Sentencing Law and Policy

Looking over the defense as Vick considers his moves

The Atlanta Journal-Constitution has this effective recent article spotlighting how the realities of federal sentencing might be impacting how Michael Vick and his legal team respond to his recent indictment on dog fighting charges (basics here).  The article is entitled "Vick facing tricky legal options: Striking a deal or going to trial?  Both have risks," and here is a snippet:

In federal court, sentencing guidelines greatly influence how severe — or lenient — the ultimate punishment will be.  They allow a sentence to be enhanced, for example, if a defendant takes the witness stand, denies the allegations and is then convicted.  But the guidelines also favor defendants who accept responsibility for their actions as quickly as possible and who agree to cooperate by testifying against co-defendants or assisting in a broader investigation.

Criminal defense attorneys who have examined the 18-page indictment — which is chock-full of details about fights, bets and dogs, including their names and gender — said they suspect Vick's lawyer, Lawrence Woodward, is already exploring those options.  They also suggest lawyers for Vick's three co-defendants could be weighing them as well.  A well-worn adage in criminal defense is that the first person to the courthouse door often gets the best deal.

If you are craving capital coverage...

while I am distracted with lots of other work and non-work matters, be sure to check out all the new posts and links and other items at:

• Capital Defense Weekly
• Crime and Consequences
• Death Penalty Information Center
• Ohio Death Penalty Information
• StandDown Texas Project

Also, Corrections Sentencing has a whole bunch of great new posts on a bunch of other topics.

Third Circuit expounds on crack sentencing after Booker

Last year, as noted here, the Third Circuit in Gunter held that "district courts may consider the crack/powder cocaine differential in the Guidelines as a factor, but not a mandate, in the post-Booker sentencing process."  The exact meaning and reach of Gunter was not perfectly clear, and today in US v. Ricks, No. 05-4832 (3d Cir. July 20, 2006) (available here), the Third Circuit seeks to clarify matters.  These concluding thoughts from the Ricks panel provide the decision's highlights:

The District Court understandably wanted to apply a fairer drug quantity ratio than the current Guidelines allow, and it logically looked to the recommendations of the Sentencing Commission for guidance in doing so. Indeed, as a matter of policy, we agree with the District Court that a 100-to-1 ratio leads to unjust sentences, and we encourage Congress to revisit the issue and heed the recommendations of the Commission.  Meaningful consideration of the § 3553(a) factors, however, does not permit trial courts to categorically reject a provision of the Guidelines that Congress has endorsed.

We conclude that when a district court imposes a below- Guidelines sentence for a crime involving crack, the record must demonstrate that the court focused on individual, case-specific factors.  Because courts may not replace the 100-to-1 ratio with one of their choosing, we will vacate the sentences of Michael and Marc Ricks and remand to the District Court for resentencing in accordance with this opinion.

As the Ricks panel notes in a footnote, this issue we be addressed by the Supreme Court in Kimbrough this coming Term.

Report on Genarlow Wilson argument in Georgia

The AP has this article providing the basics of today's argument before the Georgia Supreme Court in the Genarlow Wilson case.  Here are a few snippets:

Attorney General Thurbert Baker argues that the order to free Wilson, if upheld, could be used to help free some 1,300 child molesters from Georgia prison.  "We urge you to look beyond the confines of this case," Senior Assistant Attorney General Paula Smith told the court's seven justices Friday.

Wilson's lawyer, B.J. Bernstein, said that Wilson's decade-long mandatory sentence violated the constitutional ban on cruel and unusual punishment.  "Every day that a defendant spends in jail is a precious day in their life," Bernstein said.

The justices seemed to be wrestling with how to provide Wilson relief under the law. "We have a responsibility to enforce the law," Justice Robert Benham asked.  "Should we do that at the expense of fairness?"

How Appealing has more coverage of the argument at this link.

Will former border agents Ramos and Compean get a commutation?

Following up on this week's Senate Judiciary Committee hearing examining the prosecution and sentencing of former border agents Ignacio Ramos and Jose Compean (basics here), this Dallas Morning News article reviews the mounting calls for sentencing justice in the case.  Here is a snippet:

Senators John Cornyn, R-Texas, and Dianne Feinstein, D-Calif., asked Mr. Bush to commute the 11- and 12-year sentences of agents Ignacio Ramos and Jose Compean in a case that has become a flash point for groups campaigning against illegal immigration.  So far, the White House won't say whether the agents can expect mercy of the sort Mr. Bush recently granted to former vice presidential aide Lewis "Scooter" Libby.

"This penalty levied on these agents is excessive and ... they deserve the immediate exercise of your executive clemency powers," the senators wrote Mr. Bush, one day after Ms. Feinstein chaired a hearing at which senators grilled the Bush-appointed West Texas prosecutor who handled the case. "We believe that this is a case of prosecutorial overreaching, and to allow Agents Ramos and Compean to serve over a decade in prison would represent a serious miscarriage of justice."

The full text of the letter that the Senators sent to the President can be found within this official press release.

Some prior posts about the Border Agents case:

• Bipartisan call for commuting border agent sentences
• Reports on Senate hearing on Border Agent case
• The furor over border agents' long sentences
• Equal justice or just the realities of ratting out?
• Using the border agent case as a catalyst for federal sentencing reform
• Harsh border agent sentences producing half-truths

Seventh Circuit affirms 30-year sentence for duck hunting

The title of this post is a misleading description of the Seventh Circuit's sentencing work today US v. Vitrano, No. 06-1512 (7th Cir. July 19, 2007) (available here), but the reality is not that far off. 

As the court explained, "Thomas Vitrano pleaded guilty to one count of possessing a firearm as a felon and one count of possessing a firearm while subject to a domestic abuse injunction [based on possession of] a Remington 870 shotgun that Vitrano had taken with him to go duck hunting."   But, after Vitriano was ultimately classified as a career offender, the government presented evidence at sentencing that "he sent multiple functioning pipe bombs disguised as a birthday present to his former girlfriend's house." 

Based on that evidence, plus other evidence of uncharged violent behavior, the district judge imposed an above-guideline sentence of 30 years' imprisonment.  Over various challenges, the Seventh Circuit today affirms that sentence.

Claearing up Cunningham consequences in California

The California Supreme Court today has handed down two opinions to address an array of state sentencing issues following in the wake of the Supreme Court's Cunningham decision applying Blakely to California's sentencing scheme.  The rulings come in People v. Black, No. S126182A (Cal. July 19, 2007) (available here) and People v. Sandoval, No. S148917 (Cal. July 19, 2007) (available here).

A very quick pre-lunch scan of these decisions suggest that prosecutors will be much more pleased than defendants with these rulings.  I hope California practitioners might help me identify if there is anything especially consequential or noteworthy in these decisions.

UPDATE:  The San Francisco Chronicle has this article providing an effective review of these rulings.  Here is a snippet:

Hundreds of California prisoners who had hoped to win reductions in their sentences after the U.S. Supreme Court ruled the state's sentencing law unconstitutional were rebuffed today by the state's highest court.... Today's rulings involved two prisoners sentenced before March 30 and will affect hundreds of similar cases around the state. In virtually all the cases, the standards set by the court will allow judges to reaffirm upper-term sentences....

[One defendant's] lawyer, Eileen Kotler, said the rulings effectively negated the U.S. Supreme Court's recent decision. She plans to appeal.  State Attorney General Jerry Brown, whose office defended the sentences in both cases, said the rulings appeared to have spared judges from a deluge of new sentencing hearings. But he said the cases also highlight the fact that the fixed-term sentencing law -- which he signed as governor -- is broken and needs major reforms.

Assessing the links between consuming child porn and molesting

This New York Times article discusses a not-yet-published reports about research linking the comsumption of child porn to sexual molestation.  Here is how the piece begins:

Experts have often wondered what proportion of men who download explicit sexual images of children also molest them.  A new government study of convicted Internet offenders suggests that the number may be startlingly high: 85 percent of the offenders said they had committed acts of sexual abuse against minors, from inappropriate touching to rape.

The study, which has not yet been published, is stirring a vehement debate among psychologists, law enforcement officers and prison officials, who cannot agree on how the findings should be presented or interpreted.  The research, carried out by psychologists at the Federal Bureau of Prisons, is the first in-depth survey of such online offenders' sexual behavior done by prison therapists who were actively performing treatment. Its findings have circulated privately among experts, who say they could have enormous implications for public safety and law enforcement.

Traffic in online child pornography has exploded in recent years, and the new study, some experts say, should be made public as soon as possible, to identify men who claim to be "just looking at pictures" but could, in fact, be predators.  Yet others say that the results, while significant, risk tarring some men unfairly. The findings, based on offenders serving prison time who volunteered for the study, do not necessarily apply to the large and diverse group of adults who have at some point downloaded child pornography, and whose behavior is far too variable to be captured by a single survey.

Adding to the controversy, the prison bureau in April ordered the paper withdrawn from a peer-reviewed academic journal where it had been accepted for publication, apparently concerned that the results might be misinterpreted.  A spokeswoman for the bureau said the agency was reviewing a study of child pornography offenders but declined to comment further.

Excellent commentary on this Times article can be found at Crime & Consequences and at Sex Crimes.

New report assailing various tough-on-gangs efforts

According to this New York Times editorial, a new report by the Justice Policy Institute "shows that police dragnets that criminalize whole communities and land large numbers of nonviolent children in jail don't reduce gang involvement or gang violence."  The report, which TalkLeft also discusses here, is entitled "Gang Wars: The Failure of Enforcement Tactics and the Need for Effective Public Safety Strategies," and can be accessed at this link.

JPI has this press release about this new report, and here are snippet:

A groundbreaking new report released today by the Justice Policy Institute argues that the billions of dollars spent on traditional gang suppression activities have failed to promote public safety and are often counterproductive. The report is released as lawmakers consider legislation to stiffen penalties for gang-related crime and increase funding for gang suppression.

Gang Wars: The Failure of Enforcement Tactics and the Need for Effective Public Safety Strategies, written by Judith Greene and Kevin Pranis, undertakes an extensive review of the research literature on gangs to clarify persistent misconceptions and examine the effectiveness of common gang control strategies.  According to the report, in cities like Los Angeles where gang activity is most prevalent, more police, more prisons and more punitive measures haven’t stopped the cycle of gang violence. Most surprising are conclusions that gangs are responsible for a relatively small share of crime; gang activity has not grown in the U.S.; whites make up a large — if largely invisible — proportion of gang members; most gang-involved youth quit before reaching adulthood; and heavy-handed suppression tactics can increase gang cohesion while failing to reduce violence.

Sixth Circuit thoughtfully discusses due sentencing process

The Sixth Circuit today issued a thoughtful opinion in US v. Hamad, No. 05-4193 (6th Cir. July 19, 2007) (available here), a fascinating little case in which I had the honor be being appointed as an amicus to share my views.  Here are highlights about the case and the ruling by Judge Jeffrey Sutton:

What happens when a district court, applying the advisory sentencing guidelines, not only increases a sentence based on its own fact findings but also does so on the basis of evidence never fully disclosed to the criminal defendant? One reading of Rule 32 of the Federal Rules of Criminal Procedure would authorize this procedure; another would not. Because the escalation of a sentence based on undisclosed evidence raises serious due process concerns, we construe the rule to require a sentencing court either to disclose sufficient details about the evidence to give the defendant a reasonable opportunity to respond or, failing that, to refrain from relying on the evidence....

While many of the protections, constitutional or otherwise, that guard a criminal defendant’s procedural rights at trial have not historically applied at sentencing or to this type of case, that does not end the inquiry.  Most of these decisions applied to a different sentencing regime from the one we consider today.  Today, district courts face an elaborate set of sentencing guidelines under which a district court must compute a recommended guidelines range and consider, if not necessarily follow, that recommendation — and relief from those sentences through parole is the exception, not the rule.  Then, district courts sentenced individuals under an utterly indeterminate sentencing regime and were not required to make fact-based sentencing computations in determining a sentence — and relief from those sentences through parole was the rule, not the exception.  Under today’s system, it remains unclear whether the Constitution gives sentencing courts a free hand to rely on undisclosed — or, to be more dramatic, secret — accusations that increase an individual’s sentence.

The upshot is this: while a defendant may not have the constitutional right to confront the witnesses against him at sentencing, it remains unclear under modern sentencing practices what due process right he has to know who these witnesses are and what they have said, to respond meaningfully to the accusations or otherwise to ensure that the accusations are accurate.

UPDATE:  Since this opinion is out, I now feel comfortable posting the amicus brief I filed in this case.  It can be downloaded below, and readers will see that my take on these interesting procedural issues ended up being in line with the Sixth Circuit's ultimate ruling.

Download final_form_hamad_brief_for_sixth_circuit_37.DOC

More discussion of acquitted conduct in Black case

Today's scheduled bail hearing for Conrad Black's following his convictions for fraud and obstruction (basics here) continues to bring attention to federal sentencing realities.  This new article is focused particularly on acquitted conduct issues:

Dethroned press lord and convicted criminal Conrad Black will learn at his bail hearing Thursday afternoon in Chicago federal court whether he will be allowed to remain at liberty until his November 30 sentencing. But he and his attorneys already know prosecutors will try to convince U.S. District Judge Amy J. St. Eve to give him a long prison stretch based not only on the four guilty verdicts they won -- but also the nine acquittals.  It's called "acquitted conduct sentencing enhancement," and has become a favorite legal tool of prosecutors for the past decade.

Some related posts:

• Acquitted conduct getting Black attention
• Federal sentencing's Black magic
• Another high-profile case for acquitted conduct sentencing enhancement
• A high-profile appeal on acquitted conduct sentencing
• A terrific district court opinion on acquitted conduct
• Eleventh Circuit blesses acquitted conduct enhancement
• Sincere questions about acquitted conduct sentencing

Thoughtful thoughts on Rita and reasonable doubt

Over at the Ninth Circuit Blog, Steve Sady has this interesting post about reasonable doubt and Rita.  Here is a taste:

One of the most interesting aspects of Rita was the seemingly conscious limitation of the reasoning to Booker’s Sixth Amendment holding.  This limitation leaves completely open the critical distinction between Sixth and Fifth Amendment jurisprudence: the reasonable doubt standard is simply more important than the identity of the finder of fact.  We know this from retroactivity doctrine, which requires retroactive application of new constitutional rules related to reasonable doubt but not to jury trial; from the sanctity of the form of the rights, which prevents dilution of the reasonable doubt standard, while permitting non-unanimous and fewer than twelve member juries; and the language used in characterizing the rights, which finds juries basic to Anglo-American jurisprudence, while the reasonable doubt is standard is of “transcending value.” The key throughout is our society’s dedication to a very high standard of reliability before a fact can justify additional punishment.

The Sentencing Project's new report on prison disparities

As first previewed in this post and as detailed here, the Sentencing Project has a new report providing "a regional examination of the racial and ethnic dynamics of incarceration," which "finds broad variations in racial disparity among the 50 states."  The report is entitled "Uneven Justice: State Rates of Incarceration by Race and Ethnicity" and is available at this link. 

Among other interesting findings, these highlights from the report may surprise a few folks:

• African Americans are incarcerated at nearly six (5.6) times the rate of whites

• Hispanics are incarcerated at nearly double (1.8) the rate of whites

• States exhibit substantial variation in the ratio of black-to-white incarceration, ranging from a high of 13.6-to-1 in Iowa to a low of 1.9-to-1 in Hawaii

• States with the highest black-to-white ratio are disproportionately located in the Northeast and Midwest, including the leading states of Iowa, Vermont, New Jersey, Connecticut, and Wisconsin. This geographic concentration is true as well for the Hispanic-to-white ratio, with the most disproportionate states being Massachusetts, Pennsylvania, New York, New Hampshire, and New Jersey.

Bipartisan call for commuting border agent sentences

Especially in these partisan times, it is encouraging to see bipartisanship on any issue.  And, as detailed in this Lou Dobbs commentary, the extreme sentences for former border agents Ignacio Ramos and Jose Compean has brought leading Senators from both sides of the aisle together:

There was an unusual spectacle in the nation's capital Tuesday, downright rare, in fact: U.S. Senators seeking truth, and justice, and taking action.  And they deserve great credit and thanks. The Senate Judiciary Committee hearing, led by Dianne Feinstein, focused on the reasons for the prosecution of two Border Patrol agents now serving long sentences in federal prison.  Border Patrol Agents Ignacio Ramos and Jose Compean were given terms of 11 and 12 years respectively on their convictions for shooting an illegal alien drug smuggler. Senator Feinstein, and Senators Jeff Sessions, John Cornyn, Jon Kyl and Tom Coburn demanded answers of U.S. Attorney Johnny Sutton, who chose to prosecute Compean and Ramos and give that illegal alien drug smuggler blanket immunity to testify against the men....

Senator Feinstein and Senator Cornyn announced Tuesday night on our broadcast that they have decided to request that President Bush commute the sentences of Ramos and Compean.

Some prior posts about the Border Agents case:

• Reports on Senate hearing on Border Agent case
• The furor over border agents' long sentences
• Equal justice or just the realities of ratting out?
• Using the border agent case as a catalyst for federal sentencing reform
• Harsh border agent sentences producing half-truths

Examining the disconcerting realities of racial disparities

Today's Des Moines Register has this lead article examining racial disparities in prison populations. The article is entitled, "Black-white prisoner ratio highest in U.S: How can Iowa change this? Study urges sentencing reform, better defense for indigents; some Iowans urge bolder steps."  Here are snippets:

A national study released today ranks Iowa No. 1 in the nation in the ratio of blacks to whites in prison — a statistic that many advocates say underscores a failure to address one of the state's most serious problems.  The study by the Washington, D.C.-based Sentencing Project found Iowa incarcerates blacks at a rate 13.6 times that for whites — more than double the national average.

Across the country, blacks are imprisoned at nearly six times the rate for whites. Latinos are imprisoned at nearly double the rate for whites nationally.  The study by the criminal justice advocacy and research group recommended several remedies for all states, including drug sentencing reform, more judicial discretion in sentencing and better standards for indigent defense.

But black leaders say Iowa — which has been among the national leaders in the incarceration of black men for years — needs to make much more comprehensive changes. Reps. Ako Abdul-Samad and Wayne Ford, two of the state's four black lawmakers, called for all Iowans to work together on the issue and for the Legislature to make the disproportion a top priority in 2008.

Some related posts:

• Should criminal justice reform be the new civil rights movement?
• Will sentencing issues surface in the Clinton-Obama battle for black votes?
• Honoring MLK by asking hard questions
• The latest BJS stats on incarceration nation
• Extended discussion of race and justice among Democratic hopefuls

Who knows what guidelines apply to dog fighting?

As explained in this CNN story, Michael Vick should make sure his lawyers are up to speed on federal sentencing following his indictment by "a federal grand jury in Richmond, Virginia, on a conspiracy count alleging [Vick and three others] bought and sponsored dogs in an animal fighting venture and traveled across state lines to participate in illegal activity, including gambling." 

This official press release about the indictment has this to say about sentencing possibilities if Vick is convicted of all the charges:

If convicted on the Travel Act portion of the conspiracy charge, each defendant faces a statutory maximum of five years in prison, a $250,000 fine, and full restitution.  If convicted on the animal fighting venture portion of the conspiracy charge, each defendant faces one year in prison, a $100,000 fine, or both.  The indictment also includes a forfeiture allegation seeking recovery of any property constituting, or derived from, proceeds obtained directly or indirectly as a result of these offenses.

Reports on Senate hearing on Border Agent case

Reports from the Houston Chronicle, from the AP, from The Hill and from The Corner at NRO provide some highlights from Tuesday's Senate Judiciary Committee hearing examining the prosecution and sentencing of former border agents Ignacio Ramos and Jose Compean.  Also available at this official site are links to the witnesses' written testimony and an archived webcast of the hearing.

Some prior posts about the Border Agents case:

• The furor over border agents' long sentences
• Equal justice or just the realities of ratting out?
• Using the border agent case as a catalyst for federal sentencing reform
• Harsh border agent sentences producing half-truths

Thoughtful end(?) to a short sentencing story

Thanks to How Appealing, I see that the Nebraska Court of Appeals has upheld the probation sentence in a sex offense case which had garnered much attention because the trial judge mentioned the defendant's small stature to support her sentencing decision.  The AP provides this report on the state appellate ruling, which is available at this link.  Here is the main opinion's concluding paragraphs:

The PSI that was in the hands of the district judge before imposition of these sentences contains abundant and logical justification for ordering probation — the terms of which are strict and demanding — rather than incarceration.  After our review of the crimes, the sentences, and the information in the PSI, we have no hesitancy in saying that the sentences are not an abuse of discretion and, therefore, are not excessively lenient.

We have taken great care for a specific reason to detail information in the PSI, which information has not been, and would not otherwise be, available to the public and media.  Our reason for doing so is to illustrate that if the sentencing judge went awry in this case, it was only in failing to provide a more detailed explanation on the record of the multiple factors in the PSI which clearly justified the probationary sentences she imposed.  Such failure caused the trial judge's brief mention of Thompson's small physical stature to become the focus of attention, when in reality it was but a minor point. Of far greater consequence is the fact that the examination by a clinical psychologist and the results of the SAI all strongly indicate that Thompson is neither a pedophile nor a sexual predator, but, rather, that his crimes stemmed from poor judgment and a lack of impulse control.  Of equal importance is the fact that the probation officer recommended the sentences imposed by the trial judge. By saying this, we by no means minimize the seriousness of the crimes or the pain and damage which Thompson has inflicted upon his victim.  Nonetheless, the PSI reveals that he is unlikely to reoffend — and the terms of his probationary program are strictly structured to ensure that this does not happen — and he was told in no uncertain terms that he would be treated harshly if he fails probation.

Because the trial judge did not abuse her discretion in sentencing Thompson, we affirm.

I am hopeful that the appellate court's thoughtful ruling will bring an end to this widely noted case, though I suppose the state could seek an appeal to the Nebraska Supreme Court.

Some related posts:

• Short people got no prison
• The full lyrics to Short People Got No Prison

One prisoner's reaction to Bush's commutation of Libby's prison term

I recently received an e-mail and letter entitled "Page from a Prison Diary," which set forth one prisoner's reaction to President Bush's decision to commute entirely Scooter Libby's prison term.  The text of this "diary entry" is set forth below (and is reprinted here with the author's permission):

PAGE FROM A PRISON DIARY

July 4, 2007

The decision of King George the Dubyah to "fix" the 30 month sentence of his good friend Scooter Libby just came down. It must be nice to have such forgiving padres in high places.  Justice for just us! Too bad us commoners must actually abide by the law, no matter how strict, repressive and draconian.  Our cases were found to be "reasonable" recently by all 12 Circuit Court of Appeals in the country specifically because each of our respective judges adhered to the U.S. Sentencing Guidelines, which were also used to sentence Mr. Libby. Every federal court in the land has held that any sentence meted out according to the Guidelines can't be "excessive" by virtue of the fact that it does conform to Congressional legislation via the Guidelines.

Most people in prison feel like Libby got a raw deal, which is normal when you deal with the feds.  Almost every person that deals with the feds gets shafted in one way or another.  It's just what the feds do.  Prior to coming to prison 30 months would have been unthinkable, now I eat lunch with guys who have been given 30 years or more on little more than the word of a jailhouse snitch, to save his own ass and a "Nifonged" prosecutor.  Our system will devour you if you have little or no money.  Our Criminal Justice "system" is truly "criminal" in every sense of the word.  Why worry about the law when Dubyah says, "Don't do the time if you a friend a mine!" "All animals are equal, some are just more equal than others" is a fitting testament to our biased system of judicial mine fields, fine tuned for maximum harm (to some).

America is a great country but do we really want to lead the rest of the entire planet in locking up millions of our citizens, many times with questionable suspect charges and slanted courts? A similar thing happened many years ago in ancient Rome when Tacitus wrote in his diary, "Rome (and the U.S.) shall suffer now from its laws as it hither to forth suffered from its vices."

Regards form the other side,

Fifth Circuit panel spars over state of "prior conviction" exception

Anyone still interested in the "prior conviction" exception in the tangled web of Apprendi doctrine should be sure to check out a Fifth Circuit panel's ruling today in US v. Pineda-Arrellano, No. 06-41156 (5th Cir. July 17, 2007) (available here). 

Writing for the majority, Judge Edith Jones asserts that "a majority of the Supreme Court has reaffirmed [the prior conviction exception of] Almendarez-Torres in James v. United States, 127 S. Ct. 1586 (2007)," and that "few issues have less merit for a defendant than the potential overruling of Almendarez-Torres — and defense counsel are well aware of this."  Judge Jones further asserts for the Fifth Circuit that questioning the validity of Almendarez-Torres "no longer serves as a legitimate basis for appeal" and she concludes with these sentiments:

In the future, barring new developments in Supreme Court jurisprudence, arguments seeking reconsideration of Almendarez-Torres will be viewed with skepticism, much like arguments challenging the constitutionality of the federal income tax. It would be prudent for appellants and their counsel not to damage their credibility with this court by asserting non-debatable arguments.

Writing a lengthy separate concurrence, Judge James Dennis takes issue with the majority's attempt to drive a stake through defense efforts to raise prior conviction Apprendi claims.  Here is how the dissent begins:

I concur only in the majority's holding that this court is bound by the Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), and that Mr. Pineda's conviction and sentence are affirmed.  I emphatically do not join the majority's various statements regarding the continued validity of Almendarez-Torres, including especially its assertion that "this issue no longer serves as a legitimate basis for appeal."  The majority's language amounts only to a dictum that exceeds the authority of this court and conflicts with decisions of the Supreme Court.

Sentencing issues slowing the pace of federal justice in NYC

New York Newsday has this interesting piece explaining why "[j]ustice may be certain but it isn't swift in New York City's federal courts."  Here are snippets that highlight the impact of sentencing realities:

A flood of informants — particularly those involved in the mob — as well as death penalty and complex fraud indictments have contributed to a sharp increase in the length of time it takes to complete federal cases, according to judges and legal experts.  Adding to the delays have been new federal legislation making pretrial discovery more lengthy and U.S. Supreme Court rulings about the controversial federal sentencing guidelines, the experts said....

The special dynamics of federal death penalty cases, including rigorous jury selection and pretrial investigation, are believed to be contributing to Brooklyn's increase in case-processing time.  So far this calendar year, there have been four death penalty trials, with four others looming.  "Do I think it [the death penalty] affects the time?  Yeah, no question about it," said Chief Judge Raymond Dearie, who is the administrative judge for Brooklyn federal court. "Sometimes you don't get around to setting a trial date for two or three years."

Acquitted conduct getting Black attention

This article in Canada's National Post provides an effective review of the reality that Conrad Black's acquittal on most charges may not prevent sentence enhancement when the CEO is sentenced for fraud and obstruction (basics here).  Here are the basics:

Conrad Black may get a significantly increased sentence because of his actions stemming from charges he was actually acquitted of, experts said yesterday.  The legal concept known as "acquitted conduct sentencing enhancement" has been used by prosecutors across the United States since it was approved by the Supreme Court in 1997.

Of course, sentencing gurus know that acquitted conduct enhancements have been around long before they were blessed by the Supreme Court in Watts in 1997.

Some related posts:

• Federal sentencing's Black magic
• Another high-profile case for acquitted conduct sentencing enhancement
• A high-profile appeal on acquitted conduct sentencing
• A terrific district court opinion on acquitted conduct
• Eleventh Circuit blesses acquitted conduct enhancement
• Sincere questions about acquitted conduct sentencing

Stay given to Georgia death row inmate asserting innocence

As detailed in official documents here and here, Georgia's Board of Pardons and Paroles responded to a clemency request from the attorneys representing condemned inmate Troy Anthony Davis by voting "to grant a stay not to exceed 90 days."  This AP report provides more basic details.

Related post:

• "Will Georgia Kill an Innocent Man?"

Ninth Circuit limits application of firearms enhancment

In a case that mentions Rambo and quotes from 12 Angry Men, a Ninth Circuit panel today in US v. Jimison, No. 06-30417 (9th Cir. July 16, 2007) (available here), limits the reach of a firearms enhancement under the federal sentencing guidelines.  Perhaps the fact that Hollywood is within the circuit helps account for the cinematic qualities of the decision in Jimison.

Rita makes a Libby motion of sorts in seeking SCOTUS reconsideration

Lyle Denniston reports here at SCOTUSblog that Victor Rita's lawyer "relying on President Bush's clemency ruling in the CIA leak case, urged the Supreme Court on Monday to reconsider its June 21 ruling upholding the 33-month prison sentence" for his client.  There's more:

Going even further, Assistant Federal Public Defender Thomas N. Cochran of Greensboro urged the Court to reconsider its 2005 decision in U.S. v. Booker that salvaged the federal Sentencing Guidelines by making them advisory, not mandatory. (The text of the petition, with attachments, can be found here.)

The President's explanation for nullifying the 30-month prison sentence of former vice presidential aide I. Lewis Libby in the leak case, the new filing argued, "directly conflicts with the federal sentencing policy espoused by the Administration and argued vehemently, indeed successfully, by the Executive's own Solicitor General in this case."

It would be, of course, very surprising for the Supreme Court to decide to reconsider Rita or Booker, but perhaps the Court will at least order the Solicitor General to respond. 

Anyone know when the Court last granted a motion for reconsideration?  Anyone know what timing rules would apply for anyone interested in filing an amicus brief in support of reconsideration?  Anyone else hoping that maybe Justice Scalia will see fit to write an opinion in response to this motion no matter what the Court decides to do?

A reasonable pair on reasonableness review from the Seventh Circuit

Though not making any profound new points, both US v. Bustamante, No. 03-3388 (7th Cir. July 16, 2007) (available here), and US v. Griffin, No. 05-4177 (7th Cir. July 16, 2007) (available here), discuss the basics of reasonableness review in the Seventh Circuit in the wake of Rita.

"Will Georgia Kill an Innocent Man?"

The headline of this post is the headline of this Time magazine article discussing the Troy Davis case. Georgia has scheduled Davis's execution for Tuesday as the punishment for his (now seemingly suspect) conviction of murder following the shooting of a Savannah police officer in 1989.  The Ohio Death Penalty Information blog and Capital Defense Weekly have both provided lots of effective coverage of this case, and this morning brings this front-page Washington Post article on the basic factual and legal issues.

Because I have not followed this case too closely, I am not informed enough to make assertions about whether Davis is innocent or predictions about whether Georgia will go forward with his scheduled execution tomorrow.  Readers are, of course, encouraged to share informed views in the comments.

Will "Libby motions" ever work? Will we be able to tell?

Writing in the San Francisco Chronicle, Bob Egelko has this new article entitled "Double Standard: Bush's leniency for Libby doesn't jibe with administration's push to enforce mandatory minimum sentences."  The title spotlights the article's main theme, though the piece ends by noting two cases involving so-called "Libby motions" — i.e., arguments from defense attorneys likening a defendant's circumstances to Libby's and quoting Bush's commutation message when seeking a below-guidelines sentence. 

This article's discussion of two cases involving Libby motions highlights the challenges that observers and researchers may face when trying to gauge and assess the impact of Bush's commutation on federal sentencing realities.  I doubt that many (or even any) federal judges will state on the record that that they reducing a defendant's sentence simply because President Bush reduced Libby's sentence.  And yet, even if a judge asserts that the President's sentencing break for Libby is irrelevant to the case at hand, it is certainly possible that the judge has concluded (perhaps subconsciously) that some defendants other than just Libby merit a bit more compassion in the application of federal sentencing rules.

Federal sentencing's Black magic

This article in the Toronto Star provides an effective account of some federal guideline issues that will arise in the sentencing of Conrad Black following the CEO's conviction last week of fraud and obstruction (basics here).  This excerpt highlights some unique personal particulars in the case:

Former federal prosecutors who have followed Black's case say they expect the government team to seek the stiffest penalty possible.  In the months leading up to the four-month trial, then during the proceedings, Black has often been a lawyer's nightmare.  He scorned prosecutors for pursuing a case he called a "toilet seat" around their necks.  Black called the four Jewish lawyers who formed the government's trial team "Nazis" and called the indictments against him "a smear campaign."

[Black's lawyer Edward] Genson said he didn't begrudge Black the chance to claim he was wrongfully convicted.  "I'd rather he didn't say anything but the guy has a right to defend himself," Genson said.

Last week, Black was photographed giving the finger at news media covering the trial.  "He's acting like a mob boss on trial rather than a CEO of a major corporation," former federal prosecutor Kirby Behre remarked shortly before the jury returned.  And at one point during the trial, St. Eve, who has discretion to decide Black's ultimate fate, called his lawyers into her chambers and said, "If you can't control him ... I'd be happy to do it."

Over at White Collar Crime Prof Blog, Peter Henning has this post sorting through a variety of guideline issues and coming up with a sentencing estimate that appears to be below what prosecutors seem likely to seek.

Senate hearing on Border Agent prosecutions

As detailed at this official site, the Senate Committee on the Judiciary has scheduled a "Hearing to Examine the Prosecution of Ignacio Ramos and Jose Compean" for the morning of Tuesday, July 17, 2007.  Notably, Senator Dianne Feinstein is slated to preside. 

As I have explained in many prior posts (some of which are linked below), I think the prosecution and sentencing of these former border agents  spotlight the many flaws with mandatory sentencing provisions and the severe penalties that some defendants receive largely for exercising their right to go to trial rather than pleading guilty.  I am hopeful that these sentencing issues will be a big part of the Senate hearing.

Some prior posts about the Border Agents case:

• The furor over border agents' long sentences
• Equal justice or just the realities of ratting out?
• Using the border agent case as a catalyst for federal sentencing reform
• Harsh border agent sentences producing half-truths
• A valuable (but disconcerting) perspective on the border case
• Still more buzzing about border agents' sentences
• Senator Feinstein jumps into border agent case
• Friday forum: rate the injustices
• Interesting federal focal point for pardon/clemency debate
• Giving voice to Virginia Orwig

Lots more good blogosphere reading...

in a number of new posts at Corrections Sentencing and Ohio Death Penalty Information and SCOTUSblog and Sex Crimes and White Collar Crime Prof.  More blogosphere proof that many sentencing issues are very hot this summer.

The inevitability of incarceration alternatives

My local paper, here in bellwether Columbus, Ohio, has this article that spotlights why rising prison populations make exploration of alternatives to incarceration inevitable for many states.  Here are snippets from the article:

Five years after Ohio officials linked arms to beat back a campaign to treat nonviolent drug offenders instead of incarcerating them, a prison population explosion is causing them to revisit the idea.  A bill crafted by the Ohio Department of Rehabilitation and Correction appears headed for passage this fall. It has bipartisan support from top legislative leaders as well as lawmakers on both sides of the aisle.

Among its many provisions, the bill would give judges far more latitude in sentencing nonviolent offenders to drug and alcohol treatment or to community programs instead of prison.... Prisons chief Terry Collins hopes that section and other parts of the bill will relieve growing pressure on a system 32 percent over capacity....

The week starting June 4 shows the urgency of the population problem. During that week, a record 308 inmates were added to the prison system.  Last week, there were 49,513 inmates in state institutions, slightly less than the all-time record set last month but 12.3 percent higher than just two years ago. The system is built to accommodate about 37,000.  Collins has opened unused wings and buildings in existing institutions, but short of reopening closed prisons -- which he does not intend to do -- he has few options, other than diverting new prisoners from coming in or sending more home.

Some sentencing news that's fit to print

The New York Times has these two interesting sentencing pieces worth reviewing with your morning coffee:

• Spotlighting another possible case of capital injustice, this article reviews the seemingly shaky case against Troy A. Davis who is scheduled to be executed by the state of georgia on Tuesday.

• Providing a little legal history lesson, this piece highlights that "bribery has often been thought of as a crime that could harm the state — thus worthy of extreme punishment" and reviews the "long and bloody history" of severe sanctions for bride-taking.