Sentencing Law and Policy

Thoughtful criticism of Second Circuit white-collar sentence reversal

Last month, as detailed in this post, the Second Circuit issued a long opinion in US v. Cutler, No. 05-2516 (2d Cir. Mar. 17, 2008) (available here), which reversed a pair of below-guideline sentences for white-collar offenders as procedurally and substantively unreasonable. Writing in the New York Law Journal, Alan Vinegrad and Doug Bloom have now produced an extended (and mostly critical) analysis of the Culter case.  Here is a snippet from the analysis (which can be downloaded below thanks to the NYLJ):

In a series of recent decisions, the U.S. Supreme Court has made clear that in establishing "reasonableness" review of sentences, its 2005 Booker decision restored the "substantial deference" that the Court decreed, over a decade ago, was owed sentencing judges.

Last month, however, in its first major application of these decisions to a substantially below-the-range sentence, the U.S. Court of Appeals for the Second Circuit, in United States v. Cutler, gave sharp teeth to reasonableness review, undertaking a searching analysis not only of the district court's sentencing procedure but also of the factual underpinnings and reasonableness of the ultimate sentences....

Cutler seems in tension with another of the Second Circuit's recent descriptions of its approach to reasonableness review.  Just two weeks before Cutler, in United States v. Regalado, the court "confirm[ed] the broad deference that this Circuit has afforded the sentencing discretion of the district courts."  Time will tell whether, or how, these seeming conflicts in the Second Circuit's approach to sentencing review are ultimately resolved.

Download nylj_on_cutler.pdf

Self-serving paternalism: reflections on Baze and law school learning bans

Another full read of Baze led me to a couple unexpected insights: (1) the Justices are very comfortable using 21st-century materials, even as some law schools and professors try to preserve 20th-century teaching norms, and (2) the raging debate over banning laptops or the Internet in law school classrooms is somewhat akin to the debate between Justices Stevens and Scalia in Baze concerning a constitutional ban on state use of capital punishment.  Let me explain each insight in turn:

1.  In the Baze lethal injection ruling from SCOTUS, a majority of the Justices' opinions (4 of the 7) cited to websites, and I counted a total of 13 references to website materials.  Among the cites, Justice Stevens' referenced a forthcoming law review article now appearing only on SSRN, and two opinions cited to two distinct transcripts from legal proceedings that have been made widely available through on-line posting.  I am not sure if all these citations officially make Baze the most web-friendly ruling in Supreme Court history, but they clearly reveal that the Justices understand that effective judging in the 21st century — and thus effective lawyering in the 21st century — requires an Internet connection.

And yet, on the very same day that the web-friendly Baze decision is released, we get this report that the University of Chicago Law School is now blocking student access to the Internet in classrooms "to help them concentrate on course instruction."  Even though the Justices now clearly appreciate that effective judging and lawyering in the 21st century requires an Internet connection, the super-smarties at the University of Chicago Law School apparently now believe that being an effective law student requires preservation of a 20th-century teaching environment by banning Internet connection in the classroom.

2.  I realize that I am troubled by Internet bans and laptop bans in the law school classroom for some of the same reasons that Justice Scalia is troubled by Justices Stevens' advocacy in Baze for a constitutional ban on the death penalty.  Responding to Justice Stevens' arguments that the death penalty is now unconstitutional, Justice Scalia laments what he sees as misguided (and constitutionally inappropriate) self-serving paternalism: "Purer expression cannot be found of the principle of rule by judicial fiat.  In the face of Justice Stevens’ experience, the experience of all others [such as legislatures, social scientists, and citizens] is, it appears, of little consequence.... It is Justice Stevens’ experience that reigns over all."

I have the same reaction to all the professorial self-congratulation about the positive impact of banning the Internet or laptops in the classroom.  I can fully appreciate why the experience of some law professors — particularly those professors who use only traditional casebooks and have not updated their teaching materials, styles or notes in light of modern technology — might be improved if students cannot access 21st-century technologies in the classroom.  But I have never thought that my experience in the classroom, rather than the experience of my students, is of paramount importance.  Thus, unless and until my students tell me that they prefer a classroom setting without laptops or the Internet (or alumni/practitioners tell me that a web-friendly classroom was not helpful training for their future careers), I will keep trying to create and improve a 21st-century classroom experience for students rather than self-servingly conclude that preserving a 20th-century teaching environment is needed "to help [students] concentrate on course instruction."

Cross-posted at LSI

"Take a Nibble Out of Crime"

The title of this post is the title of this reaction over at The New Republic to Senator Clinton's recently announced crime-fighting proposals.  Here are parts of the commentary:

Hillary Clinton gave a major policy speech on crime in Philadelphia one week ago.... Clinton's views on sentencing retroactivity, for the tens of thousands who have been locked up under the current cocaine guidelines, are of equal importance.  Commuting prisoner sentences to terms they would have served under the new law is, of course, the right thing to do.  But in Iowa, Clinton told viewers of the Black/Brown debate: "In principle I have problems with retroactivity," she said. "It's something a lot of communities will be concerned about as well." Which communities?  Why?

The drug wars, addressed intelligently on our site by former Baltimore Mayor Kurt Schmoke, are not a by-the-wayside policy issue on which Clinton can smudge her former stances without scrutiny.  What's more, this anti-crime gambit looks to be an attempt to reverse a monthslong pattern of tacking rightward on criminal justice policy (back when Clinton still had a "general election strategy").  In New Hampshire, for example, Clinton tweaked Barack Obama for his liberal stance on "criminal defendants' rights" and his "extremely progressive record" in Chicago. Who knows to what that refers.

By the Philly address — never having answered that important question on retroactivity — Clinton was putting $1 billion up for grabs among states that want to commit resources to lowering rates of recidivism.  But being unjustly punished and backsliding into crime are not totally unrelated issues; longer jail terms erode workplace skills, fossilize social attitudes and drain meaningful support systems — all of which are critical to the well-being of a sucessful parolee.  That she would pay for her ambitious $4 billion plan by identifying "unnecessary and outdated corporate subsidies for elimination" (rather than housing and processing costs for thousands of crack offenders) only spotlights the blinders that make real reform in government seem like make-believe.

Some posts on crime and punishment and the 2008 campaign:

• Senator Clinton making a campaign offensive on crime
• So much in (and missing from) Senator Clinton's anti-crime proposal
• How the media can do better: ask the candidates tough crime and punishment questions
• "Where candidates stand on crime, death penalty"
• Interesting commentary on 2008 politics of death
• Clinton and Obama, crime and punishment
• A retroactive litmus test on leading Democratic candidates
• Is Senator Clinton to the right of Justice Scalia on sentencing issues?
• Race, class and criminal justice in campaign 2008
• Politics and the war on drugs 
• Should criminal justice reform be the new civil rights movement?   
• Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?

Can and will Iowa's "Minority Impact Statement" legislation help with criminal justice disparities?

In this on-line report, the Sentencing Project spotlights a very interesting legislative development from Iowa.  Here is part of the report:

Iowa Governor Signs Nation's First Racial Impact Sentencing Bill: Less than one year after a national report found Iowa prisons and jails maintain the highest rate of racial disparity in the nation, Governor Chet Culver today signed legislation requiring examination of the racial and ethnic impact of all new sentencing laws prior to passage.

More details about this development can be found at this official report from the Iowa Governor's website.  Here is how it starts:

Today, at the John R. Grubb YMCA in Des Moines, Governor Chet Culver signed into law HF 2393, a bill requiring a “Minority Impact Statement” for any legislation related to a public offense, sentencing, or parole and probation procedures.  The legislation also requires that any application for a grant from a state agency must also include a minority impact statement.

According to Governor Culver, “This means when members of the General Assembly and Executive branch are considering legislation of this nature, we will now be able to do so, with a clearer understanding of its potential effects — positive and negative — on Iowa’s minority communities.   Just as Fiscal Impact Statements must follow any proposed legislation related to state expenditures, with my signature, Minority Impact Statements will serve as an essential tool for those in government — and the public — as we propose, develop, and debate policies for the future of our state.”

This bipartisan legislation passed the Iowa House of Representatives unanimously and passed the Senate overwhelmingly with a vote of 47-2.

I find this news VERY exciting, largely because I am eager to see (1) just what these Iowa Minority Impact Statements end up looking like, and (2) whether these statements have a real impact on crime and justice legislation. 

Also, since the laboratory of the states has a tendency to replicate effective experiments, I am hopeful that a number of other states will start seriously considering following Iowa's lead here.  Moreover, I would be very interested for members of the media to ask the Presidential candidates whether they might support similar legislation at the federal level.

Some related posts on racial disparities in incarceration:

• The Sentencing Project's new report on prison disparities
• Examining the disconcerting realities of racial disparities
• Another strong piece about race and justice
• Should criminal justice reform be the new civil rights movement?
• Honoring MLK by asking hard questions
• New JPI report on racial disparities in incarceration
• Reflecting on race and criminal justice realities to honor MLK's legacy
• How the media can do better: ask the candidates tough crime and punishment questions

A strong review of sex offender litigation in the states

Stateline.org has this effective new piece headlined "Lawsuits test crackdown on sex criminals."  The piece essentially previews the broad array of sex offender laws and issues that could be clogging up the dockets of lower courts (and perhaps also the Supreme Court) for years to come.  Here is an excerpt:

From California to North Carolina, a flood of litigation has accompanied an expansion in the scope and severity of penalties imposed by local, state and federal lawmakers on those who commit sex crimes.

Penalties for molesters and other sex criminals have toughened considerably in recent years and now include execution in at least five states, chemical castration in eight states and the use of technology to monitor offenders’ every move in more than half the states.

In some instances, punitive measures are limited only by lawmakers’ imaginations. In Louisiana, for example, a proposal being debated this legislative session would forbid offenders from wearing masks on Halloween or Mardi Gras.  In New Jersey, a new state law prevents molesters and others from surfing the Internet unless it is for work-related purposes; Florida and Nevada have similar laws.

The recent legal challenges take aim at laws that sex criminals say violate constitutional guarantees, including privacy, due process and protection from cruel and unusual punishment.  Supporters of the laws say they are necessary to protect children from predators who are capable of committing brutal crimes.

What do folks think about Justice Stevens' new view on the death penalty?

Though I am still working my way through all the opinions in the the nearly 100-page Baze lethal injection ruling from SCOTUS, I am not surprised to see that Justice Stevens' concurrence is garnering special attention.  For example, Linda Greenhouse has this new piece headlined "Justice Stevens Renounces Capital Punishment."  Here are excerpts:

When Justice John Paul Stevens intervened in a Supreme Court argument on Wednesday to score a few points off the lawyer who was defending the death penalty for the rape of a child, the courtroom audience saw a master strategist at work, fully in command of the flow of the argument and the smallest details of the case.  For those accustomed to watching Justice Stevens, it was a familiar sight.

But there was something different that no one in the room knew except the eight other justices. In the decision issued 30 minutes earlier in which the court found Kentucky’s method of execution by lethal injection constitutional, John Paul Stevens, in the 33rd year of his Supreme Court tenure and four days shy of his 88th birthday, had just renounced the death penalty....

His renunciation of capital punishment in the lethal injection case, Baze v. Rees, was likewise low key and undramatic.  While reminiscent of Justice Harry A. Blackmun’s similar step, shortly before his retirement in 1994, Justice Stevens’s opinion lacked the ringing declaration of Justice Blackmun’s “From this day forward, I no longer shall tinker with the machinery of death.”  Justice Stevens’s strongest statements were not in his own voice, but in quotations from a former colleague, Justice Byron R. White, an early death penalty opponent.

When I have a bit more time to reflect on Justice Stevens' opinion in Baze, I hope to do a post putting his new views in some historical and political perspective.  For now, however, I invite readers to comment on Justice Stevens' comments.

UPDATE: It dawns on me that I ought to quote the most telling sentence in Justice Stevens' opinion in Baze, one that could (and should?) launch a thousand law review articles:

The thoughtful opinions written by THE CHIEF JUSTICE and by JUSTICE GINSBURG have persuaded me that current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty.

Feds giving money to states to track sex offenders

According to all the local stories linked below, this week a number of states got grants from the federal government to assist with sex offender tracking:

• From the Montgomery (Alabama) Advertiser, State receives approval of grant to track sex offenders

• From KCRG (Iowa), Grant to Improve Collection of Sex Offender Info

• From the Grand Forks (North Dakota) Herald, ND receives grant to track sex offenders

I wonder if anyone will be tracking whether this government money being devoted to tracking sex offenders will prove to be a good use of our tax dollars.

A constitutional crack bleg from an attorney of note

I got a call from a notable attorney who asked for help on a crack-related claim of unconstitutionality.  Here is his follow-up "bleg":

As I stated today in our telephone call, I was Brian Gall's trial attorney and want to take on a new fight.  I am interested in attacking the constitutionality of the statutory mandatory minimum for crack cocaine as found in 21 USC 841(b)(1(A)(ii).  Specifically, that statute creates a mandatory minimum sentence of 120 months for possession of over 50 grams of crack and for over 5 kilos of powder cocaine.

My client’s specific situation is that he pled to one count of possession of crack, with the factual basis of 85 grams of crack.  He had no prior criminal history and was 19 when arrested and 20 years old when sentenced.  In 2006 His guideline range was 120-135 months and because he refused to cooperate with the government he received the minimum sentence he could under the guidelines and 21 USC 841(b)(1(A)(ii), i.e. 120 months.

He has now filed a motion for a sentence modification under the new crack guidelines, which put him at a range of 87-108 months, but the government is opposing this due to the mandatory 120 month sentence found in 21 USC 841(b)(1(A)(ii). I would like to file a motion attacking the constitutionality of 21 USC 841(b)(1(A)(ii) mandatory minimum, as it employs the same 100:1 ratio that has been modified in the amended sentencing guidelines as well as criticized by the Supreme Court in Kimbrough.  Any help, ideas, research and motion drafting assistance from any other attorneys facing a similar situation or interested in taking on this fight would be greatly appreciated.  I can be reached at The Alternative Law Office of Marc Milavitz, 1733 Canyon Blvd., Boulder, CO 80302; (303) 442-2166 (phone); (303) 440-4515 (fax).   

Any assistance you or anyone else can give me is greatly appreciated.

Will the FLDS case impact perceptions of child rape and sex offenders?

Over at Grits for Breakfast, Scott has been doing effective coverage of the FLDS case, including this interesting post asserting that "more law blawggers need to weigh in on West Texas polygamy case."  Though I won't fault other law bloggers for their posting agendas, I will do my part by noting one of the reasons I have been fascinated by the scenes and interviews now coming out of the YFZ Ranch which have become the focal point of a lot of the MSM coverage the last few days. 

Of particular interest is hearing some pundits talk about the case in terms of "child rape," while seeing videos of many mothers expressing heartfelt (and scripted?) concerns about the well-being of their children.  Beyond the fact that the men from the YFZ Ranch are not seen, I wonder if viewers are struggling with the notion that these mothers may be directly complicit (and legally accountable) for what would be the crime of child rape in most jurisdictions.

Needless to say, I doubt most members of the public or politicians think of the FLDS mothers when they think about child rapists and sex offenders.  But, as this case continues forward and evidence emerges concerning adults repeatedly having sex with underage girls, the national image of child rape and sex offender may be altered.

The post-Baze uncertainty and litigation begins

As detailed in this effective post at SCOTUSblog, the post-Baze uncertainty and litigation has started before the ink on the Baze ruling is even dry.  Here are snippets from the SCOTUSblog post:

The state of Florida moved quickly on Thursday to get Supreme Court permission to carry out the execution of a death-row inmate, and a prisoner in Mississippi asked the Court to rule itself or tell a lower court to rule on his challenge to that state’s execution procedure.  These were the first filings in the Court in the wake of Wednesday's ruling upholding the basic elements of execution by use of lethal drug injections.

These filings, indicating that developments following the decision in Baze v. Rees (07-5439) will unfold rapidly, came in cases in which the Justices had delayed scheduled executions at a time when the Court was not permitting any state to go forward with a death sentence.

The two filings demonstrated that death-penalty states believe that the informal moratorium the Court has had in effect is now entirely over, so new executions may be scheduled as the states choose, and that lawyers for death-row inmates in states other than Kentucky are going to try to keep the inmates away from the death chamber while contesting the specifics of other states' procedures.

Florida filed a motion to vacate the stay the Supreme Court had issued on Nov. 15 in the case of Mark Dean Schwab (pending petition 07-10275); it also filed a brief opposing Schwab’s appeal....

In the new Mississippi filing, a supplemental brief, lawyers for death-row inmate Earl Wesley Berry contended that the lethal injection procedures used in that state provides fewer safeguards than under Kentucky's procedures for avoiding "serious harm" to the inmate during the execution process.  The case is Berry v. Epps, 07-7348.  The Court stayed his execution on Oct. 30.

Some related recent posts:

• Now that Baze is out, when and where will there be the first "new" execution?
• Media round-up in wake of Baze
• Lots of praise for Baze and for capital punishment federalism

No delay for Snipes sentencing

For lots of reasons detailed in prior posts, I am really looking forward Wesley Snipes' sentencing on tax evasion charges next week. Thus, I was pleased to see this new news on this front:

A federal judge has rejected a motion to delay actor Wesley Snipes' sentencing on tax evasion charges, scheduled for next week. Senior U.S. District Judge William Terrell Hodges denied without comment a bid by Snipes' legal team to postpone the sentencing scheduled for April 24.

In the motion filed Tuesday, Snipes lead attorney Daniel Meachum argued that Snipes' tax returns were complex and that the defense and prosecution could not agree on the amount of taxes Snipes owes for 1999, 2000 and 2001. An Ocala jury convicted Snipes on Feb. 1 of three counts of misdemeanor willful failure to file tax returns for those three years. Prosecutors are seeking a three-year prison term for Snipes, the maximum possible, and a fine of at least $5 million.

Some recent related posts:

• A taxing analysis of celebrity sentencing issue in US v. Snipes
• Federal prosecutors want Wesley Snipes imprisoned for three years
• Split verdict in Wesley Snipes trial ... and another potential high-profile acquitted conduct case
• Wesley Snipes to be sentenced two weeks too late

Washington Supreme Court rebuffs SCOTUS approach to Blakely harmless error

Nearly two years ago in Recuenco v. Washington (discussed here and here), the US Supreme Court declared that violations of Blakely rights could be subject to harmless error.  Thanks to an alert reader, I learned that today the Washington Supreme Court decided in this opinion to reject the application of harmless error in this context as a matter of state law.  Here is the start and end of the opinion:

This case asks us to determine whether Washington law requires a harmless error analysis where a sentencing factor, such as imposition of a firearm enhancement based on a deadly weapon finding, was not submitted to the jury. The United States Supreme Court in Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006), held that Blakely errors can be subject to harmless error analysis.  We conclude that under Washington law, harmless error analysis does not apply in these circumstances.  On remand, we affirm State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005), and remand to the trial court....

Recuenco was charged with assault with a deadly weapon enhancement, and he was convicted of assault with a deadly weapon enhancement, but he was erroneously sentenced with a firearm enhancement.  We conclude it can never be harmless to sentence someone for a crime not charged, not sought at trial, and not found by a jury. In this situation, harmless error analysis does not apply.  Therefore, we vacate the firearm sentence and remand for correction of the sentence.

Federal prisoners do the darndest things

This AP story, headlined "Texas prison inmate cons way onto Idaho primary ballot," seems ripe for use in a late-night talk-show monologue.  Here are the basics:

A federal prison inmate who once gave an Internal Revenue Service line in Ohio for the phone number of his campaign coordinator has got himself listed on the ballot for Idaho's primary as a Democratic presidential candidate, the state's top election official said.  Keith Russell Judd is serving time at the Beaumont Federal Correctional Institution in Texas for making threats at the University of New Mexico in 1999.  He's scheduled for release in 2013.

Judd, 49, qualified for the May 27 ballot by submitting a notarized form and paying the required $1,000 fee, state Secretary of State Ben Ysursa said. As a result, Democratic voters will be able to choose among Barack Obama, Hillary Clinton and Judd. "We got conned," Ysursa told The Spokesman-Review of Spokane, Wash.

It's Judd's second presidential bid in Idaho, the newspaper said Wednesday.  In 2004 he declared as a write-in candidate for president, which requires only the submission of a declaration, and didn't get any votes. No matter how many votes he gets this time, he won't get any national convention delegates. Idaho's delegates are chosen at party caucuses. "The good thing is the Democratic presidential primary has absolutely no legal significance," Ysursa said.

Prison officials told the state elections office that Judd sent about 14 checks to states seeking to get on the presidential election ballot and about half had been returned.  He qualified as a write-in candidate in Kentucky, California, Indiana and Florida, but Idaho apparently is the only state where his name will appear on the ballot....

Somebody needs to tell Mr. Judd that he has things backwards: the standard politician life-plan is to get elected and then get sent to federal prison, not the other way around.

Lots of good sentencing buzz around the blogosphere

Not surprisingly given all the recent SCOTUS action and other happenings, a number of my favorite blogs have lots of posts worth checking out.  Specifically, there is lots of new and interesting reading at:

• Capital Defense Weekly
• Concurring Opinions
• Crime and Consequences
• Sex Crimes
• White Collar Crime Prof

Focused analysis of distraction of Kennedy case

Writing at FindLaw, Marci Hamilton has this new piece entitled "The Supreme Court Considers Whether Imposing the Death Penalty for Child Rape Is Constitutional: The Arguments For and Against the Penalty."  Though focused mainly on the arguments presented to the Justices, the piece ends with this astute observation:

In sum, whether or not the Court upholds the death penalty for child abusers this Term, the entrenched barriers to identifying predators will not be eliminated, or even reduced. For that reason, from the perspective of the child being abused today or the survivor trying to cope in the wake of abuse decades ago, the case is a lot of hype - a paper battle that distracts from the far more essential battle for the reforms that are truly necessary if justice and decency are to be served.

Media round-up in wake of Baze

How Appealing collects here a lot of the national media reaction to the Supreme Court's work in the Baze lethal injection case decided today.  And, with the help of Google News, I can provide links to local stories suggesting that many states (but not all) will try to get execution chambers humming again quickly:

• Lethal injections set to resume in Texas from the AP

• California may resume executions by year's end from the Los Angeles Times

• Arkansas AG: Too soon to say whether executions can proceed from the AP

• Following Supreme Court decision, Georgia moves to execute condemned killers from the Atlanta Journal-Constitution

• Executions to resume in Oklahoma from the AP

• Executions won't resume in Md. from the Baltimore Examiner

• Va. Governor Reinstates Executions After Ruling from the Washington Post

UPDATE:  Howard has collected more major media coverage of Baze here and here.

The latest views of the Kennedy capital child rape case

Providing more grist for the mill (and for the printer), the transcript of today's Supreme Court argument in the capital child rape case of Kennedy v. Louisiana is available at this link.  Corey Yung is doing an extraordinary job covering the case is a series of posts at Sex Crimes, and Lyle Denniston now has this effective summary of the argument up on SCOTUSblog.

The first-cut analysis seems to point to Justice Kennedy being the key swing vote here.  But, as we discovered today with the Baze decision, we should not expect the tough criminal cases even in the death penalty setting to always come out as a 5-4 vote.

A taxing analysis of celebrity sentencing issue in US v. Snipes

Writing over at Slate's Convictions, David Feige has this interesting post highlight that the "impending sentencing of Wesley Snipes on his misdemeanor tax convictions nicely frames an interesting question about celebrity and sentencing."  Here are snippets from this post:

Basically, what the government is arguing here is that Snipes needs to be hammered for his celebrity. The clear suggestion is that because he's a high-profile defendant, sending him to prison for a long period of time is like a deterrent bonanza.  The thing that strikes me, though, is that unlike political trials, or those of thieving cops who abuse a position of trust, Snipes is an actor who never took an oath to serve, protect, or do much of anything else other than look out for No. 1. So here, unlike those other high-profile or political cases that involve an abuse of trust or authority, we really are talking about a sentencing enhancement purely on the basis of notoriety.

Some recent related posts:

• Federal prosecutors want Wesley Snipes imprisoned for three years
• Split verdict in Wesley Snipes trial ... and another potential high-profile acquitted conduct case
• Wesley Snipes to be sentenced two weeks too late

Lots of praise for Baze and for capital punishment federalism

I suspect the nearly 100-page Baze lethal injection ruling from SCOTUS today will be subject to a lot of criticism, in part because the array of disparate opinions provide lots of fodder for anyone who want to beat up on the Court as a whole or on just about any particular Justice.  Indeed, I likely will take some pot shots at the Court's work once I have a chance to read all the Baze opinions closely.  However, my first reaction to the opinion upon a quick skim is to heap lots of praise on the Court's collective work.  Here's my thinking:

1.  The Court collectively merits lots of credit for relatively speedy work on such an important and challenging case.  I was worried state would might have to wait until June for an opinion, but it is now clear that the Justices prioritized getting this case completed so that the urgent business of the death penalty can move forward.  Though lacking a clear and strong majority opinion, the Baze ruling still gives states and lower courts a lot of needed constitutional guidance on execution protocol issues.

2.  In part because it is lacking a clear and strong majority opinion, the Baze decision provides a little something for everyone.  Though I suspect that the anti-death-penalty crowd will be disappointed with the outcome, I suspect many will suggest the "loss" here is mitigated by lots of textured language to be found in all of the opinions.  Similarly, the pro-death-penalty crowd may be disappointed that the opinions of Justices Scalia and Thomas did not carry the day, I suspect they will take comfort in Al Davis's old saying, "Just win, baby."

3.  In part because the Baze decision provides a little something for everyone, the Baze decision's true impact will largely be decided by local officials (including state judges and "local" federal district judges).  Those local officials eager to get executions going again will have new wind behind the sails of an argument that standard lethal injection protocols are constitutionally sound; those local officials content with the de facto moratorium status quo can use various parts of Baze to justify claims that everyone should go slow as officials re-examine execution protocols in light of the Supreme Court's new guidance in Baze.

4.  In part because the Baze decision's true impact will largely be decided by local officials, the politics and practicalities of the death penalty can, should and likely will now largely return to where they belong — namely in the hands of local officials, most of whom are elected and politically accountable.  I often view the death penalty in America as an example of modern federalism at its finest: states with an affinity for the death penalty can spend (waste?) a lot of time and money on capital cases, while states less excited about this punishment can reject its use de jure or de facto in various ways.

Early thoughts on Begay and Burgess

Though the Supreme Court's Baze lethal injection decision will surely be the focus of SCOTUS discussion today (early coverage here and here and here), the Justices handed down two non-killer Bs today with decision in Begay and Burgess (basics here).  For the vast majority of federal state criminal practitioners, these two "little" rulings may be much more consequential than the high-profile Baze ruling.

In part because I likely will not be able to avoid being caught up in the maze of Baze, I hope the very insightful readers of this blog will use the comments to help give me a running start on the import and possible impact of the Justices' work in Begay and Burgess.  I will begin the discussion with two quick observations:

1. The vote line-up in Begay is fascinating: Justice Breyer writes the main opinion which has the Chief and Justices Stevens, Kennedy and Ginsburg signed on; Justice Scalia concurred separately, and Justice Alito filed the main dissent which Justices Souter and Thomas signed on.  It seems that statutory interpretation and criminal justice can make for some unexpected bedfellows.
2. Begay was argued back in January at the same time as a similar case, Rodriquez, but we do not get that decision today.  This suggests to me that the Justices are finding Rodriquez even more challenging and/or divisive as Rodriquez.

Will the Baze decision (and the Kennedy argument) make the death penalty a hot political issue?

As regular readers know, I have been eagerly awaiting a time when the death penalty is a major political issue in the 2008 campaign.  Notably, Pennsylvania, North Carolina and Indiana — not no mention the federal government — all have very interesting death penalty practices and politics.  And, with the Baze lethal injection ruling today and the Kennedy child rape oral argument, the news cycle will surely be focused on death penalty issues over the next few days.

I am very hopeful and eager for reporters and pundits to ask all the major candidates a lot of hard questions about the death penalty, in part because I do not think any of them have good talking points on the intricate (and politically complicated) "culture of life" issues that the modern system of capital punishment raises.  I am not optimistic that we will have a sober or sensible political discussion of the modern death penalty, but at least we may have a sound-bite one that will provide grist for my blogging mill.

Some recent related posts:

• Race, class and criminal justice in campaign 2008
• How the media can do better: ask the candidates tough crime and punishment questions
• Might crime and punishment finally start drawing the attention of the candidates and the media?
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• "Where candidates stand on crime, death penalty"
• Interesting commentary on 2008 politics of death
• Candidates asked "what would Jesus do" about the death penalty
• So much in (and missing from) Senator Clinton's anti-crime proposal

Now that Baze is out, when and where will there be the first "new" execution?

Before even having a chance to consume the nearly 100-page Baze lethal injection ruling from SCOTUS today, the basic outcome has me now wondering which state will be the first to get its execution chamber up and running again and when the current de facto moratorium on executions will be officially ended.

The easy guess is that Texas will be the first to have a post-Baze execution, but I might put money on the possibility that some other state will beat Texas to the death punch.  And, though I suspect we may see an execution before the end of the month, I would not be surprised at all if death penalty abolitionists find aspects of the Baze ruling that enable them to bring further challenges to execution protocols.

Insights and predictions on post-Baze realities are both welcome and encouraged in the comments.

Some related posts on Baze-ian execution realities:

• Can we learn anything from five months without executions?
• Wondering once more about the broader impact of a de facto execution moratorium
• Are botched executions inevitable?
• Examining why states have not tried improving execution protocols
• Can doctors block all US lethal injections (and indirectly abolish the death penalty)?
• Finding Bickel Gold in a Hill of Beans (my article about last SCOTUS lethal injection case)
• My debatable PENNumbra views on Baze
• Is it time to seriously consider alternatives to lethal injection?
• New study confirms we do not treat murderers like dogs
• What will be the ripples of Baze in the states?
• Is the developing moratorium on executions risking innocent lives?
• Virginia Gov announces (quasi-)moratorium on executions until Baze

Baze is confused and other SCOTUS news

I had an inkling the Supreme Court might decide the Baze lethal injection case, and SCOTUSblog reports here that my inkling was right:

In a widely splintered decision, the Supreme Court cleared the way for executions to resume across the country, concluding that the most common method of lethal injection does not violate the Constitution. The final vote was 7-2 in Baze v. Rees, although there was no opinion that spoke for five or more Justices. The Court’s plurality adopted as a standard for assessing the validity of an execution method whether it poses a “substantial risk of serious harm.” It rejected the death row inmate’s proposal that the standard be “unnecessary risk.”

In addition, as reported here by SCOTUSblog, the Court also handed down two statutory interpretation sentencing cases, with notable results and votes:

The Supreme Court, in the first of its rulings on Wednesday, decided that druk driving is not a “violent felony,” at least for purposes of an enhanced prison sentence under the Armed Career Criminal Act.  The ruling, written by Justice Stephen G. Breyer, came on a 6-3 vote in Begay v. U.S. (06-11543). In a second decision on an enhanced sentencing law, the Court ruled that a drug crime that is punishable by more than one year in prison is a “felony drug offense” even if state law classifies it as a misdemeanor.  The unanimous ruling came in the case of Burgess v. U.S. (06-11429).

In short, there is a lot to talk about in the sentencing world today, and here are links to the raw material I will need to consume before being able to comment intelligently:

Today’s opinion by Justice Breyer in Begay v. United States (06-11543) is now available here. Justice Scalia filed an opinion concurring in the judgment. Justice Alito filed a dissenting opinion, in which Justices Souter and Thomas joined.

Today’s unanimous opinion by Justice Ginsburg in Burgess v. United States (06-11429) is now available here.

Today’s opinion in Baze v. Rees (07-5439) is now available here. The Chief Justice announced the judgment of the Court and delivered an opinion in which Justices Kennedy and Alito joined. Justice Alito also filed a concurring opinion. Justice Stevens and Breyer each filed an opinion concurring in the judgment. Justice Scalia and Thomas each filed an opinion concurring in the judgment, in which the other joined. Justice Ginsburg filed a dissenting opinion in which Justice Souter joined.

Telling trio of reasonableness reversals in the circuits

Anyone who expected or hoped that the Supreme Court's rulings in Gall and Kimbrough would radically change the nature and nuances of circuit court reasonableness review should be sure to check out this trio of circuit sentencing reversals from Tuesday:

• From the Seventh Circuit, US v. Omole, No. 06-2252 (7th Cir. Apr. 15, 2008) (available here)

• From the Ninth Circuit, US v. Grissom, No. 06-10688 (9th Cir. Apr. 15, 2008) (available here)

• From the Tenth Circuit, US v. Pena-Hermosillo, No. 06-8075 (10th Cir. Apr. 15, 2008) (available here)

There is a lot of thoughtful nuance in all of these rulings, which defy simple summaries.  It can and should be readily noted, however, that the government prevails in its sentencing appeal in all three cases.

A quick round-up before Kennedy capital child rape argument

At 10am today, the Supreme Court is scheduled to hear argument in Kennedy v. Louisiana (07-343), the highly-anticipated case examining the constitutionality of imposing the death penalty for child rape. 

Both the mainstream media and bloggers have given the case considerable attention recently, with notable new pieces from CNN and Bloomberg and with new posts from Capital Defense Weekly and Concurring Opinions and The Faculty Lounge.  In the blogosphere, the most consistent and complete coverage of the Kennedy case has been over at Sex Crimes, which has a number of new posts on the case and has this fantastic resource page on the case.

For lots of reasons, I think that the Kennedy case could be very jurisprudentially consequential and that today's oral argument might well provide some insights into a case that I consider to be very challenging on the merits.  Some of my thoughts on the Kennedy case and the issues it raises can be found in these prior posts:

• SCOTUS Kennedy capital child rape case buzz starting
• Effective reflections on Baze and Kennedy
• Do Baze and Kennedy and big SCOTUS cases depend on just one Justice?
• Show me support for capital child rape laws
• Is the editorial board of the Denver Post omniscient or just obtuse?
• Looking at capital child rape's constitutionality through the Atkins/Roper lens
• Resource page on Kennedy and the opaqueness of child rape statistics
• A better poster child for the death penalty for child rape
• Debating the policy arguments around capital child rape
• Could there be symbolic and practical value in making repeat child rape a capital offense?
• A strong argument for commuting Patrick Kennedy's death sentence

"Punishing Family Status"

The title of this post is the title of this new paper available via SSRN.  Here is the abstract:

This Article spotlights two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status?  We address the first question in Part I by first revealing a variety of laws permeating the criminal justice system that together form a string of "family ties burdens" or penalties that impose punishment upon individuals on account of their familial status. The six burdens we train our attention on are omissions and vicarious liability, incest, bigamy, adultery, and failure to pay child support.

Part II then develops a framework for the normative assessment of these family ties burdens, asking in which ways can these laws be properly understood as "burdens."  By looking at these sites synthetically, we also uncover a latent rationale for these family ties burdens: namely, the promotion of voluntary care-giving relationships.  We explain the nature of this rationale and its implications for proper policy design¿particularly whether its intrusion into the criminal justice system can withstand critical scrutiny. Finally, in Part III, we apply our proposed framework to see under which conditions these burdens should be rejected, retained, or redrafted in terms that are neutral to family status and instead capable of promoting voluntary care-giving.

Dan Markel, one of the co-authors of this paper, discusses the work in this post at PrawfsBlawg.

Circuit in mile-high city dodges RFRA claim by high-times church

Though not dealing with a sentencing issue, I cannot help but spotlight this first paragraph of the background section in this new Tenth Circuit ruling:

The defendants were charged in a two-count indictment with conspiring to possess and actual possession of marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846.  In their motion to dismiss the indictment, the defendants argued they are members of the Church of Cognizance and sincerely believe cannabis is a deity and sacrament essential to the practice of their religion.  The defendants further argued that this enforcement of the Controlled Substances Act is contrary to RFRA because it substantially burdens their free exercise of religion, without furthering a compelling government interest.

Readers will have to click through to the opinion to get the full story of how the ganja gods faired in this case.

Quick SCOTUS sentencing argument day report

I'm still on the road, but have long enough on-line to note this post at The BLT about today's two SCOTUS sentencing cases argued today and also to provide links to the transcripts thanks to SCOTUSblog:

The transcript of today’s argument in in Greenlaw v. United States (07-330) is now available here.

The transcript of today’s argument in in Irizarry v. United States (06-7517) is now available here.

I likely won't get a chance to process these transcripts and all the other day's sentencing developments until very late, but readers are encouraged to share their thoughts before I even get a chance to develop mine.

On the road during SCOTUS sentencing day

SCOTUSblog has this effective preview of a Tuesday full of sentencing action in front of the Justices:

At 10 a.m., the Court is scheduled to hear argument in Greenlaw v. United States (07-330), involving appellate judges’ ability to increase sentences sua sponte....  At 11 a.m., the Court is scheduled to hear argument in Irizarry v. United States (06-7517), involving judges’ duty to notify parties before departing from the sentencing guidelines....

In advance of the arguments, the Justices may release one or more opinions.

Because I will be on the road most of today, readers should head over to How Appealing and SCOTUSblog for early reports on all the SCOTUS happenings.  If my travels go smoothly, I hope to be able to recap all the highlights this evening.

Federal prosecutors want Wesley Snipes imprisoned for three years

As detailed in this Orlando Sentinel article, federal prosecutors are looking for a maximum statutory sentence for Wesley Snipes at his sentencing next week: "Actor Wesley Snipes should go to prison for three years and pay a fine of at least $5 million, prosecutors in his tax case said in a sentencing memo filed today."  Here are more details:

Snipes was convicted in February of willfully failing to file a tax return, but he was acquitted of felony conspiracy and tax-fraud charges.  "This case cries out for the statutory maximum term of imprisonment, as well as a substantial fine," prosecutors wrote in their sentencing memo filed in federal court in Ocala, "because of the seriousness of defendant Snipes' crimes and because of the singular opportunity this case presents to deter tax crime nationwide."

As I suggested in a prior post, given that the jury rejected all the felony charges brought against Snipes, this case could present a real interesting setting for a debate over acquitted conduct sentencing enhancements.

Some related posts:

• Split verdict in Wesley Snipes trial ... and another potential high-profile acquitted conduct case
• Wesley Snipes to be sentenced two weeks too late

UPDATE:  Thanks to White Collar Crime Prof Blog's post here, the government sentencing brief in US v. Snipes, filed in anticipation of the sentencing hearing set for April 24, can be accessed at this link.

Tracking executions worldwide

This new AP article reports on the latest execution data from Amnesty International.  Here are the details:

China reduced the number of executions it carried out last year but still executed more people than any other country in the world, Amnesty International said Tuesday in its annual report on the death penalty worldwide.

Iran remains the country with the second-highest number of executions, with 377 killings that included a man stoned for adultery, the human rights group said.  The number of American executions fell to its lowest level in about 15 years, putting it fifth in the world with 42, Amnesty officials said.

Amnesty analysts said that early in 2007 China reformed the way capital cases are handled, leading to a substantial reduction in executions. They said at least 470 people were put to death, from 1010 in 2006. But they cautioned that the actual number is undoubtedly higher, and warned that any drop may be temporary....  Amnesty reported that three countries -- Iran, Yemen, and Saudi Arabia -- put people under the age of 18 to death, the youngest a 13-year-old executed in Iran in April.

SCOTUS denies cert in long juve sentence case

On Monday, as detailed in reports from SCOTUSblog and CNN and the New York Times, the Supreme Court denied cert in Pittman v. South Carolina, the juve sentencing case raising constitutional questions about a 30-year mandatory sentence for a 12-year-old killer.  Here is the start of the NYT report:

The Supreme Court declined on Monday to hear an appeal from a South Carolina teenager who was sentenced to 30 years in prison for killing his grandparents with a shotgun when he was 12 years old.

Without comment, the justices refused to review the sentence imposed on Christopher Pittman, whose case attracted wide attention not only because of his age and the sentence he received, but because his lawyers blamed the antidepressant Zoloft for his violent behavior.

Defense lawyers asked the Supreme Court to consider whether the 30-year term violated the constitutional ban on cruel and unusual punishment in light of the defendant’s age at the time of the crime.  The South Carolina Supreme Court ruled last June that the boy’s trial had been fair and the punishment was just.

This case will now likely head to a federal district court through a habeas action; it will be very interesting to see if any lower federal court might find merit in the constitutional claims made in Pittman.

UPDATE:  A commentor rightly notes that this case will have to go through the state post-conviction review process before heading into federal habeas.

Michigan's struggles with bulging prisons

The Detroit News has this extended article on Michigan's over-crowded prisons, headlined "Bulging prisons drain Michigan's budget: State faces hard choices as get-tough laws put more behind bars."  Here is how it starts:

Michigan runs one of the nation's largest and most costly prison systems, a $2 billion-a-year expense that is crowding out other spending priorities at a rate many officials fear the state can no longer afford.  Yet despite near-unanimous agreement that Michigan can't pay ever-rising corrections bills during a period of economic decline, politicians and law enforcement professionals remain hesitant to spend less by changing sentencing guidelines or paroling more prisoners.

"Our efforts to grow Michigan's economy and keep our state competitive are threatened by the rising costs in the Department of Corrections," Gov. Jennifer Granholm told The Detroit News.  "We spend more on prisons than we do on higher education, and that has got to change."

The problem is reaching a crisis: Michigan's system is already the nation's sixth-largest overall, and ranks 15th among the states in the cost per inmate.  It could exceed capacity within two months, said Chief Deputy Corrections Director Dennis Schrantz, unless lawmakers approve stop-gap measures, such as doubling the number of inmates in the state boot camp program.

If the inmate population, now about 50,000, exceeds 51,800, the department will have to ask the Legislature for more money to house, feed, clothe, educate and guard the inmates.  "We could be in pretty dire shape for funded beds in May or June of this year," unless changes are made, Schrantz said.

The Corrections Department already devours 20 cents of every tax dollar in the state's general fund and employs nearly one in every three state government workers, compared with 9 percent of the work force 25 years ago.  "Because we're spending more state dollars in areas such as prisons, we're taking funding away from areas that are real priorities for citizens and for economic growth," said Dan Gilmartin, executive director of the Michigan Municipal League.

Notable DC Circuit ruling on Fifth and Sixth Amendment rights

A busy schedule kept me from noticing an interesting opinion by the DC Circuit late last week in US v. E-Gold, Ltd., No. 07-3074 (DC Cir. April 11, 2008) (available here).  Though focused on an array of issues in a civil forfeiture context, the conclusion highlights why the ruling might have broader implication than it might seem upon first look:

In short, we hold that where the government has obtained a seizure warrant depriving defendants of assets pending a trial upon the merits, the constitutional right to due process of law entitles defendants to an opportunity to be heard at least where access to the assets is necessary for an effective exercise of the Sixth Amendment right to counsel.  We need not determine, nor do we determine, whether the due process rights of the defendants compel such a hearing when the assets are not necessary to obtaining counsel of choice.

I am too distracted with other matters this week to figure out whether E-Gold might be a hidden nugget (or perhaps fool's gold) for those interested in expanded Fifth and Sixth Amendment rights.  Perhaps readers can do the hard work of talking through whether there are golden constitutional possibilities in the comments.

T-shirt approach to shaming sanctions

Thanks to this post at TalkLeft, I see that renown Arizona sheriff Joe Arpaio has a new shaming punishment in the works.  This AP story provides the details:

Female inmates in Maricopa County have been on chain gangs since 1996.  Now, 15 of them will be wearing T-shirts that say, "I was a drug addict," as they remove trash from a Phoenix street today.

The Maricopa County Sheriff's Office said the move is designed to discourage young people from using drugs.  Sheriff's spokesman Capt. Paul Chagolla said nearly half the women on the chain gang were addicted to crystal meth.

Sheriff Joe Arpaio said the women have sad stories about what drugs have done to their lives and that they want to help others make better choices than they did.

Big SCOTUS sentencing week ahead

As previewed here at SCOTUSblog, this coming week brings some notable sentencing cases before the Justices:

On Tuesday, the Court is scheduled to hear argument in Greenlaw v. United States (07-330), involving appellate judges’ ability to increase sentences sua sponte, and Irizarry v. United States (06-7517), involving judges’ duty to notify parties before departing from the sentencing guidelines....

On Wednesday, the Court is scheduled to hear argument in Kennedy v. Louisiana (07-343), involving the constitutionality of imposing the death penalty for child rape....

In addition, there will be SCOTUS orders released on Monday and probably a few opinions released on Tuesday and Wednesday.  Many criminal justice cases are among those that have been pending before the Justices for the longest time since argument, so sentencing fans should gear up for what might be a very exciting week.  As evidenced by some media coverage assembled here at How Appealing, the Kennedy capital child rape case is likely to garner the most attention.  But I'll try to cover all the action, even though I am on the road much of this week.

UPDATE:  More proof today that Kennedy is the big SCOTUS case of the week comes from this front page article in the Washington Post, headlined "Child Rape Tests Limits Of Death Penalty: La. Law Spurs Review Of Eighth Amendment."

Creative sentencing for T.I. creates concerns

As detailed in this Atlanta Journal-Constitution article, the creative sentence engineered for the rapper T.I. is creating a stir.  Here is the start of the article:

Both were felons caught with guns. Popular rapper T.I. was sentenced to a year and a day in prison after he pleaded guilty to possessing three machine guns and two silencers, all bought from an undercover federal agent and just a fraction of all the weapons taken from his house and car that day.

In comparison, James Harold Ingram, an unknown, got two years in prison when federal agents, investigating reports he had a moonshine operation, arrested him with four rifles and marijuana he had planned to sell.

T.I., whose legal name is Clifford Harris Jr., had something to offer beyond his cooperation and admission of guilt: his fame, his name and his potential influence over kids who might think guns and violence are cool. Ingram had nothing.

While some have suggested T.I.'s unusual deferred sentence is lenient, U.S. Attorney David Nahmias said it was negotiated because Harris and his attorneys offered a plan to prevent crime. His prison sentence of one year and a day begins only after he has spent at least 1,000 hours preaching the message that violence and guns are bad. With earned time off, his prison stint could be cut to just over 10 months.  But if he fails to meet conditions, he could be sent for prison for almost six years.

"It's not ... because he's a star he gets a lower sentence," Nahmias said.  "Being a star isn't a reason to be targeted or a reason for a lower sentence. If you help convict others, you get a lower sentence. What he proposed was to go out and help prevent crime.  If he's able to prevent a crime, that's something you should get a reduced sentence for."

It's his star quality that makes the plan workable, legal experts say.  "He got it because he's a celebrity and has a bigger impact and is able to offer more to offset the sentence," said defense attorney Michael Trost, a former prosecutor.  "Do I think he got it just because he's a celebrity? No."

SCOTUS sentencing cases involve unusual advocates

Writing in the Legal Times, Tony Mauro has this interesting piece headlined, "Supreme Court Justices Turn to Ex-Clerks for Unusual Role: Former clerks tapped to make the arguments others have abandoned."  Here is how it starts:

On Jan. 7, Jay Jorgensen took an unusual call from his former boss, Supreme Court Justice Samuel Alito Jr.  Alito's request: Would Jorgensen have time to argue a Supreme Court case in April — a case Jorgensen had never heard of — for free?

In Greenlaw v. United States, it seems the government had decided that it agreed with plaintiff Michael Greenlaw on the main sentencing-related issue in the case.  So the Court needed someone else to argue against lawyers for Greenlaw, a Minneapolis drug dealer.

Jorgensen, a partner with Sidley Austin, eagerly agreed to the invitation, and on Tuesday he will make his debut before the high court. In doing so, he follows a little-known and rarely available pathway that has launched the Supreme Court appellate careers of several former high court clerks.  Among them: John Roberts Jr., now chief justice, and Maureen Mahoney, who heads the appellate and constitutional practice at Latham & Watkins.

Even more rare is the fact that Jorgensen won't be the only lawyer arguing as an appointed counsel under these circumstances on Tuesday. In a separate sentencing case called Irizarry v. United States, Catholic University law professor Peter "Bo" Rutledge, a former Clarence Thomas clerk, will also be appearing as "amicus curiae in support of the judgment below," as the Court phrases it.  This will also be Rutledge's first time before the Court.

"I've been talking to Bo. We're both honored and both scared," says Jorgensen. Rutledge declines comment.

These once-in-a-lifetime opportunities to argue before the Court arise when, as in Greenlaw, the respondent abandons the lower court decision that the petitioner is challenging. That scrambles the usual adversary nature of Supreme Court cases, because it means, in essence, that both sides think the lower court decision was wrong or should be vacated.  In that circumstance, which has not arisen for five years before this term, the Court appoints a lawyer — almost always a former clerk — to make the orphaned argument.