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March 31, 2007

The real capital problem: seeking death on the cheap

Though my views on the death penalty are always evolving, I am always sure that many flaws with the modern administration of the death penalty stem from the desire of many jurisdictions to operate a capital system on the cheap.  This interesting article from the Los Angeles Times spotlights this reality in the context of Georgia's recent debate over capital defense funding.  Here are highlights:

When Georgia instituted a statewide public defender system in 2005, human rights groups praised it as a milestone in ensuring that poor criminal defendants received their constitutional right to a fair trial. Until then, counties determined how indigent people would be represented. In some counties, the courts operated like assembly lines, with defendants pleading guilty after talking with their appointed lawyers for a few minutes.

But some people accuse the Georgia Public Defender Standards Council, which runs the system, of spending too much time and money on indigent people. One defendant has provoked particular anger: Brian Nichols, the rape suspect accused of escaping from an Atlanta courthouse in 2005 and killing a judge, a court reporter, a sheriff's deputy and a U.S. customs agent. Nichols' defense has cost $1.4 million, and the trial has not begun.  Last week, Superior Court Judge Hilton Fuller postponed the trial until Sept. 10 because the public defender system had run out of money. Almost all of the council's 75 capital cases are on hold.

The Nichols case did not create the funding crisis. A technical glitch in state law left the council with a shortfall of about $10 million in the state budget.  But the Nichols case, as one of the most expensive death penalty trials in Georgia history, has exacerbated concerns about criminal defense spending....

Though many legislators fear the Nichols case could set a precedent for death penalty cases, legal experts say it's a rarity. Fuller, who has appointed four lawyers to the defense and approved more funding for a mental health expert, defends the spending as necessary to ensure a fair trial, noting that the state has charged Nichols with 54 felony counts and appointed five lawyers to the prosecution.

Some defense lawyers say legislators don't complain about prosecution costs. In the Nichols case, experts estimate the prosecution will spend twice as much as the defense. "No one is telling the district attorney he can only spend a certain amount on a death penalty case," West said.

Others say the Nichols case wouldn't cost so much if prosecutors had not sought the death penalty. Paul Howard, Fulton County's district attorney, rejected an offer from Nichols' lawyers for a guilty plea in exchange for a life sentence. "People who are very concerned about the cost of the defense still believe Nichols should get the death penalty," [Stephen] Bright said. "They can't have it both ways."

Some related posts on the costs of capital cases:

March 31, 2007 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

March 30, 2007

A call for a broader pardon perspective

Over at the National Journal, Jonathan Rauch has this strong new commentary entitled "Pardon Libby? Maybe, But Not Alone."  Here are some highlights:

Will President Bush pardon I. Lewis (Scooter) Libby? Everyone is wondering. But it is the wrong question. The right question is: Will he pardon anyone else?...

Here is a fact that historians may note with puzzlement: Bush, who is obsessively protective of unilateral executive power in every other sphere, has all but abandoned the most unequivocally unilateral power that the Constitution gives him.  Presidents can grant pardons and commutations to anyone they please, for any reason or for no reason at all.  That's because the Founders understood the excesses of bureaucratic justice. "The criminal code of every country partakes so much of necessary severity," Alexander Hamilton wrote, "that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."

Prosecutors are paid to be relentless. Courts are bound to go by the book.  The Supreme Court cannot reach down and undo a single sentence without potentially overturning a whole branch of law.  Thus the Founders ultimately wanted justice to be acceptable and accountable not to a system but to an actual human being, a solitary conscience.  That conscience belongs, at the moment, to Bush, who doesn't seem to overtax it. 

According to Justice Department statistics, Presidents Truman through Ford granted a quarter or more of clemency petitions. The total fell to 12 percent under President Reagan, and then into the mid-single digits under Presidents George H.W. Bush and Clinton. Now, under George W. Bush, it has dropped to less than 2 percent. 

Some recent related posts:

March 30, 2007 in Clemency and Pardons | Permalink | Comments (6) | TrackBack

Friday afternoon around the blogosphere

Lots of thoughtful goodies to be mined from a last Friday afternoon tour around the blogosphere:

March 30, 2007 | Permalink | Comments (0) | TrackBack

California Cunningham fix is now law

As detailed in this news article, "Gov. Arnold Schwarzenegger signed a bill Friday that was designed as a legislative fix to the state's criminal sentencing law that was upended by a U.S. Supreme Court decision earlier this year declaring a key portion of it unconstitutional."

I detailed in this recent post some of my litigation concerns with SB 40, which today became law, as a sound response to the Supreme Court's Cunningham decision.  But David in the comments thoughtfully responded to many of my concerns.  Meanwhile, Jonathan Soglin at Criminal Appeal has this new post on the bill, which reminds me that the California Supreme Court has awhole bunch of cases in which it will be trying to assess the post-Cunningham fall-out.

To provide a summary, this is likely a good time for lawyers in California to get some exciting sentencing litigation experience.

March 30, 2007 | Permalink | Comments (5) | TrackBack

ACS issue brief on PLRA

The American Constitution Society has, as noted here, a new issue brief entitled "Preserving the Rule of Law in America's Prisons: The Case for Amending the Prison Litigation Reform Act. "  Available at this link, here is part of ACS's account of this new work:

In this paper, [Margo] Schlanger and [Giovanna] Shay argue that certain provisions of the PLRA undermine the rule of law by shielding corrections officials from accountability even in situations in which law violations are clear.  While the PLRA has shrunk the number of court cases initiated by prisoners and reduced the burden on prison and jail administrators as intended, the authors demonstrate that significant unintended problems also flow from this law. Schlanger and Shay contend that "constitutionally meritorious cases are faced with new and often insurmountable obstacles" and that the resulting harm is not only to the claimants in the particular cases that have been dismissed despite their merit, but to the entire system of accountability that ensures that prison and jail officials comply with constitutional mandates.

March 30, 2007 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Archive of AFDA webcast

As noted here, earlier this week Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), enabled me to again utilize the AFDA's cool Audio Webcast System for a lengthy discussion of various state-of-post-Booker-sentencing realities.  Greg has now kindly created this audio file of the webcast for anyone who would still like to hear what I had to say.

As noted before, Greg provides a complimentary password registration system for members of the federal court community (judges, law clerks, federal public defenders, probation officers), and members of academia, at this sign-up page.  And everyone should want to sign up for the next AFDA webcast, which is scheduled for April 23 with Alan Dorhoffer, senior staff attorney at the Sentencing Commission, discussing guideline application topics.

March 30, 2007 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Fifth Circuit rejects application of Crawford at capital sentencing

Thanks to How Appealing, I see that the Fifth Circuit has issued a very lengthy opinion in US v. Fields, No. 04-50393 (5th Cir. Mar. 29, 2007) (available here), addressing whether the Confrontation Clause applies at the penalty phase of a capital case.  I believe the circuit courts are split on this issue, and so was the Fifth Circuit panel in Fields: Judges Jerry Smith and Carolyn Dineen King rejected the application of Crawford at capital sentencing; Judge Fortunato P. Benavides dissented on this point.

I suspect this issue might before long capture the attention of the Supreme Court.

March 30, 2007 in Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

March 29, 2007

Wondering about criminal legislation that sunsets

One of many intriguing aspects of California's Cunningham fix bill, SB 40, is that it has a Jan. 1, 2009, sunset provision.  Though I largely applaud the sentiment of having a sunset provision in what is obviously a short-term-solution bill, I fear that, as explained in this post, the sunset provision could cause special legal headaches.

As I thought about this issue more, I came to wonder generally about (a) whether there are past examples of criminal laws or sentencing legislation enacted with concrete sunset provisions, and (b) whether there are unique constitutional issues potentially raised by criminal laws with sunset provisions. 

Anyone have any information or thoughts on criminal law with sunset provisions?

March 29, 2007 in Sentences Reconsidered | Permalink | Comments (5) | TrackBack

The realities of a doctored execution

This interesting article from North Carolina provides a rare inside look into some of the realities and challenges of trying to incorporate medical personnel into execution protocols.  (My students had a great debate on this very interesting topic at my class blog.)  Here is how the article begins:

A prison doctor stood in a small observation room near a brain-wave machine during the state's past two executions.   He said in an interview this week that as the inmates died just a few feet away, he did not monitor their level of consciousness, and prison officials never asked him to, despite a federal judge's order requiring that.

The question of whether Dr. Obi Umesi can stand in the observation room with a heart monitor and brain-wave monitor and not track a dying man's vital signs is at the center of a legal dilemma that has delayed five executions in this state.  If Umesi monitored the dying man's consciousness, he might have violated his profession's ethical rules.  If he did not, the state would be violating the judge's order.

March 29, 2007 in Death Penalty Reforms | Permalink | Comments (12) | TrackBack

Cunningham fix litigation and other California problems

As detailed in this AP story, SB 40, the California bill that essentially seeks to Booker-ize California's sentencing structure in response to Cunningham "was sent to Gov. Arnold Schwarzenegger on Wednesday" after the state senate "approved the bill on a 32-2 vote without debate."  As I suggested here a few weeks ago, the "fix" of SB 40 seems likely to create more legal problems than it solves.  Let me explain:

1.  Since SB 40 functionally increases available sentences, defendants can (and some surely will) raise ex post facto challenges if prosecutors seek to invoke this "fix" at the sentencing of any crime committed before the fix becomes law.

2.  Since SB 40 has a Jan. 1, 2009, sunset provision, shrewd defendants convicted who fear long sentences might reasonable try to "play out the clock" once the law becomes applicable.  Though perhaps trial judges won't allow defendants to keep postponing sentencing dates, it seems unlikely that most appeals of SB 40 sentences will be complete before SB 40 is scheduled to sunset.  Will state appellate courts enforce a sunsetted law being challenged by a criminal defendants?  Should they?   Can they?

3.  In light of the Cunningham ruling and what could happen in Claiborne and Rita, it's quite possible that SB 40 will itself be found unconstitutional on the merits by lower California courts (or federal courts eventually).

I hope that the sponsors and supporters of SB 40 have thought through these litigation realities, though my own sense of California's sentencing history and legislative process does not give me great confidence.  Were I advising Governor Schwarzenegger, I would encourage him to veto SB 40 if only to spare lower courts the litigation mess (and to buy more time to see what happens in Claiborne and Rita).

But, as articles here and here highlight, litigation over sentencing rules is perhaps just a tiny concern for state policy-makers in light of broader correctional problems facing California.  Here are details from the Los Angeles Times:

Busloads of protesters fighting the construction of new penitentiaries swarmed the Capitol on Wednesday, while inside the statehouse, the simmering politics surrounding the prison overcrowding crisis boiled into full view.

The protesters attacked Gov. Arnold Schwarzenegger's plan to build 78,000 new prison and jail beds, saying that $11 billion worth of "bricks and mortar and debt" are no substitute for true reform. Instead, the demonstrators — some dressed in orange prison jumpsuits and standing in makeshift cells — said lawmakers could quickly thin the inmate population by releasing geriatric and incapacitated convicts and by sanctioning thousands of parole violators in their communities rather than in state lockups.

Meanwhile, political fireworks were flying over a decision by Senate Democrats to place a moratorium on bills that would lengthen criminal sentences and thereby exacerbate prison crowding.  The maneuver infuriated Republicans, but Sen. Gloria Romero (D-Los Angeles), chairwoman of the Senate Public Safety Committee, said it could not be "a business-as-usual year" in Sacramento given the overcrowding emergency.

March 29, 2007 | Permalink | Comments (5) | TrackBack

A new website inspired by Genarlow Wilson

I have not blogged about the Genarlow Wilson case much lately because there has not been much to report.  Despite a flurry of media coverage calling for Wilson's release (details here and here), Georgia officials have not responded and Wilson is now deep into his third year in prison serving a 10-year sentence for a crime that Georgia law now classifies as a misdemeanor subject to only 12 months imprisonment.

Meanwhile, Wilson's case has inspired the creation of a new non-profit organizarion called "My 5th," which has this intriguing new website.  The website's home page states, "With this website, blog and workshops, MY 5th wants to prevent you from paying the price for not knowing the law!!!! Use the law, don't let it use you!!!".  An intriguing and diverse set of individuals are on My 5th's board, and Wilson's lawyer is listed as the president and founder of the organization.  Not suprisingly, Wilson's case is featured here on the My 5th site.

Some related Genarlow Wilson posts:

March 29, 2007 in Examples of "over-punishment" | Permalink | Comments (2) | TrackBack

Judge Adelman does case-specific Booker justice again

US District Judge Lynn Adelman, continuing his strong post-Booker work in cases like Greer (discussed here) and Smith (discussed here), has released a new sentencing decision in which he attempts to "refract" the concerns with the 100:1 crack/powder cocaine ratio through an individual defendant's case.  Here is one of many strong passages in Judge Adelman's decision in US v. Willis, No. 04-CR-190 (E.D. Wisc. Mar. 28, 2007) (which can be downloaded below):

The rule that emerges from Jointer, Gunter and Pickett is that while district courts may not construct their own alternative crack/powder ratio, neither are they required to impose a sentence under the current 100:1 ratio in the guidelines.  Further, they can, in imposing an appropriate sentence in the individual defendant's case under § 3553(a), consider the Sentencing Commission's reports on the problems with the crack guideline. Finally, they may consider whether the aggravating circumstances that prompted the adoption of the 100:1 ratio are present in the case before them.

Download latest_adelman_sent_memo.pdf

March 29, 2007 in Booker in district courts | Permalink | Comments (1) | TrackBack

Tracking the execution realities of 2007

Though there is constant chatter about capital punishment nationwide, I cannot help highlighting again that only one state is continuing to administer the death penalty. 

As detailed in this Houston Chronicle story, Texas executed its tenth murderer of 2007 last night, and it has another execution scheduled for tonight and three more scheduled in April.  (As discussed here, one of the scheduled April execution is a woman with a distinctive claim of innocence.)

Meanwhile, mostly as a result of lethal injection litigation, no other state in the country has executed anyone since an early January execution in Oklahoma.  And over the last five months there have been only 3 execution outside Texas.

As detailed here at DPIC, these dynamics could change soon.  There are federal and Ohio executions scheduled for April, and Tennessee and Nebraska have executions scheduled for May.  But even if other states get back in the execution business, it seems likely that 2007 will have the fewest US executions in over a decade.

March 29, 2007 in Death Penalty Reforms | Permalink | Comments (6) | TrackBack

March 28, 2007

A Texas juve case creating controversy

Thanks to posts at TalkLeft and Grits for Breakfast, I have become away of a controversial case of seemingly unduly severe juvenile punishment coming out of Texas.  This AP story has these highlights:

A teenager has been jailed for more than a year for shoving a teacher's aide at her high school, sparking anger and heightening racial tensions in rural East Texas.  Shaquandra Cotton, now 15, claims the teacher's aide pushed her first and would not let her enter school before the morning bell in 2005.

A jury convicted her in March 2006 on a felony count of shoving a public servant, who was not seriously injured.  The girl is in the Ron Jackson Correctional Complex in Brownwood, about 300 miles from her home in Paris....  Under the sentence handed down by Lamar County Judge Chuck Superville, she will remain at the facility until she meets state rehabilitation standards or reaches her 21st birthday.

But her family and civil rights activists say they want her home now. They are condemning the sentence as unusually harsh and say it shows a justice system that punishes young offenders differently, depending on their race.  Creola Cotton, Shaquandra's mother, and activists argue that while Superville sent Shaquandra to the state's juvenile prison system, he gave a white 14-year-old arsonist probation. As many as 400 people marched and rallied in Paris on Tuesday, the second such protest in as many weeks by civil rights groups.

Meanwhile, the Paris school district fiercely denied claims of racism and chided the girl's mother for "playing a game" to start controversy.... Creola Cotton is preventing the district from fairly defending itself by refusing to let the school district make her daughter's entire record public, [Paris school district attorney Dennis] Eichelbaum said. "Mrs. Cotton has been wrongfully attacking the character of the district," Eichelbaum said. "She's being disingenuous with regard to her daughter being an innocent child."...

Prosecutors say they offered Shaquandra a plea agreement that would have reduced the felony charge to a misdemeanor and given her two years' probation.  But Creola Cotton rejected the plea behalf of her daughter, prosecutors said.

The Dallas South Blog, whose author Shawn Williams comes from Paris, Texas, offers lots of comments on the case here and here and here.  Also, there is a blog, Free Shaquanda Cotton, which pleads "Please help me, Shaquanda Cotton, receive proper justice. Leave me notes of encouragement, donate to my trust fund, and spread the word!"  That blog has links to other media coverage of this case.

March 28, 2007 in Examples of "over-punishment", Race, Class, and Gender | Permalink | Comments (18) | TrackBack

Notable restitution ruling from the Tenth Circuit

Though I doubt the decision will get as much attention as the restitution blunder case from DC (discussed here), today the Tenth Circuit issued a notable (spilt panel) restitution ruling in US v. Gordon, No. 04-6384 (10th Cir. Mar. 28, 2007) (available here).  Here's the majority's explanatory first paragraph:

Defendant-Appellant Margaret Ann Gordon appeals from the district court's order requiring her to pay restitution for credit card fraud in the amount of $68,698.52.  Ms. Gordon argues the amount of restitution exceeds the statutory limits set forth in the Mandatory Victim Restitution Act (MVRA).  See 18 U.S.C. § 3663A.  The government filed two motions for enforcement of the plea agreement, arguing that Ms. Gordon waived her right to appeal the amount of restitution.  Ms. Gordon responds that her challenge to the amount of restitution is not covered by her waiver of appellate rights and that, if it is, she did not enter the waiver knowingly and voluntarily.  Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we determine that Ms. Gordon may appeal the restitution order.  We vacate that order and remand to the district for the entry of a restitution order in the amount of $7,950.98.

March 28, 2007 in Criminal Sentences Alternatives | Permalink | Comments (1) | TrackBack

Habeas attack on NY persistent felony offender statute

A helpful reader noted to me a big recent habeas development from New York in the form of Portalatin v. Graham, No. 06 CV 5002 (EDNY Mar. 22, 2007) (available here).  In Portalatin, EDNY District judge John Gleeson essentially disagrees with the New York's state court decision in Rivera that the state's discretionary persistent felony offender statute is constitutionally sound (background here and here).  Here is the start of Portalatin (which I will discuss more fully when I get a chance to read it more closely):

Carlos Portalatin petitions for a writ of habeas corpus, challenging the sentence imposed in state court pursuant to New York's discretionary persistent felony offender statute, N.Y. Penal Law § 70.10. Because that sentence violated Portalatin's constitutional right to a jury trial, the petition is granted.

UPDATE:  Laura Appleman at Concurring Opinions has more on Portalatin here.

March 28, 2007 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (7) | TrackBack

Questioning the latest crime concerns

I have recently seen two interesting commentaries, from two very different commentators, expressing skepticism about a purported rising crime rate that has stirred calls from some for increased police funding and harsher penalties:

March 28, 2007 in Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

National Review agrees AG Gonzales should pack up

Though I have only barely been following the US Attorney purge story, I suggested here last week that it was time for new leaders at the Justice Department.  I am thus pleased to see from this editorial that the National Review has joined the call for AG Gonzales to resign.  Here are snippets from the editorial:

While we defended [Gonzales] from some of the outlandish charges made during his confirmation hearings, we have never seen evidence that he has a fine legal mind, good judgment, or managerial ability. Nor has his conduct at any stage of this controversy gained our confidence. 

His claim not to have been involved in the firings suggests that he was either deceptive or inexcusably detached from the operations of his own department.... 

He cannot defend the administration and its policies even when they deserve defense.  Alberto Gonzales should resign.  The Justice Department needs a fresh start.

Some related posts:

March 28, 2007 in Who Sentences | Permalink | Comments (2) | TrackBack

Record sentence (with a loophole) for tax cheat

Thanks to this post at TaxProf, I noticed this Washington Post article reporting on a record (and timely) sentence in a tax case:

Eccentric Washington telecommunications mogul Walter C. Anderson was sentenced yesterday to nine years in prison for failing to pay $200 million in taxes -- but a federal judge ruled the Internal Revenue Service won't be repaid for now because prosecutors botched the plea agreement.

Anderson, the biggest convicted tax cheat in U.S. history, received the longest punishment ever given in a tax crime case for his admitted effort to hide $365 million in personal income in the 1990s.  He avoided paying taxes by using aliases, shell companies, offshore tax havens and secret drop boxes abroad.   "I agree I'm responsible for what I did . . . but I'm not a criminal person," Anderson told U.S. District Judge Paul L. Friedman before he was sentenced. "I believe I've tried to do the right thing most of my life."

In a major embarrassment to the government's seven-year prosecution of Anderson, the judge ruled he could not order Anderson to make restitution to the IRS for an estimated $140 million of his unpaid federal income taxes.  Friedman blamed prosecutors for making a sloppy plea agreement with Anderson.

So, the lessons of this story are (1) pay your taxes, and (2) the Justice Department under AG Gonzales apparently cannot even write plea agreements without costing the government hundreds of millions of dollars.  (Indeed, a botched plea agreement costing the government $140 million sounds like a very legitimate performance-related reason to take a prosecutor to task.)

UPDATE:  This AP story provides more details on DOJ's $100 million blunder in this case:

U.S. District Judge Paul Friedman said he couldn't order Anderson to repay the federal government $100 million to $175 million because the Justice Department's binding plea agreement with Anderson listed the wrong statute.  Friedman said he could have worked around that problem by ordering Anderson to repay the money as part of his probation. But prosecutors omitted any discussion of probation — a common element of plea deals — from Anderson's paperwork.  "I've come to the conclusion, very reluctantly, that I have no authority to order restitution," Friedman said. "I hope the government will appeal me."

It is a sad and telling commentary on the state of modern sentencing realities that the government in this case likely spent a lot more time making sure that a non-violent tax cheat spends years behind bars (at taxpayer's expense) than it spent making sure the tax cheat actually had to pay the money he owes.

March 28, 2007 in Offense Characteristics | Permalink | Comments (34) | TrackBack

Ohio Gov grants reprieve for more DNA testing

As detailed in this Columbus Dispatch article, an Ohio death row defendant, whom many believe may be innocent, has received yet another reprieve to allow additional DNA testing:

Gov. Ted Strickland today granted another reprieve for convicted killer John G. Spirko Jr., pushing his execution date until Sept. 18.  It was the sixth reprieve granted to Spirko to allow time for additional DNA testing related to the 1982 kidnapping and murder of Betty Jane Mottinger, 48, postmaster at Elgin in northwest Ohio.

Attorney General Marc Dann asked Strickland to delay the execution which had been set for April 17.  Spirko, 60, was originally set for lethal injection on Sept. 19, 2005, but his defense attorneys repeatedly requested additional DNA testing.  They claim he is an innocent man convicted based solely on circumstantial and misleading evidence.

Ohio Death Penalty Information has a lot more on this case (and other interesting new posts).

March 28, 2007 | Permalink | Comments (2) | TrackBack

California's continued struggles

California continues to struggle with its response to Cunningham and its on-going prison over-crowding problems.  Here are two news accounts with new developments:

March 28, 2007 in State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

March 27, 2007

More on FSR issue on Claiborne and Rita

As detailed here, the Federal Sentencing Reporter's latest issue, entitled "Claiborne & Rita: Reasonableness Review in the Supreme Court," is focused on the two post-Booker cases now pending before the Court.  The issue has now gone to press and will be available on-line here before long.  My Editor's Observations, which I have made available for downloading below, previews some of the issue's themes.  Here is a snippet:    

This Issue of FSR ... seeks to provide both context and concepts for understanding the federal sentencing realities that may have prompted the Claiborne and Rita cert grants and that may impact the Court's decisions.  The articles in this Issue, some of which directly address federal sentencing realities in Booker's wake and some of which address broader issues concerning the operation of guideline systems, provide varied perspectives on whether and how Claiborne and Rita could impact the current state and future direction of post-Booker federal sentencing.

The information, insights, and ideas in the articles that follow are not readily summarized.  But all the pieces point to two broad themes that have potentially profound implications not only for Claiborne and Rita but also for the future of all structured sentencing efforts.  One theme, which is most prominent in the articles by Professor Frank Bowman and Judge Nancy Gertner, is the difficulty of integrating the Supreme Court's Sixth Amendment jurisprudence and a judge-centered sentencing system.  The other theme, which is particularly prominent in other articles in this Issue, is the difficulty of integrating formal sentencing doctrines and practical sentencing dynamics.

Download berman_editor_observations_for_fsr_19.3.pdf

March 27, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (0) | TrackBack

Time to register for the annual FSG seminar

Now is the time to sign up for the Sixteenth Annual National Seminar on the Federal Sentencing Guidelines, co-sponsored by the US Sentencing Commission and the Federal Bar Association, which takes place on May 23-25 in Salt Lake City, Utah.  All the particulars of this exciting event are set out in this event brochure, which highlights that the Seminar presents an opportunity to commune with the entire sentencing commission, many staff, key judges, prosecutors, professors and others coping with post-Booker realities.

As detailed in the brochure, this Seminar brings together many folks who are really in-the-know about federal sentencing law and practice.  I am honored to be moderating a great panel on "Guideline Departures & Variances Outside the Range under § 3553(a)."   Though I doubt Claiborne and Rita will be decided by May, the event will be especially exciting if the Justices tell us more about what Booker means as we head to Utah.

March 27, 2007 in Federal Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Latest interesting Vienna Convention development

Over at SCOTUSblog, Lyle Denniston has this interesting report on the latest development in the long-running saga concerning the application of Vienna Convention rights in a set of capital cases from Texas.  Here's the basics:

The Bush Administration, continuing its sturdy defense of presidential powers, has urged the Supreme Court to rule that President Bush had the authority to direct state courts to obey a decision of the World Court.  In an amicus filing in the case of Medellin v. Texas (06-984) [available here], the government called for reversal of a Texas state court ruling that Bush did not have the power to ensure that state courts complied with the international tribunal's decision on the rights of foreign nationals arrested and prosecuted within the U.S. for crimes here.

The Vienna Convention on Consular Relations gives such individuals a right to meet with a diplomatic officer from his or her home country.  The World Court (the International Court of Justice at the Hague) ruled that the U.S. government must take steps to assure that 51 Mexican nationals prosecuted in the U.S. had that right, despite state court rules that barred them from relying upon the Convention in challenging their convictions....

The government supports the appeal of Jose Ernesto Medellin, a Mexican national who was denied his consular access rights, and the Texas court found he had failed to raise that issue properly as his case unfolded in state court.  Medellin's appeal to the Justices was filed on January 16.... Medellin's appeal is also supported by the Mexican government and by a group of law professors who are experts on World Court matters.

In the lower court ruling at issue, the Fifth Circuit Court decided that Medellin had defaulted in failing to raise the Convention issue at his trial and on appeal, and also decided that the Convention does not give an individual the right to seek its enforcement.  The case has not yet been scheduled for a Conference of the Justices.

March 27, 2007 in Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

More on slow-poke SCOTUS

Though the Supreme Court issued two new opinions today (details here and here from SCOTUSblog), the Justices still have not resolved one case from its October sitting and a few from its November sitting (including the James case I am eagerly anticipating).  And, picking up on the Court's slow pace, Bloomberg New has this new article entitled "Roberts's Supreme Court Falls Behind in Pace of Issuing Rulings."   Here is the article's start:

As U.S. Supreme Court cases go, Global Crossing v. Metrophones, an administrative-law tussle over pay-phone fees, hardly looms as a landmark. That's why lawyers in the dispute are so puzzled that almost six months after hearing arguments, the court hasn't ruled.

The case has become a symbol of John Roberts's second year as chief justice, one in which the court has fallen well behind its typical schedule.  Six months into the 2006-07 term, the justices have issued only 19 signed opinions, 12 fewer than at this point a year ago. "I don't remember the pace of opinions ever being this slow,'' said Roy Englert, a Washington lawyer who argued his first Supreme Court case in 1987 and represented Metrophones Telecommunications Inc. in the Oct. 10 pay-phone argument.

While the court may release more opinions today, the delays, coupled with an unusually large number of April arguments, mean the vast majority of rulings will come in the term's final three months.  Still to be decided are potentially far-reaching cases on abortion, school integration, student free-speech rights and election spending.

Some recent related SCOTUS posts:

March 27, 2007 in Who Sentences | Permalink | Comments (0) | TrackBack

The crisis in criminal justice funding

20070326defenders The National Law Journal has this important new article entitled "Public Defenders, Prosecutors Face a Crisis in Funding." The story focuses on a few particular state systems, though it justifiably suggests that adequate funding is a nationwide problem:

A review by The National Law Journal shows that many public defender's offices across the country are strained beyond capacity or tipping into crisis.  Inadequate funding has led to constant turnover, staff reductions and spiraling caseloads. 

Litigation over poorly funded public defender systems are pending in Michigan and Louisiana.  The problem has become so acute that in at least one jurisdiction, officials toyed with the idea of trimming back workweeks. New York attorneys, tired of inconsistent funding and a patchwork organization, are pushing this month to launch a statewide public defender system.

In some jurisdictions, prosecutor's offices are not much better off. While salaries are slightly higher, prosecutors in states across the country are seeing the same budgetary stalemates and rising caseloads as their defense colleagues.  In one jurisdiction, prosecutors are thinking of unionizing to counteract the effect of static budgets and rising caseloads.

March 27, 2007 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Virginia's governor vetoes capital expansion

As detailed in this Washington Post article, "Virginia Gov. Timothy M. Kaine, a Democrat who personally opposes the death penalty, vetoed yesterday a set of bills that would have increased the list of crimes eligible for capital punishment, including killing judges or witnesses."  Here are more details:

I don't think we need to expand capital punishment in Virginia to protect human life and keep people safe," Kaine said. "It's just that simple." Republicans, meanwhile, are considering whether to attempt to override the vetoes during the General Assembly's one-day session April 4.  Among the bills vetoed was one that would have revised the so-called triggerman law, which stipulates that only the person who pulls the trigger in a murder case may be eligible for execution.  The revision would have included some accomplices.

Kent Scheidegger at Crime & Consequences has some commentary on these vetoes here.  ODPI has a collection of media coverage here.

March 27, 2007 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

NYTimes reentry editorial

Today's New York Times has this editorial discussing prisoner reentry issues.  Here is how it begins:

With corrections costs going through the roof, states and localities are beginning to figure out the long-term costs of just shoving inmates out the door when their sentences are finished. To prevent people from ending up right back inside, states will need to embrace re-entry programs that provide ex-offenders with training, jobs, places to live and a range of social services that don’t exist in most places.

March 27, 2007 in Reentry and community supervision | Permalink | Comments (0) | TrackBack

March 26, 2007

Justice Talking on the death penalty

The radio program Justice Talking, which is produced by the Annenberg Public Policy Center and distributed nationally by NPR, has this new program on the death penalty.  Here is the overview:

First used in Texas in 1982, lethal injection is the method of execution now authorized in 37 of the 38 states that have the death penalty. But the recent botched execution of Angel Nieves Diaz in Florida raises new questions of whether the method violates the Eighth Amendment's prohibition against cruel and unusual punishment.  Join us on this edition of Justice Talking as we take a new look at capital punishment and ask age-old questions about whether the death penalty is appropriate retribution for heinous crimes, whether it deters criminal activity and whether it can be administered in a fair and humane way.

March 26, 2007 | Permalink | Comments (1) | TrackBack

Another AFDA webcast on Booker developments

I have been working again with Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), to again utilize the AFDA's cool Audio Webcast System.  As detailed here, my second audio webcast is scheduled for this Tuesday (March 27) at 12noon EST. 

The basic plan is to provide an "informal, 90-minute discussion covering key developments in federal sentencing."  I expect to focus on what we might take away from the Claiborne and Rita arguments and other current legal and political realities surrounding federal sentencing these days.

Unlike other groups seeking big bucks for such webcasts, the AFDA only charges a nominal fee for participating and the webcast is made available free to all federal court personnel, federal public defenders, and full-time law professors and students.  I am grateful to Greg and the AFDA for putting this event together, and I hope to continue participating in these sorts of user-friendly webcasts on a regular basis if it helps folks trying to sort out the post-Booker world.

March 26, 2007 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Justices to look at child porn

It's hard to resist a provocative headline upon learning, from this SCOTUSblog post, that the Supreme has granted cert in US v. Williams (06-694), a case concerning "the constitutionality of a 2003 law passed by Congress to criminalize distribution of child pornographic materials."  I do not know if there is a sentencing angle in Williams, but I suspect the buzz around this new SCOTUS case could impact debates over severe sentences for simply downloading child porn (such as the 200-year prison sentence given to former Phoenix high school teacher Morton Berger discussed here and here.)

Some possibly related posts:

UPDATE:  SCOTUSblog now has this further account of the child porn cert grant:

The case on pornography is U.S. v. Williams (06-694; cert. petition, reply). It involves the validity of the 2003 "PROTECT Act" that Congress passed to try to shore up federal controls on child porn after the Supreme Court struck down a 1996 federal law on the subject in Ashcroft v. Free Speech Coalition (2002).  The PROTECT Act is separate from the law struck down last week by a federal judge in Philadelphia, involving a federal law that solely targets Internet distribution of sexually explicit materials in order to protect children with access to computers and other online devices.

March 26, 2007 in Who Sentences | Permalink | Comments (5) | TrackBack

Fodder for the legal blogosphere

Here are three Monday morning newspaper pieces that I suspect may produce some blogosphere buzzing:

All three pieces are great reads for lots of different reasons (e.g., the Sun article suggests law professors ought to be careful about thanking research assistants with political aspirations).  I find the Post article interesting because it notes the slow SCOTUS pace that I highlighted here last week.

March 26, 2007 | Permalink | Comments (0) | TrackBack

Fourth Circuit rules that troops should not be honored too much at sentencing

Thanks to this effective article in the Baltimore Sun, I see the Fourth Circuit last week in an unpublished opinion, US v. Medina, No. 05-5165 (4th Cir. Mar. 21, 2007) (available here), declared unreasonable a district court's decision to rely heavily on military service to justify a below-guideline sentence.  Here are the basics from the Sun article:

After Jose Medina Jr. served 18 years in the Army, a federal judge in Baltimore wanted to honor his patriotism even after the war veteran committed a crime.  Medina, a federal civil employee from Aberdeen, was caught with child pornography on his work computer in 2004 and later pleaded guilty to a single charge of possessing 10 images.

At his sentencing, the judge credited Medina substantially for his military service and imposed prison time well below recommended guidelines. "I start with the understanding that vets should get a break," U.S. District Judge William D. Quarles Jr. said before sentencing Medina to one year plus a day behind bars.

Last week, an appeals court disagreed. The 4th Circuit Court of Appeals in Richmond, Va., sided with prosecutors in ruling that Quarles had been too lenient when the judge gave too much weight to one factor -- Medina's military record.  The judge, the panel decided, violated the principle of a "reasonable" sentencing and ordered the case back for resentencing using the recommended guidelines of about 3 1/2 to less than five years in prison. The case illustrates a still-simmering, two-year-old debate in the federal judiciary over how much discretion individual judges should have in crafting sentences.

As noted in posts below, I have long thought and argued that if prior bad behavior (in the form of criminal history) produces significant sentence increases, then prior good behavior (in the form of distinguished military service) ought sometimes serve as a proper ground for a significant sentence decrease.  Apparently the Fourth Circuit does not think troops should be honored this way, although making the Medina decision "unpublished" perhaps suggests that the court does not feel strongly about this matter.

Among the disturbing aspects of Medina is the decision to render this opinion while Claiborne and Rita are pending.  Both Claiborne and Rita raise issues pertinent to the Medina disposition.  Indeed, if Jose Medina seeks cert, I would expect SCOTUS to GVR the case after it decides Claiborne and Rita.

Some related posts on military service as a sentencing factor:

March 26, 2007 in Booker in the Circuits | Permalink | Comments (5) | TrackBack

Intriguing op-ed on pardon realities

With the Lewis Libby case in mind, George Lardner Jr. has this interesting op-ed about pardon law and realities in today's New York Times.  Here is a taste:

Mr. Libby may escape prison time, but if he accepted a pardon, he (and Mr. Bush) would have a hard time continuing to insist that he was an innocent victim of a vengeful prosecutor. It would also undermine the claim that the Plame investigation was a partisan ploy to discredit the White House, and leave another stain on Mr. Bush's legacy. Here's why: If Mr. Libby were to accept a traditional presidential pardon — a "full and unconditional" grant of clemency — he would be admitting that he was guilty of the crimes of which he was convicted: obstructing justice, perjury and lying to the F.B.I.

Perhaps it shouldn't be that way, but it is — no ifs, ands or buts about it.  So, while many who have been pardoned like to claim they have been "exonerated," that simply isn’t so.  The Supreme Court laid down the law in 1915 in a case that, paradoxically, grew out of a debate over the sanctity of a newspaperman's sources.

Some recent related posts:

March 26, 2007 in Clemency and Pardons, Libby sentencing | Permalink | Comments (8) | TrackBack

March 25, 2007

Interesting political twists in California reform debate

A helpful reader sent me this interesting piece from the Los Angeles Times noting a change in the way the California prison guard union is approaching sentencing reform discussions:

Is one of California's most feared unions now playing nice?  That's the question on many minds here as the capital confronts an overcrowding crisis that has the state's system of 33 prisons operating at nearly twice its capacity. Behind the scenes, the California Correctional Peace Officers Assn. — the 30,000-strong prison guards union famous for punishing its political enemies and supporting tough-on-crime policies that keep the prisons full — has been embracing its critics.

Union officials have opened up the organization to academics, pushed for new spending on alternatives to incarceration, and begun regular meetings with other unions. Over the last three months, the union has convened a working group of inmate advocates, defense attorneys and politicians who support the kinds of shorter sentences that were long anathema to the union.

Their goal: creating a sentencing reform bill that, with the union's sway over lawmakers, could pass the Legislature this year.  According to notes obtained by The Times, the group's proposal calls for a state sentencing commission that would seek to replace incarceration for nonviolent inmates with "community based punishment."

By reaching out, the union is shaping the debate over the state's prison crisis, and may be outmaneuvering the governor — who has yet to win support for his own prison proposals — and the federal courts, which are examining various parts of the prison system.... Still, ven among those who have been the subject of this prison guard charm offensive, doubts run deep about the union's sincerity.  Police chiefs, narcotics officers and district attorneys say the union's new, seemingly progressive policies are merely a strategy for preserving its power.  Others say the union is trying to appear cooperative in an effort to secure a new contract with the state, or avoid a possible takeover of the prisons by a federal judge who might remove job protections.

Mike Jimenez, union president, said in an interview with The Times that the union's new openness to sentencing reform and enhanced rehabilitation represents a heartfelt response to the state's prison crisis and to his own personal difficulties.  Disclosing few details, Jimenez said his 17-year-old son has been in trouble in connection with petty theft and drinking. The union leader also has discussed his son with other unions and in recent meetings on sentencing. "I've been humbled," Jimenez said. "I gotta believe in redemption.  I gotta believe that you can convert."  Referring to the union, he added: "We've come to understand that what's bad for inmates is bad for our members."...

It is telling and sad (and yet all-too-common) that those who often espouse tough-on-crime rhetoric start talking more sense when someone they know or love is facing the consequences of such rhetoric.  Whatever it takes, it is nice to see some sensibilities starting to inform some sentencing debates in California.

March 25, 2007 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

County sentencing disparities in Michigan

The AP has this extended story on sentencing disparities in Michigan, entitled "Is Michigan justice unequal?: Prison sentences may depend on where defendants are convicted."  Here is a snippet:

A man convicted of breaking into a house in rural Hillsdale County often ends up in prison if the judge has the ability to send him there.  Doing the same thing 80 miles away in suburban Detroit would more likely get the convict jail time, probation or a lighter punishment.

Michigan's sentencing guidelines are meant to ensure that consistent sentences are handed out for similar crimes.  But when given a choice, judges in most smaller counties are sending certain offenders to prison at a higher rate than judges in larger counties, according to state Department of Corrections data.

March 25, 2007 in State Sentencing Guidelines | Permalink | Comments (6) | TrackBack

Chicago Tribune calls for death penalty abolition

The Chicago Tribune today has this lengthy editorial entitled simply "Abolish the death penalty."  Here is the essence:

It has, as well, long been the position of this editorial page that the government should have the legal right to impose capital punishment--the death penalty. 

An editorial in 1869 stated: "Imprisonment as a penalty for capital crime has lost all its preventative value."  A Tribune editorial in 1952 called the death penalty "the most powerful deterrent to other criminals." In 1976 this page said, "The danger of executing an innocent person is often cited, but we think unjustifiably."

That last sentence sounds chilling today, in light of evidence in recent years of scores of cases in which government has wrongfully convicted defendants and sentenced them to death.  The evidence of recent years argues that it is necessary to curb the government's power.  It is time to abolish the death penalty.

Ohio Death Penalty Information comments on this editorial and also notes that Capital Defense Weekly has lots of other weekend capital coverage.

March 25, 2007 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Is AG Gonzales going to persevere?

Media coverage at How Appealing here and here and here have me really unsure whether AG Alberto Gonzales is likely to survive the purge pandemonium.  Whether Gonzales will persevere, my personal view is that, because his credibility and wisdom is now so suspect, I doubt he can be a truly effective head of the US Department of Justice for the next 22 months.  Ironically, for some of the reasons being cited to justify the US Attorney firings, I think it is probably time for AG Gonzales to be encouraged to move on.

Some related posts:

March 25, 2007 in Who Sentences | Permalink | Comments (1) | TrackBack