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September 20, 2008

Deep reflections on sex offender residency restrictions

Now available via this link at SSRN is a new piece by Shelley Ross Saxer, titled "Banishment of Sex Offenders: Individual Liberties, National Rights and the Dormant Commerce Clause, Environmental Justice, and Alternatives." Here is the abstract:

Sex offender residency restrictions effectively banish these locally undesirable and dangerous individuals from our communities because we fear that they may reoffend in our neighborhoods. The practical effect of banishment through residency restrictions must be understood in the context that there are few places in modern day America to which a sex offender may be banished that is isolated from the rest of society.  Rather than being excluded and thrust into some undeveloped wilderness, sex offenders are banished through residency restrictions to neighboring counties or states and into poor, minority neighborhoods where they often live in boarding houses with other sex offenders.  Federalism concerns arise when states or municipalities attempt to exclude hazardous waste disposal from within the state, and judicial and legislative efforts to banish sex offenders to other states may also run afoul of Dormant Commerce Clause principles, which operate to discourage states from such protectionist activities.

Disproportionate siting of sex offenders into poor neighborhoods of color is also problematic and this overconcentration of offenders may result in lowered property values, segregation, and homelessness.  The federal government addressed a similar issue when studies in the late 1980's reported that hazardous waste sites were being placed near poor and primarily minority neighborhoods.  In addition to the public policy approaches taken to resolve environmental justice concerns, the Fair Housing Act has been considered an important litigation tool to address this indirect racism.  This Article examines what methods from the environmental justice movement might be available to deal with this "social justice" issue of sex offenders disproportionately burdening the unwary in poor minority communities.

Banishing sex offenders through residential restrictions, both legislative and private, impacts individual liberty, our national structure, and social policy considerations. Although most sex offenses are committed by relatives or acquaintances of the victims, rather than by strangers, our public policy approach has been to focus on the stranger sex offender. This Article offers a legal analysis of the adverse impacts these restrictions impose on the constitutional rights of the sex offenders and the rights of our communities, which for economic or political limitations do not have the appropriate representation to mitigate these consequences.  Finally, because there is not yet evidence to support the efficacy of residency restrictions on sex offender recidivism, this Article concludes that state and local legislators should seriously reexamine the current trend of using residency restrictions to address concerns about sex offender recidivism.  Instead, public policy decision makers should look toward alternatives, such as individualized risk assessment and management of these individuals, so that public resources can be properly directed to confine, monitor, and treat those sex offenders most likely to commit serious reoffenses.

September 20, 2008 in Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

September 19, 2008

Patrick Lett's case (and a few other notable sentencing cases) among "Petitions to Watch"

I am very pleased to see that the remarkable legal story of (my client) Patrick Lett has earned his case a place over here at SCOTUSblog on the list of cert petitions that SCOTUS guru Tom Goldstein "has deemed to have a reasonable chance of being granted."  Here is the start of the discussion at SCOTUSblog, as well as some of the sentencing cases of note that appear on the list:

Issues raised in our current list include district courts’ ability to amend incorrect sentences, the constitutionality of appointments to a patent appeals board, the validity of the “automatic companion” rule under the Fourth Amendment, the statute of limitations in securities fraud claims, whether state criminal convictions require jury unanimity, and many (many, many) others....

Docket: 07-1042
Case name: Lett v. United States
Issue: Whether, under the Federal Rules of Criminal Procedure, a district judge may amend a prior criminal sentence mistakenly based on a misunderstanding of federal sentencing factors....

Docket: 07-1295
Case name: Lewis v. United States
Issue: Whether, if a defendant violates the terms of supervised release, a district court may base the new sentence upon factors stated in 18 U.S.C. 3553(a)(2)(A)....

Docket: 07-1362
Case name: Martinez-Guerrero v. United States
Issue: Whether a district court may direct a defendant to serve a federal sentence consecutively to a not-yet-imposed state sentence....

Docket: 07-1391
Case name: Vonner v. United States
Issue: Whether criminal defendants must object at the time a sentence is imposed in order to challenge the sentence as either procedurally or substantively unreasonable under United States v. Booker (2005)....

Docket: 07-1429
Case name: Lucero v. Texas
Issue: Whether, under the Sixth Amendment, a jury foreman may read Bible passages during deliberations to persuade holdout jurors to impose the death penalty.

This SCOTUSblog post listing all these and many other cert-worthy cases includes helpful links to the decisions below and to the briefs filed in support of cert in each case.  And here is a review of some prior related posts I have done on the Lett case:

September 19, 2008 in Who Sentences | Permalink | Comments (3) | TrackBack

Friday follies: "Woman Faces Federal Jail Time Over Spilled Soda"

Thanks to this story from FOXNews, we apparently need to thank federal prosecutors for trying to keep our country safe from radical soda-pop terrorists that have started to infiltrate parts of our military establishment:

An Idaho woman is facing federal charges and possible jail time after refusing to pay for a soda and then spilling it on a counter in a case she calls a waste of taxpayer's money.

U.S. Attorney Tom Moss plans to bring two charges against Natalie Walters, 39, stemming from an Aug. 20 incident at the Boise Veterans Affairs Medical Center, the Idaho Statesman reports.  If convicted, she could face up to six months in federal prison.

Walters, who routinely takes her father to the Boise hospital for treatment, said there is no posted price for soda refills at the center's cafeteria, and she's typically charged between $1 and $1.50 for filling her mug, according to the paper. On Aug. 20, she was charged $3.80, which lead to the dispute and Walters dumping the soda on the cafeteria counter.

Moss' office refused to speak to the Statesman about the case until after Walters' Oct. 8 arraignment. Walters didn't learn of the charges until she was contacted by a reporter for the story. "My father is a veteran. It is a federal facility for veterans. This should have been handled differently," she told the paper. "This is extreme. This is totally extreme. Well, if they have that much time on their hands, go for it."

The full story from the Idaho Statesman, which is headlined "Dumped diet pop lands Idaho woman in federal court," can be found at this link.

September 19, 2008 in Examples of "over-punishment" | Permalink | Comments (5) | TrackBack

Getting tough on cybercrime

This local press story covers notable federal sentencing news involving cybercrime.  The piece is headlined "Leahy's Web crime bill to become law," and here are some excerpts:

President Bush will soon sign into law a bill by Sen. Patrick Leahy to impose tougher federal penalties on criminals who steal people's identities and hack into businesses' confidential information. For the first time the law also gives identity theft victims the power to seek restitution for the money and time they lose fighting to restore their damaged credit.

A recent survey by the Federal Trade Commission found that more than 8 million Americans fell victim to identity theft in 2005. In Vermont, the incidents are few, but the number grew from 159 in 2003 to 178 in 2006, according to the commission.

Leahy, chairman of the Senate Judiciary Committee, said he became involved in the issue when he discovered how weak the criminal penalties were for cybercrime. "Instead of giving you the kind of token protection you have now, this bill allows federal prosecutors to move in on cybercriminals," Leahy said in an interview. "If somebody thinks they might actually have to go to jail, they may think twice about committing these crimes."

Leahy's bill, co-sponsored by Sen. Arlen Specter, R-Pa., enables federal prosecution of criminals who steal personal information from a computer even when the thief and the victim are in the same state. Under current law, federal courts have jurisdiction only in interstate cases. The legislation makes it a felony to employ spyware to damage 10 or more computers, regardless of the cost of the damage. It also requires the U.S. Sentencing Commission to review and update its sentencing guidelines to get tougher on identity theft and other computer crimes.

"Even though cybercrimes are virtual, their impact is measured in real dollars," said Sen. Joe Biden, D-Del., who helped write several key provisions in the bill. "Our laws must keep pace with the changes in Internet technologies in order to adequately protect our citizens and government."

September 19, 2008 in Offense Characteristics | Permalink | Comments (0) | TrackBack

"At Sentencing, Youth Bares Soul, and Judge Bares His Pain"

The title of this post is the title of this interesting article in today's New York Times.  Here is how it begins:

Justice Thomas Farber’s dilemma in a Manhattan courtroom on Thursday played itself out like a dramatic monologue. How much misery was appropriate to inflict on a promising 19-year-old, who himself had inflicted misery on society by dealing drugs, the judge asked himself out loud. “It’s almost an impossible calculus,” said Justice Farber, who sits in State Supreme Court in Manhattan.

The young man, Yiskar Caceres, had been arrested four times in roughly 15 months for selling or possessing cocaine, and Justice Farber already had given him an opportunity to wipe his slate clean before his most recent arrest, in April.

Now, Justice Farber said, he had no choice but to sentence Mr. Caceres to state prison.  But even in doing so, the judge showed some compassion: he gave Mr. Caceres four and a half years in prison, half the maximum sentence that prosecutors had sought.  Because Mr. Caceres has already served 11 months and will be eligible for a drug-treatment program, he could be out in as little as two years.

September 19, 2008 in Drug Offense Sentencing | Permalink | Comments (2) | TrackBack

September 18, 2008

NYU Center files amicus in Angelos case

I noted in this recent post the launch of New York University School of Law's Center on the Administration of Criminal Law.  I am pleased to spotlight the active role that the Center is starting to play in important criminal justice litigation.  (As detailed on this page, "the Center's litigation practice concentrates on cases in which exercises of prosecutorial or governmental discretion raise significant substantive legal issues [and works] in partnership with some of the nation’s most prominent law firms as part of the firms’ pro bono commitment.")

I am especially pleased to report that this week the NYU Center has filed an amicus brief in the Angelos mandatory minimum case in which I am involved (background here and here).  Here is how the NYU Center describes the case and the issues its brief takes on:

Whether a prosecutor should charge a defendant with no criminal record in a manner that, upon conviction, requires a 55-year mandatory minimum sentence for twice selling approximately $350 of marijuana while armed to a confidential informant and for possessing a gun in his home on another occasion, in contravention of the Eighth Amendment, separation of powers principles, Department of Justice charging standards and practices, and the expressed opinions of the trial judge and jury.  This brief was filed in the United States District Court for the District of Utah, in partnership with the law firm Jenner & Block.

This potent introductory line of the amicus brief highlights why I remain hopeful that Weldon Angelos will get some relief in this case: "Weldon Angelos was sentenced to 55 years in prison because the prosecutors in his case elected to exercise discretion in an arbitrary, irrational, and ultimately unconstitutional manner."

Related posts on the legal history of the Angelos case:

September 18, 2008 in Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Deep thoughts about Kennedy while rehearing motion pending

Among many cool aspects of the pending SCOTUS rehearing petition in the Kennedy child rape case is the possibility that the Justices might read some new scholarship about their work in Kennedy while considering whether to do a do-over.  Just up on SSRN, for example, is this new piece from Professor J. Richard Broughton, titled "Kennedy, the Fall, and the Tail of Minos."  Here is the abstract:

In Dante's Inferno, the damned appeared before Minos, who judged the gravity of their sins and assigned their souls to their respective circles of Hell by wrapping his tail around his body. In this paper, I examine whether, in light of its decision in Kennedy v. Louisiana and its methodology for reviewing categorical exemptions from the death penalty, the Supreme Court has problematically assumed for itself the role of a kind of contemporary constitutional Minos, at least in the realm of capital punishment.

First, I argue, Kennedy is a case about comparative resulting harms among violent crimes.  The Kennedy dissent should have more robustly attacked the Court's categorical exemption methodology, which undervalues legitimate penological justifications for capital punishment and ultimately constitutionalizes the Court's subjective assessments of culpability and harm, allowing the Court to dictate offense seriousness, public morality, and political acceptability of the death penalty.  Second, the Court's attempt to limit its holding is illusory because Kennedy's loose rhetoric and underdeveloped harm theory could jeopardize the constitutionality of any statute that permits the death penalty for a non-homicide offense, including crimes against the state, and even unintentional murders that may not satisfy the Court's own sensibilities about resulting harm.  Finally, Kennedy's Minos-like approach to assessing the gravity of offenses and to imposing its own moral judgment demonstrates that there remains both relevance and legitimacy in the structural debate over the scope and exercise of judicial power, especially where that power undermines the community's reasoned efforts to cope with violent crime.

September 18, 2008 in Kennedy child rape case | Permalink | Comments (0) | TrackBack

Notable split decisions from Third Circuit in government appeals of probationary sentences

I suspect that everyone interested in federal sentencing jurisprudence will find something they like and something they don't like in two big rulings today from the Third Circuit.  Here are basics of the two  decisions, drawn from their openning paragraphs:

US v. Howe, No. 07-1404 (3d Cir. Sept. 18, 2008) (available here):

In this appeal we review the sentence imposed on a defendant who was convicted of two counts of wire fraud.  The sentence consisted of two years’ probation (including three months’ home confinement), despite an advisory Sentencing Guidelines range of 18 to 24 months’ imprisonment.  The District Court imposed no fine and no forfeiture (other than the special assessment of $200).  The Government appeals from the District Court’s judgment of sentence.  We will affirm.

US v. Levinson, No. 07-1544 (3d Cir. Sept. 18, 2008) (available here):

Adam Levinson pleaded guilty to one count of wire fraud, in violation of 18 U.S.C. § 1343, and one count of filing a false income tax return, in violation of 26 U.S.C. § 7206(1). During his sentencing hearing, the United States District Court for the District of Delaware granted him a variance from the recommended United States Sentencing Guidelines (“Guidelines”) range of 24 to 30 months of imprisonment and sentenced him to two concurrent 24-month terms of probation, in addition to supervised release, restitution, and a special assessment. The government appeals and argues that the District Court failed to adequately explain the chosen sentence. We agree and will vacate Levinson’s sentence and remand for resentencing.

September 18, 2008 in Booker in the Circuits | Permalink | Comments (3) | TrackBack

Will California ever get back in the execution business?

Howard Mintz has this interesting piece in the San Jose Mercury News, headlined "Appeals Court to Consider State's Death Penalty Gridlock."  Here are excerpts:

Five months after the U.S. Supreme Court offered a legal road map to states dealing with challenges to lethal injection, California is no closer to resuming executions on the nation's largest death row.

Today, however, the legal battle over lethal injection in this state will finally inch forward when an appeals court in San Francisco considers one of the two cases paralyzing California's death penalty machinery.  While the hearing will not catapult the standoff over lethal injection in the state to a conclusion, it is a first step toward kick-starting a legal showdown that will decide whether the state's execution method can pass muster in the courts....

Today's hearing is just one wrinkle in the long-running battle over lethal injection in California, where executions have been on hold for more than two years because of a lawsuit arguing that the method is cruel and unusual punishment... In the meantime, the new death chamber has been completed while the court fights have been dormant.  And other than the addition of a few more inmates to death row — which now exceeds 670 condemned murderers — not much else has happened.

September 18, 2008 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Proof of aphorism "no good deed goes unpunished"?

Here is another notable example of how gun laws prohibiting felons from possessing guns can lead to strange developments in the federal criminal justice system.  This local story, headined "Felon aided woman but kept gun and gets jail: Man not faulted for stopping suicide, but keeping weapon," starts and ends this way:

A man who stopped a woman from harming herself with a handgun was sentenced to 12 months in prison this week by a federal judge.  Bryant K. Ervin ended up with prison time not because he stopped a potential suicide, but because he was a convicted felon and was barred from possessing a firearm.

In court, Assistant U.S. Attorney Shawn Weede said the government was seeking jail time because Ervin kept the weapon for more than a week afterward, not because of the way he came to possess the silver handgun.

Federal sentencing guidelines called for a prison term between two and three years. Weede recommended a sentence of 15 months, or about half the guideline range, because of the circumstances.  Ervin's defense attorney, Kier Bradford-Grey, asked District Judge Sue L. Robinson to give him a sentence of time served, or about seven months....

U.S. Attorney Colm F. Connolly said the message from this case is, "Felons and guns don't mix and we have a zero tolerance level for convicted felons possessing weapons." However, he said if his office encountered "an extreme case where a felon did take possession of a gun to save the life of another individual, and that person called police immediately [to turn in the gun,] we wouldn't prosecute that person."  In this case, Connolly noted, the defendant kept the gun for more than a week by his own admission. "And that is a crime."

September 18, 2008 in Second Amendment issues | Permalink | Comments (5) | TrackBack

September 17, 2008

Additional briefing in Kennedy child rape rehearing debate

Over at SCOTUSblog, Lyle Denniston in this post summarizes the new briefs filed today in the Kennedy child rape case.  The post, which is titled "Court urged to hold fast against death for child rape" and includes links to the new filings, starts this way:

Lawyers for a death-row inmate in Louisiana, arguing that military law is beside the point when deciding the constitutionality of criminal sentences for civilians, urged the Supreme Court on Wednesday to leave intact its recent decision nullifying the death penalty for the crime of raping a child. Had the Court known at the time of its ruling June 25 that there was a provision in military law on that issue (it apparently did not), that might have deserved mention, but perhaps only a footnote, the new brief filed for inmate Patrick Kennedy said in the case of Kennedy v. Louisiana.

September 17, 2008 in Kennedy child rape case | Permalink | Comments (5) | TrackBack

District Court finds AWA mandatory sentence unconstitutional under the Eighth Amendment

Thanks to this post at Sex Crimes, I have learned of this recent federal district court opinion which concludes "that a 30-year mandatory minimum sentence for [the defendant], under the specific facts of his case, is so grossly disproportionate to his crime as to constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution."  US v. Farley, NO. 1:07-CR-196-BBM, slip op. at 8 (N.D. GA. Sept. 2, 2008). 

Unfortunately, this Farley decision does not fully review all the key "specific fact," but this section of the opinion provides the essential highlights:

The court fully recognizes the serious nature of Mr. Farley’s offense.  He believed a ten year old child to exist and took steps to engage in sexual activity with her. It is also a fact that Mr. Farley never had any contact, sexual or otherwise, with the child.  No harm was suffered.  Of course, it was not possible for a child to be harmed, because the child was a creation of law enforcement, and no real child exists.

It appears that Mr. Farley travelled across state lines in an effort to engage in sexual activity with a fictious ten year old.  But, providing a constitutional twist on the school-yard "no harm, no foul" principle, the district court here decides that this act alone cannot provide a sufficient basis for a 30-year mandatory minimum sentencing term.

I may have more to say about this ruling once I get to read it closely, but I can already enjoy pondering whether the Justice Department will decide to appeal this ruling to the Eleventh Circuit.

September 17, 2008 in Sex Offender Sentencing | Permalink | Comments (12) | TrackBack

Too fat to execute using lethal injection?

Obesity, sex and death are all to be found in this CNN story, headlined "Weight gain not intentional to dodge execution, inmate says."  Here are the basics:

A double murderer scheduled to be executed next month in Ohio said Tuesday he has not deliberately gained weight to rule out his death by lethal injection. Instead, Richard Cooey said in a death row interview that his execution cannot be carried out humanely under current state procedures because his veins are hard to reach. "Vein access was an issue even when I was back in the service," Cooey, 41, said in an hour-long interview with the Associated Press at the Ohio State Penitentiary.

Cooey, 5-foot, 7 inches tall and 267 pounds, said he has gained perhaps 70 pounds while being locked up for raping and killing two University of Akron students 22 years ago while he was on leave from the U.S. Army.  He blamed the weight gain on medication and lack of exercise. "It's hard getting access to my veins," said Cooey, who was handcuffed and locked in a closet-sized visiting room. He spoke through a straw-sized slit in a reinforced glass partition.

Cooey said he has heard secondhand about comedians' jokes about the Ohio inmate who claims he's too fat to be executed. But he says that ridicule reflects ignorance of his underlying claim that it's the inaccessibility of his veins that makes it difficult to get an IV inserted for a lethal injection.

The legal challenge is based on constitutional issues and not fear of execution, Cooey said. "It has nothing to do with weight gain," he said. Instead of lethal injection, "If it would make people happy, shoot me in the head with a .45," Cooey said. "Do it legally."

September 17, 2008 in Death Penalty Reforms | Permalink | Comments (5) | TrackBack

Lots of new federal sentencing data from the USSC

I am so very pleased to discover that the US Sentencing Commission has a lot of new data on its website this morning.  Here is what's there as described by the USSC (with links):

After I get a chance to chew on all these data, I will comment in a separate post concerning anything that seems especially notable in the numbers.

September 17, 2008 in Detailed sentencing data | Permalink | Comments (2) | TrackBack

News of note in SCOTUS capital cases

SCOTUSblog has these two new posts reporting on developments in capital cases before the Supreme Court:

The second post spotlights that we will have two more briefs to read this afternoon in the Kennedy child rape rehearing case.  As regular readers know from some of prior posts linked below, I was not too impressed by the Court's work in Kennedy.  I am very much looking forward to seeing how it will be defended.

Some related posts on the Kennedy decision and a possible Kennedy rehearing:

September 17, 2008 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

September 16, 2008

Georgia conducts first US execution in over a month

Despite the expectation that lethal injections would increase after the Supreme Court's decision in Baze, before tonight there had not been a single execution in the United States in over a month.  But tonight, as detailed in this local story, Georgia executed a murderer who has been on its death row for more than three decades.

I believe this Georgia execution marks the 21st state killing in 2008.  Barring an unlikely rush of Fall executions, it appears that this year there will be the fewest total number of executions in the United States since 1994.

September 16, 2008 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Is Heller like Griswold or like Roe or like ...?

As I have been blogging since the Heller decision came down, it is going to take a long time and lots of litigation to unpack just what this Supreme Court decision means for the scope and application of individual Second Amendment rights.  Helpfully, some smart folks have some new articles on SSRN helping us with any Heller headaches by suggesting that Heller is really like some earlier landmark Supreme Court rulings.

Professor Cass Sunstein, for example, suggests Heller is like Griswold v. Connecticut in this new paper, titled "Second Amendment Minimalism: Heller as Griswold."  Judge J. Harvie Wilkinson III, in contrast, suggests Heller is like Roe v. Wade in this new paper, titled "Of Guns, Abortions, and the Unraveling Rule of Law." 

Though I have not given the matter much thought in these terms, my gut reaction would be to compare Heller to First Amendment rulings rather than to substantive due process rulings because there is an express constitutional provision at the heart of the constitutional debate.  But I must note a bias here because, as detailed here, I am part of a legal team making arguments on behalf of Weldon Angelos in his 2255 action in which we assert that Heller indicates that the Supreme Court's jurisprudence surrounding the application of the First Amendment can and should inform questions surrounding the application of the Second Amendment.

September 16, 2008 in Second Amendment issues | Permalink | Comments (2) | TrackBack

JPI fact sheet suggests less prisoners = less violent crime

Responding to yesterday's good news about lower crime rates (blogged here), the Justice Policy Institute released an interesting little fact sheet digging into the numbers a bit.  This JPI fact sheet, available here, includes this significant insight: 

Regions with the lowest incarceration rates experienced the largest drops in violent crime.

The Northeast region experienced the greatest drop in violent crime, and also has the lowest incarceration rates in the country.  The southern region has the highest incarceration rates and witnessed a rise in violent crimes — the only part of the country to not experience a drop in crime.

Obviously, one set of data points does not a proof make.  But regional variations in crime and punishment within the United States are rarely examined closely, and this JPI fact-sheet suggests that there might be some interesting stories to mine from the data.

September 16, 2008 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

New Brennen Center report on court-appointed defense counsel

I just received this notice via e-mail:

Today the Brennan Center for Justice at NYU School of Law releases a new report, "Eligible for Justice," exposing the lack of standards for determining who is eligible for court-appointed defense counsel. In a national study, the Brennan Center found that many jurisdictions use flawed screening processes to separate those who can afford counsel from those who cannot, and as a result are denying government-funded defense counsel to people who should receive it.  The report covers unfair practices in effect in states including Florida, Tennessee, Ohio, and Nebraska, and highlights best practices in others, like Massachusetts, Washington, and Vermont.

More details about the report (and a link to a summary and the full documents) can be accessed at this link.  Here is a summary of how the report culminates in recommendations: 

In this report, the Brennan Center for Justice at New York University School of Law presents information about best practices for determining financial eligibility for free counsel. The report gathers, in one place, existing standards and procedures, relevant judicial precedent, and the specific views of many defenders in communities around the country. The report then makes six recommendations.

September 16, 2008 in Who Sentences | Permalink | Comments (3) | TrackBack

"When Acquitted Doesn't Mean Acquitted"

The title of this posts is the title of this long piece at ABC News on one of my favorite modern sentencing litigation topics. The full title of the piece is "When Acquitted Doesn't Mean Acquitted: Judges Can Sentence Criminals to Longer Prison Terms Even After a Jury Has Acquitted Them," and here is an excerpt from the article discussing a few recent cases that regular readers of this blog know well:

The Supreme Court has called the right to a jury trial one of the foundations of American law. But at same time, the Court has given judges broad discretion in meting out sentences under the now-advisory federal sentencing guidelines, allowing them to consider conduct that the jury never considered or found a defendant not guilty of committing.

The issue has come up in several recent cases around the country. Earlier this year, in the case of a Madison, Wis., man who was sentenced to an additional 15 years in prison for possession of crack cocaine, the Supreme Court declined to reconsider its Watts decision.  Mark Hurn was convicted of possessing powder cocaine, which would have sent him to prison for about three years, according to federal sentencing guidelines, but acquitted of crack cocaine possession. He was sentenced to 18 years in prison.

In Washington, D.C., federal prosecutors are asking a judge to sentence Antwuan Ball to the 40-year statutory maximum prison sentence for selling 11 grams of cocaine, though Ball was acquitted of every other count in a massive drug and murder conspiracy trial that lasted eight months.  Ball's lawyer says Ball should be sentenced to about six years in prison under the sentencing guidelines for the drug charge.

Some related posts on acquitted conduct sentencing enhancements:

September 16, 2008 in Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Dallas DA talking about capital case review and a quasi-moratorium

The Dallas Morning News has this notable report about a local DA talking about reviewing all pending capital cases because of innocence concerns.  Here are the basics:

Troubled that innocent people have been imprisoned by faulty prosecutions, District Attorney Craig Watkins said Monday that he would re-examine nearly 40 death penalty convictions and would seek to halt executions, if necessary, to give the reviews time to proceed. Mr. Watkins told The Dallas Morning News that problems exposed by 19 DNA-based exonerations in Dallas County have convinced him he should ensure that no death row inmate is actually innocent.

"It's not saying I'm putting a moratorium on the death penalty," said Mr. Watkins, whose reviews would be of all of the cases now on death row handled by his predecessors. "It's saying that maybe we should withdraw those dates and look at those cases from a new perspective to make sure that those individuals that are on death row need to be there and they need to be executed."...

Fred Moss, a law professor at Southern Methodist University, said he had never heard of another prosecutor in the country who had conducted the type of review Mr. Watkins proposed. "It's really quite extraordinary," Mr. Moss said.

September 16, 2008 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

September 15, 2008

An argument that the Second Amendment and Heller should help Weldon Angelos

Regular readers should recall the name Weldon Angelos; Angelos was subject to federal mandatory sentencing terms of 55 years because of gun possession linked to three small hand-to-hand marijuana sales in a public parking lot.  Regular readers may also recall from this post that, upon the request of Weldon's sister, a pro bono legal team (of which I am a part) filed a lengthy 2255 motion in December 2007 making an array of constitutional arguments on Angelos's behalf.  (The original motion is available at this link, and the government is scheduled to file its response in the near future.)

Today marks another chapter in this legal story because this same legal team has just filed a motion for partial summary judgment based in large part on the Second Amendment as it is now understand after Heller.  The 20-page memorandum filed in support of this motion is available for download below.  As I have indicated before, because I am essentially counsel of record, I do not plan to discuss or debate the merits of the motion on this blog.  However, I am hopeful that everyone interested in the meaning and reach of Heller and the Second Amendment will take the time to read and reflect upon the arguments we make in this motion.  Here is how we introduce these arguments from the memorandum:

Though the government may eventually dispute some facts set forth in the 2255 motion, there is no dispute that Angelos had no adult criminal record prior to the instant case and that he was subject to 55 years of mandatory federal imprisonment based principally on allegations of possession of firearms in his home, in his car, and on his person.  Specifically, the firearms providing the basis for one 25-year mandatory sentencing term were those present within Angelos’s home.  And though there is a dispute concerning whether Angelos possessed a firearm during the marijuana sales engineered by the government’s informant, there is no evidence whatsoever or even any serious allegation that Angelos actively utilized firearms to facilitate three uneventful hand-to-hand marijuana sales. Nevertheless, on the basis of (suspect and perhaps incredible) testimony of a single government informant, who belatedly asserted that Angelos possessed a firearm during two marijuana sales, the district court felt obliged under statutory sentencing provisions to impose another 30 years of federal imprisonment.

In light of the Supreme Court’s broad and forceful recognition of the right of all citizens under the Second Amendment to possess firearms to effectuate “the inherent right of self-defense,” District of Columbia v. Heller, 128 S. Ct 2783, 2817 (2008), the extreme sentence imposed upon Angelos for gun possession are now clearly unconstitutional and his 55-year sentence must be at least partially vacated. As explained more fully below, the Supreme Court’s landmark Heller ruling as applied to the unique facts of this case render unconstitutional (1) the Government’s pursuit of a superseding indictment threatening a 25-year mandatory prison sentence based on the presence of guns within the Angelos home, and (2) the imposition of 55 years of federal imprisonment Angelos is now serving based on his gun possession.

In addition, the Heller ruling, considered together with the Supreme Court’s most recent explication of Eighth Amendment jurisprudence and its application in Kennedy v. Louisiana, 128 S. Ct. 2641 (2008), confirms that the 55-year federal prison term that Angelos is serving based on the possession of firearms is constitutionally excessive. Indeed, the combined force of the Heller and Kennedy rulings, along with the notable and constitutionally significant public reactions to both decisions, make plain that the sentence Angelos is now serving violates “the evolving standards of decency that mark the progress of a maturing society.”  Id. at 2664 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).

Download angelos_v. U.S. - Memo re MSJ.pdf

A few related posts on the legal history of the Angelos case:

September 15, 2008 in Second Amendment issues | Permalink | Comments (5) | TrackBack

Good news on the crime front

As detailed in this UPI story, "violent crime across the United States fell in 2007 for the first time since 2005, the Federal Bureau of Investigation announced Monday."  Here are more details:

An estimated 1.4 million violent crimes were reported last year, a drop of 0.7 percent compared to 2006, the bureau's Criminal Justice Information Services Division in West Virginia reported. Overall, property crimes fell 1.4 percent in 2007, to an estimated 9.8 million, the FBI said. Larceny and theft offenses accounted for two-thirds of all property crimes, and property crime victims -- excluding arson victims -- lost an estimated $17.6 billion collectively.

Fellow bloggers at C&C and at Grits are talking about this new crime data.  Scott's discussion at Grits includes these interesting additional data and insights:

[T]he vast majority of arrests are not for violent or property crimes: "In 2007, the FBI estimated that 14,209,365 arrests occurred nationwide for all offenses (except traffic violations), of which 597,447 were for violent crimes, and 1,610,088 were for property crimes. That means just 15.54% of arrests were for violent crimes or property offenses, a figure which seems surprisingly low to me.   

Some of that can be explained by the drug war: "Law enforcement made more arrests for drug abuse violations (an estimated 1.8 million arrests, or 13.0 percent of the total number of arrests) than for any other offense." What's more, 42.1% of drug arrests were for pot possession.

September 15, 2008 in Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

A capital punishment SCOTUS preview from DPIC

As highlighted by this post at SCOTUSblog, 'tis the season for Supreme Court previews. Helpfully, the Death Penalty information Center provides this case preview of the current SCOTUS capital docket:

To date, the Court has granted certiorari in three death penalty cases.  Bell v. Kelly will be argued on November 12, 2008. This case originated in Virginia and concerns the scope of federal review when the state court has failed to develop an issue.  Edward Bell claimed that his attorney failed to present important mitigating evidence at this sentence hearing, but this claim was not fully explored in state court.

In Cone v. Bell, which will be argued on December 9, 2008, the Court will review a case from Tennessee that has been before it on two previous occasions. In the present case, the issue is whether federal courts can consider matters that have been dismissed on state procedural grounds.  Gary Cone claimed that his prior drug use should have served as a mitigating factor at this sentencing hearing.  The state court dismissed the claim for lack of evidence....

Finally, the Court will hear Harbison v. Bell on a date to be determined.  This case also orginates in Tennessee and concerns a federal law providing for representation in capital cases.  The issue is whether this representation should extend to an inmate's state clemency petition.

All three of these cases involve technicalities that make blockbuster rulings unlikely.  Nevertheless, the clemency issue in Harbison gives it some extra interest at a time when state clemency is getting a bit more attention in capital cases.  Of course, as regular readers know, I am not a big fan of the Supreme Court taking up a lot of capital cases, as evidence by my recent article here at SSRN titled, "A Capital Waste of Time? Examining the Supreme Court's 'Culture of Death'."

September 15, 2008 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Two important (and very timely) Eighth Amendment pieces on SSRN

Just in time for this week's additional briefing in the Kennedy child rape case, two new pieces talking about the Eighth Amendment can now be accessed through SSRN.

One piece, by Corey Rayburn Yung, goes right to the heart of the rehearing debate KennedyThis piece is titled "Is Military Law Relevant to the 'Evolving Standards of Decency' Embodied in the Eighth Amendment?" and here is the abstract:

On June 25, 2008, the United States Supreme Court issued an opinion in Kennedy v. Louisiana holding that the application of the death penalty to the crime of aggravated child rape violated the Eighth Amendment of the United States Constitution. Three days after the opinion was issued, it was discovered that everyone involved in the case had overlooked a 2006 amendment to the Uniform Code of Military Justice ("UCMJ") that made child rape a death penalty offense. This seeming oversight by the majority led the state of Louisiana and Solicitor General to petition the Court for the case to be reheard. On September 8, the Supreme Court took the highly unusual step of asking for more briefing on whether the case should be reheard. This short article contends that for the Court to grant rehearing based upon the rationales embodied in the Louisiana and Solicitor General's briefs would represent a substantial departure from past Court practice and be contrary to the special treatment that military law has historically received. A careful review of the Court's prior opinions shows that the Court has never considered military law in evaluating the objective indicia of the "evolving standards of decency" even when the military had seemingly relevant provisions. This practice by the Court is almost surely due to its recognition that when Congress amends military law, it only represents a national consensus as to military policy and not civilian policy. As a result, the Supreme Court should not rehear the Kennedy case based upon the majority opinion's omission of the 2006 UCMJ amendment.

The other piece, by Rachel Barkow, discussed Eighth Amendment jurisprudence more generally.  This piece is titled "The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity," and here is the abstract:

The Supreme Court takes two very different approaches to sentencing law.  Whereas its review of capital sentences is robust, its oversight of noncapital sentences is virtually nonexistent. Under the Court's reading of the Constitution, states must draft death penalty statutes with enough guidance to avoid death sentences being imposed in an arbitrary and capricious manner. Mandatory death sentences are disallowed, and the sentencing authority must have the opportunity to consider mitigating evidence.  The Court will scrutinize whether the death sentence is proportionate to the crime and the defendant, and it has frequently exempted certain crimes and certain offenders from a capital sentence to avoid an unconstitutionally excessive punishment. The Court does not insist of any these requirements in noncapital cases.

This Article argues for the abandonment of this two-track approach to sentencing. It finds no support in the Constitution's text, history, or structure, and the functional arguments given by the Court to support its capital decisions apply with equal force to all other criminal punishments. But it is not just the Court's poor legal reasoning that makes its sentencing jurisprudence misguided.  It has also been a policy failure for capital and noncapital defendants alike. As long as the two tracks exist, significant sentencing reform is all but impossible. If death were no longer different as a matter of constitutional law, our criminal justice system would be * and almost certainly for the better.

September 15, 2008 in Recommended reading | Permalink | Comments (0) | TrackBack

Wondering what a Justice Palin might say about sentencing jurisprudence?

In this post a few weeks ago, I thought out-loud about the (real?) possibility of a President Obama nominating Senator Clinton to fill an opening on the Supreme Court.  Now, thanks to this Newsweek article from Dahlia Lithwick titled "Put Palin on the Supreme Court: Washington's old-boy problem hardly ends at the Oval Office," I cannot help but wonder what a Justice Palin might think about Apprendi, Blakely and Booker.  While I doubt we can expect to see both a Justice Clinton and a Justice Palin on the Supreme Court anytime soon, here is one snippet from Dahlia's piece that has me rooting for such a Court:

[W]hile our contempt for the Washington life touches everyone in the legislative and executive branches, it's become almost a job requirement at the Supreme Court.  This third branch of government is wildly overrepresented by insider lawyers with identical résumés.  You can swap out one Ivy League law school for another, but beyond that, the bench is ever more populated by folks like Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito — brilliant men whose chief job experience consisted of work for the executive branch followed by a stint on the federal bench.  It's not that these are bad qualities in a jurist. It's just that a court that once included governors and senators and former football stars is now overrun by an elite cadre of mostly male, mostly East Coast lawyers. If ever there were a branch of government crying out for varying life experiences, it's the Supreme Court.  And if any branch of government is in need of a mother of five who likes shooting wolves from helicopters, the court is it.

Though most of Dahlia's piece is a tongue-in-cheek (and perhaps unfair) slam on Governor Palin, the portion above justifiably notes extreme lack of true diversity on the Supreme Court.  Indeed, it is for this reason that I have urged in many prior posts a different perspective on possible SCOTUS nominees (and it is why I was one (and the only one?) who actually applauded President Bush's unexpected decision to nominate Harriet Miers to the Court).

Some related posts:

Postscript:  Anyone who might respond to this post by noting that Governor Palin is not a lawyer should be sure to check out the this article by Professor Adrian Vermeule, who argues that the Surpeme Court should have at least one "lay Justice" -- i.e., he contends that "an historian, economist, doctor, accountant, soldier or some other nonlawyer professional should be appointed to the Court."

September 15, 2008 in Who Sentences | Permalink | Comments (4) | TrackBack

September 14, 2008

"The Comparative Nature of Punishment"

The title of this post is the title of this new piece by Adam Kolber now available through SSRN.  Here is the abstract:

Suppose we punished people by forced poverty. Instead of a traditional dollar fine, we would limit offenders' personal possessions to the bare essentials. For a one-year period of forced poverty, a billionaire would lose access to his billions, while a person with just the bare essentials would lose nothing.  Clearly, a year of forced poverty has a disproportionally severe impact on the billionaire.

Now suppose instead that the billionaire and the poor person are sentenced to prison for a year. In prison, we will, in fact, punish them with forced poverty by limiting their personal possessions to just the bare essentials.  Yet many people treat such sentences as equal because they have the same duration.  How can forced poverty be an unfair stand-alone punishment but a fair one when combined with imprisonment?

The answer is that the punishment is unfair in both scenarios.  We mistakenly evaluate the severity of prison by measuring only the condition that prison imposes on offenders, without looking at offenders' baseline conditions.  This absolutist approach to punishment severity ignores half of what matters about punishment, because it fails to recognize that punishment is fundamentally comparative in nature. In order to judge punishment severity properly, I argue, we must compare an offender's unpunished, baseline condition to his worse, punished condition.  The billionaire and the poor person differ in their baseline wealth, but as I explain, wealth is just one of many ways in which offenders' baselines differ.  Proper recognition of the comparative nature of punishment requires us to either dramatically change our sentencing practices to take baselines into account or give up, in large measure, on the goal of proportional punishment.

Looks like another provocative and important piece on punishment theory from Professor Kolber.

September 14, 2008 in Purposes of Punishment and Sentencing | Permalink | Comments (29) | TrackBack