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December 20, 2008

Notable names for number two at DOJ

Now available at law.com is this article from Legal Times discussing the names making the rounds for the second spot at the Justice Department in the Obama Administration.  Here are snippets from the article:

With congressional pressure mounting, the short list for the Department of Justice's No. 2. position appears to be getting shorter all the time.

President-elect Barack Obama's transition staff has declined to discuss potential Justice nominees, or even reveal who on the transition team is mustering names. But Washington lawyers have been speculating for weeks that Wilmer Cutler Pickering Hale and Dorr's David Ogden, who is heading the Justice Department transition team, is the likely pick for deputy attorney general. One Washington lawyer close to the transition says his nomination is all but assured.

Elena Kagan, dean of Harvard Law School, has also been named as a possibility, though many say the position would be an odd fit. Denied a hearing by Republicans after President Bill Clinton nominated her to the U.S. Court of Appeals for the D.C. Circuit in 1999, Kagan has re-emerged as a potential Supreme Court pick for Obama....

The deputy attorney general, who oversees the day-to-day operation of the department, typically comes to the job with a criminal law background, but [Ogden's law parter Randolf] Moss says Ogden and Holder would complement each other.

"The fact that Eric brings enormous expertise on criminal matters creates a nice balance," Moss says. And he adds that Ogden was associate deputy attorney general under then-Deputy Attorney General Jamie Gorelick, a job that required his involvement in numerous criminal investigations. Gorelick is now Ogden's colleague at Wilmer.

December 20, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (0) | TrackBack

Good reads for sentencing fans in The Champion

Sep08spI just noticed that much the September issue of the NACDL's journal, The Champion magazine, is available at this link.  The issue is focused on white-collar crimes and includes a number of pieces that should be of special interest to sentencing fans.  For example, Evan Jenness has this long and detailed piece dealing with federal sentencing guideline calculation issues titled "Gaining the Upper Hand in Arguing Loss in Securities Fraud Cases."

Though not focused on only white-collar matters, of particular interest for sentencing fans in this issue is this fascinating Q&A interviewwith now-former US Sentencing Commissioner John Steer.  Here is one especially notable tid-bit from the interview on the topic of relevant conduct:

The Champion: Almost 20 years ago, you and Judge Wilkins wrote the article declaring relevant conduct the “cornerstone” of the guidelines. The Apprendi line of cases that led to the merits opinion in Booker, and ultimately to its remedial opinion declaring the guidelines advisory, raised new questions about the fairness of punishing defendants for unconvicted conduct. Do you think that relevant conduct should still be the cornerstone? Would you modify or change the relevant conduct rules? What do you think about using acquitted conduct at sentencing?

Steer: I believe “relevant conduct” is still a cornerstone in the construction of a just and effective sentencing policy.... That said, I think some changes to Section 1B1.3, Factors that Determine the Guidelines Range, are in order. The first change I would make, but not the most important, is to exclude “acquitted conduct” from this guideline, and move it to 5K2.21 (Dismissed and Uncharged Conduct) as a judge-discretionary factor....

The second, and more important, change to relevant conduct I would recommend is to decrease the weight given to unconvicted counts that are part of the same course of conduct or scheme under 1B1.3(a)(2) and (3), relative to conduct included within the count of conviction. That is the aspect of the guideline that I find most difficult to defend. Why should, for example, the drugs associated with an uncharged, or charged and dismissed, count be given the same guideline weight as an equivalent drug quantity in the count(s) of conviction? Why don’t we, instead, give less weight to the unconvicted conduct by, for example, counting all the drugs in the convicted counts but only half the drugs in the unconvicted conduct? I believe that, or some similar approach, would address another major unfairness perception about the guideline and, at the same time, provide an incentive to prosecutors to convict on more counts if they want the underlying conduct to count more.

December 20, 2008 in Federal Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Urging President-elect Obama to elevate district judges to the circuit courts

Emily Bazelon and Judith Resnik have this effective piece at Slate making a pitch for the elevation of district judges to circuit courts.  The essay is titled, "Sitting on Great Judges: Where Obama should look when he makes his first appointments to the bench," and here are snippets: 

Next summer, Barack Obama may get to make a Supreme Court appointment. But before then, he'll give us a preview by filling 13 vacant slots on the federal appeals courts....

Obama should look to sitting district court judges who have shown their dedication to opening up the courts as an avenue for redress. If they go up to the appeals courts, these judges will have more impact more quickly than the lawyers or academics lining up for appointments. District court judges know the ins and outs of their particular circuit's legal rules, and they understand how to fashion standards that trial judges can use. They also know the personalities of the circuit judges they'd be serving with, which helps for effectively negotiating on the standard appellate panel of three....

Examples from different parts of the country help to make the point.... Moving toward the middle of the country, another standout judge is Mark Bennett, appointed by Bill Clinton to Iowa's federal trial court....  Our third standout district court judge (who is also a friend and a former Slate blogger) is Nancy Gertner, a Clinton appointee from Massachusetts. She is an expert on the law of sentencing, pioneering the view that judges should interpret, rather than slavishly apply, the federal sentencing guidelines.

Regular readers know that Judge Bennett has also been a sentencing superstar along with Judge Gernter.  Indeed, I think it is a great idea for the next administration to look to making a lot of early circuit appointments from the district bench.  Of course, I would like to see at the top of any elevation list those district judges who have thoughtfully explored in opinions and articles the meaning and impact of Bookerand its progeny — a which includes not just Judges Bennett and Gertner, but also Judges Adelman and Bataillon and Block and Carr and Friedman andGleeson and Gwin and Hayden and Kopf and Lynch and Marbley and Merryday and Polster and Pratt and Presnell and Young and many more.

Some recent related posts:

December 20, 2008 in Who Sentences | Permalink | Comments (0) | TrackBack

"Rewarding Prosecutors for Performance"

The title of this post is the title of this new article appearing on SSRN from Professor Stephanos Bibas (who has another recent piece on regulating prosecutors that is also a must-read).  Here is the abstract of this article:

Prosecutorial discretion is a problem that most scholars attack from the outside.  Most scholars favor external institutional solutions, such as ex ante legislation or ex post judicial and bar review of individual cases of misconduct.  At best these approaches can catch the very worst misconduct.  They lack inside information and sustained oversight and cannot generate and enforce fine-grained rules to guide prosecutorial decisionmaking.  The more promising alternative is to work within prosecutors' offices, to create incentives for good performance.

This symposium essay explores a neglected toolbox that head prosecutors can use to influence line prosecutors: compensation and other rewards.  Rewards can both attract and retain the best candidates and also encourage those who are already prosecutors to perform better.  Though we take lock-step seniority-based salaries for granted, recent management literature has emphasized the need to pay for performance, to attract and retain stars and encourage quality performance and hard work.

First, Part I discusses possible metrics of prosecutorial success, to decide what traits and behavior to reward.  Historically, prosecutors have focused on a couple of statistics such as conviction rates, but these numbers are manipulable and incomplete.  Prosecutors' multiple constituencies and goals require subtler measures.  A better solution is to collect and aggregate feedback from a variety of sources, including peer prosecutors, supervisors, judges, defense counsel, victims, defendants, and the public, as eBay does.  This information, appropriately weighted and discounted, could better encourage prosecutors to serve all their constituencies.

The next step is to devise incentives to encourage success on these metrics.  Part II surveys pay and reward systems designed to attract and retain good prosecutors and to encourage them to succeed.  A first step is to offer variable salaries, raises, promotions, and awards tied to the metrics of success.  More radical solutions could range from hourly rates to performance-based bonuses to contingency fees.  While some of the more radical solutions, such as contingency fees, would be unwise or unworkable, others are worth trying.

December 20, 2008 in Who Sentences | Permalink | Comments (3) | TrackBack

December 19, 2008

Eleventh Circuit grants mandamus in CVRA case

The Eleventh Circuit issued late today an important CVRA ruling with a short opinion in In Re: Janice W. Stewart And Other Borrower-Crime Victims, No. 08-16753-G (11th Cir. Dec. 19, 2008) (available here).  Here is how the opinion starts:

The Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771, provides that victims of a federal crime may appear and be heard during some phases of the prosecution of the person charged with the crime. The CVRA requires the Government to “make [its] best efforts to see” that the court (in which the prosecution is pending) permits the victim to appear and be heard.  If the court refuses to allow the victim to appear, the victim may move the United States Court of Appeals for a writ of mandamus.

Several persons claiming to be victims of the crime charged in United States v. Coon, No. 08-CR-441-T-17MAP (M.D. Fla.), moved the magistrate judge – as he was entertaining, and conditionally accepting, the defendant Phillip Coon’s guilty plea pursuant to an information and a plea agreement – for leave to appear in the case and to be heard.  The magistrate judge refused to recognize the movants as victims, and denied their motion.  The district court subsequently adhered to the magistrate judge’s ruling. The movants (“petitioners”) now petition this court for a writ of mandamus.  We grant the writ.

UPDATE:  Paul Cassell, who helped represent the petitioners in this case, discusses the Eleventh Circuit's ruling in this post at The Volokh Conspiracy.  Commentors over there spotlight some reasonable concerns about broad application of the CVRA in economic crime settings.

December 19, 2008 in Victims' Rights At Sentencing | Permalink | Comments (0) | TrackBack

Louisiana child rapist officially comes off state's death row

Patrick Kennedy is surely the most famous child rapist sentencing to death, since his case went all the way the the Supreme Court and led to the Kennedy ruling that the Eighth Amendment precluded all capital child rape sentencing.  But Louisiana had another child rapist sent to its death row, Richard Davis, and this local news article details the lastest development in his case:

Richard Davis, a 36-year-old who was on death row for raping a 5-year-old girl, now faces life in prison. Caddo District Judge Scott Crichton resentenced the Ohio native Thursday afternoon.

A Caddo jury last year sentenced Davis to die after convicting him of aggravated rape for repeatedly sexually assaulting the child from October 2004 to January 2005.  The U.S. Supreme Court ruled in June a child rapist cannot be executed, forcing Crichton to resentence Davis.

By default, Crichton today sentenced Davis to life in prison at hard labor without the possibility of parole, probation or suspension of sentence....

In 2007, the jury also convicted Davis of one count of indecent behavior with a juvenile for promoting a 16-year-old girl for prostitution in 1996.  Crichton resentenced him Thursday to serve those seven years consecutively. "I want it to be clear that this man should never be released under any circumstances," the judge said....

Crichton discusses the Supreme Court [Kennedy] ruling in an article on his Web site. It states: "Now if an offender with a history of being a violent sex offender kidnaps a 5-year-old child from the bedroom of her parents' home in the middle of the night, rapes her repeatedly, causing severe permanent physical and psychological damage, and then cuts off both of her arms, this offender is ineligible for the death penalty following a full trial, due process and unanimous jury verdict no matter what the state law provides.  Why? Because five justices out of nine on the U.S. Supreme Court believe that it's cruel and unusual punishment."

Judge Crichton's website can be found at this link, where one can find this August 2008 entry titled "Ruminations on Kennedy v. Louisiana: Further Erosion of the Death Penalty?"

December 19, 2008 | Permalink | Comments (1) | TrackBack

Long child porn sentence affirmed by Eleventh Circuit

The Eleveth Circuit has a long opinion today in US v. Horsfall, No. 08-10739 (11th Cir. Dec. 19, 2008) (available here), rejecting various challenges to a long child-porn sentence.  Here is how the decision starts:

Raymond J. Horsfall appeals the district court’s 327-month sentence imposed after pleading guilty to one count of receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2). On appeal, Horsfall argues that: 1) the government breached the plea agreement by recommending an upward departure; 2) the court erred by imposing an upward departure under the Guidelines; and 3) the court violated Horsfall’s Eighth Amendment rights by considering victim impact evidence at sentencing. For the reasons set out below, we affirm.

There is much to be learned from Horsfall including an important lesson about what not to do at your local Starbucks:

[O]n July 21, 2007, a Savannah police officer responded to a report that an individual was viewing child pornography on a laptop computer in a coffee house.  That individual, Horsfall, admitted to the investigating officer that he was viewing child pornography on the computer.  The officer subsequently seized the laptop and turned it over to federal authorities, who later discovered child pornography files on the computer, including the video file specified in Count Two of the indictment.

December 19, 2008 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

A must-read for those doing habeas work or just deep fed courts thinking

A new forthcoming article now appearing here via SSRN is a must-read for any and everyone working on, even even thinking about, habeas proceedings. This new piece is titled "The Future of Teague Retroactivity, or “Redressability,” after Danforth v. Minnesota: Why Lower Courts Should Give Retroactive Effect to New Constitutional Rules of Criminal Procedure in Postconviction Proceedings," and here is the abstract:

Although the Supreme Court's 1989 decision in Teague v. Lane generally prohibits the application of new constitutional rules of criminal procedure in federal habeas review of state-court judgments, the Court's 2008 decision in Danforth v. Minnesota frees state courts from Teague's strictures.  Danforth explicitly permits state courts to fashion their own rules governing the retroactive application of new federal constitutional rules in postconviction proceedings, and leaves open the question whether lower federal courts are bound by Teague in postconviction review of federal criminal convictions.

In this Article, I examine the doctrinal underpinnings of the Court's retroactivity jurisprudence, and propose that state courts and the lower federal courts abandon the Supreme Court's experiment with nonretroactivity.  Affording retroactive application to new constitutional rules in state and federal postconviction proceedings promotes fairness to litigants and uniformity in the development of federal constitutional criminal doctrine. Perhaps most importantly, a rule of retroactivity permits the lower state and federal courts to regain a role in the development of constitutional doctrine that had previously been constricted, first by Teague and then by the Antiterrorism and Effective Death Penalty Act.

My examination of the Danforth opinion leads me to believe that the foundations upon which Teague was built are now crumbling.  Danforth marks a shift in the Court's conception of the function of habeas corpus which portends well for the reinvigoration of a constitutional dialogue among the lower courts and an increased role in constitutional development for the lower federal courts.

December 19, 2008 in Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Seeking SCOTUS speculations during the Justices holiday break

Last year around this time, wehad the Supreme Court's then-fresh opinion in Gall and Kimbrough to keep us warm through long winter nights.  This year, though we have lots of new USSC data to unpack, the Justices failed to beat the holiday rush in resolving any of its sentencing sleeper cases from the Fall. 

Intriguingly, the Court managed to issue only two signed opinions before taking its holiday break this year.  As detailed here, the Justices did get out four per curiam opinion and the two cases with signed opinions involved a divided court.  But with only Chief Justice Roberts and Justice Stevens having authored signed opinions for the Court, it is difficult to even effectively speculate who might be writing the opinions in Oregon v. Ice, which deals with Blakely's applicability to consecutive sentencing determinations, and United States v. Hayes, which deal with the reach of the federal prohibition on certain misdemeanants possessing firearms and implicates Second Amendment issues.

Because Justice Scalia's opinions are always good for blogging business and because he was his usual active questioner in the oral arguments in Ice and Hayes, I am hoping he is spending the holiday break adding a final few constitutional flourishes to opinions for the Court in these cases.  Though I know Santa won't have the opinions in hand when making deliveries next week, I do think we could get both opinions in early January.  And, as of this writing, I think they may be worth the wait for sentencing fans.

Given that public SCOTUS activity is on ice until January 12, I would be grateful for readers keep me warm with speculations about Ice or about any other High Court cases they are following this Term.

December 19, 2008 in Who Sentences | Permalink | Comments (1) | TrackBack

Fourth Circuit affirms upward departure in notable obscenity case

The Fourth Circuit's work in US v. Whorley, No. 06-4288 (4th Cir. Dec. 18, 2008) (available here) is already getting attention from other bloggers because of the panel's split of the reach of federal obscenity law.  But the case should draw a little attention from sentencing fans because the majority opinion also includes a discussion of reasonableness review of an upward departure.  Here is the first paragraph of Whorley, which highlights why the case might draw attention for non-sentencing reasons:

Dwight Whorley was convicted of (1) knowingly receiving on a computer 20 obscene Japanese anime cartoons depicting minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 1462; (2) knowingly receiving, as a person previously convicted of receiving depictions of minors engaging in sexually explicit conduct, the same 20 anime cartoons, in violation of 18 U.S.C. § 1466A(a)(1); (3) knowingly receiving, as a person previously convicted of receiving depictions of minors engaging in sexually explicit conduct, 14 digital photographs depicting minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2); and (4) knowingly sending or receiving 20 obscene e-mails, in violation of 18 U.S.C. § 1462. Imposing a sentence that departed upward from the recommended Sentencing Guidelines range, the district court sentenced Whorley to 240 months’ imprisonment.

December 19, 2008 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

December 18, 2008

"Madoff Mercy: How long should the Ponzi schemer go to prison for?"

The title of this post is the title of this Slate commentary by Harlan Protass, who uses all the ugly Wall Street news to spotlight the the over-emphasis of loss in how the federal sentencing guidelines deal with white-collar fraud.  Here are lengthy excerpts from an effective piece:

[W]hen it comes to large-scale frauds involving public companies and their millions of shares, the guidelines' grounding in mathematics sometimes results in sentences that are, quite literally, off the chart.  They fall within the realm of prison terms usually reserved for mafia bosses, major international drug lords, cop killers, child molesters, and terrorists.

Remember Jeffrey Skilling — losses to Enron shareholders of more than $1 billion largely determined his 24-year-plus sentence.  Or consider WorldCom's former chief, Bernie Ebbers.  He got 25 years based principally on the $2.2 billion loss suffered by his company's shareholders. Sure, these men destroyed enormous shareholder value, just as the targets of today's criminal cases allegedly did.  But it's hard to contend that they deserved prison terms longer than the average sentence for murder (22 years), kidnapping (14), and sexual abuse (eight).

Tying jail terms to the amount of money lost also puts way too much power in the hands of prosecutors. It gives them the muscle to threaten long prison stretches in order to coerce guilty pleas. If it weren't for the risk of lengthy sentences if convicted, many defendants might opt to test the government's evidence before a jury.

Linking jail time to dollars lost also severs many of the ties to factors courts are supposed to consider when determining and imposing sentences.  For example, a relatively short prison term — years, not decades — can be enough to deter prospective financial fraudsters. And economic offenders pose little future threat because they're generally stripped of powers that would permit continued criminal conduct.  Also, aren't there more fitting and useful ways to punish the titan fraudsters of Wall Street?  Strip them of their wealth.  Make them work to pay back those they ripped off or to serve the public good.

The Supreme Court's landmark decision in United States v. Bookerallowed judges to use good, old-fashioned common sense to reduce radically long sentences produced by the guidelines. And some judges have done that.  In 2006, Richard Adelson, former president of Impath Inc., a laboratory services company that collapsed as a result of an accounting fraud, was convicted of securities fraud and filing false documents. The guidelines recommended a life sentence. Instead, a judge sentenced Adelson to 42 months in prison. (A federal appeals court in New York approved that call last week.)  Lennox Parris and Lester Parris, co-directors of a New York-based water company, were convicted of securities fraud in connection with a scheme to boost the value of their company's stock with a series of press releases misrepresenting its success in scoring distribution contracts.  They were each sentenced earlier this year to five years imprisonment, even though they faced 30 years to life under the guidelines. And this week, the former CEO of reinsurer General Re, Ronald Ferguson, who faced life imprisonment for his role in a rotten deal to artificially inflate the balance sheet of insurance giant AIG, was sentenced to two years in jail.

But honestly, that kind of largesse is rare.  Most judges still stick close to the guidelines and the huge sentence recommendations they make for causing huge financial loss.  Given that hundreds of billions, if not trillions, were lost on Wall Street this year, we could be talking about a parade of defendants swapping cuff links for handcuffs and facing not years behind bars but decades.  That's more punishment than even Bernard Madoff deserves.

Regular readers know that I agree with a lot of what Harlan has to say, and his point about the power federal prosecutors wield in this context is especially important and often overlooked.  That all said, Madoff's alleged crimes seem, at least from the early press reports, to be of a different character and magnitude than some of the other cases noted by Harlan. 

For me the core problem with an obsessive concern with loss amounts is that, in many settings, the quantifiable amount of "loss" under the guidelines often has little or no connection to offenders' culpable mental states and subjective culpability.  There are suggestions, however, that Bernie Madoff was in fact very culpable (perhaps for a very long time), and that the high loss levels in his case may have a direct relationship to his subjective culpability.  Like all good law professors, I am troubled by severe punishments based on strict liability sentencing factor, but it is not clear this is a major concern in the Madoff case.

Moreover, Harlan's effective commentary still effectively ducks in the hardest question: exactly what punishment levels should be the norm in large-scale frauds involving public companies.  He suggests that years and not decades may be the right ballpark, but there is a huge gulf between say three and thirty years imprisonment.  These cases are so hard — and the current guidelines are so inadequate — because we do not have a ready metric or shared moral sense of how best to assess these kinds of crimes.  But, as suggested above, I do think subjective culpability should be more important and that "loss" concepts are too important in the current federal sentencing scheme.

Some recent related posts:

UPDATE:  This postat ChattahBox provides something of a counter to Harlan's commentary.  It is titled "Bernard Madoff Deserves The Life Sentence He’s Likely To Get."

December 18, 2008 in White-collar sentencing | Permalink | Comments (7) | TrackBack

Judge Gertner applies the safety valve while imposing a within-guideline sentence

It is been a while since I have had a chance to talk up a new sentencing opinion from federal District Judge Nancy Gertner.  Joyfully, she provides sentencing fans with an early holiday present today through a lengthy opinion in US v. Matos, No. 05cr30012-NG (D. Mass. Dec. 18, 2008) (available for download below).  There are lots of parts of Matos worth quoting, but I thought readers would find intriguing the Judge Gertner's explanation for why she here decided to impose a within-guideline sentence (after finding safety-valve applicability to avoid a higher mandatory minimum sentence): 

To be sure, in the Court’s judgment, the Guidelines sentences for non-violent drug offenders are much, much too high as a general matter to effect the purposes of punishment.  Moreover, this Court does not stand alone in that analysis. But before the Court sentences a defendant to a particular period of time, it needs a rationale, beyond the general policy judgment of an individual judge.

For example, in the case at bar, there was no information about why a sentence of 24 months rather than 36 or 57 months would accomplish deterrence, appropriately incapacitate this individual, or prevent recidivism.  There was no information about how other judges sentenced similarly situated individuals. There was no information about the likely conditions of Matos’ confinement, and little information about the impact of Matos’ incarceration on his family. While Matos is surely close to his family, the record provided no basis for adjusting his sentence on this ground. In short, there were no factors — individual to Matos or the crime he committed — that suggested 57 months imprisonment was an inappropriate sentence.

Rather, where the only reason why the Court would reject a Guidelines sentence is because of its disagreement with the Guidelines' policy choices, that is not sufficient in and of itself. Accordingly, on the record before the Court, it finds that the sentence fits the offense and offender.

Download MatosSentencing

December 18, 2008 | Permalink | Comments (1) | TrackBack

Tenth Circuit affirms sex offender conditions in sentencing for bank thefft

The Tenth Circuit's ruling today in US v. Hahn, No. 07-5117 (10th Cir. Dec. 18, 2008) (available here), might be filed under the heading "bad defendants make bad law."  Hahn involves a defendant who pilfered $20 bills as an ATM techncian and then pleaded guilty to violating 18 U.S.C. § 656, the misapplication of financial institution funds. He "was sentenced to eighteen months incarceration followed by a five-year term of supervised release ... [which included] standard conditions of supervised release as well as several additional ones including special sex offender conditions."  

To understand why these special sex offender conditions were imposed and affirmed, you'll have to read the decision in Hahn, which actually covers a lot of notable supervised release law.  (Alternatively, folks can just make crude remarks about sex and $20 bills in the comments.)

December 18, 2008 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

A clemency recipient makes case for the good clemencies

Sadly, the specter of ugly pardons past (Marc Rich) and ugly pardons future (possible preemptive torture pardons) is giving the historic Presidential clemency power a bad name these days.  Fortunately, some of the tales of good clemencies present are getting told, as in this USA Today op-ed by Kemba Smith in titled "The wisdom of pardons: For me, clemency was the only path to justice."  Here is how it begins:

The nomination of Eric Holder as the next U.S. attorney general has renewed concerns about the end-of-term clemencies granted by President Clinton.  High-profile names such as Marc Rich grabbed headlines at the time, but many other people with no political influence benefited from the president's mercy.

I am one of those people. If I had not received a commutation, my first-time conviction for a non-violent offense would have kept me in prison until 2016 (with good behavior) because of the harsh mandatory sentencing laws for crack cocaine.  My 1994 prison sentence grew out of my boyfriend's trafficking in crack.  After he was murdered, the government charged me with conspiracy to distribute the crack that his drug ring distributed.  During my court hearings, prosecutors acknowledged that I never sold, handled or used any of the drugs involved in the conspiracy.

Today, I could be in federal prison still serving my 24-year sentence.  Instead, I've been raising my now 13-year-old son, graduated from college in 2002 and completed a year of law school.  I own a home and speak to youth about the importance of their choices and the consequences that can affect their lives forever.  My own experience led me to create a non-profit foundation that focuses on providing children of incarcerated parents with a mentor, and collaborates with other organizations on justice-reform initiatives.

My story of redemption does not need to be an anomaly.  Thousands of petitions for executive clemency are pending before President Bush with a month left in his term.  The majority of those are unknown to him or the public. Many are people of color caught up in the war on drugs and serving long mandatory minimum sentences, often for low-level offenses.  The president should expedite such applications and grant them clemency.

Some recent related posts:

December 18, 2008 in Clemency and Pardons | Permalink | Comments (0) | TrackBack

"Lethal Injection and the Problem of Constitutional Remedies"

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

Many states' lethal injection procedures contain serious flaws that create a significant risk of excruciating pain, but, more often that not, courts uphold those procedures against Eighth Amendment challenges.  This Article argues that remedial concerns significantly shape — and misdirect — courts' approaches to lethal injection.  Many courts, including the U.S. Supreme Court in Baze v. Rees, fear that any lethal injection remedy would unduly burden the state and interfere with executions.  Accordingly, they sharply limit the underlying Eighth Amendment right.

This Article contends that these remedial anxieties are misplaced here.  Lethal injection procedures are not only dangerous but also the product of troubling political process failures.  Accordingly, far from deserving judicial deference, states' systemic lack of attention, transparency, and democratic deliberation require court oversight.  Moreover, contrary to common wisdom, lethal injection actions seek only modest relief that would make executions much safer without interfering excessively in state affairs.

In allowing mistaken remedial concerns to dissuade real engagement with the merits in these cases, judges are abdicating their constitutional responsibility to oversee state practices threatening individual rights.  Courts may instinctively look to remedial issues when determining the scope of a constitutional right, but, given that they do so, they should consider those issues more carefully.  As criticisms of public law injunctions have increased, some judges have overlooked their obligation to hold states accountable for unconstitutional procedures, particularly when state officials insulate those procedures from democratic processes.  Until courts adopt a more nuanced approach to constitutional remedies, they will continue to under-enforce some constitutional rights and effectively bless inhumane practices.

Like many scholarly article about the death penalty, this piece in my view makes a lot of good points in the completely wrong setting.  It is exactly right to notice that "remedial concerns significantly shape — and misdirect — courts' approaches" to certain Eighth Amendment claims.  But this problem does not seem significant at all in most capital punishment settings, whereas it is an ever-present problem in non-capital cases involving Eighth Amendment challenges. 

In all the major lethal injection rulings in both federal and state courts, I am repeatedly and consistently impressed with the extent of the "real engagement with the merits" of what always seem to be very weak evidentiary claims based on limited medical evidence and a few anecdotes.  In sharp contrast, a broad array of Eighth Amendment claims brought by non-capital defendants — whether involving extreme sentences or extreme prison conditions — rarely seem to get serious consideration by courts, let alone "real engagement with the merits." 

I know the judgment "inhumane" is in the eye of the beholder, but I continue to struggle to understand why so many folks criticize courts for failing to order states to take extraordinary precautions to minimize every possible risk that a murderer might possibly feel some pain during the execution process.  In my book, it is far more inhumane when courts bless an LWOP sentence for a 13-year-old offender or a six-year prison term for a woman whose covered breasts touched a ward, or a 55-year mandatory prison term for three small sales of pot, or 200 years imprisonment for downloading illegal porrn.

December 18, 2008 in Death Penalty Reforms | Permalink | Comments (5) | TrackBack

Will the Obama Administration embrace and promote the faith-based prison movement?

One of the few positive sentencing and corrections stories these days involves the apparent successes of faith-based prisons.  A helpful reader sent me this news story from Oklahoma, headlined "Faith builds character: Inmates learn new ways to rebuild their lives," on this topic. Here are snippets

Behind the iron bars and razor wire of Oklahoma's largest prison for women, a quiet miracle is taking place. Nearly 200 inmates at Mabel Bassett Correctional Center are living in separate pods from the general population where they are finding hope for themselves and their families through character development and spiritual renewal.

"This is an incredible program," said Ilinda Jackson, director. "It instills character in these women, teaches them how to deal with the behaviors that got them here, and addresses how to change." She said the voluntary program is changing the atmosphere at the prison.

Misconduct is way down among participants. "There's less violence, a higher level of accountability. The women are taking responsibility for their lives," she said.  The Faith and Character Community Program, now in its second year, is divided into two groups, women pursuing a faith-based solution to their problems, and those seeking character development without the faith element.

Millicent Newton-Embry, warden at Mabel Bassett, said the program has changed the environment of the entire prison, not just the faith and character pods, as women in those pods have influenced inmates in the general population.  Misconduct reports are down 18 percent prison-wide since the programs were initiated. "We have less people fighting over things like curling irons," she said. "The staff has more time to do important case management work because they're spending less time mediating conflict.  The inmates are resolving these things themselves.

"Studies have shown that religion, when it's voluntary, can be foremost in changing criminal thinking, and criminal attitudes, for the long term," she said.  Outside volunteers teach the religious elements of the faith pod to avoid any church-state issues.

I have long been disappointed that academics and researchers have not yet paid sufficient attention to the faith-based prison movement.  But the Bush Administration was an avowed supporter of the movement, though I think the administration could and should have done even more to facilitate the movement's growth and development at both the federal and state level.

President-elect Obama has expressed some support for some Bush Administration faith-based programming, but I have not seen any explicit discussion from the Obama team about faith-based prison.  I am hopeful that the new administration will openly embrace and actively promote the faith-based prison movement if and when there is continuing reason to believe that the movement is having a positive impact on both offenders and public safety.

Some related posts on faith-based prison programs:

December 18, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (7) | TrackBack

How might police departments of school districts use $3 million in Fulton County, Georgia?

This new piece from the New York Times, headlined "In Georgia, Push to End Unanimity for Execution," spotlights some of the consequences of a few Georgian jurors' decision to resist imposing a death sentence on courthouse killer Brian Nichols.  The question for this post comes from this notable accounting of some of the costs of the efforts by the state to get Nichols on death row:

The county spent more than $3 million on a 54-count trial featuring 144 witnesses and 1,200 pieces of evidence, and much of that money could have been saved had the prosecution accepted Mr. Nichols’s offer to plead guilty in exchange for a sentence of life without parole. Mr. Howard [the Fulton County district attorney] scored a victory by convicting Mr. Nichols on all counts, but his primary goal was always a death sentence.

Though I know many people are disinclined to look at capital cases in cost/benefit terms, I have to think that Fulton County police departments and school districts would have ultimately put the millions spent seeking to get Nichols on death row to better use than did DA Howard.  Ironically, the requirement of jurors unanimity now saves Fulton County taxpayers and other taxpayers from a lot of additional expenses: millions more surely would have been expended during years of state and federal appellate review had Nichols been sentenced to death.

Especially during these tight budget times,  more and more jurisdictions seem likely to realize that a well-run capital punishment system is a luxury that is rarely worth the government expense if and when other services are being cut.  It will be interesting to see if persons in Georgia come to recognize this inevitable reality after anger over the Nichols' verdict subsides a bit.

Some related posts:

December 18, 2008 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Another example of drunk driving sentencing problems

This local news report from New Mexico, headlined "Study: Repeat DWI Offenders Not Getting Help," reinforces my enduring concern that criminal justice systems often do not effectively respond to the crime of drunk driving.  Here are some details from the piece:

A study shows more people people who are repeatedly arrested for DWI are not getting help. According to a new study from the University of New Mexico Center on Alcoholism, Substance Abuse and Addictions, 52 percent of convicted second or third-time DWI offenders were not getting court-ordered treatment as part of their sentence.

The study -- based on court records -- also states that of all the offenders who were ordered into treatment only 46 percent were actually receiving treatment. "I think our primary concern is that it's not being ordered in the judgment and sentencing as is required by New Mexico law," said Rachel O'Connor, the state's DWI czar.

O'Connor said the study is disappointing and will hopefully be a wake-up call. "The courts, I think, need to look at their policies and practices and see what they can do to change this number," said O'Connor. "These are repeat DWI offenders. I think the governor and legislators have made clear that treatment is part of a recovery process and we want to make sure that they're sentenced to it."

Some related posts on sentencing drunk drivers:

December 18, 2008 in Offense Characteristics | Permalink | Comments (1) | TrackBack

December 17, 2008

California court rejects Second Amendment attack on public firearm possession crime

A helpful reader sent me an e-mail altering me to a new decision dealing with a Heller-based Second Amendment claim in a Califorinia criminal case.  The ruling in People v. Yarbrough, No. A120721 (Cal. App. 1st Dist. Dec. 17, 2008) (available here) , starts this way:

Defendant was convicted following a jury trial of carrying a concealed firearm (Pen. ‎Code, § ‎‎12025, subd. (a)(2)), and carrying a loaded firearm in a public place (Pen. Code, ‎‎§ 12031, subd. ‎‎(a)(1)).‎ ‎ He was sentenced to the middle term of two years in state prison ‎for the conviction of ‎carrying a loaded firearm in a public place, and sentence on the ‎remaining conviction was stayed. ‎‎

In this appeal defendant claims that his conviction of possession of a concealed ‎weapon ‎violates the Second Amendment to the United States Constitution, and the trial ‎court gave ‎erroneous instructions in response to jury questions on the charge of carrying a ‎loaded firearm in ‎a public place.  He also challenges the trial court’s sentencing decision ‎to deny probation and ‎impose a state prison term.  We conclude that the conviction of ‎possession of a concealed ‎weapon does not contravene defendant’s Second Amendment ‎rights as interpreted in the United ‎States Supreme Court’s decision in District of ‎Columbia v. Heller (2008) ___ U.S. ___ [171 ‎L.Ed.2d 637, 128 S.Ct. 2783] (Heller), and ‎the court properly instructed the jury on carrying a ‎loaded firearm in a public place. We ‎also find that no prejudicial sentencing error occurred. We ‎therefore affirm the judgment.

I hope to get a chance to consume this opinion and comment on its particulars soon.

December 17, 2008 in Second Amendment issues | Permalink | Comments (2) | TrackBack

'tis the season ... to litigate creatively?

This local AP story out of Ohio that just has to put everyone in a holiday (litigation?) mood:

A Christmas tree inside a northwest Ohio village police department is decorated with more than just the usual trimmings.  Mug shots of local sex offenders are pasted on some of the ornaments. Paper cutouts of bells and stars feature the faces and names of all eight registered sex offenders in the of North Baltimore community.

Police Chief Alan Baer thought the ornaments would get attention and raise awareness and says a great deal of foot traffic moves in and out of the department. Baer says the display on the artificial tree isn't to make light of the crimes or disparage Christmas traditions.  He says the police chaplain thought it was a good idea.

Surely some litigious group or someone who likes to wage wars over Christmas and seasonal displays will not take kindly to this news.  Are there potential Fourth and Fifth and Eighth Amendment claims to litigate in this case along with the standard First Amendment concerns?  Though  sex-offender mug shot ornaments apparently have the blessing of the police chaplain, but what about higher authorities?  Dare I ask what would (baby) Jesus do?

December 17, 2008 in Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Eighth Circuit affirms reduced sentence on resentencing in light of Gall

Despite a well-deserved reputation for rigorous reasonableness review after Booker, the Eighth Circuit today in US v. Bueno, No. 06-4216 (8th Cir. Dec. 17, 2008) (available here), shows its softer side in the wake of Gall.  The full opinion in Bueno merits a close read, especially for those who consider using family circumstances as a basis for a below-guideline sentence.  Here are some extended passages from the panel's opinion that summarize the case and the Bueno holding:

After considering the above-described evidence, as well as Bueno’s testimony at the resentencing hearing, the district court found that Mrs. Bueno was in fact suffering from life-threatening diseases and maladies and that Bueno was the only person who could provide the continual care that she required. Accordingly, the district court imposed upon Bueno a sentence of five years probation, the conditions of which include house arrest with electronic monitoring, if that additional condition was determined by the United States Probation Office to be required, with Bueno being given the freedom to leave the home to go to work and to provide the necessary care to his wife.

The government objected to the sentence, arguing that Mrs. Bueno’s medical condition had been addressed, although in abbreviated form, in our decision in the first appeal and that the information regarding Mrs. Bueno’s medical condition had been presented in abbreviated form at Bueno’s initial sentencing. The government noted the seriousness of the offense of which Bueno had been convicted, pointing out that 71 kilograms of cocaine had been found in the hidden compartment of the vehicle that Bueno was driving at the time he was apprehended. It pointed out that in our opinion vacating Bueno’s original sentence, we held that the eighteen-month sentence did not adequately reflect the seriousness of the offense, afford adequate deterrence, or adequately avoid sentencing disparities among similarly situated defendants.  Finally, the government reiterated its position that a sentence within the Guidelines range of 108 to 135 months would be appropriate.

At the outset, one could well ask how, in light of our earlier determination that an eighteen-month sentence constituted an unreasonable departure from the applicable Guidelines range, it could plausibly be contended that a sentence of five years’ probation is not equally an unreasonable sentence. The short answers are the substantially more detailed evidence submitted at resentencing regarding Mrs. Bueno’s physical and emotional condition and the Supreme Court’s December 10, 2007, opinion in Gall v. United States, 128 S. Ct. 586 (2007)....

Although the sentence imposed in this case stretches the allowable downward departure under § 5H1.6 to its very limits, we cannot say that it is unreasonable, and thus it is affirmed.

December 17, 2008 in Offender Characteristics | Permalink | Comments (0) | TrackBack

Notable new stories from the most dysfunctional sentencing state

In the wake of Blogo-gate, there has been lots of talk about what state should be considered most politically corrupt.  That got me to thinking about which state should be considered most dysfunctional when it comes to sentencing.  And these headlines (and the underlying stories) reminded me why a state other than California would have a hard time making the case for most dysfunctional:

These stories highlight just some of the many reasons California is clearly the most dysfunctional sentencing state.  Whether we focus on the death penalty, prison overcrowding, constitutional sentencing jurisprudence or federal habeas review, California has something crazy and problematic going on both politically and practically.  I guess the California-based Criminal Justice Legal Foundation never has to worry about running out of things to do. 

December 17, 2008 in State Sentencing Guidelines | Permalink | Comments (4) | TrackBack

White-collar fraud meets technocorrections for Bernie Madoff

There are already too many notable stories surrounding the Bernie Madoff fraud for me to cover them well, and the MSM is covering a lot of the bases already.  But, thanks to WSJ Law Blog post, I see that we have now got a technocorrections angle worth covering:

[T]he terms for Madoff’s bail have tightened up. He may not have been much of a flight risk before, but he sure isn’t going to be one now: A bail hearing scheduled Wednesday for Madoff was canceled after he agreed to terms requested by the government, including home detention in his Manhattan apartment and a curfew of 7 p.m.  He will also be required to wear a monitored ankle bracelet. Here’s the government’s press release.

Madoff’s wife, Ruth, will surrender her passport and pledged properties she owns in Manhattan, Montauk, and Palm Beach to help secure the $10 million bond.  A federal judge gave Madoff until Wednesday to find a total of four co-signers for his bail package.  After his arrest last week, he was released on a personal recognizance bond secured by his apartment in Manhattan, which is worth about $7 million.  But as of Wednesday, only two people — Ruth Madoff, and Madoff’s brother, Peter — had signed the bond, meaning they are on the hook financially if Madoff flees. Hence, it seems, the need for the ankle bracelet and curfew measures.

I likely won't blog much about the Madoff case unless/until sentencing approaches.  But readers are certainly welcome to use the comments to this post to discuss any aspects of the Madoff matter that is of interest.

December 17, 2008 in White-collar sentencing | Permalink | Comments (0) | TrackBack

"Recidivism as Omission: A Relational Account"

The title of this post is the title of this articleby Professor Youngjae Lee now available via SSRN. This abstract makes clear that this article has to be on every sentencing fan's holiday reading list:

Are repeat offenders more culpable than first-time offenders? In the United States, the most important determinant of punishment for a crime, other than the seriousness of the crime itself, is the offender's criminal history.  Despite the popularity of the view that repeat offenders deserve to be treated more harshly than first-time offenders, there is no satisfactory retributivist account of the "recidivist premium."  This Article advances a retributivist defense of the recidivist premium and proposes that the recidivist premium be thought of as punishment not, as sometimes suggested, for a defiant attitude or a bad character trait, but as punishment for an omission.  The culpable omission that justifies the recidivist premium is, this Article argues, the repeat offender's failure, after his conviction, to arrange his life in a way that ensures a life free of further criminality.

This Article argues that, although how individuals conduct their lives as a general matter is not properly the business of the state, once offenders are convicted of a crime, they enter into a thick relationship with the state and that this relationship gives rise to an obligation for the offenders to rearrange their lives in order to steer clear of criminal wrongdoing.  This theory, "Recidivism as Omission," offers a firm theoretical foundation to justify the recidivist premium because it does not rely on unwarranted inferences from repeat offenders' criminal histories that they are "bad people" or that they are "defiant of authority."  Rather, this account focuses on the significance of conviction and punishment themselves and the ways in which they alter an offender's relationship to the state. In addition, this Article argues that obligations between the state and offenders run in both directions and that we should recognize the ways in which the state may be a responsible actor that should share the blame for recidivists' reoffending.

December 17, 2008 in Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack

Sentencing toughness one-way-ratchet warming up in North Carolina

Despite tough budget times and lots of reason to believe over-punishment is a bigger problem than under-punishment, the social and political forces that drive (very costly) sentencing toughness seem to be heating up in North Carolina.  Here are the details from this local article:

Gov. Mike Easley said today the principal flaw in the state's probation system is it lets the wrong people out of jail. He said his administration has asked for more money and more probation officers to help fix it.

"The current system puts people on probation who shouldn't be on probation," Easley said in an interview with The News & Observer and the Charlotte Observer. "Until those people are put behind bars, this is going to continue."

The News & Observer published a three-part series last week highlighting 580 cases of probationers who killed while out of prison since 2000 and a system that has lost track of thousands of convicted criminals. Easley's comments come after not responding for one month to interview requests from The News & Observer about the state's probation system.

Easley said his administration has asked for additional money for prison cells and probation officers, because a primary problem is that more prisoners need to be kept behind bars. "When you put mean people on the street, they do mean things," he said. "If they need 24/7 supervision, they should be in jail."  He said when the legislature is asked for funding, the money doesn't come through until months later because of the length of the budget process.

I would be especially grateful to hear from folks with on-the-ground knowledge of North Carolina's system to know whether there is good sentencing sense behind the Governor's new tough talk.

December 17, 2008 in Scope of Imprisonment | Permalink | Comments (11) | TrackBack

EJI files seeks cert on claim that juve LWOP is unconstitutional for 13-year-old offender

I just received a helpful e-mail from the folks at Equal Justice Initiative informing me of a recently filed cert petition challenging under the Eighth Amendment a sentence of life without parole given to an offender who was only 13 years old(!) at the time of his crime.  The full petition can be downloaded below, and here is additional information from this EJI link about this stunning case:

Joe Sullivan is one of only two 13-year-olds in the United States to be sentenced to die in prison for an offense in which no one was killed. Both of these sentences were imposed in Florida, making Florida the only state in the country to have sentenced a 13-year-old to die in prison for a non-homicide.

A severely mentally disabled boy, Joe was blamed by an older boy for a sexual battery that was allegedly committed when they broke into a home together.  The older boy received a short sentence in juvenile detention, but Joe was tried as an adult, convicted of sexual battery, and sentenced to life imprisonment without the possibility of parole.

Only eight people in the country are sentenced to die in prison for any offense committed at age 13.

The lawyer who represented Joe in his one-day trial has since been suspended from the practice of law, and the biological evidence that could have exonerated Joe was destroyed in 1993.  The lawyer appointed to represent Joe on appeal informed the court that there were no issues in his case worth appealing. Joe was unable to challenge his conviction and sentence earlier because he could not afford legal assistance.

Joe has spent 19 years in a Florida prison, where he has been assaulted and suffered deteriorating health. He is now confined to a wheelchair. 

When I learn about cases like this, I have a hard time believing that a country founded on the principles of liberty has become so willing to be so repressive through our criminal justice systems.  Regular readers will not be surprised to hear that I hope the US Supreme Court will take up this case.  And I am discouraged that this kind of case even exists and that officials in other branches of our government cannot bring themselves to address these kinds of sad cases and instead only will react if and when courts order them to be more just and sensible in their sentencing policies. 

Download Sullivan cert petition from EJI

December 17, 2008 in Examples of "over-punishment", Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

An effective call for President Bush to be a truly "compassionate conservate" with his clemency power

Over at Pardon Power, P.S. Ruckman has a number of great new posts, including this one noting that Illinois Governor Rod Blagojevich is reported to be reviewing prison inmate petitions for clemency while he ignores calls for his resignation.  And among the great reads is this long new post, which ends with this potent callfor President George Bush to use his clemency power dynamically during his last month in office:

Now comes the end of the administration of George W. Bush. When he came to office eight years ago, he wrapped himself in the theme of "compassionate conservatism" — a theme which critics feel has yet to be operationalized in any meaningful way.  Regardless, today, out in a space of land much much larger than the Western District of Arkansas are thousands and thousands of prisoners who have experienced the harsh administration of mandatory minimum sentences. Many of them are first-time offenders who committed non-violent offenses. They have learned — as has everyone affected by their imprisonment — that the justice system can construct huge, impressive mechanical devices to automatically send "signals."  But, now, Mr. President, maybe now more than ever, it is time for them to also learn that criminal justice in the United States is not the duty and function of a single branch of our government, or even two.  The courts may feel bound by the legislature.  And legislators may feel bound by constituents and public opinion.  But, in matters of criminal justice, President Bush, thanks to the U.S. Constitution, the only thing that constrains you is a compassionate human being's idea of the right thing to do, or not do.

Mr. President, reach into the thousands of clemency applications that are sitting in the Office of the Pardon Attorney right now — many of which have been sitting there for years and years — and do what you know is the right thing to do.  Do what should have been done when Mr. Clinton left office.  Use the pardon power as it was meant to be used — or at least use it in the manner in which it is best used — to round off the rough edges of justice without reference to personal and partisan considerations and with a sense of humility and, yes, compassion. In addition to giving real life meaning to the phrase "compassionate conservatism," you will enliven the the proverb we are all better off to remember, "There, but for the Grace of God, go I."


Some recent related posts:

December 17, 2008 in Clemency and Pardons | Permalink | Comments (6) | TrackBack

December 16, 2008

ABA criminal justice transition recommendations

I just tripped across this ABA webpagetitled "Transition 2008" through which the ABA sets out its recommended "legislative and executive branch actions and initiatives that will improve the justice system, promote the rule of law, ensure the nation's security, and protect civil liberties." Specifically, this ABA page has "four separate policy papers summarizing some of the Association's most significant recommendations for the new administration and the new Congress."

The transition paper on "Criminal Justice System Improvements " is available at this link.  Here is how it is described:

The ABA offers recommendations to improve the criminal justice system.  Such recommendations include: alternatives to incarceration; repeal of mandatory minimum sentencing; eliminating sentencing disparities; and enacting prison reform legislation.

December 16, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (2) | TrackBack

Is anyone teaching a post-Heller seminar on the Second Amendment?

As regular readers know well, I find the debate and litigation surrounding the Second Amendment after Heller to be fascinating (and also incomplete and stunted in various ways).  For this reason and others, I have been lately toying with the notion of developing a upper-level law school seminar on the law, policy and practice of the Second Amendment after Heller.

Before getting serious about a potential new teaching project, however, I thought it might be useful to inquire whether anyone else has been working on such a seminar or course.  (I have heard varying reports about the Second Amendment becoming a more prominent topic in constitutional law classes in various law school, but I have not heard about a class or seminar devoted just to the Second Amendment after Heller.)

In addition to seeking information about whether anyone is now teaching or developing a post-Heller Second Amendment course, I would also welcome general comments from practitioners and others about whether they think such a course would be a valuable addition to a law school curriculum.

Cross posted at Law School Innovation.

December 16, 2008 | Permalink | Comments (1) | TrackBack

Another prominent white-collar defendant gets a big variance

As detailed in this early Bloomberg report, "Ronald Ferguson, the former chief executive officer of General Reinsurance Corp., was sentenced to two years in prison for helping American International Group Inc. deceive shareholders." Here are more details of what sounds like an interesting sentencing hearing:

Ferguson, 66, was the highest-ranking of five executives convicted for using a sham transaction in 2000 to help AIG improve its balance sheet. U.S. District Judge Christopher Droney in Hartford, Connecticut, also gave Ferguson two years of supervised release and ordered him to pay a $200,000 fine.

Droney, who ruled the fraud cost AIG shareholders as much as $597 million, could have sentenced Ferguson to life in prison.  “We will never know why such a good man did such a bad thing,” Droney said.  While Ferguson’s criminal conduct was “substantial,” he deserved leniency because of his history and character, the judge said. “I’ve never received such an outpouring for a defendant,” Droney said....

Ferguson deserved a “substantial” term, Assistant U.S. Attorney Eric Glover told Droney today, though he agreed that life “would not be appropriate.”...

Defense attorney Michael Horowitz asked Droney to impose “an unusually long period of supervised release or probation” that would allow Ferguson to work with the needy. Ferguson, who is studying to become an ordained minister, filed 379 letters asking for mercy and depicting him as decent, caring and honorable....

More than 30 Ferguson supporters filled the courtroom today.  Among those who spoke was Andrew Henry, general counsel of Colgate-Palmolive Co., where Ferguson was a director from 1987 to 2005; Jill Ker Conway, the former president of Smith College; and Ferguson’s wife of 46 years, Carol.  “I am begging you for mercy,” Carol Ferguson, who turned 66 yesterday, said to Droney. “I cannot imagine my life without Ron.”  She said her husband’s message for the past 50 years has been that, “you should do the right thing, even when it hurts, even when no one is looking.”

Based on the determined loss amount, the guideline range in this case must have been decades, not merely years.  (I heard one report that the PSR calculated a range for 14 to 17 years of imprisonment, and this Bloomberg report certainly suggests that the government was certainly asking for a lot more time than Judge Droney imposed.)

The prominence of the case, the amount of loss, the factors mentioned by Judge Droney, and the fact that Sentencing Commission Michael Horowitz represented Ferguson all add to the intigue and importance of this sentencing ruling for not just the defendant here, but also other prominent white-collar defendants.  And I cannot help but speculate that all the pro-discretion rulings coming from the Second Circuit recently played a role in the willingness of Judge Droney to give relatively little weight to the lengthy sentencing term urged by the guidelines.

Some recent related posts:

UPDATE:  As indicated in this comment and as now confirmed by another source, the guidelines were actually recommending a life sentence in this Ferguson case and the calculated offense level was 49, which is six levels higher than the highest recommended sentence.  Yeah, right, year those federal sentencing guidelines sure are presumptively reasonable for non-violent first offenders.  Hah!!

December 16, 2008 in White-collar sentencing | Permalink | Comments (3) | TrackBack

When can guideline errors be harmless (and when is procedural error is not "significant") after Gall?

An otherwise ordinary Sixth Circuit opinion today in US v. Shor, No. 07-2334 (6th Cir. Dec. 16, 2008) (available here), has this extraordinary little footnote:

Both parties cite pre-Bookercases for the proposition that our review of the district court’s interpretation of the Guidelines is de novo.  This is incorrect: the Guidelines are advisory and thus a district court’s interpretation of the Guidelines is only one factor in our holistic review for procedural reasonableness.  The Supreme Court was quite explicit on this point in Gall. Here, however, this difference is immaterial, for the Supreme Court was also quite explicit in Gall that miscalculating the Guidelines range is a “significant procedural error” that requires reversal.  See Gall, 128 S. Ct. at 597, 598.  It is unclear in the wake of Gall when a procedural error is not “significant.”

I find this footnote extraordinary in part because, to my chagrin, circuit courts have largely embraced and encouraged heavy reliance on pre-Booker circuit jurisprudence even in settings where there is every reason to think Booker (and now Gall and Kimbrough) alters the validity and value of that pre-Bookercircuit jurisprudence.  It is nice to see a circuit court poke at the parties for all-too-ready reliance on pre-Booker cases.

That said, courts and litigants can be excused for heavy reliance on pre-Booker circuit jurisprudence given that Booker (and now Gall and Kimbrough and Rita) have left unresolved many practical questions about the operation and application of reasonableness review.  The issue spotted by the Sixth Circuit in Shor concerning the possibility of non-significant procedural error is part of a larger set of questions I have about the review of post-Booker sentencing errors.  Specifically, I often wonder about the potential value (and potential drawbacks) from the idea that some guideline errors should be reviewed for harmlessness.  (I sense that some circuit panels have brought harmlessness concepts into the mix of reasonableness review, but not with any consistency.)  

In the end, the potential interaction of the array of potentially applicable appellate review terms and ideas  — reasonableness (procedural and substantive), abuse of discretion, harmless/significant/clear/plain error, de novo review — makes my head hurt.

December 16, 2008 in Booker in the Circuits | Permalink | Comments (8) | TrackBack

A modest(?) proposal for filling the bench from the ivory tower

Law prof Carl Tobias has this new piece online at FindLaw that is sure to get the law professor blogs a buzzing. Titled "Why Barack Obama, as President, Should Nominate Leading Law Professors for Seats on the Federal Appeals Court," this essay certainly gets my endorsement as long as some profs with criminal justice backgrounds are among the short-list mix.  Here are a few excerpts from the short piece:

President-elect Barack Obama will receive much advice in the coming months. One valuable idea that his nascent administration should embrace and implement is nominating legal scholars to serve on the United States Courts of Appeals.  Numerous legal academics are particularly well-suited to discharge the critical responsibility of delivering appellate justice.

President Ronald Reagan used this concept to excellent effect over both of his administrations. The chief executive searched for, identified, and appointed many highly-respected legal scholars to the appeals courts.... Yet selecting legal academics for the appellate courts apparently fell out of favor in the administrations of Presidents George H. W. Bush, Bill Clinton and George W. Bush. To be sure, these chief executives did choose a few legal scholars, but they were notable exceptions to the rule....

President Obama has vowed both to practice bipartisanship and to appoint excellent judges.  One fertile source of nominees who possess the requisite expertise and temperament to be outstanding appellate jurists is the faculties of the 200 American law schools.  Because legal scholars' work closely resembles that of circuit judges, choosing academics will allow President Obama to select candidates who are essentially known quantities, and to be confident that they possess the skills necessary to be distinguished federal appeals judges.

I obviously have a parochial and personal interest in endorsing academics who have criminal justice backgrounds when thinking about judicial appointments.  But the important reality of heavy criminal law dockets in the federal appellate courts (especially outside the DC Circuit) undercuts somewhat the assertion by Tobias that "legal scholars' work closely resembles that of circuit judges." 

I fear that too many modern legal scholars, perhaps especially many modern constitutional scholars, tend to give far too little attention and thought to a broad array of criminal justice issues that regularly occupy the day-to-day work of the federal judiciary.  Put another way, I fear that too many criminal justice issues tend to get second-class treatment in the modern legal academy.  I would hate to have a federal appellate bench filled with academics inclined to give criminal justice cases second-class treatment on appeal.

Some recent related posts:

December 16, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (8) | TrackBack

Another example of gender bias in adult-youth sex offense sentencing?

I am noticing more and more sentencing cases involving sexual trysts older women and younger boys in which gender dynamics seem to have a major impact on sentencing outcomes.  Here is a local report on another such case from Colorado:

If the roles were reversed, would the accused be treated the same? The question was repeatedly raised during a sentencing hearing Monday for a 31-year-old Grand Junction woman charged with several felonies for having a sexual relationship with a 14-year-old boy.

Theresa Millon, 31, ended up pregnant by the same boy and repeated on Monday her main defense to the charges: That she was sexually pursued “for weeks” before giving in to the boy’s desires.  “I’ve wondered if this was a male offender making the same argument — that the girl kept coming on to me and I gave in — how I would take that,” District Judge Richard Gurley said toward the end of Millon’s hearing. “I wouldn’t be very receptive to that argument.”

Millon was sentenced to a term of 10 years to life on probation — Millon will have to successfully complete an intensive sex-offender treatment program.... Millon’s sentence was left to the judge’s discretion, per the terms of a plea agreement struck with the District Attorney’s Office. Millon pleaded guilty to a lone count of sexual assault on a child....

Millon said the boy claimed to have “been with” several other women in their 30s. She learned she was pregnant in April or May and had an abortion in early June.

Millon will likely lose custody of her own two children as a result of her guilty plea.

December 16, 2008 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

December 15, 2008

"Rethinking Juvenile Justice"

JJ The title of this post is the title of this new entry on SSRN, which provides a means to download the first chapter of this new book from Elizabeth Scott and Laurence Steinberg.  Here is the abstract of the book from the SSRN posting:

Legal reforms over the past generation have transformed juvenile crime regulation from a system that viewed most youth crime as the product of immaturity into one that is ready to hold many youths to the standard of accountability imposed on adults.  Supporters of these reforms argue that they are simply a response to the inability of the traditional juvenile court to deal adequately with violent youth crime, but the legal changes that have transformed the system have often been undertaken in an atmosphere of moral panic, with little deliberation about consequences and costs.

In this book we argue that a developmental model of regulation that is grounded in scientific knowledge about adolescence and juvenile crime is more compatible with the justice system's commitment to fairness and also more likely to promote social welfare than the contemporary approach.  This premise for the most part translates into a legal regime that deals with most adolescent offenders as an intermediate legal category of persons — neither children nor adults. Developmental knowledge clarifies that the typical teenage offender is less culpable than his adult counterpart and therefore deserves less punishment.  It also indicates that most adolescents mature out of their inclination to get involved in criminal activity, and that correctional interventions may influence the trajectories of their adult lives.  The research shows that programs that attend to developmental knowledge are likely to facilitate the transition to conventional adult roles, benefiting both young offenders and society by reducing recidivism and reducing the economic costs of crime regulation.

December 15, 2008 | Permalink | Comments (5) | TrackBack

Early federal sentencing data presents from the US Sentencing Commission

Data junkies, rejoice!  The number-crunching elves working inside the US Sentencing Commission (which is inside the Beltway just south of the North Pole) have finished making the present that every federal sentencing nerd like me wants for the holidays: new batches of federal sentencing data.  Specifically, now to be found on the USSC's main webpage are these data-licious announcements:

December 2008 Preliminary Post-Kimbrough/Gall Data Report:  An updated set of tables presenting preliminary data on fiscal year 2008 cases sentenced on or after December 10, 2007 through September 30, 2008. This report was prepared using data received, coded, and edited by the Commission by November 3, 2008.

FY2008 4th Quarterly Sentencing Update:  An extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2008. The numbers are prepared using data from cases in which the defendant was sentenced by the close-of-business on September 30, 2008 and which were received, coded, and edited by the Commission by November 3, 2008.

Data on Retroactive Application of the Crack Cocaine Amendment: 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 December 8, 2008.

I hope to get a chance to consume and crunch all this new data soon, but in the meantime perhaps readers can identify any particular sentencing statistics that jump out from all this new federal data.

December 15, 2008 in Detailed sentencing data | Permalink | Comments (0) | TrackBack

"A year later, state assesses justice without death penalty"

The title of this post is the title of this intriguing article in today's Newark Star-Ledger.  Here is an excerpt:

A year later, prosecutors and defense lawyers agree the demise of the death penalty has had no discernible impact on the way would-be capital cases are prosecuted in New Jersey. And while the philosophical debate over the death penalty has not changed, some say a new law that has prison without parole as the most severe penalty is better than a capital punishment law with what seemed like an unending appeals process. Since the state reinstated capital punishment in 1982, there were no executions, even though 60 defendants had been sentenced to death.

"I don't think it's made much of a difference at all other than that some of the cases that were languishing out there are now getting tried," said Richard Pompelio, executive director of the New Jersey Crime Victims Law Center. "The important thing for crime victims is that the process have an end, and with the death penalty there never was an end."

During the debate over repeal, there was concern that removing the threat of the death penalty would impede prosecutors' ability to negotiate pleas, but that has not materialized, according to prosecutors. Three of 23 capital punishment cases pending at the time of repeal have resulted in guilty pleas.

"We have not viewed it as an impediment in the disposition of murder cases," said Hudson County Prosecutor Edward DeFazio, who served on a state study commission that two years ago recommended repealing the death penalty. "As a practical matter, we have really seen no difference in the way we conduct our business in prosecuting murder cases."

Essex County Prosecutor Paula Dow, head of the state association of county prosecutors, said eliminating the death penalty has not hindered prosecutors in pursuing tough sentences for the most violent offenders. "We are still seeing very aggressive sentences," Dow said, citing instances in which judges have imposed life sentences for murder. A life sentence is 75 years in prison, 85 percent of which must be served without parole. "That's almost the penultimate penalty," she said.

Dow said repealing the death penalty also freed prosecutors from the burden of pursuing death penalty cases in lengthy, expensive trials and prolonged appeals. "It was a very big drain on the limited resources of law enforcement," she said. "There were long delays in the resolution of the cases, multiple appeals and very high costs associated with the handling of the litigation."

This article shows, yet again, how resistent complicated sentencing systems can be to dramatic legal changes.  Functionally, it seems, criminal justice systems develop complicated ecologies that can only evolve slowly and will thus mute the impact of even very consequential changes in formal legal rules.  This has been the basic practical story in the wake of the Supreme Court's work in Apprendi, Blakely and Booker, and it is interesting to see the same basic story playing out in the state capital punishment arena in New Jersey.

December 15, 2008 in Death Penalty Reforms | Permalink | Comments (4) | TrackBack

A timely(?) call for greater attention to mens rea in the criminal law

Via e-mail I received a link to this interesting "Legal Opinion Letter" from the folks at the Washington Legal Foundation.  The short letter is titled "Mens ReaRequirement: A Critical Casualty Of Overcriminalization," and it is mostly critical of the broad definition of white-collar offenses that enable criminal prosecutions of corporate officials based on seemingly innocuous public statements.  But, especially as my 1L Crim Law students gear up for my exam, I found the letter's final paragraph reminded me of famous passage in the Model Penal Code commentaries:

By passing statutes that criminalize innocent or merely negligent behavior or that are so broadly defined that citizens cannot be sure when they are violating the law, the federal and state governments have significantly eroded the traditional mens rea requirement for criminal conviction. This is a development to be much regretted.  There are many things a liberal government may do to improve social welfare.  Government may properly ask individual citizens to make significant sacrifices for the common good.  However, there are also many things a liberal government may not do.  Visiting the opprobrium and stigma of criminal punishment on those who have not behaved in a blameworthy way is among them.  Such official scapegoating is inconsistent with a liberal legal regime. A just legal system does not permit punishment without fault.  Hence, justice demands the reinvigoration and preservation of the mens rea requirement for criminal punishment.

Ironically, I am not as troubled as the author of this letter by the use of the criminal law to achieve certain regulatory ends.  What does trouble me greatly, however, is the use of severe criminal punishments in the absence of serious culpability. 

Because of various modern practical challenges in using administrative law or tort law to regulate certain risky behaviors, I can see a justification for legislatures sometimes passing laws that may ultimately criminalize innocent or merely negligent behavior.  But I have a hard time with extreme prison terms being in the mix without requirements of serious culpability.  Any and all criminal provisions that threaten severe prison terms without requiring proof of significant blameworthiness necessarily gives prosecutors a huge amount of (unregulated) discretionary authority in their charging and bargaining and sentencing practices.

December 15, 2008 in Offense Characteristics | Permalink | Comments (4) | TrackBack

Notable little Fifth Circuit ruling on constitutional requirements for back-end sentencing decisions

Especially in light of renewed interest in second-look sentencing issues and also the modern revolution of sentencing procedures, the Fifth Circuit's recent decision in Boss vs. Quarterman, No. 07-50448 (5th Cir. Dec. 12, 2008) (available here) merits some attention.  Here is how the little opinion begins and ends:

Texas state prisoner Jackie Lynn Boss, serving a 10-year sentence for intoxication assault, appeals the district court's denial of his petition for a writ of habeas corpus.  Boss sought federal review of the Texas Board of Pardons and Parole's June 2005 decision to deny him “mandatory supervision” release.  The parole panel's decision listed statutory reasons for the denial but did not offer any evidence from the record to support its findings.  Boss argues due process requires more.  We granted a certificate of appealability on the question of whether Superintendent v. Hill requires the Texas Board of Pardons and Paroles to give reasons for denying mandatory supervision that are supported by "some evidence."  We AFFIRM the denial of the writ by the district court....

We find no persuasive reason to conclude that Hill supplanted Greenholtz.  The Hill opinion made no reference to Greenholtz, a strong implication that parole board decisions on good-time credits and on mandatory supervision make distinct draws upon due process.  Moreover, the Supreme Court continues to rely on Greenholtz after Hill.  In a case considering the due process required to transfer a prisoner to a supermax facility, the Court stated "[w]here the inquiry draws more on the experience of prison administrators . . . the informal, nonadversary procedures set forth in Greenholtz . . . provide the appropriate model."

Denying mandatory supervision and revoking good-time credits are distinct deprivations for which the Supreme Court has prescribed different constitutional protections.  We cannot find that Hill's “some evidence” requirement clearly established the due process requirements for denials of mandatory supervision.  Rather, Greenholtz continues to define the procedural protections due before a state denies a prisoner conditional release.

December 15, 2008 in Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Headaches on the path to Holder's AG confirmation

The Legal Times has this interesting new piece headlined, "GOP Signals Rough Path to AG Position for Holder." Here is a snippet:

Sen. Jeff Sessions of Alabama questioned Holder's fitness to be attorney general.  Sen. Charles Grassley of Iowa said he wanted to delve into Holder's career in private practice.  Sen. Tom Coburn of Oklahoma threatened to prevent a vote.

Republicans have also asked the Justice Department to hand over reams of documents from Holder's time as U.S. Attorney and deputy attorney general, touching on subjects as seemingly arcane as his involvement in the Clinton administration's decision to allow an American aerospace company to export a communications satellite to the Chinese....

The Republicans are searching for Holder's fingerprints on a variety of controversial policies and scandals in the 1990s, including President Bill Clinton's impeachment proceedings; the Justice Department's investigation into the siege in Waco, Texas; and the Miami raid involving Elian Gonzalez.  They're also exploring Holder's involvement in Justice Department investigations into Clinton-era fundraising and the administration's decision to allow Loral Space to export a communications satellite to China to be launched on a Chinese-built rocket.

The letter [to DOJ] also requests materials related to a memorandum Holder drafted dealing with attorney-client privilege waivers in corporate investigations, a hot-button issue that was revisited this year by Deputy Attorney General Mark Filip.  And the letter asks for materials that would highlight Holder's positions on gun control, the death penalty, and Miranda warnings -- issues certain to rally the conservative base.

I would be surprised if all this Holder push-back will significantly impede his path to becoming our next Attorney General.  But it should at least ensure that his confirmation hearings are interesting (and blog-worthy).

Some prior posts on the Obama transition, the Holder pick and federal criminal justice issues:

December 15, 2008 in Who Sentences | Permalink | Comments (0) | TrackBack

December 14, 2008

You make the AG call: should feds seek death for courthouse killer Brian Nichols?

I suppose I should not be surprised to see this news reportout of Atlanta, which indicates that the state DA unable to get the death penalty for courthouse killer Brian Nichols now wants the feds to give it go:

Fulton County District Attorney Paul Howard said Saturday that courthouse killer Brian Nichols may get the death penalty yet — from a federal court jury. Howard, whose prosecution sought and failed to get death for Nichols, said he would talk this week about possible federal charges against Nichols for killing off-duty U.S. Customs agent David Wilhelm.

The agent was working alone at his new home in Buckhead when Nichols confronted him the night of his March 11, 2005 escape from the Fulton County Courthouse. Nichols was sentenced Saturday to multiple life prison sentences for the entire case, including four sentences without parole for the four killings.

Howard said at a post-sentencing news conference that he and U.S. Attorney David Nahmias will talk about a renewed death-penalty effort later in the week.  Howard also said he will push for a change in Georgia law that mandates a unanimous decision by juries tackling death penalty cases.

Nichols’ jury hung in a persistent 9-3 vote, with those wanting death in the majority.  Without unanimity, however, Judge James Bodiford was forced to deliver sentences of life in prison.

Were I the Attorney General with authority to review whatever recommendation was made by the local US Attorney, I would first request an accounting of how much money the state of Georgia spent in its (now failed) effort to get Brian Nichols on to death row.  I would then ask for an estimate of how much it would likely cost to conduct a federal capital trial in this case.  I genuinely believe any and every death penalty decision should be informed by as much tangible cost/benefit information as possible.

I suspect others may believe that cost issues should be ignored (or be at least a very minor consideration) in a high-profile case like this one.  And I hope these folks will use the comments to indicate what factors they think should come first in the AG's consideration of this case.

December 14, 2008 in Death Penalty Reforms | Permalink | Comments (22) | TrackBack

Seeking refinement in sex offender registration requirements

This fascinating article from the Houston Chronicle, headlined "Unlikely force fighting sex crime's stigma: Texas Voices wants laws to note difference between dangerous predators, nonviolent offenders," spotlights a group seeking to refine which and how offenders appear on sex offender registries.  Here is an excerpt:

Martin Ezell is tired of the dead-end jobs and unrelenting stigma that comes with being a registered sex offender.... It's true that a decade ago, he was convicted of sexually abusing a 16-year-old girl who was half his age. But the registry doesn't divulge that his victim was his girlfriend who now is his wife, with whom he has three children....

The military veteran, who lives with his family in a bedroom community south of Austin, is so angry about his lifetime registration requirement that he has joined forces with hundreds of other sex offenders similarly aggrieved about being on the registry.

This unlikely political force, which dubs itself Texas Voices, vows to fight the state's — and the nation's — sweeping registration laws. The group believes community notification laws fail to protect the public, because they don't distinguish dangerous predators from otherwise harmless men and women who foolishly had sex with underage lovers, served their sentences and don't need a lifetime of public scrutiny....

Texas Voices is finding agreement in unusual places.  Ray Allen, the former Texas House Corrections chair who helped shepherd into law tough sex registration bills, said he and his colleagues went too far.  "We cast the net widely to make sure we got all the sex offenders.  Now, 15 years on, it turns out that really only a small percentage of people convicted of sex offenses pose a true danger to the public," he said....

Texas Voices members know their chances for success hinge on politicians risking their careers on a population with just about zero political clout.  Sen. Florence Shapiro, R-Plano, who has been a driving force behind the community notification laws, isn't ready to assume that risk.  She insists that if the registry is too large, it's because there are too many people out there committing sex crimes.

December 14, 2008 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

A creative sentence involving creative writing

This local story, headlined "Two drug offenders ordered to write essays," reports on a creative sentence imposed recently in a New Jersey state court:

Two former Long Valley residents who were charged in February, along with a third roommate, with running a marijuana harvesting operation in their attic were spared prison sentences Friday by a judge who gave them probation, community service and ordered them to write essays.

Superior Court Judge Thomas V. Manahan ordered John Coates III of Great Meadows and John A. O'Connell of Succasunna, both 24, to read "Judgment at Nuremberg," a 1957 play by Abby Mann that was adapted into the Academy Award-winning 1961 film about Nazi war criminals brought to justice for their crimes against humanity.

The significance of the assignment is that the war criminals claimed to just be following orders, just as Coates and O'Connell said they went along with the marijuana-growing plan of roommate Zachary Toomey, 27.

December 14, 2008 in Criminal Sentences Alternatives | Permalink | Comments (3) | TrackBack

ABA "Second Look" Roundtable examining back-end sentencing mechanisms and reforms

I had the honor and privilege last Monday to take part in an amazing event put together by the ABA, which focused on back-end sentencing issues. Here is an effective summary of the event provided by its chief organizer, Margaret Colgate Love:

On December 8, 2008, the ABA Commission on Effective Criminal Sanctions sponsored an all-day Roundtable on back-end mechanisms for sentence modification in the federal system, through clemency and statutory "second look" mechanisms short of parole. The wide-ranging discussion raised basic questions about the validity of determinate sentencing theory, particularly when prison sentences are lengthy, and discussed the on-going revision of the Model Penal Code's Sentencing Articles. The Roundtable was moderated by John Jay College President Jeremy Travis, and Justice Anthony Kennedy participated in its afternoon session.

Papers presented for discussion by the Roundtable explored the theoretical, practical, and political challenges presented by introducing sentence reduction mechanisms into a determinate sentencing system. Topics included:

  • The role of executive clemency in determinate sentencing structures, and the political and administrative challenges of making clemency operational;
  • Existing statutory sentence reduction mechanisms in federal law, including sentence reduction for "extraordinary and compelling reasons" under 18 USC 3582(c)(1)(A)(i), and retroactive guidelines changes;
  • Treaty transfers and other ways of repatriating non-citizen prisoners; "Second Look" provisions in the revised Model Penal Code/Sentencing Articles;
  • State experiments in structured indeterminate sentencing
  • The role of prison officials in determining sentence length, including earned good time and compassionate release.

Papers and Roundtable proceedings will be published in an upcoming issue of the Federal Sentencing Reporter.

December 14, 2008 in Sentences Reconsidered | Permalink | Comments (0) | TrackBack