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March 29, 2008

Detailed examination of administering the death penalty in California

Asset_upload_file749_6770 This article from the San Jose Mercury News details the latest doings in the on-going examination of death penalty realities in California.  Here are excerpts:

A key state justice commission Friday completed its investigation into California's death penalty, as it heads toward a mid-summer report that is expected to recommend reforms to the country's most prolific capital punishment system.  In the third and final hearing on the death penalty, the California Commission on the Fair Administration of Justice considered testimony at Santa Clara University from a range of witnesses who raised concerns about arbitrariness and the high cost of imposing death sentences, as well as the reluctance of governors to consider clemency for death row inmates.

The American Civil Liberties Union presented two thick studies to the commission, one examining geographical disparities in death sentences in California and the second the exorbitant cost of capital trials.  Nearly $11 million, the second study said, was spent on the Scott Petersen trial.

But one leading death penalty supporter cautioned the commission against eroding the death penalty laws, observing that the 20-year delays in death row appeals already have paralyzed capital punishment in California. "More likely than not, the failure to enforce California's death penalty has already killed thousands of people," said Kent Scheidegger, legal director for the conservative Criminal Justice Legal Foundation.

Asset_upload_file993_6770 The "two thick studies" presented by the ACLU of Northern California can be accessed at this link.  The one focused on geographic disparities, titled "Death by Geography" (available here), asserts that "while the vast majority of California counties have largely abandoned execution in favor of simply sentencing people to die in prison, a small number of counties continue to send a large number of people to death row."  The one focused on costs, titled "The Hidden Death Tax" (available here), asserts that "California tax payers spend well over $100 million every year on the death penalty."

March 29, 2008 in Death Penalty Reforms | Permalink | Comments (12) | TrackBack

A new batch of USSC data

The US Sentencing Commission has a new batch of post-Booker sentencing data on its website.  This new data, available here, is the "FY2008 1st Quarterly Sentencing Update," which provides an "extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2008.  The numbers are prepared using data from cases in which the defendant was sentenced by the close-of-business on December 31, 2007 and which were received, coded, and edited by the Commission by March 27, 2008."

Based on a very quick overview, it appear that the data show that well-established post-Booker trends, which have most sentences still coming within the guidelines, persisted through the end of 2007.  But, because the pro-discretion SCOTUS decisions in Gall and Kimbrough were handed down in mid-December, this latest data set does not really reflect the impact of these important rulings.  (The data set to really watch will be the next batch to come from the USSC, which will show whether Gall and Kimbrough changed any of the now long-standing post-Booker realities.)

March 29, 2008 in Booker in district courts | Permalink | Comments (0) | TrackBack

Examining some circuits' unreasonable efforts at reasonable review

A helpful reader called my attention to a new federal sentencing note (which will appear in the William & Mary Law Review this fall) now available here via SSRN.  The note critically examines the effects of Rita and Gall in the Sixth and Tenth Circuits; here is the abstract:

Paul Sedore pleaded guilty to two counts for defrauding the Internal Revenue Service, conspiracy to defraud the IRS and identity theft. Based only on the facts that Sedore admitted in his guilty plea and his criminal history, the Federal Sentencing Guidelines would have recommended 12 to 18 months in prison.  But based on the facts that the sentencing judge found, by a preponderance of the evidence, which Sedore did not admit and the jury did not find beyond a reasonable doubt, the Guidelines advised a range of 84 to 105 months.  The court sentenced Sedore to 84 months. Had another judge sentenced Sedore to 84 months without finding those additional facts, the court of appeals would likely reverse this hypothetical sentence as unreasonable.

The Sentencing Guidelines are hardly as advisory as the Supreme Court imagines.  In United States v. Booker, the Supreme Court tried and failed to establish an appellate standard of review of sentences that both promotes uniformity and does not violate the Sixth Amendment right to a jury trial.  In Rita v. United States and Gall v. United States, the Court considered mechanisms that federal appellate courts use to enforce the Sentencing Guidelines, the presumption of reasonableness and proportionality review.  As in Booker, the Court tried and failed to rein in the courts' infringements on the jury trial right.  By closely examining the Sixth and Tenth Circuits, this Note demonstrates how the combination of the presumption of reasonableness, the double standard of procedural reasonableness, and proportionality review still violate the Sixth Amendment.  Short of Congressional overhaul, this Note argues that the Supreme Court should solve its inherently flawed Booker remedy by prohibiting substantive reasonableness review and requiring uniform sentencing explanations from district courts.

March 29, 2008 in Booker in the Circuits, Claiborne and Rita reasonableness case, Gall reasonableness case, Rita reactions | Permalink | Comments (0) | TrackBack

March 28, 2008

A (sad? happy?) prison family values ending for the Yaegers

In this post, which generated lots of comments, I asked "Should dying child justify a federal sentencing break?".  Here is the end of the story that generated the question:

A 10-year-old girl has died, just a day after her wish to see her father was granted.  Jayci Yaeger's imprisoned father, Jason, went to her bedside Wednesday -- a visit federal authorities allowed only after being deluged with letters and phone calls from across the nation.

Sources said Yaeger did leave the girl's side to consult with hospice counselors and get some direction on how to speak with the girl about what she was going through.   Prior to Wednesday, the prison warden had allowed Jason Yaeger three visits to his daughter, but had denied requests for a longer furlough or an early transfer to a halfway house in Council Bluffs, Iowa. The warden told Yaeger it was not viewed as an extraordinary circumstance.

Letters and e-mails from across the nation have reached the Yaeger family and appealed to the prison to allow the man to see his daughter.  The family asked the media to share their story with the hope of encouraging prison officials to allow the visit.  He's scheduled to be released to a halfway house in August.

Yaeger asked President George W. Bush for clemency. Yaeger spent four years in a federal prison on methamphetamine-related charges. Officials with the Federal Bureau of Prisons would not confirm a visit took place.

Officials said they would only comment on a possible visit after a prisoner returned from a furlough.  On Thursday, Jayci's mother described Jayci's condition as minute-by-minute, saying the girl had gone into respiratory distress three times that day.

March 28, 2008 in Scope of Imprisonment | Permalink | Comments (5) | TrackBack

¡Hasta luego, amigos ... unless you learn English!

This creative sentencing story from CNN, headlined "Judge: Learn English or go to jail," is sure to generate some creative sentencing debates among all my favorite commentors on a Friday.  Here are the basics: 

A judge known for creative sentencing has ordered three Spanish-speaking men to learn English or go to jail. The men, who faced prison for criminal conspiracy to commit robbery, can remain on parole if they learn to read and write English, earn their GEDs and get full-time jobs, Luzerne County Judge Peter Paul Olszewski Jr. said.

The men, Luis Reyes, Ricardo Dominguez and Rafael Guzman-Mateo, plus a fourth defendant, Kelvin Reyes-Rosario, all needed translators when they pleaded guilty Tuesday. "Do you think we are going to supply you with a translator all of your life?" the judge asked them.

The four, ranging in age from 17 to 22, were in a group that police said accosted two men on a street in May.  The two said they were asked if they had marijuana, told to empty their pockets, struck on the head, threatened with a gun and told to stay off the block.

Attorneys for the men said they were studying the legality of the ruling and had not decided whether to appeal. One of the attorneys, Ferris Webby, suggested that the ruling was good for his client, Guzman-Mateo. "My client is happy," Webby said. "I think it's going to help him."

The judge sentenced the four men to jail terms of four to 24 months. But he gave the three men, who already had served at least four months, immediate parole.... Olszewski ordered the three to return with their parole officers in a year and take an English test. "If they don't pass, they're going in for the 24 [months]," he said.

Olszewski is known for outside-the-box sentencing.  He has ordered young defendants who are school dropouts to finish school. He often orders defendants to get full-time employment. But he also has his staff coordinate with an employment agency to help them find the jobs.

As a brilliant colleague pointed out to me this morning, the headline to this story used by CNN is just another example of what I now call the "wedge-issue media" turning a positive story into an inflamatory one.  It seems to me that the CNN headline turns what is really a valuable and creative alternative sentence here, which is focused on education and rehabilitation, into a hot-button story that will generate attention for all the wrong reasons.  Then again, the headline did get my attention and led to this post, so maybe I am also part the "wedge-issue media" I have recently come to deplore.  Hmmm. 

March 28, 2008 in Criminal Sentences Alternatives | Permalink | Comments (8) | TrackBack

A poster child for the problem of residency restrictions

MomThanks to this post at the blog Iowa Champion, I saw this MSNBC article about a woman suffereing as the result of broad sex offenders residency restrictions.  Here are some details:

Jennifer Lower was convicted of a misdemeanor sex offense in Ohio seven years ago. After moving to Iowa, and then moving her family to a town with no schools or day cares -- which she can't live near under Iowa law -- she's learned that she is still in violation of the law.

From the Cass County Jail, Lower, 29, said she's frustrated.  Lower is a married mother of three.  She already moved her family to try to comply with Iowa's sex-offender residency law that bans sex offenders from living within 2,000 feet of a school or day care.  She said she can't find a home that complies.  "It's not fair. My rights are basically gone, it seems like," Lower said.

Forced out of Atlantic, Lower and her family moved 5 miles west to Marne, Iowa. There are no schools or day cares in Marne, so Lower said she thought she and her family were safe.  Then Marne passed a new ordinance, making it illegal for sex offenders to live within 2,000 feet of a park or school bus stop. Lowers' home was a couple blocks from the park and less than a block from a bus stop, so once again, a court ordered Lower to move.

She refused and a judge put her back in jail.  "My landlord don't even think I'm a threat," Lower said.  This time, she's lost her children, who are now in foster care.  "The only thing I need to get my kids back is have a stable home," Lower said.

Cass County Attorney Daniel Feistner said Lower's sex crime was a misdemeanor and she may not be much of a threat to the community, but he said he has to enforce the law consistently.  "Unfortunately, as a prosecutor, I don't have the luxury of looking at her individually and say I can apply the law to her or not to her and to someone else," Feistner said.

Especially if Lower's 2001 Ohio misdemeanor sex offense was really minor, her story could readily get new people sympathetic to the plight of relatively minor sex offenders being subject to relatively broad residency restrictions.

Some related posts:

March 28, 2008 in Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Effective reflections on Baze and Kennedy

Though the Supreme Court has a relatively light death penalty docket this term (which I consider a cause for celebration), the two big cases are doozies.  The Baze lethal injection case and the Kennedy child rape case could both produce very important rulings, and this new piece from The Weekly Standard highlights their import.  Here are excerpts:

This Supreme Court term marks a crossroads for death penalty jurisprudence.  For the first time since 1890, the Court is considering the constitutionality of a particular means of execution — the lethal injection cocktail currently used by most states. And it is expected to rule, in a second case, on the constitutionality of capital punishment for a crime other than murder — the rape of a child....

[T]his term's death penalty cases — Baze v. Rees, argued in January, and Kennedy v. Louisiana, due to be heard in April — could yield a deeper entrenchment of foreign mores as constitutional arbiters of punishment under our laws.  Either way, the Court could dramatically redefine the Eighth Amendment limitations on both the scope and nature of the death penalty.

March 28, 2008 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

March 27, 2008

Sentencing perspectives from across the pond

These two interesting articles provide two interesting sentencing perspectives from across the pond:

March 27, 2008 in Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

A great event to gear up for National Crime Victims' Rights Week

As detailed at this Justice Department webpage,  April 13-19 this year marks National Crime Victims' Rights Week.  As detailed below, I will have the good fortune of being able to attend an event a few days before this week to get me all geared up:

The Criminal Justice Research Center, the Department of Sociology and the Ohio State Journal of Criminal Law will host the 19th Annual Walter C. Reckless-Simon Dinitz Memorial Lecture on Monday (4/7).  The event will occur from 6:30 to 8:30 p.m. at the Barrister Club located at 25 W. 11th Ave.  The speaker for the evening will be the Honorable Paul G. Cassell, Professor of Law at the S.J. Quinney College of Law, the University of Utah, and Former Federal District Court Judge for the District of Utah, who will be lecturing on the topic, "In Defense of Victim Impact Statement: Recognizing the Proper and Important Role of Crime Victims in the Criminal Justice Process."

Here is the official abstract for the lecture:

In the last two decades, the criminal justice systems of every state and the federal government have protected the right of crime victims to deliver a victim impact statement at sentencing.  Yet while these reforms have proven popular with the public and politicians, legal academics remain skeptical.  These critics have argued that victim impact statements have no proper role to play at sentencing and that they unduly inject emotion into what should be an objective decision about the appropriate sentence for a defendant.  On this important issue, the critics are wrong and the public is right.  Crime victims have a vital role to play throughout the criminal justice process, particularly at sentencing where judges need a wide range of information to determine the proper sentence for an already-convicted criminal. Moreover, criminal sentencing can never be a completely emotionless process. Even though victim impact statements may be emotional, crime victims provide vital information to judges about the harm caused by a defendant -- a critical component of the sentencing decision. By delivering victim impact statements, victims also regain some of the dignity that was taken from them by criminal offenders.  Victim impact statements at sentencing are therefore a proper part of our nation's approach to criminal justice.

March 27, 2008 in Who Sentences | Permalink | Comments (6) | TrackBack

Third Circuit reverses high-profile death sentence

As detailed in this AP article, a "federal appeals court on Thursday said former Black Panther Mumia Abu-Jamal cannot be executed for murdering a Philadelphia police officer without a new penalty hearing."  Here are more details from the start of the AP piece:

The 3rd U.S. Circuit Court of Appeals said Abu-Jamal's conviction should stand, but that he should get a new sentencing hearing because of flawed jury instructions. If prosecutors don't want to give him a new death penalty hearing, Abu-Jamal would be sentenced automatically to life in prison.

Abu-Jamal, 53, once a radio reporter, has attracted a legion of artists and activists to his cause in a quarter-century on death row. A Philadelphia jury convicted him in 1982 of killing Officer Daniel Faulkner, 25, after the patrolman pulled over Abu-Jamal's brother in an overnight traffic stop.

He had appealed, arguing that racism by the judge and prosecutors corrupted his conviction at the hands of a mostly white jury. Prosecutors, meanwhile, had appealed a federal judge's 2001 decision to grant Abu-Jamal a new sentencing hearing because of the jury instructions.

UPDATE: How Appealing provides some additional media links here.

The Third Circuit's habeas ruling in Abu-Jamal v. Horn is a total of 118 pages and is available at this link.  I predict that both sides seek en banc review and perhaps even Supreme Court review, so this story is not likely to end anytime soon.  And I suspect Capital Defense Weekly and Crime and Consequences in the meantime will have a lot to say about the Third Circuit panel's work here.

March 27, 2008 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

Eighth Amendment SCOTUS cert petition to watch

In a pair of posts late last year (here and here), I discussed some of the interesting facets in Pittman, a South Carolina case involving the severe sentencing of a child murderer for his crime committed at age 12.  The Supreme Court is scheduled to consider the Pittman cert petition in its private conference at the end of this week, and I will be looking eagerly for news about the case on Monday.

This page at the UT School of Law detailes the work done by a law school clinic to present this case effectively to the Supreme Court.  The page also has links to the filings (including amicus filings) in conjunction with the cert petition, all of which provide interesting reading.

March 27, 2008 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Detailed DPIC resource page for Kennedy child rape capital case

I just discoverd that the visit Death Penalty Information Center has this new webpage on the Kennedy capital child rape case from Louisiana to be heard by the Supreme Court next month.  This page hs lots of helpful information, including links to all the briefs filed, concerning what could be one of the biggest criminal justice rulings coming from SCOTUS this Term.

March 27, 2008 in Kennedy child rape case | Permalink | Comments (0) | TrackBack

March 26, 2008

Some SCOTUS goodies from SCOTUSblog

For a variety of different reasons, these new posts at SCOTUSblog might be of interest to sentencing fans:

In addition, there have been lots of great posts over at SCOTUSblog about the Supreme Court's Medellin opinions.  However, I have not yet seen anyone predicting whether Medellin might give us some insight as to what will happen in the Baze lethal injection case (which, of course, raises some important federalism issues against the backdrop of administering the death penalty).

March 26, 2008 in Who Sentences | Permalink | Comments (0) | TrackBack

Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?

Writing here in The New Republic, Robert Gordon has a notable commentary entitled "Criminal Intent: The presidential candidates need to stop ignoring America's crime problem — and start considering innovative solutions."  Here is how the commentary begins:

Here's a funny thing about this presidential campaign season: Two crime dramas — "The Wire" and "Law & Order" — have gotten more attention than actual crime.  Twenty years ago, with the crack epidemic peaking, George Bush rode to victory using Willie Horton against Michael Dukakis.  Now, with the violent crime rate one-third lower, Republicans no longer try to paint Democrats as soft on crime, and Democrats no longer feel the need to prove themselves tough on the issue.  Campus shootings in Virginia and Illinois have barely registered politically, and President Bush's evisceration of aid to local cops has received little attention on the campaign trail. Even Rudy Giuliani, who made his name fighting murder and mayhem in New York, included nothing on crime among his major campaign planks.

Although the end of law-and-order demagoguery is welcome, America still has a crime problem — or, rather, two crime problems.  On one hand, the crime drop of the 1990s has ended, without delivering real relief to many communities.  For example, while murder is down dramatically in New York and Chicago, homicide rates in Baltimore and Detroit are about the same as in 1995 — and 25 percent higher than New York's rate at its 1990 peak. In many inner cities, violence and the fear of violence remain central facts of life that drive away jobs, small businesses, and successful families. Overall, the country's homicide rate is still three times higher than England's or Australia's, and twice that of Canada. According to the University of Chicago's Jens Ludwig, crime costs the United States on the order of $2 trillion a year.

At the same time, America's incarceration rate — the highest on earth — continues to balloon. According to a recent report from the Pew Center on the States, one in 100 U.S. adults is now behind bars, the largest percentage in our history.  The racial imbalance is even more disturbing: One in 106 white men is in prison, compared to one in 15 African-American men.  Overall, our incarceration rate is four times higher than it was in 1980, and more than five times that of England or Canada.

This commentary makes an astute observation about the apparent eagerness for the 2008 campaign to ignore crime and punishment issues.  However, the essay fails to take Bill Clinton to task for transforming the Democratic Party into a party that has — in my view, wrongly — concluded that "law-and-order demagoguery" is essential to winning elections. 

Though this commentary starts by noting the Willie Horton ad that played a role in the 1988 Bush-Dukakis election, it fails to highlight that Bill Clinton in 1992 and throughout his presidency (directly and indirectly) urged Democrats to be involved in "law-and-order demagoguery."  It is against this backdrop that it was so telling and so sad that Senator Hillary Clinton this year was the only Democrat to speak out against the retroactivity of the crack guidelines.  That choice, in my opinion, showed that Senator Clinton still believe that electoral success (even against fellow Democrats) is to be achieved through "law-and-order demagoguery."

Give these realities, it may be an good that so far none of the major Presidential candidates are talking about crime and punishment issues.  The Clintonian approach now seems to be to use these issues as a wedge to beat up on fellow Democrats, and that approach likely ensures that we get policies and politics (at least at the national level) that contribute to both the crime problems that the TNR piece discusses.   

Some posts on crime and punishment and the 2008 campaign:

Cross-posted at PrawfsBlawg

March 26, 2008 in Campaign 2008 and sentencing issues | Permalink | Comments (44) | TrackBack

"The Demise of Mercy" now in print

In this post last year I noted the thought-provoking piece from Rachel Barkow entitled "The Ascent of the Administrative State and the Demise of Mercy."  The piece is now in print as this essay in the latest issue of the Harvard Law Review, and here is the first part of the abstract:

There are currently more than two million people behind bars in the United States.  Over five million people are on probation or some other form of supervised release.  Prisoners are serving ever-longer sentences.  Presidential and gubernatorial grants of clemency are rare events. The use of jury nullification to check harsh or overbroad laws is viewed by judges and other legal elites with suspicion. These are punitive, unforgiving times.

Although a great deal of scholarship has sought to explain the incarceration boom and the rise in punishment, very little work has focused on the reasons why forms of mercy have been on the decline.  Specifically, scholars have not done much to explore why two of the last remaining forms of the unreviewable power to be merciful — executive clemency and jury nullification — are currently looked upon with such disfavor.  Perhaps this question has been ignored on the theory that the rise in punishment and the decline in mercy are two sides of the same coin, both outgrowths of the same phenomenon.  That is, the political climate that produces greater punishment must also depress mercy.  While it is true that the political economy of punishment is an important reason for the decline in nullification and clemency that should not be discounted or ignored, it is not a complete explanation.  As this Essay explains, skepticism about jury nullification and executive clemency has its roots in another development as well: the rise of the administrative state and the key concepts of law that have emerged alongside it.

March 26, 2008 in Recommended reading | Permalink | Comments (1) | TrackBack

March 25, 2008

A new batch of uneventful pardons from President Bush

As detailed in this AP story, "President Bush pardoned 15 people Tuesday and commuted the prison sentence of another."  Here's more from the AP account (which also includes a list of those pardonees): 

Bush has been stingy about handing out such reprieves. With about nine months left in his administration, he has granted 157 pardons. That's less than half as many as Presidents Clinton or Reagan issued during their time in office. Both were two-term presidents.  Most of those on Bush's most recent pardon list were convicted of white-collar or drug offenses.

One name notably absent from the list was star pitcher Roger Clemens. The FBI is investigating whether Clemens lied to Congress about steroid use. An attorney for his trainer has predicted Clemens will be pardoned because of his friendship with the Bush family.

I suspect the Pardon Power blog will have some comments on this latest batch of pardons before long.

March 25, 2008 in Clemency and Pardons | Permalink | Comments (9) | TrackBack

Notable Fifth Circuit opinion on tricky sentencing issue

As regular readers know, there are no shortage of tricky sentencing issues that arise in federal court.  The blog Appellate Review spots one such issue that's produce a circuit split this post, headlined "Split Noted: Can a District Court Require Its Sentence To Be Served Consecutively to an Anticipated, but Unimposed, State Sentence?".  The case discussed in the post is available here.

March 25, 2008 | Permalink | Comments (1) | TrackBack

Will Irizarry finally explain the true nature of the post-Booker world?

I have mentioned before that I think the sleeper SCOTUS sentencing case this term in Irizarry, which technically addresses a seemingly little issue concerning notice for imposing sentences outside the guidelines. However, as revealed in the amicus brief supporting the Eleventh Circuit's ruling below (to which I contributed), the case presents an opportunity for the Justices to address more broadly the nature and status of departures and variances in the post-Booker world.  This amicus brief can be downloaded below, and here is the start of the summary of argument which highlights the deep conceptual issues that the Justices might have to address in Irizarry:

Federal Rule of Criminal Procedure 32 does not require a district court to provide notice prior to imposing a sentence outside the range recommended by the advisory Guidelines based on the factors set forth in 18 U.S.C. § 3553(a).  Neither provision of Rule 32 relied upon by Petitioner — Rule 32(h) or Rule 32(i)(1)(C) — supports a notice requirement in this context.

Petitioner’s reading of Rule 32(h) cannot be squared with the rule’s plain language, with speaks repeatedly and exclusively in terms of departures. Departures and variances are fundamentally different sentencing devices: departures depend on facts not adequately taken into account by the Sentencing Commission; variances depend on reasoned judgments based on the considerations set forth in Section 3553(a) by Congress.  In light of the fundamental distinction between a departure and a variance, the notice rule for departures has never been, and should not now be, extended to variances.

Download irizarry_amicus_brief.pdf

March 25, 2008 in Irizarry SCOTUS case | Permalink | Comments (9) | TrackBack

"States win over President on criminal law issue" in Medellin

I have borrowed for my title of this post the title of this post at SCOTUSblog, which reports on today's Supreme Court ruling in the capital/international case of Medillin.  The full opinion is available at this link, and here is the start of Lyle Denniston's summary:

The Supreme Court, in a sweeping rejection of claims of power in the presidency, ruled 6-3 on Tuesday that the President does not have the authority to order states to relax their criminal procedures to obey a ruling of the World Court. The decision came in the case of Medellin v. Texas (06-984). Neither a World Court requiring U.S. states to provide new review of criminal cases involving foreign nationals, nor a memo by President Bush seeking to enforce the World Court ruling, preempts state law restrictions on challenges to convictions, the Court said in a ruling written by Chief Justice John G. Roberts, Jr.

The decision, aside from its rebuff of presidential power, also treats the World Court ruling itself as not binding on U.S. states, when it contradicts those states’ criminal procedure rules. The international treaty at issue in this dispute — the Vienna Convention that gives foreign nationals accused of crime a right to meet with diplomats from their home country — is not enforceable as a matter of U.S. law, the Roberts opinion said. And the World Court ruling seeking to implement that treaty inside the U.S. is also not binding, and does not gain added legal effect merely because the President sought to tell the states to abide by the decision, the Court added.

March 25, 2008 in Who Sentences | Permalink | Comments (7) | TrackBack

Who is trying to count sentencing mistakes?

Writing in the New York Times, Adam Liptak's "Sidebar" column today is headlined "Consensus on Counting the Innocent: We Can't."  Here are snippets:

A couple of years ago, Justice Antonin Scalia, concurring in a Supreme Court death penalty decision, took stock of the American criminal justice system and pronounced himself satisfied. The rate at which innocent people are convicted of felonies is, he said, less than three-hundredths of 1 percent — .027 percent, to be exact. That rate, he said, is acceptable. “One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly,” he wrote. “That is a truism, not a revelation.”

But there is reason to question Justice Scalia’s math.  He had, citing the methodology of an Oregon prosecutor, divided an estimate of the number of exonerated prisoners, almost all of them in murder and rape cases, by the total of all felony convictions. “By this logic,” Samuel R. Gross, a law professor at the University of Michigan, wrote in a response to be published in this year’s Annual Review of Law and Social Science, “we could estimate the proportion of baseball players who’ve used steroids by dividing the number of major league players who’ve been caught by the total of all baseball players at all levels: major league, minor league, semipro, college and Little League — and maybe throwing in football and basketball players as well.”

Joshua Marquis, the Oregon prosecutor cited by Justice Scalia, granted the logic of Professor Gross’s critique but not his conclusion. “He correctly points out,” Mr. Marquis, the district attorney in Clatsop County, Ore., said of Professor Gross, “that rape and murders are only a small percentage of all crimes, but then has absolutely no real data to suggest there are epidemic false convictions in, say, burglary cases.”

What the debate demonstrates is that we know almost nothing about the number of innocent people in prison. That is because any effort to estimate it involves extrapolation from just two numbers, neither one satisfactory....  We are left with an uneasy agreement between Professor Gross and Mr. Marquis on at least one point.  “Once we move beyond murder and rape cases,” Professor Gross wrote, “we know very little about any aspect of false conviction.” 

But a few general lessons can be drawn nonetheless. Black men are more likely to be falsely convicted of rape than are white men, particularly if the victim is white.  Juveniles are more likely to confess falsely to murder.  Exonerated defendants are less likely to have serious criminal records.  People who maintain their innocence are more likely to be innocent. The longer it takes to solve a crime, the more likely the defendant is not guilty.

Regular readers will not be surprised to hear that, though I am sympathetic to concerns about the rate and nature of wrongful convictions, I am even more concerned about the rate and nature of wrongful sentencing.  Unfortunately, I do not think anyone is trying to track or even understand the problem of wrongful sentences.

March 25, 2008 in Purposes of Punishment and Sentencing | Permalink | Comments (8) | TrackBack

Ninth Circuit issues long-awaited en banc opinion on post-Booker universe

Resolving a set of long-pending en banc cases concerning post-Booker realities, the Ninth Circuit in US v. Carty, No. 05-10200 (9th Cir. Mar. 24, 2008) (available here), has given its account on post-Booker sentencing.  The Court's many notable bullet points provide something like a restatement of the post-Gall sentencing universe, which makes Carty a must-read for everyone involved in federal sentencing.

March 25, 2008 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Is there growing public concern with sentencing and prison reform?

This new article, headined "Prison reform on public radar," suggests that the public is starting to take note of some sentencing and prison issues.  I am not sure this is true, in part because the leading presidential candidates have so far largely avoided any serious discussion of crime and punishment issues.

That said, The Sentencing Project this week has produced an exciting new resource for sentencing fans who are also political junkies:

The Sentencing Project is pleased to publish a guide to the 2008 Presidential Candidates' Platforms on Criminal Justice. This guide provides information on a range of key criminal justice issues, including sentencing policy, reentry, death penalty, and felony disenfranchisement.

The Sentencing Project is a nonpartisan public policy organization that does not support or oppose the candidacy of any candidate for public office.  This document is designed to make the public better aware of the candidates' positions on criminal justice policy, an issue that has received relatively little attention in the current political debate.  Voters should learn all they can about the candidates on a range of issues and should not rely on any single source of information before making their decision.

March 25, 2008 in Campaign 2008 and sentencing issues | Permalink | Comments (0) | TrackBack

A judge explains the problem with prosecutorial crack reduction resistance

A helpful reader sent me news of this recent ruling on a crack sentencing reduction motion, authored by Chief Judge James Jones of the Western District of Virginia, which includes this notable footnote:

This district is reported to have the fourth largest number of defendants who qualify for a reduction in sentence under the U.S. Sentencing Commission’s policy on retroactivity of the amended crack cocaine guidelines.  Unfortunately, it appears that the United States Attorney for this district is objecting to reduction in every case, even those which provide for a reduction in sentence of only a few months.  While the Department of Justice opposed the retroactivity of the amended guidelines, once the Sentencing Commission unanimously decided on retroactivity — a decision which Congress has not overruled — a per se objection to reduction does not serve the public interest.  For example, the court is required to consider the public safety in determining whether to reduce a particular sentence, see U.S. Sentencing Guidelines Manual (“USSG”) § 1B1.10 cmt. n.1(B)(ii) (Mar. 3, 2008), and the government’s blanket objection in all cases does not assist the court in making that decision, and, in fact, hinders it.

March 25, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

March 24, 2008

SCOTUS takes new gun case ... is this a Heller tea leaf?

I am sure regular readers are tired of me linking the Heller Second Amendment case to various sentencing issues, but a new Supreme Court cert. grant today is only going to fuel my gun fires.  Here are the basics from this post at SCOTUSblog:

In the second grant Monday, the Court agreed to hear a Justice Department appeal in U.S. v. Hayes (07-608), urging it to clarify the federal law that makes it a crime to have a gun after being convicted of a misdemeanor crime of domestic violence.  The specific issue is whether the federal ban at issue requires that the convicted individual and the victim in the underlying crime have a domestic relationship — that is, as a spouse, parent or guardian.

Though it appears that Hayes is only about a technical statutory issue, the case could end up being about a lot more if Heller declares that there is an enforceable individual right to keep a gun.  Here are the key facts in Hayes from the Fourth Circuit opinion on which cert was sought by the Justice Department:

In 1994, [Randy Edward] Hayes pleaded guilty to a misdemeanor battery offense under West Virginia law, in the magistrate court of Marion County, West Virginia (the "1994 State Offense").  The victim of the 1994 State Offense was Hayes's then wife, Mary Ann (now Mary Carnes), with whom he lived and had a child. As a result of the 1994 State Offense, Hayes was sentenced to a year of probation.

Ten years later, on July 25, 2004, the authorities in Marion County were summoned to Hayes's home in response to a domestic violence 911 call.  When police officers arrived at Hayes's home, he consented to a search thereof, and a Winchester rifle was discovered.  Hayes was arrested and, on January 4, 2005, indicted in federal court on three charges of possessing firearms after having been convicted of an MCDV, in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2).

This fascinating little case should help everyone understand why Solicitor General Paul Clement is justifiably concerned about a broad pro-gun constitutional ruling in Heller.  If the Second Amendment truly protects an individual right to domestic self protection, prosecuting Randy Edward Hayes for having a Winchester in his home seems very constitutionally troublesome.  And, at the very least, if Heller says anything nice about the constitution and gun possession, the doctrine of constitutional doubt ought to impact how the statutory issue in Hayes plays out.

I wonder if the NRA will file a brief on behalf of Randy Edward Hayes in the Supreme Court.  I wonder if VP Dick Cheney will sign a brief including members of Congress on behalf of Randy Edward Hayes in the Supreme Court.  I wonder if any other bloggers will connect the dots between Heller and Hayes like I do.  I wonder if everyone just thinks I'm just a gun-crazy, latte-sipping blogger.

Some recent related posts:

March 24, 2008 in Second Amendment issues | Permalink | Comments (112) | TrackBack

Major First Circuit ruling on post-Booker realities

Thanks to AL&P, you can read a full summary here of the First Circuit's important post-Booker work from last Friday in US v. Martin, No. 06-1983 (1st Cir. Mar. 21, 2008) (available here).  Because I'm wrapped up with grading these days, I will have to be content just to quote Judge Selya's telling (and surprisingly readable) first paragraph from Martin:

In Gall v. United States, 128 S. Ct. 586 (2007), the Supreme Court shed considerable light on the scope and extent of a district court's discretion under the now-advisory federal sentencing guidelines.  See id. at 598-602. This appeal represents our first full-fledged application of the teachings of Gall. At the same time, it also affords us an opportunity to discuss a relatively new phenomenon: the practice indulged in by some district courts, of filing post-judgment, post-appeal sentencing memoranda.

March 24, 2008 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Big SCOTUS sentencing week, starting with Burgess argument

As detailed in SCOTUSblog posts here and here, an exciting sentencing week for the Justices gets off to a flying start with argument this morning in Burgess over the on what qualifies as a "felony drug offense" for federal sentencing purposes.   Burgess provides the Supreme Court with a great setting to discuss the application of the "rule of lenity" in the interpretation of federal sentencing statutes (with sentencing guru Jeff Fisher arguing for the defendant). SCOTUSwiki has more on Burgess here (including links to briefs).

In addition to Burgess, this week also brings oral argument in Ressam concerning whether the federal law mandating 10 years in prison for carrying an explosive during the commission of a felony requires the explosives to be carried "in relation to" the underlying felony.  I think sentencing guru  AG Michael Mukasey is supposed to argue this matter for the government.

Further, new briefs will be filed this week in Irizarry, the post-Booker Rule 32(h) case.  I will discuss this case more in future posts.  And, we are due to get an order list this morning and will likely see some opinions handed down by the Justices later this week.  I am hopeful that there will be some sentencing action in both the order list and in released opinions. 

In short, SCOTUS sentencing fans should be sure to stay tuned to SL&P all week!

March 24, 2008 in Who Sentences | Permalink | Comments (0) | TrackBack

A notable perjury trial with sentencing advice for Bonds, Clemens and others

The San Francisco Chronicle has this interesting article about the start of a nother notable steroid-perjury trial in federal court.  As detailed in this excerpt, the trial has a lot of impact on various sentencing issues:

Caught up in the BALCO steroids scandal, an elite athlete adamantly denies using banned drugs, then mounts an aggressive defense to a perjury indictment. It sounds like the case of former Giants slugger Barry Bonds, accused of lying under oath to the federal grand jury that investigated Burlingame's Bay Area Laboratory Co-Operative steroid ring in 2003.

Instead, starting today in federal court in San Francisco, a lesser-known American sports champion — Tammy Thomas, a onetime star of bicycle track racing — goes on trial, charged with perjury and obstruction of justice.  Her case is of interest because it amounts to a dress rehearsal for the trial of Bonds, which may get under way later this year....

Whatever her defense, Thomas is taking a big gamble by refusing a plea bargain and going to trial, said New York criminal defense specialist Patrick Mullin, an expert on federal sentencing guidelines. Up to now, eight people indicted in connection with BALCO have pleaded guilty to reduced charges rather than go to trial. The longest sentence was six months, imposed on Olympic track superstar Marion Jones, who confessed to lying to federal agents about her use of banned drugs and about her participation in a check-fraud scheme.

But if Thomas goes to trial and is convicted of obstruction of justice and perjury, she could face 30 months in federal prison, Mullin said.  Mullin said Thomas may have decided to gamble on a trial because she knows that if she pleaded guilty to lying under oath she might be legally barred from obtaining a license to practice law. "If she's going to law school, that would give you pause," he said.

March 24, 2008 in Celebrity sentencings | Permalink | Comments (0) | TrackBack

More evidence localities love to hate sex offenders

This local story from California, headlined "Cities modify Jessica's Law even as court mulls validity," highlights that localities get a kick out of kicking sex offenders when they are down.  Here are excerpts from the article:

As the state Supreme Court considers the validity of California's sex-offender statute, known as Jessica's Law, San Diego and other cities are passing tougher versions of it. Jessica's Law says registered sex offenders can't live within 2,000 feet of a school or park where children gather. This month, the San Diego City Council and Mayor Jerry Sanders approved an ordinance that adopts the residency restriction and adds another limitation.

Under the city ordinance, registered sex offenders can't be within 300 feet of an amusement center, arcade, day care facility, library, playground, park or school. The residency restriction applies to sex offenders convicted of crimes after the ordinance was signed, but the 300-foot rule covers all registered sex offenders.  Similar measures have been approved in National City, La Mesa and Santee....

Versions of Jessica's Law — named after a young Florida girl who was raped and murdered by a convicted sex offender in 2005 — have been approved in 42 states.  Since enforcement in California began, 607 sex offenders have declared themselves homeless — a fourfold increase, according to the state.

In San Diego, the number of registered transient sex offenders increased 40 percent, police said. The 1,886 registered sex offenders in the city are among the 3,931 in the county, including violent child molesters, people convicted as juveniles and individuals busted for indecent exposure.

March 24, 2008 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

March 23, 2008

A high-profile (and suspect?) sentencing computation "error"

As detailed in this Los Angeles Times piece, a high-profile California case now involves an interesting new back-end sentencing twist:

California authorities rearrested Sara Jane Olson at noon Saturday, just hours after she was prevented from flying home to Minnesota from Los Angeles, and said she must serve one more year in prison because they miscalculated her release date.  The former member of the radical Symbionese Liberation Army had been paroled Monday from a California women's prison after serving about six years for her role in a 1975 plot to kill Los Angeles police officers by blowing up their patrol cars.

Officials from the California Department of Corrections and Rehabilitation said at a news conference that they had made a mistake in computing the amount of time Olson should serve in a separate case in which she pleaded guilty to second-degree murder for participating in a Sacramento-area bank robbery in which another SLA member killed a customer.  "The department is sensitive to the impact that such an error has had on all involved in this case and sincerely regrets the mistake," Scott Kernan, the agency's chief deputy secretary of adult operations, said at a Saturday afternoon news conference. "The department has launched a full investigation."

Kernan called the case "extremely complicated, given the amount of changes to the sentencing laws that have occurred over the last 30 years."  Olson should have been sentenced to 14 years, not 12, for the two crimes, Kernan said. He said state officials had failed to account for the bank robbery. The earliest possible release date for Olson now is March 17, 2009, he said. At that point, she will have served half of the 14-year term.

Like most California inmates, Olson has earned credit against her sentence for working while in prison. She served on a maintenance crew that swept and cleaned the main yard of the Central California Women's Facility in Chowchilla, according to prison officials....

When news organizations reported Olson's release Friday, law enforcement officials reacted with dismay and raised questions about whether she had been let out too early....  Corrections department officials acknowledged that they began an intensive review of their internal calculations of the sentence after getting questions from the Sacramento County district attorney's office and a local television reporter, but they denied that they had bowed to pressure....

Olson's attorney, Shawn Chapman Holley, said she was outraged by the rearrest and asserted that her client had been illegally arrested and is now being "illegally imprisoned."...   Holley said she planned to file a writ of habeas corpus seeking Olson's release within the next few days.  She scoffed at the suggestion that there had been "a computation error." 

"We received an order from the state parole board more than a month ago informing us that she would be released on March 17," Holley said.  She referred to a decision of the board, saying that on Oct. 12, 2007, the panel had notified a Los Angeles Superior Court judge that "it did not intend to impose" a one-year enhancement that had been challenged by Olson's attorneys. The decision went on to say that Olson's "earliest possible release date has been recalculated to March 17, 2008."

Noting that the decision had been made months ago, Holley said: "The idea that suddenly they discovered an error is untrue. What appears to be the truth is they are bowing to pressure from the Police Protective League or someone else."...

Santa Clara University law professor Gerald Uelmen said he found it "hard to imagine" that state officials made a calculation error. The executive director of the California Commission on the Fair Administration of Justice said he had never heard of an instance in which a prisoner was mistakenly released early.

More coverage of a story that may just be starting comes from the AP and from San Francisco Chronicle.  The Chronicle story has more good quotes from law professors:

Santa Clara University Law Professor Gerald Uelmen said the department's error is bewildering. "I can't imagine how they could have blown that one, in such a high-profile case," said Uelmen.

UC Berkeley law Professor Franklin Zimring said the error can be attributed to a sentencing system he called incoherent.  "From the standpoint of keeping the streets safe, she was a candidate for Social Security when she showed up at the beginning of her term," Zimring said. "This apparatus is all extraordinarily arbitrary."  However, he said she probably doesn't have legal grounds to challenge her increased sentence.

March 23, 2008 in Sentences Reconsidered | Permalink | Comments (9) | TrackBack

An interesting historical perspective on Second Amendment rights

Lane As we await a ruling from the Supreme Court in the Heller Second Amendment case, I hope to showcase articles and commentary that provide a distinct perspective on the issues surrounding individual gun rights.  A great example of such commentary is this Washington Post piece by Chuck Lane, headlined " To Keep and Bear Arms."   Here is how this strong piece starts and ends:

Nearly 135 years ago, the United States experienced what may have been the worst one-day slaughter of blacks by whites in its history.  On April 13, 1873, in the tiny village of Colfax, La., white paramilitaries attacked a lightly armed force of freedmen assembled in a local courthouse.  By the time the Colfax Massacre was over, more than 60 African American men lay shot, burned or stabbed to death.  Most were killed after they had surrendered.

Though it caused a national sensation in post-Civil War America, this horrible incident has been largely overlooked by historians. It deserves fresh study today not only to illuminate the human cost of Reconstruction's defeat but also to enrich our understanding of constitutional history.  Some of the most relevant lessons relate to the issue at the heart of District of Columbia v. Heller, the case on the D.C. gun control law currently before the Supreme Court: whether the Constitution guarantees an individual right to keep and bear arms.

During oral arguments on Tuesday, the justices debated what the framers of the Second Amendment intended. The members of the court did not mention Reconstruction.  Yet during this period, we the people gave the Union a second "founding" through constitutional amendments abolishing slavery, granting blacks citizenship and enabling them to vote.  And, to clarify blacks' newly secured freedom, Congress wrote laws identifying the specific rights of individual U.S. citizens.  One of these was the right to have guns.

Before the Civil War, gun ownership was a prerequisite not only of militia service but also of participation in sheriffs' posses and for personal defense.  But it was a right for whites only. Southern states forbade slaves to own guns, lest they revolt. (Free blacks, in the North and South, could sometimes have guns under tight restrictions.)  After the Civil War, the same Congress that made African Americans citizens through the 14th Amendment considered the antebellum experience and concluded that equal access to arms was a necessary attribute of blacks' new status....

In the D.C. gun case, the Supreme Court should find that local governments may enact reasonable and necessary restrictions on dangerous weapons.  To be sure, if the justices also back an individual right to keep and bear arms, that will be harder for legislators to do. But as a matter of historical interpretation, the court would be correct.

Critically, Lane is a lot more than an armchair historian here: he has just completed this new book, titled "The Day Freedom Died: The Colfax Massacre, the Supreme Court and the Betrayal of Reconstruction."

March 23, 2008 in Second Amendment issues | Permalink | Comments (1) | TrackBack