« October 19, 2008 - October 25, 2008 | Main | November 2, 2008 - November 8, 2008 »

November 1, 2008

Prosecutorial misconduct or just standard operating procedures in Senator Stevens' prosecution?

As previously noted in this post, right after Senator Ted Stevens was convicted earlier this week on seven felony counts of lying on his Senate disclosure forms, his lawyer Brendan Sullivan sent this letter of complaint to Attorney General Michael Mukasey detailing purported incidents of prosecutorial misconduct in Stevens' prosecution.  The letter is a fascinating read, and some of the allegations are very troubling (such as the assertion that federal prosecutors knowingly presented false testimony).  But one allegation really stood out because it calls "misconduct" some behavior I have long considered just standard prosecutorial operating procedures.

Specifically, the letter's last major allegation of a "serious constitutional violation" concerns the "prosecution's use of coercive promises and extravagant financial incentives to Mr. Allen in order to induce [his] 'substantial assistance'."  The letter goes on to detail that, in order to get the help of key witness Bill Allen, federal prosecutors promised not to prosecute other members of Allen's family and also made it easier for him to sell his business for millions of dollars. 

Even assuming these allegations are true, they barely seem different in degree than the kinds of cooperation inducements that federal (and state) prosecutors make all the time.  Indeed, often prosecutors will promise immunity not only to others, but to the cooperator himself.  (This fact is one of many reasons why the Border Agents' case has generate controversy: the federal prosecutor offered complete immunity to a Mexican drug smuggler in order to get him to testify against the Border Agents.)

Though the letter from Stevens' lawyer repeatedly describes the promises made to Bill Allen to secure his cooperation as "coercive," the behavior by prosecutors here strike me as well within the pale and essentially just a variation of standard operating procedure for securing cooperation in these kinds of cases.  Of course, I fully understand why Senator Stevens' lawyers are troubled by the incentives offered to Allen to encourage him to assist in the prosecution.  But if the inducements offered in this case constitute "prosecutorial misconduct," a whole lot of defendants now sitting in federal (and state) prisons who were convicted based on a cooperator testimony should start contacting habeas lawyers about the opportunity to raise a potent new collateral challenge to their convictions.

Some recent related posts:

November 1, 2008 in Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack

"If Elected ... Criminal Justice"

I just noticed this installment of the New York Times series "If Elected," which is focused on criminal justice issues.  Here are excerpts:

As an Illinois legislator for seven years, Senator Barack Obama sponsored more than 100 bills on crime, corrections and the death penalty, making criminal justice one of his top priorities as a state lawmaker.

In his nearly three decades in Washington, Senator John McCain has had a reputation for taking strong law-and-order stances.

But compared with many past presidential elections, Mr. Obama and Mr. McCain have paid little attention to issues of criminal justice as they compete for the White House. The change is a reflection, experts say, of 15 years of declining crime rates, an electorate less anxious about public safety and the fact that crime and law enforcement issues are less partisan than they used to be....

In a speech before the National Sheriffs’ Association this year, Mr. McCain, Republican of Arizona, called for tougher punishment for violent offenders and appeared to disagree with Mr. Obama’s contention that the prison population is too high.... Mr. McCain also favors tougher sentences for illegal immigrants who commit crimes and more federal money to help local agencies detain them.

Both candidates supported the Second Chance Act of 2007, which provides money for job training and for drug counseling and other re-entry programs....

As a state lawmaker, Mr. Obama supported changes to the death penalty, including a bill that let judges reject a death sentence for someone convicted on the sole basis of an informant’s testimony. He also opposed a measure that would have applied the death penalty for gang-related murders because he feared that the law would be applied unevenly....

Since being elected to the United States Senate in 2004, Mr. Obama has helped sponsor legislation intended to reduce the disparity in prison sentences for crack cocaine versus powder cocaine because of his concern that existing laws unfairly discriminate against ethnic minorities.

He has also said he would instruct the Justice Department — particularly the Civil Rights Division — to change mandatory minimum sentences for nonviolent drug offenders, create loan-forgiveness programs for law students who become public defenders, and increase the number of police officers nationally.

Some related posts:

November 1, 2008 in Campaign 2008 and sentencing issues | Permalink | Comments (4) | TrackBack

Notable call for an execution moratorium in Texas

This local story out of Austin, headlined "Exonerated inmates ask Texas to halt executions," reports on an effort by a notable group of individuals seeking death penalty reform:

Twenty wrongly convicted men, freed from death rows across the country, stood in the state Capitol on Friday to ask Texas to acknowledge that innocent people have been — and will be — sentenced to death.

The exonerated men, members of Witness to Innocence, a Philadelphia-based organization that is holding its annual meeting in Austin, want Texas to create a commission to search for wrongful convictions. And while the commission works, they want a moratorium on executions in the busiest death penalty state — with 419 executions since 1982 and six more scheduled this month....

The most recent Texas exoneration was in September , when a Collin County court dismissed the capital murder case against Michael Blair , sentenced to die for the 1993 murder of 7-year-old Ashley Estell.

"It's a national problem, but a problem that has a distinct Texas face," state Rep. Elliott Naishtat, D-Austin, told the members of Witness to Innocence. Naishtat said he will introduce a bill next session to give the governor the power to declare a temporary moratorium on executions. He also promised to work on behalf of a bill by state Sen. Rodney Ellis, D-Houston, to create a Texas innocence commission.

However, any bill to halt executions stands no chance of passing the Texas Legislature, Naishtat said. Capital punishment has substantial support in Texas. The 2007 Texas Crime Poll by Sam Houston State University found 74 percent of Texans support the death penalty. And 66 percent said they were confident that innocent people are protected from execution.

November 1, 2008 in Death Penalty Reforms | Permalink | Comments (3) | TrackBack

October 31, 2008

Some structural SCOTUS weekend reading

This week has brought lots of talk (some of it a bit kooky) about what kinds of Justices the next President might appoint.  Against this backdrop, perhaps this weekend would be an ideal time to read some deep thoughts about the basic structural realities surrounding the Supreme Court.  And, thanks to SSRN, today I saw these three distinct pieces that fit the bill:

October 31, 2008 | Permalink | Comments (0) | TrackBack

Will Senator Stevens pay at sentencing for election-related comments?

I was intrigued to see from this local reporting some of what Senator Ted Stevens had to say in a debate last night about his conviction earlier this week.  Consider these excerpts:

Stevens:... [T]he case is still pending on the basis of mentions which we filed for a new trial or for a dismissal of the case for prosecutorial misconduct.  I have not been convicted of anything.... 

I’m not going to step down.  I have not been convicted.  I have a got a case pending against me, and probably the worst case of prosecutorial -- misconduct by the prosecutors -- that is known.

I had a talk this afternoon, with one of the attorneys here, a former U.S. attorney, who told me he was appalled by what went on in that case.  So I think you’ll find out.  I will succeed and I will be found innocent.

Of course, Senator Stevens was never going to have a chance to get a sentencing discount for acceptance responsibility after refusing to admit his guilt.  But I am now wondering if prosecutors might formally or informally want him punished for making these kinds of severe assertions about prosecutorial misconduct.  I have seen more than a few cases in which prosecutors have urge a sentence at the top of an applicable guideline range because a defendant was defiant in the face of a guilty verdict.  Senator Stevens is clearly defiant, and I suppose time will tell if he might pay at sentencing for this defiance.

On the topic of prosecutorial misconduct, I was also intrigued to see this local report from a few days ago:

The issue of misconduct on the part of Justice Department prosecutors has come up again in Sen. Ted Stevens' corruption trial, this time post-conviction.  A day after Stevens was convicted on seven felony counts of lying on his Senate disclosure forms, his chief lawyer, Brendan Sullivan, sent a letter of complaint to Attorney General Michael Mukasey.

Sullivan asks for the Justice Department to "commence a formal investigation into the repeated misconduct by federal prosecutors in connection with this case."  They add that the trial was "irretrievably tainted by the prosecution team's zeal to convict a high-profile but innocent defendant."  The Justice Department had no comment on the letter.

Some recent related posts:

October 31, 2008 in Celebrity sentencings | Permalink | Comments (7) | TrackBack

You make the call: is AG Mukasey's costly personal travel important?

I am not quite sure what to make of this new story from McClatchy Newspapers, headlined "Attorney general's private trips have cost taxpayers $155,800."  Here are some details:

Attorney General Michael Mukasey has taken personal trips on government jets almost every weekend since he took office less than a year ago at a cost to taxpayers of more than $155,800, Justice Department and Federal Aviation Administration travel records show.  From November 2007 to September 2008, Mukasey traveled home to New York 45 times, according to the records, which were released recently in response to open records requests that McClatchy filed nine months ago.

Justice Department officials defended Mukasey's personal travel, saying he has no choice but to fly on a government plane to see his family.  Mukasey, unlike most other Cabinet members, is required to fly on government planes, rather than commercial ones, for security reasons. "When he travels personally, the attorney general pays what any other government official would pay for a commercial flight to that location," Justice Department spokesman Peter Carr said in a statement. "It would be unfair to penalize financially the attorney general because he is one of the few government officials required to use government aircraft for all travel."

Mukasey traveled with his wife on 17 of the trips, and eight of them were with four or five other relatives.  Most of the trips with his wife and other relatives were one-way between New York and Washington.  Mukasey reimbursed the government a total of $15,246 for all of his trips, based on round-trip coach fares, as he's required to do by government travel regulations.  However, the cost of operating the Gulfstream G5s, Cessna Citations and de Havilland Dash 8-100s that Mukasey uses is tens of thousands of dollars more....

In February, Mukasey flew to Orlando, Fla. with his wife and four other relatives.  Under travel regulations, officials who are required to travel by government aircraft are permitted to take relatives with them as long as they reimburse the taxpayers for the equivalent coach fare, which Mukasey did, officials said.  For that trip, he paid $2,173. The actual cost to the government, according to the Justice Department: $12,250.

Mukasey's personal trips appear to outpace those of other officials who are required to travel on government jets. During the same time period, Defense Secretary Robert Gates took fewer than six personal trips, and he also reimbursed the government at coach fares.... Homeland Security Secretary Michael Chertoff, who became one of the few officials required to fly on a government plane in 2004, didn't appear to have taken any personal trips in the last fiscal year, according to FAA records. His staff said he's taken about three personal trips a year during his four-year tenure and also has reimbursed the government for them at coach fare....

A congressional official said that last year Democratic House Speaker Nancy Pelosi took 17 trips to her district on military planes. Pelosi isn't required to reimburse the taxpayers because such travel is considered official. The official asked to remain anonymous because such information isn't readily available to the public and Congress is exempt from open-records laws....

Paul Orfanedes of the government watchdog group Judicial Watch said that Mukasey's personal travel appears excessive. "Taking personal trips almost every weekend, at substantial cost to taxpayers, seems like an abuse of the privileges of office," said Orfanedes, who heads Judicial Watch's Litigation Department, which has sued both Democratic and Republican administrations for information under open-records laws.

The story is quite well done and makes for a very interesting read.  But as one who understands the lure of personal travel for family reasons, I have a hard time faulting AG Mukasey for his costly travel activities.  Still, at a time when everyone is justifiably concerned about government spending, this story could have legs.  But, dear reader, I ask you: should this be an important story?

October 31, 2008 | Permalink | Comments (6) | TrackBack

Sentencing and drug policy reform initiatives to watch on Election Day

The Drug War Chronicle has this fantastic new feature article, headlined "Drug Policy Reform and Sentencing Initiatives on the November Ballot."  The article provides an effective review of all the big and little ballot initiative that sentencing fans should keep an eye on as this election season (finally) approaches its end.  Here are excerpts from the start pf the article:

Not only are there a number of state-level initiatives dealing with marijuana decriminalization, medical marijuana, and sentencing reform (or its opposite), there are also a handful of initiatives at the county or municipal level. But after a spate of drug reform initiatives beginning in the mid-1990s and continuing into the beginning of this decade, the pace has slowed this year. Of the 139 statewide initiatives identified by the Initiative and Referendum Institute as making the ballot this year, only seven have anything to do with drug reform, and four of those seek to increase sentences for various drug offenses.

Drug reformers have had an impressive run, especially with medical marijuana efforts, winning in Alaska, Arizona, California, Colorado, Maine, Montana, Nevada, Oregon, and Washington, and losing only in conservative South Dakota. Reformers also scored an impressive coup with California's "treatment not jail" initiative, Proposition 36, in 2002. At the municipal level, initiatives making adult marijuana offenses the lowest law enforcement priority have won in cities across California; as well as Denver; Seattle; Missoula County, Montana; Eureka Springs, Arkansas; and Hailey, Idaho. Detroit and several smaller Michigan cities have also approved municipal medical marijuana initiatives.

One reason for the slow-down in reformers' resort to the initiative process is that, as Marijuana Policy Project assistant communications director Dan Bernath put it, "We've already grabbed all the low-hanging fruit."...  "Only half the states have initiatives, so there are only so many places where reformers can push them," he said. "And it is an expensive process that is often complicated. On the other hand, you don't have to rely on timid politicians. The voters are often way out in front of politicians on marijuana reform initiatives, and with an initiative, you don't have to worry about those timid politicians tinkering with your legislation and taking all the teeth out of it," Bernath noted. "As a general rule, I think most reformers would prefer to see something passed by the voters, that gives it a lot of legitimacy."

And that's just what reformers are trying to do with medical marijuana in Michigan and marijuana decriminalization in Massachusetts this year, both of which appear poised to pass.  Likewise, in California, reformers are seeking to expand and deepen Prop. 36, but they also face a pair of sentencing initiatives aimed at harsher treatment of drug offenders.  And next door in Oregon, anti-crime crusaders also have a pair of initiatives aimed at punishing drug offenders -- among others.

Some recent related posts:

October 31, 2008 in Campaign 2008 and sentencing issues | Permalink | Comments (2) | TrackBack

Bush Administration fails in Hamdan resentencing effort

The Washington Post has this reporton the outcome of the resentencing efforts in the Hamdan case.  Here are excerpts:

A military judge has refused to reconsider the sentence of Osama bin Laden's former driver, forcing the Bush administration to either release a man it insists is a dangerous terrorist in two months or continue to hold him at Guantanamo Bay as an enemy combatant despite his having served his time after a trial and conviction....

Prosecutors had sought a 30-year sentence, but the jury, unconvinced that Hamdan was anything more than a low-level al-Qaeda figure, came back with a sentence that ostensibly allows Hamdan to be released Dec. 31.  Military prosecutors argued that [the military judge] erred in deciding that Hamdan was entitled to credit for time held.  In a ruling Wednesday, which was released yesterday, Allred refused a government motion that he reassemble the jurors and tell them Hamdan is entitled to no credit.

Over at SCOTUSblog, Lyle Denniston has this post on this topic titled "Hamdan sentence stays as is."

October 31, 2008 in Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

October 30, 2008

"The Crime Factory: Process, Pretext, and Criminal Justice"

The title of this post is the title of this very interesting article by Professor Erin Murphy available through SSRN.  Here is the abstract:

What do Bill Clinton, Roger Clemens, Martha Stewart and L'il Kim have in common? How about adding Marion Jones, Barry Bonds, Kwame Kilpatrick, Frank Quattrone, Donald Siegelman, and Lewis Libby?  The list of notable names could go on, each sharing a particular characteristic in common.  All have been accused of a "process crime" -- an offense not against a particular person or property, but against the machinery of justice itself.

Process crimes have a long and storied history in the American criminal justice system. Familiar variations of such offenses include perjury, obstruction of justice, and contempt; more recent iterations materialize as violations of court orders or failures to appear.  Yet despite the laundry list of politicians, business icons, and sports and entertainment celebrities that have lately found themselves ensnarled in charges related to process crimes, legal scholarship on the topic remains scarce.  Moreover, the extant discussion centers entirely on process crimes in federal courts and typically addresses issues related to prosecutions undertaken for pretextual reasons, like that of Al Capone.

This Article is the first to take a comprehensive look at process crime prosecutions. This survey reveals two critical, but presently unacknowledged, facts about process crimes. First, it uncovers a vibrant yet essentially undocumented practice of process charging in state courts. Second, it depicts a more complicated picture of the purpose of process crime prosecutions. Specifically, in addition to prosecutions brought to remedy core violations of rights or to target otherwise elusive defendants with pretextual charges, process crimes often serve to punish defendants for nothing more than their obstinate or anti-authoritarian behaviors. This Article closes by probing the normative desirability of process charging in light of these observations, and by sounding a note of caution to encourage closer monitoring of such offenses in both a categorical and individual manner.

Of course, Senator Ted Stevens can be added to the list of prominent persons subject to a process prosecution.

October 30, 2008 in Offense Characteristics | Permalink | Comments (2) | TrackBack

First Circuit talks through two Eighth Amendment issues

Thanks to AL&P, I see that the First Circuit today handed down these two opinions dealing with two different clauses of the Eighth Amendment:

October 30, 2008 | Permalink | Comments (2) | TrackBack

What might a new administration mean for the federal death penalty?

There has been a some discussion of what new Supreme Court Justices might mean for capital punishment jurisprudence (such as Steven Calabresi's recent assertion that Senator Obama would appoint judges who would pursue the abolition of capital punishment).  But I am yet to see any discussion or even any speculation about what a new presidential Administration might mean for the law and practice of the federal death penalty.  Since both presidential candidates are supporters of the death penalty, I doubt either will seek to abolish the federal death penalty.  But as reflected in likely choices for Attorney General and other criminal justice positions, I suspect the operation of the death penalty could be quite different depending on who exactly is working inside the Oval Office.

Of course, unlike President George Bush, neither of the presidential candidates has a direct history with the death penalty.  And yet, even if Senators McCain and Obama has a capital punishment past, that past might not be a great predictor of capital punishment realities once President.  After all, as Governor of Texas, George Bush presided over a record number of state executions in modern death penalty history.  But, especially during his second term as President, George Bush and his Attorneys General have not pushed hard for executions.  Specifically, as previously discussed here, the Bush Administration agreed to stays of execution dates when all the lethal injection litigation was percolating, and I have not heard any reports of efforts to get federal executions back on track even though Baze settled these issues more than six months ago.

I suppose I should not be surprised that these issues (and the potential impact of a new president) concerning the federal death penalty has escaped examination.  For some strange reason, the federal death penalty gets virtual no serious media or scholarly attention even while state capital punishment systems get excessive media and scholarly attention.

Some related posts about the federal death penalty: 

October 30, 2008 in Death Penalty Reforms | Permalink | Comments (10) | TrackBack

Latest USSC data on crack retroactivity

The US Sentencing Commission has available here updated data on the retroactive application of its revised crack sentencing guidelines on its website.  Here is how the data is described:

A set of tables presenting preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2).  These cases involve retroactive application of the crack cocaine amendment to the sentencing guidelines (Amendment 706, as amended by Amendment 711) which became effective on November 1, 2007 and which was made retroactive effective March 3, 2008.  The report represents those cases considered by the courts through September 30, 2008 and for which data was received, coded, and edited by the Commission as of October 16, 2008.

I continue to be impressed and somewhat surprised by how few concerns have been expressed about the reality of applying the new crack guidelines retroactively given what a huge fuss was made by the Justice Department about the idea before it became a reality back in March.

October 30, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack

Senator Ted Stevens not (yet) disenfranchised

This article in the Anchorage Daily News, headlined "Stevens keeps right to vote until sentencing," keeps up with the latest legal news surrounding Senator Ted Stevens:

Sen. Ted Stevens gets to vote in next Tuesday's election despite being found guilty of seven federal felonies because his conviction won't be final until he's sentenced, the state Department of Law decided late Wednesday.

Alaska law bars felons convicted of crimes involving "moral turpitude" from voting for the duration of their sentence, including any probation period. Stevens' failure to report gifts is a Class D felony under federal law and constitutes such a crime because it involves willful fraud, said an opinion by Michael Barnhill, a senior assistant attorney general with the state.

But when is a person deemed convicted? Barnhill conceded in his opinion there are two ways to read the law, with a popular interpretation being that the jury's verdict is enough.  But most legal precedents lean toward waiting until the judge in the case has entered his formal judgment and sentence, Barnhill said....

Given the touchy nature of the voting question, it took the state legal department more than two days to sort through the precedents and draw up its four-page opinion for Division of Elections director Gail Fenumiai.  Questions about Stevens' right to vote began coming to the division within hours of his conviction Monday.

The state's conclusion jibes with the opinion of several other lawyers, including federal public defender Rich Curtner in Anchorage. But Curtner added that the question of exactly when a felon loses voting rights had never come up in any of his federal cases.  "For most of my clients, that's the least of their worries," he said.

Some recent related posts:

October 30, 2008 in Celebrity sentencings | Permalink | Comments (1) | TrackBack

Notable "death is different" response to wrongful convictions

I just discovered via SSRN this notable article by Professor Rory Little titled "Addressing the Evidentiary Sources of Wrongful Convictions: Categorical Exclusion of Evidence in Capital Statutes." Here is the abstract:

After two decades of powerful "wrongful conviction" cases stimulated by new DNA science, we can now categorize the sources of error across dozens if not hundreds of exonerations. (The author, a former prosecutor, is neither a death penalty abolitionist nor a disbeliever of convictions - many convictions are "very right indeed" (n.2). Nevertheless, at least four of the known sources of wrongful conviction fall into categories we can define and, perhaps, do something about: (1) eyewitness misidentifications; (2) false confessions; (3) "jailhouse snitches" (or more broadly, criminal informants); and (4) "junk" (i.e., unvalidated) science. Yet we do not simply ban these categories of evidence from criminal cases. Instead, we propose only procedural screens, which if successfully navigated, still allow some instances of the questioned types of evidence to be admitted. But in cases with wrenching facts, emotion may overwhelm "screens" such as jury instructions or expert testimony designed to narrow the jury's consideration of questionable evidence.

In an effort to stimulate meaningful remedial thinking, this essay proposes instead a "categorical" exclusion solution for capital cases. (The essay quickly sidesteps the more difficult question: why limit the categorical exclusion to just capital cases?) No capital prosecution may be filed or prosecuted if based primarily on one of the four listed sources of evidence, whether singly or in combination. This statutory proposal would be immediately judicially enforceable and reviewable. A model statute is appended, so that critics (or advocates) can shoot at (or improve) the idea with specifics.

The essay concludes by briefly considering nine objections that might be raised to the proposal. The essay points out that we do "categorically" ban probative evidence in at least two other contexts: the Treason Clause of the Constitution; and polygraph evidence. (Interestingly, Ben Franklin was reported by James Madison to favor the Treason Clause, which blocks the prosecution of treason cases unless the evidence is especially powerful, because the evidence was "too easily made use of against innocence." Thus the concern to guard against prosecution of the "actually innocent" is hardly new.)

The essay also provides (in a footnote, of course) some "forgotten" history about "Actual Innocence" literature in the United States: The debate can be traced back to a 1912 dialogue between the wardens of the American Prison Congress and then-Librarian of Congress Edwin Borchard, which culminated some decades later in Borchard's well-known 1932 book "Convicting the Innocent."

October 30, 2008 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

October 29, 2008

"Court-Related Aspects of Capital Punishment "

The title of this post is the title of this special issue of the Justice System Journal,  which looks like a must-read.  Though not available free on-line, here are some of the intriguing titles of articles in this special issue that I am planning to track down:

Based on the titles and the authors, I am not expecting that all the articles in this special issue of the Justice System Journal will be presenting all the pro and con arguments on these and related capital topics.  Nevertheless, the issue seems to cover a lot of important practical death penalty issues.

October 29, 2008 in Death Penalty Reforms | Permalink | Comments (3) | TrackBack

Lengthy Seventh Circuit discussion of reasonableness review

Though not appearing to break any new ground, the Seventh Circuit today in US v. Jackson, No. 07-2421 (7th Cir. Oct. 29, 2008) (available here), provide another good example of an appellate court taking its obligation to conduct reasonableness review seriously.  Here is the start of the Jackson opinion:

Codell Jackson was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).  The district court, focusing on Jackson’s unusually extensive criminal history, imposed a sentence of 96 months’ imprisonment, which exceeded the top of the advisory guidelines imprisonment range by 18 months.  Jackson appeals, challenging the reasonableness of his sentence, and we affirm.

October 29, 2008 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

How should (and will) Senator Stevens' political past and future impact his sentencing?

I am having a grand time ruminating about various legal and political dynamics that surround the upcoming sentencing of Senator Ted Stevens following his conviction earlier this week.  And this new Washington Post article, headlined "McCain and Palin Say Stevens Should Resign," got me thinking about the intersection of political realities and legal issues for his sentencing.  Here are some snippets from the article:

Sen. John McCain (Ariz.), the [Republican] party's presidential nominee, and Alaska Gov. Sarah Palin, McCain's running mate, said Stevens must resign because of his conviction for concealing the receipt of more than $250,000 in gifts and renovations to his house in Girdwood, Alaska. "It is clear that Senator Stevens has broken his trust with the people and that he should now step down," McCain said.

Palin left open the possibility that Stevens could stand for reelection Tuesday and then resign. "Alaskans are grateful for his decades of public service, but the time has come for him to step aside. Even if elected on Tuesday, Senator Stevens should step aside to allow a special election to give Alaskans a real choice of who will serve them in Congress," she said.

The Senate's Republican leader, Sen. Mitch McConnell (Ky.), told reporters that Stevens should resign or face expulsion from the Senate. "If he is reelected and the felony charge stands through the appeals process, there is zero chance that a senator with a felony conviction would not be expelled from the Senate," he told the Associated Press while campaigning in Kentucky....

Although the odds of a convicted felon winning reelection seem long, Stevens is considered a heroic figure in Alaska.  Throughout the five-week trial, polls showed Stevens slowly catching up to Anchorage Mayor Mark Begich (D).  The race had narrowed to a near-deadlock by the time Stevens was convicted Monday....  

Stevens has given no hint of willingness to resign. "I remain a candidate for the United States Senate . . . and ask for your vote," he said in a statement Monday....

I cannot help but speculate about how the election results next week should or could impact the future sentencing of Senator Stevens.  If he loses his re-election bid, he can and perhaps will argue at sentencing that he has been punished (and punished enough) by the voters.  If he wins his re-election bid, he can and perhaps will argue at sentencing that the voters do not believe he is guilty and that he ought to get a reduced sentence so he can effectively serve his voters interests in the Senate.

Here is another legal reality not to be missed: Senator McConnell's comment indicating Senator Stevens will be tossed from the Senate includes a notable caveat suggesting he will be expelled only if and when "the felony charge stands through the appeals process."  As informed readers know, that appeals process could easily take years.

Some recent related posts:

October 29, 2008 in Celebrity sentencings | Permalink | Comments (1) | TrackBack

Fifth Circuit rejects supervised release residency condition

I am noticing more and more cases in which federal circuit courts are rejecting certain conditions of supervised release imposed by district courts.  I am wondering if this trend reflects district courts imposing more broad SR restrictions or circuit courts scrutinizing these restrictions more carefully.  Whatever explains the up-tick in these kinds of cases, a new Fifth Circuit decision in US v. Woods, No. 07-51491 (5th Cir. Oct. 28, 2008) (available here), reflects the trend  Here is the start of the Woods decision:

Defendant-appellant Briane Nicole Woods appeals the district court’s imposition of a discretionary condition of supervised release forbidding her from residing with any person to whom she is not ceremonially married or related by blood.  We conclude that the condition is overbroad and involves a greater deprivation of liberty than is reasonably necessary to achieve the purposes of supervised release.  Thus, the district court abused its discretion by imposing a supervised release condition that fails to meet a requirement set forth in 18 U.S.C. § 3583(d).  We vacate the condition of supervised release, affirm the remainder of the sentence, and remand.

October 29, 2008 in Criminal Sentences Alternatives | Permalink | Comments (3) | TrackBack

"America's Forgotten War"

The title of this post is the title of this piece in today's Washington Post.  The reference, of course, is to the war on drugs, and here are a few interesting excerpts from the piece:

On June 17, America's longest-running war reached another milestone -- 37 years and counting, with no end in sight.  Hardly anyone noticed.  Neither of the leading presidential candidates mentioned the struggle that has cost hundreds of billions of taxpayer dollars and countless American lives.  A Senate hearing was held to mark the anniversary, but hardly anyone came....

Declared by then-president Richard M. Nixon in 1971, the drug war no longer has the glitter it once had. Two decades ago, illicit imports of cocaine, heroin and marijuana and their use by Americans topped the list of public concerns in nationwide surveys at 22 percent.  In January, a Pew Research Center poll found that only 1 percent of the population considered drugs and alcohol the most important problem facing the country.

[But] the fight against illicit drugs goes on, and it is not without peril.  Nor is it without domestic consequences, as experts testified at last summer's poorly-attended hearing, chaired by Sen. Jim Webb (D-Va.).  About "500,000 persons are locked up for drug offenses in any one day" in this country, said Peter Reuter of the University of Maryland's criminology department.  John Walsh of the Washington Office on Latin America noted that the annual economic costs of illicit drugs have grown significantly over the past 15 years; in a 2004 study, the White House Office of National Drug Control Policy (ONDCP) put the figure at $181 billion.

Some related posts:

October 29, 2008 in Drug Offense Sentencing | Permalink | Comments (1) | TrackBack

October 28, 2008

Looking at control of federal prosecutors as we look toward a new administration

Just posted on SSRN is this terrific looking new essay by Dan Richman, titled "Political Control of Federal Prosecutions — Looking Back and Looking Forward."  Here is the abstract:

This essay — written for the annual Duke Law Journal Administrative Law Symposium — explores the mechanisms of control over federal criminal enforcement activity that the Administration and Congress used or failed to use during George W. Bush's presidency. Particular attention is given to Congress, not because it played a dominant role but because it generally chose to play such a subordinate role.  My fear is that the recent focus on management inadequacies or abuses within the Justice Department might lead policymakers and observers to overlook the hard questions that remain about how the federal criminal bureaucracy should be structured and guided during a period of rapidly shifting priorities, and about the role Congress should play in this process.

October 28, 2008 in Who Sentences | Permalink | Comments (0) | TrackBack

Law prof fears "mass freeing of criminal defendants"

Yesterday in this post I noted this new op-ed authored by Senator John McCain in which the Senator asserts that Sentaor "Obama's judges would coddle criminals."  Today, Professor Steven Calabresi, in a somewhat insightful and somewhat wacky op-ed in the Wall Street Journal, takes the anti-Obama rhetoric up a notch.  Specifically, Professor Calabresi contends that if Senator Obama becomes President and appoints a large number of federal judges, "we could possibly see ... the abolition of capital punishment and the mass freeing of criminal defendants." 

I was intrigued when Senator McCain promised that we might soon be seeing new judges coddling criminals, but I am really taking notice — as must be criminal defendants ranging from Senator Ted Stevens to Jeff Skilling from George Ryan to Conrad Black from Duke Cunningham to Tom Noe — now that a distinguished law professor is indicating that we might soon experience, as a result of new judicial appointment, "the mass freeing of criminal defendants."

I expect some hyperbolic tough-on-crime rhetoric coming from politicians like Senator McCain and former Mayor Rudy Giuliani (heard on recent robocalls).  But I am both sadded and very disappointed to see this kind of silly over-the-top rhetoric coming from law professors.  Though I know this is an exciting time legally and politically, I think everyone should just take a deep breath.

October 28, 2008 | Permalink | Comments (27) | TrackBack

"What pardons will Bush issue?"

The title of this post is the title of this local article, which asks what is likely to be a hot questions in lots of circles a little more than a week from today.  The article is focused on the possibility for preemptive pardons for people responsible for carrying out your administration's interrogation policies, but of course the question raises issues that go far beyond questions related to the lawfulness of some of the Bush Administration's activities.

Of course, as of late yesterday, a new name may have appeared on would-be pardon short lists: Senator Ted Stevens.  I have had a fun time speculating about whether President Bush ought to seriously consider a pardon or commutation for Senator Stevens, especially if he were to win re-election.  But, P.S. Ruckman is already on this story through this post, titled "Context: Convicted Senators Who Were Pardoned ... Zero."

Other well-known defendants who have reason to be thinking about this question include Sccoter Libby, the Border Agents, Marion Jones, Duke Cunningham, Jonathan Pollard and many more.  Again,  P.S. Ruckman is all over these matters with this post, titled "Watch List: Crunch Time Ahead."

Some recent related posts:

October 28, 2008 in Clemency and Pardons | Permalink | Comments (4) | TrackBack

More scholarship to add to the fall reading pile

Thanks to this post at Co-op, I see there are these two must-reads for sentencing fans appearing in the October 2008 issue of the William & Mary Law Review:

October 28, 2008 in Recommended reading | Permalink | Comments (0) | TrackBack

Prosecuting prison rape

I just came across this interesting looking pieceon SSRN, titled "Prosecuting Sexual Violence in Correctional Settings: Examining Prosecutors' Perceptions."  Here is the abstract: 

The Prison Rape Elimination Act of 2003 (PREA) is the first piece of federal legislation, which expressly and exclusively addresses sexual abuse of persons in custody. Notwithstanding passage of the Act, there is clear belief, echoed by correctional leaders, that prosecutors are reluctant at best, and unwilling at worst, to prosecute cases of sexual violence in correctional settings. In order to gather information on prosecutor interest in and capacity to prosecute these cases, the National Institute of Corrections Project on Addressing Prison Rape at the Washington College of Law the (the NIC/WCL Project) collected data from state and federal prosecutors.

This article draws on that research and data to examine the perception that prosecutors are unwilling to prosecute cases of sexual violence in custody, discusses barriers to prosecution identified by prosecutors regarding investigating and prosecuting allegations of sexual abuse of persons under correctional supervision, and recommends tools to overcome those barriers.

October 28, 2008 in Recommended reading | Permalink | Comments (2) | TrackBack

A perfect Sixth Amendment test case for SCOTUS?

In separate opinions in recent years, Justice Stevens has suggested that he might like to overrule the Harris decision allowing judges to find facts triggering mandatory minimum sentence, and Justices Scalia and Thomas have indicated in various ways their concerns about the preservation of Sixth Amendment principles in the application of the Booker remedy.  In addition, the entire Court has seemed none too impressed with the Eighth Circuit's work in crack sentencing cases.

For all these reasons (and a few others), I view the Eighth Circuit's work today in US v. Webb, No. 08-1331 (8th Cir. Oct. 28, 2008) (available here) has some real cert potential.  The first paragraph of the Webb opinion reveals why the case could be of great interest to any Justice still serious about the reach and application of Sixth Amendment jury trial rights at sentencing:

Micaiah Rey and Geno Webb were convicted of conspiracy to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1), and 846.  In response to an interrogatory, the jury found beyond a reasonable doubt that the conspiracy involved more than five but less than fifty grams of cocaine base.  For sentencing purposes, the district court determined by a preponderance of the evidence that the conspiracy involved more than fifty but less than 150 grams of cocaine base.  Accordingly, Rey was sentenced to 240 months’ imprisonment, and Webb was sentenced to 130 months’ imprisonment.  Rey and Webb appeal, contending that their sentences must be based on the amount of drugs found by the jury and not the amount found by the judge.  We affirm.

October 28, 2008 | Permalink | Comments (3) | TrackBack

Some sentencing questions after Senator Stevens conviction

There are so many ideas and questions bouncing in my head in the wake of US Senator Ted Stevens of Alaska being convicted Monday afternoon on all seven counts in his federal corruption trial.  Here are just a few of these questions:

1.  What will be Senator Stevens' precise guideline range as calculated by the probation office and prosecutors?  (And might there be a dispute over the guideline calculations as there was in the Scooter Libby case?)

2.  Will Senator Stevens seek a "traditional" downward departure from the guidelines based on, say, his age or other offender characteristic that the guidelines deem "not ordinarily relevant"?

3.  Which 3553(a) factors will Senator Stevens seek to emphasize if/when seeking a below-guideline sentence?

4.  If sentenced to any prison term, will Senator Stevens get bail pending appeal?  (Recall that it was the denial of bail pending appeal that prompted the timing of President Bush commutation of Scooter Libby's prison sentence.)

5.  Might President Bush exercise his clemency powers to pardon Senator Stevens or to commute his sentence?

6.  Should anyone eager for progressive federal sentencing reforms now actually root for Senator Stevens to be re-elected on the theory that he (and his many Senate friends) might now be much more sympathetic to argument that federal judges need to have broad discretion to consider mitigating factors at sentencing?

October 28, 2008 in Celebrity sentencings | Permalink | Comments (11) | TrackBack

Japan continues its stepped up pace of executions

Here is a good trivia question for the sentencing cocktail parties: What do Japan and Texas have in comming these days?  The answer, as detailed in this BBC News story and this AP story, is that both jurisdictions are now executing death row defendants at the same accelerated pace.

I have previously blogged here about the busy times for the death chamber in Texas.  Here are details from the BBC about Japan's recent execution surge:

Japan has hanged two convicted murderers, including one who strangled two schoolgirls with his bare hands.  The latest executions bring the total number of death penalties implemented this year to 15, thought to be the highest total in many years.  Last year, Japan executed nine convicted killers.

Japan is one of the few countries in Asia which has stepped up its use of the death penalty, despite international condemnation.

The two people hanged on Tuesday were Michitoshi Kuma, 70, and Masahiro Takashio, 55, the justice ministry said in a statement. Kuma kidnapped two seven-year-old girls on their way to school in southern Japan in February 1992 and strangled them, dumping their bodies in the mountains.  Takashio was convicted of breaking into a house in northern Japan in March 2004 and stabbing a 55-year-old woman and her 83-year-old mother to death before stealing 50,000 yen, or about $500....

Three people were executed in September.  Executions are not announced beforehand and are carried out in secret, usually with strong local support....

[W]hile rights groups decry the use of the death penalty, without exception, public opinion in Japan seems to support its continued use. It is thought that about 100 convicted murderers and others on death-row are awaiting execution.

October 28, 2008 in Sentencing around the world | Permalink | Comments (8) | TrackBack

Interesting legal developments concerning sex offender regulations

Two interesting legal stories developed Monday concerning legal challenges to certain state sex offender laws:

October 28, 2008 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

October 27, 2008

Senator Stevens convicted on all counts

As detailed in this CNN report, US Senator Ted Stevens of Alaska was convicted Monday afternoon on all seven counts in his federal corruption trial, and thus he now has to think about the federal sentencing guidelines and judicial sentencing discretion in a whole new way. Here are more particulars:

The jury found Stevens guilty of "knowingly and willfully" scheming to conceal on Senate disclosure forms more than $250,000 in home renovations and other gifts from an Alaska-based oil industry contractor. Stevens faces a maximum sentence of up to to 35 years in prison -- five years for each of the seven counts.

Legal experts note the judge has the discretion to give Stevens as little as no jail time and probation when he is sentenced....

As Stevens left the defense area, he and his wife exchanged a kiss on the cheek. Stevens said: "It's not over yet." Stevens' defense team said they will move for a new trial....

The longest-serving Republican senator in history, Stevens becomes the first senator to be convicted of a felony since 1981.  Judge Emmet Sullivan has scheduled a hearing on any pending motions for February 25.

I wonder if Senator John McCain, who has expressed concern in an new op-ed about judicial sentencing discretion and about judges who "coddle criminals," will be urging Judge Sullivan not to exercise his discretion to show his Senate colleague any leniency. 

Some related posts:

UPDATEI have not yet seen any speculation about what kind of guideline sentence Senator Stevens might be facing, though I have previously guessed he would be facing a few years because of the potential application of various upward adjustments.  I have not frequently worked through the guidelines for corruption, so I would be grateful to readers using the comments to speculate on the applicable sentencing range.

October 27, 2008 in Celebrity sentencings | Permalink | Comments (6) | TrackBack

Re-examining compassionate release

One important sentencing topic that rarely gets enough scholarly consideration is the legal doctrines that permit "compassionate release" for prisoners under certain limited circumstances.  I was thus surprised and pleased to discover this new paper on SSRN by William Berry, titled "Extraordinary and Compelling: A Re-Examination of the Justifications for Compassionate Release."  Here is the abstract:

Federal law, unbeknownst to many, includes a provision that permits the immediate release of federal prisoners. This safety valve provision requires that the Director of the Bureau of Prisons make a motion on behalf of the prisoner in order to secure the prisoner's compassionate release. Far from being a veiled version of parole, this compassionate release provision is to be used only in circumstances deemed "extraordinary and compelling."  While the Bureau of Prisons has read this language very narrowly for many years, considering only terminally ill inmates as candidates for compassionate release, the Sentencing Commission modified its Guideline commentary in November 2007, defining for the first time criteria for determining what should be deemed "extraordinary and compelling."  Specifically, the Commission's guidelines provide that extraordinary and compelling circumstances can include: (1) terminal illness, (2) debilitating physical conditions that prevent inmate self-care, and (3) death or incapacitation of the only family member able to care for a minor child.

This article considers the theoretical justifications for compassionate release in an attempt to develop a framework to evaluate what circumstances rise to the level of "extraordinary and compelling."  First, the article argues that the State's purposes for punishment, whether retributive or utilitarian, do not by themselves justify the compassionate release of inmates.  As a result, this article proposes that the basis for compassionate release should lie in the broader interests of the State.  Thus, this article argues that the non-penal interests of the State (in light of the "extraordinary and compelling" factual circumstance) must clearly outweigh the State's penological interest in the inmate serving his/her entire sentence before compassionate release may be justified.

October 27, 2008 in Sentences Reconsidered | Permalink | Comments (6) | TrackBack

New op-ed from Senator McCain talking about DOJ and judges

A helpful reader passed along this new op-ed authored by Senator John McCain in which he discusses the future of the Department of Justice and judicial appointments.  Here are snippets that might especially intrigue (and annoy) sentencing fans:

Lax enforcement policies, judges who legislate from the bench and lack of support for law enforcement personnel all continue to force our innocent citizens behind the barred windows of their homes and allow criminals to roam free.

And now drugs are bringing waves of crime and organized gang activity to rural areas thought to be nearly immune from such problems.  The federal government must both support state and local law enforcement and effectively enforce federal laws designed to root out violent crime, organized gangs and other interstate criminal activity.

None of these law enforcement efforts will succeed without a judiciary that understands its proper role and its proper mission.  Senator Obama would appoint liberal activist judges and supply them with greater sentencing discretion.  I will appoint judges who will strictly interpret our Constitution. Senator Obama's judges would coddle criminals.  I will appoint judges who will hold criminals accountable.

If allowed a follow-up question, I would ask how the Supreme Court's Heller Second Amendment ruling fits into all of this rhetoric.  Judges Posner and Wilkinson have described Heller as an example of legislating from the bench, and I believe that local DC police supported the gun ban struck down in Heller.

In addition, I am wondering exactly why John McCain believes that "Obama's judges would coddle criminals," given that most of the major pro-criminal rulings in recent years were authored by Supreme Court justices appointed by Ronald Reagan.  Justice Antonin Scalia coddled a brutal wife-beater with his decision in Blakely and an attempted murderer with his decision in Crawford; Justice Anthony Kennedy coddled a child rapist with his decision in the Kennedy child rape case and coddled a juve killer with his decision in Roper. 

Some related posts:

October 27, 2008 in Campaign 2008 and sentencing issues | Permalink | Comments (10) | TrackBack

Noticing the new ex-felon voting block

This Los Angeles Times article spotlights a notable new voting block: former felons who have regained the right to vote.  Here are snippets from the article:

At least a dozen states have changed their laws since 2003 to allow more felons who are no longer in prison to cast ballots, reversing a long-standing trend.  And though studies show that felons lean Democratic, states led by Republican governors have loosened their voting rules, including Alabama, Nebraska, Nevada and Florida -- where officials have learned from the 2000 presidential race just how close an election can be.

States restored voting rights to about 760,000 felons in the last decade, according to tallies by voting rights groups, but data on how many have registered to cast ballots are sketchy.  Whether these voters could tip an election in a presidential swing state is a matter of speculation.

But the new laws have produced aggressive registration drives this election season in the most unconventional of places -- soup kitchens, halfway houses, even Alabama state prisons.  "This is the first time in history that some of these places have ever seen this kind of civic activity," said the Rev. Kenneth Glasgow, who served time in prison.  He now heads an Alabama nonprofit faith-based organization and has led efforts to register the state's current and former convicts....

In some states, voting rights activists have been joined by evangelical Christian groups who argue that forgiveness plays an important role in rehabilitating criminals.  "We try to challenge the conservatives," said Pat Nolan, vice president of Prison Fellowship, a conservative Christian justice reform group founded by Charles Colson, the former Nixon administration aide who was convicted of Watergate-related crimes.  Nolan is a former state assemblyman from Glendale who served time in federal prison for racketeering.  "Why, after someone has paid their debt, do we continue to punish them?"

According to advocacy groups, about 5.3 million Americans, or 1 in 41 adults, have lost their right to vote because of a felony conviction.

October 27, 2008 in Campaign 2008 and sentencing issues | Permalink | Comments (5) | TrackBack

October 26, 2008

A profile of Prez pardons as we enter clemency season

Former pardon attorney Margaret Colgate Love sent me a terrific little document providing a "a very quick and dirty profile of the 157 individuals who have been pardoned by President Bush to date, as well as the five individuals whose sentences have been commuted."  The full document can be downloaded below, and here are a few snippets:

I found that of the 157 full pardons issued by President Bush to date, almost 2/3 went to people whose convictions had occurred more than 20 years before they were pardoned. Only a handful of pardons went to people convicted less than ten years before the pardon. Every single pardon recipient had fully served their sentence years before they were pardoned. Twenty-one of the pardon grants went to people convicted more than 35 years before, and eight of those pardoned were convicted in the 1940s and 50s.

By far the most frequently pardoned offenses are those falling into the general category of theft and fraud. But President Bush has also pardoned 29 drug offenders, 11 people convicted of a firearms-related offense, and eight tax evaders. In addition to the usual complement of bootleggers (11) and car thieves (7), there are teller embezzlers, thieving postal workers, gamblers, illegal dumpers, draft dodgers, and election law violators. The batch also includes the obligatory odometer cheat....

Only 18 of the 157 people pardoned spent more than two years in prison, and 16 of these were convicted of drug offenses. (The other two were an S&L fraudster sentenced to three years, and an armed bank robber sentenced to 12 years’ imprisonment.)  Most surprising to me, more than two thirds of those pardoned spent no time in prison at all....

Something else that may be surprising to some, most of those pardoned (113) were not represented by a lawyer. Only one of the five individuals whose sentence was commuted was represented by counsel in connection with his clemency application....

Word on the street is that there will be more pardons after the election – and possibly even some before it. I would not be surprised to see a difference in the profile of those receiving pardons in the final weeks.

Download BushPardons.profile.10.08.doc

October 26, 2008 in Clemency and Pardons | Permalink | Comments (1) | TrackBack

In praise of the ABA's sentencing institute

As noted in this post at WCCP, the "ABA's recent sentencing institute was packed full of wonderful discussion on the effect of Booker, Rita, Gall, and Kimbrough, as well conversations on many other issues related to sentencing."  I was both grateful and fortunate to have a chance to speak at lunch, and it was exciting to talk about sentencing politics inside the beltway only days before the election.  It was also a joy to participate on a great morning panel and to hear from so many others doing important sentencing work.

I hope the ABA might seriously consider doing this kind of sentencing institute annually.  The topic certainly merits regular and sustained attention and, thanks to courts and commissions and legislatures, key sentencing issues and doctrines now seem to change every year.   

October 26, 2008 | Permalink | Comments (0) | TrackBack