Sentencing Law and Policy

A profile of Judge Gertner's sentencing courage

Boston Globe columnist Derrick Jackson has this new column entitled "A judge asks the tough questions" discussing Judge Nancy Gertner's decision to give a sentencing break to a defendant who pled guilty to selling small amounts of crack cocaine (basics here).  Here is how it starts:

US District Judge Nancy Gertner joked that she worried about a headline that could have read, "Limousine liberal lets crack dealer off." This was for setting free 37-year-old Myles Haynes last week after 13 months in jail for selling a small amount of crack cocaine in a Boston housing project.

Under federal sentencing guidelines, Gertner could have continued his sentence for another two or so years.  She decided that, with Haynes having children, not being a chronic offender, and having a reasonable enough track record of trying to serve in the military and find gainful employment, it was more important to give him a chance to be a contributing member of his family and society.  Gertner told Haynes from the bench, "When I see your son, I think that public safety requires that you be with your son so that he doesn't follow in your footsteps."

Public sanity requires following in Gertner's footsteps.

Lots of speculation concerning Judge Hudson's playbook for Vick

Yesterday's sentencing of Michael Vick's codefendants (basics here) has, unsuprisingly, lots of folks speculating about what sentence Judge Henry Hudson has in mind for Vick.  Here are links to two particularly effective pieces:

• From the New York Times here, "Message Sent in Sentencing of Two Vick Co-Defendants"

• From Sports Illustrated here,  "As the dominoes fall: Assessing Vick's fate after co-defendants' sentencing"

Sixth Circuit going en banc on acquitted conduct enhancements!

I am pleased to be able to end a busy week and month by reporting the exciting news that the Sixth Circuit today has ordered en banc review in White, a case involving the status of acquitted conduct guideline enhancements in the wake of Booker.  Here is today's pacer entry:

11/30/2007 ORDER filed granting petition for en banc rehearing [3670756-2] filed by Mr. Kevin M. Schad for Roger Clayton White to reinstate the appeal. The previous decision and judgment of this court is vacated, the mandate is stayed. Danny J. Boggs, Chief Circuit Judge; Boyce F. Martin , Jr., Alice M. Batchelder, Martha Craig Daughtrey, Karen Nelson Moore, R. Guy Cole , Jr., Eric L. Clay, Ronald Lee Gilman, Julia Smith Gibbons, John M. Rogers, Jeffrey S. Sutton, Deborah L. Cook, David W. McKeague, Richard Allen Griffin, Circuit Judges.

11/30/2007 BRIEFING LETTER SENT resetting briefing schedule: supplemental appellant brief + 25 copies of initial brief due 01/07/2008; supplemental appellee brief + 25 copies of initial brief due 02/11/2008; 25 copies of initial joint appendix due 01/07/2008.  The supplemental briefs should not exceed 25 pages.

I assume that the Sixth Circuit is likely also to schedule a oral argument before the full court; the timeline set for the supplemental briefs suggests that oral argument could take place in late winter with a decision from the full Sixth Circuit perhaps as early as spring. 

Not only is this exciting news for those eager to see a thoughtful circuit wrestle with an important and intricate post-Booker topic, it also likely will mean that the issue of acquitted conduct will garner additional attention from various important folks in the months ahead.  For instance, I'd expect someone from the SG's office to argue White before the full Sixth Circuit.  Also, I think just the grant of en banc review could increase the likelihood of the Supreme Court taking up this issue before too long.  And, if the full Sixth Circuit breaks from other circuits to find post-Booker constitutional problems with acquitted conduct enhancements, an SG appeal and a cert grant seem almost certain.

Some related posts on White and acquitted conduct:

• Rooting for the Sixth Circuit to take acquitted conduct en banc in White
• Opposition to considering acquitted conduct en banc in White
• Will the Sixth Circuit consider acquitted conduct enhancements en banc?
• Strong commentary on acquitted conduct sentencing
• A terrific district court opinion on acquitted conduct
• New (or renewed) ideas and arguments suggested by Rita
• Sincere questions about acquitted conduct sentencing

Commentary on the end of innocence in the federal system

With apologies to Don Henley, the commentary referenced here comes from PENNumbra as part of its featured November responses to Ronald Wright's great article, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. Pa. L. Rev. 79 (2005).  And here is the impressive set of responders with links to their pieces:

• American Buffalo: Vanishing Acquittals and the Gradual Extinction of the Federal Criminal Trial Lawyer by Frank O. Bowman, III

• What's Good About Trials? by Michael M. O'Hear

• Judging Untried Cases by Daniel Richman

Bad news for Vick in the other Bad Newz sentencings

The Atlanta Journal-Constitution has this early report on the federal sentences given today to Michael Vick's codefendants. The headline reads, "Vick cohorts' terms longer than recommended: Sentences could be an indication of what's in store for QB," and here are excerpts:

Two of Michael Vick's co-defendants received tough sentences Friday as the federal judge overseeing the dogfighting case handed down prison terms longer than those recommended by federal prosecutors. Purnell Peace was sentenced to 18 months in prison, the highest end of his sentencing guideline range. Quanis Phillips, a friend of Vick's since middle school, was sentenced to 21 months, the middle range of his guideline.

United States District Judge Henry E. Hudson called what happened to the dogs "a tragedy." "You may have thought this was sporting, but it was very callous and cruel," Hudson told Phillips. Hudson did not go along with Assistant U.S. Attorney Michael Gill's recommendations that he sentence Peace and Phillips to the low end of the sentencing guideline range....

Vick, the suspended Falcons quarterback, reported to prison last week ahead of his sentencing hearing. The sentences of Peace and Phillips may be an indication of what Vick will receive at his Dec. 10 hearing. A fourth co-defendant, Tony Taylor, will be sentenced on Dec. 14. All four pleaded guilty in August for their roles in a dogfighting operation known as Bad Newz Kennels at property Vick owned in Surry County, Va. The plea agreements reached by all four co-defendants, and subsequent motions, call for a sentences of 12 to 18 months under the federal sentencing guidelines for Vick and Peace.  Phillips' guideline range was 18-24 months because of prior criminal convictions.

Though I suppose Vick and his legal team should be glad to hear that Judge Hudson stayed within the suggested guideline ranges, the fact that Judge Hudson went higher than prosecutors recommended should keep Vick from making too many plans for 2008.  Of course, Vick's legal team can suggest unique factors in the hope of softening Judge Hudson's view of what prison term is "sufficient, but not greater than necessary" for Vick.  But I think the betting line over/under on Vick's likely sentence has to go up a bit after today's sentences.

Some related Vick posts:

• Should Michael Vick get sentencing credit for PETA passage?
• An amici sentencing brief going to the dogs
• Does Vick's (sincere?) apology change anything?
• Vick being sacked by the collateral consequences of an indictment
• Friday forum: what sentence should Vick get if he pleads guilty?
• Michael Vick takes a plea deal
• Mid-week forum: is it fair for Vick also to face state criminal charges?
• Vick surrenders early; is it a good move?

Long sentences for a midwestern variation on a modern Rodney King episode

A helpful reader sent me news of this notable federal sentencing story from Wisconsin:

Three fired Milwaukee police officers were sentenced to lengthy federal prison terms today for the beating of Frank Jude Jr. Jon Bartlett, was sentenced to 17 years and four months. Daniel Masarik and Andrew Spengler were each sentenced to more than 15 years....

Bartlett said he had been overwhelmed by everything that had happened since the October 2004 beating and was afraid for his future in explaining his subsequent actions of phoning in bomb threats and trying to buy firearms and ammunition. While he said he accepts responsibility for his actions, he continued to deny that he shoved a pen into Jude's ear. He said he's lost his house, his cars, his motorcycles, his pet, every material object in his life and has been divorced by his wife.  He said that the time he has spent in jail he used to examine his life and has found God and reconnected with his family.....

Bartlett, 36, Masarik, 27, and Spengler, 28, were convicted after a nearly three-week trial in July of conspiring to violate the civil rights of Jude and his friend Harris and of assaulting Jude while acting as officers.  The assaults happened outside an off-duty officers' party at Spengler's house in 2004.  Four other former officers pleaded guilty to federal charges. Two have been sentenced and two are set to be sentenced Dec. 6.  It is the largest criminal prosecution of police officers in modern Milwaukee history.

A state jury acquitted Bartlett, Masarik and Spengler on all but one count in May 2006, setting the stage for a federal investigation — and eventually an indictment — a year ago.  Bartlett, Spengler and Masarik have been jailed since their convictions.  Bartlett already was being held because of two earlier unrelated felony convictions.

Jude, who is biracial, and Harris, who is black, both said their white attackers used racial slurs. From the outset, the investigation was poorly handled.  Suspect officers were allowed to talk with each other or leave the scene, little physical evidence was collected and investigators said they ran into silence from officers who claimed they saw nothing.  Several of those officers later admitted their guilt in the case when the FBI investigated.

More on the trial penalty's impact in white-collar cases

A helpful reader sent me this column from the Financial Times that spotlights some of the trial penalty issues I recently discussed in this post.  Here is a snippet from the column:

The urge to find guilt has overwhelmed the presumption of innocence on which Anglo-Saxon justice is based....  Plea-bargaining is effective because of four salient features of American justice: the exceptional severity of punishment; the justified terror of what might happen in prison; the uncertain outcome of fighting cases before juries; and the possibility of obtaining a far lighter sentence by agreeing to pleas of guilty.

In the case of the NatWest three, the accused faced the possibility of up to 35 years in prison for their alleged offences.  It is a reflection of the gulf in culture that has grown up between the US and the UK that what are in effect life sentences might be imposed for their alleged involvement in helping Andrew Fastow, then Enron’s chief financial officer, defraud Enron.  Such a sentence would be far longer than all but the tiniest proportion of murderers could expect to serve in the UK.  Yet, apparently, it is regarded as perfectly reasonable in the US....

Now imagine that you might face such a sentence if found guilty.  Imagine, too, that you believed yourself innocent of all charges, but recognised the great complexity of the case and the ease with which a prosecutor might twist evidence against you before an uninformed (perhaps prejudiced) jury.  You might suppose you had a one-in-five chance of being found guilty.  That would be particularly plausible if you had run out of financial resources and so were unable to retain a first-rate legal team.  What would you do if the prosecutors offered a plea bargain, under which you would serve just 37 months in prison in your home country (and pay $7.3m in restitution to the Royal Bank of Scotland, now the owner of NatWest)?

The answer is that most people would plead guilty, not because it was true but because it is what any risk-averse human being would do.  To my mind, this system is tantamount to extracting confessions of guilt under a form of psychological torture.  That torture consists of the reasonable fear of being found guilty and fear of the length of time one might then serve in prison and of what might happen while one was there. A ll but exceptionally brave people will confess to almost anything to escape even the possibility of torture. In the same way, the majority of people would surely confess to almost anything to avoid the possibility of spending the rest of their lives in prison.

Recognition of the meaninglessness of confessions extracted under threat of torture was the main reason civilised jurisdictions abandoned its use.  The same objection applies to pleas of guilty made under the kind of plea bargaining employed in the case of the NatWest three. Let me be clear: I am not asserting that the men are innocent.  But the fact that they have made a plea of guilty does not prove their guilt.  It could just as well show that the US judicial system has a potent machine for extracting pleas of guilty to lesser charges. In this way, it has also effectively eliminated a presumption of innocence.

UPDATE: Tom Kirkendall at Houston's Clear Thinkers now has this long post examining "The real NatWest Three deal."

A turning point on sex offender residency restrictions?

I am pleased to see this new article from the Kansas City Star entitled "Georgia ruling on sex offenders prompts other states, including Missouri, to re-examine laws." Here is how it starts:

Georgia Supreme Court ruling has refueled the debate on whether states should restrict where sex offenders live.  The Georgia court struck down its residency restrictions last week, giving opponents of such buffer zones hope that other state laws will be reviewed and possibly overturned....

At least 21 states — including Missouri — have laws that ban registered sex offenders from living within a specified distance of schools, day-care centers and in some cases parks, swimming pools and bus stops.  After high-profile child abductions and sexual assaults, parents across the nation fought for the buffer zones, urging lawmakers to protect their children from sexual predators.

Some authorities think the laws, if properly enforced, are helpful. “I do think there’s an increased danger if a sex offender is in close proximity to children that they’ll re-offend,” Platte County prosecutor Eric Zahnd said. “Many are pedophiles in the truest sense of the word.”

But for the past three years, opposition to residency restrictions has grown. Opponents say buffer zones create a false sense of security for parents because offenders are restricted only in where they live, not in where they go.  Also, ... in the vast majority of cases children know their molesters....

Opponents also say that residency restrictions lead many offenders to stop registering, which they are required by law to do; become homeless; or move to rural areas where they can’t be easily tracked. In Iowa, where courts have upheld the buffer zones, authorities estimate that they have lost track of many offenders and say it will only get worse.

That’s why Georgia’s ruling was “monumental,” said Corwin Ritchie of the Iowa County Attorneys Association. “When these laws were first bantered about, they sold an awfully convincing bill of goods, that they are awfully good safety measures,” Ritchie said. “I think in Georgia they are seeing the full impact of the unintended consequences and saying this is not constitutional.”

I hope it is true that the Georgia Supreme Court's recent ruling in Mann (discussed here and here) starts to turn the tide on residency restrictions  — or at least leads to more inquiries about the efficacy of these laws.  However, because Mann is based on a contestable Takings theory, I am not yet confident that we are at a sea change moment with these laws.

Latest FSR issue on "Learning from Libby"

I am pleased to report that, just in time for the holiday clemency season, the latest issue of the Federal Sentencing Reporter examining the Libby commutation has gone to press. The opening commentary to this FSR issue, which I co-authored FSR fellow Aly White, is entitled "Looking at the Libby Case from a Sentencing Perspective" and can be downloaded below. 

The full contents of this latest FSR issue are listed below and should be accessible electronically here very soon. The Federal Sentencing Reporter can be ordered on-line here.

EDITORS' OBSERVATIONS

• Douglas A. Berman & Alyson S. White, Looking at the Libby Case from a Sentencing Perspective [Available here: Download 20.1 Ed Obs.pdf]

ARTICLES

• Margaret Colgate Love, Reinventing the President’s Pardon Power
• Molly M. Gill, Into the Bottomless Black Box: The Prisoner’s Perspective on the Commutation Process
• Keith Heidmann, Can I Get What Lewis Libby Got?
• Stephanos Bibas, Rita v. United States Leaves More Open Than it Answers

PRIMARY MATERIALS

• Sentencing Memoranda Submitted in US v. I. Lewis Libby
• Statement by the President on Executive Clemency for Lewis Libby
• Testimony before House Judiciary Committee on Libby Commutation
• Post-Clemency Sentencing Ruling by Judge Walton in US v. I. Lewis Libby
• US Sentencing Commission Research Memorandum, Analysis of the Impact of the Crack Cocaine Amendment if Made Retroactive

Great recent commentary on federal criminal justice issues

I am consistently impressed with the columns on criminal justice issues done by Debra Saunders of the San Francisco Chronicle (though I am surprised she is described on the paper's website as someone who provides "op-ed commentary with a conservative edge").  And thanks to a helpful colleague, I see that Saunders has authored these three strong pieces on federal criminal justice issues recently:

• "Free Clarence Aaron" (about an overpunished federal defendant meriting clemency)

• "Willie Horton 2008" (on the politics of crime and punishment in the presidential campaign)

• "Federal prosecutors on steroids" (on the Barry Bonds indictment)

Candidates asked "what would Jesus do" about the death penalty

Though I did not get a chance to watch the YouTube/CNN Republican debate last night, I saw highlights of the clip in which a young person asked the self-proclaimed Christian conservatives to answer the question "what would Jesus do" about the death penalty.  This entry from the Chicago Tribune's political blog provides more details on the question and the evasive answers given by two candidates.  When pressed for an answer, Mike Huckabee said "Jesus was too smart to ever run for public office.  That's what Jesus would do." 

Because I find the intersection of religion and politics very interesting, I was sorry to hear that not all the candidates had to respond to this question.  (The great irony, of course, is that Jesus himself was subject to the death penalty, a point that I do not think was mentioned.)

Some related posts on victims, religion and the death penalty:

• Fascinating NY Times piece on victims, religion and the death penalty
• Senator Brownback questions death penalty and culture of life
• Debating religion and the death penalty
• New DPIC page on religion and the death penalty
• New resource examining religion and the death penalty
• Remarkable circuit judge speech on capital punishment at mass
• Sister Prejean's powerful perspective

Inequities and uncertainties in federal death penalty

As we move into the third month of the Baze-ian moratorium on executions created by the Supreme Court, I continue to wonder how a halt in execution might be impacting the day-to-day administration of the death penalty.  This AP piece from West Virginia notes that Baze "has prompted a federal judge to postpone sentencing two Mingo County residents who face the death penalty for murdering a drug informant."  This local piece discussing the same case also details interesting defense arguments that are being raised.  Here are snippets:

Two Mingo County residents unfairly face execution for murdering a federal drug informant in 2005 because the victim was a white woman, their lawyers said in federal court Wednesday. Earlier this year, George M. “Porgy” Lecco, 58, and Valerie Friend, 45, were convicted of murdering Carla Collins because she gave a federal drug task force information about a cocaine ring operating out of Lecco’s pizzeria in Red Jacket.  Jurors sentenced the pair to death, which is possible in federal court even in states like West Virginia that do not have capital punishment.

Kevin McNally, one of Friend’s lawyers, said Wednesday he had recently completed an analysis of more than 1,000 federal death penalty cases. Only 10 percent of the victims were white women, he said. When those cases go to a jury, half of them result in a death sentence, he said. The unfair application of the death penalty depending on the race and sex of the victim makes it unconstitutional, he argued. “If Congress passed a law that killers of white females should [overwhelmingly] receive the death penalty, you would strike that down in a heartbeat,” McNally told U.S. District Judge John T. Copenhaver Jr. “Essentially, that’s what’s happening.”

McNally, a member of the anti-capital punishment Federal Death Penalty Resource Project, asked the judge to postpone Lecco and Friend’s formal sentencing until he can file a written brief describing his findings.  He said it was “irrational” for American juries to recommend execution for Friend, a middle-aged mother of five with little or no criminal history, when multiple murderers, terrorists, and gang members who killed again while in prison are given life sentences. “I use the word ‘insanity,’” he said.

Some related posts on the federal death penalty:

• The federalization of the death penalty
• A poster child for the (federal) death penalty?
• More support for an exclusively federal death penalty
• The federal law gap in the NJ death penalty report
• The federal death penalty in America's paradise
• Ashcroft's death penalty "legacy"
• Context-free ruminations on the federal death penalty

Should Michael Vick's federal sentencing be concerned with gang tackling?

As this CNN piece details, "Michael Vick has agreed to pay nearly $1 million for the care of about 54 pit bulls found on his property during a dogfighting raid."  In addition, earlier this week Vick learned that a trial on state dogfighting charges has been set for April.  And, according to the CNN piece, there is lots of evidence that Vick's financial condition is deteriorating even faster that his personal reputation.

An interesting legal question raised by all of these developments concerns whether they should lead to a reduced federal sentence because of all the collateral consequences Vick has suffered.  There are lots precedents for cutting Vick a federal sentencing break because of all the other forms of punishment he is enduring (ranging from the Supreme Court's decision in Koon to the President's commutation in Libby).

Some related Vick posts:

• Should Michael Vick get sentencing credit for PETA passage?
• An amici sentencing brief going to the dogs
• Does Vick's (sincere?) apology change anything?
• Vick being sacked by the collateral consequences of an indictment
• Friday forum: what sentence should Vick get if he pleads guilty?
• Michael Vick takes a plea deal
• Mid-week forum: is it fair for Vick also to face state criminal charges?
• Vick surrenders early; is it a good move?

Any early predictions for Lord Conrad Black's fate?

I have been getting lots of media calls (mostly from folks with great accents) because the parties public objections to the presentencing report for Conrad Black have been submitted this week.  Though the PSR is not a public document, this effective news overview highlights that it seems the PSR has rejected some of the government's boldest sentencing suggestions.

Though I have never followed this case closely, I know there are some interesting acquitted conduct issues lurking, in addition to all the usual white-collar issues (including whether he will get bail pending appeal).  And I believe that US Attorney Patrick Fitzgerald --- remember him? --- is seeking a sentence measured in decades, while the defense is seeks a sentence measured in months.  Of course, in all likelihood, the sentencing judge will end up between the parties and have a number with years.  Any predictions about what that number will be, dear readers?

Assessing and reflecting on the trial penalty

Tom Kirkendall at Houston's Clear Thinkers has this great new post entitled "Hedging the trial penalty."  Here is a taste:

Although some have questioned his business ethics, no one has ever questioned that legendary Houston oilman Oscar Wyatt is good at hedging risk.  After Wyatt was sentenced yesterday to a year in prison as a result of his plea deal, my sense is that Wyatt hedged the trial penalty risk (i.e., a life sentence) in an reasonably effective manner.

Meanwhile, in another plea deal, a tenured economics professor at the University of Pennsylvania faces a likely prison sentence of 4½ to seven years for bludgeoning his wife to death. The professor says he "just lost it."  What must Jamie Olis think about that as he finishes serving what will almost certainly be a longer sentence than the professor will serve?

And what about Chalana McFarland, a first-time offender who was sentenced to 30 years in prison in connection with a mortgage fraud scheme....

Is the draconian trial penalty in the American criminal justice system really generating the type of results that a truly civil society wants?

I think about these issues a lot because the most extreme sentence almost always involve some kind of trial penalty: consider, for example, the reality that Genarlow Wilson and Weldon Angelos and border agents Ignacio Ramos and Jose Compean were all offered pleas deal that would have resulted in prison sentences years or even decades shorter than what they received after trials (in which, by the way, there were acquittals on some counts).

More concretely, I wonder if anyone has tried to do a serious empirical analysis of the extent of the trial penalty in federal white-collar prosecutions (post Sarbanes Oxley).  My anecdotal impression is that the trial penalty in some large corporate cases is now decades long.  If some Justices or legislators really cared about the right to a jury trial, it is high time some more attention is given to this ugly reality.

A helpful list of blawgs from the ABA Journal

As How Appealing details here, the ABA Journal has created this "Blawg 100" list.  Though I am biased toward the list because I am on it (and because it describes my commentary as avant-garde), I think it is fair for me to assert that the list provides a terrific "blogroll" for lawyers looking to keep up with legal news and ideas. 

Relatedly, the magazine has this feature entitled "ForeBlawggers: Seven lawyers who started the blawg revolution."  I'm sold on most of ABA Journal's picks for founding bloggers, though I think a few other law professor bloggers (e.g., Althouse, Banbridge, Balkin, Leiter, Lessig) might have merited a place on the ForeBlawggers list.

Second Circuit finds problem with upward enhancement

Harlan Protess at the Second Circuit Sentencing Blog has this speedy coverage of what he calls a "Major Relevant Conduct Decision By The Second Circuit."  Here is how Harlan describes today's work by a panel in US v. Juwa, No. 06-2716 (2d Cir. Nov. 28, 2007) (available here):

Notwithstanding an advisory Guidelines range of 24-30 months for a guilty plea to one count of possession of child pornography, Juwa was sentenced to 90 months imprisonment.  In declaring its reasons for the upward departure, the district court cited the fact that Juwa had engaged in sexual conduct with a minor "on repeated occasions."  Yet Juwa had only indicated his intent to plead guilty to one count of felony sexual abuse in a parallel state case. It was therefore unclear to the Second Circuit to what extent the district court impermissibly based its sentencing enhancement on unsubstantiatied charged conduct, thereby rendering the 90 month sentence procedurally unreasonable. The Second Circuit ordered a reversal and remand.

I hope to have more on this decision once I get a chance to read it.

UPDATE:  Though I was hoping for more from Juwa given its strong panel, the decision has some useful (though tepid) language about a "a defendant's due process right to be sentenced based on accurate information."  What really makes the case interesting are its notable facts and dyanmic issues of federalism, victims rights, and prosecutorial discretion that are entirely avoided by the written opinion.

Restitution, victim rights and judicial activism

Thanks to this post at Crime & Consequences, I see that earlier this week the California Supreme Court ruled in People v. Giordano, S138382 (Cal. Nov. 26, 2007) (available here), that a sentencing judge can order restitution to the spouse of a homicide victim for his or her future economic losses.  The majority opinion includes an effective overview of the evolution of the state’s restitution scheme.  And the lone dissenter, Justice Kennard, indirectly accuses the majority of inappropriate judicial activism based on their personal sympathies for the victim. Here is how the dissent begins:

The majority holds that in a criminal proceeding the sentencing court may order a defendant who has been convicted of a homicide crime to pay the deceased victim’s surviving spouse, as restitution, a portion of the estimated income that the deceased victim would likely have earned.  In the tragic circumstances of this case, that holding is certainly appealing. But the Legislature has established other methods by which a surviving spouse may obtain restitution for loss of economic support resulting from a homicide victim’s death — the surviving spouse may bring a civil wrongful death action (Code Civ. Proc., § 377.60) against the defendant or apply to the state Restitution Fund established for crime victims (Gov. Code, § 13950 et seq.).  A close review of the pertinent legislative scheme reveals several reasons to doubt that the Legislature has, in addition to these two clearly established methods for obtaining restitution for lost support, also authorized sentencing courts to include this category of loss in a direct restitution order.  It seems more likely that the Legislature reasonably decided that the criminal sentencing process is ill suited to making the often exceptionally complex damage calculations that are required.

Because I do not think the term "judicial activism" has any real meaning (and have been particularly troubled by its use as an epithet), I do think the California Supreme Court might be accused in this case of "making policy from the bench."  Apart from the specific ruling here (which also merits comment), I wonder what commentors think about the concern that the Justice here are letting personal policy views color their legal analysis.

Who will shape the future of technocorrections?

Among lots of great new posts at Corrections Sentencing is this item noting that the Baylor College of Medicine has a new program focused on some issues that may arise in many future debates of technocorrections.  The program's webpage is at this link, and here is part of its self-description:

Baylor College of Medicine’s Initiative on Law, Brains and Behavior addresses how new discoveries in neuroscience should navigate the way we make laws, punish criminals, and develop rehabilitation.  The project brings together a unique collaboration of neurobiologists, legal scholars, ethicists, medical humanists, and policy makers, with the goal of running experiments that will result in modern, evidence-based policy.

Emerging questions at the interface of law and neuroscience include: .... Can novel technologies such as brain imaging be leveraged for rehabilitation?  How should juries assess responsibility, given that most behaviors are driven by systems of the brain that we cannot control?

In conjunction with study and development of policy, the initiative will fuel the development of new technologies for diagnosis and rehabilitation — for example, describing neural signatures that predict recidivism, and developing feedback in real-time brain imaging as a strategy for rehabilitation.

I have long expected that private industry and market forces would be the primary influences on the early development of technocorrections like GPS tracking and drug therapies (and a recent LA Times article confirmed the importance of economics).  This new project is an encouraging sign that persons with real medical knowledge might take on a leadership role in some areas of technocorrections.

Canadian politicians punishing mandatory minimum drug sentencess

The CanWest News Service has this interesting article highlighting that the debate over mandatory minimum drug sentencing is spreading north of the boarder.  The article is entitled "Ottawa intent on minimum sentences despite suggested ineffectiveness," and here are excerpts:

Federal Justice Minister Rob Nicholson is pressing ahead with plans to create mandatory minimum prison terms for drug crimes in spite of two studies prepared for his own department that say such laws don't work, and are increasingly unpopular as crime-fighting measures in other countries.

"Minimum sentences are not an effective sentencing tool: that is, they constrain judicial discretion without offering any increased crime prevention benefits. Nevertheless, mandatory sentences remain popular with some Canadian politicians." That's one conclusion of a 2005 report prepared for the Justice Department...

Despite such conclusions, the Conservatives unveiled legislation last week to create mandatory minimum prison terms for drug possession, production and trafficking.  The automatic minimum jail terms range from six months for growing and selling a single marijuana plant to three years for producing any quantity of coke or crystal meth in a home lab.  A clause in the bill would allow judges to exempt certain offenders from prison if they pass a court-monitored drug treatment program.

The proposal has been widely criticized as counter-productive by criminal lawyers, criminologists and at least one former Canadian judge. Those criticisms appear to be backed up by the government's own research.... "Severe MMS seem to be least effective in relation to drug offences," said the 2002 study. "MMS are blunt instruments that provide a poor return on taxpayers' dollars."

Nicholson did not respond to a request for an interview on the subject Tuesday. "Drug trafficking, grow-ops, a whole host of activities, have become much worse in recent years," he said last week as he introduced the changes. "I think Canadians and most people will applaud this move."

That, says one observer, is the main reason for the legislation, whether or not it is passed by Parliament. "This is patent stupidity," says Eugene Oscapella, a criminal lawyer who teaches drug policy at the University of Ottawa. "The only excuse I can think of, for why the Conservatives would announce mandatory minimums, is the perceived political mileage this will earn them among certain segments of the public."

Some other white-collar sentencing news and notes

This post on the Eleventh Circuit's affirmance of the 30-year (within-guideline) sentence of first-offender Chalana McFarland for mortgage fraud has generated lots of interesting comments about white-collar sentencing.   If folks want more grist for the mill in this arena, check out these news stories about some white-collar sentencing developments:

• From the AP here, "Texas Oilman Handed Year Prison Term"

• From the CanWest News Service here, "Conrad Black may face stiffer sentencing"

• From the AP here, "High-profile L.A. lawyer gets prison for fraud, other crimes"

• From the Honolulu Star-Bulletin here, Ex-charity worker gets 30-year term for fraud

There are lots of interesting facets to all these stories, and the Conrad Black sentencing will likely be making even more headlines as sentencing approaches.

Big Third Circuit ruling on post-Booker practices

Today, the Third Circuit has issued a very sizable and seemingly quite significant opinion in US v. Ali, No. 05-2098 (3d Cir. Nov. 27, 2007) (available here), reversing lenient sentences given to two defendants found guilty of fraud.  Here's how the 47-page opinion starts:

The Government appeals the sentencing calculations and downward departures from the Sentencing Guidelines ranges for defendants found guilty of fraud. A criminal jury convicted Faridah Ali (also known as Rita Spicer) and her daughter Lakiha Spicer (together, "defendants") for using a school to obtain federal funds for classes that were never conducted.

At sentencing, the District Court applied a reasonable-doubt standard to determine loss amounts far below the ones the Government had urged under a preponderance-of-the-evidence standard. The Court then looked to good works and community support along with other factors to depart downward from the suggested Guidelines ranges.  Defendants received no prison time. Instead, the Court sentenced each defendant to some term of probation with periods of in-home confinement and restitution payments in line with its determination of the loss amounts. 

The issues presented to us are whether the Court erred in its initial Guidelines calculations, whether it relied on inappropriate factors for its downward departures, and whether the resulting sentences were unreasonable.  We conclude yes for all three issues and remand for further proceedings.

Are we willing to pay the costs of (effective?) technocorrections like GPS tracking?

Today's Los Angeles Times has this fascinating article entitled "Viability of sex-offender law in doubt; The lifetime GPS monitoring ordered by Prop. 83 may be too costly and complex to ever fully implement."  Here is how it starts:

Law enforcement leaders who pushed for a ballot initiative requiring sex offenders in California to be tracked by satellite for life are now saying that the sweeping surveillance program voters endorsed is not feasible and is unlikely to be fully implemented for years, if ever.

Under the measure, approved overwhelmingly a year ago, sex offenders must be strapped with global positioning system devices that can record their whereabouts even after they finish parole and leave the criminal justice system.

Despite their qualms, law enforcement groups contend that the benefits of Proposition 83, popularly known as Jessica's Law, outweigh its problems, and they insist that many of the flaws can be fixed. But in interviews and testimony to a state board, they have cited complications with almost every aspect of the provision requiring lifetime monitoring. The difficulties include the impracticality of tracking sex offenders who no longer must report to parole or probation officers, the lack of any penalty for those who refuse to cooperate with monitoring and the question of whether such widespread tracking is effective in protecting the public.

The biggest issue, however, is that the law does not specify which agency or government should monitor felony sex offenders -- and shoulder hundreds of millions of dollars a year in related costs.

The article is not really surprising, but it effectively previews the terms of many future debates over innovative approaches to sentencing and corrections.  The economics and efficacy and GPS tracking of sex offenders is likely only to be the first of many issues to raise difficult questions as different types of technocorrections start to migrate from science fiction to sentencing fact.

Some related posts on sex offender GPS tracking:

• Lifetime GPS tracking after consensual teenage sex
• The devil's in the details of GPS tracking of sex offenders
• Is GPS tracking a better way?
• More on the pros and cons of GPS tracking
• The practical challenges of sex offender tracking
• New article examining incapacitation innovations

Eleventh Circuit affirms 30-year(!) sentence for white-collar offense

The White Collar Crim Prof Blog details here that the Eleventh Circuit yesterday affirmed (in this unpublished opinion) the conviction and 30-year (within-guideline) sentence of first-offender Chalana McFarland.  As the panel's per curiam ruling explains, "McFarland and her co-conspirators defrauded mortgage lenders and insured depository financial institutions by inflating the fair market values of properties which were then used to secure fraudulent loans for straw buyers."

McFarland seemed to have a strong substantive reasonableness argument that the imposition of a 30-year guideline sentence was greater than necessary in light of personal mitigating factors.  McFarland's appeal brief (available here) devotes 13 pages to a detailed argument based on the 3553(a) factors that her sentence is unreasonable.  And the Eleventh Circuit has rejected a presumption reasonableness for guidelines sentences and even assert that there are "many instances were the Guidelines range will not yield a reasonable sentence." US v. Hunt, 459 F.3d 1180, 1184 (11th Cir. 2006). 

However, the Eleventh Circuit is still yet to find a within-guideline sentence unreasonable, and McFarland would have seemed to be a good candidate for such a ruling.  Instead, the panel provides this uninspired explanation of its rejection of McFarland's appeal:

At the sentencing hearing, the district court first correctly calculated the Guidelines sentence. McFarland does not challenge that calculation.  The court then explicitly recognized a duty to consider the factors listed in 18 U.S.C. § 3553(a).  The court also considered McFarland’s argument as to why a sentence below the Guidelines range might be appropriate.  In rejecting her arguments, the court explained that, due to specific factors listed in § 3553(a), he believed a Guidelines sentence to be appropriate.  We agree.  Accordingly, we find the sentence to be reasonable.

I hope McFarland considers seeking en banc review and further appeals.  This decision seems like an indirect reputation of Hunt and also seems in tension with the Supreme Court's work in Rita.

UPDATE:  Commentors to this post seem interested in more explanation for my concern that thie Eleventh Circuit's work here seems in tension with Rita.  This view builds in part on my list of important post-Booker ideas suggested by a close reading of the Rita opinion, especially the ideas that:

• a guideline sentence ought not be given, and a traditional departure is justified, if the offense or offender is "atypical" and thus not within the "mine-run of similar" cases.  Rita slip at 4, 20;
• cases involving "straightforward, conceptually simple arguments" may generally require only a "brief" statement of reasons; cases with complicated issues may generally require "the judge to write more extensively." Rita slip at 17, 20;
• there must be some within-guideline sentence that do not achieve §3553(a)'s objectives and circuit courts have to identify the "times" when district judges impose sentences that are unreasonable.  Rita slip at 14;
• some defendants should sometimes prevail with arguments that a "Guidelines sentence is not reasonable under §3553(a) because it expressly declines to consider various personal characteristics of the defendant."  Rita slip at 21.

Georgia sex offenders (and prosecutors) on my mind

Thanks to links from How Appealing, here are two notable sex offender stories from Georgia:

• From the Atlanta Journal-Constitution here, "Sex offender law in doubt; Residency restrictions may be invalid, but sheriffs want clarification."

• From the Fulton County Daily Report here, "Judge, DA Agree to Deal in Teen Sex Case; Man whose case resembled Genarlow Wilson's allowed out after four years in prison; state high court had upheld 10-year sentence."

Both stories spotlight the sentencing significance of prosecutors and other executive branch officials.  The AJC article explains how the state's Attorney General is giving meaning to the Georgia Supreme Court's recent ruling (discussed here and here); the FCDR article explores why a local prosecutor decided to cut a new deal in a controversial case.

A forthcoming Scalia book already on my must-read list

Thanks to How Appealing I saw that Tony Mauro has this new column in Legal Times headlined, "Scalia to Join Supreme Court Book Club; Don't expect a tell-all: Justice is working on guide for lawyers."  Here are excerpts from the article:

While Supreme Court Justice Clarence Thomas has been out publicizing his bestselling memoir, fellow conservative Antonin Scalia has been quietly writing a book of his own. But Scalia's probably won't be a chart-topper -- except among lawyers.  Without fanfare or publicity, Scalia and Bryan Garner, the legal writing guru, have joined to co-author a book on the art of persuading judges, both orally and in written briefs. 

Even though the irrepressible Scalia sometimes irritates rather than persuades the eight judges he happens to work with, the book seems destined to be a must-read for lawyers whose work brings them into courts.  As Scalia is often viewed as the Court's best and most entertaining writer, his participation in the project is sure to invite comparison with a guidebook on ballet by Baryshnikov or on golf by Tiger Woods.

"Justice Scalia is a very serious student of advocacy," says Garner, whose Dallas-based LawProse Inc. runs extensive CLE training for lawyers on writing.  "The idea is that we can make an important contribution to legal literature... and discuss basic principles of argumentation, rhetoric, and judicial persuasion."

Garner says they have "spent four of the last 14 days side by side in [Scalia's] office," writing and rewriting chapters in the book, a process they began last summer.  It's been an interesting experience, says Garner, who is also editor of Black's Law Dictionary....

In writing the book, Garner and Scalia have also delved into the classic authorities on rhetoric, persuasion and oratory, such as Cicero, Aristotle and Quintilian. "It sounds heavy, but it's not," says Garner, who describes Quintilian, a Roman rhetorician who wrote volumes on oratory nearly 2,000 years ago, as "Justice Scalia's new hero." 

Scalia suggested the book's first working title, "May It Please the Court," Garner says, but then nixed it because it has been used for several other works (including Peter Irons' compilation of taped oral arguments, which upset the Court when first published in 1993.)   Now, also at Scalia's suggestion, the projected title is "Making Your Case: The Art of Persuading Judges."  Garner says the publisher will be West.

This new book will be a must-read for all lawyers who file papers in the Supreme Court and probably all serious legal advocates.  And the snarky blogger in me cannot help but respond with a few questions in reaction to this article, such as (1) Why is Justice Scalia madly busy writing a book instead of writing opinions this time of year? and (2) Will his book include a chapter entitled "The Art of Persuading Clerks in the Cert. Pool"?

Does hyperbole help or hurt in lethal injection debate?

Eric Berger has this notable op-ed in the Los Angeles Times on lethal injection protocols, headlined "Unfit to execute: States know that their lethal injection procedure may cause excruciating pain, yet they defend it anyway."  As these snippets show, the piece is full of forceful rhetoric:

For years, the conventional wisdom has been that lethal injection is a humane means of execution. In fact, nothing could be further from the truth....  Thirty-seven states have selected potentially excruciating chemicals, and many have delegated administration of those drugs to unfit personnel.  As a result, it is virtually certain that inmates have needlessly suffered painful deaths and that more will continue to do so -- unless states and the federal government substantially revise their methods.

The prevailing method of lethal injection employs three drugs that simultaneously create a risk of terrific pain and conceal that pain from all observers.... Experts agree that other drugs could cause death without the risk of also causing undue suffering.  Because the states have selected drugs that are so sensitive to error, however, it is imperative that they employ the right people to administer them. But numerous states employ people who are manifestly unfit....

It is disturbing that states not only use needlessly painful chemicals but that some also employ unqualified people to administer them.  What is intolerable, though, is for states to insist on retaining those same chemicals and personnel once they have been alerted to the significant risk of profound suffering.  Numerous states have done exactly this -- and then sought to conceal all information about their procedures....

It is outrageous that states and the federal government have elected to carry out executions with dangerous, painful chemicals and then abdicated responsibility for the procedures to untrained, unqualified personnel.  Government owes its citizens a transparent, careful reconsideration of this deeply flawed procedure that, as currently constituted, is bound to fail.

Though I agree with the basic gist of this op-ed, the piece seems less effective because of its hyperbole.  The piece hints of a mass conspiracy to "needlessly" cause "undue" and "profound" suffering during executions, and it suggests that a "deeply flawed procedure" is "virtually certain" to lead to inmates "needlessly suffer[ing] painful deaths."  The piece leaves out the fact that a number of states have gone through a "careful reconsideration" of its protocols in recent years on their own initiative, and others have done so when courts have said they should.

Many death penalty critics are justifiably troubled by a lack of transparency in state reviews of execution protocols.  But this op-ed and other critics do not acknowledge the reality that any transparency good deed tend to get punished through additional legal challenges and delays.  Indeed, the fact that a state has recently tried to improve its protocol is often a key point for a defendant asking for another judicial review.

I have been urging for years now that execution protocols are a matter of national significance calling for the attention of the nation's legislature, as so I am sympathetic to the themes of this op-ed.  However, since the nation's High Court has decided to get involved after congressional inaction, I think it is important for the hyperbole to be replaced with more sober and balanced analysis of these issues.

Inside the Beltway views on crack amendment retroactivity

In addition to the Justice Department, some members of Congress have expressed opposition to the US Sentencing Commission making its new crack guidelines retroactive.  In an letter to the USSC Chair earlier this month (and available for download below), 13 members of the House urged the USSC "not to apply this amendment retroactively."  Avid sentencing fans will not be surprised by the names appearing on this letter.

Download crack_powder_retroactivity_letter.pdf

Meanwhile, today's Washington Post has this new editorial urging the USSC to make the new guideline retroactive and urging further congressional action on crack sentences.  Here is how it starts:

This month, a measure of rationality was injected into federal sentencing guidelines when more lenient penalties for crack cocaine became the law of the land.  The new guidelines will affect defendants convicted in the future, but they also should be made retroactive.  That would bring some measure of equity to thousands of offenders -- roughly 85 percent of them African American men -- already serving unjustifiably long prison terms.

Some recent related posts:

• USSC hearing testimony on crack amendment retroactivity
• A report on the USSC crack retroactivity hearing
• Media coverage of crack retroactivity hearing
• Effective coverage of crack retroactivity debate
• USSC analysis on potential crack amendment retroactivity impact
• Thoughtful review of crack amendment retroactivity debate
• Latest FSR issue covers crack sentencing

A continuing panic and sex offense statistics

Continuing on the always interest topic of crime statistics, the Arizona Republic has this interesting article highlighting that, at "a time when public awareness of child molesters and rapists has never been more acute, arrests for sex offenses have been dropping steadily for almost a decade."  Here are some snippets from the article:

FBI reports show that arrests are down across the country, including Arizona, where the numbers have fallen from more than 2,000 in 1997 to 1,500 last year. Criminal-justice experts are uncertain about the reason. At the same time, new federal and state laws are cracking down on convicted offenders like never before....

For some experts, the declining arrests in the middle of intense public scrutiny is a mystery.  The decline in both reported rapes and arrests for sex offenses nationwide began in the early 1990s, before many of today's get-tough measures were implemented.  Other officials say the drop in sex-offense rates and heightened monitoring go hand in hand....

One of the ironies of the greater scrutiny is the focus on sexual assaults involving strangers. The vast majority of sex offenses are committed by relatives or friends of the victim....

Various studies over decades have found a wide range of recidivism rates.  Findings appear to vary according to type of offense and victim, how recidivism is defined and other factors.  One Canadian study in 1998 found a recidivism rate of 13 percent for child molesters over four to five years.  Another in 2004 found that over 25 years, three in five sex offenders commit a sex crime again.

Could we see Gall and Kimbrough in the coming weeks?

As detailed in this prior post, Tuesday and Wednesday of the next two weeks are possible opinion days for the Supreme Court.  And, if past is prologue, the Court ought to hand down at least a couple opinions from cases argued in October.  And, of course, the cases I am obsessing over are the Gall and Kimbrough reasonableness review cases.  Anyone want to predict the likelihood of seeing these opinions in the coming days?

Among the interesting wrinkles to this guessing game is the US Sentencing Commission's new reduced crack guidelines and the on-going debate over their retroactive application.  Derrick Kimbrough's sentence would clearly be impacted if these new guidelines were made retroactive (and arguably his resentencing would be affected even if these guidelines are not made retroactive).  Especially if the Justices are divided on how to resolve Kimbrough, it is possible (though I do not think likely) for the Court to decide simply to remand this case to the Fourth Circuit for reconsideration in light of the new crack guidelines.

The psychology of punishment philosophy

Kevin Carlsmith and John Darley have posted on SSRN this chapter of a forthcoming book, which is entitled "Psychological Aspects of Retributive Justice." Here is the abstract:

Retributive justice is a system by which offenders are punished in proportion to the moral magnitude of their intentionally committed harms.  This chapter lays out the emerging psychological principles that underlie citizens' intuitions regarding punishment. We rely on experimental methods and conclude that intuitions of justice are broadly consistent with the principles of retributive justice, and therefore systematically deviate from principles of deterrence and other utilitarian based systems of punishing wrongs. We examine the recent contributions of social-neuroscience to the topic and conclude that retributive punishment judgments normally stem from the more general intuitive-based judgment system.  Particular circumstances can trigger the reasoning-based system, however, thus indicating that this is a dual process mechanism.  Importantly, though, evidence suggests that both the intuitive and reasoning systems adhere to the principles of retribution.

The empirical results of this research have clear policy implications. Converging evidence suggests that the formal U.S. justice system is becoming increasingly utilitarian in nature, but that citizen intuitions about justice continue to track retributive principles.  The resulting divide leads people to lose respect for the law, which means that they do not rely on the law's guidance in ambiguous situations where the morally correct behavior is unclear.  These are the dangers to society from having justice policies based jointly on the contradictory principles of retribution and utility, and we lay out an argument for enacting public policies more exclusively based on retributive principles of justice.