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September 21, 2007

What might AG-nominee Mukasey mean for federal sentencing?

The AP has this fascinating new article, entitled "Mukasey Hit Justice Dept on Sentencing," discussing Michael Mukasey's history with federal sentencing as a judge.  Here are snippets from the article:

As a judge, Michael Mukasey ridiculed the Justice Department for defending federal sentencing guidelines used to mete out prison time to criminals.  Soon, he may be leading the Bush administration's push to toughen the guidelines.

Formally nominated Friday as President Bush's pick for attorney general, Mukasey could find himself in an awkward position as Republicans seize on the 2008 elections to promote the Justice Department's crime bill, which includes mandatory minimum sentences for most federal prisoners.

Judges generally oppose the plan that limits their sentencing discretion - the heart of Mukasey's own complaint as a U.S. District Court jurist in New York's southern district.  Mukasey declared the guidelines unconstitutional in a June 1988 ruling on what would be a fair sentence for a woman who broke out of a drug treatment center.  At least 87 other judges nationwide had similarly deemed the guidelines unconstitutional, he wrote.

In his 15-page ruling, much of it written in a sardonic tone, Mukasey belittled the Justice Department's insistence that the guidelines were a function of the executive branch, while the U.S. Sentencing Commission simultaneously claimed them under the judicial branch....  Mukasey's ruling focused largely on separation of government powers....

Mukasey largely has been silent about the sentencing guidelines since the Supreme Court ruled that, when handing down sentences, judges must consider the guidelines but don't necessarily have to follow them. How strongly he will push the Justice Department's plans for mandatory prison time already has piqued the curiosity of lawyers and legal experts.

"He was one of the judges who tended to follow the guidelines," said Washington defense attorney Michael Horowitz, a member of the Sentencing Commission and a former Justice Department prosecutor who argued cases in Mukasey's courtroom. "As someone who believes in the rule of law, the guidelines were the law.  And he was going to read the law as it was written."

Count me in as one of the lawyers and legal experts whose curiosity is piqued by how an AG Mukasey will deal with the post-Booker world of federal sentencing.

September 21, 2007 in Who Sentences | Permalink | Comments (0) | TrackBack

Breaking news (and SL&P exclusive?): federal Judge Paul Cassell resigning!

Though I am not sure whether to be sad or excited, I am intrigued to be able to break the news that that affirms Sentencing Hall of Famer District Judge Paul Cassell today has submitted to President George Bush his "resignation from the United States District Court for the District of Utah, effective on November 5, 2007."  For lots of reasons, Judge Cassell's name should be familiar to sentencing fans:  he issued the first major district court ruling holding that Blakely invalided the federal sentencing guidelines and the first major ruling applying the Booker remedy.  Judge Cassell also issued a remarkable decision in the Angelos mandatory minimum case and has spoken out for sound sentencing reform recently as head of the Criminal Law Committee for the Judicial Conference.

I have long been grateful to Judge Cassell for his thoughtful sentencing work (not all of which I agree with), and today I am grateful that he sent me a copy of his resignation letter for posting.  The full letter can be downloaded below, but these middle paragraphs explaining his decision to resign from the bench are especially interesting:

In the past few weeks, two primary factors have led me to do something that I never thought possible – leaving this important public service position.  First, the S.J. Quinney College of Law at the University of Utah has offered me a chance to return to pursue teaching and scholarship there.  Many interesting things are happening at the College of Law these days, including exciting research by the criminal law faculty and the development of the new Utah Criminal Justice Center.  Returning to the College of Law will give me time to pursue research in my area of greatest scholarly interest – crime victims’ rights. I have several important books and articles on this topic that I would like to turn to as quickly as possible.

Related to this opportunity is the coincidental offer from the National Crime Victim Law Institute to litigate crime victims cases across the country on its behalf.  As you know, many indigent crime victims have unmet legal needs in the criminal justice system, particularly because the content of victims’ rights remains largely undeveloped in the courts.  Because of my academic specialization on this topic, I hope to be particularly effective in advocating on their behalf.

And finally, I would be less than completely candid if I did not mention the uncertainty surrounding judicial pay as a factor in my decision. With three talented children approaching college years, it has been difficult for my wife and me to make financial plans.  As you know, this year federal judges have yet to receive even a cost of living pay increase.  Your much-appreciated proposal to raise judicial salaries has yet to be acted on by Congress.   I would like to ensure that my children will have the same educational opportunities that I had.  How to achieve that within the constraints on current judicial pay is more than a difficult task.  My wife and I have concluded that we may not be able to do what we have always planned to do unless I make some changes.

Download cassell_presidentresign920fix.rtf

September 21, 2007 in Who Sentences | Permalink | Comments (23) | TrackBack

Second Circuit embraces plain error approach to reasonableness review

The Second Circuit today issues a significant opinion about sentencing review in US v. Villafuerte, No. 06-1292 (2d Cir. Sept. 21, 2007) (available here).  Here is the start of the opinion:

This case requires us to determine the consequences of a criminal defendant’s failure to object to a district court’s method of discharging some of its duties under 18 U.S.C. § 3553.  Defendant-appellant Jorge Villafuerte appeals from a March 8, 2006 judgment of the district court for the Northern District of New York (Gary L. Sharpe, Judge), arguing that the district court erred by (1) concluding that the sentence recommended by the United States Sentencing Guidelines (“Guidelines”) accounted for the factors under § 3553(a) and (2) failing to state adequately its reasons for imposing the chosen sentence, as required by § 3553(c). We need not decide whether there was any error; because Villafuerte failed to object below, both challenges are subject to plain error analysis, and neither alleged error is plain.

I know that some other circuits have adopted a similar "plain error" approach to reasonableness review, although I also think a few circuit have rejected this legal overlay.  In my view, the Second Circuit's approach seems to be in tension with the whole purpose of reasonableness review as a means to help achieve sentencing consistency.  If a sentence is unreasonableness, I do not quite understand why a circuit should uphold that sentence simply because the defendant did not sufficiently object to that sentence below.

September 21, 2007 in Booker in the Circuits | Permalink | Comments (4) | TrackBack

So much for Senate action in September on crack sentencing

As some readers may recall, this post earlier this month spotlighted that the US Senate appeared poised to have a September hearing on crack sentencing.  I believe this hearing was originally scheduled to be this week, but they did not happen.  I have heard various rumors providing various reasons concerning why the crack hearing was put off and concerning whether and when it might still take place.

As I noted in my prior post, I would be surprised to see Congress make any dramatic federal sentencing changes anytime.  Nevertheless, I think the extraordinary energy (and national media) devoted to concerns about racial injustice in the criminal justice system reflected in the Jena 6 March yesterday could possibly bring the crack/powder discussion back into congressional view.

Some related posts on crack and politics:

September 21, 2007 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

September 20, 2007

What should we learn from the Jena 6 controversy?

T1home1650jenaap I have not blogged at all about the so-called "Jena 6" case, in part because it has not quite yet become a sentencing story.  However, as TalkLeft notes here, the case has no become a huge national news story.  And this picture from the CNN coverage of today's protests in Jena, Louisiana spotlights that many people care a lot about what is transpiring in the case.  Meanwhile, as detailed here, Jesse Jackson is making (misinterpreted?) comments criticizing Barack Obama and the other presidential candidates for not paying more attention to the case.  So, if only to avoid Reverend Jackson's ire, I thought I would do this post to ask readers to help me turn this cases into a teaching moment. 

In other words, what can and should we learn from the "Jena 6" case?

UPDATE:  I now see that Orin Kerr here is also scratching his head a bit about what to make of this case, and that Glenn Reynolds has lots of intriguing links here and here.

September 20, 2007 in Race, Class, and Gender | Permalink | Comments (25) | TrackBack

A vehicle for addressing Booker retroactivity (and Teague)

I received today a copy of a cert petition flagging another set of interesting sentencing-related issues for the Supreme Court.  The petition (which can be downloaded below) was filed in Soto v. US, and raises questions about the applicability to Teague and the retroactivity of Booker.  Here are the questions presented from the petition:

1. Does the retroactivity test applied in habeas corpus challenges to state judgments of conviction, as set forth in Teague v. Lane, 489 U.S. 288 (1989), limit the availability of relief on a motion under 28 U.S.C. § 2255 asserting that a federal sentence must be corrected due to error under United States v. Booker, 543 U.S. 220 (2005)?

2. If Teague is applicable, did Booker announce a "watershed rule" of criminal procedure in holding that sentences imposed under the mandatory United States Sentencing Guidelines are constitutionally infirm unless every fact essential to sentence was proved beyond a reasonable doubt?

Download soto_petition_with_appendix.pdf

Some related SCOTUS posts:

September 20, 2007 in Apprendi / Blakely Retroactivity | Permalink | Comments (7) | TrackBack

New Sentencing Project report on the "war on drugs"

I just received this notice in my e-mail in-box:

The Sentencing Project has released a new report that examines the burden of the "war on drugs" on the criminal justice system and American communities.  "A 25-Year Quagmire: The War on Drugs and Its Impact on American Society" assesses the strategy of combating drug abuse primarily with enhanced punishments at the expense of investments in treatment and prevention.  The report documents how the drug war has produced a record expansion of prison and jail systems and highlights additional indicators of the war's impact on the criminal justice system and communities....

The report [available here] also provides policy recommendations that can help effectively reinvest government resources in community safety by encouraging comprehensive drug treatment and prevention strategies to address drug addiction.

September 20, 2007 in Drug Offense Sentencing | Permalink | Comments (6) | TrackBack

New Jersey Supreme Court expands drug court availability

As detailed in this local article, the New Jersey Supreme Court "on Wednesday expanded access to drug courts, ruling that even nonviolent addicts with prior convictions can avoid prison by entering drug treatment programs."  Here are more details:

The 6-0 decision broadened the definition of who may enter drug courts from the more strict parameter of only those drug-addicted defendants with no previous convictions and who are bound for jail time....

Justice Barry Albin wrote in the decision, "It is inconceivable that the Legislature granted a trial court power to impose a probationary sentence, but not the power to attach the one condition necessary to address the offender's desperate needs — a drug-rehabilitation program." Albin noted an earlier court decision that said, "A court should strive to avoid statutory interpretations that lead to absurd or unreasonable results." Albin concluded, "The trial court was vested with the discretion to admit defendant into drug court."

The interesting unanimous opinion in State v. Meyer (NJ Sept. 19, 2007) is available at this link.

September 20, 2007 in Criminal Sentences Alternatives | Permalink | Comments (0) | TrackBack

September 19, 2007

New paper on bail pending appeal

Addressing an issue that frequently arises in many high-profile white-collar cases, a new paper on bail pending appeal was just post on SSRN.  The paper is by Doug Keller, is entitled "Resolving a 'Substantial Question': Just Who is Entitled to Bail Pending Appeal Under the Bail Reform Act of 1984?", and is available at this link.  Here is the abstract:

This article discusses the circumstances under which federal law allows convicted criminal defendants to remain out on bail while they wait to see if their conviction is reversed on appeal. Under current law, codified in the Bail Reform Act of 1984, defendants who wish to remain out on bail after conviction must prove (among other things) that their appeal will have enough merit such that it will raise at least one “substantial question.” Defendants who cannot leap that hurdle typically must report to prison shortly after sentencing. Federal appellate courts, however, have been deeply divided over how much merit is required to show that an appeal will raise a “substantial question.”  Ten circuits define the phrase as a “close question” based on a questionable reading of the Bail Act's legislative history. But the Ninth Circuit has charted its own course and interpreted the requirement to mean that a defendant must prove his appeal will raise a “fairly debatable” issue, as that definition has been the historical understanding of what constitutes a substantial question.  Many appeals raise issues that are “fairly debatable” but that are not “close questions.”  It is therefore much easier to obtain bail pending appeal in the Ninth Circuit than in circuits that use the close-question test.  This article argues that the Ninth Circuit has it right, and thus hundreds of defendants in the other circuits have been wrongfully denied bail pending appeal.  At least some of those defendants have had their convictions overturned on appeal, resulting in the gross injustice of a wrongful incarceration.

September 19, 2007 in Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Federal district judge halts executions in Tennessee

As detailed in posts at Crime & Consequences and StandDown Texas Project and this AP story, a "federal judge ruled Wednesday that Tennessee's new lethal injection procedures are cruel and unusual punishment, interrupting plans to execute a killer next week."   The lengthy ruling in Harbison v. Little is available here.  Here is the conclusion:

For the reasons stated herein, the court finds that the plaintiff’s pending execution under Tennessee’s new lethal injection protocol violates the Eighth Amendment to the United States Constitution.  The new protocol presents a substantial risk of unnecessary pain; that risk was know to Commissioner Little, and yet disregarded.  Accordingly, the court will enter judgment in favor of the plaintiff and enter injunctive relief against the defendants, barring them from executing the plaintiff under the new protocol.

Given the Sixth Circuit's history of split rulings on various death penalty issues, it will be interesting to see what happens to this case on (an inevitable?) appeal.

September 19, 2007 in Death Penalty Reforms | Permalink | Comments (16) | TrackBack

A better poster child for the death penalty for child rape

This local South Carolina story and this AP coverage provides the sentencing outcome in a particularly horrible child rape case:

Vinson Filyaw was sentenced to the maximum sentence of 421 years, served consecutively, for kidnapping a 14-year-old girl a year ago and sexually assaulting her in a dirt bunker for 10 days near Elgin. Filyaw pleaded guilty Tuesday to kidnapping, 10 counts of first-degree criminal sexual assault, two counts of second-degree criminal sexual assault, impersonating a police officer, possessing explosives and attempted armed robbery.

Filyaw, 37, posed as a police officer and handcuffed the girl last September as she walked toward her home from a school bus stop. He took her into the woods and kept her captive in a bunker booby-trapped with homemade explosives.  The girl escaped after using Filyaw’s phone to send her mother a text message, helping authorities find the bunker’s location.... Filyaw said the rape and kidnapping spurred from a grievance with the Kershaw County Sheriff’s Department over a separate charge of sexual assault on a 12-year-old girl from 2005.

In this post about the Kennedy capital child rape being appealed to the Supreme Court, I explained why Patrick Kennedy does not fit the image of a monstrous predator sex offender perhaps deserving of a death sentence.  I would not make the same assertion about Vinson Filyaw. 

Notably, South Carolina is one on the five states that have made certain child rapes death eligible, but apparently capital punishment is available only when the victim is under 11 and the defendant previously has been convicted of sexual battery of a child.  See S.C. Code Ann. § 16-3-655(c)(I).

Some recent related posts:

September 19, 2007 in Death Penalty Reforms, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Eleventh Circuit talks about law of torture

Though not technically a sentencing case, a helpful reader suggested that other readers of this blog might be interested in today's immigration ruling from the Eleventh Circuit in Jean Pierre v. US AG, No. No. 06-13359 (11th Cir. Sept. 19, 2007) (available here). Here is how the opinion begins:

More than fifty years ago, Justice Frankfurter wrote that, when it comes to torture, “there comes a point where this Court should not be ignorant as judges of what we know as men.” Watts v. Indiana, 338 U.S. 49, 52 (1949). Today, we decide not whether our humanity should inform our understanding of torture, but whether, in the context of this claim, Congress has eliminated the jurisdiction of the federal courts to address this issue in the first place. We conclude that the question at the heart of this appeal -- whether a particular course of conduct amounts to torture under the Convention Against Torture1 and the accompanying legislation -- is a legal one, and accordingly falls squarely within our limited jurisdiction under the REAL ID Act of 2005.

Petitioner Jean Herold Jean Pierre (“Jean Pierre”), a gravely ill AIDS patient, claims that he will be tortured in jail if he is removed to Haiti as a criminal alien. H e has consistently said, without any dispute, that he will be beaten with metal rods, confined for weeks in a tiny crawl space, and subjected to the Haitian practice of “kalot marassa” (severe boxing of the ears). This conduct, he argues, is torture.  Because the Board of Immigration Appeals failed to consider the heart of these claims, we grant his petition for review, vacate the BIA’s decision, and remand for further proceedings.

September 19, 2007 | Permalink | Comments (6) | TrackBack

Serious SCOTUS sentencing fun soon to begin

As I have detailed in some recent posts linked below, I expect this coming Supreme Court Term to have a lot of sentencing intrigue.  And this very interesting new SCOTUSblog post by Tom Goldstein, headlined "A True Rightward Turn? The Upcoming Term and the 2008 Elections Posted," confirms my sense that sentencing issues will be a big part of the 2007 Term.  Tom's post should be read in its entirety, but here are some of the sentencing highlights:

The next-highest-profile case [already before the Court] involves the crack-powder disparity in sentencing (Kimbrough v. United States) discussed in this post by Lyle. This is something of a "throwback" case; crack is not as prominent an issue as it once was. Nonetheless, it is one with which the public is familiar.  The particular question presented is whether, in the wake of the holding of Booker v. United States (opinion here) that the Sentencing Guidelines are advisory rather than mandatory, district judges can refuse to follow the crack Sentencing Guideline (which imposes a 100:1 ratio to cocaine sentences by weight) on the ground that they disagree with the policy judgment underlying it. I think that the government is overwhelmingly likely to lose. It is hard to see any member of the Booker majority accepting its position when the Commission itself has said that its own Guideline is misguided and Congress has not mandated a particular sentencing ratio. I expect that the "headline" ruling in the case will be that sentences will come down for crack cocaine....

A second high-profile case is on its way to the Supreme Court: the Louisiana Supreme Court's ruling upholding the constitutionality of the death penalty for child rape (Kennedy v. Louisiana, petition here and Lyle's post here).  I think this is a sleeper case that has a genuine prospect of shaping opinion of the Court going into the 2008 election because the defendant is likely to win on a doctrinal ground that will not make sense to the general public.  The defendant was convicted of raping his 8-year-old stepdaughter, who initially told authorities she had been selling Girl Scout cookies immediately before the attack. Though the prevailing view is that the Eighth Amendment precedents preclude imposing the death penalty for rape, an average American will recognize this crime as profoundly horrific and evil.

Some related posts:

September 19, 2007 in Who Sentences | Permalink | Comments (3) | TrackBack

Economics driving prison reform in Mississippi

This local Mississippi editorial, entitled "Prisons: Crowding costly, counterproductive," provides yet another example of how correction costs leads to unexpected advocates of reduced imprisonment terms.  Here are excerpts:

The Joint Legislative Budget Committee, composed of representatives and senators, began two weeks of hearings Monday to receive budget requests from state agencies; topping the list was the corrections commissioner with an unusual request.  Rather than asking for more, as it the usual request of lawmakers, he asked for less: inmates, that is.

Commissioner Chris Epps, indeed, asked for $20 million more in funding over last year (to $348 million in the fiscal year that begins next July), but begged lawmakers to change the state's sentencing guidelines so fewer people will be incarcerated.  More nonviolent inmates should be on house arrest or eligible for parole to cut rising costs, Epps said, noting that more than 50,000 people are in prison or on parole and under his supervision.  He predicts a 4.5 percent prison population increase in the next year. That means even more expenses.

Epps is already under fire for a rash of violence at the 1,000-bed maximum security Unit 32 at the penitentiary at Parchman, which is the target of a class-action lawsuit by the American Civil Liberties Union.  The biggest problem isn't the hardened criminals, but the numbers of inmates.

The culprit is the "lock-'em-up-and-throw-away-the-key" mentality that produced Mississippi's "85 percent rule" in 1995 that mandates stiff terms for even small offenses. It's a self-fulfilling prophecy: Take people who have committed minor crimes and treat them like career criminals and they become career criminals. And it sustains itself, creating ever more grist for growth: Now, we have private prisons and work centers all over the state.

It's "big business." We have three state prisons, six private prisons, 11 regional facilities, 17 work centers, and three restitution centers, not to mention 82 counties with jail cells — adding 6,000 beds and more contemplated.  We spend more per inmate in state dollars for prisons than we do per student in public education. Some 67 percent of those in prisons are non-violent offenders.

As the number of inmates grows, 22,000 now, up from 10,699 in 1994, the prison budget continues to grow. In 1976, the total prison budget was $23 million. In 1994, it was $45 million. The budget Epps is requesting for fiscal 2008 is more than 15 times that of 30 years ago!

September 19, 2007 in Scope of Imprisonment | Permalink | Comments (31) | TrackBack

September 18, 2007

Is O.J. being overcharged?

I usually don't closely follow high-profile criminal cases until there is a conviction and sentencing looms. But these cases can provide a unique opportunity to watch and assess the criminal justice system in action, and the news that O.J. Simpson has been charged with ten felonies and a misdemeanor — according to this TalkLeft post, which links the complaint — has me thinking about overcharging and plea bargaining.

As many know (through few will admit), some — only a few?  many?  most? — prosecutors are willing and perhaps eager to file as many charges as they plausibly can in order to create bargaining leverage and bargaining room for inevitable plea discussions.  For a variety of reasons, including providing notice to defendants and perhaps increasing plea and sentencing flexibility, I am not sure borderline overcharging should always be discouraged or considered wholly inappropriate.  But for a variety of other reasons, including putting undue pressure on defendants and potentially biasing trials, extreme overcharging seems likely to produce injustices.  And, of course, the lines dividing proper charging, borderline and extreme overcharging (and even undercharging) are often in the eye of the beholder.

That all said, ten state felony counts for O.J. Simpson arising from just one (apparently aggressive) encounter strikes me as a lot of charges.  But this may be just how it looks from the ivory tower; I hope those who develop, and defend against, charging documents on a regular basis might use the comments to share their perspectives.    

September 18, 2007 in Celebrity sentencings | Permalink | Comments (15) | TrackBack

NPR coverage of HRW report on sex offender laws

As detailed here, last week Human Rights Watch released a major new report about sex offender laws and policy, entitled "No Easy Answers: Sex Offender Laws in the US."  (The lengthy report is available at this link.)  Today's broadcast of NPR's Talk of the Nation included this long segment examining the report and reactions thereto.

September 18, 2007 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Another example of the death penalty as an effective plea bargaining tool

As I have suggested in a number of prior posts (see here and here), I have long thought that the biggest impact of having (or not having) the death penalty in a jurisdiction may be its impact on prosecutorial charging and plea bargaining practices.  In this vein, consider this article from the Los Angeles Times, entitled, "Kingpin avoids death penalty with plea deal."  Here are excerpts:

Mexican gangster Francisco Javier Arellano Felix, the alleged boss of a family-run drug cartel thought to be responsible for scores of murders in Mexico and the U.S., pleaded guilty Monday to charges that will put him in prison for life without the possibility of parole. 

Arellano Felix, who appeared wan and submissive, pleaded guilty to running a drug organization and money laundering.  In exchange, federal prosecutors agreed to drop other charges and not seek the death penalty.

In a brief recitation to the judge, Arellano Felix's attorneys said their client had admitted that his Tijuana-based organization grossed $20 million a year from the smuggling and sale of hundreds of tons of cocaine and marijuana. Violence was a routine business practice, the attorneys told U.S. District Judge Larry A. Burns. 

Burns set Nov. 5 for sentencing to allow for a probation report, although he noted that federal sentencing guidelines required him to sentence Arellano Felix to life in prison without parole.... As part of the plea bargain, Arellano Felix agreed to forfeit [his] boat, a 43-foot yacht, and $50 million in drug profits.

At its height in the 1990s, Arellano Felix's organization was believed to be supplying nearly half of the cocaine sold in the U.S. The organization allegedly ordered the murder of a deputy police chief in Tijuana and the beheadings of three officers. In the crossfire of a shootout at Mexico's Guadalajara airport in 1993, Roman Catholic Cardinal Juan Jesus Posadas Ocampo was killed.

It seems fair to assume that the federal government would not have been able to secure this plea deal were it not for the threat of the death penalty.  (Other high profile cases with similar "death-defying" plea bargains include the Unibomber and the Green River Killer.)  Though many might debate whether justice has been served by this plea deal, no one can question whether justice was efficient.

Some related posts:

September 18, 2007 in Death Penalty Reforms | Permalink | Comments (24) | TrackBack

September 17, 2007

Second Circuit finds obligation to brief reasonableness in Anders motion

The Second Circuit issued an interesting little per curiam ruling today in US v. Whitley, No. 05-3359 (2d Cir. Sept. 17, 2007) (available here).  The start and heart of the ruling provides the highlights:

In two separate appeals from criminal convictions, consolidated for disposition, court-appointed defense counsel move to withdraw, pursuant to Anders v. California, 386 U.S. 738 (1967), on the ground that there is no non-frivolous basis for appeal.  Because counsel’s Anders briefs fail to address adequately the reasonableness of defendants’ sentences, we deny the motions to withdraw....

[W]e hold that an Anders brief should include a discussion of the reasonableness of a defendant’s sentence.  Counsel should typically address both the substantive and procedural reasonableness of the sentence.

Notably, the consolidated cases at issue here both appear to involve within-guideline sentences.  Consequently, the Second Circuit indirectly holds that the fact a sentence was within the guidelines alone does not suffice to justify an Anders brief.  (Ironically, Judge Posner, as detailed here and here, has written Seventh Circuit opinions that suggest that Anders briefs may be required when certain defendants insist upon appealing within-guideline and even some above-guideline sentences.)

September 17, 2007 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Tougher (but still not tough enough?) on DUI

As regular readers know (and as posts below highlight), I am always troubled by the tendency of legislatures and judges to be (excessively?) tough on nonviolent crimes while being (excessively?) lenient on the high-risk crime of drunk driving.  Consequently, I was intrigued to see this notable news report from the Arizona Republic:

This week Arizona will enact one of the toughest DUI laws in the nation.  Hardest hit are first-time violators and a new class of "super extreme" DUI offenders whose blood-alcohol concentration registers 0.20 percent or above, which is more than double the legal limit of 0.08 percent.

Beginning Wednesday, new penalties include mandatory ignition-interlock devices for first-time offenders, increased fines and a minimum of 45 days in jail for super extreme DUI convictions....

National Highway Traffic Safety Administration records show Arizona had the sixth-highest number of alcohol-related fatalities in the nation. There were 585 alcohol-related fatalities statewide in 2006, up 15 percent from 2005.   Overall, drunken driving has significantly decreased in the past 20 years, but the state has hit a plateau, said Ericka Espino, executive director for Mothers Against Drunk Driving Arizona....

The harsh new stance on drunken drivers has its share of detractors.  Critics say interlock devices are expensive to maintain and provide a short-term answer to a long-term problem....

DUI defense attorney Mark Weingart said clients have been clamoring for information on whether the new law will affect pre-existing cases.  It doesn't, but Weingart warned that he expects courts to see a spike in the number of DUI cases that are challenged. Most of Weingart's clients have been arrested on suspicion of having a blood-alcohol content over the legal limit or are in the new "super extreme" category with a blood-alcohol content of 0.20 percent or above.

Under the new law, the sentence for a first-time conviction of super extreme DUI nets at least 45 days in jail and a judge is prohibited from suspending any part of the jail time. Previously, a judge could suspend most of the sentence upon completion of a court-sponsored drug or alcohol program.

"Now I think defense lawyers are going to have to learn to exploit all of the potential for error there is in blood or breath testing," Weingart said. "We're talking about a situation here where if somebody has a blood test of .1999, you have 10 days in jail. If it's one-thousandth of a point higher, it's 45 days.  "I think people are going to have to fight these DUIs harder than ever before."

Some related posts:

September 17, 2007 in Offense Characteristics | Permalink | Comments (6) | TrackBack

Sixth Circuit upholds variance based on family circumstances

The Sixth Circuit gets Booker jurisprudence off to a flying start this morning through its ruling in US v. Baker, No. 05-6874 (6th Cir. Sept. 17, 2007) (available here).  In Baker, the Sixth Circuit rejects the government's complaints about a below-guideline probation sentence given for a relatively minor firearm offense. 

Of particular note, especially with Gall and Kimbrough on the SCOTUS horizon, is the panel's statement that "we focus more on the reasons justifying the variance, rather than the extent."  And here the reasons focused on the defendant's caretaking for his ill son and his genuine remorse.  The Sixth Circuit's rebuffing of the government's argument suggests that post-Booker sentencing can include a genuine concern for family values.

September 17, 2007 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

State judge adds banishment to long sentence

At a time when residency restrictions are legislatures' latest sentencing fad, perhaps it is not surprising that judges are inclined to get into the banishment sentencing game.  As this local article details, a county judge in Pennsylvania has banished a drug dealer from his hometown. Here are more details:

A Westmoreland County judge ordered a man to stay out of his hometown of Arnold and two nearby towns after serving a 10- to 20-year prison term.  State officials and law professors say the order may go too far....

Westmoreland County Judge Rita D. Hathaway ordered Chambers to stay out of Arnold, New Kensington and Lower Burrell when he gets out of prison, according to court records. Prosecutors had asked for the ban.  Defense attorney Duke George, who is handling the appeal for the more recent case, said the stay-out provision is unjust and unconstitutional....

Since January 2006, various county judges have issued at least seven similar orders to people who received sentences of fewer than two years.

Some related posts:

September 17, 2007 in Criminal Sentences Alternatives | Permalink | Comments (6) | TrackBack

September 16, 2007

Any thoughts about Mukasey as the new AG?

As this AP story details, "President Bush has settled on Michael B. Mukasey, a retired federal judge from New York, to replace Alberto Gonzales as attorney general and will announce his selection Monday, a source familiar with the president's decision said Sunday evening." 

Though I know Mukasey's impressive resume and reputation, I do not know much more about the former federal district judge.  (Jeralyn at TalkLeft provides a profile here.)  Do any readers have thoughts on this new AG, particularly sentencing thoughts?

Some recent related posts:

September 16, 2007 in Who Sentences | Permalink | Comments (4) | TrackBack

O.J. and acquitted conduct sentencing

As detailed in this CNN report, "Las Vegas police arrested O.J. Simpson on Sunday amid an investigation into an alleged armed robbery at a hotel in Las Vegas."  I cannot help but wonder, assuming Simpson is convicted on some charges related to this investigation, if perhaps the most infamous of all acquittals could  ultimately become the basis for a sentencing enhancement.

September 16, 2007 in Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack

Tenn Gov commutes death sentence based on poor lawyering

As detailed in this official announcement, on Friday Tennessee Governor Phil Bredesen "commuted the death sentence of Michael Joe Boyd (also known as Mika’eel Abdullah Abdus-Samad) to life imprisonment without the possibility of parole citing grossly inadequate legal representation received by Boyd during his post conviction hearing and procedural limitations."  A very large pdf file, available here, provides all the documents relating to the commutation, including the official statement that Bredesen had a "substantial and unresolved doubt that the trial jury would have impose the death penalty had the defendant received competent legal representation."

Local press coverage in this article indicates that the "commutation is believed to be the first in Tennessee since the return of the 'modern death penalty' in Tennessee, in 1977."  Moreover, I think it has been quite a long time since a capital commutation has been based principally on poor lawyering.  (The DPIC has this effective archive of modern capital clemency grants.)

This Tennessee commutation, as well as the recent one in Texas, provides another basis for believing that the death penalty is continuing to lose some of its one-sided political punch.

September 16, 2007 in Clemency and Pardons, Death Penalty Reforms | Permalink | Comments (1) | TrackBack

The backstory of an exceptional commutation

P.S. Ruckman continues to do a lot of very interesting work on pardon politics and practicalities at his pardons blog.  Today Ruckman here highlights a strong article by Richard Schmitt in the Los Angeles Times about the (ultimately successful) efforts to obtain a federal commutation for a defendant sentenced to 27-years (in 1992) for dealing methamphetamine.  The personal story cannot be readily summarized, but here are some of the broader points from this article:

Cases such as those of [Scooter] Libby and Marc Rich, the fugitive financier pardoned by President Clinton in 2001, have raised questions about the fairness of presidential clemency because they involved the affluent and politically connected.  More routinely, hundreds of the unconnected apply for clemency every year with little or no guidance or hope.

Their petitions are filed with the 12-person Office of the Pardon Attorney in the Justice Department, whose deliberations and recommendations are never made public.  Applicants often wait years for a response. Yet they frequently have compelling stories of rehabilitation and steep punishment.  Even some prominent conservative jurists have come to believe that clemency is a tool of the justice system that is not used enough....

In Libby's case, Bush declared the 30-month sentence "excessive," even though it was at the low end of the range of federal guidelines. He also said Libby was a first-time offender and that his family had suffered from his conviction. Some inmate advocates hope the president now will take another look at the sentences given lesser-known defendants. Margaret Colgate Love, a lawyer who once headed the pardon office, said: "There are scores, perhaps hundreds, of people doing hard time in federal prison who are also worthy of the president's mercy."

September 16, 2007 in Clemency and Pardons | Permalink | Comments (0) | TrackBack

Will the federal moratorium on Calfornia executions end this decade?

As detailed here, California has over 650 defendants on death row (nearly twice as many as any other state).  But as detailed in a set of article How Appealing notes here, the defendants need not fear being executed anytime soon: a federal district judge seems to be in no rush to lift the moratorium on executions he imposed because of constitutional concerns over the state's lethal injection protocol.  Here are the basics from this Los Angeles Times article:

A federal judge Friday postponed a major hearing on the state's new lethal injection protocol, making it highly likely that a court-ordered moratorium on executions in California will stretch to at least two years.  U.S. District Judge Jeremy Fogel in San Jose pushed the hearing back from Oct. 1 to Dec. 10 and 11.  The judge also scheduled a formal visit Nov. 19 to a new death chamber under construction by the California Department of Corrections and Rehabilitation.

The delay of the hearing all but ensures that Judge Fogel won't rule on the merits until next year, and then an appeal to the Ninth Circuit seems inevitable no matter how Judge Fogel rules.  Given that capital cases have a way of taking years to be fully resolved by the Ninth Circuit, I would be surprised in California is allowed to execute anyone before, say, 2011.

September 16, 2007 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack