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October 28, 2006

What's the latest with Booker in the circuits and districts?

The US Sentencing Commission, as revealed on this page, has not yet made public any post-Booker district court data since presenting cumulative quarterly data through close-of-business on June 30, 2006.  I cannot help but wonder whether, with Booker circuit jurisprudence now pretty well-developed, district court sentencing patterns have had any distinctive features over the last four (unreported) months.

In addition, we are now approaching two full years since Booker, and there has now been a few thousand post-Booker sentences reviewed on appeal.  I am hopeful (but not really optimistic) that the USSC might report some appellate statistics before too long.

October 28, 2006 in Booker in district courts | Permalink | Comments (0) | TrackBack

Why isn't there a prior good works guideline?

Another high-profile case highlights yet again the import and impact of prior good works at sentencing.  As this article details, in Connecticut yesterday, former Middletown mayor Stephen Gionfriddo received a below-guideline for stealing from clients because "Judge Christopher Droney credited Gionfriddo's 24 years of public service in deviating from the guideline."  Even higher-profile recent sentencings — those of lawyer Lynne Stewart and Enron's Jeff Skilling — spotlight that, after Booker, some defendants are now getting huge breaks for prior good works, while others are getting no credit at all.

As I stressed when discussing my efforts for a defendant with nearly two decades of honorable military service, all structured sentencing systems have formal guidelines for enhancing sentences based on prior bad deeds through various (often intricate) criminal history enhancement.  The federal sentencing guidelines, for example, devote all of Chapter 4 to regulating criminal history enhancements, and this chapter of guidelines runs more than 25 pages with lots of intricate rules about how prior crimes ought to enhance a sentence.   

Doesn't it make sense to envision and develop guidelines for crediting prior good deeds through various (perhaps intricate) "good-deeds history" guidelines?  To the extent some commentors rightly are concerned about disparity from encouraging judges to consider prior good deeds, the proper response is to develop guidelines, not to generally forbid consideration of this valid sentencing factor.  (Critically, both retributivist and utilitarian theories of punishment would support the relevance of sentence reductions for, say, prior honorable military service or an impressive record of charitable service.)

So why hasn't the US Sentencing Commission ever developed guidelines for prior good deed reductions?  I am not calling for a whole chapter on the topic (like the prior bad deed guidelines that comprise Chapter 4).  But a few pages might be nice.  And, especially given what we are seeing after Booker, this sort of guideline seems essential to foster greater consistency in sentencings nationwide.

October 28, 2006 in Booker in district courts | Permalink | Comments (8) | TrackBack

October 27, 2006

Big Blakely retroactivity doings from Alaska

Continuing its amazing work as the Blakely frontier, today in Smart v. State, No. A-9025 (Alaska Ct. App. Oct. 27, 2006) (available here), the Alaska Court of Appeals issued an opinion regarding Blakely retroactivity.  Here's a summary as reported to me by a helpful reader:

The court held that it was not bound by the federal Teague standard and was free to apply state retroactivity standards, and applying state retroactivity law found Blakely fully retroactive in a 97-page opinion (counting concurrences and dissents).  The state will likely seek discretionary review from the Alaska Supreme Court.


UPDATE: I have now had a chance to give Smart a quick read, and the main opinion's exegesis of Teague is especially impressive and its citation to wikipedia is especially amusing.  All the separate opinions are also great reads.

October 27, 2006 in Apprendi / Blakely Retroactivity | Permalink | Comments (9) | TrackBack

More crack attention at two decades

In addition to this NPR report, today brings other discussions of crack sentencing to "celebrate" the 20th anniversary of harsh federal mandatory minimum sentences for crack cocaine crimes.  As detailed here, the Justice Roundtable held a Senate Staff Briefing on the topic. 

Meanwhile, the American Civil Liberties Union today issued this sizable report entitled "Cracks in the System: Twenty Years of the Unjust Federal Crack Cocaine Law." The ACLU report stresses discriminatory effects of the harsh crack sentencing.  Here is one of many telling nuggets from the report:

In 1986, before the enactment of federal mandatory minimum sentencing for crack cocaine offenses, the average federal drug sentence for African Americans was 11% higher than for whites.  Four years later, the average federal drug sentence for African Americans was 49% higher.

October 27, 2006 | Permalink | Comments (0) | TrackBack

Members of Congress like judicial discretion ... when their friends are sentenced

Peter Henning here spots an amazing story about the sentencing of former White House aide David Safavian, who lied to investigators aout his contacts with Jack Abramoff.  As a Salt Lake City Tribune article explains, one of Safavian's former bosses, Representative Chris Cannon, has written a passionate letter to the sentencing judge urging a major downward variance in the sentence.  Here is one especially notable passage from the letter:

As a member of the Judiciary Committee, I have personally struggled with sentencing issues, particularly post-Booker although certainly not to the extent you have.  This episode has punctuated for me the importance of taking into account all facets of a person and the unique facts of each case, when determining what the proper and just punishment should be.

As Peter notes, the letter includes much discussion of Safavian's prior good works and family circumstances, and thus the sentencing philosophy "urged by Representative Cannon is almost the exact opposite of the Guidelines, which largely ignore 'all facets of a person and the unique facts of each case'."

This FoxNews piece suggests Safavian's sentence will be handed down this afternoon.

UPDATE: As detailed in articles here and here, Safavian was sentenced to 18 months in prison. And, during this sentencing, U.S. District Judge Paul L. Friedman  apparently delivered "a 30-minute eulogy for good government in Washington."

October 27, 2006 in Offender Characteristics | Permalink | Comments (6) | TrackBack

Eighth Circuit reverses yet another below-guideline sentence

As regular readers know, there are no safe below-guideline sentences once they come before the Eighth Circuit.  And today, in US v. Maloney, No. 05-3423 (8th Cir. Oct. 27, 2006) (available here), another one bites the dust.

To its credit, Maloney provides a much more thoughtful discussion of post-Booker sentencing and appellate review than many other Eighth Circuit reversals of district court judgments.  But Maloney still reflects a troublesome commitment to rigid guideline-centric notions of uniformity trumping other sentencing values, as evidenced by this passage:

The district court thought that despite the magnitude of the variance, a term of 15 years' incarceration was sufficient to afford adequate deterrence, to provide just punishment, and to promote respect for the law.  Accepting those propositions for the sake of argument, we believe the district court's analysis nonetheless gave insufficient weight to the statutory objective of avoiding unwarranted sentence disparities.

October 27, 2006 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

Sex offenders as our modern day witches

Norm Pattis at Crime & Federalism has this very strong post about sex offense sentencing which includes astute observation:

Sex offenses are in our time the new witchcraft.  We're as hysterical about these crimes as were the good people of Salem over witches.  And our means of addressing the hysteria is about as effective.

This time of year there is a particular irony in this analogy: next week we have a national holiday focused on kids that will celebrate witches and other scary things.  But, as detailed in articles from New York and Tennessee and Texas and elsewhere all around the country, everyone is trying to keep sex offenders from participating.

October 27, 2006 in Sex Offender Sentencing | Permalink | Comments (11) | TrackBack

Two decades of crack(ed) sentencing

NPR this morning had this fine audio segment on federal crack sentencing.  Here is the NPR pitch:

Friday is the 20th anniversary of a law that created mandatory minimum sentences for crack cocaine crimes.  The rules mandated far harsher sentences for people caught with crack cocaine than for those caught with powdered cocaine.  Many say the sentencing disparity is unfair.

Some related posts on crack sentencing:

October 27, 2006 in Drug Offense Sentencing | Permalink | Comments (0) | TrackBack

October 26, 2006

Around the blogosphere

Lots and lots of goodies around the blogosphere these days:

October 26, 2006 | Permalink | Comments (0) | TrackBack

My amicus effort to support our troops

Back in this post in April, I noted a story about the federal sentencing of Sergeant Patrick Lett, a defendant with 17 years of honorable Army service including two tours of duty in Iraq.  There I asked whether a sentencing system that punishes prior bad deeds (via criminal history enhancements) ought also to reward prior good deeds through sentence reductions for, say, prior honorable military service.  I suggested that, especially during a time of war, a sentence reduction based on honorable military service would tangibly recognize and reward service to our country.

Half a year later, a lot has happened in Patrick Lett's case. And, through a student, I have become indirectly and then more directly involved.  Specifically, Lett ultimately received a below-guideline sentence (which allowed him to return to military service), but the Justice Department has appealed the reasonableness of his sentence to the Eleventh Circuit.  Troubled greatly by DOJ decision to appeal and its overall treatment of Sergeant Lett, I have written and just filed (with the help of great folks at Holland & Knight) an amicus brief that assails the government's suggestion that Lett's sentence was unreasonable. 

You can download the full amicus below, and here's perhaps my favorite passage:

Attorney General Alberto Gonzales during his confirmation hearings last year stressed that prison is best suited "for people who commit violent crimes and are career criminals." Gonzales also asserted that a focus on rehabilitation for "first-time, maybe sometimes second-time offenders ... is not only smart, ... it's the right thing to do;" in his words, "it is part of a compassionate society to give someone another chance." Similarly, President George W. Bush in his 2004 State of the Union Address spoke passionately about the importance of showing compassion (and providing job training and placement services) to convicted offenders because "America is the land of second chance."

Judge Steele, in accord with these sentiments expressed by President Bush, Attorney General Gonzales, and Justice Department officials, obviously concluded that Patrick Lett deserved a second chance and that his non-violent first offense did not merit a long term of imprisonment.  Given Lett's 17 years of honorable service to this country, which has included two life-threatening tours of duty on the Iraqi battlefields, it is hard to imagine an American more deserving of a second chance.

Download final_lett_amicus_as_filed.pdf

October 26, 2006 in Booker in the Circuits | Permalink | Comments (8) | TrackBack

Sixth Circuit keeps Apprendi from state indictments

In an interesting habeas setting, the Sixth Circuit today in Williams v. Haviland, No. 05-3986 (6th Cir. Oct. 26, 2006) (available here), Sixth Circuit holds that Apprendi does not make the Fifth Amendment's grand jury right applicable to state criminal prosecutions. Here is how Judge Moore begins her thoughtful opinion:

This case requires us to consider whether Apprendi v. New Jersey, 530 U.S. 466 (2000), overturned the repeated holding of the Supreme Court, see, e.g., Rose v. Mitchell, 443 U.S. 545, 557 n.7 (1979), that the Fifth Amendment grand jury right, U.S. CONST. amend. V, was not incorporated by the Fourteenth Amendment, U.S. CONST. amend. XIV, and thus does not apply to state prosecutions. Relying on Apprendi, the district court granted Petitioner-Appellee Samuel Williams's habeas petition on the ground that the indictment was constitutionally deficient under the Fifth Amendment grand jury right and the Sixth Amendment jury trial and notice rights because it failed to specify one of the essential elements of the charged offenses — specifically, the mens rea requirement.  The government appealed, arguing that the district court erred in relying on Apprendi because that decision did not address the sufficiency of the indictment nor did it extend the Fifth Amendment grand jury right to state prosecutions.  Because we agree that Apprendi had no effect on the constitutional requirements for indictments utilized in state prosecutions, we REVERSE the grant of habeas relief and REMAND for the district court to consider the remainder of Williams's habeas petition.

October 26, 2006 in Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Justice Talking progam on felony disenfranchisement

This week's topic on the NPR program Justice Talking was "Should Felons Have the Right to Vote?". Details and downloads are available at this link. Here is the pitch:

Currently, 4.7 million Americans are unable to vote due to state policies that bar convicted felons from the polls. In some states the ban is permanent despite the fact that the defendant may have served his or her time and been released from probation and parole.  Last year the U.S. Supreme Court refused to hear a lawsuit from Florida challenging as unconstitutional felon disenfranchisement laws, but activists continue to push for reforms that will enable convicted felons to participate in the political process.  Tune in to this edition of Justice Talking as we ask whether those who commit serious crimes should have the right to vote.

Some recent related posts:

October 26, 2006 in Criminal Sentences Alternatives | Permalink | Comments (0) | TrackBack

Punitive damages and excessive punishment

Next week the Supreme Court will hear Philip Morris USA v. Williams, which is yet another challenge to a punitive damages award that a corporation complains is excessive.  Today, in this great piece in the the New York Times, Adam Cohen astutely spotlights that the case will "reveal whether the court will continue on its current disturbing path of giving corporations more protection from excessive punishment than it gives to people."  Here's a big part of the last section of Cohen's powerful commentary:

These rulings [in BWM and State Farm limiting punitive damages] are remarkably "activist" by all the traditional measures. They take a vaguely worded constitutional guarantee — that no one shall be deprived of property without "due process of law" — and translate it into a right that is not at all apparent from the words' plain meaning.  They attempt to turn the guarantee into a precise mathematical formula.  And they substitute the judges' worldview for that of elected officials. If Oregonians believe punitive damages are too high, their legislature can impose a legal cap.

These activist decisions, which give corporations valuable constitutional privileges, relied on the votes of conservative justices, who are supposedly skeptical of "judge-made" rights. Justices Sandra Day O’Connor and Anthony Kennedy provided key votes for BMW.  Justice Kennedy wrote the State Farm "single-digit ratio" opinion, and Justice O'Connor and former Chief Justice William Rehnquist joined it.

The contrast with the court’s decisions on punishment of human wrongdoers is stark. In 2003, the court considered the sad case of Leandro Andrade, a father of three who was given a minimum of 50 years in prison under California's tough "three strikes" sentencing law, for shoplifting $153.53 worth of videotapes from Kmart.  He argued that his prison term violated the Eighth Amendment. The Supreme Court — in a majority joined by Justices O'Connor and Kennedy and Chief Justice Rehnquist — could find nothing excessive in the punishment.

Based on the Constitution's words, Mr. Andrade certainly had a stronger case than BMW or State Farm.  The Eighth Amendment expressly bars "cruel and unusual punishments," which might reasonably be interpreted to cover imprisoning a man from age 37 to 87 for stealing $153.53. The companies claimed only that the punitive damages awards violated their "due process" rights, a far greater textual stretch. 

On the issue of what is "excessive" punishment, Mr. Andrade’s claim is also stronger. It is hard to see how it is excessive to make Philip Morris, whose market capitalization is $166 billion, pay a mere $79.5 million for "extraordinarily reprehensive" and lethal conduct, but not excessive to make Mr. Andrade spend what is likely to be the entire second half of his life in prison for a petty theft.

The question of whether there should be constitutional limits on punitive damages has proved difficult to resolve, and it has caused divisions in both the court’s liberal and conservative blocs. (It is one of the very few issues in which John Paul Stevens votes with corporations and Antonin Scalia votes against them.) Whatever the court decides, it should develop a constitutional theory of excessive punishment that covers human and corporate wrongdoers equally, as the Duke Law School Professor Erwin Chemerinsky and others have urged.

The current doctrines make no sense, least of all by the standards of conservative constitutional interpretation. Conservatives like to talk about the "framers' intent." The framers were deeply concerned about excessive punishment, and set forth their views on it in the Eighth Amendment. They would be perplexed that the high court they created believes their Constitution permits a father to remain in jail for 50 years for petty theft, but does not tolerate taking a fraction of the wealth from a company that kills people.

October 26, 2006 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Busy times for state killing

As this AP story details, both Florida and Texas conducted lethal injection executions Wednesday night: "Florida executed an infamous serial killer just hours before Texas put to death a man convicted in the stabbing deaths of his parents and an uncle."  Greg Summers was the 22nd inmate executed this year in Texas, and Danny Rolling was Florida's 3rd inmate to be executed this year.

In addition, as detailed here, Ohio on Tuesday executed a cult leader who killed a family, and Alabama is scheduled to execute another murderer tonight (details here).  If Alabama's execution is not halted, we will have four states carrying out a total of four executions in less than three days.  The last comparable period of executions was in early December 2002, when six states carried out a total of nine executions in just over a week.

As regular readers know, these other blogs are go-to places for lots of capital coverage:

October 26, 2006 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

October 25, 2006

New mandatory minimum report about PA state judges

Over at the FAMM website, I just saw a notable new report about mandatory minimum sentencing entitled "'We're Supposed to Sentence Individuals, Not Crimes' — A Survey of Commonwealth of Pennsylvania Court of Common Pleas Judges on Mandatory Minimum Sentencing Statutes."   This report, which was authored by a senior state judge and a California academic and can be accessed here, provides a lot of background on the long-standing debate over mandatory sentencing terms, in addition to examining "the experiences and attitudes of sentencing judges regarding MMSS in one state, the Commonwealth of Pennsylvania."  Here are snippets from the conclusion:

The purpose of this study was to examine the opinions and experiences of sentencing judges in Pennsylvania with mandatory minimum sentencing statutes. The result of the study is clear: most of Pennsylvania's sentencing judges do not favor mandatory minimum sentencing statutes....

When the judge is statutorily precluded from considering some factors that may be critical to obtaining a "just" result, he or she cannot weigh and balance all interests involved.  This weighing-and-balancing process is the essence of judgment and gives it legitimacy. 

Perfection, like justice, is an elusive but worthy goal.  Reducing crime is a fundamental public interest. But by seeking to reduce crime in general by requiring the imposition of mandatory sentences on individuals, legislators pursue the interest of crime reduction with a policy that is ineffective in reducing crime and at the same time impedes the pursuit of justice.

October 25, 2006 in Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

Is failing to report to jail a violent felony?

I have discussed before here and here the Kafkaesque reality that, in the federal system, prior state offenses like evasive driving can qualify as violent crimes to trigger severe sentence enhancements.  Today's new Kafka chapter in this criminal history story comes from the Seventh Circuit: a split panel decided in US v. Golden, No. 06-1362 (7th Cir. Oct. 25, 2006) (available here), that a defendant's prior "failure to report to county jail in violation of the Wisconsin Criminal Code" qualifies as a "violent felony" to trigger a mandatory minimum sentence of 15 years' imprisonment under the armed criminal career statute, 18 U.S.C. § 924(e).

Golden is a fascinating read, in part because all three judges on the panel author opinions.  Judge Williams, writing in dissent, has this closing thought:

No layman would anticipate that "failure to report to jail," as that crime is defined in Wisconsin, would trigger a recidivist statute that punishes those guilty of committing multiple violent felonies. While that fact is not dispositive in our inquiry, it should trigger some alarm with regard to the distance our interpretation of section 924 has traveled from "language that the common world" would understand.  For these reasons, I respectfully dissent.

October 25, 2006 in Offender Characteristics | Permalink | Comments (0) | TrackBack

Crime, sentencing and politics

With less than two weeks to Election Day, I have been pleasantly surprised that we've not seen much "tough-on-crime" electioneering at the federal level.  A widely reported up-tick in some violent crime this year could have made crime a ripe issue for national politicians.  But this measured and thoughtful speech by AG Gonzales suggests that national leaders are perhaps actively trying to avoid making crime and sentencing a hot political issues at the federal level.

Given the salience of crime as a political issue over the last 30+ years, sociologists and political scientists ought to be looking closely at why the crime issue has generally receded from the national political scene.  Is this a 9/11 echo, which makes everyone view the war on terror as much more important than a war on drugs or other street crime?  Is it the fact that, these days, many of highest-profile criminal bad guys are rich, white executives and politicians?  Are there other social and legal forces in play?

Whatever the story at the federal level, the story at the state level is different.  This morning I saw a political TV ad attacking a state candidate for having a "liberal plan" that would prevent a killer's execution.  And this story from Indiana documents a concerted state GOP effort to make crime a political issue.  Here is a snippet:

House Republicans revealed the latest of their months-long trail of campaign pledges Tuesday when they promised to keep violent offenders in prison for at least 85 percent of their sentences. Indiana law allows inmates to earn "good-time credit" for every day served, which automatically cuts any sentence in half....

Indiana is one of only four states to have a 50-percent good-time requirement. Federal sentences require inmates to serve 85 percent of their sentence, and at least 29 other states meet the federally recognized 85 percent rule, according to a Bureau of Justice Statistics report....

Indiana Department of Correction Commissioner David Donahue told The Journal Gazette in May that there is a cost to changing the system and that taxpayers would have to pony up money to build more jails and prisons.... Bosma had no cost estimate for the initiative nor for any of the other five crime-related promises made Tuesday.... Bosma also had no cumulative cost of other programs and changes he and his colleagues have endorsed in recent months, but he was confident the state could afford them as part of normal revenue growth.

October 25, 2006 in Purposes of Punishment and Sentencing | Permalink | Comments (6) | TrackBack

On Vonner, the en banc Sixth Circuit reasonableness case

As discussed here and here, the Sixth Circuit has granted en banc review in Vonner to explore the circuit's approach to post-Booker reasonableness review.  Today, the Knoxville News Sentinel has this excellent article providing the back story of the case and post-Booker sentencing.  Here is a snippet:

Killer.  Cocaine dealer.  Legal revolutionary?   Knoxville bad boy Alvin Vonner may not have set out to shape the federal sentencing landscape in four states, including Tennessee, and maybe even the nation.  But he is poised to do just that.  The 6th U.S. Circuit Court of Appeals in Cincinnati has granted the granddaddy of all appeals hearings — the rare "en banc" rehearing in which the entire panel will hear and decide the case....

Vonner's case, though on paper only about the reasonableness of his 117-month prison term for dealing drugs in Knoxville, could set the course for sentencing decisions for every federal criminal in the circuit and, perhaps, the nation. "They could rock our whole world," Vonner's defense attorney, Stephen Ross Johnson, noted. "They could just tweak our world."...

The landmark Supreme Court ruling, known as the Booker decision, gave judges newfound freedom to determine punishment but left wide open exactly how that freedom was to be exercised. Judges still had to "consider" the guidelines, but how much weight should they give them?  Is it "reasonable" for a judge to stick to the guidelines?  Does a sentence within the guidelines range carry more weight? And what exactly is the test that appellate courts like the 6th Circuit should apply in deciding if a sentence was "reasonable?" ...

Assistant U.S. Attorney Charles Atchley sought the en banc hearing in Vonner's case.  His boss, U.S. Attorney Russ Dedrick, said: "We think it's a precedent-setting case. We'd like to get the law clarified."  Johnson agreed. "I think en banc consideration is a good thing," he said. "It will help provide clarification for the district courts."

Some recent Booker reasonableness posts:

October 25, 2006 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

October 24, 2006

More Skilling reactions and a query

Those interested in more post-game analysis of the Skilling sentence should be sure to check out Tom Kirkendall's analysis here and also the Houston Chronicle's cool extended podcast with expert commentary from an assortment of thoughtful experts.

The Houston Chronicle's podcast is really intriguing from start to finish, and it begins with lots of praise for Skilling's lawyers for keeping his sentence from being even higher than 24+ years.  I would like to hear from readers whether they agree with this assessment.

October 24, 2006 | Permalink | Comments (3) | TrackBack

Sentencing (Nun)sense

Anunsen1 Thanks to this post at How Appealing, I see that the federal sentencing system is about to render some more swift and certain federal sentencing justice on another set of hardened criminals — namely, three nuns convicted of hurting national defense when they protested U.S. nuclear policies at a missile silo.  Here are more details from this story in the Denver Post:

Since submitting the plans to do community-service work in lieu of paying restitution, the nuns say they've continued work to help the poor and promote peace that they began in prison.  They figure they've done more than 148 years of combined community service, including counseling inmates and raising $600,000 in charitable contributions for literacy programs, soup kitchens and aid for victims of disasters. 

They asked [US District Court Judge Robert] Blackburn whether they could continue that work rather than paying the Air Force for the damage they did to the site of the silo.  The three were convicted in 2003 of obstructing national defense and damaging government property.  During a protest rally in 2002, they cut through a chain-link fence at a silo northeast of Denver that contained a Minuteman III missile.  Platte received a 41-month sentence and was released last December.  Hudson served 30 months, and Gilbert served 33 months — in different prisons. 

Blackburn decided not to accept their plans "after careful consideration" of the proposals "and the government's response," he said in an order dated Oct. 18.  Federal prosecutors have insisted that the nuns make amends directly to the Air Force.

Someone should be sure to tell all the Whoopi Goldberg fans pining for Sister Act 3 that we may now have the perfect script in development.  (But, of course, Whoopi fans know it would be hard for any script to live up to Sister Act 2.)

October 24, 2006 in Offender Characteristics | Permalink | Comments (3) | TrackBack

NJ Supreme Court decides on Atkins procedures

In an interesting 5-2 decision, the New Jersey Supreme Court in State v. Jiminez, No. A-50-2005 (N.J. Oct. 24, 2006) (available here), has rejected lower court's ruling that, after the Supreme Court's ruling in Atkins, the state seeking to impose a death sentence must prove to a jury beyond a reasonable doubt that a defendant is not retarded.  The New Jersey Supreme Court concluded that the absence of mental retardation is not akin to a capital trigger, and that the defendant has the burden to prove by a preponderance of the evidence that he is retarded. The Court summarized its holding in this way:

As noted above, every state considering the issue has determined that a defendant raising a claim of mental retardation bears the burden of proof on the claim.  We agree with those determinations.  We hold further that the claim must be proved to the jury by a preponderance of the evidence at the close of the guilt-phase trial and before the penalty phase trial begins.  Nonetheless, we concur with the Appellate Division that in those cases where "reasonable minds cannot differ as to the existence of retardation" a judge should decide the Atkins claim pre-trial thus avoiding a capital prosecution altogether.  The requirement that a jury decide the issue at the close of the guilt-phase trial is not constitutionally based, but rather, is imposed by the Court in the exercise of its general supervisory authority over trial administration.

October 24, 2006 | Permalink | Comments (0) | TrackBack

Sixth Circuit lift Ohio lethal injection stay

Despite a cranky blogging service, the Ohio Death Penalty Information blog has all the details of the Sixth Circuit split decision late last night to overturn the stay of execution for Jeffrey Lundgren and to allow Ohio to go forward with his execution this morning.  This AP report gives more details now that Lungren's SCOTUS appeal has also been turned back:

A cult leader sentenced to death in the slaying of a family of five lost a last-minute appeal to the U.S. Supreme Court to try to stop his execution scheduled for Tuesday. Jeffrey Lundgren was out of appeal options after the Supreme Court's refusal came in the hours before he was set to die by injection, Attorney James A. Jenkins said....

The 6th U.S. Circuit Court of Appeals in Cincinnati cleared the way for execution late Monday when judges voted 2-1 to reverse a lower court order that would have delayed the sentence to allow Lundgren to join a lawsuit challenging Ohio's use of lethal injection.  The judges gave no explanation for the ruling. "It blows my mind that they lifted the stay at the 11th hour as they have," Jenkins said. "I'm flabbergasted."...

Over the years 40 judges have reviewed Lundgren's appeals. The most recent claimed lethal injection would be cruel and unusual punishment, particularly since Lundgren is overweight at 275 pounds and diabetic.  Lundgren's case had been transferred Monday to the same three-judge panel that is considering the lethal injection lawsuit.

October 24, 2006 in Death Penalty Reforms | Permalink | Comments (3) | TrackBack

Some more blogosphere (and media) reactions to the Skilling sentence

In addition to some prior reactions noted here, folks looking for the blogosphere's various takes on Jeff Skilling's sentence of 24+ years can check out these posts:

UPDATE: Howard Bashman now has all the major media coverage of the Skilling sentence linked here.

October 24, 2006 | Permalink | Comments (0) | TrackBack

October 23, 2006

Reexamining drug courts

I just received news of "a free online event" scheduled for November 13 concerning drug courts hosted by Harvard University's Government Innovators Network and the National Institute of Justice.  The program is entitled "Drug Courts Reexamined," and more details and registration information are available at this link.  Here is part of the pitch:

As of 2005, 1,550 drug courts were operating in the United States, as were a host of other specialized, "problem solving" courts. But with decreased funding at all government levels, drug court expansion is no longer a foregone conclusion.

The National Institute of Justice and other agencies are now funding drug court studies that raise the standard beyond anecdotal observation.  In this 2-hour online event, sponsored by the Government Innovators Network and the NIJ, a panel of drug treatment and court experts will discuss research on adult drug court outcomes and costs, and the factors that affect program implementation and impact.

Related posts on drug courts:

October 23, 2006 in Criminal Sentences Alternatives | Permalink | Comments (3) | TrackBack

Banishment as an alternative sentence, eh?

Thanks to this post by Brooks Holland at PrawfsBlawg, I see that folks in upstate New York are giving banishment a try as an alternative sentence.  Here are details from this article in the Toronto Globe & Mail:

After a judge convicted him of sexually abusing a 15-year-old student, teacher Malcolm Watson was offered two punishment options: an American jail cell or exile to Canada. Mr. Watson chose Canada. The unusual sentence, which has immigration lawyers questioning its legality, means that Mr. Watson, 35, must stay out of the United States for the next three years....  Under the sentence imposed by Cheektowaga Town Court, Mr. Watson must remain in Canada, and can enter the United States only to report to his probation officer.

Erie County district attorney Frank Clark called the plea deal "a little dicey" but said the family of the 15-year-old victim was happy.  So were some U.S. law-enforcement officials: "He's Canada's problem, not ours," said one, speaking on condition of anonymity....

The negotiated deal was designed to spare the 15-year-old victim from testifying in court, Mr. Clark said, and achieved two goals: Mr. Watson wanted to "return to Canada to be reunited with his family," while the parents of the victim wanted to ensure that Mr. Watson had no contact with their daughter. "They hope he stays in Canada for the next 500 years," Mr. Clark said.

Since I am a fan of creative sentencing justice, I think this is an encouraging sentencing story.  But I have an inkling that banishment as a sentence might not sit well with others.   Thoughts?

October 23, 2006 in Criminal Sentences Alternatives | Permalink | Comments (15) | TrackBack

Skilling gets guideline sentence of 292 months

As well reported by Howard Bashman here, Judge Sim Lake sentenced Jeff Skilling at the low end of the (now advisory) 2000-era Guidelines range by imposing a sentence of 292 months of imprisonment (That's 24 years and 4 months for those not good at dividing quickly by 12.)

Because Skilling was sentenced in the Fifth Circuit, his within-guideline sentence will be deemed presumptively reasonable on appeal (though I suppose Skilling could contest on appeal some guideline calculation issues).  Notably, I do not believe any other high-profile white-collar defendants have received a within-guideline sentence recently.  Though WorldCom's Bernie Ebbers was sentenced to 25 years, the guideline range in that case was life, I believe.

I have not heard if Judge Lake has plans for a written opinion in this case, but I hope he will write up an explanation for his various decisions.

UPDATE:  Ellen Podgor and Peter Henning at White Collar Crime Prof Blog have lots of interesting reactions here.  I found this comment by Peter especially provocative:

While Jeffrey Skilling receives 24 years for presiding over the collapse of Enron, former Congressman Randy (Duke) Cunningham sells his office to a string of defense contracts for a bit over $1 million and receives a sentence of 8 years.  Soon-to-be former Congressman Bob Ney will likely be sentenced to less than 3 years in prison for selling out his office to lobbyists led by Jack Abramoff.  How can there be such a disparity between the sentences for public corruption and the corporate frauds perpetrated by Ebbers and Skilling?

October 23, 2006 | Permalink | Comments (2) | TrackBack

Tastes great, more Skilling

As this headline suggests, I am getting a bit punchy following the Houston Chronicle's live blogging of the Skilling sentencing.  Still, I cannot turn away, and these posts have something for everyone:

In addition, I see that here that White Collar Crime Prof Blog has collected a lot of "Background on Skilling."  And, speaking of collecting posts, here's my recent work in this arena:

UPDATE:  The Houston Chronicle's blog reports here that it is now time for attorney arguments that now Judge Lake has "said under guidelines Skilling would be faced with between 292 and 365 months in jail.  He may depart from that, however."

MORE:  It seems that the sentencing hearing is wrapping up with Skilling's lawyer presenting argument; Skilling's sentence may soon be announced.  But I now need to go teach a two-hour class, so I may be the last interested person to find out what number Judge Lake picks.  Of course, that should not stop readers from noting and debating that number in the comments.

October 23, 2006 | Permalink | Comments (2) | TrackBack

Remarkable circuit judge speech on capital punishment at mass

StandDown Texas Project rightly calls a "must-read" this speech that Fifth Circuit Judge Carolyn Dineen King delivered earlier this month at the Red Mass at Corpus Christi Cathedral.  The speech provides a remarkable review of "the way capital sentencing laws have developed during the last 40 years," and it concludes with this pitch for Catholics to oppose the death penalty on religious grounds:

Catholics, the people of life, have an opportunity to advocate to our legislators changes in our laws that will align them more closely with the moral law.  For the solution to the problems that we face with the death penalty is a political one (not a judicial one), and each of us, as a Catholic citizen and voter, is called upon to promote it....

Jesus has told us that vengeance is to play no part in our lives, that forgiveness is what we should aspire to.  The Catholic bishops have recently issued a call to the Catholic community, inviting every Catholic to join in the Catholic Campaign to End the Use of the Death Penalty, not as a partisan campaign but as a moral commitment....  The Church's campaign has been long in coming, centuries long, but at last it is here and all of should actively and prayerfully support it.

Some related posts on religion and the death penalty:

October 23, 2006 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

A new blog project: Law School Innovation (LSI)

Proving my blog addiction yet again, I have decided to start a new blog: Law School Innovation (LSI).   As highlighted in this mission statement, my goal is to create a forum for discussing ... law school innovations (and I am hoping LSI will develop into a group blog). 

I now have two substantive posts up at LSI: this post discusses regularly hosting real oral arguments at law schools, and this post asks readers to report on innovative law school courses.

October 23, 2006 in On blogging | Permalink | Comments (0) | TrackBack

Still more Skilling sentencing pre-game analysis

With Jeff Skilling's sentencing scheduled for today, this morning brings another round of articles discussing his case and white-collar sentencing more generally. The New York Times, for example, has this piece headlined, "The Guidelines Now Tougher, Skilling to Face Sentence Today." 

The Houston Chronicle has this front-page story entitled "An era ends today as Skilling learns fate."  In addition, as detailed here, the Chronicle "plans to blog the sentencing hearing" which begins at 1 pm CDT.  The Chronicle says the hearing "is expected to take a couple of hours" and that its "blogging should begin earlier in the morning."

Recent related posts:

October 23, 2006 | Permalink | Comments (0) | TrackBack

A sad (and telling?) capital tale

The AP here reports on a South Carolina defendant's recent plea to receive a life sentence for a crime committed 22 years ago.  As the article explains, the defendant had previously been sentenced to death three times for a killing during a robbery, but that sentence had been overturned three times.  Here is the sad and telling conclusion to the story:

Patterson never denied shooting [the victim, Matthew] Brooks, but he claimed it was an accident, that the gun went off while he was beating Brooks.  [Defense Attorney John] Delgado said Patterson's case did not warrant the death penalty. "Raymond's case is the epitome of the irrationality of our capital procedure in South Carolina," Delgado said.  "This matter could have been resolved long ago with the savings of innumerable hours and time and cost to the system if the prosecution had allowed a life sentence in 1985." The Brooks family wanted Patterson to die for taking Matthew Brooks' life, but had no idea it would take three trials and more than 20 years to be done with the case.

More background on the case and the persons involved are in this article from the Charlotte Observer.

October 23, 2006 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Should juves get a sentencing break?

This article from the Richmond Times Dispatch, entitled "Many youths get leniency from judges," reports on recent findings by the Virginia Criminal Sentencing Commission that juvenile offenders seem to be getting more breaks at sentencing. Here is a snippet from the article:

A decade after legislators got tough on juvenile offenders by allowing more of them to be tried as adults, records suggest those juveniles are shown more leniency than adults. That has some experts pleased and others concerned. Both sides agree more study is needed.

[A] recent survey of sentencing records by the Virginia Criminal Sentencing Commission indicates circuit court judges are being relatively lenient with young offenders....  In the five years ending June 30, 2005, circuit judges issued juveniles lighter sentences than called for by the guidelines 36 percent of the time, compared with just 11 percent for all criminals.... 

A notable finding was that judges were most likely to sentence juveniles below sentencing guidelines in cases involving rape and other serious sex crimes. Judges sentenced below the guidelines in 58 percent of those cases even though two-thirds of the victims were under 13.  Judges also appeared to be lenient when sentencing for burglary and robbery, going below the guidelines 48 percent and 45 percent of the time, respectively.

[D]irector of the sentencing commission, Richard Kern, said ... noted that age is an important factor in predicting the future danger a young criminal poses — generally the younger the offender, the more trouble they will be later.  Showing leniency because of an offender's youth runs counter to what criminologists might recommend, Kern said.

October 23, 2006 in Offender Characteristics, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack

October 22, 2006

More pre-game coverage of Skilling sentencing

As discussed recently here, Jeff Skilling is due to be sentenced in Houston on Monday.  Today, in both the traditional media and the blogosphere, there is a lot of pre-game analysis.  For some basics, check out coverage from the AP, from the Houston Chronicle, and from Reuters.  To dig deeper, check out coverage around the blogosphere.

Tom Kirkendall at Houston's Clear Thinkers here seeks to provide "an objective evaluation of Skilling's case as a counterbalance to what the mainstream media typically serves up."  Larry Ribstein at Ideoblog here discusses the "particular problem [of] the government's buying testimony with pleas."  In a similar vein, Ellen Podgor at White Collar Crime Prof Blog here explores "what happens to the accused's right to a jury trial when there is an enormous disparity between the sentence given to cooperators and that given to those who decide to go to trial."

Recent related posts:

October 22, 2006 | Permalink | Comments (1) | TrackBack

Big conference on US punishment record

Punishmentlogo In a little more than a month, The New School is holding a major Social Research Conference entitled, "Punishment: The U.S. Record."  As explained here, the goal of the conference is to "examine the foundations of our ideas of punishment, explore the social effects of current practices and search for viable alternatives to our carceral state."  As detailed here and here, the list of invited speakers and the topics to be discussed are truly amazing.

October 22, 2006 in Recommended reading | Permalink | Comments (2) | TrackBack