Sentencing Law and Policy

Learning so much while in California

Once again, I have learned so much and gained many new insights from spending a day participating in one of the Stanford Criminal Justice Center's Executive Sessions on Sentencing and Corrections.  To cap the day, I learned about a new California group, The Institute for the Advancement of Criminal Justice (IACJ), which says it "is dedicated to the improvement of public protection through criminal justice research and education for crime victims and their survivors, prosecutors, and local law enforcement."

Among interesting resources, the IACL has this new journal.  The title of the inaugural issue reveals the what seems to be the IACJ's perspective on various matters.  The title is "Debunking the Myths Attacking California’s Three Strikes Law and Demonstrating Its Effectiveness in Protecting the People of California."

Federal judge finds part of Adam Walsh Act unconstitutional

While I'm on the west coast, Corey Yung's post here beat me to reporting the news that a federal district judge in North Carolina has declared unconstitutional the sex offender civil commitment provisions of the Adam Walsh Act.   The full opinion in US v. Comstock, Case No. 5:06-HC-02195-BR (E.D.N.C. Sept. 7, 2007) (available here), by Judge Britt runs over 50 pages, but this seems to be the heart of the ruling:

Having carefully considered the arguments by all parties, the court concludes ... that the civil commitment provision of the Walsh Act is not a necessary and proper exercise of Congressional authority and that the use of a clear and convincing burden of proof violates the substantive due process rights of those subject to commitment under the statute.

I cannot help but suggest that most broad applications of substantive due process are likely not to be well received by the Fourth Circuit, but I won't make predictions about the fate of this ruling on appeal until I actually have a chance to read it.

Sixth Circuit reverses below-guideline sentence as unreasonable

The Sixth Circuit  reverses a below-guideline sentence in a child porn case today in US v. Fink, No. 06-3436 (6th Cir. Sept. 7, 2007) (available here).  Here is the panel's conclusion: "the sentence given involves an extraordinary variance — a sentence roughly one-third the length of the lower end of the Guidelines range. The absence of factors justifying such a radical variance, as well as the presence of factors which the district court did not address, lead us to conclude that the sentence imposed is unreasonable."

Another politician learning sentencing realities first-hand

As detailed in this AP article, another prominent politician is learning first-hand about how modern criminal justice systems work.  Here are some details:

Former South Carolina Treasurer Thomas Ravenel, once seen as a rising political star in the Republican Party, pleaded guilty Thursday to a federal charge of possession with intent to distribute cocaine.  Ravenel, 45, admitted during a hearing that he bought cocaine from several different people and said he used the drug sometimes as often as once a week....

Ravenel resigned a month after his June indictment.  He faces up to 20 years in prison and a $1 million fine, though his plea agreement calls for a reduced sentence because he is helping prosecutors with their investigation.  Chief U.S. District Judge Joseph F. Anderson Jr. said Thursday that Ravenel's sentence would be based on an amount of cocaine less than 100 grams, part of a plea agreement between prosecutors and Ravenel's attorneys. 

At least one former U.S. Attorney in South Carolina, Rene Josey, said that amount and Ravenel's cooperation means he could never spend one day in prison.  "Generally the more somebody cooperates, the more people they rat on, the more a judge is going to depart" from federal sentencing guidelines, said Josey, a lawyer now in private practice who served as U.S. Attorney in the 1990s. "If he doesn't get jail time, I don't think that would be unrealistic."

Ravenel will remain free on a $100,000 unsecured bond until he is sentenced in about two months.  He pleaded guilty to possessing with intent to distribute less than 500 grams of cocaine. Prosecutors have said he bought the cocaine to share with friends, not to sell....  U.S. Attorney Reggie Lloyd said Thursday that there was no evidence Ravenel had used the drug in his government office or while carrying out his duties as state treasurer.

Back-to-school musings: sentencing note topics

I'm about to get on a plane to the coast (details here), but before I go off-line for awhile, I wanted to open a post where folks can suggest possible note topics for all the bright law students interested in writing about sentencing topics.  Of course, I think just about every post I do has the seeds of a good note topics, but some of these recent posts seem to provide especially rich possibilities:

• Should Kimbrough be vacated and remanded given USSC amendments and SG concessions?
• Fascinating juve clemency development in Colorado
• Amazingly interesting case for Fed Courts law geeks (like me)
• Can the Government be forced to file a cooperation motion?
• Notable sex offender residency restriction ruling from Ohio
• Is the death penalty really the "greatest moral challenge facing lawmakers today"?

Other suggestions, dear readers?

Pick your AG wannabe

TalkLeft discusses here the list on possible Attorney General nominees being floated by the White House.   I doubt any of these folks would dramatically change federal sentencing stories, but I still wonder if any readers have particular reactions to this cast of possible AG characters:

• former Solicitor General Ted Olson
• former Attorney General Bill Barr
• former Deputy Attorney General George Terwilliger
• D.C. Circuit Court of Appeals Judge Laurence Silberman
• former Deputy Attorney General Larry Thompson
• Michael Mukasey, a former judge on the U.S.D.C. for the S.D. of New York

Amazingly interesting case for Fed Courts law geeks (like me)

Thanks to this post at SCOTUSblog, one can now access all the briefs filed in in Danforth v. Minnesota (06-8273).  Danforth is a fascinating case, to be argued before the Supreme Court on October 31, which addresses state courts' authority to apply retroactively Supreme Court criminal procedure rulings.  For lots of reasons beyond its argument date, Danforth should be spooky cool for true law geeks.

If you have a deep interest in Teague and retroactivity jurisprudence or Fed Courts and legal process issues, Danforth is surely one of the most interesting cases of the Term.  (But anyone not a true law geek may just get a headache from trying to figure out just what's really at issue in this case.)  One marker of this case's intrigue is this amicus brief from eight states filed not in support of either party.  Meanwhile, another amicus brief from another group of states backs Minnesota, and other friendly briefs from the ACLU and NACDL backs the defendant. 

The question presented in Danforth is pretty simple: "Are state courts required to use the standard announced in Teague v. Lane, 489 U.S. 288 (1989), to determine whether decisions of this Court apply retroactively in state postconviction proceedings?"  But the briefs highlight how complicated the answer could become.

Editorial spotlights the modern politics of sentencing

This morning's Detroit Free Press has this effective editorial, entitled "The politics of fear vs. sentencing reform."  Here are snippets:

After Lansing police arrested state prison parolee Matthew Macon last week as a suspect in the murders of five women, state Sen. Alan Cropsey, R-DeWitt, promptly pronounced overdue sentencing reforms dead.  Like most Republicans, however, Cropsey had already opposed sentencing reforms that would save the state a much needed $100 million by diverting some minor offenders from prison to community corrections programs. So Cropsey's remarks were as predictable as they were off point. He joins a long line of politicians who have used fear instead of reason to exploit a handful of high-profile cases to justify Michigan's unreasonably high incarceration rates.

The result has been enormous increases in prison populations and costs, with little or no effect on public safety. In Michigan today, one in three state civil service employees works for the Department of Corrections; in 1980, one in 20 did.  Michigan spends nearly $2 billion a year on Corrections -- more than it spends on higher education. It incarcerates at a rate of 40% higher than other Great Lake states, which have lower crime rates....

To be sure, reforms in Michigan's sentencing polices ought to be subject to tough questions, but exploiting a tragedy to silence a very necessary debate will bankrupt the state while doing nothing to further public safety.

Lots of new and updated resources from DPIC

As noted on its home page, the Death Penalty Information Center has recently expanded its web resources and added a variety of new pages.  Here are some of the interesting new pages I noticed:

• Death Penalty in Flux (detailing all the states in which the death penalty is on hold and noting lots of recent state legislation)

• Death Penalty for Offenses Other Than Murder (detailing all the state statutes that contain capital crimes other than those involving the murder of the victim)

• Time on Death Row (detailing the length of time inmates spend on Death Row and the implications of that time)

Can the Government be forced to file a cooperation motion?

Harlan Protass just alerted me to, and blogs here, a remarkable district court opinion United States v. Ramsey, No. 5:06-CR-226, 2007 WL 2475940 (NDNY Sept. 4, 2007).  Here is the start of his write up of an opinion I've may not get a chance to read for a little while:

In Ramsey, the court found that the government breached its cooperation agreement with Ramsey, and ordered it to comply with its obligations under that agreement.  And if that is not a sufficiently extraordinary result, the nature of the breach surely is.

Looooong split Ninth Circuit ruling in federal death penalty case

The Ninth Circuit has been able to get a lot done with kids back in school.  As revealed on this opinion page, the Circuit has issued 18 published opinions in just the last two days.  And, as How Appealing flagged here, this group has included a few interesting sentencing opinions.

Today, the Ninth Circuit produced an opinion in a federal death penalty case, US v. Mitchell, No.03-99010 (9th Cir. Sept. 5, 2007) (available here), that is so long I cannot quite tell if it is interesting.  I can tell that Judge Rymer's majority opinion runs a full 100 pages, and Judge Reinhardt's dissent runs another 30.  Kudos to anyone able to slog through this copious capital controversy and highlight in the comments anything notable going on in the Mitchell opinions.

Stanford event on "Mandatory Minimums and the Crack/Powder Sentencing Disparity"

Later this week, I am heading out to California because I have the honor of participating in another of the Stanford Criminal Justice Center's Executive Sessions on Sentencing and Corrections.  Unfortunately, my teaching schedule prevents me from getting out to Stanford Law School in time for this exciting event scheduled for tomorrow afternoon:

"Mandatory Minimums and the Crack/Powder Sentencing Disparity"

Featuring The Honorable Paul G. Cassell and The Honorable William K. Sessions III

In 1986, Congress enacted the Anti-Drug Abuse Act, instituting mandatory penalties for crack cocaine offenses that have been characterized as the harshest in history.  The law established drastically different penalty structures for crack and powder cocaine offenses, based on the understanding that crack cocaine was more dangerous than powder cocaine and posed a greater threat to public safety.  This is what has come to be known as the 100-to-1 sentencing disparity.  The law's effect on the disproportionate number of African Americans in United States prisons is staggering. While drug use rates are similar among all racial groups, African American drug offenders have a twenty percent greater likelihood of receiving a prison sentence than their white counterparts and African Americans now serve virtually as much time in prison for drug offenses as whites serve for violent offenses.

This year the United States Sentencing Commission took action by amending the federal sentencing guidelines to lower guideline sentences for crack cocaine offenses.  However, the Commission does not have the authority to repeal the mandatory minimum penalties for crack cocaine sentences. There are currently six bills before the United States Congress addressing this issue and the Sentencing Commission recommended in May of 2007 that Congress take action this year to remedy this gross disparity.  In addition, the U.S. Supreme Court accepted certiorari in the case of Kimbrough v. United States, a crack cocaine possession case in which a federal judge imposed a below-guidelines sentence, stating that the sentence called for under the guidelines was higher than necessary to do justice in this case.

Registration is free at this link.

Eighth Circuit almost upholds below guideline sentence

The Eighth Circuit provides an interesting discussion of variances today in US v. Chettiar, No. 06-3432 (8th Cir. Sept. 5, 2007) (available here).  (Also interesting is the defendant's full name: Nagappan Mylappan Chettiar.)  The panel in Chettiar ultimately rejects the Government's various arguments against the imposition of a below-guideline sentence, but ultimately vacates and remands for resentencing because it found "it impossible given the present record to conduct a meaningful review of whether the district court gave significant weight to any improper or irrelevant factor."

More on residency restrictions in Ohio

Following up this developing story, my local Columbus Dispatch has this new article discussing sex offender residency restrictions in Ohio.  The article, entitled "Two cities differ on sex-offender laws," starts this way:

About the same time last night that Canal Winchester unanimously approved a law restricting where sex offenders can live, Grandview Heights rejected a similar measure 6-1, a decision that one councilman said "tormented" him.

And earlier in the day, a federal district court ruled that local laws dealing with residency can't punish sex offenders who committed crimes before those laws took effect.

This article notes that "Ohio Attorney General Marc Dann rebuked the federal court decision, saying it applies merely to one defendant."  This reporting seem to refer to this official statement from AG Dann's office.

UPDATE:  The federal district court opinion referenced in the article is available here.

Legal media catching up with sentencing news

Thanks to law.com, readers can access these two new pieces that cover some (previously covered) stories:

• 3rd Circuit: Sentencing Guidelines May Not Be Ignored (discussing ruling blogged here)

• Atlanta Falcons Trying to Recover Millions in Bonuses Paid to Vick (discussing collateral consequences discussed in various posts here)

Notable sex offender residency restriction ruling from Ohio

Among lots of new interesting posts at Sex Crimes is this post noting a significant new ruling restricting the application of Ohio's sex offender residency restriction.  This Cincinnati Enquirer article provides the basics:

An Ohio law restricting where sex offenders can live does not apply to a convicted rapist who was sentenced before the law took effect in 2003, a federal judge in Akron ruled Tuesday.  U.S. District Judge James Gwin said the law, which bars offenders from living within 1,000 feet of schools, amounts to an additional, retroactive punishment for people who already have served their sentences.  He said such punishments violate the U.S. Constitution and impose an excessive burden on offenders that could continue for the rest of their lives.

“The law goes well beyond parole in that it never allows a sex offender to reintegrate into society,” Gwin wrote in his decision.  “Subjecting a sex offender to constant ouster from his or her home seems a significant deprivation of liberty and property interests. “It sentences them to a life of transience, forcing them to become nomads.”

Gwin’s decision directly affects only an Akron man, Lane Mikaloff, who had challenged the law.  But Mikaloff’s lawyers say the ruling could affect thousands of sex offenders in Greater Cincinnati and across the state.

The debate over the fairness and effectiveness of Ohio’s residency law has heated up in the past year as county prosecutors began telling offenders who live near schools and day care centers that they must move....

“The decision is a mistake,” Hamilton County Prosecutor Joe Deters said of the ruling. “I just wish that sometimes they’d think of the kids that get abused.”

A spokesman for Ohio Attorney General Marc Dann said an appeal of Gwin’s decision is likely and urged law enforcement to continue enforcing the residency restrictions.  “We believe it’s constitutional,” said Leo Jennings, Dann’s spokesman. “If someone uses this decision to mount an additional challenge to the law, we’re going to continue to defend it.”

Milakoff’s lawyer, David Singleton, said he intends to do just that.  He said Gwin’s ruling should carry weight in other courts considering whether the restrictions amount to an unconstitutional, retroactive punishment.

UPDATE:  Judge Gwin's opinion is now available here.  It is an interesting read that will likely give the Sixth Circuit a lot to think about.

Is the death penalty really the "greatest moral challenge facing lawmakers today"?

Though I am never inclined to downplay the significance of sentencing issues, I am inclined to questions the Dallas Morning News' assertion in this editorial that "Texas' relentless pace of state-sponsored killing is the greatest moral challenge facing lawmakers today."  I tend to think that providing poverty relief and even some other criminal justice issues (e.g., reducing wrongful convictions) might be a greater moral challenge.  But I would guess that some readers might agree with the Dallas Morning News' moral compass.

That said, I do support the editorial's suggestion that Texas' legislative leaders "should start the process [of examining the state's death penalty] by ordering Senate and House committees to study capital justice in Texas and doubts about its fairness."   

Eighth Circuit adjudicates state justification law to uphold sentencing enhancement

I will never ceased to be amazed at all the state substantive criminal law that federal courts adjudicate (by a preponderance of the evidence) as part of federal guideline sentencing.  Today the Eighth Circuit has a fascinating short ruling in US v. Raglin, No. 06-3432 (8th Cir. Sept. 4, 2007) (available here) that ought to intrigue everyone in law school interested in any of a variety of criminal law issues.

The facts in Raglin read like a Crim Law exam (in fact, I'll have to remember this case when I have an exam to write).  Undercover cops posing as drug dealers went onto the defendant's property, though they moved to nearly public property when the defendant yelled at them.  Apparently unhappy with their continued activity, the defendant then came out of his house with a loaded gun to shoo these "drug dealers" away.  But then the cops showed their badges, chased the defendant into his house, and arrested him.  Notably, the defendant "was charged with aggravated assault in state court, but that charge was dismissed after he was indicted on this federal charge [of felon in possession of a firearm]."

I'll make everyone read the case to see how all this becomes a federal sentencing issue (and since it is an Eighth Circuit case, you already know the outcome).  But, as a Blakely fan, I cannot help but note this case as yet another amazing example of federal judges essentially trying defendants (by a preponderance of the evidence) for unadjudicated state crimes in order to apply federal guideline enhancements.  Personally, I really don't think Raglin is what the Framers had in mind when they created a system of limited federal government and wrote detailed criminal procedural rights in the first Eight Amendments.

Lies, damn lies, and federal sentencing statistics

This new article from New York Newsday, entitled "Federal judges becoming more lenient at sentencing," has me thinking about the famous quote about statistics.  Though I do not think the post-Booker world has been marked by considerable leniency, the Newsday article does seem to its statistics right and it does a reasonable job providing some context for the statistics it highlights.  Here are snippets:

Emboldened by a U.S. Supreme Court decision that undercut the mandatory sentencing guidelines, local federal judges are showing more leniency in sentencing than most others around the nation, according to government data....

Following the Supreme Court ruling, federal judges in the metropolitan area, including those assigned to the court in Central Islip, have dropped below the sentencing guidelines 17.9 percent of the time , from Oct. 1, 2006, to March 31, 2007, the first six months of fiscal 2007, compared with 6.9 percent for federal courts nationwide, according to statistics compiled by the U.S. Sentencing Commission. The fiscal year runs from Oct. 1 to Sept. 30. In the Eastern District, which covers Brooklyn, Nassau, Suffolk and Staten Island, judges dropped below the guidelines 13.2 percent of the time. In the Southern District federal court in Manhattan, judges went below the guidelines in 21.2 percent of the cases....

Despite the apparent rise in leniency from the bench, legal observers said the courts haven't gone wild in forgoing incarceration. In fact, other statistics show that the metropolitan area's federal judges dished out prison terms in about 84 percent of convictions in fiscal 2006....

"I would say flexible, not lenient," was how one Brooklyn federal judge described the sentencing trends in New York City.  The judge, who asked to remain anonymous because he prefers to be quoted in court, said he believed he and fellow jurists were in the best position to decide the correct sentence.

Should Kimbrough be vacated and remanded given USSC amendments and SG concessions?

This weekend I read closely the Government's brief in Kimbrough (available here).  The brief is effective, but it largely dodges discussion of the import of the Sentencing Commission's proposed crack guideline amendment (archive here), and it also makes a number of significant concessions.  These concessions late in the Kimbrough brief especially caught my attention:

[A] court could disagree with the Guidelines’ treatment of a crack offender’s role in the offense, or (as was seemingly the case here) with the Guidelines’ treatment of the offender’s prior military service....

While courts could not rely on [US Sentencing Commission] reports as a basis for categorically disagreeing with the 100:1 ratio, courts could properly consider those reports in determining whether a particular defendant’s commission of a crack-cocaine offense implicates the policy reasons underlying Congress’s harsher treatment of crack offenses.  See United States v. Ricks, No. 05-4832, 2007 WL 2068098, at *6 (3d Cir. July 20, 2007); United States v. Jointer, 457 F.3d 682, 687 (7th Cir. 2006), petition for cert. pending, No. 06-7600 (filed Oct. 27, 2006); Williams, 456 F.3d at 1369.  For example, one of the justifications for the 100:1 ratio was that crack cocaine is more closely correlated with the commission of other serious crimes (based on the greater propensity of individuals trafficking in crack to carry weapons).  See, e.g., United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy 184-185 (1995).  Accordingly, it would not be inconsistent with congressional policy for a court to conclude that, based on the individualized circumstance that a crack offender did not carry a weapon or otherwise threaten violence in connection with the offense, a downward variance would be appropriate.

In other words, in Kimbrough, the Government is conceding that almost any reasoned factual or policy basis for not following the crack guidelines in an individual case could justify a below-guideline crack sentence.  (And, though not saying so explicitly, the Government seems to hint that Derrick Kimbrough's below-guideline sentence might well have been justified on such grounds.)  Throw in the fact that the USSC's proposed crack amendments might be made retroactive (and thus applicable to Derrick Kimbrough) before the Supreme Court has a chance to render an opinion, and I am now thinking the Court's best move might be to just kick Kimbrough — and all other crack cases in which cert. petitions are pending — back to the circuit courts for reconsideration.

Some related posts:

• The Government's merits brief in Kimbrough
• ABA makes pitch for USSC crack amendments to be made retroactive
• Why the USSC's new crack work is soooooo significant
• How will the new USSC crack work impact present (and past) cases?
• Conclusive proof old crack guidelines unreasonable
• Previewing the (quite unpredictable) new federal politics of crack sentencing

California sentencing commission complications

This article from the Sacramento Bee, entitled "Doubts on sentencing plans: Governor isn't likely to sign either of two bills creating panels, aide says," highlights that a sentencing commission is still not a certainty in California.  Here are the basics:

With the legislative session heading into the home stretch, an ambitious plan to overhaul California's criminal sentencing structure is facing dim prospects in the Governor's Office.  Two bills are circulating in the Legislature that would create a California sentencing commission with the ability to change the length of prison terms.  But a spokesman for Gov. Arnold Schwarzenegger suggested it is highly unlikely that either commission bill would get signed into law.

"We're open to debate, but the governor has serious reservations about what's being proposed in the Legislature," Schwarzenegger spokesman Aaron McLear said in an interview. "He thinks that final authority (on sentencing laws) should be with elected officials who are accountable to the people."

State Sen. Gloria Romero, D-Los Angeles, wrote one of two sentencing commission bills now pending in the Capitol and the one that legislative staffers believe has the best chance of making it to the governor's desk.  She said forming a sentencing commission represents perhaps the state's last and best hope to prevent a specially empaneled three-judge federal court from slamming a population cap on California's massively overcrowded prison system.

Fascinating juve clemency development in Colorado

A helpful reader sent me this link to a recent press release from the office of Colorado Governor Bill Ritter announcing that "he has established a seven-member Juvenile Clemency Advisory Board to review clemency and commutation requests by juveniles who were tried as adults and sentenced to state prison."  Gov. Ritter issued Executive Order B-009-07 to create the Juvenile Clemency Board, and here are snippets from its statement of purpose and mandate:

The purpose of the Board is to make advisory recommendations of executive clemency to the Governor, specifically for persons who were juveniles tried as adults and are serving sentences(s).  This Board shall advise the Governor on the screening of applications for juveniles offenders, tried as adults, requesting or petitioning for a commutation of sentence....

The Juvenile Clemency Board may make favorable recommendations for clemency to serve the interests of justice as determined by the Juvenile Clemency Board and make favorable recommendations for commutation of sentence to:

i. Recognize exemplary rehabilitation and institutional behavior;

ii. Aid offenders suffering from catastrophic or terminal medical, mental or physical conditions as determined by the Juvenile Clemency Board;

iii. Reward acts of heroism by inmates who prevent risk or injury to staff, citizens, or other inmates;

iv. Address sentencing disparities and correct inequities within the Colorado criminal justice system.

Another challenge to prosecutors' capital discretion

This local article from Kentucky discusses another new effort to challenge the death penalty by attacking the broad discretion exercised by prosecutors in capital cases:

The most recent possible challenge to Kentucky’s death penalty came in the form of a motion in Hardin Circuit Court earlier this month to have Kentucky’s death penalty ruled unconstitutional.  Attorney Vince Yustas, who represents convicted murderer Michael St. Clair, said his argument against the death penalty never has been made in Kentucky. He claims commonwealth’s attorneys across the state have “unbridled discretion” when deciding whether to pursue the death penalty.  “Whether or not to seek the death penalty rests entirely in the hands of individual commonwealth’s attorneys,” Yustas said in a memorandum filed Aug. 20 in Hardin Circuit Court.

As detailed in posts linked below, similar arguments have been advanced recently in a number of other settings:

• Making prosecutors testify about capital charging
• Challenging geographic death disparity
• Examining capital prosecutorial discretion
• Show me the prosecutorial capital discretion realities
• Live summary blogging from Missouri DP conference
• Capital craziness and costs in Arizona