rages among them about whether law review articles are relevant anymore, whether blogging counts as real scholarship, whether junior faculty should avoid blogging until they gain tenure, why women tend to eschew legal blogs, what counts as a legal blog, and so on. Opinions are all over the map.  But the conversation is almost always precise, thoughtful, respectful, and responsive: a respite from the screaming and fist-shaking that goes on in the rest of the blogosphere.  And no one is charging a dime for it.

A busy sentencing day in the circuits

I picked the wrong day (or perhaps the right day) to lack time to follow the sentencing action in the federal circuits.  From a quick review, I see notable cases on an array of sentencing issues coming from the Second, Seventh, Eighth, Ninth and Eleventh Circuits today that I won't have time to blog. 

But I must quickly note the Ninth Circuit's work in US v. Evans-Martinez, No. 05-10280 (9th Cir. June 1, 2006) (available here).  One sentence gives the basics: "We hold Rule 32(h) requires that a district court provide notice of its intent to sentence outside the range suggested by the Guidelines post-Booker, as it did pre-Booker."  As DoD notes, this deepens a circuit split on this issue, although I think only the Seventh Circuit has officially gone the other way.

Sensenbrenner Booker fix drafted

I am in sentencing nerd nirvana here at the Miami FSG conference (though feeling a bit overwhelmed).  All the morning plenary sessions were absolutely amazing (especially a panel with the former and current USSC chairs), and I even got in a good one-liner during my panel.  I wish I could attend all the afternoon break-out sessions all at once and also be on-line and also talk to everyone I am meeting in the hallways. 

Helpfully, though I lack the energy to even try to live-blog the event, Anthony J. Colleluori, aka That Lawyer Dude, is trying to live blog here (and also maybe here later).  I'd be eager to link to anyone else writing about the conference, especially since my comments still are not working right.

The biggest news, beyond the release of new USSC stats that I'll discuss later, is that the Sennsenbrenner "topless guidelines" Booker fix bill is fully drafted and perhaps will soon be introduced.  It carries the audacious title "Sentencing Fairness and Equity Restoration Act of 2006."  Needless to say, I doubt I'm the only one put off by the suggestion that judges and others who have been working so hard after Booker to be fair and equitable need such a "Restoration Act" in the form of the proposed (harsh) mandatory minimum guidelines.  Put another way, I do not think topless guidelines fulfill any notion of restorative justice that I have ever heard of.

As of this writing, it seem uncertain exactly when (or even if) the Sensenbrenner bill will be introduced.  But the title alone suggests that polticial rhetoric and not policy realism will be the coin of the realm in any coming Booker fix debates.

New litigation over sex offender restriction

As detailed in this AP story and this local account, a new ordinance restricting sex offenders in Indianapolis has prompted some interesting constitutional litigation.  Here are basics from the AP:

Six sexual offenders, including convicted child molesters and rapists, sued the city Wednesday to block a new ordinance that bans them from coming within 1,000 feet of parks, pools, playgrounds and other sites when children are present. The six, including a college student who has joint custody of his 7-year-old son and has completed probation for child exploitation, are represented by the American Civil Liberties Union of Indiana, which filed the complaint seeking class-action status in U.S. District Court in Indianapolis.

The six allege the new ordinance is unconstitutionally vague, violates their rights to vote and attend church, and prevents them from freely traveling on streets and highways that may pass within 1,000 feet of the affected sites. They are seeking temporary and permanent injunctions barring the city from enforcing the new law. "It is virtually impossible to travel through the streets and interstate highways in Marion County without passing within 1,000 feet of a playground open to the public, recreation center, bathing beach, swimming pool or wading pool, sports field or facility," the complaint said. "Moreover, there is no way for a person to know if he or she is passing within 1,000 feet."

The ordinance cleared the City-County Council 25-2 on May 15 and took effect immediately.  It carries fines of up to $2,500 for violations.... Tenley Drescher, a deputy corporation counsel for the city of Indianapolis, said the city planned to litigate the matter to the end.  "We plan to vigorously defend the constitutionality of the ordinance," Drescher said.  "The important part is protecting kids."

As details in some of the links below, there has been robust litigation over sex offender residency restrictions, but I am not aware of any major rulings concerning sex offender movement restrictions.

Some related posts:

• A potent and important prosecutorial statement against sex offender residency restrictions
• Intriguing sex offender collateral consequence

Around the blogosphere

Perhaps energized after a long weekend's extra rest, the legal bloggers are buzzing with lots of stuff that should be of interest to sentencing fans:

• The Conglomerate folks have their on-line symposium about the Enron convictions off to a flying start, and some entries (my Enron sentencing coverage is here).

• Eugene Volokh has this lengthy discussion of news from LA County that a Sheriff's Department "has maintained different [jail] release policies for men and women, even for those convicted of the same crimes."

• Dave Hoffman has this interesting post headlined "Let Markets Help Criminal Defendants" which argues for expanding the use of futures markets as a way to level the informational playing field in plea bargaining.

• Joel Jacobsen is on a roll with a number of provocative posts at Judging Crimes.

Report on Second Circuit crack reasonableness argument

As detailed in this post, Professor Mark Osler (with some input from me) filed an amicus brief on behalf of the ACLU in the Second Circuit in US v. Castillo explaining why, after Booker, it is reasonable for a district judge not to follow the guidelines' 100-1 crack-powder ratio.  On Wednesday, a panel of the Second Circuit heard argument in Castillo.  Mark was given time at oral argument, and here are portions of a report he sent me right after the argument:

All three judges [Circuit Judges Katzmann and Sack, with District Judge Murtha by designation] seemed well-briefed on the issue, skeptical of the 100-to-1 ratio, and respectful of the government's argument.  Judge Katzmann noted that Senators Sessions and Hatch had tried to introduce legislation promoting 20-to-1, showing an uncommon knowledge of the underlying political fight that has raged for two decades now.  Judge Katzmann pressed the government attorney, Jonathan Abernethy, on whether he supported 100-to-1 himself, noting that it had very little support.

Judge Sack seemed particularly concerned with the fact that sentencing judges, if this panel ruled for the government, may seek the same outcome by "finding" individualized factors.

Ohio Supreme Court reverses death sentence based on own weighing for first time in 15 years

As detailed in this Columbus Dispatch article and in this post from Karl Keys, the Ohio Supreme Court today in a split ruling in State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417 (May 31, 2006) (available here) overturns a death sentence based on its statutory duty to independently reweigh aggravators and mitigators.  The dissent notes that this reversal is only the Ohio Supreme Court's third reversal on these grounds (despite reviewing hundreds of death sentences), and the first such reversal in 15 years.  This official summary from the Ohio Supreme Court provides a great review of the basics of the ruling.

The short sentencing story getting longer

As I expected and feared when the story first broke, the short sentence for the short person in Nebraska is continuing to generate attention a week later.  Here is the latest from the AP:

A petition drive is calling for the resignation of the judge who sentenced a sex offender to probation instead of prison in part because of his short stature....  The petition drive is being conducted by Tiffany Jones, a resident of the county seat of Sidney, who said she already had about 200 signatures....

A friend and colleague of the judge, Bernie Glaser of Lincoln, Nebraska, said [her] ruling has been misunderstood.  He said the prosecutor didn't ask for prison time, and the judge took other factors into account when deciding that prison wasn't right for [the defendant], including his mental capabilities and information contained in a pre-sentence report that is not public. "We need more judges like her," Glaser said. "I think they should be proud they have a judge like her."

Related posts:

• Short people got no prison
• Short fun to start a long weekend
• The full lyrics to Short People Got No Prison

Another Enron case now turns to sentencing

I am glad I have created this Enron sentencing category archive, because another Enron-related criminal charge resulted in a conviction this afternoon.  However, as this AP story details, prosecutors only batted .500 this time around:

Jurors on Wednesday convicted one of the former executives from Enron Corp.'s defunct broadband unit to be retried after his original case ended in a hung jury last year. Former broadband unit finance chief Kevin Howard was convicted of five counts of fraud, conspiracy and falsifying records while former in-house accountant Michael Krautz was acquitted of the same charges after a monthlong trial.

Off to Miami for huge federal sentencing event

I'm off to the airport this afternoon to head to the Fifteenth Annual National Seminar on the Federal Sentencing Guidelines, co-sponsored by the US Sentencing Commission and the Federal Bar Association.  All the particulars of this exciting event are set out in this event brochure.

As detailed in the brochure, this Seminar is bringing together many, many folks who are really in-the-know about Booker.  I am honored to be participating in a big panel on Thursday morning, and I also am excited to attend all of the other panels.  I am also hopeful that the event will lead the USSC to release another batch of up-to-date post-Booker data.  (It has now been more than two months since the USSC's last data run.)

If the hotel has its conference rooms wired, I may try to do some mid-event Booker blogging.  Otherwise blogging may be a bit lighter through the weekend.

Questioning Utah's drug-free zone laws

Earlier this week, the Salt Lake Tribune ran this fascinating article discussing the operation of Utah's drug-free zone laws. The article is entitled "Utah prison chiefs say no to drug law: School, church zones misused to beef up sentences, they say."  Here are some highlights:

Kurt Garner, vice chairman of the Utah Board of Pardons and Parole, [has asked] the Legislature to rethink the state's drug-free-zone penalty enhancement, which applies to both the possession and sale of drugs within 1,000 feet of schools, child-care facilities, parks, churches, shopping malls, sports facilities or parking lots.  The law, designed to keep drugs away from children, has instead created disproportionately long sentences for some offenders, coerced others into pleading guilty to weak cases that would have otherwise been challenged at trial or dismissed, and been inconsistently enforced by police and prosecutors.

Garner said in one rural county, police arrested a man who had used drugs, put him in a patrol car and drove him past a school — a drug-free zone — so they could seek the stiffer penalty.  In other counties, police have deliberately set up undercover buys in church or school parking lots, or initiated stops in front of a parking lot to trigger the more serious charge, Michael Sibbits, former chairman of the Board of Pardons and Parole, wrote in a letter to the Law Enforcement and Criminal Justice Interim Committee.

Most offenders slapped with the enhanced penalty have never dealt drugs or used drugs around children — the very people the law is supposed to protect.  In October, Christine Mitchell, deputy director of the Utah Department of Corrections, looked at 45 first-degree felony cases over a 12-month period.  In only three cases were children present when the offense occurred.

Some related posts about drug-free zone laws:

• NJ Commission releases major report on drug-free zones
• Important drug-free zone report
• Important work on drug sentencing in New Jersey

The evils of blog spam

Because of seemingly endless comment spam, I am trying to institute the TypeKey registration program for comments.  Commenting may not be possible while I try to figure this all out.  Sorry for the inconvenience, but the comment (and trackback) spam is really annoying.  Readers are highly encouraged to suggest other fixes or remedies for blog spam.

Around the blogosphere

Lots of sentencing related stuff worth checking out around the blogosphere:

• Ellen Podgor at White Collar Crime Prof Blog ruminates a bit here on the upcoming Enron sentencings (which I've already covered at length).  Also, the Conglomerate folks have assembled an all-star group for an on-line symposium about the Enron convictions, though I doubt sentencing issue will be discussed much.

• The folks at Concurring Opinions have thought-provoking posts on plea bargaining and on inmate rights.

• Speaking of thought-provoking, Blonde Justice has this interesting post exploring when someone might sensibly choose to go to jail rather than complete certain alternative sentencing programs.

• After a trial-required hiatus, the Second Circuit Sentencing Blog is blogging up a storm on a number of post-Booker sentencing topics.

Another serial killer pleads to avoid death penalty

It is often hoped that the death penalty will operate to ensure that the "worst of the worst" receive society's ultimate punishment.  However, this AP story from Illinois provides a sober reminder that sometimes to very worst murderers are able to strike plea bargains to avoid the death penalty:

A serial killer who prosecutors say burned some of his victims to ash and bits of bone in his backyard pleaded guilty Tuesday to killing eight women.  Under a deal with prosecutors, Larry Bright, 39, escaped a possible death sentence and instead will get life in prison without parole.

Of course, perhaps the most notorious example of this phenomenon involved Gary Ridgway, the so-called Green River Killer.  Ridgway may have killed more than 50 persons in Washington, but he avoided the death penalty through a plea deal.   (As detailed here, the Ridgway case has had some notable ripple effects on how the death penalty is viewed in Washington.)

A must-read for legal-process-sentencing junkies

I always enjoy NYU Professor Rachel Barkow scholarly work because, in addition to being a sentencing guru, she bring a fascinating legal process perspective to all the issues she explores.  Consequently, even without having a chance to read her latest work, which is now available here from SSRN, I know I have to add it to my summer reading list.  Co-authored with Kathleen O'Neill, Rachel's latest piece is entitled "Delegating Punitive Power: The Political Economy of Sentencing Commission and Guideline Formation," and here is part of the abstract:

Borrowing from political science and administrative law scholarship and analyzing a data set of American jurisdictions with and without sentencing commissions from 1973 to 2000, this Article explores the political and economic factors that could prompt a legislature to delegate some of its responsibility for setting punishments to a sentencing commission even when the political climate rewards legislators for passing tougher sentencing laws themselves.  We find that various political and economic factors — specifically those factors that are rooted in a concern with the costs of longer sentences and incarceration — play a significant role in predicting when states will adopt sentencing commissions and guidelines.  The relationship between sentencing commissions and costs is most obvious in our findings that corrections as a large percentage of state expenditures and a high incarceration rate are positively correlated with the presence of sentencing commissions.  But a concern with costs also explains some of the statistically significant political variables as well, including the positive relationship between commissions and a narrow partisan margin, elected judges and a Republican House.  We also find that divided government at the state level decreased the possibility of adopting and maintaining sentencing commissions.  We also find relationships with statistical significance between many of our variables and the adoption of sentencing guidelines. A narrow partisan margin, a Republican House, a Democratic governor, elected judges, a high incarceration rate, and corrections as a large percentage of expenditures are positively correlated with the presence of sentencing guidelines.

Major California Supreme Court decision on the "prior conviction" exception

Thanks to this post at Criminal Appeal, I see that last week I missed a major ruling from the California Supreme Court about the scope of the "prior conviction" exception.  Last Monday, the California Supreme Court in People v. McGee, No. S123474 (Cal. May 22, 2006) (available here) issued a long opinion that essentially holds that there is no jury trial right on the nature of a prior conviction.  Here is how Jonathan Soglin astutely summarizes the McGee ruling:

In this case, the particular question was whether two Nevada robberies qualified as robberies under California law and, thus, were strikes under the Three Strikes Law.  The Court of Appeal had read the SCOTUS Almendarez-Torres exception to the right to a jury trial for prior conviction allegations to apply narrowly only to the mere fact of the prior conviction.  In a 5-2 decision, Chief Justice George disagreed, declining to read Almendarez-Torres so narrowly.  He recognized that the SCOTUS decision last year in Shepard v. U.S. read the prior-conviction exception narrowly, but he found that not controlling because Shepard was decide on statutory grounds, invoking the doctrine of avoiding constitutional doubt.

Though I have argued in my Conceptualizing Blakely article that the "prior conviction" exception ought to be broadly interpreted, extant Supreme Court jurisprudence does not fully support a broad reading of the exception.  Thus, I think the dissent by Justice Kennard in McGee gets in some good shots, starting with this opening sentiment:

Because in Apprendi, the high court itself has cast doubt on the continuing vitality of the "fact of a prior conviction" exception to the jury trial requirement, this court should construe it narrowly. Instead, the majority reads it broadly, applying it to this case even though the Apprendi court's justifications for the exception are inapplicable here.  According to the majority, it is proper for a trial court to deny a defendant a jury trial, with a beyond-a-reasonable-doubt standard of proof, not only on the fact of a prior conviction but also on the truth or falsity of factual allegations pertaining to the conduct that gave rise to a prior conviction, even though those allegations were not elements of the prior offense. I disagree.

Interesting split Fifth Circuit ruling on "execution impact" testimony

Splitting on an intriguing issue about capital sentencing procedure, the Fifth Circuit today in Jackson vs. Dretke, No. 05-70031 (5th Cir. May 30, 2006) (available here) resolves a habeas case by refusing a certificate of appealability to a defendant on "his challenge to the exclusion of execution impact testimony." (At the sentencing phase of his state trial, the defendant sought "to question his friends and family on (1) whether they wanted him to die and (2) what the impact on them would be if he were executed.") 

The majority opinion authored by Judge Smith concludes that "it was not objectively unreasonable for the state court to decide that extant Supreme Court holdings should not be extrapolated to include testimony as to the impact of a death sentence on family and friends."   The dissenting opinion by Judge Dennis reasons that the habeas challenge merits further exploration, in part because "[e]xecution impact testimony easily satisfies [a] sentencing relevance test — it is testimony as to the value of the defendant's life and cost of his death to family and friends, and this value or cost could serve as a basis for the sentencer to determine that the death penalty should not be imposed."

Looks like a busy June for SCOTUS

As thoroughly reviewed at SCOTUSblog, the Supreme Court today decided only one argued case and granted cert in only one case.  That means that the Court will have a whole lot of (mostly criminal) cases to resolve in its final month of this Term.  It also needs to start getting its docket filled up for next Term, too. 

I had heard that some Blakely retroactivity cases had been conferenced recently, and I am sure plenty of Booker-related issues keep getting brought to the Court.  It will be interesting to see if the Court will take on any additional Blakely or Booker cases anytime soon.

Some related posts:

• SCOTUS anticipation...
• The criminal justice test for Roberts' rules of order
• Shouldn't Hill be the very first priority for SCOTUS?
• A criminal closing act for SCOTUS
• Justice Stevens asking all the right questions
• Time to take some more Blakely and Booker cases....
• The waiting is the hardest part...
• Roberts, the cert pool, and sentencing jurisprudence

UPDATE:  An insightful and informed reader sent me this interesting follow-up on the Supreme Court's work today:

On the Supreme Court's orders list today it gave the petitioner in Schardt v. Payne additional time to pay his docketing fee and file a petition.  That is the Ninth Circuit's Blakely retroactivity case, so it looks like maybe the Justices are at least thinking about granting certiorari on that issue.

Lethal injection litigation inspection

Professor Debby Denno, whose prior work on execution methods I praised here, today has this thoughtful essay in the National Law Journal, entitled "Lethal injection: Time to find alternatives."  Here is a snippet that provides a sense of the issues explored in the short piece:

A look at both lethal injection's procedure and substance in historical context shows that the more intriguing question about the success of lethal-injection challenges is not "Why now?," but rather "Why not earlier?"  Given that lethal injection was first enacted nearly 30 years ago, why is it only within the past year or so that constitutional challenges have made so much headway?

Among other virtues, Debby's piece reminded me to look for the oral argument transcript in Hill, which is now available at this link.  A quick read of that transcript leads me to one conclusion and one prediction: my conclusion is that the lethal injection mess needs to be, as I suggested here, addressed by legislatures as well as courts; my prediction is that the Court in Hill will say lethal injection protocol claims can be brought as a 1983 action but can be subject to a laches bar if the claim is not brought expeditiously.

On a related front, the Los Angeles Times has this piece reviewing the big cases still facing the Court this Term.  That piece speculates that the Court might issue a narrow ruling in Hill to avoid division among the Justices.

Some recent related posts:

• A bit of lethal injection history
• Shouldn't Hill be the very first priority for SCOTUS?
• How could (and should) Congress clean up the lethal injection mess?
• Reports on Hill lethal injection argument
• More coverage of the Hill lethal injection argument

Retirement of a federal prosecutor's nightmare

The Charlotte Observer has this interesting article discussing District Judge Graham Mullen of the Western District of North Carolina, who is taking senior status after 16 years on the bench.  Appointed by the first President Bush, Judge Mullen sounds like a federal prosecutor's worst nightmare.  Consider these snippets from the article:

Mullen has contempt for the federal sentencing guidelines, which he believes have given prosecutors more power than judges in deciding punishments.  He once said the guidelines, designed by Congress in the 1980s to make prison terms tougher and more uniform, would "gag a maggot."...

Mullen doesn't shy from speaking out about what he perceives as injustices. He's told federal prosecutors they have a reputation of being arrogant bullies.  And he's refused to accept plea bargains that force criminal suspects to give up their rights to appeal....  The judge's critics say he can sometimes seem hostile toward prosecutors. Mullen said his differences with prosecutors stem from his desire to even the playing field between them and criminal suspects....

In 2003, Mullen surprised many in the legal community by announcing he would no longer accept most plea agreements.  He said the agreements, which forced criminal suspects to give up their rights to appeal, were unconscionable.  A few months later, prosecutors and defense lawyers reached a compromise that gave defendants more rights to appeal.

As the keynote speaker at a 2002 U.S. Attorney's Office retreat in Boone, Mullen's bluntness shocked and angered prosecutors. He told prosecutors never to lie or shade the truth.  "A lying law enforcement officer," he warned, "is as much a slime dweller as any criminal defendant."  The judge said prosecutors have so much unchecked power that there's a temptation to use it to bulldoze.  "Don't run over people just because you can," he said.

Great Booker work not to be overlooked

On Friday, the Sixth Circuit delivered an important Booker ruling that should not get overlooked amongst the holiday fun and Enron sentencing buzz and lethal injection developments.  I first discussed the Buchanan ruling here, and now I want to spotlight again the concurrence by Judge Jeff Sutton.  Judge Sutton's discussion of post-Booker sentencing and reasonableness review is so thorough and thoughtful, it demands a full reading.  But especially worth emphasizing are these two key insights:

First, Judge Sutton, in explaining his support for a presumption of reasonableness for within guideline sentences, provides a detailed account of what a district court must do for a sentence to earn this presumption.  Here is his notable list (with cites omitted):

(1) the judge must make all findings of fact necessary to apply the guidelines to the defendant; (2) the judge must calculate the guidelines sentencing range correctly; (3) the judge must determine whether to grant a downward departure or an upward departure from the guidelines; (4) the judge must recognize her discretion to issue a sentence that varies from the guidelines; (5) the judge must consider the § 3553(a) factors in exercising her independent judgment about what an appropriate sentence should be; (6) the judge must account for any relevant statutory minimum and maximum sentences; and (7) the judge must give a reasoned explanation for the sentence.

Second, Judge Sutton makes this particularly important point about the extent of post-Booker discretion and the guidelines' regulation of departures: "in exercising that 'broad discretion' under Booker, importantly, the guidelines' restrictions on granting departures do not circumscribe a trial court's decision to grant a variance."

The costs and consequences of Foster

Three months ago, the Ohio Supreme Court in Foster applied Blakely to Ohio's structured sentencing system and adopted a Booker-type remedy (basics here, commentary here and here and here).  Today, the Toledo Blade has this interesting follow-up article headlined "Sentencing law prompts delays, praise: Ohio ruling means defendants being resentenced — usually to same term."  Here are some snippets:

[A] recent state Supreme Court ruling that voided the sentences imposed on Foster, Cole, and hundreds of other convicted felons statewide is costing taxpayers unknown thousands of dollars in transportation and related costs.  That's because defendants whose old sentences are affected by the ruling have to be brought back from prisons across Ohio for resentencing in the counties where they were convicted.

The time lost by court officials and judges statewide on rescheduling and resentencing the defendants, as well as the delays that result for other court matters, is virtually incalculable. And the end result appears to be an exercise in futility. Cole's trip from the Lebanon Correctional Institution in southwest Ohio, for example, resulted in the same 26-year sentence that he received seven months earlier in Lucas County Common Pleas Court.

So why go through all this trouble for what appears to be a waste of time and money? Though lower-court judges won't comment on the justices' rulings, prosecutors are offering high praise for the Ohio Supreme Court's decision.... The prosecutors say the ruling means that judges' sentences will remain intact, and they will no longer be burdened with giving detailed explanations for imposing maximum, consecutive, or more than minimum sentences.

Jeffrey Gamso, a Toledo defense attorney who is the legal director of the Ohio chapter of the American Civil Liberties Union, said the state Supreme Court, in throwing out sections of the sentencing law, has rewritten legislation that was designed to bring consistency and fairness. However, Mr. Gamso believes that overall, the defendants who appealed will receive close to or the same sentence. "The overall numbers will not change that much. Judges were pretty much giving the sentences they wanted to give, and just making the findings to justify them," he said. "The overwhelming number of inmates are getting exactly the same sentence that they got before."

Some related posts on Foster's aftermath:

• Fascinating Foster follow-up on Ohio sentencing reforms
• Further follow-up to Ohio Blakely decision
• Ohio Commission response to Foster
• Foster's impact on plea bargains and appeals
• A prosecutor's view on Foster
• A sentencing judge's view on Foster

Summer sentencing reading suggestions?

With Memorial Day marking the unofficial start of summer, I thought I might solicit reader suggestions for summer sentencing reading.  Of course, a list of all the sentencing classics and new pieces worth reading could fill a library.  So, let me frame the query this goofy way:

What recent book or article should a sentencing geek take to the beach this summer?

I think my answer to this question right now is the new collection entitled Criminal Procedure Stories: An In-Depth Look at Leading Criminal Procedure Cases, edited by Professor Carol Steiker (available here).  Orin Kerr praised those who contributed to the book in this post, and I really like the idea of top scholars reflecting on classic cases with a modern perspective.

More good coverage of Enron sentencing dynamics

This morning's Chicago Tribune has this interesting article, entitled "'Ashamed' wrongdoer gets break: Deal limiting sentence of former finance chief key to prosecution, but some say it goes too far."  As the title suggests, the article focuses on the steep sentencing discounts given to cooperators in corporate fraud cases. Here's the article's start:

They blamed him above all others for bringing down Enron Corp., forcing him to admit repeatedly under oath that, yes, he is a shameful excuse for a human being.  Yet in the end, the contrite Andrew Fastow stands to come through the Enron scandal in far better shape than the unrepentant Kenneth Lay and Jeffrey Skilling, the ex-Enron bosses who attacked him so vigorously during the criminal trial that ended last week with their convictions.

By pleading guilty and testifying for the government, the former finance chief has limited his exposure to 10 years in prison, while Lay and Skilling face 20 years or more at their sentencing on Sept. 11.  If Fastow gets off with a relatively light sentence, he will join the swelling ranks of white-collar offenders who have reaped significant rewards for their cooperation.  The crackdown on corporate crime that culminated in Thursday's Enron verdict has led to vast disparities in punishment between those who strike plea bargains and those relative few who go to trial.

Recent related Enron posts:

• Strong media coverage of Enron sentencing issues
• First-cut Enron sentencing questions (and links)
• Enron guideline calculations (and a fascinating post-Booker question)
• Victims' rights and the Enron sentencings

Spotlight on good-time credit in Indiana

This interesting article from Indiana, entitled "Do the crime … do only half the time," suggests that there might be some controversy brewing over Indiana's generous good-time credit prison policies.  As the article explains, "Indiana is one of only four states to have a 50 percent good time requirement," meaning that a well-behaved prisoner will only have to serve 50% of the prison sentence he was given.  "At least 29 other states meet the federally recognized 85 percent rule, according to a Bureau of Justice Statistics report."

A bit of lethal injection history

This morning's Austin American-Statesman has this lengthy article, entitled "Death penalty's drug cocktail rooted in Texas," that provides some historical background on how lethal injection became the primary execution method in the United States.  Here's a snippet:

[T]he procedure of death by needle was the creation of an Oklahoma medical examiner and was put into practice by Texas prison officials.  Now, that chain of events, reminiscent of the stereotypical good ol' boy prison environment in the classic 1967 movie "Cool Hand Luke," could draw Texas into the cross hairs of a growing national legal battle over whether lethal injections are as painless as once thought.  And whether they are unconstitutional....

State Rep. Bill Wiseman, a Republican from Tulsa, suggested that there had to be a better way to execute criminals than electrocution, a process that had fallen out of public favor because it was increasingly viewed as brutal and violent.  Wiseman consulted doctors, who refused to help, citing their oath to save lives, not take them.  He got the same response from scientists and other medical professionals. "I muttered to colleagues that it looked as if I would need to find a veterinarian to tell me how to 'put down' condemned prisoners," Wiseman recalled in a 2001 article in The Christian Century magazine.

Enter A. Jay Chapman, Oklahoma's state medical examiner, a doctor who had been responsible for pronouncing inmates dead after electrocutions in Colorado.  Chapman had no pharmacological training, just an opinion and a willingness to help.  During a meeting with Wiseman, he dictated what was to become the new national template: "An intravenous saline drip shall be started in the prisoner's arm, into which shall be introduced a lethal injection consisting of an ultra-short-acting barbiturate in combination with a chemical paralytic agent."...

Chapman was quoted as saying in [a recent] report. "I didn't do any research.... It's just common knowledge. Doctors know potassium chloride is lethal." Wiseman's lethal injection bill was soon passed into law.  Texas lawmakers approved their version, with virtually identical wording, the next day.  More than 30 other states soon followed suit, including California and Florida.

Some recent related posts:

• Lethal injection news and notes
• SCOTUS denies cert on direct challenge to lethal injection
• Recapping a lethal week for lethal injection scrummages
• Shouldn't Hill be the very first priority for SCOTUS?
• How could (and should) Congress clean up the lethal injection mess?
• The partial de facto moratorium created by Hill

Delaware considering repeal of drug mandatories

This recent editorial and this recent commentary from Delaware suggests that the state might soon "repeal mandatory minimum sentence laws regarding drug offenses" through a pending bill.  The commentary indicates that "34 members of the Delaware House of Representatives and the Senate have agreed to bipartisan sponsorship of House Bill 181."  Additional background on the bill (and advocacy for it) can be found at this webpage maintained by Stand Up for what is Right and Just, a grassroots organization dedicated to reforming Delaware’s criminal justice system.