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April 28, 2007

How will the new USSC crack work impact present (and past) cases?

In this official press release, the US Sentencing Commission explains not only that it has amended the crack guidelines to lower applicable sentence ranges, but also that a forthcoming report "will set forth current data and information that continue to support the Commission's consistently held position that the 100-to-1 crack-powder drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere" (basics here).  These developments should have a profound impact on all on-going crack cases and may lead defendants still serving terms under the old crack guidelines to seek reductions in their sentencing terms.   However, because of Booker and various retroactivity rules, legal uncertainty will surely surround whether and how the USSC's new crack work will impact present and past cases.  Let's start at the top:

The Supreme Court:   As noted here, the Supreme Court has pending before it a crack-sentencing case, Claiborne v. US.  In Claiborne, the district court concluded the old crack guideline range was too harsh, but the Eighth Circuit declared unreasonable the selected below-guideline sentence.  Under the new crack guideline, Mario Claiborne's guideline range would be lowered, but the district court's selected sentence would still be below the new sentence range.  Whether or not the Justices define reasonableness review in guideline-centric or 3553(a)-focused terms, the new crack guideline and the USSC's forthcoming report surely could (and likely should) impact its work in Claiborne.

The Circuit Courts:  I have long thought that the USSC's "consistently held position that the 100-to-1 crack-powder drug quantity ratio significantly undermines various congressional objectives" should be sufficient to render the old crack guideline presumptively unreasonable in light of the provisions of 3553(a).  Nevertheless, circuits have applied their presumption of reasonableness to crack sentences; indeed, to date, no circuit has reversed a single within-guideline crack sentence as substantively unreasonable. There now must be hundreds of within-the-old-guideline crack sentences currently on appeal that, in light of the USSC's new work, can no longer be simplistically viewed as reasonable simply because they are within the old guideline range.  Arguably, in light of the USSC's new work, circuit courts ought to remand for resentencing every within-the-old-guideline crack sentence currently on appeal.

The District Courts:  More than 100 crack sentences are imposed each week in the federal sentencing system.  Technically, the USSC's new crack guideline does not become official until November 1.  Then again, technically, all the guidelines are merely advice after Booker.  I see no obvious reason why the district court ought not "consider" the very latest guideline wisdom from the Sentencing Commission even though its advice is not yet "officially" the (advisory) law.  (I have been told that the last significant USSC guideline sentencing reduction (involving the immigration guideline in 2001) led many district courts to just continue sentencing until the new guideline became officially effective.  But that was, of course, before Booker changed the legal status of the guidelines.)

Past casesWhat the new USSC crack work means for current cases is complicated enough, but what it might mean for past cases is even more intricate.  The USSC can (but rarely does) make its amendments retroactive.  This official press release does not address this issue, but currently incarcerated crack offenders will surely want to do so ASAP.   (I would guess there are perhaps as many as 50,000 federal offenders currently serving terms under the old crack guidelines.)  I trust the USSC has thought through some of these retroactivity issues, and I am hopeful that its forthcoming report will provided some needed guidance on what should happen to defendants sentenced under the old unjust guidelines.

Recent posts on the USSC's new crack work:

April 28, 2007 in New USSC crack guidelines and report | Permalink | Comments (20) | TrackBack

The failing of California's new prison plan

This Los Angeles Times article does a strong job covering the failings of California's recent new prison legislation:

The Legislature on Thursday passed a sweeping spending package to ease overcrowding in California prisons but did not tackle several problems that experts say are driving the long-running crisis.  While lawmakers celebrated their vote to add 53,000 beds to the state corrections system and boost rehabilitation for inmates, critics beyond the Capitol worried that other ideas left out of the $7.4-billion deal might be sidelined for good.

For example, the package excluded any effort to deal with the state's discredited parole system.  Also omitted was a commission to review California's Byzantine sentencing laws.  A third proposal that has drawn particularly high marks from criminologists — to move 4,500 nonviolent female offenders out of prison to correctional centers near their homes — was missing from the agreement as well.

"This is a deal about practical politics and beds," said Franklin Zimring, a professor and corrections expert at UC Berkeley's Boalt Hall School of Law. "So it's going to satisfy the Sealy mattress company, and that's about it."

Some related posts:

UPDATE: The Christian Science Monitor has this piece on California's prison deal which starts this way: "Faced with prisons so overcrowded that the federal government is threatening intervention, California has opted for a massive expansion of existing facilities."

April 28, 2007 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Why the USSC's new crack work is soooooo significant

My mind is still reeling thinking about the significance and potential ripple effects of the US Sentencing Commission's new crack guidelines and its forthcoming cocaine sentencing report (basics here).  This important issue has been stuck in a political stalemate for over a decade; the stalemate has now been (partially) broken at an especially interesting moment in the evolution of the federal sentencing system.  Only a series of posts will allow me to detail fully why the USSC's relatively small change in the crack guideline is such a big deal, but let me get a running start here:

1.  The basic numbers:  As detailed here, in FY 2006 over 5,500 federal defendants were sentenced to long federal prison terms for crack offenses.  Though some crack defendants received statutory minimum sentences (which the new guidelines do not change), it's likely the new guidelines could directly impact more than 4,000 federal sentencing cases every year.  I doubt that any other single guideline amendment has ever had so broad an impact.

2.  A special case-specific moment:  The Supreme Court has pending before it a crack-sentencing case, Claiborne v. US, although the district court in that case imposed a below-guideline sentence (which the Eighth Circuit reversed as too short).  Though this USSC's new crack work need not directly impact the Supreme Court's assessment of broader Booker issues, the fact that Mario Claiborne's guideline range would be lower under the new crack guidelines could surely impact some Justices' perspectives.  Also there are likely thousands of other crack sentencing cases "in the pipeline" that could and should be impacted by the USSC's new crack work (more on this in a future post).

3.  A special structural moment:  The usual politics of crime and punishment are all mixed up these days.  The Justice Department is a mess with all the heat on AG Alberto Gonzales.  Many members in the new Congress, especially new leaders in the House who are knowledgeable on these topics, seem unlikely to respond to the USSC's work with tough-on-crime rhetoric.  And everyone running for President in the Senate should realize that many voters understand that crack sentences, especially for non-violent first offenders, were too long.  In other words, this is a special moment for the US Sentencing Commission to champion smart sentencing reforms, and it is heartening to see it start demonstrating some real leadership.

April 28, 2007 in New USSC crack guidelines and report | Permalink | Comments (2) | TrackBack

(Not-so-)shocking execution concerns

Nebraska, the only state to still rely exclusively on the electric chair for carrying out death sentences, is scheduled to execute Carey Dean Moore on May 8.  But, as this AP story details, a new execution protocol is ― surprise, surprise ― prompting legal challenges:

The state's new method of electrocution ― a single, sustained jolt instead of several shorter ones ― could leave the condemned's heart beating well after the shock, backers and foes of the protocol say. The macabre image of a strapped-down inmate, possibly brain dead but with a pulsating heart, could sharpen an already tense debate as Nebraska, the only state with the electric chair as its sole means of execution, prepares to put to death its first prisoner in a decade.

No one's sure the inmate's heart would continue to beat after the current stopped, but the possibility has caused a furor among capital punishment opponents since it was broached by the doctor who almost single-handedly revised Nebraska's execution protocol.  Carey Dean Moore is to die May 8 through an untested system of sending 2,450 volts through his body for 20 seconds.

Death penalty opponents are stepping up legal challenges to the execution, mainly on the grounds that the chair is cruel and unusual punishment.  And the Legislature narrowly defeated a bill last month that would have repealed the death penalty.

Some related posts about electrocutions and execution methods:

April 28, 2007 in Death Penalty Reforms | Permalink | Comments (6) | TrackBack

April 27, 2007

USSC provides (yummy?) half-a-loaf crack amendment

As detailed in this official press release, the US Sentencing Commission has now completed a significant set of proposed amendments to the federal sentencing guidelines.  And though there are lots of big and small stories in all the proposed amendments, the biggest news concerns a proposed amendment to the crack guideline (and a coming report).  Here is the crack discussion of the USSC's press release:

[T]he Commission unanimously announced today that it will submit to Congress on or before May 15, 2007, a report on federal cocaine sentencing policy.  The report will set forth current data and information that continue to support the Commission's consistently held position that the 100-to-1 crack-powder drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere.  The Commission also will make recommendations to Congress in the report for modifications to the statutory penalties for crack cocaine offenses.  At today's meeting, the Commission expressed its firm desire that this report will facilitate prompt congressional action addressing the 100-to-1 crack-powder drug quantity ratio.

The Commission also voted today to promulgate an amendment that modifies the penalties for crack cocaine offenses.  The Commission described the problems associated with the 100-to-1 drug quantity ratio as so urgent and compelling that it promulgated the guideline amendment as a measure to alleviate some of those problems.  The statutory penalties for crack cocaine offenses require a five-year mandatory minimum sentence for a first-time trafficking offense involving 5 grams or more of crack cocaine, and a ten-year mandatory minimum penalty for a first-time trafficking offense involving 50 grams or more of crack cocaine.  When Congress established these penalties in 1986, the Commission responded by incorporating the statutory mandatory minimum sentences into the guidelines to provide guideline sentencing ranges that are above the statutory mandatory minimum penalties. First-time offenses involving 5 grams or more of crack cocaine receive a sentencing guideline range of 63 to 78 months, and first-time offenses involving 50 grams or more of crack cocaine receive a sentencing guideline range of 121 to 151 months, before accounting for other relevant factors under the guidelines.

The Commission's amendment modifies the guideline drug quantity thresholds to provide guideline sentencing ranges that include the statutory mandatory minimum penalties for crack cocaine offenses. Accordingly, under the amendment, a first-time trafficking offense involving 5 grams of crack cocaine will receive a guideline sentencing range of 51 to 63 months, and a first-time trafficking offense involving 50 grams or more of crack cocaine will receive a guideline sentencing range of 97 to 121 months, before accounting for other relevant factors under the guidelines.  Under the statutory mandatory minimum penalties, however, a five- and ten-year sentence will still be required, respectively.  As a result, the Commission's amendment provides some relief to crack cocaine offenders impacted by the disparity created by federal cocaine sentencing policy.

The Commission emphasized and expressed its strong view that the amendment is only a partial solution to some of the problems associated with the 100-to-1 drug quantity ratio. Any comprehensive solution to the 100-to-1 drug quantity ratio would require appropriate legislative action by Congress.

The text of the Commission's amendments and its accompanying 2007 report to Congress, Cocaine and Federal Sentencing Policy, will be available in the coming weeks on the Commission's website, www.ussc.gov.

This is HUGE news, and pretty encouraging for those long hopeful for significant reforms to the crack guidelines.  And yet, even if/when these amendments become official, there is still a significant crack-powder disparity.  However, the language used in the official USSC press release has me optimistic that the USSC is really ready to rumble with Congress on these issues and that its May 15 report to Congress will be forceful.

Notably, FAMM already has this press release highlighting the mixed, but positive, realities of these major crack sentencing developments:

"While this incremental change is a far cry from the 'equalization' of crack and powder cocaine the Commission recommended in 1995, it is a long overdue first step to improving crack sentences," said Julie Stewart, president of Families Against Mandatory Minimums (FAMM).

The possible ripple effects of this fascinating USSC development on all the on-going work of all the federal sentencing players in each branch cannot be overstated.  Throughout the weekend, I plan to provide branch-by-branch commentary on how the USSC's actions could and should be received.

April 27, 2007 in Federal Sentencing Guidelines | Permalink | Comments (10) | TrackBack

The family values case for sentencing reform

Thanks to this post at CrimProf, I see that this article in Good Magazine highlights the strong family values argument that could (and should) be made for sentencing and prison reforms.  Here are snippets:

Nearly half a million women are married to men in prison. Maintaining these relationships involves a constant struggle with an often unsupportive penal system, despite growing evidence that a healthy marriage is one of the best tools for rehabilitation. Welcome to the intersection of prisons, love and politics....

In a national climate where the promotion of marriage is prioritized and new incarceration initiatives are being introduced across the country, the intersection of prisoners and matrimony appears to be a political blind spot. The wives of inmates are still largely without resources or assistance, grappling with often exorbitant phone rates, long distances to be travelled for visits, hypervigilant visitation rules, and restricted access to information about their husbands’ well-being. Right now, according to a report by a leading scholar named Creasie Finney Hairston, “The correctional policies and practices that govern contact between prisoners and their families often impede, rather than support, the maintenance of family ties.”

April 27, 2007 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Yet another (unpublished) affirmance of a below-guideline sentence

A free airport internet connection allows me to report on yet another notable unpublished circuit ruling upholding a below guideline sentence.  This one comes from the Eleventh Circuit in US v. Neufeld, No. 06-12503 (11th Cir. Apr. 26, 2007) (available here), where the panel affirms a post-Booker sentence of 48 months where the guidelines range had been 135 to 168 months (and the defendant, prior to Booker, had actually been sentenced to 135 months).  In support of its ruling, the panel discusses favorably the district court's considerations and range of discretionary authority:

At sentencing and in its later filed statement of reasons, the district court cited in support of the sentence imposed, the extraordinary support available to Neufeld from his family, rabbis and community, which support the district court determined would reduce substantially the possibility of recidivism; the age of Neufeld when first sentenced; Neufeld’s criminal history; the need to provide just punishment and adequate deterrence; Neufeld’s conduct while incarcerated; and, as already discussed, the disparity between the guideline sentence and the sentences imposed on Neufeld’s codefendants. The district court seemed most impressed with the extraordinary support network available to Neufeld but relied on no single section 3553(a) factor to determine the sentence imposed....

We have no doubt that a longer sentence would fall within the range of reasonable sentences from which the district court could choose in the light of the particular facts of this defendant;...  but we can not say that the government met its burden to show that the ultimate sentence imposed was unreasonable.

Thanks much to the readers who keep alerting me to these important affirmances of below-guideline sentences that the circuits keep trying to sneak through by making them unpublished.  (Earlier examples from the Fourth Circuit and the Fifth Circuit perhaps suggest this is a nationwide practice.)

April 27, 2007 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

In KC with lots happening and perhaps coming crack guideline news!?!?

I am in Kansas City for a CLE presentation this afternoon, but have access to a computer just long enough to report that I do not have enough time to report all the stuff going on today.  Helpfully, How Appealing has great coverage of lots and lots of stuff that should be of interesting to sentencing (and blogging) fans, and Ohio Death Penalty Information and StandDown Texas Project have lots of new death penalty items.

But the biggest brewing news for federal sentencing fans comes from the US Sentencing Commission, which has just noticed this meeting for 7pm tonight (!).  On the agenda for the USSC version of Friday Night Lights is this tantalizing item: "Possible Votes to Promulgate and/or Publish Proposed Amendments on Federal Cocaine Sentencing."

I hope to be able to report on what comes from this meeting ASAP, and I am already giddy with anticipation about what the USSC might do on the crack front (and what the post-Booker implications might be for every branch of the federal government).  Also, as noted here, I have been hearing buzz about lots of other positive amendments in the works from the USSC, too.  So, though I will be off-line most of today, I expect the USSC could deliver news that will ensure I will be making up for lost time tonight and over the weekend. 

While I am away, anyone want to start speculating on exactly what the USSC might be doing on the crack guidelines?

April 27, 2007 in Federal Sentencing Guidelines | Permalink | Comments (2) | TrackBack

Little capital respect for a SCOTUS elder

Mark Sherman has this interesting AP article spotlighting the snippy dissent penned by Chief Justice Roberts in the AEDPA death penalty rulings on Wednesday.  The piece also discusses SCOTUS voting patterns and notes Justice Kennedy's hot streak: "Kennedy is a robust 31-1 in signed opinions issued since the court began its current term in October. He is 12-0 in 5-4 cases, the only justice in that narrow majority each time in cases concerning abortion, the death penalty and global warming."

I found notable that CJ Roberts' dissent showed so little respect for Justice Stevens' recounting of the Supreme Court's capital jurisprudence, particularly given that Justice Stevens was a central player in the development of this jurisprudence.  Justice Stevens was a key vote developing the Court's early guided discretion jurisprudence in late 70s, before the Chief had even graduated law school.  This is not to say that the Chief should have completely deferred to Justice Stevens' take on the death penalty law he helped develop, but he surely could have been a little nicer when expressing his disagreement. 

April 27, 2007 in Death Penalty Reforms | Permalink | Comments (16) | TrackBack

April 26, 2007

First federal sentence for sex offender failing to register

Corey Yung of the great blog Sex Crimes altered me to the fact that, today in Florida, Wilfred Madera became the first sex offender to be sentenced in federal court for failure to register under the Adam Walsh Act.  The news account of the sentencing is here, and Yung's post about it is here.  As this snippet from the news accoutn highlights, this case is likely to continue to make headlines:

With no precedent to rely on, an Orlando federal judge on Wednesday declined to send a New York sex offender to prison under a tough new law that punishes those who fail to register when they move across state lines.  Following through on comments he made at Wilfredo Madera's plea hearing three months ago, Senior U.S. District Judge G. Kendall Sharp sentenced him to four years of probation and fined him $500. 

At a Jan. 11 hearing before Madera pleaded guilty as part of a deal with prosecutors, Sharp said he was inclined to dismiss the case or give Madera no prison time.  Sharp, at the time, criticized the government's case and told Madera he would throw out the case if the felon registered the next day. But an exasperated prosecutor reminded Sharp that he had "no legal standing" to do that and the judge reversed himself, acknowledging his error.  He then called the law "constitutional" as written and denied a defense request to dismiss the case.

Madera, who was arrested in October as part of a nationwide crackdown on sex offenders by the U.S. Marshals Service, was the first person in the nation to be convicted under the Adam Walsh Child Protection Act.  On Wednesday, he became the first to be sentenced under that law.

Assistant U.S. Attorney Cynthia Hawkins immediately protested Sharp's sentence and said her office will likely take the case to the 11th Circuit Court of Appeals in Atlanta.  "The government will object to the sentence imposed as being unreasonable and not taking into account the seriousness of the offense and specifically the defendant's past criminal history," Hawkins told Sharp.  Hawkins said a pre-sentence report prepared by the federal probation office showed Madera could have received 24 to 30 months in prison.

April 26, 2007 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Should the ALI oppose the death penalty?

Professors Roger Clark and Ellen Podgor have submitted a motion for consideration at the upcoming American Law Institute Meeting, which calls for the Institute to take a position that it is opposed to the death penalty.  This motion and statement of support can be accessed at this link, and here is the statement's first paragraph:

The Discussion draft on sentencing circulated for discussion at the 2006 meeting comments that "The sentencing Articles of the Model Penal Code drafted in the 1950s and early 1960s, have not been influential in the bulk of sentencing-code revisions undertaken since the mid-1970s."  Regrettably, this is not true of the capital punishment provisions in the Code, included against the better judgment of the Reporters and the Advisory Committee.  They have become, in a memorable phrase from the 1980 Commentaries on the Code, "a paradigm of constitutional permissibility," a lifeline for the retention of capital punishment against constitutional attack.  We believe that the time has come to disavow them.  A Model Code of Sentencing for the twenty-first century should specifically exclude the death penalty.

Some related posts:

April 26, 2007 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

New article on "Plea Bargaining and Procedural Justice"

Professor Michael O'Hear has this interesting looking new article posted on on SSRN, which is "Plea Bargaining and Procedural Justice."  Here is the abstract:

Recognizing the increasingly dominant role of plea bargaining in the American criminal justice system, legal scholars have devoted considerable attention in recent years to problems of accuracy and proportionality in cases resolved by guilty plea.  However, an overriding focus on the outcomes of plea bargaining misses the important contributions that process makes to the acceptance of outcomes and the perceived legitimacy of the criminal justice system.  Drawing on the extensive social psychology research on procedural justice, this Article proposes five process norms that prosecutors ought to observe when making or responding to plea offers. Paying greater attention to procedural justice in this setting may not only bring some much-needed transparency to a critical aspect of the criminal justice system, but also enhance defendants' levels of voluntary compliance with legal rules and authorities, thus advancing the system's core crime-control objectives.  Moreover, while it is not cost-free, procedural justice can be implemented in meaningful ways without undermining the basic goal of efficient case processing that is often invoked as the chief justification for plea bargaining.

As Larry Solem might say, download it while its hot!

April 26, 2007 in Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Set your DVRs for "The Trials of Darryl Hunt"

Darrylposter A favorite reader reminded me than tonight at 8pm is the HBO premiere of the "The Trials of Darryl Hunt," an award winning documentary about a wrongful conviction in North Carolina.  Here is a snippet from HBO's synopsis of the movie:

In 1984, Deborah Sykes, a young white newspaper reporter, was assaulted, raped, sodomized and stabbed to death just blocks from where she worked in Winston-Salem, North Carolina.  Though no physical evidence implicated him, Darryl Hunt, a 19-year-old black man, was ultimately convicted of the crime and sentenced to life in prison.

Ten years later, DNA testing proved that Hunt did not rape Sykes, and cast serious doubts on his involvement in her murder, but he spent another decade behind bars for a crime he did not commit. The eye-opening HBO documentary THE TRIALS OF DARRYL HUNT tells his riveting story — and the story of those who fought to clear his name.

More than a decade in the making, Ricki Stern and Annie Sundberg's THE TRIALS OF DARRYL HUNT examines a community and criminal justice system subject to racial bias and tainted by fear. Hunt was charged with Deborah Sykes' murder largely on the strength of an eyewitness identification by a former Ku Klux Klan member, and convicted by a jury of 11 whites and one black.  It wasn't until 2004, through the help of an investigative series by Winston-Salem journalist Phoebe Zerwick, that he was finally cleared.

Over that 20-year span, his defense attorneys and public supporters never stopped fighting for him. In February 2007, the city of Winston-Salem compensated Hunt $1.65 million for his wrongful conviction and incarceration, and he also received $358,545 in compensation from the state of North Carolina.

Told from the point of view of the principal subjects — Mark Rabil, the unyielding defense attorney, and Hunt, the wrongfully convicted man — the film challenges the assumption that all Americans have access to unbiased justice.  Hunt's real-life courtroom drama reflects systemic issues of broad national concern: the liabilities of cross-racial eyewitness identification, prosecutorial misconduct, inexperienced defense attorneys assigned to capital cases, racial bias in death penalty cases, and errors in police procedure....

As Hunt's story unfolds, it becomes a textbook example of how the presumption of innocence can be subverted when a city's need to solve a gruesome crime, fed by sensational media coverage, leads to a rush to judgment that validates a flimsy case. In addition to clearing their own client, the defense team is ultimately instrumental in identifying the real killer, who is now behind bars.

April 26, 2007 in Recap posts | Permalink | Comments (2) | TrackBack

Thoughful discussion of appeal waivers by Third Circuit

As discussed here, Nancy J. King and Michael O'Neill have documented that appeal waivers in federal plea agreements tend to "undercut efforts to advance consistency in federal sentencing."  And I have argued in posts here and here, that appeal waivers are perhaps invalid on public policy grounds because they violate of the appellate review provisions of the Sentencing Reform Act.  Nevertheless, even after Blakely and Booker, it seems that appeal waivers remain a central part of federal sentencing practice.

Today the Third Circuit has a thoughtful decision in US v. Gwinnett, No. 06-1766 (3d Cir. Apr. 26, 2007) (available here), discussing the impact of appeal waivers on its jurisdiction to hear a sentencing appeal.  The Gwinnett panel concludes that an appeal waiver does not eliminate its jurisdiction to hear an appeal, though it does it does conclude that it "will not exercise that jurisdiction to review the merits of [a defendant's] appeal if we conclude that she knowingly and voluntarily waived her right to appeal unless the result would work a miscarriage of justice."

April 26, 2007 in Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

An interesting down under take on jury involvement in sentencing

Here is a fascinating story about a fascinating proposal to involve juries in sentencing decision-making being discussed in Australia:

A proposal by the NSW Chief Justice, Jim Spigelman, to involve juries in sentencing has been rejected by his fellow judges, who say it would be unworkable and erode confidence in the legal system.

The plan, which involves holding secret discussions between judges and juries on possible sentences, was raised by Justice Spigelman as a way to improve decisions and prevent outbreaks of public hysteria about supposedly lenient sentences.  But it has met with virtually unanimous opposition from across the legal profession, including judges, the Director of Public Prosecutions, the NSW Bar Association, the NSW Law Society and the Public Defenders Office....

The Chief Judge of the District Court, Reg Blanch, said there were "very significant practical problems" with trying to involve jurors in sentencing. "The process would be extremely difficult to administer, and it simply is not a practical option," he said.  "There [would be] an expected wide difference of views between jurors about questions relating to sentence."  Judge Blanch said juries were not interested in sentencing, and many would not return to the court for the proceedings, which frequently require psychiatric reports and are conducted six to eight weeks after the trial. 

Another District Court judge, Michael Finnane, said the plan to hold secret discussions was repugnant and would reduce public confidence in the justice system. "Our system of justice is based upon its being public, and the parties all know what the judge tells the jury," he said.  "The hardest task which I carry out as a judge is to sentence another human being … We place enough stress on jurors as it is by asking them to decide whether or not an accused person is guilty of a crime … To impose the stress of sentencing on an untrained person … would seem to me to be imposing a very heavy burden."

Some of these negative reactions seem especially interesting in the wake of yesterday's US Supreme Court decisions that were all about whether Texas jurors, making "difficult to administer" life-or-death capital sentencing decisions, were given proper instructions to ensure they shouldered the "very heavy burden" of judging whether a murderer should live or die for his crime.

April 26, 2007 in Sentencing around the world, Who Sentences | Permalink | Comments (3) | TrackBack

California compromise to cope with prison problems

This AP report provides lots of background and information about a deal worked out by California legislators to deal with the state's prison overcrowding problems.  Here are snippets:

Racing a court-imposed deadline, California's top legislative leaders on Wednesday said they had reached a wide-ranging, $6.1 billion deal to ease severe overcrowding in the nation's largest state prison system.  The agreement adds 53,000 beds, requires improvements to rehabilitation programs and allows Gov. Arnold Schwarzenegger to continue his strategy of transferring thousands of inmates out of state.

"The Legislature does not want a court takeover of the system ... but we will not blindly give a blank check and throw good money after bad," Assembly Speaker Fabian Nunez and Senate President Pro Tem Don Perata said in a letter to the governor outlining the bipartisan deal. "A quick fix without fundamental changes and effective reform is simply running in place."...

The deal was criticized by the union representing state prison guards. Mike Jimenez, president of the California Correctional Peace Officers Association, said the agreement only creates a larger prison system with the same underlying problems. "At some point, it's going to break," he said....

Absent from the agreement is any mention of sentencing reform, although bills that would create a commission to review California's sentencing guidelines are moving independently through the Legislature.

April 26, 2007 in Scope of Imprisonment | Permalink | Comments (3) | TrackBack

Forthcoming PBS program "When Kids Get Life"

A reader sent me this link to news of a forthcoming PBS Frontline special entitled "When Kids Get Life." Here is a description of the program:

The U.S. is one of the very few countries in the world that allows children under eighteen to be prosecuted as adults and sentenced to life without parole.  In Colorado, between 1992 and 2005, 45 juveniles between fifteen and eighteen were sentenced to prison without the hope of ever being released.  Last spring, the state's legislature eased its tough laws targeting juvenile offenders.  The state passed a bill that made parole possible after 40 years in prison, but the measure did not apply retroactively to the 45 former juveniles now in Colorado's prison system. Producer Ofra Bikel visits five young men in Colorado sentenced to life without parole to examine their crimes and punishment, the laws that sanctioned their convictions, and the prospect of never being free again.

Some related posts:

April 26, 2007 in Scope of Imprisonment | Permalink | Comments (3) | TrackBack

April 25, 2007

Blogosphere comments on SCOTUS death cases

I still haven't yet had a chance to read all the SCOTUS death decisions today, but I notice that many thoughtful bloggers are all over these cases:

Even before reading the opinions, I cannot help but note the 5-4 outcomes and the obvious inability of the new Chief to engineer consensus in this arena (as I predicted here).

April 25, 2007 in Death Penalty Reforms | Permalink | Comments (8) | TrackBack

Notable Eighth Circuit discussion of juvenile convictions and variances

Notable circuit court reasonableness rulings I have seen today include the Third Circuit's work in US v. Batista, No. 05-2949 (3d Cir. Apr. 25, 2007) (available here), affirming a within-guideline sentence, and the Fourth Circuit's work in US v. McClung, No. 05-2949 (4th Cir. Apr. 25, 2007) (available here) affirming an above-guideline sentence.  But the most significant of the bunch is likely the Eighth Circuit's work in US v. Feemster, No. 06-2059 (8th Cir. Apr. 25, 2007) (available here).

Feemster is another Eighth Circuit decision reversing a below-guideline sentence, though along the way the court discusses a number of interesting issues in a thoughtful manner.  I found especially interesting an extended discussion of Roper and the treatment of juvenile convictions less seriously than adult convictions.  Here is how that discussion concludes:

While a modest downward variance may be appropriate, because a conviction resulting from conduct while not yet eighteen is not the same as a conviction resulting from adult conduct, the extent of the variance here (eleven levels or 67%) exceeds the range of reasonable variances based on the distinction between prior convictions while a juvenile and an adult.

April 25, 2007 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Back with lots to read

I'm back from an terrific experience talking to a terrifically engaged and thoughtful Sixth Circuit panel, and I see I have lots to read.  In addition to 110+ pages of Justice bloviating about some Texas death penalty cases, I noticed that at least three circuits issued interesting looking sentencing opinions today.  As time permits late tonight, I hope soon to comment on all the sentencing news of this wacky Wednesday.

April 25, 2007 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

SCOTUS death penalty rulings

SCOTUSblog reports here that the Supreme Court today has handed down decisions in Smith v. Texas and Abdul-Kabir/Brewer v. Quarterman, both death penalty cases.  Here is an early report from Lyle Denniston:

In one of two rulings Wednesday on death penalty procedures in Texas, the Supreme Court ruled that Texas' highest state court wrongly put up a new legal barrier to a death row inmate's challenge to jury instructions in his sentencing. The 5-4 decision came in the case of Smith v. Texas (05-11304), a case that had been before the Court once before.. Justice Anthony M. Kennedy wrote for the majority.

The Court reversed the Texas Court of Criminal Appeals' ruling that reinstated the death sentence of a Dallas man, LaRoyce Smith; the state court had applied a new harmless error standard under state law. That was a misinterpretation of what federal law required, the Court concluded.

In the consolidated cases of Abdul-Kabir v. Quarterman (05-11284) and Brewer v. Quarterman (05-11287), the Court in another 5-4 decision found that the Fifth Circuit Court wrongly applied prior rulings on instructions to assure that capital juries give full consideration to any factor that might suggest a death sentence should not be imposed.

I now have to jump in the car to drive to Cincinnati for a Sixth Circuit argument, so I won't be able to comment on these ruling until late tonight.  I am sure SCOTUSblog and Capital Defense Weekly and others will have comments (including about Justice Kennedy's continued status as a swinger in high-profile cases). Perhaps readers can also use the comments here to fill my short-term absence.

April 25, 2007 in Death Penalty Reforms | Permalink | Comments (35) | TrackBack

Victims' statement against the death penalty

Providing another perspective during National Crime Victims' Rights Week is this item at DPIC, which reprints a statement  The statement issued by the leaders of Murder Victims' Families for Human Rights, Murder Victims' Families for Reconciliation, and Journey of Hope, calling for an end to the death penalty  Here is a portion of the statement:

April 22 – 28, 2007 is National Crime Victims' Rights Week.  The theme for this year is "Victims' Rights: Every Victim, Every Time." As victims, and survivors, we strongly support efforts to ensure that the needs of victims' don't fall through the cracks or fall prey to politics.

The death penalty does not serve victims' families.  It draws resources away from needed support programs, law enforcement and crime prevention.  And the trials and appeals endlessly re-open wounds as they are beginning to heal, and it only creates more families who lose loved ones to killing.

Related posts during NCVRW:

April 25, 2007 in Who Sentences | Permalink | Comments (0) | TrackBack

Big FSG seminar now just a month away

As I have mentioned before, the Annual National Seminar on the Federal Sentencing Guidelines, co-sponsored by the US Sentencing Commission and the Federal Bar Association, is an event not to be missed.   The sixteenth version this year takes place in Salt Lake City, Utah on May 23-25.  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.

I'll be there moderating a great panel on "Guideline Departures & Variances Outside the Range under § 3553(a)."   I am hoping, though doubtful, that Claiborne and Rita will be decided by event.  Even if they aren't, I am sure there will be plenty to talk about. 

April 25, 2007 in Federal Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Giving voice to victims during NCVRW

Because this is National Crime Victims' Rights Week (discussed here and here), it seems fitting to spotlight a few news articles reporting on victims expressing anguish about the harms they suffered and criminal justice outcomes:

April 25, 2007 in Who Sentences | Permalink | Comments (0) | TrackBack

More on Fifth Circuit reversal in human smuggling case

As noted in this prior post, last week the Fifth Circuit reversed a below-guideline sentence in US v. Sanchez, No. 06-20193(5th Cir. Apr. 17, 2007) (available here), a high-profile alien smuggling case.  Today the Houston Chronicle has this extended story about the ruling.  Here is a snippet:

In its latest ruling last week, a three-judge panel of the appeals court decided that Gonzalez Sanchez's sentence was calculated incorrectly.  Remanding the case to Gilmore for resentencing, the judges said federal guidelines call for a prison term of 57 to 71 months.

That means that Gonzalez Sanchez, 46, could spend at least two more years behind bars. For now, she remains on three years' supervised release, her attorney, Wendell Odom Jr., said Tuesday.

After the U.S. Supreme Court ruled in 2005 that the guidelines are not mandatory, each circuit has taken its own approach on judges' options.  The high court also has some cases pending on judicial discretion in federal sentencing.

Odom said the 5th Circuit takes a conservative view of the issue.  "It is not a great surprise to me to see the opinion come down the way it did," said Odom, who is preparing an appeal of Gonzalez Sanchez's case to the Supreme Court.

April 25, 2007 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

April 24, 2007

The benefits of a (criminal history) vacation

180pxgogosvacation Vacation
All I ever wanted
Convictions go away
Want this one to go alone

It was hard for me to keep one of my favorite songs from the 1980s out of my head when I read a particular recent federal district court sentencing decision kindly sent my way by a reader.  The decision is US v. Marsh, No. 05-40025 (D. Mass Apr. 16, 2007) (available here), and the "principal issues at sentencing arise out of the fact that defendant Matthew Marsh successfully moved after his plea of guilty to vacate two state convictions that would have otherwise qualified him as a career offender."  Here is the background that puts a new twist on the impact of criminal history (and its erasure):

Defendant pleaded guilty in this case in October 2006.  He then moved in state court to vacate two prior convictions for resisting arrest.  Those convictions would have qualified as "crimes of violence" under the career offender guidelines, U.S.S.G. § 4B1.1, and would have dramatically raised his guideline sentencing range, from 120 months to 262 to 327 months.

The claimed basis for the motions to vacate the convictions was that defendant was not mentally competent at the time of the pleas of guilty in 2000 and 2004.  Defendant contends (and the government does not dispute) that he suffers from bipolar disorder and post-traumatic stress disorder, and that his condition was not being treated at the time with medication.  Defendant also forthrightly, if inaccurately, advised the state court that if his motions to vacate were not granted, he would be facing "30 to life" in federal court. The state court granted the motions nine days before the scheduled sentencing.

Some related posts:

April 24, 2007 in Offender Characteristics | Permalink | Comments (3) | TrackBack

Colorado Supreme Court capitalizes Blakely

A thoughtful reader kindly sent me news of a Colorado Supreme Court ruling which examines Blakely in the context of the death penalty and guilty pleas. Here are the basics from the decision in Colorado v. Montour, No. 02SA365 (Colo. Apr. 23, 2007) (available here):

In this appeal, we exercise our jurisdiction to conduct an independent review of the death sentence of Edward Montour, Jr.  We hold that Colorado's death penalty statute cannot deprive the defendant of his Sixth Amendment jury trial right on the facts essential to the death penalty eligibility determination when that defendant pleads guilty.  Here, Montour pled guilty and pursuant to the Colorado death penalty statute, his guilty plea automatically waived his right to have a jury determine his sentence.  We hold that the statute unconstitutionally links the waiver of a defendant's jury sentencing right to his guilty plea.  Hence, we affirm Montour's guilty plea and apply the severability clause in the death penalty statute to excise the unconstitutional language in the death penalty statute.  We reverse Montour's death sentence and remand this case to the district court.  On remand, the district court must set a new sentencing hearing before a newly impaneled jury unless Montour waives his right to jury sentencing.  To be valid, Montour's waiver of his Sixth Amendment right must be knowing, voluntary, and intelligent, and not linked to his guilty plea.

In the course of its rulings in Montour, the Colorado Supreme Court arguably extends Blakely in various ways.  For this reason and others, it will be interesting to see if the state might try to appeal Montour to the US Supreme Court.

UPDATE:  At Volokh, Orin Kerr has this effective head-scratching post that exposes some of the questionable aspects of the Montour ruling.

April 24, 2007 in Death Penalty Reforms | Permalink | Comments (5) | TrackBack

Ohio proceeds with lethal injection execution

As well covered at ODPI, James Filiaggi lost his last-minute attempts to challenge the Ohio's lethal injection method and his execution went forward this morning.  The Sixth Circuit this morning issued this two-page opinion explaining its decision to deny Filiaggi a stay. 

Texas has another execution scheduled for this week.  In early may, Indiana, Nebraska and Tennessee all have scheduled executions, so I suspect we will be seeing more lethal injection litigation before too long.

April 24, 2007 in Death Penalty Reforms | Permalink | Comments (3) | TrackBack

A new study assails lethal injection protocols

Just as Ohio and some other states appear poised to finally carry out some scheduled executions, a new study appearing in a medical journal reiterates concerns about lethal injection protocols.  Articles from the AP and from the Washington Post tell the story; here are highlights from the AP:

The drugs used to execute prisoners in the United States sometimes fail to work as planned, causing slow and painful deaths that probably violate constitutional bans on cruel and unusual punishment, a new medical review of dozens of executions concludes.

Even when administered properly, the three-drug lethal injection method appears to have caused some inmates to suffocate while they were conscious and unable to move, instead of having their hearts stopped while they were sedated, scientists said in a report published Monday by the online journal PLoS Medicine.

No scientific groups have ever validated that lethal injection is humane, the authors write.  Medical ethics bar doctors and other health professionals from taking part in executions....

The journal's editors call for abolishing the death penalty, writing: "There is no humane way of forcibly killing someone."...

The new review was written by many of the same authors who touched off controversy when they published a 2005 report suggesting that many inmates were conscious and possibly suffering when the last of the drugs was given. That report was criticized for its methodology, which relied on blood samples taken from prisoners hours after executions. The new paper looked at the executions of 40 prisoners in North Carolina since 1984 and about a dozen in California, plus incomplete information from Florida and Virginia....

Death penalty proponents complained the report's conclusions were based on scant scientific evidence.  "It's more like political science than medical science," said Mike Rushford, president of Criminal Justice Legal Foundation in Sacramento.... Dr. Mark Heath, an anesthesiologist at Columbia University Medical Center who has studied lethal injection cases, took issue with some of the paper's conclusions, but said it generally showed that concerns about lethal injection in its current form "are well-justified."

The full study appearing online journal PLoS Medicine can be accessed at this link, and the journal's editorial here asserts that "new data in PLoS Medicine will further strengthen the constitutional case for the abandonment of execution in the US."  Not surprisingly, Crime & Consequences and TalkLeft have different reactions to this new study.

UPDATE:  Orin Kerr has this thoughtful post at Volokh, which astutely explains why "it seems that there is much less to this study than the media coverage would have you believe."

April 24, 2007 in Death Penalty Reforms | Permalink | Comments (5) | TrackBack

A telling accounting of how criminal justice resources are allocated

As hinted in this post, I generally believe that the true interests/rights of crime victims ought to be given more formal emphasis in the operation of criminal justice systems.  And, in reviewing some fascinating statistics the Justice Department has collected about crime victimization, I discovered these telling economic data that spotlight how few criminal justice resources are now devoted to victim compensation:

These numbers provide only an incomplete snapshot of how criminal justice resources are allocated.  Still, they suggest that nearly $500 is spent on police protection, corrections, and judicial and legal activities for every $1 spent on helping to compensate the victims of violent crime.   And most of the compensation money simply covers (surely inadequately) basic economic losses.

April 24, 2007 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

April 23, 2007

Will Ohio have its planned execution?

As always, ODPI is keeping up with the latest twists and turns concerning Ohio's death penalty.  Today that means tracking decisions from the Ohio Supreme Court and the federal district court denying stays to James Filliagi, who is making a last-ditch attempt prevent his scheduled execution tomorrow.  The best read today comes from US District Court Judge Greg Frost's decision (available here) denying Filliagi's effort to join the Cooey suit seeking an examination of Ohio's lethal-injection protocol.  Here are my favorite sentences from that opinion:

To be certain, today's decision no doubt provides fodder for the argument that the law often follows form over substance.  But this argument rings hollow given that this litigation has so often been about, or at least should have been about at every level of review, the application of the law in a consistent manner free from subjectivity or whim and guided only by reasoned adherence to stated objective rules.

We will likely get decisions from the Sixth Circuit and SCOTUS before tomorrow's scheduled 10am execution.  Right now I am inclined to predict that Ohio will soon be joining Texas and Oklahoma as the only states to execute anyone in 2007.

UPDATE: ODPI now reports here that the Sixth Circuit has refused Filliagi's request for a stay.

April 23, 2007 in Death Penalty Reforms | Permalink | Comments (20) | TrackBack

Some reasons why victims' rights can and should be progressive

Ncvrw07banner120x240I was disappointed to see that Barry Boss in this Washington Post commentary and Jeralyn in this post at TalkLeft have celebrated the start of National Crime Victims' Rights Week (details here) by reinforcing the old trope that there is a zero-sum game between the interests/rights of crime victims and the interests/rights of criminal defendants. 

The reality of victims' rights and interests are much too varied and nuanced to assume that giving more rights to victims will be detrimental to the interests of criminal defendants.  In fact, there are lots of reasons why those generally concerned about harsh and oppressive criminal justice systems (and especially harsh and oppressive sentencing systems) ought to embrace and extol victims' rights  Let me explain with some particulars:

1.  Some minor crimes that can often lead to unduly long sentences do not have obvious victims (e.g., minor drug, gun, and obscenity possession charges, underage consensual sex).  Greater emphasis on the rights and interests of real crime victims could and likely would lead to less emphasis on unduly harsh prison terms for minor crimes without obvious victims (like Morton Berger's 200 years for downloading child porn in Arizona or Genarlow Wilson's 10 years for consensual oral sex in Georgia).

2.  Many crime victims seek punishments and remedies that are much less harsh than sought by the state.  Victims of economic crimes often would rather have defendants out working and paying restitution rather than rotting in a prison cell.  Also, as noted in stories discussed here and here, some crime victims will actually make formal and public pleas for leniency (though prosecutors will rarely give voice to these victims).

3.  Victims' interests seem to be at the very center of the restorative justice movement, which seem to me to be a pretty progressive (though perhaps unduly optimistic) effort to reform modern criminal justice realities.

Some recent related posts:

April 23, 2007 in Who Sentences | Permalink | Comments (15) | TrackBack

Interesting Eighth Circuit en banc ruling on enforcing a plea agreement

The Eighth Circuit today has produced an interesting set of opinions concerning when a defendant can enforce a plea agreement.  The en banc opinions in US v. Norris, No. 04-2074 (8th Cir. Apr. 23, 2007) (available here) say a lot about the often under-explored underbelly of plea agreements.  Here is the conclusion of the plurality opinion of the court:

We hold that a defendant generally has no right to specific performance of a plea agreement where the Government withdraws from the agreement before the defendant's associated guilty plea is accepted by the district court.  We recognize exceptions to the general rule to the extent that the plea agreement specifically contemplates pre-plea performance or if the defendant shows that the Government has taken unfair advantage of its withdrawal from the agreement.  Because Norris meets neither exception, we vacate the district court's order granting Norris's motion for specific performance of the plea agreement and dismissing the superseding indictment.  We remand for further proceedings consistent with this judgment.

April 23, 2007 in Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

ABA releases Tennessee capital moratorium report

Thanks to ODPI and this local news article, I see that the American Bar Association's Death Penalty Moratorium Implementation Project has released this massive report on Tennessee's capital punishment system. The report runs 400+ pages its 39-page executive summary can be accessed at this link. According to the newspaper account, the ABA report stresses that there are "[t]oo many blacks on death row, bad lawyers representing the accused, and good ones faltering under the demands of heavy caseloads" in Tennessee.

Some prior posts (and concerns) about the ABA's moratorium project:

April 23, 2007 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Like comedy, sentencing is all about timing

This week's installment of Adam Liptak's "Sidebar" column in the New York Times spotlights differing sentencing outcomes for certain enemies.  Here are excerpts:

At the time, a year after the Sept. 11 attacks, it looked like John Walker Lindh had made a pretty good deal.

Mr. Lindh, a 21-year-old from Marin County, Calif., who had served as a Taliban soldier in Afghanistan, faced charges that could have sent him to prison for the rest of his life. In a plea deal, though, the government dropped its most serious accusations ... [and he] was sentenced to 20 years....

Times change.  Passions cool.  Other cases offer telling contrasts.  And Mr. Lindh now has a powerful and understandable case of buyer's remorse.  "He was a victim of a hysterical atmosphere post-9/11," Frank R. Lindh said about his son....

[T]wo men accused of quite similar conduct [Yaser Hamdi and David Hicks] managed to make much better deals.  They had the good fortune, it turned out, to be held by the military rather than by civilian authorities, and they probably also benefited from the fact that the memory of the Sept. 11 attacks had receded a little by the time they sat down to negotiate....

April 23, 2007 in Offense Characteristics | Permalink | Comments (16) | TrackBack

April 22, 2007

Good guidelines in the works from the USSC

I am pleased to be able to report some positive sentencing developments in the works at the US Sentencing Commission.  Though you cannot tell from the USSC's official webpage, FAMM has the news here about the USSC's new "Compassionate release" guideline amendment.  Here is a portion of the FAMM report:

On April 18, the United States Sentencing Commission voted unanimously to approve a new policy statement to instruct judges considering whether to reduce a prisoner's sentence for extraordinary and compelling reasons, also sometimes know as "compassionate release" motions. This proposed guideline amendment would substantially expand the grounds for reduction of sentence under 18 USC § 3582(c)(1)(A)(i).

The proposed guideline amendment is a victory for advocates.  For a number of years, FAMM and other organizations have urged the United States Sentencing Commission to adopt a policy statement on “compassionate release” motions that recognizes conditions other than the disabling illness or imminent death of the prisoner.  FAMM, the National Association of Criminal Defense Lawyers (NACDL), the Practitioner's Advisory Group, the Federal Public Defenders and other organizations most recently endorsed the American Bar Association's recommendations, which the U.S. Sentencing Commission also recognized when announcing the proposed amendment.

A helpful reader has also told me that the USSC has some significant tweaks to the criminal history guidelines geared up for this amendment cycle. 

All of these positive USSC developments should be official by the end of this month, because the USSC has to submit proposed guideline amendments to Congress by May 1.  Back when the guidelines were mandatory, new guideline amendments did not become effective until November 1 after Congress has 180 days to consider whether to reject the amendments via legislation.  After Booker, advocates might sensibly urge sentencing judges to follow the USSC's latest amendment advice even while they are officially pending before Congress.   

April 22, 2007 in Who Sentences | Permalink | Comments (2) | TrackBack