Sentencing Law and Policy

Still more discussion of the costs of the death penalty

There continues to be much life in the reporting of the possibility of costs killing the death penalty.  The AP has this new piece, headlined "In hard times, executions become question of cost," which starts this way:

After decades of moral arguments reaching biblical proportions, after long, twisted journeys to the nation's highest court and back, the death penalty may be abandoned by several states for a reason having nothing to do with right or wrong: Money.

Turns out, it is cheaper to imprison killers for life than to execute them, according to a series of recent surveys. Tens of millions of dollars cheaper, politicians are learning, during a tumbling recession when nearly every state faces job cuts and massive deficits.

Similarly, Chicago Tribune this weekend has this article, headlined "In many states, cost is slowly killing death penalty." Here is a snippet:

Debate over the death penalty has undergone key shifts over the years. During the past decade, the discussion has focused on accuracy and fairness, with exonerations of dozens of Death Row inmates sparking calls for reform and abolition. Now, with the nation's economy slumping, the issue is cost.

Several states, including New Mexico, have introduced measures to abolish the death penalty, many of them citing its costs. In Colorado, a bill would take money usually spent on capital cases and use it to help clear unsolved cases. In Kansas, a legislator wants to use money for capital cases to close a budget shortfall.

In somewhat related news, the Chicago Sun-Times has this new piece, headlined "Death penalty: 10 years since last execution in Illinois; Last state execution was March 1999, but fight goes on to abolish death penalty."

Some recent related posts about death penalty costs:

• Great new (though still dated) examination of the death penalty and plea bargaining
• CNN now talking about the costs of the death penalty and state reforms 
• States considering laying off the death penalty during tough economic times
• The economic case against the death penalty getting more and more attention
• More discussion of cost concerns in debates over the death penalty
• Capital case cost concerns continue to inform reform debate
• Interesting time for Time's discussion of death's demise
• What might 2009 have in store for . . . the death penalty in the US?

A victim's perspective on a possible plea deal for Bernie Madoff

This ABC News article provide an effective victim-centered perspective on the developing new that Bernie Madoff may be nearing a plea deal in his prosecution for his record-setting frauds.  The piece is headlined " Calling All Victims: Madoff Expected to Plead Guilty; Criminal Case of the $50 Billion Fraudster Nearing Conclusion," and here are some notable excerpts:

In the government's clearest statement yet that a deal in the criminal case of Bernard Madoff is close to being made, a victims' rights motion was filed Friday evening by the U.S. attorney in the case that indicates Madoff will appear next Thursday in a plea proceeding.

U.S. District Court Judge Denny Chin signed an order granting a request that the thousands of victims of the alleged Ponzi scheme will receive online notification of the court proceedings. They will have to periodically check a special web site set up for the criminal case proceedings.

Any victim who wishes to be heard in Thursday's proceeding will need to notify the government by Wednesday March 11th at 10:00 a.m. The internet address for victims to contact is: [email protected]....

It was reveleaed Friday that federal prosecutors have apparently reached a plea deal with the accused con man, in which he will admit to his role in the biggest financial crime in American history. The deal does not specify how much time Madoff would spend in prison, nor does it exclude the prosecution of Madoff's family or former associates, lawyers familiar with case said.

One former federal prosecutor says he doubts the deal will go easy on Madoff and that the disgraced financier will be spending a long time behind bars. "I doubt very seriously whether there would be any concession by the government as to jail time or diminished jail time for Mr. Madoff," said Sean O'Shea. "Given the sentencing guidelines in a fraud of this type, I think you're looking at a man who is 70 years old, I think you're looking at the rest of his natural life."...

Madoff's investors are not happy to hear the he may cut a deal. 92-year old Zsa Zsa Gabor is one of them. Her husband Prince Frederick Von Anhalt said the couple lost their $10 million life savings to Madoff.

"It's not enough" for Madoff to just plead guilty and go to jail, Von Anhalt told ABC News. "That's what he wants, he wants to go to jail, his life is over. He wants to protect his family, his wife, his children." Von Anhalt also wants to see Madoff's wife, Ruth, and his sons arrested and put in jail. "What nerve she has, to say that she wants to keep all that money. That's our money! Screw her!"

For more details on the possible plea deal, Mark Hamblett at the New York Law Journal has this article, headlined "Madoff Waives Indictment, Set to Plead Guilty."

"The Libby Letters: Reflections on Sentencing and Mercy in a Post-Booker World"

The title of this post is the title of a great-looking new article from Professor Scott Sundby, which just showed up here on SSRN. Here is the abstract:

Much has been written about the Booker revolution that led to the fall of the mandatory Federal Sentencing Guidelines.  Because the Guidelines had been widely assailed as a rigid system that frequently led to unjust sentences, it comes as little surprise that most of the commentary has been celebratory.  With the judiciary's new found discretion comes the chance to bring mercy back in from the cold after years of exile.

Now, however, the hard work begins. The Guidelines, despite their shortcomings, were instituted in response to a very real problem of disparity in sentencing. The challenge that lies ahead, therefore, is to see if the legal system can accommodate the judiciary's new found discretion without slipping back into a system where a sentence might turn on race, socio-economic status, or the happenstance of which judge is assigned to the case.  In short, while Shakespeare beautifully captured mercy's allure when he penned Portia's famous lines, The quality of mercy is not strain'd, it droppeth as the gentle rain from heaven, it turns out that giving voice to mercy in the nitty-gritty of a courtroom sentencing is surprisingly difficult.

This Article uses the sentencing of Lewis Scooter Libby to explore the potential difficulties that lie ahead in a post-Booker world. Libby, who was Vice President Cheney's chief-of-staff, was tried and convicted for crimes coming out of his role in revealing that Valerie Plame was a CIA agent. Prior to his sentencing, a number of citizens submitted letters to the judge, some arguing that Libby deserved mercy based on factors like long public service, while others stated that justice demanded the most severe sentence possible.  With their refreshingly non-legal perspectives on mercy and justice, these letters offer a rich trove of material for asking what factors warrant leniency. Using the lessons learned from the letters, the Article examines various ways that we might identify what mercy factors should be recognized.  The Article concludes by looking at how judges might exercise their discretion to ensure that the virtue of mercy does not become an unintentional vice by allowing inequality and arbitrariness to creep back into sentencing.

To paraphrase a line from a well-known movie, this article had me at "Libby Letters."  I am looking forward to finding time this weekend (even through we all get one less hour) to review and reflect all the insight that the abstract portends.

A full Friday of criminal law action well covered at TalkLeft

The criminal justice world did not slow down while I spent most of Friday outside the ivory tower and inside a actual federal courtroom on a pro bono matter.  Fortunately, the good folks at TalkLeft had all these posts keeping up with all the biggest criminal law news that's fit to blog:

• Don Siegelman Appeal: Court Affirms Conviction On Most Counts
• Prosecutor Signals Madoff Plea Deal Imminent
• New Report: Blacks Disproportionately Busted for Drugs
• Ted Wells Discusses Scooter Libby's Conviction

Federal courts becoming more transparent ... will SCOTUS follow?

This AP new article, headlined "Live coverage boosts access to federal courtrooms," highlights the growing tendency of federal trial courts to be more open and transparent even in criminal cases.  Here are snippets from the piece:

In a victory for news technology in federal courts, a judge is allowing a reporter to use the microblogging service Twitter to provide constant updates from a racketeering gang trial this week. It's not the first time online streaming has been allowed in courtrooms, but the practice is still rare in the federal system, especially in criminal cases....

Across the country, tech-savvy federal judges are becoming increasingly receptive to live courtroom media coverage using emerging technologies. Such coverage from journalists reporting from trials in state courts is already common....

Dave Aeikens, president of the Society of Professional Journalists, called [this] decision to allow courtroom Twitter postings "huge" for bolstering public access. "The technology keeps changing," Aeikens said. "How we gather and deliver news to people keeps changing. And the courts need to understand that and welcome that."

I hope the Supreme Court Justices are paying attention and allow for broadcasts of SCOTUS arguments before too long.

Understanding why it may be hard to say sorry

As detailed in some of the links below, there has been a lot of interesting recent discussion of the role of apologies in the criminal system.  Consequently, this new paper on SSRN, titled "Saving Face: The Benefits of Not Saying I'm Sorry," is an important addition to how we come to understand and operationalize apologizing in the law.  Here is the abstract:

This forthcoming article explores the question of why individuals resist apologizing, even when it is rationally in their best interest to do so -- such as when it would significantly reduce a criminal sentence or settle a civil lawsuit at little or no cost. Drawing on a significant body of research by social psychologists on apology, the article posits that individuals primarily resist apology when it poses an intolerable threat to their face -- or their claimed identity as competent, intelligent, or moral persons. In light of this research, the article then critiques the failure of recent laws designed to encourage or compel apology to take face into account.

Some related posts:

• Shaming, remorse, apologies and victims
• Jury sentencing and apologies, Texas-style
• Sentencing means always watching out how you say you're sorry
• Fascinating Debate Club from Legal Affairs this week

Oral argument transcripts in sentencing cases now available

Though it took a while for them both to appear, the oral argument transcripts in the sentencing cases argued before the Supreme Court yesterday (background here) are now available:

• The argument transcript in Abuelhawa v. United States (08-192) is available here.

• The argument transcript in Dean v. United States (08-5274) is now available here.

Notable Second Circuit ruling on interplay of mandatory minimum statutes

The Second Circuit handed down a notable ruling today in US v. Williams, 07-2436 (2d Cir. Mar. 5, 2009) (available here), which address the application of federal mandatory minimum sentencing statutes. Here is how the opinion starts:

Leon Williams appeals from a June 1, 2007, judgment of conviction and sentence of the United States District Court for the Southern District of New York (Sand, J.).  Williams was convicted of a drug trafficking crime which carried a ten-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A), and possession of a firearm in furtherance of that drug trafficking crime, an offense which carried a five-year mandatory minimum consecutive sentence “[e]xcept to the extent that a greater minimum sentence is otherwise provided by . . . any other provision of law” under 18 U.S.C. § 924(c)(1)(A)(i). In this opinion, we address whether the district court erred in imposing the five-year mandatory minimum consecutive sentence under Section 924(c)(1)(A)(i) even though a greater minimum sentence was provided for the predicate drug trafficking crime.  In United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), reh’g denied, 540 F.3d 87 (2d Cir. 2008), we held that the mandatory minimum sentence under Section 924(c)(1)(A) was inapplicable where the defendant was subject to a longer mandatory minimum sentence for a career criminal firearm possession violation.  We now hold that the mandatory minimum sentence under Section 924(c)(1)(A) is also inapplicable where the defendant is subject to a longer mandatory minimum sentence for a drug trafficking offense that is part of the same criminal transaction or set of operative facts as the firearm offense.

Singer Chris Brown needs to start studying Califonia sentencing law

As detailed in this AP article, a big celebrity love story has officially become a crime and punishment story:

Chris Brown has been charged with two felonies stemming from an argument with his girlfriend, Rihanna, court documents show.

Brown is expected to be arraigned Thursday afternoon on charges of assault likely to cause great bodily injury and making criminal threats. The 19-year-old R&B singer remains free on $50,000 bail.

The felony complaint handed down in court Thursday morning identifies Brown's alleged victim only as "Robyn F." Rihanna's real name is Robyn Rihanna Fenty.  If convicted, the possible sentence ranges anywhere from probation to four years and eight months in state prison, said district attorney's spokeswoman Sandi Gibbons.

Of course, MTV.com and E! Online have in-depth additional coverage.

Report on the "Capitol Hill crime summit"

I am pleased to see that The Sentencing Project has posted here a report on the "crime summit" that took place earlier this week in DC.  The item is titled "Capitol Hill Crime Summit Attracts Standing-Room Only Crowd," and here is how the report starts:

Marc Mauer, executive director of The Sentencing Project, moderated a panel of experts for “Smart on Crime Policies: Increase Public Safety, Reduce Costs, and Improve Lives,” a Capitol Hill Crime Summit held on March 3rd.  Representative Robert “Bobby” Scott (D-VA), Chairman of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, convened the standing room only briefing, which also included panels on Prevention and Intervention, and Reentry and Collateral Consequences.

Mauer opened the “Sentencing and Alternatives” discussion with a question for United States District Court Judge Nancy Gertner, asking about the effect of mandatory minimum sentences imposed by Congress, in taking discretion away from judges.  “I don't know if anyone can understand what it's like to sentence a defendant to a sentence to which you know to be manifestly unfair,” said Gertner.  “We've stopped making meaningful distinctions between offenders.”

Opaque Eighth Circuit ruling rejects challenge to long gun-possession sentence

In most published sentencing opinions upholding sentences against a defendant's challenge, a circuit court panel often provides a detailed description of the crime and its aggravating factors.  For this reason, I often get suspicious when I see an opinion like the Eighth Circuit's ruling today in US v. Barron, No. 08-1613 (8th Cir. Mar. 5, 2009) (available here).  The only hint of the nature and circumstances of the defendant's offense of felon in possession comes from this paragraph:

Here, Barron argued in his sentencing memorandum that the district court should impose the same sentence of probation that another district court imposed in United States v. Francis, No. 03-CR-03174 (W.D. Mo. Nov. 28, 2006), because Barron’s offense conduct was similar to that of Francis. See United States v. Francis, 462 F.3d 810, 812-14 (8th Cir. 2006) (describing the relevant facts).  Barron asserted that he, like Francis, had reason to believe that the prohibition on his possession of firearms had ended, and urged that a failure to grant him the same degree of leniency accorded to Francis would cause unwarranted sentence disparity.

But, as the first paragraph of the Eighth Circuit's ruling makes clear, this defendant's sentencing appeal is unavailing:

Charles Barron pled guilty to unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1).  The district court sentenced Barron to 46 months’ imprisonment, a term within the advisory guideline range of 46 to 57 months.  Barron appeals his sentence, arguing that the district court abused its discretion by failing adequately to consider the need to avoid unwarranted sentence disparities under 18 U.S.C. § 3553(a) and by refusing to vary from the guideline range because of the “inherent inequity” of USSG § 2K2.1(a)(4)(B), which provides an increased base offense level for offenses involving large-capacity semiautomatic firearms.  We affirm.

Though it is hard to be certain, this ruling gives me the impression that a defendant has received nearly four years in federal prison for being a foolish gun collector.  Maybe my hyper-active Second Amendment radar is a bit out of whack these days, but these kinds of opaque rulings always make me a bit suspicious of what a court has left out of its opinion.

Linking education and corrections in battling recidivism

A couple of recent pieces in notable general-interest publications provide yet another opportunity to see the links between effective educational programs and effective corrections programs:

• From the New York Times here, "Read a Book, Get Out of Jail"
• From The New Republic here, "Con Ed: Reading 'Lolita' in the Big House"

I wish we could make all politicians read these articles whenever they are considering the latest "tough-on-crime" legislative proposal or when they are thinking about what prison programs to cut during these tough economic times.

Should Joe Nacchio remain free on bail pending SCOTUS appeal?

This Denver Post article details that former Qwest CEO has been ordered to start serving his prison sentence later this month:

Former Qwest chief executive Joe Nacchio has been ordered to report to a Pennsylvania correctional facility on March 23 to begin serving a six-year prison term for illegal insider trading.

Nacchio has been assigned to a minimum-security satellite camp at Schuylkill Federal Correctional Institution in Minersville, Pa., 46 miles north of Harrisburg. Nacchio, a New Jersey resident, has to report to the warden by noon on March 23, according to an order entered today in Denver federal court by U.S. District Judge Marcia Krieger. "Travel will be at his own expense," the order states.

Last week, the 10th Circuit Court of Appeals reinstated Nacchio's conviction and revoked his bail in a 5-4 decision. A three-judge appeals panel had reversed the conviction, ruling that the trial judge wrongly excluded expert testimony from a defense witness.

Though I am not an expert on bail pending appeal issues, the fact that a Tenth Circuit panel originally reversed his conviction leads me to think Nacchio could make a solid case for remaining out while he pursues his claims in the Supreme Court.  But, since the en banc Tenth Circuit ruling seemed to demand that Nacchio get started with his prison term, it apparently is going to be up to the Justices to decide whether this notable white-collar defendant will be in prison or still on bail in a few weeks.

UPDATE:  At this post, How Appealing has coverage of, and links to, Joe Nacchio's bail application to the Tenth Circuit.

"Renowned Criminologist Joan Petersilia Joins Stanford Law School Faculty"

The title of this post is the heading of this press release from the Stanford Law School.  I usually do not channel my inner-Leiter, but this faculty move is noteworthy for lots of reasons for sentencing fans.  These excerpts from the press release highlight why:

Stanford Law School today announced the appointment of preeminent criminologist Joan Petersilia as Professor of Law. Petersilia has spent more than 25 years studying the performance of U.S. criminal justice agencies and has been instrumental in affecting prison and parole reform in California and throughout the U.S. Petersilia currently serves as Professor of Criminology, Law and Society in the School of Social Ecology at the University of California, Irvine, where she directs the Center for Evidence-Based Corrections.

Petersilia is the author of eight books about corrections public policy, and her research on parole reform, prisoner reintegration and sentencing policy has fueled the overhaul of California’s corrections system. As a special advisor to Gov. Arnold Schwarzenegger since 2003, she helped reorganize juvenile and adult corrections, established a new Office of Research and an Office of Policy and Planning, and worked with the California Legislature to implement prison and parole reform.

A criminologist with a background in empirical research and social science, Petersilia will also serve as faculty co-director for the Stanford Criminal Justice Center (SCJC). She will help SCJC assess policies related to crime control, sentencing, and corrections, and develop nonpartisan analyses and recommendations intended to aid public officials, legal practitioners, and the public in understanding criminal justice policy at the state and national levels.

“As an acknowledged leading expert on sentencing and corrections reform, Joan brings an incomparable understanding of sentencing and corrections policy, which is rapidly becoming one of the most salient topics in the U.S. criminal justice system,” said Robert Weisberg, Edwin E. Huddleson, Jr. Professor of Law and faculty co-director of the Stanford Criminal Justice Center.

Lots of death penalty talk in state legislatures ... while Texas keeps up record execution pace

I am having a hard time keeping up with all the death penalty reform legislation making its way through statehouses these days, but here are headlines that seem to capture some of the latest highlights:

• From the Baltimore Sun here, "Senate endorses 'compromise' on death penalty repeal"
• From the Hartford Courant here, "Lawmakers revisit death penalty"
• From the Kansas City Star here, "Kansas death penalty bill on hold"
• From the Reno Gazette Journal here, "Bill puts death penalty on hold"

It is not clear that all of this legislative activity will likely change the basic realities of death penalty administration in the United States because few of the states talking seriously about reform have a robust capital case docket or death row.  Still, the fact that so many legislators in so many states now feel comfortable talking about reform or repeal serves as another sign of the changing capital times.

Meanwhile, as this AP article details, Texas is about to execute another inmate tonight:

The convicted killer of a Houston man gunned down during a botched burglary was headed to the Texas death chamber Wednesday evening. Kenneth Wayne Morris, whose 38th birthday was Wednesday, was condemned for the 1991 fatal shooting of James Adams, 63....

Morris would be the 10th condemned murderer executed in Texas this year and the second in as many nights to receive lethal injection in the nation's most active death penalty state.... Two more executions are set for next week in Texas.

Texas is on a record pace to break its own modern record for the number of executions in one state in one year.

Ducan Fanfan loses appeal seeking greater crack sentence reduction

Ducan Fanfan — who, in a future "law nerd" version of Trivial Pursuit, will be the answer to the question "What was the name of the defendant in the companion case to US v. Booker?" —  has made some more appellate law news today as a result of the First Circuit's work in US v. Fanfan, No. 08-2062 (1st Cir. Mar. 4, 2009)(available here).  Here is how Fanfan's latest legal loss begins:

After much litigation, Appellant Ducan Fanfan's sentence for a drug offense involving crack cocaine became final.  United States v. Fanfan, 468 F.3d 7 (1st Cir. 2006), cert. denied, 549 U.S. 1300 (2007).  On July 9, 2008, Fanfan sought an adjusted sentence under 18 U.S.C. § 3582(c)(2) in light of a subsequent amendment to the guidelines that effectively reduced the guideline range for certain crack cocaine offenders. U.S.S.G. Amendment 706 (effective Nov. 1, 2007). The district court granted this request and imposed a sentence within the new guideline range.  On the same day that the district court allowed his request, Fanfan filed a motion for reconsideration, asking the court to instead impose a variant sentence below the new guideline range based on the district court's Kimbrough discretion.  The district court refused and, in citing another district court decision, United States v. Julien, 550 F. Supp. 2d 138 (D. Me. 2008), indicated that it did not believe it had the legal authority to impose such a variant sentence in the § 3582(c)(2) context. Fanfan appeals this conclusion.  After careful consideration, we affirm.

New York getting closer to dropping the rock

The New York Times has this new piece, headlined "Albany Takes Step to Repeal Rockefeller Drug Laws," that suggests that the state's drug sentencing laws are on the verge of real reform.  Here is how it starts:

The State Assembly on Wednesday announced that it has agreed to pass legislation to repeal much of what remains of the state’s 1970s-era drug laws.

The proposal, scheduled to come to a floor vote late Wednesday afternoon, would be the first pivotal step in a push to dismantle the laws that tied judges’ hands and imposed mandatory prison terms for many nonviolent drug offenses.

The Assembly’s proposal restores judges’ discretion in sentencing in many lower-level drug possession crimes. Judges would be able to send many offenders to treatment programs instead of prison without receiving consent from prosecutors. In addition, the measure would permit about 2,000 prisoners to apply to have their sentences reconsidered.

Federal sentencing statute day at the Supreme Court

Continuing to work through a docket heavy with federal statutory interpretation cases involving sentencing issue, the Supreme Court today hears these two cases (as described here by SCOTUSblog):

First, the Court will hear argument in Abuelhawa v. United States (08-192), on whether a person who uses a cell phone to buy drugs solely for personal use (a misdemeanor) can be charged with the separate crime of using a phone to facilitate the sale of drugs (a felony).  Sri Srinivasan of O’Melveny & Myers in Washington, DC will argue for Salman Khade Abuelhawa. Assistant Solicitor General Eric Miller will argue for the United States.

At 11 a.m., the Court will hear argument in Dean v. United States (08-5274), involving the ten-year mandatory minimum sentence for discharging a gun during a violent crime.  Scott J. Forster of Calhoun, Georgia, will argue for Christopher Michael Dean.  Assistant Solicitor General Deanne Maynard will argue for the United States.

If both cases produce narrow opinions (which is what I expect), it seems unlikely that either case will prove to be a sentencing blockbuster.  But perhaps one or more Justices will see these cases as an opportunity to address federal statutory sentencing issues more broadly.

Capital case cost concerns continue to inform reform debate

Today's newspapers show that folks keep buzzing about the economics of the death penalty and using costs concerns as a reason to support reforms.  For example, the Las Vegas Sun has this new article, headlined "Debating the cost of the death penalty," and the Kansas City Star has this new editorial, titled "Ending the burdensome cost of the death penalty."   

And Lance Lindsey, the executive director of Death Penalty Focus, has this new commentary titled simply "We Can’t Afford the Death Penalty." Here is how it starts and ends:

From California to New York, dozens of newspapers are declaring that state governments can no longer afford the death penalty.

The Death Penalty Information Center in Washington, D.C., recently reported that the death penalty is too costly.  Maryland spent $37 million per execution in the past 28 years.  In Florida, home to the second largest death row in the country, the cost estimates are $24 million per execution.  California’s cost is $250 million per execution, according to a Los Angeles Times article cited in the report.  These states are among 36 states that have the death penalty and, like nearly every state, are going through a financial crisis.

The outrageous price that taxpayers bear in order to kill a handful of prisoners has been thrown into sharp relief....

It is utterly irresponsible to invest hundreds of millions of dollars to expand death rows when our schools, our health care, our environment, and everything we value in our communities face a slow painful demise. We must reject as false the choice between public safety and human rights. And we must not give up the ideal that justice without violence and revenge can be achieved in our lifetime.

Some recent related posts about death penalty costs:

• Great new (though still dated) examination of the death penalty and plea bargaining
• CNN now talking about the costs of the death penalty and state reforms 
• States considering laying off the death penalty during tough economic times
• The economic case against the death penalty getting more and more attention
• More discussion of cost concerns in debates over the death penalty
• Death penalty abolition becoming more realistic in a few western states
• Interesting time for Time's discussion of death's demise
• DPIC releases year-end report on state of death penalty in 2008
• What might 2009 have in store for . . . the death penalty in the US?

Did anyone (or any media) attend the "crime summit" on the Hill?

As previewed in this post, yesterday afternoon there was a "crime summit" organized by Robert C. “Bobby” Scott (D-VA), Chair of the House Judiciary Subcommittee, which was to explore "smart on crime" proposals (as this formal announcement explains).  I was hoping that this event might get lots of media attention, especially in the wake of the Pew Center's big report on the scope and costs of criminal justice control in the United States.  But, as of this writing, I cannot find on single traditional (or non-tradtional) media report on the event.

In addition to hoping any "crime summit" attendees will send me a report on the event, perhaps others can opine on whether I ought to be impressed with the ability of this event to be so stealthy.  (Perhaps controversial politicians hoping to avoid continued media scrutiny ought to just start planning crime summits and other criminal justice reform events.)

Gumbo and guidelines in the Big Easy in June

I have already made my plans to attend this year's Annual National Seminar on the Federal Sentencing Guidelines presented by the US Sentencing Commission. This year's event, in addition to being free to attend, has the extra added benefit of taking place in New Orleans on June 10-12. The full agenda with all the seminar information is now available at this link. 

I will have the pleasure of talking about departures and variances at the conference, and I am already looking forward to going to all the traditional plenary events and break-out sessions.  I am also looking forward to discovering if the guidelines make even more sense while having a gumbo hangover.

Noticing the biggest bias in the federal judiciary

President Obama has not yet nominated aany federal judges (which, perhaps, is giving all the judicial wanna-bees a good chance to make sure their taxes are paid up).  Nevertheless, the judicial appointment debates are heating up, with the Senate Republicans firing off this new letter urging the new guy in the White House to avoid an unduly partisan approach to nominations. 

I tend in these debates to be more concerned about professional than partisan biases.  And my concerns about professional biases were confirmed and heightened by an amazing statistic I saw in a new article in this great special issue of the Denver University Law Review on "The Election of President Barack Obama."  An article by Scott Moss, titled "The Courts Under President Obama," is mostly focused on Supreme Court nominees, but the final few pages examine lower federal court picks by Presidents Clinton and GW Bush.  And, while I was impressed to see that these presidents were pretty good (and pretty similar) on a variety of diversity criteria, I was amazed to see how many more persons with prosecuting/government experience were appointed to the bench compared to persons with public defense experience.

These specific statistics appear in a cool chart on p. 15 of the Moss article, and here are basic highlights:  Presidents Clinton and GW Bush appointed nearly 400 lower court judges who had prior experience as a prosecutor or government attorney, but appointed fewer than 60 who had prior experience as a public defender.  These numbers become even more unbalanced when one considers only circuit-level appointments:  Presidents Clinton and GW Bush appointed 73 circuit court judges with experience as a prosecutor or government attorney, and only 4 with experience as a public defender.  

Though I am sure at least a few attorneys who came to the bench with private practice experience had some exposure to criminal defense work, these stark numbers provide insight into why post-Blakely and post-Booker circuit jurisprudence has consistently tended to favor the government (until SCOTUS jumps in).  It also highlights why, though the public often believes that the criminal justice system tilts in favor of defendants, there can often be a practical tilt that runs in the other direction.

Some related old and new posts on judicial appointments:

• Is career diversity a bad thing in the highest court in the land?
• "The last thing the Supreme Court needs: Another judge"
• Reflections on the politics of SCOTUS and personhood of its members
• Insider myopia and the diverse benefits of a short bench
• Thinking creatively about different SCOTUS short lists
• Does SCOTUS need a trial judge?
• Developing a SCOTUS short list of district court judges
• Judging, politics, sentencing and elections
• Will the next SCOTUS nominee have any criminal law background?
• Brave New Justice and sentencing issues
• A modest(?) proposal for filling the bench from the ivory tower
• Urging President-elect Obama to elevate district judges to the circuit courts

Effective Stateline coverage of new Pew report

In addition to all the effective local media coverage (noted here and here) generated by Pew Center's big report titled "One in 31: The Long Reach of America Corrections," the folks at Stateline.org have this effective article on the report and on related state developments.  Here is a snippet on recent state reform efforts from the Stateline piece:

The Democratic governors of at least four states — Kentucky, New York, Virginia, Wisconsin — recently have sought to save tens of millions of dollars by reducing the amount of time some prisoners spend behind bars.

Other states have negotiated bipartisan agreements focused on preventing recidivism, a major cause of crowded prisons and rising costs.  According to federal statistics, more than half of those released from prison are back behind bars within three years.

The Pew study said Arizona, Kansas and Texas are states “already well under way” to improving their supervision of community-based offenders and working to reduce recidivism.  A new Arizona program, for instance, allows those on probation to trim their sentences by 20 days for each month they meet court-ordered conditions.

In addition, Stateline has this interesting related piece, titled "Govs’ Q & A: Rethinking prison time," that reports on comments about prison reforms from Kentucky Gov. Steve Beshear and Virginia Gov. Tim Kaine.

Could case on judicial bias standards impact criminal justice adjudication?

The Supreme Court heard argument today in the Caperton case involving judicial bias recusal and the constitutional safeguards of due process.  Though the case arises in a civil setting, some commentors on this blog thought the case could have significant criminal justice implications.  However, this report on the Caperton oral argument from SCOTUSblog suggests to me that any constitutional ruling in the case is going to be very narrow.

The full oral argument transcript is available now at this link.  I welcome post-argument comments from anyone who believes this case could still be a blockbuster with ripples into the criminal justice universe.

Eleventh Circuit upholds large upward variance to statutory maximum as reasonable

There are some appellate opinions that, though the analysis is lengthy, the start of the discussion provides a clear signal as to how the analysis is likely to come out.  The Eleventh Circuit's work today in US v. Shaw, No. 07-14693 (11th Cir. Mar. 3, 2009) (available here), is one of those opinions.  Here is how Shaw starts:

When Robert Shaw was thirteen years old he hurled a rock through a car windshield, sending shards of glass into his victim’s face.  Fifteen years later Shaw was speeding through Miami, with a cocked and loaded pistol and ski masks, on his way to burglarize a “drug hole.”  His rap sheet during the intervening years is long enough to require extra postage.  It shows 27 arrests involving 62 counts, and sentences totaling at least 105 months in spite of receiving one break after another from the system.  Indeed, from Shaw’s criminal record it seems as though he is determined to serve a life sentence, albeit on the installment plan.  The question this appeal presents is whether the current installment is a reasonable one.

Shaw, who pleaded guilty to being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1), contends that it was unreasonable for the district court to vary upward from the guideline range of 30 to 37 months and impose the statutory maximum of 120 months. More specifically, he complains that the district court relied solely on its own ideas of “how sentencing purposes could best be achieved” instead of giving due weight to each factor outlined in 18 U.S.C. § 3553(a), and that it failed to provide a “significant” justification for the variance.

Oregon editorial complaining about criminal justice priorities in budget cuts

The Oregonian has this notable new editorial, headlined "On public safety, Oregon loses its balance: Lawmakers close courthouses, block state trooper hiring and cut police training while protecting prison spending."  Here are excerpts:

Cutting beat cops and shutting down Oregon courts while insisting that inmates serve every last second of 70-month sentences doesn't seem like a promising public-safety strategy.

It isn't clear whether lawmakers and the powerful lobbies in Salem -- notably county prosecutors -- think these choices amount to good public safety, or just good politics. Whatever the rationale, it is discouraging how quickly and easily Oregon is moving to shutter its courts one day a week....

All these spending reductions [on courts and cops] may be inevitable at a time when the state budget is in a world of hurt, and legislators are cutting into bone. But Oregonians ought to understand what is going on: This state is making a policy decision to cut police officers, parole and probation and courts. But so far, corrections, in terms of inmate sentences, is off the table....

State Rep. Chip Shields has tried to draw the state's district attorneys and other top public safety officials into a discussion in Salem about how best to spread cuts among criminal justice priorities. Shields, D-Portland, and co-chairman of the Ways and Means Subcommittee on Public Safety, points to studies showing that putting more police on the streets is more effective at reducing crime than putting more people in prison.

Shields wants the state to explore ways to save more money in corrections. One way would be to expand what is known as "transitional leave," the final 30 days of an inmate's sentence. On any given day, about 900 inmates in Oregon are held on transitional leave. Shaving their prison time could save millions.

The state's very strong prison lobby will strongly attack this or any other effort to wring some savings out of the state prison system. But the people closest to Oregon's criminal justice system understand that it stands strong on three legs: police, courts and corrections. If Oregon persists in whacking away at just two of them, the whole thing might just topple over.

Some recent related posts on the modern economics of incarceration nation:

• Pew Center releases new report on scope of criminal justice control in US
• The state of cost problems in the states of prison nation
• How many states are being forced by economic realities to consider releasing prisoners?
• My latest (academic?) musings about progressive punishment perspectives
• Will we invest in classrooms or cells in these tough times?
• Effective op-ed about dealing with prison costs coming due
• Wisconsin Governor proposing early prison releases in state budget
• An Ohio example of how the prison economy budget can mix up the usual political rhetoric

Split Sixth Circuit ruling breaks new ground in federal guidelines masturbation jurisprudence

Faithful readers might recall this post from a few years ago discussing the case of a Florida jail inmate convicted of indecent exposure after a guard complained that he had masturbated in his cell.  I raise this bit of blog history because today brings a new Sixth Circuit case, US v. Shafer, No. 07-2574 (6th Cir. March 3, 2009) (available here), in which a split panel discusses at some length a novel federal sentencing issue:

Shafer contends that the district court erred when it imposed the two-level enhancement pursuant to § 2G2.1(b)(2)(A) because: (1) “sexual contact” does not include self-masturbation and (2) Shafer did not commit any “sexual contact” that can be considered “relevant conduct” for purposes of the enhancement.  Although we disagree with Shafer’s assertion that “sexual contact” does not include self-masturbation, we conclude that the district court’s imposition of an enhancement under § 2G2.1(b)(2)(A) cannot be supported by either theory advanced by the district court....

Shafer contends that the term “sexual contact” does not include selfmasturbation.  Neither party provided the court with any caselaw addressing whether self-masturbation is covered by 18 U.S.C. § 2246(3)’s definition of “sexual contact.”  We also were unable to locate such a case in any circuit.  Thus, this issue of statutory interpretation appears to be a question of first impression.

Though the underlying facts in Shafer should prevent anyone from turning this case into a tawdry joke, I cannot help being a bit amused that the federal sentencing guidelines have now helped engender a federal masturbation sentencing jurisprudence.

Still awaiting some hope and change on the clemency front

President Obama is about to begin his sixth week in office still without having made any use of his clemency powers.  P.S. Ruckman in this post notes that this means the new guy "is already among the slowest presidents to tend to this constitutional duty."  As Ruckman notes, the vast majority of Presidents have used their clemency power within their first month in office.

As I have said before and as I will surely say again, the failure of modern presidents to use their clemency power actively is especially troubling because the federal criminal justice system in now so much larger than during any other period in American history.  Especially in light of the potent new Pew Center report documenting the scope and costs of modern criminal justice control throughout the United States (details here and here), it would be especially valuable and important for President Obama to get moving with at least a few symbolic clemencies to back up his oft-stated commitment to hope and change.

Some recent related posts:

• Is it too early to start demanding President Obama use his clemency power?
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• Washington Post urges Prez Obama to do better on clemency
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• Another public and potent call to reinvigorate the pardon power
• Inaugural rhetoric about freedom and liberty in prison nation
• Taking stock of President George W. Bush's clemency record
• What might 2009 have in store for . . . executive clemency? 

Effective press coverage of effective messages in new Pew report

As noted here, the Pew Center on the States today released an important new report on criminal justice control in America titled "One in 31: The Long Reach of America Corrections."  Among the virtues of the new Pew report is its emphasis on key comparative spending numbers and its state-by-state accounting of criminal justice control numbers, which in turn makes it easy for the press to provide effective stories about the report.

For example, the New York Times has this coverage of the Pew report headlined "Prison Spending Outpaces All but Medicaid."  This kind of coverage should help everyone understand why prison spending and criminal justice reform issues must be high on everyone's agenda in these lean times.  And, thanks to the state-by-state data, there are already too many local stories about the new Pew report to read.  here are links to a few of the local stories that caught my eye:

• Louisiana's incarceration rate is No. 1 in nation
• Miss. corrections rate 2nd highest in nation
• Study: 1 in 25 adult Ohioans in prison, on parole or probation
• 1 in 30 Washingtonians is in Jail or on Parole
• Study: Fewer adults jailed in RI than in most states
• Study: Mass. fifth in nation for adults in prison, probation or parole

Looks like DNA access debate has the Justices back in their typecast roles

The resolution of little complicated criminal justice issues, especially concerning jury trial right or statutory interpretation, have a way of producing surprising and unusual combinations of Justices.  But, when the death penalty or other high-profile criminal justice issues come to SCOTUS, the players all tend to assume their typecast left/right roles.  Today's arguments concerning prisoner access to DNA evidence, according to this AP account, seem to fit into the old mold:

On the one hand, the court's four liberal justices seemed to be in general agreement that prosecutors should open their evidence lockers when they contain genetic material that could reveal whether someone has been wrongly imprisoned. The numbers wouldn't be very large, Justice John Paul Stevens said.

On the other hand, the four conservatives were wary of deciding to allow DNA testing so broadly that "it appears that the prisoner is gaming the system," as Justice Samuel Alito said.  Convicts who pass up the chance to have genetic testing done at trial or who do not declare under oath that they are innocent could fall within Alito's description....

In the middle, as he often is, was Justice Anthony Kennedy.  Kennedy seemed willing to accept that any right to a DNA test would have to follow a claim of innocence, made under penalty of perjury. Yet he also was frustrated by the refusal of Assistant Alaska Attorney General Kenneth Rosenstein to say that Osborne could get what he wants if he swears to his innocence.

The full oral argument transcript for this case, District Attorney’s Office for the Third Judicial District, et al. v. Osborne, is available at this link.

Change comes to medical marijuana raids and to the federal death penalty

I have been awaiting not too patiently for all the hope and change that was promised by the new administration to find its way to the federal criminal justice system.  In recent days, Attorney General Eric Holder has started walking the walk rather than just talking the talk:

1.  As detailed in this MSNBC piece, late last week AG Holder officially stated that the Drug Enforcement Administration would end federal raids on state-approved medical marijuana dispensaries.  This is big news for supporters of medical marijuana, and could be the first step toward a strategic withdrawl from the worst battlefields in the war on drugs.

2.  As detailed in this new piece from The Recorder, just today AG Holder "has authorized a deal that could abruptly end a rare San Francisco death penalty trial only days after it began."  The piece rights notes the broad implications of this decision: "Not only does Holder's reversal likely spare defendant Emile Fort his life, but it may signal a less aggressive approach to the death penalty in federal court."

CNN now talking about the costs of the death penalty and state reforms

Continuing the trend of MSM outlets looking at capital punishment reform in tough times, CNN has this new piece headlined "Budget concerns force states to reconsider the death penalty."  Here are excerpts:

Anti-death-penalty groups say longer jury selection, extra expert witnesses, jury consultants and an extended penalty phase tend to make death penalty trials more costly than non-death-penalty cases.  Extra safeguards in place to ensure a fair verdict, including additional investigators and defense attorneys certified to handle death cases, who spend more time researching and litigating the case, also drive up costs.

A 2008 study by the Urban Institute, an economic and social policy research group based in Maryland, found that an average capital murder trial in the state resulting in a death sentence costs about $3 million, or $1.9 million more than a case where the death penalty is not sought.  A similar 2008 study by the ACLU in Northern California found that a death-penalty trial costs about $1.1 million more than a non-death-penalty trial in California....

Kansas, New Mexico and Colorado, among the states where legislators are seeking to get rid of the death penalty, have carried out few or no executions since the U.S. Supreme Court reinstated capital punishment in 1976.  On the other hand, Texas, Georgia and Virginia, which consistently lead the nation in executions each year, show no signs of changing course....

Harris County District Attorney Pat Lykos intends to proceed with 194 pending death penalty cases she has on the books.  "We will spare no expense.  We will go after them.  Justice has no price tag," Lykos said.  "We want to be as cost-effective as possible without compromising the administration of justice and public safety."

Nonetheless, budget concerns in those states still hamper some efforts to seek the death penalty. In Georgia, where Gov. Sonny Perdue has ordered all government agencies to trim their budgets by 6 percent, Jamie Ryan Weis, on trial for murder, has been sitting in a jail without a lawyer for more than a year. 

Disappointingly, this new CNN piece does not mention Criminal Justice Legal Foundation's recent study (discussed here) suggesting that the death penalty's savings through plea bargaining may compensate for its extra costs for those cases that go to trial.  The reality, as everyone knows, is that justice always comes with a price tag, but very few persons working in the criminal justice system (none of whom are really subject to market-based constraints) ever want or need to worry directly about the price tag or even care to see if agenda-driven estimates of the price tag by certain public policy groups are accurate.

Some recent related posts about death penalty costs:

• Great new (though still dated) examination of the death penalty and plea bargaining
• States considering laying off the death penalty during tough economic times
• The economic case against the death penalty getting more and more attention
• More discussion of cost concerns in debates over the death penalty
• Death penalty abolition becoming more realistic in a few western states
• Interesting time for Time's discussion of death's demise
• DPIC releases year-end report on state of death penalty in 2008
• What might 2009 have in store for . . . the death penalty in the US?

Pew Center releases new report on scope of criminal justice control in US

This morning the Pew Center on the States released a follow-up report to last year's “One in 100: Behind Bars in America” (blogged here).  This year's report on criminal justice control in America, which can be accessed at this link, is titled "One in 31: The Long Reach of America Corrections."

This latest Pew report expands the scope of its prior analysis beyond incarceration statistics to include criminal justice control in the form of probation and parole.  The report discusses the relative costs of imprisonment and community supervision and the impact of incarceration on crime, and it seeks to provide a framework for states to achieve better public safety returns on taxpayer investments.  This AP coverage provides the basic highlights from the report:

The number of offenders on parole and probation across the United States has surged past 5 million, complicating the challenges for fiscally ailing states as they try to curb corrections costs without jeopardizing public safety, according to a new report.

The Pew Center on the States report, released Monday, says the number of people on probation or parole nearly doubled to more than 5 million between 1982 and 2007.  Including jail and prison inmates, the total population of the U.S. corrections system now exceeds 7.3 million — one of every 31 U.S. adults, it said.

The report also noted huge discrepancies among the states in regard to the total corrections population — one of every 13 adults in Georgia and one of every 18 in Idaho at one end of the scale, one of every 88 in New Hampshire at the other extreme.  The racial gap also was stark — one of every 11 black adults is under correctional supervision, one of every 27 Hispanic adults, one of every 45 white adults.

Might sex offender (and former federal judge) Samuel Kent possibly avoid all jail time?

Thanks to law.com, everyone can access this terrific new piece from the Texas Lawyer, headlined "What's Next for Samuel Kent in Wake of Guilty Plea?".  Though many parts of the article might merit commentary, this passage discussing Kent's sentencing prospects really got my attention:

Three criminal defense lawyers say that Kent most likely will receive at least some prison time. "Lying to Congress, lying to a judge, lying to the 5th Circuit, lying to the FBI -- they're all serious obstruction charges," says Mike Uhl, a former federal prosecutor who is now a partner in Dallas' Fitzpatrick Hagood Smith & Uhl.  "I'll be surprised if he gets straight probation."

A look at the federal sentencing guidelines seems to indicate why Kent took a plea deal: It was the only chance he had at avoiding a lengthy prison sentence, Orwig says.  If a jury had convicted Kent of obstruction "then he's looking at 15 to 20 months" minimum in prison, Orwig says.  If he pleads and accepts responsibility, he's eligible for a federal sentencing guidelines reduction, putting Kent in range for a "split sentence" that would allow him to serve half of his sentence in alternative incarceration such as home confinement or a halfway house.

But Marlo P. Cadeddu of Dallas' Law Office of Marlo P. Cadeddu, who is an expert on federal sentencing issues, says there's a chance Kent could avoid prison.  To do so, Kent would have to request that Vinson depart from the federal sentencing guidelines and give him an additional two-level sentence reduction beyond what is contemplated in the plea agreement.  Kent could ask Vinson for a guideline departure on the ground his safety would be threatened in prison because he has sentenced thousands of criminals.

However Vinson may not want to give Kent a sentence he wouldn't give to someone who wasn't a federal judge who committed a similar crime. "They don't want it to look like he's getting a benefit that a regular person wouldn't get," Cadeddu says.

Am I the only one who feels that, in light of Kent's admission to repeated non-consensual sexual contact with his employees, it is problematic that one might work through the 3553(a) sentencing factors and still conclude "there's a chance Kent could avoid prison"?  Kent's sex offenses have to be relevant conduct in his obstruction crime, and that fact should take non-prison sentences off the table. 

As I indicated in my first post on this case, Kent already seems to be getting a huge break based on the fact that the feds were willing to accept a plea to just an obstruction charge and were willing to promise not to seek a sentence of more than three years in prison.  Given all of Kent's admitted criminal conduct and the serious harms to the victims of his conduct, I think the 3553(a) sentencing factors have to call for some prison time for Kent.  Indeed, given how tough sentencing has become for state and federal sex offenders, Kent should consider himself very lucky that he may be only looking at years rather than decades for his various crimes.

Related posts on the Kent proceedings:

• Judge Kent takes a deal (and now becomes the latest, greatest topic for sentencing debate)
• "Is Kent getting off easy?"
• More questions and fall-out following Judge Kent's guilty plea
• Latest notable news surrounding former judge (now felon) Samuel Kent

Might prosecutors keep New York from finally "dropping the rock"?

The New York Times yesterday had this long piece, headlined  "Legislation to Overhaul Rockefeller Drug Laws Moves Ahead Swiftly," which discusses the history of New York's mandatory drug sentencing laws, as well as current reform efforts.  Here are one notable excerpt:

As lawmakers debate changing the drug laws in the weeks ahead, restoring judicial discretion will be one of the thorniest issues in the discussions.  The Assembly speaker, Sheldon Silver, said he thinks any plan that does not give judges authority to send drug offenders to treatment is doomed to fail.

“I think any bill that doesn’t provide that diversion option is really not something that’s significant reform, plain and simple,” Mr. Silver said in an interview. “There is nothing else at this point that would be meaningful in terms of reform.”

But the idea of restoring full judicial discretion is troubling to many prosecutors, who in a vast majority of drug crimes must give consent before a suspect is ordered to a treatment program.

“The district attorney’s input would be taken out of the equation,” said Bridget G. Brennan, the special narcotics prosecutor for New York City. “When I look at cases, I want to have the discretion as gatekeeper, to make sure that somebody I put back out in the community is not going to pose a public safety threat. A district attorney has a much clearer picture of a community’s concerns.” But under the plans favored by the governor, the Assembly and the Senate, prosecutors would lose that veto power.

This excerpt provides an effective window into why prosecutors tend to be fans of mandatory sentencing laws.  Prosecutors rarely believe that any and all persons who commit a certain type of offense should be subject to the same mandatory sentencing term, rather they just appreciate being the initial and chief decision-maker concerning whether and when a particular offender should be able to avoid a sentencing mandate.  Having that power in prosecutorial hands typically makes it much easier for prosecutors to secure cooperation and plea agreements on terms prosecutors find favorable.

Two terrific accounts of prosecutorial discretion in California capital cases

The week in my sentencing class I was stressing that the profound impact and import of prosecutorial discretion in capital cases is rarely discussed and even more rarely criticized.  Then, as if on cue, I find in this weekend's papers these two terrific accounts of prosecutorial discretion in capital cases in California.

First, consider from the (Eureka) Times-Standard here comes "Death penalty: a DA's decision." Here are a few excerpts from a fascinating article:

When it comes to the death penalty in the state of California, there just isn't much consistency. ”It's like a patchwork quilt,” said Elisabeth Semel, a clinical professor of law at U.C. Berkeley who directs the school's death penalty clinic. “Someone once said, 'California has 58 counties and 58 death penalties,' and that's a very apt statement.”

Humboldt County District Attorney Paul Gallegos continues to consider whether to pursue capital punishment in the case of the Feb. 6 stabbing death of Andrew Pease, highlighting the discretion prosecutors are entrusted with in these cases. Some say that discretion leads to an unequal application of the law, but others counter it allows local officials to apply the law in a way that is in tune with the local community....

Gallegos said his office has no written policy as to when to pursue the death penalty, but that he has a procedure in place for making the decision.... ”Everyone will individually reach their own opinion,” Gallegos said, “then we will get together and discuss it.” Gallegos said his senior attorneys will then take a vote. If there's not a unanimous decision among his attorneys to pursue capital punishment, Gallegos said it's unlikely he would opt to pursue it.

Second, consider from the San Francisco Chronicle herecomes "S.F. grapples with 1st death trials in years."  Here are a few excerpts from the start of this fascinating article:

For the first time since 1948, lives are at stake in a San Francisco federal courtroom.  Two alleged gang members went on trial before separate juries last week, each accused of three murders as part of a racketeering enterprise to control local drug trafficking. The Justice Department is seeking the death penalty for both defendants, in one case over the objections of the U.S. attorney's office, which had agreed on a 40-year prison sentence.

They are the first two federal death penalty trials in California's Northern District, based in San Francisco, since two Alcatraz inmates were convicted, sentenced to death and executed in the San Quentin gas chamber in 1948 for an escape attempt two years earlier in which two guards and three prisoners were killed.

They're also the first life-or-death trials of any kind in San Francisco since 1991, when a convicted murderer was sentenced to death in Superior Court. That man, Clifford Bolden, is the only San Franciscan among 680 condemned prisoners in California.  District Attorney Kamala Harris and her predecessor, Terence Hallinan, have refused to seek the death penalty.

The Bush administration, on the other hand, believed the federal death penalty law should be enforced uniformly nationwide, regardless of local policies.  President George W. Bush's attorneys general often sought death sentences in states without their own capital punishment laws.

Though many have been critical of the tendency of Bush Administration AG's to over-rule local federal prosecutorial judgments about whether to pursue capital charges, I am inclined to be more critical of state DA's who categorically refuse to enforce an aspect of state law.  But I sense I am a rare commentor who is just as concerned about (lawless?) discretionary decisions by prosecutors not to seek death sentences as about their (lawless?) discretionary decisions to seek death sentences.

Seeking "review" of sentence imposed on mom who battered sex offender

This ABC News account of the state sentence given to a mom who battered a sex offender with a baseball bat has me thinking hard about what kind of sentence I might have given to the defendant in the case.  The ABC News story is headlined " Mother Who Beat Sex Offender: 'I'd Do It Again': Tacoma Woman Sentenced to Three Months in Jail for the Attack," and here are the details of the crime and punishment that got me to thinking:

Was Tammy Gibson protecting her young daughter or just beating up a neighbor, unprovoked?  Either way, she will now spend three months behind bars for taking a baseball bat to a sex offender last summer who was talking with her daughter.

Gibson said she has no remorse for the June 19 assault but pleaded no contest Friday to assault charges. She could have received as much as eight months in jail, but the judge sentenced her to three. "No, I'd do it again if not better," she told ABC News Seattle affiliate KOMO-TV. "I don't care if it hurts me, I don't regret it. It got him away from my kids and all the other kids in the neighborhood."

According to police documents, Level-3 sex offender William A. Baldwin had moved into his uncle's home in Tacoma in early June. Following his move, county deputies distributed flyers around the neighborhood to alert residents of his presence. On June 19, Gibson went to the house in the trailer park and asked for Baldwin.  When Baldwin stepped outside, she claimed she was going to kill him because Baldwin had molested her children. Gibson then proceeded to hit Baldwin repeatedly with her bat, the document said, leaving him with an injured arm. "I kept swingin' and swingin', and swingin'," Gibson told investigators.

Contrary to what she had said to Baldwin, Gibson later told investigators Baldwin had not molested her children. But she did say that she recognized Baldwin from the flyer as the man who had chatted up her then-10-year-old daughter during the previous summer.  Baldwin is the memorable height of 7 feet, 3 inches tall. "For him to be right there, in front of my house and talking to my child -- made me crazy," she told KOMO. "And I told him I thought he was a piece of crap and I smacked him," she added. "I just didn't stop hitting him. I just told him that 'if it were up to me, I'd kill ya."'... 

The daughter she was protecting was in tears during the sentencing on Friday. "He tried to give me fireworks and I wouldn't take it," the girl, Renee Maria Perez, said of Baldwin. Gibson's other daughter, Rachael Porter, added, "I think it's crap; that she was protecting her kids like she should have been. They locked her up for way too long."

Gibson said she hoped that the attention created by her case would lead to a change in the laws regarding released sex offenders. "I would hope that me doing this and going to jail would change something, change some kind of law, change something where people like him can't be standing around little kids you know what I mean?"  Gibson said in her interview with KOMO-TV. "It's not right, it's not fair to the kids at all."

Because the defendant here shows no remorse for her vigilantism and seem eager to champion the right of this kind of violent behavior, I am more than a bit concerned that a three-month jail term is not a truly effective or sensible sentence.  In my view, this case calls out for some kind of alternative sentencing/shaming scheme in which the defendant can be educated more fully about the reality of sex offending and existing sex offender laws and also have an opportunity to reflect on the risks to society if every individual citizen feels justified to act on their fears in violent ways.

I am very sympathetic to the concerns of parents who are eager to protect their kids from serious threats (this is why, for example, I am a vocal advocate for tougher drunk-driving sentences and a big supporter of the work of groups like MADD).  But there is every reason to think that modern sex offender laws (including national registration and notification requirements) already do a pretty good job empowering parents to deal with real risks in responsible law-abiding ways.  And, especially since I surely make my students crazy all the time in class, I am worried about a world in which persons feel justified violently attacking anyone who "makes them crazy" without first seeking to employ more socially valuable ways to express their concerns and fears.

UPDATE:  Scott over at Simple Justice has lots of deep thoughts about this case in this long post.

Big interesting SCOTUS argument week ahead

Though few of the cases to be argued this week before the Supreme Court are certain criminal justice blockbusters, the entire week is filled with interesting and challenging cases that defy easy answers (and thus do not obviously turn on one particular swing Justice).  Here, in the order they are to be argued and with text/links from SCOTUSwiki, are the cases I will be watching closely:

March 2

1. District Attorney's Office for the Third Judicial District, et al. v. Osborne (08-6) - Defendant's access to biological evidence

March 3

1. Caperton v. A.T. Massey Coal Company, Inc., et al. (08-22) - Judge's campaign donations

March 4

1. Abuelhawa v. United States (08-192) - [reach of federal felony drug crime offense]
2. Dean v. United States (08-5274) - Accidental firearm discharge; sentencing enhancement

I could develop various arguments for why a broad opinion in any of these cases could end up having a big impact on the operation of criminal justice systems.  But I also expect that there will be narrow rulings from the Court in all of these cases.  So, sentencing fans, I would be grateful for comments about which of these cases seem most likely to be most consequential in a Term that has been pretty sleepy to date.