Sentencing Law and Policy

Worth reading from the Duke Law Journal

Thanks to the law review TOCs at Concurring Opinions, I saw that the Duke Law Journal has a new article and two new notes worth checking out:

• Habeas Corpus and State Sentencing Reform: A Story of Unintended Consequences

• Victims' Rights in an Adversary System

• The Newest Spectator Sport: Why Extending Victims' Rights to the Spectators' Gallery Erodes the Presumption of Innocence

Utah high court expresses concerns about capital representation

As detailed in this local article, on Friday the Utah Supreme Court used an opinion in a capital case to express concern about the state and quality of defense representation.  Here are some particulars:

Concerned about the lack of qualified lawyers willing to represent indigent death-row inmates, the Utah Supreme Court warned Friday it might be forced to reverse capital sentences.

In the case of condemned killer Michael Anthony Archuleta, a unanimous court said low pay and the complexity of such cases have shrunk the pool of Utah attorneys who will accept them. Associate Chief Justice Michael Wilkins wrote the justices may soon be "forced" to rule a lack of able and willing attorneys is grounds to reverse a death sentence and impose life without parole instead.

State lawmakers have the duty to provide adequate resources to train and compensate death-penalty lawyers, the high court said.

Here are the notable closing paragraphs of this opinion from the Utah Supreme Court in Archuleta v. Galetka:

In recent years we have become especially concerned with the diminishing pool of competent counsel in capital cases.  There is no acceptable justification for this trend.  Competent defense and appellate counsel are guaranteed by our constitution.  We cannot allow a defendant’s life to be taken by the government without an adequate review of the conviction.  Our judicial oath to support, protect, and defend the Constitution must, of necessity, include the requirement that we take measures within our authority and responsibility to see that the mandates of the Constitution are observed.

It is the duty of the legislative branch to provide for adequate defense of capital defendants, including sufficient resources to attract, train, compensate, and support legal counsel.  It is left to the legislative branch to determine how best to accomplish this goal.  However, it falls to us, as the court of last resort in this state, to assure that no person is deprived of life, liberty, or property, without the due — and competent — process of law.  Without a sufficient defense, a sentence of death cannot be constitutionally imposed.  This basic concept is bedrock upon which our constitutional government stands.

If, in the future, we find that the unavailability of competent and willing counsel impedes prompt, constitutionally sound resolution in capital cases, we may be forced to hold that the lack of such counsel is sufficient grounds for outright reversal of a capital sentence and remand for the imposition of a sentence of life in prison without the possibility of parole, for which the required degree of sophistication and skill reposed in counsel is slightly less.

Aspirations and realism about drug sentencing reform

I have the honor of being in Boston today to participate in a terrific symposium hosted by the New England Journal on Criminal and Civil Confinement.  The symposium is called "High Crimes: Punishing America’s Drug Offenders," and details about the event can be found at this link. 

Among the topics I plan to discuss is what I hope and what I expect President Obama might do on the drug sentencing front. My views are informed in part by what now appears on the President-Elect's new transition website. Here are some comments from the website under a tab on Civil Rights:

The Problem...

Disparities Continue to Plague Criminal Justice System: African Americans and Hispanics are more than twice as likely as whites to be searched, arrested, or subdued with force when stopped by police. Disparities in drug sentencing laws, like the differential treatment of crack as opposed to powder cocaine, are unfair....

Barack Obama and Joe Biden's Plan...

Reduce Crime Recidivism by Providing Ex-Offender Support

Obama and Biden will provide job training, substance abuse and mental health counseling to ex-offenders, so that they are successfully re-integrated into society. Obama and Biden will also create a prison-to-work incentive program to improve ex-offender employment and job retention rates.

Eliminate Sentencing Disparities

Obama and Biden believe the disparity between sentencing crack and powder-based cocaine is wrong and should be completely eliminated.

Expand Use of Drug Courts

Obama and Biden will give first-time, non-violent offenders a chance to serve their sentence, where appropriate, in the type of drug rehabilitation programs that have proven to work better than a prison term in changing bad behavior.

I am hopeful that the new administration will do all this and a lot more on drug sentencing.  Realistically, I think a number of status quo biases and entrenched interests will make it much harder that anyone expects to bring real change I can believe in to this important area of crime and punishment.

Predictions and recommendations for AG and SG?

While the early political buzz about the next administration is focused mostly on on other cabinet positions, I am most interested and concerned in who President Obama will tap for the positions of Attorney General and Solicitor General.  This new USA Today article looks at the SG position, and a lot of different names have already made the rounds for AG.

Though readers are welcome to make predictions about who will actually get picked for these key positions, I am especially interested in readers making creative (and realistic?) recommendations for these spots.  I will get the name game started by throwing out the names of two great lawyers I happen to know well and whose work I have always greatly respected:

For AG: US District Judge Algenon Marbley
For SG: Professor Jeffrey Fisher

More on the fate of drug sentencing reform initiatives in the states

This new piece from the Drug War Chronicle, headlined "Sentencing Reform Initiative Defeated in California, 'Tough on Crime' Initiatives Win in Oregon," provides sobering take on the outcome of some of the state drug sentencing reform initiatives. Here is how it starts:

Tough on crime can still trump smart on crime, if Tuesday's elections results on sentencing initiatives in two of the nation's most progressive states are any indication. In Oregon, voters approved two competing initiatives that will increase sentences and prison populations, while in California, a multi-million dollar campaign to dramatically reform sentencing went down in the face of opposition from prison guards and politicians, and another initiative that will see longer sentences and more prisoners was approved by voters.

The death penalty and mental illness

Now available here from SSRN is Professor Bruce Winick's new paper titled "The Supreme Court's Emerging Death Penalty Jurisprudence: Severe Mental Illness as the Next Frontier."  Here is the abstract:

The Supreme Court's 2002 decision in Atkins v. Virginia and 2005 decision in Roper v. Simmons marked a significant new direction in Eighth Amendment jurisprudence.  This Article explores the Court's emerging conception of proportionality under the Eighth Amendment, which also is reflected in its 2008 decision in Kennedy v. Louisiana.  The Article analyzes the application of this emerging approach in the context of severe mental illness.  It argues that the Court can extend Atkins and Roper to severe mental illness even in the absence of a legislative trend away from using the death penalty in this context.  The strong parallels between severe mental illness at the time of the offense and mental retardation and juvenile status make such an extension of the Eighth Amendment appropriate.

Severe mental illness would not justify a categorical exemption from the death penalty; rather, a determination would need to be made on a case-by-case basis.  The major mental disorders, like schizophrenia, major depression, and bipolar disorder, could qualify in appropriate cases, but not antisocial personality disorder, pedophilia, and voluntary intoxication.  The Article discusses the functional standard that should be used in this context, and proposes that the determination be made by the trial judge on a pretrial motion rather than by the capital jury at the penalty phase.  Future implications of the Court's emerging approach also are examined.

Another election day outcome with a sentencing twist

This local story from Nebraska, headlined "Voters give short molester's judge the boot," provides this post-election update of a sentencing story from a few years ago:

Cheyenne County District Court Judge Kristine Cecava of Sidney, Neb., who touched off a national debate by sentencing a 5-foot-1, 100-pound child molester to probation, has been voted off the bench. Cecava is the eighth judge to be removed by voters since Nebraska adopted its judicial selection plan in the early 1960s.

She sparked controversy in 2006 when she sentenced Richard Thompson to 10 years of intensive supervised probation and commented that she feared for his safety in prison because of his size....

In Nebraska, the governor appoints judges, but voters periodically consider whether they should be retained in office. Cecava was turned out Tuesday by a 52 percent to 48 percent vote....

Cecava was the lowest-rated district judge on the Nebraska State Bar Association's most recent performance evaluation. Fifty-seven percent of lawyers who responded said she should be retained.

Thompson had faced up to 10 years in prison after being convicted of two counts of sexual contact with a 13-year-old girl. The Nebraska Court of Appeals upheld Thompson's probation, saying it was justified based on his psychological evaluation.

Spitzer dodges criminal prosecution

As detailed in this article from the New York Law Journal, the former New York Governor apparently no longer has to worry about executive privileges in federal prison.  Here are the basics:

He may have lost his government job, but former New York Gov. Eliot Spitzer will not face prosecution for the scandal that drove him from office. Southern District of New York U.S. Attorney Michael J. Garcia announced Thursday that his office will not pursue criminal charges against Spitzer for any offense related to patronizing a high-end prostitution ring.

"Smart on Crime: Recommendations for the Next Administration and Congress"

The title of this post in the title of a new report I just learned about through an e-mail with the text of this press release:

A coalition of more than 20 organizations and individuals is pleased to announce the publication of a catalogue of key criminal justice issues and policy recommendations for the next administration and congress.

Virginia Sloan, President of the Constitution Project, which coordinated the coalition's efforts, said: "'Smart on Crime: Recommendations for the Next Administration and Congress'reflects the ongoing, collaborative efforts of a coalition of more than twenty leading organizations and individuals to provide policymakers with a framework for addressing criminal justice issues. The catalogue includes recommendations drawn from the shared knowledge and experience of a broad coalition of groups devoted to improving our criminal justice system."

The catalogue identifies 43 criminal justice priorities in 15 issue areas, makes recommendations for congressional and executive action, and provides in-depth background information on a broad array of subjects. It also includes lists of issue-based resources and experts.

The catalogue is available online at http://constitutionproject.org/....

The report contains the following chapters:

1.Overcriminalization of Conduct, Overfederalization of Criminal Law, and the Exercise of Enforcement Discretion

2. Federal Law Enforcement Reform - Improve Investigative Techniques, Including Eyewitness Identification, Incentives to Testify, and Interrogation

3. Forensic Science Reform -- Federal Oversight and Standards

4. Federal Grand Jury Reform

5. Federal Sentencing Reform

6. Asset Forfeiture Reform

7. Innocence Issues

8. Prison Reform

9. Pardon Power/Executive Clemency -- Breathe New Life into the Pardon Power

10. Re-entry -- Ensure Successful Reintegration After Incarceration

11. Public Defense Reforms-Make our Communities Safer by Supporting Quality Public Defense System

12. Death Penalty/Habeas Corpus Reform

13. Juvenile Justice Reforms

14. Fixing Medellin: Compliance with International Law and Protecting Consular Access

15. Victim Issues and Restorative Justice

Because the report runs 263 pages(!), I fear it might be too much of a good thing.  But I am looking forward to reading it all the same.

When Judge Posner asks and SCOTUS grants, the USSC responds

I am pleased to not a cool new research report appearing on the US Sentencing Commission's website.  The report is available at this link, and here is how it is described:

In response to a suggestion in a decision by the United States Court of Appeals for the Seventh Circuit, United States v. Chambers, 473 F.3d 724 (7th Cir. 2007), cert. granted, __ U.S. __ , 128 S. Ct. 2046 (2008), the United States Sentencing Commission undertook a data analysis of federal escape cases to inform the legal question of whether the crime of escape qualifies as a "violent felony" for purposes of 18 U.S.C. § 924(e), the Armed Career Criminal Act (the “ACCA”). This report summarizes the legal question at issue and describes the methodology and results of the analysis undertaken by the Commission.

Prior posts on the Chambers ACCA case:

• Another terrific Posnerian flourish calling for data-driven sentencing

• Can we thank Judge Posner for the latest ACCA cert grant?

Taking a break for election reflections

I could keep blogging up a storm today with more thoughts about what last night's election results might mean for sentencing law and policy.  Though some others are already talking about what a new Obama administration might mean for drug crime policy and the death penalty, there are so many other "inside baseball" topics for discussion. 

For example, on the sex offender front, might implementation of the Adam Walsh Act dealing with national sex offender registration change?  On the federal sentencing front, might district judges now be even more willing to depart from the guidelines because they will not fear backlash from the Justice Department and Congress?  Will the agenda and personnel on the US Sentencing Commission change dramatically.  Will the next Attorney General and the next Solicitor General be fans of broad interpretations of the Sixth Amendment and the Eighth Amendment (not to mention the Second Amendment)?

I could go on and on and on, but I am eager to provide a relatively clean space for readers to react and reflect on what happened last night and the future of sentencing law and policy.  Go for it in the comments, dear readers (while I enjoy an needed afternoon outside on a spectacular fall day).

Interesting Seventh Circuit ruling on experts at sentencing

Though today is surely a day for post-election political buzz, the law beat goes on.  And Judge Posner continues his tendency to produce buzz-worthy sentencing opinions for the Seventh Circuit with an opinion today in US v. Anderson, No. 07-3654 (7th Cir. Nov. 6, 2008) (available here). Here is the start and the key paragraph of a short opinion that is long on interesting passages:

The defendant pleaded guilty to committing a bank robbery in 2007. Before sentencing, he moved under 18 U.S.C. § 3006A for the appointment of a mental health expert to evaluate him for diminished mental capacity.  The district judge denied the motion.  The defendant asks us to vacate the sentence and direct the district judge to appoint a mental health expert and upon receiving the report to resentence the defendant....

A judge is not required to appoint a mental health expert without a showing that the appointment would have some (not necessarily a great) likelihood of resulting in a reduced sentence.  18 U.S.C. § 3006A(e); United States v. Fazzini, 871 F.2d 635, 637 (7th Cir. 1989);... compare Ake v. Oklahoma, 470 U.S. 68, 86 (1985).  That showing has not been made.

Updates on drug policy and crime-related state initiatives

This news report from Join Together provides an effective review of all the drug policy state initiatives that were considered by voters yesterday.  Here is how the review begins:

California voters yesterday soundly defeated closely-watched Proposition 5 and another drug-related initiative, while Massachusetts and Michigan passed marijuana-related measures by wide margins.  Voters in Maine, Oregon, and North Dakota also weighed on in statewide ballot issues related to alcohol, tobacco and other drugs.

In other initiative news, this AP reportindicates that voters in San Francisco rejected Proposition K, which would have barred local authorities from investigating, arresting or prosecuting anyone for prostitution.

Also, at C&C, Kent provides this opinionated update on Califorina-specific crime-related initiatives:

With 95% of precincts reporting, it appears that Proposition 9, the crime victims' rights initiative, has passed by a 6% margin.  On the same ballot, the Soros-backed Proposition 5 was rejected by a whopping 20% margin.... Proposition 6 was also defeated by a large margin, probably reflecting a distaste for ballot-box budgeting at a time of fiscal crisis....  Confirming that San Francisco is not entirely devoid of common sense, the hooker proposition lost by 16 points.

South African court declares juve mandatory sentences unconstitutional

A notable ruling yesterday from an intermediate appellate court in South Africa ought to interest not only comparative sentencing scholars, but also anyone interested in debates over whether international law ought to influence Eight Amendment interpretations in the United States.  This news article, headlined "Minimum sentences for child offenders unconstitutional," provides the details:

The Pretoria High Court today handed down a judgment declaring certain aspects of the minimum sentences legislation to be unconstitutional. The law currently provides that young offenders who are 16 or 17 years of age must be sentenced according to the minimum sentences law when they are convicted of very serious crimes. These sentences include life imprisonment or very long sentences such as 20 years in prison. The sentences are a required starting point, and the courts may only depart from them if the offender shows that there are substantial and compelling reasons to do so.

The application to have minimum sentences declared unconstitutional - insofar as they affect children - was brought by the Centre for Child Law at the University of Pretoria. In her judgment, Acting Judge Potterill declared the offending sections to be unconstitutional because they go against an important constitutional rule. The rule is that when it comes to child offenders, imprisonment must be a measure of last resort and for the shortest period of time....

The Minister of Justice had argued in this case that the effect of the minimum sentencing law was not unconstitutional for 16 and 17 year olds, and that whether a court starts with a clean slate or - at the other end of the spectrum - with a minimum sentence was merely academic. The court roundly rejected this view, and said that the law must adhere to the principles in the Constitution.

Ronaldah Ngidi, an attorney at the Centre for Child Law, said the Centre was very pleased with the outcome, but that it was just a first step. "The declarations of constitutional invalidity have been referred to the Constitutional Court, and until such time as that court confirms the orders, the orders are of no effect. In the meanwhile, 16 and 17 year old are being sentenced in terms of the existing legislation. We therefore aim to ensure that the matter proceeds with haste."

"Will elections lead to sentencing reform?"

The title of this post is the title of this FAMM e-gram authored by FAMM President Julie Stewart, which starts this way:

How late were you up watching election returns last night? After a campaign season that seemed to last forever, I am relieved that it is behind us. I am also hopeful that the results of this election can lead to meaningful sentencing reform in Congress and in many states.

Of course, we don’t know exactly what to expect from the incoming Obama administration, but we think the tide in Washington and elsewhere is beginning to turn in our favor. More and more leaders are taking stands in favor of individualized justice and against the ineffective approach of one-size-fits-all sentencing.

FAMM will be contacting the transition team tasked with setting up the new Obama administration in hopes of making sentencing reform a national priority.

I must say that, though I am not very optimistic about sentencing reform becoming a national priority at the very start of the new Obama administration, I am very hopeful that various election day outcomes (such as this one) suggest we could be on verge of a new changed era concerning federal sentencing law and policy.

Has a mega-jury in Alaska essentially rejected the DC jury's conviction of Senator Stevens?

There are so many sentencing stories worth discussing in the wake of the results of Tuesday's historic election.  But the race and the issues that I am most focused upon this morning may take weeks to resolve, as detailed in this local story:

Alaska Sen. Ted Stevens was leading challenger Mark Begich with most of the election returns in hand Tuesday night, despite being found guilty of seven felonies and polls showing him in deep trouble. With more than 80 percent of the precincts reporting, Stevens held a 2-percentage point advantage over Democrat Begich. About 4,000 votes separated the candidates. The razor-thin margin means the Senate race might not be decided for two weeks.

Still to be counted are roughly 40,000 absentee ballots, with more expected to arrive in the mail, as well as 9,000 uncounted early votes and thousands of questioned ballots. The state Elections Division has up to 15 days after the election to tally all the remaining ballots before finalizing the count.

If the lead holds, Stevens will shock the nation and be the first person ever re-elected to the U.S. Senate after being found guilty on criminal charges. Polls had shown the Republican down by at least 8 percentage points on the day before the election. But Stevens was defying the pollsters with Tuesday's returns.

In this post following his conviction, I asked whether persons interested in federal sentencing reforms should 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 arguments that federal judges need to have broad discretion to consider mitigating factors at sentencing.  The more I have through about the issue, the more strongly I am hoping that Senator Stevens prevails in this tight election AND that he refuses to resign and resists all efforts to expel him from the Senate.

I have become a huge fan of Senator Stevens and a close watcher of Alaska's voting realities because his re-election will raise a host of fascinating legal and political issues relating to criminal appeals, sentencing, clemency and democratic theory.  The title of this post set out just one of the many questions bouncing around my brain this morning: should we view re-election of Senator Stevens as a de facto rejection by the mega-jury of Alaskan citizens of the guilty verdicts return by the DC jury that concluded beyond a reasonable doubt that he was a federal criminal?  Or should we view Alaskans as saying that even if Senator Stevens is a federal criminal, we still want him representing our interests in the US Senate?

Some recent related posts:

• Senator Stevens convicted on all counts
• Some sentencing questions after Senator Stevens conviction
• How should (and will) Senator Stevens' political past and future impact his sentencing?
• Senator Ted Stevens not (yet) disenfranchised

Are we on the verge of a new changed era concerning federal sentencing law and policy?

Yes I hope.  I may be naive in thinking that the historic election results mark a significant turning point in the politics of crime and punishment, but I cannot help but be more hopeful as we begin a new era of leadership in the executive branch of the federal government.

As evidenced by a post titled Jan 21, 2009: crimlaw issues at Capital Defense Weekly, I am not alone at looking forward to a new criminal justice political universe.  But, as a famous lawyer from Harvard once noted, "The life of the law has not been logic; it has been experience."  Only time will tell what we can expect in this coming new era.

Some related posts:

• What might a new administration mean for the federal death penalty?
• "Real commander needed for the war on drugs"
• A dollars and sense criticism of Senator Obama's crime-fighting plans
• Senator Biden, crime and punishment
• FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"

Rep. Tom Feeney loses House seat

I am watching election results, and the first sentencing-notable result just came across the wire: Florida Representative Tom Feeney, famous for his sponsorship of the Feeney Amendment designed to limit judicial departure authority under the guidelines (in the pre-Booker days), is projected to lose his seat in the US House of Representatives.  I suspect I will be speaking for a number of federal judges with one word: "Karma."

Some recommended sentencing reading after we get federal election results

While we all await election results, I though it might be fun to recommend some timely and timeless older sentencing literature from SSRN, all of which that seems worth reading (or re-reading) during the upcoming transition period.  I doubt anyone dealing with issues other than federal sentencing law and policy will have time or energy to read (or re-read) everything on this list, but I like the idea of providing through the help of SSRN a post-election policy primer from academics.

So here, in alphabetical order, is a baker's dozen of recommended titles and links (click through to see authors and dates):

• Delegating Punitive Power: The Political Economy of Sentencing Commission and Guideline Formation

• Desert, Democracy, and Sentencing Reform

• The Future of Federal Sentencing Policy: Learning Lessons from Republican Judicial Appointees in the Guidelines Era

• Making Sentencing Sensible

• A Map of Sentencing and A Compass for Judges: Sentencing Information Systems, Transparency and the Next Generation of Reform

• Mr. Madison Meets a Time Machine: The Political Science of Federal Sentencing Reform

• The More Things Change: A Psychological Case Against Allowing the Federal Sentencing Guidelines to Stay the Same in Light of Gall, Kimbrough, and New Understandings of Reasonableness Review

• Murder, Meth, Mammon, and Moral Values: The Political Landscape of American Sentencing Reform

• The Next Era of Sentencing Reform

• Pardon Us: Systematic Presidential Pardons

• Policing Politics at Sentencing

• Sentencing Commissions as Provocateurs of Prosecutor Self-Regulation

• A Sentencing System for the 21st Century?

Needless to say, I could add dozens more articles to this list, but I think I have provides a useful running start on useful reading for those who will be working in the forthcoming new federal administration and their allies.  Of course, additions to the list (or thoughts on this intentionally eclectic list) are welcome via the comments.

VOTE, VOTe, VOte, Vote, vote, votE, voTE, vOTE, VOTE...

or you have much less moral authority for complaining about the nature and direction of American laws and society!!

In my sleepy little Ohio hamlet, I had to wait in line for nearly an hour to cast my vote on a touch-screen machine.  (This wait was about 10 times longer than it has ever taken me to vote, and I am actually proud and excited that I finally got to stand in a line to vote.)

I have done lots and lots and lots of sentencing-related election blogging, but typepad's lousy new archive technology means that only the most recent posts can be found in the archive Campaign 2008 and sentencing issues.  In any event, here are links to some major posts I have done on issues that remain lively this election day:

• Noticing the new ex-felon voting block
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• A good question about prison nation ... dodged
• Boston Globe noticing crime dogs not barking in 2008 campaign
• Sentencing and drug policy reform initiatives to watch on Election Day
• Dueling Oregon initiatives on drug sentencing reform
• California's confusing efforts to do criminal justice by initiative
• FAMM suggests sentencing questions for the candidates
• New FAMM report and poll data on reforming mandatory minimums
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• "Real commander needed for the war on drugs"
• A dollars and sense criticism of Senator Obama's crime-fighting plans
• Politics and the war on drugs
• Important (though incomplete) op-ed on mass incarceration and mercy
• FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"

Any speculations on what this Election Day could mean for the death penalty?

There are a number of state initiatives concerning sentencing and drug policy reforms that might provide a sense of some voters' current views on drug crime and punishment.  But I cannot recall a single election story, either at the federal or state level, in which the death penalty has been a consequential issue.  (This marks a significant contrast to 2006, when a death penalty ballot issue in Wisconsin and a heated race for Governor in Virginia partially revealed the political salience of, and current attitudes on, the modern death penalty.)  But even though the capital punishment has been a very quiet issue this election cycle, election results at both the national and state level will surely impact the future of the death penalty in the United States. 

At the national level, if Senator Obama wins the presidency and the Democrats make significant gains in the House and Senate, I would expect certain members of Congress (e.g., Senators Feingold and Leahy) to push for some anti-death-penalty legislation in 2009.  In addition, I suspect an Obama administration is likely to appoint federal judges more inclined to rigorously question state capital convictions (although a heck of a lot of federal judges already do that).  I do not expect that we will see the abolition of capital punishment anytime soon, but the expected national political outcomes should further contribute to the death penalty's slow death.

At the state level, the future of the death penalty may be influenced by economics even more than by politics.  During tough times, many states may be unwilling and perhaps even unable to spend a lot of resources pursuing capital convictions and death sentences.  Even when done "on the cheap" with inadequate funding of defense representation and court systems, operating and defending an active and robust system of capital punishment is a very costly enterprise for state official.  Outside of Texas and perhaps one or two other states, I doubt many state officials will be eager to pay regularly the high price of capital cases.  And, of course, the broader political environment will shape these funding priorities: a citizenry clamoring for more public works projects (and not clamoring for more executions) makes it much easier for politicians to direct monies toward different kinds of "capital" expenditures.

Some related posts:

• What might a new administration mean for the federal death penalty?
• Boston Globe noticing crime dogs not barking in 2008 campaign
• Rudy Giuliani doing robocalls accusing Senator Obama of being soft on crime
• More evidence that the death penalty is dying a slow death on the front lines
• FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"

Insider trading leads to former UBS executive being inside prison for 78 months

As detailed in this Reuters story, a former UBS executive is going to have to deal with a whole different kind of insider trading for more than six years in federal prison:

A U.S. judge sentenced a former UBS AG executive to 6-1/2 years in prison on Monday for his role in what prosecutors called the most pervasive insider trading ring since the 1980s. Mitchel Guttenberg, a former institutional client manager in UBS' equity research department, admitted in a guilty plea in February to selling nonpublic information about the bank's stock recommendations.

In handing down the sentence, which includes three years of supervision after his release, Judge Deborah Batts of U.S. District Court in Manhattan said, "from the moment he joined the (UBS) investment review committee he planned to give that information to others to use illegally."

Batts did not fine Guttenberg, who expressed his remorse to his family, the court and his former employer. His lawyer Sean O'Shea described Guttenberg as "a broken man" whose wife had left him, and he was living in his sister's apartment.

Guttenberg was among 13 people, including former employees of Wall Street firms such as Bank of America Corp, Morgan Stanley and Bear Stearns Co Inc, who were criminally charged last year in an insider trading ring....

Guttenberg had pleaded guilty to two counts of conspiracy and four counts of securities fraud. He had faced 78 months to 97 months in prison under sentencing guidelines.

Ah... remember the '80s?  Perhaps the decade is making a comeback...

Notable rulings on loss and other sentencing issues in AIG/Gen Re case

Thanks to a helpful reporter, I now have a copy of a notable sentencing ruling in a notable white-collar case out of Connecticut.  This AP story provides the background:

A federal judge has ruled that shareholders of American International Group Inc. lost more than $500 million as a result of a scheme to manipulate the financial statements of the world's largest insurance company.  The ruling Friday by Judge Christopher Droney means five former insurance executives convicted of the scheme could face up to life in prison under advisory sentencing guidelines.

Four former executives of General Re Corp. and a former executive of AIG were convicted in February of conspiracy, securities fraud, mail fraud and making false statements to the Securities and Exchange Commission. Prosecutors filed court papers citing a study by its expert, concluding the fraud-related losses to AIG shareholders totaled $1.2 billion to $1.4 billion.  They cited another methodology by the expert that put the losses at $544 million to $597 million, but said either method is reasonable.

Droney rejected the higher estimate, but said the lower range was reasonable.  That finding and a determination that the fraud affected more than 250 victims will increase the advisory guideline sentence range. The guideline range and a sentencing date have not been set yet.

The defendants challenged the estimate, saying there was no loss to investors....

A report by the probation department recommended sentences of 14 years to more than 17 years for each defendant.

The 21-page ruling in US v. Ferguson et al., No. 3:06CR137 (CFD) (D. Conn. Oct. 31, 2008), can be downloaded below:

Download Gen_Re_ruling.pdf

Supreme Court takes up "right to DNA evidence" case

Though not dealing with a sentencing issue, the Supreme Court granted review today in a case that could have all sorts of ripples through prisoner rights' litigation. Here are the basics of the cert. grant from this SCOTUSblog post:

The Supreme Court agreed on Monday to decide whether a state prison inmate may seek access to DNA evidence for use in pursuing a claim of innocence, by filing a civil rights claim after his trial is over....

In the new DNA evidence case, District Attorney’s Office v. Osborne (08-6), an implied question is whether an inmate has a right under the Fourteenth Amendment, after conviction, to seek that type of evidence when the right is based upon the Supreme Court’s 1963 ruling in Brady v. Maryland, requiring prosecutors to turn over evidence that would help the accused’s defense.

The Ninth Circuit Court relied upon Brady in ruling that an Alaska inmate may sue under the 19th Century civil rights law, so-called Section 1983, to discover evidence in the government’s possession in advance of filing a free-standing claim of innocence that would rely, at least in part, upon that evidence.  The case involves William G. Osborne of Anchorage, who was convicted of kidnapping, first-degree sexual assault and first-degree assault, and sentenced to 25 years in prison with five years suspended.  At Osborne’s trial, his defense lawyer made a strategic decision not to seek additional DNA testing of biological evidence found near the scene of the assault.  After his conviction, he began pursuing a post-conviction plea for access to that evidence.  If the results turned out to be favorable, he planned to file a claim of innocence in federal court.

The appeal by prosecutors contends that the Brady decision created a right of access to evidence only at the trial stage, not in a post-conviction proceeding, and contended that there is no right to pursue a free-standing claim of innocence following a trial that was free of errors.

Another appellate issue for Senator Stevens?

The latest legal news, as detailed in this CNN report, surrounding Senator Ted Stevens' trial and conviction is both comical and puzzling.  Here are the basics:

A juror who vanished during Alaska Sen. Ted Stevens' corruption trial told the judge Monday she lied about her father dying and flew to California for a horse race.

Marian Hinnant was identified as juror No. 4 during the trial. She disappeared while the jury was trying to decide whether Stevens was guilty on seven felony counts.

U.S. District Judge Emmet Sullivan delayed deliberations because Hinnant told officials her father had died and she had to fly to California. Sullivan replaced her a few days later when she wouldn't return telephone calls. The jury convicted Stevens.

Hinnant admitted Monday that her father hadn't died and she was at the Breeders' Cup in Arcadia, California.

Though Senator Stevens clearly has no shortage of issues for raising in any appeal of his convictions, I cannot help but wonder if this quirky juror might present another opportunity for his defense team to develop arguments that might help prevent Senator Stevens from ever serving any time for his (alleged?) crimes.

More evidence that the death penalty is dying a slow death on the front lines

One datum showing the slow death of the modern American death penalty is the very low number of executions nationwide. (There has not been in more than a few executions in 2008 in any state other than Texas.)  But an even clearer indication that the death penalty is dying a slow death comes from data showing the reduction of death penalty indictments brought by prosecutors and death sentences imposed by juries.  These realities are reflected in this local article from my hometown paper, which is headlined "Death-penalty cases in Franklin County becoming rarer." Here is some data from the article:

Of 106 death-penalty indictments in Franklin County since 2000, only three have resulted in a death sentence. No defendant has been sent to Death Row from the county since 2003....

Death-penalty jurors in Franklin County have been far more inclined to give sentences of life in prison than death. Of 52 death-penalty cases heard by juries since 2000, 20 resulted in life in prison without parole for the defendants, three in a death sentence and the rest in other sentences.

The new USSC crack guidelines ... one year later

Maryland's legal newspaper today has this effective article, headlined "Crack cocaine sentences, one year later."  The piece reminds us that the US Sentencing Commission's new crack guidelines have now been in place for a full year, and it also provides a terrific look at how the retroactive application of these new guidelines has played out in one jurisdiction.

Some related posts:

• Effective review of implementation of crack retroactivity
• Latest USSC data on crack retroactivity
• Catching up with beneficiaries of crack retroactivity
• New crack guidelines means Willie Mays Aikens gets to go home
• FSR issue focused on crack retroactivity now on-line

Creating a (merit-based?) circuit court short list for the Prez candidates

In the closing days of the Presidential campaign lots of attention has been given to judicial appointments, including possible appointments to the circuit courts as well as to the Supreme Court.  (Recent examples come from Politico and the National Review and the National Law Journal.)  Though many have speculated about Supreme Court nominee short lists, I have not seen much buzz on exactly who could be on short lists for nominations to the federal circuit courts.

Of course, the results on Election Day and other national and local political forces will have a profound impact on who gets considered and nominated for openings on the US Courts of Appeals.  And, if the Senate has nearly 60 Democrats, a President McCain would have to make bipartisan nominations, while a President Obama would not have to (but still might) worry about Republican opposition to his choices.  But, even before this week's election results, perhaps we should start assembling a list of potential talent whom, based on substantive abilities, should be seriously considered for an appointment to the federal circuit courts in a new administration.

As a sentencing nut, my own short/wish list of potential circuit court nominees is comprised mostly of federal district judges and state court judges who have written thoughtful sentencing and criminal justice opinions.  Moreover, I genuinely hope that the next president, whomever he may be, will consider nominating to the circuit courts thoughtful federal district and state judges aligned with both political parties.  Especially in the arena of sentencing law, I believe perspective matters a lot more than politics.  More generally, I have long thought that the work of federal circuit courts benefit from having smart and dedicated judges coming from a lot of diverse legal and social perspectives.

So, dear readers, I hope you will use the comments to help the candidates start putting together a circuit court short list. 

Some related SCOTUS short-list posts (both recent and distant):

• Developing a SCOTUS short list of district court judges
• Insider myopia and the diverse benefits of a short bench
• Does SCOTUS need a trial judge?
• Great insights on SCOTUS and criminal justice
• Brave New Justice and sentencing issues
• Will the next SCOTUS nominee have any criminal law background?

Another notable criminal justice ballot proposition to watch in San Francisco

This New York Times article, headlined "San Francisco’s Prostitutes Support a Proposition," provides a thoughtful review of another ballot initiative dealing with an interesting set of criminal justice issues.  Here are excerpts:

When Proposition K was added to Tuesday’s ballot, many people likely snickered at the possibility that San Francisco might take its place alongside such prostitute-friendly havens as Amsterdam and a few rural counties in nearby Nevada.

But this week, it became readily apparent that city officials are not laughing anymore about the measure, which would effectively decriminalize the world’s oldest profession in San Francisco. At a news conference on Wednesday, Mayor Gavin Newsom and other opponents seemed genuinely worried that Proposition K might pass....

Supporters of the measure say it is a long-overdue correction of a criminal approach toward prostitutes, which neither rehabilitates nor helps them, and often ignores their complaints of abuse....

The language in Proposition K is far-reaching. It would forbid the city police from using any resources to investigate or prosecute people who engage in prostitution. It would also bar financing for a “first offender” program for prostitutes and their clients or for mandatory “re-education programs.”

One of the measure’s broadest prohibitions would prevent the city from applying for federal or state grants that use “racial profiling” in anti-prostitution efforts, an apparent reference to raids seeking illegal immigrants....

Supporters of the measure accuse the city of profiting from prostitution through fines. They also imply that laws against prostitution are inherently racist because minorities are disproportionately arrested. Proposition K, they say, will increase safety for women, save taxpayer money, and cut down on the number of murders of prostitutes at the hands of serial killers....

Anti-Proposition K forces paint grim pictures of girls and women from across the country held against their will in dark and dangerous brothels here, forced into unsafe sexual behavior, and often beaten, intimidated and raped....

The measure seems particularly abhorrent to San Francisco’s district attorney, Kamala D. Harris, who has made fighting human trafficking a priority. “I think it’s completely ridiculous, just in case there’s any ambiguity about my position,” Ms. Harris said. “It would put a welcome mat out for pimps and prostitutes to come on into San Francisco.”

Central to Ms. Harris’s objections is the theory that prostitution is a victimless crime. Instead, she said, it exposes prostitutes to drug, gun and sexual crimes, and “compromises the quality of life in a community.” She also dismisses the argument that prostitutes would be more likely to come forward if their business were not illegal.

Some recent related posts:

• Sentencing and drug policy reform initiatives to watch on Election Day
• Dueling Oregon initiatives on drug sentencing reform
• California's confusing efforts to do criminal justice by initiative
• "America's Forgotten War"
• FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"