Sentencing Law and Policy

Seeking help and input from would-be "Bookerologists"

As all sports fans know, this is the time of year in which so-called "bracketology" becomes the key to fame and happiness, and in which so-called "bracketologists" can shine as a result of their ability to sort through obscure data about college basketball teams to assess the past and predict the future.  With this spirit in mind, I want to encourage sentencing fans to consider getting interested in "Bookerology" and put out this call for help and input from would-be "Bookerologists."

Specifically, with the US Sentencing Commission's recent release of all its 2008 federal sentencing statistics (details here), I would like folks to help me  sort through obscure data about federal sentencing patterns to assess the Booker past and predict the post-Booker future.  In other words, I am eager and would be grateful for folks to use the comments or send me e-mail with analyses of what the 2008 federal sentencing data really tells us about what is really going on (and what should be going on) in modern federal sentencing.

Fourth Circuit reverses set of federal convictions under SORNA

A split Fourth Circuit panel this afternoon reversed a set of convictions under the federal sex offender registration laws.  The majority opinion in US v. Hatcher, No. 07-4839 (4th Cir. March 13, 2009) (available here), starts this way:

In these consolidated appeals, William T. Hatcher, Richard Dean Hinen, Gregory V. Roberts, and John Edward Sawn appeal their convictions. Each of the Appellants was convicted of knowingly failing to register or update their registration as required by the Sex Offender Registration and Notification Act ("SORNA"), in violation of 18 U.S.C. § 2250(a) (2006).  The Appellants argue that SORNA is unconstitutional because it is not a valid exercise of congressional authority and because it violates the non-delegation doctrine, the Ex Post Facto Clause, and the Due Process Clause of the Fifth Amendment.  However, we need not reach these constitutional questions because we find that, as a matter of statutory interpretation, SORNA’s registration requirements did not apply to the Appellants at the time they committed the acts giving rise to their indictments. Therefore, we must reverse the convictions and vacate the sentences imposed in connection with those convictions.

New Mexico legislature votes to repeal death penalty

As detailed in this AP story, New Mexico may be on the verge of getting rid of capital punishment:

The state legislature voted today to repeal the death penalty, meaning New Mexico could become the 15th US state not to have capital punishment if the governor signs the bill into law. Governor Bill Richardson has opposed a repeal in the past, but now says he would consider signing it. "I haven't made a final decision," the governor said this week.

The state senate voted 24-18 today in favour of the bill, which replaces capital punishment with a sentence of life without parole.  The house approved it a month ago.

New Mexico, one of 36 states with capital punishment, has two men on death row whose sentences would not be affected by repeal.  The state has executed one man since 1960, convicted child killer Terry Clark in 2001.

I find a bit peculiar the reporting that the two men on New Mexico's death row would not be affected by repeal.  I would be surprised to see New Mexico official go forward with execution plans for these two capital defendants if Governor Richardson signs the repeal bill.  But I suppose it is possible (and constitutionally permissible) for the state to seek to carry out these older death sentences after a new repeal.

A (too?) forceful assertion of the reverse-Marshall hypothesis

I have been talking to my students about the so-called "Marshall hypothesis," which is an interesting claim about public opinion on the death penalty (and raises great issues of constitutional theory).  The "Marshall hypothesis" is a reference to the opinion of Justice Thurgood Marshall in Furman, where he relied on democratic principles when voting for judicial abolition of the death penalty because he hypothesized that a fully informed electorate would reject capital punishment (see 408 U.S. 238, 360-63, and here and here for more on the "Marshall hypothesis").

I just noticed this new articleon SSRN, which articulates what might be deemed the "reverse-Marshall hypothesis."  This piece asserts (in quite heated terms) that the public would support capital punishment even more if they really knew all the facts about murderers, victims and the limits placed on capital punishment by the Supreme Court.  This piece's introduction states: "If the public were well informed of case facts and arrogantly imposed disingenuous legal absurdities, abolition would fail."

This provocative article is titled "Fact Suppression and the Subversion of Capital Punishment: What Death Penalty Foes on the Supreme Court and in the Media Do Not Want the Public to Know," and here is the abstract: 

The U.S. Supreme Court and other courts, aided by the media in suppressing critical information about case facts and case law, have all but abolished capital punishment, turning what's left into a costly and agonizing farce.  While pretending to superlative morality, dishonesty, especially half-truth, is central to their cause.  An egregious example was Roger Coleman, widely but with knowing falsity portrayed as a choir boy executed because heartless judges impatiently refused to hear evidence of his innocence. Going further, in myriad cases, death sentences are reversed or banned when guilt is not even disputed.  This is achieved by focusing upon the alleged plight of brutal murderers, while callously withholding compassion, information and even thought about the massive suffering they inflict upon innocent law-abiding victims.

Yet, the public still supports the death penalty with little understanding of the true reasons why it is so rarely enforced.  Abolition would fail if the people were well informed of case facts and arrogantly imposed disingenuous legal absurdities, not the least of which is a Supreme Court majority's ipse dixit that the Constitution gives them the right and power to decide if democratically determined criminal penalties are unacceptable and to reject them.  Other absurdities, wholly unrelated to innocence, concocted by judges who aver lack of confidence in decent jurors and the superiority of their own independent judgment include:

A murderer should have a serious chance to succeed with the argument that he would not pose a future threat to society if sentenced to life without parole because he was only dangerous to old ladies.  A man can be mentally retarded, yet carefully plan rape and murder calculated to avoid return to prison. Because it is indecent and uncivilized to expect a nearly 18-year-old person to appreciate the wrongfulness of premeditated torture-murder and joyfully boasting about it, he must be allowed to attain a mature understanding of his own humanity.  A murderer under 18 is a juvenile, a boy, but a victim of 16 is an adult woman.  When a 300-pound man rapes an 8-year-old girl, requiring surgery, this is inadequate moral depravity; so his dignity must be respected to allow him to understand the enormity of his offense, one not enormous enough to justify execution. It is not clear that a rapist really intends to kill a victim he stabs 53 times, including 18 in the genital area.  One cannot be expected to foresee new murders when he merely smuggles a gun-filled chest into a prison to help two convicted murderers escape, one serving a life sentence for murdering a guard during a prior escape.  In aggregate, the depraved should be rewarded with reduced punishment because their numbers have increased.  For individuals, increased depravity qualifies one for a court-created purported constitutional right to commit more without punishment. Rape under threat of death, three weeks after giving birth, is not harmful.  Trial judges must mislead juries to save the lives of convicted murderers.

All this is the result of unelected justices imposing, less than honestly, their own unpopular moral values upon the citizenry, raising doubt whether the Supreme Court merits continued respect and legitimacy. This is not a matter solely for legal experts.  The death penalty debate should confront the public with critical facts and questions to decide if foes deserve the high ground they claim in what they deem a moral issue.

As this abstract suggests, some may view this piece as a screed against certain recent Supreme Court opinions and the work of the media and death penalty abolitionists.  (Kent at C&C has this assessment of this paper: the "points appear to be valid, if expressed in a somewhat overheated style.")  Screed or not, I suspect that this article may provoke the usual capital case commentors and others to respond to what I am calling the author's "reverse-Marshall hypothesis."

US Sentencing Commission releases 2008 Annual Report and Sourcebook

Though this weekend I likely will have a severe case of March Madness with lots of thinking about RPI data, the US Sentencing Commission has just released a set of materials on its website that would also enable me to have a severe case of Guidelines madness with lots of thinking about sentencing data.  Specifically, here's what now available for download from the USSC's website:

2008 Annual Report and Sourcebook: The 2008 Annual Report presents an overview of major Commission activities and accomplishments for fiscal year 2008.  See the Commission's 2008 Sourcebook of Federal Sentencing Statistics for descriptive figures, tables, and charts, and selected district, circuit, and national sentencing data.

The specifics of criminal justice in the Obama Administration still coming into focus

As detailed in this New York Times article, the Senate yesterday confirmed (with a little controversy over porn) two key Obama appointment for the Department of Justice:

The Senate confirmed David W. Ogden as deputy attorney general on Thursday, by a vote of 65 to 28, after an often testy debate between Republicans and Democrats that dipped in and out of discussions of pornography....

When Mr. Ogden, who served in the Justice Department in the Clinton administration, was in private practice, he represented Playboy magazine as well as librarians opposed to software mandated by Congress that filters Internet content.... [Some] senators contended that his representation of Playboy and the librarians amounted to a “predilection” toward views sympathetic to them, despite his assertions that he found child pornography abhorrent.

Another Justice Department nominee, Thomas J. Perrelli, faced a smoother path to confirmation, receiving approval by a vote of 72 to 20.  Mr. Perrelli will assume the No. 3 position in the department, as associate attorney general.

Meanwhile, as this new Washington Post article details, who will be making the chief local calls about justice issues during the Obama Administration remains sketchy.  The Post piece is headlined "How Obama Will Handle U.S. Attorney Posts Still Unclear," and here are excerpts:

One of the better spoils of winning the presidency is the power to appoint nearly 100 top prosecutors across the country. But filling the plum jobs has become a test of competing priorities for President Obama. While he pledged bipartisanship during his campaign, replacing the cadre of mostly conservative U.S. attorneys would signal a new direction....

Obama has not made clear how he will build his own corps of prosecutors, a group that shapes an administration's approach to law enforcement and is critical to its smooth operation. U.S. attorneys' offices handled more than 100,000 criminal cases and recovered $1.3 billion in forfeited cash and property in the past fiscal year, according to a prosecutors' trade group.

The White House is under pressure from several fronts, both to appoint new prosecutors favored by members of Congress and, in other cases, to keep some U.S. attorneys from the Bush administration....

Advisers to Obama say they have learned from past mistakes, including Clinton's decision to require all U.S. attorneys to submit their resignations.

As I have suggested in some previous posts, these appointments to Main Justice and the approach taken to the appointment of US Attorneys likely will have a profound impact on the nature and direction of federal criminal justice law and policy over the next few years.  Especially since neither President Obama or AG Holder seems likely to make federal criminal justice reform a top policy priority, the main deputies at DOJ and the line USAs will decide, both formally and informally, set federal criminal justice priorities in the months and years ahead.

Some related posts:

• How a new administration is likely to impact federal sentencing practice
• Why federal sentencing reformers must focus on the USSC and lower courts
• Interesting reflections on Obama appointees from drug policy reformers
• Will AG Holder really lead a "new birth of freedom" in prison nation?
• More evidence Obama's DOJ is just not that into change in the criminal justice arena
• Lots of big (though really little) congressional sentencing activity

Split Fourth Circuit ruling upholding above-guideline sentence shows another circuit struggling with reasonableness review

The Fourth Circuit today through its decision in US v. Heath, No. 07-4715 (4th Cir. March 12, 2009) (available here), provides yet another example (like yesterday's opinions from the Ninth Circuit) of circuit judges struggling to give meaning and content to substantive reasonableness review after Gall.  Here is how the majority opinion in Heath starts:

Toby Franklin Heath pleaded guilty to interfering with commerce by robbery, in violation of 18 U.S.C.A. § 1951 (West 2000) ("Count One"), and possessing a firearm after being convicted of a felony in violation of 18 U.S.C.A. § 922(g)(1) (West 2000 & Supp. 2007) ("Count Two").  The district court sentenced him to a 240-month prison term for Count One, approximately double the Guidelines’ advisory range of 100-125 months, and a concurrent 120-month prison term for Count Two.  On appeal, Heath argues that the district court failed to adequately explain its reasons for making the upward departure in Count One. We placed Heath’s case in abeyance pending the Supreme Court’s decision in Gall v. United States, 128 S. Ct. 586 (2007) and now affirm.

Here is are some passages from Judge Gregory's dissent that show the basic struggle these reasonableness cases are presenting in the wake of Gall:

I have already expounded upon my views of Gall in United States v. Evans, 526 F.3d 155, 167 (4th Cir. 2008) (Gregory, J., concurring).  But the facts of this case compel me to reiterate my position that substantive reasonableness must encompass more than the rote recitation of § 3553(a) factors that the Court has condoned in numerous post-Gall cases, and which it continues to condone today....

The district court failed to articulate a sufficient justification for imposing the statutory maximum upon Heath, and my independent review of the record finds it similarly devoid of any such justification. Therefore, I believe Heath’s sentence to be both procedurally and substantively unreasonable, respectively.... The rigor with which we assessed reasonableness in finding a floor for downward departures must necessarily be applied in finding a ceiling for upward departures. Therefore, given the record in this case, I must conclude that if Heath’s circumstances are so compelling as to warrant a 92% upward departure to the statutory maximum, it is difficult to imagine any meaningful limit on the discretion of the district court.

Admittedly, the Supreme Court has not provided us with further guidance on these undoubtedly important sentencing issues. But a close reading of Gall reveals careful distinctions that logic and justice cannot ignore — yet, the majority does so today.  With all due respect to my colleagues, I cannot join their opinion.  Therefore, I dissent.

Sidebar discussion of "The Subjective Experience of Punishment"

In prior posts here and here, I highlighted Adam Kolber's interesting article, titled "The Subjective Experience of Punishment," which was published by the Columbia Law Review.   I am pleased to report that today the Columbia Law Review published on it Sidebar these two interesting responses to Professor Kolber's piece:

• Kenneth W. Simons, Retributivists Need Not and Should Not Endorse the Subjectivist Account of Punishment, 109 Colum. L. Rev. Sidebar 1 (2009) (available here). 

• Miriam H. Baer, Evaluating the Consequences of Calibrated Sentencing: A Response to Professor Kolber, 109 Colum. L. Rev. Sidebar 11 (2009) (available here).

Bernie Madoff finally pulls "Go Directly To Jail" card after all his money games

As detailed in this new AP report, after his guilty plea Bernie Madoff "was led out of court with his hands cuffed behind his back" because "U.S. District Judge Denny Chin denied bail for Madoff, 70, and ordered him to jail, noting that he had the means to flee and an incentive to do so because of his age."  Here are a few more notable details from today's court action:

After arguments began as to whether Madoff should remain free on bail, his lawyer Ira Sorkin described the bail conditions and how Madoff had, "at his wife's own expense," paid for private security at his $7 million penthouse.

Loud laughter erupted among some of the more than 100 spectators crammed into the large courtroom on the 24th floor of the federal courthouse in lower Manhattan. The judge warned the spectators to remain silent.

This updated Bloomberg reportprovides more details and background and also reports that Madoff's official sentencing is now scheduled for June 16.  Also, Jeralyn at TalkLeft has this updating post with lots of effective coverage and links.

Some related Madoff posts:

• Lots of media buzzing around Bernie Madoff's day in court
• Basic Madoff plea details emerging
• "Where's the Bone for Bernie Madoff?"
• Running the federal sentencing guideline numbers for Bernie Madoff
• A victim's perspective on a possible plea deal for Bernie Madoff
• "Madoff Mercy: How long should the Ponzi schemer go to prison for?"
• "Death penalty for white-collar criminals?"

UPDATE:  Here, thanks to the AP, is the "text of Bernard Madoff's prepared plea allocution statement, delivered Thursday in U.S. District Court in New York."

Two different Posnerian views of federal prosecutorial behavior

The Seventh Circuit handed down a set of interesting criminal law opinions today, and two different panel opinions (both of which are authored by Judge Richard Posner) provide two quite different perspectives on the modern work of federal prosecutors and judicial responses thereto.

First, consider US v. Farinella, No. 08-1839 (7th Cir. March 12, 2009) (available here), in which the panel reverses a conviction for misbranding food for insufficient evidence.  In so doing, Judge Posner delivers these and other sharp comments about the work of federal prosecutors:

But since there was insufficient evidence, why did the jury convict? Perhaps because of a series of improper statements by prosecutor... [and] additional improprieties, not acknowledged and for the most part not even discussed by the government in its brief....

We asked the government’s lawyer at argument what an appropriate sanction for the prosecutor’s misconduct might be ... [given] the gravity of the prosecutor’s misconduct and the need for an appropriate sanction.  The government’s appellate lawyer told us that the prosecutor’s superior would give her a talking-to.  We are not impressed by the suggestion.

Since we are directing an acquittal on all counts, the sentencing issues are academic and we do not address them, beyond expressing our surprise that the government would complain about the leniency of the sentence for a crime it had failed to prove.

Now consider US v. Richardson, No. 08-1243 (7th Cir. March 12, 2009) (available here), in which the panel refuses to upset the prosecution's refusal to move for a reduced sentence based on cooperation unless he drops his appeal.

He concedes that a waiver of the right to appeal — the concession the government insisted on — is valid; it is little different from a defendant’s agreeing to plead guilty, which entails a waiver of his right to a trial, and to an appeal if he loses at the trial.  The question is whether making the waiver a condition of the government’s agreeing to file a motion for a reduction of sentence can be said to be “rationally related to any legitimate Government end.”  The answer is yes....

The defendant wanted a lower sentence; the government wanted him to accept the sentence rather than challenge it on appeal.  That was a reasonable condition.

I am not really troubled by the outcome in either case, but I still found it somewhat jarring and notable that Judge Posner was so aggressive and vocal in assailing the strategic choices of federal prosecutors in Farinella but also passive and accepting of the strategic choices of federal prosecutors in Richardson.

Three years in prison for Iraqi journalist who threw shoe at President Bush

This Washington Post article discusses the recent sentencing in Baghdad for the Iraqi journalist who committed a notable crime that everyone got to see thanks to modern video:

A Baghdad judge ruled Thursday that an Iraqi journalist who hurled his shoes at former President George W. Bush was guilty of assaulting a foreign leader and sentenced him to three years in prison, a verdict that unleashed tumult in the courtroom. "Long live Iraq!" shouted the television journalist, Muntadar al-Zaidi, as the sentence was handed down....

Zaidi became a folk hero of sorts in the Arab world after hurling both shoes at Bush, with considerable speed and accuracy, during a news conference Dec. 14. Bush, a nimble athlete with great reflexes, successfully ducked....

Zaidi faced up to 15 years in prison, but his lawyers said the judges decided to show leniency because of his age and lack of prior convictions....

Prosecutors had said his confession warranted his conviction, but both Zaidi and his family maintained that he had been beaten and suffered electrical shocks in detention. Zaidi's lawyers argued that he was only expressing himself, without criminal intentions.

"Into the Twilight Zone: Informing Judicial Discretion in Federal Sentencing"

The title of this post is the title of this interesting-looking new article by Professor Mary Kreiner Ramirez that I just came across via SSRN. Heres is the abstract:

Recent changes in federal sentencing have shifted discretionary decision-making back to federal district court judges, while appellate courts review challenged sentences for reasonableness. Each judge brings considerable legal experience and qualifications to the bench, however, cultural experiences cannot necessarily prepare judges for the range of persons or situations they will address on the bench. Social psychologists who have studied social cognition have determined that the human brain creates categories and associations resulting in implicit biases and associations that are often unconscious or subconscious.  Moreover, research suggests that such biases may be overcome or at least compensated by education on awareness of bias and countermeasures. Identifying unconscious preferences or biases and learning effective mechanisms for managing and changing unwanted preferences can impact the reasonable exercise of discretion on a case-by-case basis in sentencing decisions.

Judges are expected to render decisions impartially.  Nowhere is the need more critical than judicial determinations impacting liberty interests by imposing criminal punishment, and in particular, imprisonment.  Lack of awareness or education is likely to lead to suboptimal sentencing outcomes based upon in-group bias, inaccurate cultural associations, and other cognitive flaws that will invite further political disruption.  In contrast, investing in cultural competence and social cognition educational programs, and structuring programs to encourage interest in and attendance at such programs, can inform judges to improve their discretionary decision-making by overcoming any latent biases, thereby benefiting society through a more just legal system.

Lots of media buzzing around Bernie Madoff's day in court

Today is plea day for Bernie Madoff, and all sorts of media are giving this case plenty of attention.  Here are just some of the notable headlines/stories I have seen this morning:

• From ABC News here, "Calls for Justice: Madoff Victims Anxious for Today's Hearing
• From Bloomberg here, "Madoff’s Refusal on Conspiracy Said to Block Deal"
• From BusinessWeek here, "Madoff: What's the Right Penalty?"
• From the Lower Hudson Journal here, "Crowd swells for Madoff plea"
• From MSNBC here, "Feds Zero in on Madoff's Wife, Kids"

UPDATE:  The New York Times has this early report from the plea hearing:

Bernard L. Madoff pleaded guilty Thursday to all the charges against him and expressed remorse for a vast Ponzi scheme that bilked investors out of billions of dollars....

In answering questions about how he sustained a 20-year fraud whose collapse erased as much as $65 billion that his customers thought they had in their accounts, Mr. Madoff said, “I believed it would end shortly and I would be able to extricate myself and my clients from the scheme.”

“As the years went by I realized that my arrest and this day would inevitably come,” Mr. Madoff said. “I cannot adequately express how sorry I am for what I have done.”  Although Mr. Madoff admitted to operating what he called “a Ponzi scheme through the investment advisory side of my business,” he said all other aspects of his enterprise, operated by his sons and brother, were legitimate, profitable and successful.

Noting the quicker pace of executions in Texas

As detailed in this AP story, Texas executed on Wednesday its second defendant is as many nights, bringing its total number of executions for 2009 up to 12.  And, reporting on a trend I have been noting in prior posts, the Fort Worth Star-Telegram has this article headlined "Texas on pace to execute far more in 2009."  Here are snippets:

As states debate whether to stop executing criminals, Texas – long the nationwide leader in executions – has picked up the pace and is on a rate to execute perhaps twice as many Death Row inmates this year as in 2008.... 

Since 1976, there have been 432 executions in Texas, far more than in Virginia, which had the second highest number of executions with 103, according to the Death Penalty Information Center....  There are 348 inmates on Death Row in Texas, including 24 convicted in Tarrant County, state records show....

President Barack Obama has indicated he favors executions only in the most extreme cases, but he hasn’t publicly focused much on the issue. But he could have a big impact through the years, by appointing judges to federal courts who will weigh in on the issue.... 

Executions were down last year because the U.S. Supreme Court halted executions between September 2007 and April 2008 to review whether lethal injections were unconstitutionally cruel and unusual punishment. Once the hold was removed, Texas executed 18 Death Row inmates in the last eight months of the year.  Virginia had the second most executions last year, with four.

Notable Ninth Circuit dissents about reasonableness review from deneial of rehearing en banc

I noted here last summer a notable split Ninth Circuit ruling affirming a below-guideline probation sentence in US v. Whitehead, No. 05-50458 (9th Cir. July 14, 2008) (available here). Today, rehearing en banc was denied in the Whitehead case, and that decision prompted two notable written dissents from Judges Gould and Reinhardt. 

Judge Gould quotes Cicero and Publius Syrus and Daniel Webster in his opinion, while Judge Reinhardt ends one sentence in his opinion with two question marks!!  In short, this is a must-read for federal sentencing fans.

Timely conference (and blog) on the "California Correctional Crisis"

I am pleased to spotlight a terrific conference sponsored by UC Hastings College of the Law next week. As detailed here, the conference is titled “The California Correctional Crisis,” and it will bring together an amazing group of public officials, practitioners, activists, and academics to talk about the full ranges of issues and challenges facing California in the arena of crime and punishment.

The full schedule for this conference is available at this link and the full list of participants is available here. In addition, the conference organizers have started this terrific blog, which is providing "News, Updates and Opinions on Sentencing and Corrections in California."  I am told that this blog will continue after the conference, and here is a sample of some notable topics that this blog has covered in recent posts:

• Community Justice Center Opens Its Doors
• Stimulating Corrections: Federal and State Levels
• More About Zen Prisons and Other Magical Gardens

"Where's the Bone for Bernie Madoff?"

The title of this post is the title of this query by Jeralyn at TalkLeft.  The question reflects my own reaction when I hear that Madoff will be pleading guilty without the benefit of a plea agreement.  Here is part of Jeralyn's analysis:

[Madoff's lawyers have indicated he will plead] straight up to all 11 counts against him and receives no sentencing concession, no promises about non-prosecution of family members and no agreement that the Government's continuing investigation won't affect his wife and other family members' assets.

He's 70 years old. Even if he gets a 25 year sentence with good time, he's likely to die in prison. He's not going to a minimum security camp. So why is he pleading guilty? Are there secret agreements we don't know about?...

[W]ho agrees to start a life sentence at 70, when you can have another year or two at your luxurious Park Avenue abode in the company of your spouse and family, while awaiting trial?

It's not like the Government could give him any more time if he went to trial and lost.  What was he afraid of?  That he'd be sentenced to life plus cancer?

I don't get it.  I know he has smart, expensive, white collar lawyers, but who pleads a client to life in prison without a plea agreement, without concessions to family regarding their retention of assets or an agreement not to prosecute them?

I've uploaded the documents for those who want to read them:

• Madoff's Information (The Charges)
• The Government's Letter With Sentencing Calculations
• Madoff's response stating the Government's $177 billion forfeiture amount is too high
• The DOJ Press Release explaining the charges.

There's got to be a bone for Bernie in here somewhere, but right now, I'm not seeing it.

Among the comments at TalkLeft are suggestions that, had Madoff done to trial or even forced the prosecution to start going forward more formally, more details of the fraud would have emerged to show that family and others were deeply involved in his fraudulent actions.  That theory makes sense to me, though I still find the lack of any kind of formal plea agreement to be surprising and notable in this case.

Some related Madoff posts:

• Basic Madoff plea details emerging
• Running the federal sentencing guideline numbers for Bernie Madoff
• A victim's perspective on a possible plea deal for Bernie Madoff
• "Madoff Mercy: How long should the Ponzi schemer go to prison for?"
• "Death penalty for white-collar criminals?"

New NYCLU report on Rockefeller drug laws

As detailed in this official press release, the New York Civil Liberties Union today released a new report on the impact of the state's Rockefeller Drug Laws. The report's title, "The Rockefeller Drug Laws: Unjust, Irrational, Ineffective," provides a pretty clear sense of some of the report's conclusions. The full report can be accessed at this link, and here is a snippet from the introduction:

This report presents and marshals the empirical evidence that demonstrates New York's mandatory-minimum drug sentencing scheme has failed, utterly, to accomplish its stated objectives. It has not reduced the availability of drugs or deterred their use; it has not made us safer....

The Rockefeller Drug Laws are the Jim Crow laws of the 21st Century. This report includes demographic maps of urban centers throughout the state that depict in bold relief the racial and ethnic bias that informs the state's drug-law policy.-

These findings present lawmakers with a compelling argument for comprehensive reform of the Rockefeller Drug Laws. The argument is based on principles of law and public policy. But ultimately the issue is a moral one.

The report concludes by proposing a paradigm shift toward a public health approach to drug policy. In this new model, prison is a last resort, reserved for the truly violent. The public health approach seeks to reinvest dollars, otherwise spent on prisons, to promote safe and stable communities. In practice, this approach diverts individuals with substance abuse problems from prison to programs that promote and facilitate life success.

"Europeans Debate Castration of Sex Offenders"

The title of this article is the title of this interesting piece in today's New York Times.  The piece is a must-read for anyone focused on sex offender law and policy, in part because of one startling piece of (old) data noted in the article.  Here are some excerpts (with a few paragraphs re-ordered):

Whether castration can help rehabilitate violent sex offenders has come under new scrutiny after the Council of Europe’s anti-torture committee last month called surgical castration “invasive, irreversible and mutilating” and demanded that the Czech Republic stop offering the procedure to violent sex offenders. Other critics said that castration threatened to lead society down a dangerous road toward eugenics.

The Czech Republic has allowed at least 94 prisoners over the past decade to be surgically castrated. It is the only country in Europe that uses the procedure for sex offenders. Czech psychiatrists supervising the treatment — a one-hour operation that involves removal of the tissue that produces testosterone — insist that it is the most foolproof way to tame sexual urges in dangerous predators suffering from extreme sexual disorders....

Poland is expected to become the first nation of the European Union to give judges the right to impose chemical castration on at least some convicted pedophiles, using hormonal drugs to curb sexual appetite; the impetus for the change was the arrest of a 45-year-old man in September who had fathered two children by his young daughter.  Spain, after a convicted pedophile killed a child, is considering plans to offer chemical castration.

Last year, the governor of Louisiana, Bobby Jindal, signed legislation requiring courts to order chemical castration for offenders convicted of certain sex crimes a second time.... Several states, including Texas, Florida and California, now allow or mandate chemical castration for certain convicted sex offenders....

Dr. Martin Holly, a leading sexologist and psychiatrist who is director of the Psychiatric Hospital Bohnice in Prague, said none of the nearly 100 sex offenders who had been physically castrated had committed further offenses.  A Danish study of 900 castrated sex offenders in the 1960s suggested the rate of repeat offenses dropped after surgical castration to 2.3 percent from 80 percent. 

But human rights groups say that such studies are inconclusive because they rely on self-reporting by sex offenders.  Other psychiatric experts argue that sexual pathology is in the brain and cannot be cured by surgery.  

I find both remarkable and annoying that the only "study" on this topic cited in this Times article comes from the 1960s.  Can we imagine any other field in which leading research in the field is nearly half a century old?  Of course, I am sure there are more modern studies that the Times might have mentioned, though I am not confident that there have been many (any?) rigorous modern assessments of sex offender castration in the United States, even though chemical castration as a form of alternative punishment has been considered (and used?) widely throughout the nation for well over a decade.

I often stress to my students that modern research on sentencing and punishment is often incomplete and partisan, in part because few people with the interest and energy and money to conduct research in this field are willing to explore ideas and data that may not confirm their pre-existing beliefs.  Though I usually stress this point in conjunction with death penalty research, the apparent lack of data concerning forms of sex offender castration likely also reflects these problematic dynamics.

Do prosecutors gone bad often get breaks at sentencing?

This local story from Pennsylvania, headlined "Former prosecutor gets house arrest for corrupting minors," has me wondering if all bad apple prosecutors get good breaks at sentencing. Here are the basics:

Anthony Cappuccio had an image that inspired trust. In the Bucks County District Attorney's Office, he was a rising star who aggressively prosecuted corrupt public officials, drunken drivers, and child molesters. At First United Methodist Church in Perkasie, Cappuccio was seen as a married father of two, a police officer's son entrusted with serving as a youth leader. Cappuccio, 32, recklessly betrayed that trust.

He provided alcohol and smoked pot with some of the teens at concerts, then let them drive home. He engaged in a lengthy sexual relationship with one of the boys. He viewed pornographic images of young males on his office computer. He cheated on his pregnant wife, once cutting short a vacation for a rendezvous with the teen boy....

Cappuccio pleaded guilty to endangering the welfare of children, corrupting minors, and other offenses. Those crimes will cost Cappuccio no time in jail, though.

Judge C. Theodore Fritsch Jr. gave Cappuccio three to 23 months in the Bucks County prison, but allowed him to serve it on house arrest. Cappuccio also will be granted work-release while serving the sentence, which will be followed by seven years of probation.

Senior Deputy Attorney General E. Marc Costanzo, who prosecuted the case, said the victims' families had hoped for more. "They anticipated that he'd have an actual sentence of incarceration, rather than what basically amounts to being grounded in his own bedroom for a few months," Costanzo said. The victims' parents declined to speak to reporters.

Cappuccio was a senior deputy district attorney until September, when police in Richland Township found him partially clothed with a 17-year-old boy in his parked car.

This additional local coverage reports that the relatively lenient sentence given to the former prosecutor "infuriated the victims’ parents and members of the Perkasie church where Cappuccio met the boys through his work as a youth group leader."

Names starting to emerge for early Obama circuit court nominees

This new article in the New York Times, headlined "Obama’s Court Nominees Are Focus of Speculation," starts naming some of the names that President Obama might name for federal circuit court positions. Here are excerpts from the article:

President Obama will soon begin naming a small stream of nominees to the federal appeals courts, administration officials said, a step that will provide the first signs of how much he intends to impose any ideological stamp on the nation’s judiciary.

White House lawyers have compiled lists of likely candidates for vacancies on several of the 12 regional appeals courts, notably those based in Richmond, Va., and New York....

To fill a seat that traditionally goes to someone from Maryland, officials said the White House was considering nominating Andre Davis, a District Court judge based in Baltimore.

There are several candidates for the Virginia seat, including Elizabeth Magill, a law professor at the University of Virginia and daughter of a former federal appeals court judge.

For the United States Court of Appeals for the Second Circuit, based in New York, officials said the White House had settled on elevating Judge Gerard E. Lynch, a Columbia law professor, from the District Court....

In a closed meeting on Capitol Hill two weeks ago, Mr. Craig told Democratic senators that the White House would rely on their recommendations to fill the district courts. But he said that while Mr. Obama would welcome their advice, he warned that filling the appeals courts was largely a presidential prerogative, participants said.

Judge Lynch has a terrific sentencing history (including authoring this great piece recently for OSJCL Amici), so sentencing fans should be excited about the prospect of his addition to the Second Circuit.

Some related old and new posts on judicial appointments:

• Noticing the biggest bias in the federal judiciary
• How a new administration is likely to impact federal sentencing practice
• Why federal sentencing reformers must focus on the USSC and lower courts
• 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

Latest FSR issue, focused on sex offenders, now available on-line

I am pleased to report that the latest issue of the Federal Sentencing Reporter is available on-line.  The issue is titled "Sex Offender: Recent  Developments in Punishment and Management."  Professor Michael O’Hear, the chief editor who assembled a great set of articles, authored an opening commentary, entitled "Perpetual Panic."  This introductory essay can be downloaded at this link.  

The major articles of this latest FSR issue are listed below and can be accessed electronically here.  (A full subscription to the Federal Sentencing Reporter can be ordered on-line here.)

EDITOR'S OBSERVATIONS

• Michael O’Hear, Perpetual Panic

ARTICLES

• Mary Ann Farkas & Gale Miller, Sex Offender Treatment: Reconciling Criminal Justice Priorities and Therapeutic Goals
• Ian N. Friedman & Kristina W. Supler, Child Pornography Sentencing: The Road Here and the Road Ahead
• Eric S. Janus & Robert A. Prentky, Sexual Predator Laws: A Two-Decade Retrospective
• Mary Graw Leary, Kennedy v. Louisiana: A Chapter of Subtle Changes in the Supreme Court’s Book on the Death Penalty
• Joseph L. Lester, Brandishing the Mark of Cain: Defects in the Adam Walsh Act
• Michael Petrunik, Lisa Murphy, & J. Paul Fedoroff, American and Canadian Approaches to Sex Offenders: A Study of the Politics of Dangerousness
• Richard G. Wright, From Wetterling to Walsh: The Growth of Federalization in Sex Offender Policy
• Corey Rayburn Yung, The Sex Offender Registration and Notification Act and the Commerce Clause

Other recent FSR issues:

• FSR Issue 21.1: Thoughts for the U.S. Sentencing Commission
• FSR Issue 20.5: American Criminal Justice Policy in a "Change" Election
• FSRIssue 20.4: Debates and Realities Surrounding Crack Retroactivity
• FSR Issue 20.3: White-Collar Sentencing
• FSR Issue 20.2: Prisoner Reentry

Two more executions in two states not debating the death penalty

Though the fate of the death penalty continues to be debate in many states, tonight Texas and Georgia got on with the business of carrying out executions.  Here are details from this AP report:

A man convicted of a double slaying was executed on Tuesday in Texas and another man was executed in Georgia for stabbing to death a neighbor who had spurned his sexual advances.

In Texas, James Edward Martinez, 34, was executed at the state prison in Huntsville on Tuesday for the 2000 fatal shootings of Sandra Walton, 29, whom he dated briefly, and Michael Humphreys, 19, a friend of the woman, outside her Fort Worth apartment complex....

In Georgia, Robert Newland, 65, was put to death by lethal injection at the state prison at Jackson. He was the first person executed in Georgia this year. Newland was convicted in 1987 and sentenced to death for the slaying of Carol Sanders Beatty, a 27-year-old former state and national amateur diving champion.

I wonder if those Justices who have recently expressed concern with long stays on death row (details here) are somewhat disappointed that Georgia needed nearly two decades to complete Newland's sentence, but then are somewhat gratified that Texas managed to carry out Martinez's death sentence less than a decade after his crime.

If Texas goes forward with another execution it has scheduled for Wednesday, there will have been a total of 20 executions in the US in 2009 before we have even reached the Ides of March.  At this pace, the first year of the Obama Administration could have, ironically, more total executions in the United States than any of the years of George Bush's presidency.

Some recent related posts:

• States considering laying off the death penalty during tough economic times
• Death penalty abolition becoming more realistic in a few western states
• Interesting time for Time's discussion of death's demise
• What might 2009 have in store for . . . the death penalty in the US?
• Notable second-term Presidential execution realities
• DPIC releases year-end report on state of death penalty in 2008

Basic Madoff plea details emerging

As now reported by all the major media outlets, the specifics of the charges and expected plea in the financial frauds committed by Bernie Madoff are coming into focus.  This Bloomberg story has many of the latest particulars:

Bernard Madoff, the New York money manager accused of leading the largest Ponzi scheme in U.S. history, will plead guilty later this week to 11 criminal charges, his lawyer told a federal judge.

Madoff, 70, will admit he directed a fraud that prosecutors alleged began in the 1980s. By last November, Madoff told 4,800 investors their accounts held $64.8 billion, according to court papers filed in Manhattan federal court. Prosecutors will seek forfeiture from Madoff of as much as $170 billion. Madoff, free on $10 million bail, faces 150 years in prison.

“There is no plea agreement,” Assistant U.S. Attorney Marc Litt said at hearing today before U.S. District Judge Denny Chin.... “The filing of these charges does not end the matter,” said Acting Manhattan U.S. Attorney Lev Dassin. “Our investigation is continuing.”...

“The charges reflect an extraordinary array of crimes committed by Bernard Madoff for over 20 years,” Dassin said in a statement. “The size and scope of Mr. Madoff’s fraud are unprecedented.”

Over at TalkLeft, Jeralyn in this post has an effective assessment of all the latest news.  Here is her summary take-away: 

My prediction: Madoff will go to jail Thursday, never to be released again.  And, no matter how much money the government forfeits, not every victim will be made whole.

Effective NPR coverage of supermax prisons and solitary confinement

Thanks to this post at How Appealing, I discovered that National Public Radio has recently run a series of effective pieces on supermax prisons and solitary confinement.  Here are the links as assembled there:

This past Sunday's broadcast of "All Things Considered" contained audio segments entitled "Ex-Prisoner Sues California Over Years In Solitary" and "Is The Use Of Maximum Security Prisons Abused?" 

And yesterday's broadcast of "Day to Day" contained an audio segment entitled "Solitary Confinement: Cruel and Inhuman."

Running the federal sentencing guideline numbers for Bernie Madoff

The recent legal developments in the prosecution of Bernie Madoff (details here) have lots of folks buzzing about not just his expected guilty plea, but also his possible federal sentence.  Helpfully, today's Boston Herald has this new article that, as this graphic shows, runs through the basic guideline calculations for Bernie Madoff based on what we all think we know about his big-time financial fraud.  Here are excerpts from the article:

It’s the one “big score” that Bernard Madoff probably wishes he wasn’t about to make. Experts say Madoff, who’s expected to plead guilty Thursday to running a $50 billion Ponzi scheme, rates about 52 points on a scale federal judges use when setting sentences. The bad news for Madoff: Anything over 42 usually translates into life behind bars.

“This guy is going to jail for the rest of his life - the only question is whether he goes in now or goes in later,” Boston white-collar defense lawyer Tom Hoopes said.... Even if Madoff helps investigators unravel the case and go after any accomplices, Hoopes believes a judge won’t cut the man’s score by more than 25 percent. That would still leave 39 points, or enough for the 70-year-old Madoff to get at least 22 years behind bars....

Defense lawyer Willis Riccio thinks Madoff will get about 15 years, but “that’s a life sentence in the sense that Madoff might not live out his term.” However, alleged victim George Christin fears Madoff will serve as little as five years. “He probably set things up so the SEC can’t figure anything out without his input,” said the Bedford man, whose family lost $2.5 million. “Madoff will use that as leverage to get way less than life in prison.”

Besides, Christin, a 60-year-old special-education teacher who’s scrapped plans to retire at 65, doesn’t even see a life sentence as punishment enough. “There’s no way the scales will ever be balanced,” he said. “For justice to be done, they’d have to make that man live in the slums of Calcutta and eat garbage for the rest of his life.”

Some related Madoff posts:

• A victim's perspective on a possible plea deal for Bernie Madoff
• White-collar fraud meets technocorrections for Bernie Madoff
• "Madoff Mercy: How long should the Ponzi schemer go to prison for?"
• Notable criminal justice echoes of the Madoff mess
• "Death penalty for white-collar criminals?"

Notable stories of sex and death from the local papers

I just got around to reading these two local stories from the Sunday papers on the notable topics of "sexting" and the administration of the death penalty:

• From the Orlando Sentinel here, "'Sexting' teenagers face child-porn charges: 20% of teens have sent nude photos of themselves via cell phone or posted the images on a Web site."
• From the The (Louisiana) Advocate here, "Economics of Executions"

Litigation advice for white-collar sentencing after Kimbrough

A helpful reader passed along (and got me permission to post) an effective little article about federal sentencing that was recently published in the ABA's Criminal Litigation.  The piece discusses the impact of Kimbrough, with an extra focus on white-collar sentencing issues.  Here's an abstract for the article, which can be downloaded below:

The line of sentencing cases from Booker to Kimbrough might seem to trace the slow death of the U.S. Sentencing Commission. This Article argues, however, that the opposite is true. Rather than slowly killing the Commission, these cases have actually restored it to a new level of primacy, one more free from Congressional influence than ever before.

This turn of events has great practical importance. It means that today, the best way to achieve a below-guidelines sentence, may be to argue that the guideline at issue is not the product of the Commission's informed, expert judgment, but rather of Congress's meddling.  This line-of-attack has already been used to obtain lower sentences for a broad range of offenses, from weapons possession to child pornography.  And, as this Article outlines, it is primed for use against white-collar sentencing guidelines, which, at Congress's direction, have produced particularly harsh sentences over the past decade.

Download ABA_Crim_Lit_Article on white collar after Kimbrough

An SCOTUS exchange in a cert. denial concerning a long stay on death row

As detailed in this CNN report, a few Supreme Court Justices discussed the death penalty in little separate opinion response to the denial of cert in a Florida capital case.  Here are the basics:

Two Supreme Court justices on opposite sides of the ideological aisle exchanged tough words Monday over the fate of a Florida murderer who has been on death row for 32 years.

The high court has refused to hear the appeal of William Thompson, who had plead guilty twice in the March 1976 kidnapping and torture-murder of a woman.  His case and subsequent appeals have been litigated since, but a new execution date has not been set. A key part of his request to be spared lethal injection is that three decades as a capital inmate constitutes cruel and unusual punishment.

"Our experience during the past three decades has demonstrated that delays in state-sponsored killings are inescapable and that executing defendants after such is unacceptably cruel," said Justice John Paul Stevens, who disagreed with the court's decision to allow the execution to proceed. He was supported by Justice Stephen Breyer in his objection to the court's ruling on Monday in the case, Thompson v. McNeil (08-7369).

But Justice Clarence Thomas took issue with his colleagues' conclusions.  "It is the crime and not the punishment imposed by the jury or the delay in execution that was 'unacceptably cruel,'" he responded.  Thomas took time in his concurrence to detail the graphic crime that led to the conviction of Thompson and his co-defendant.

Justice Stevens' statement in Thompson is available at this link; Justice Breyer's dissent from the denial of cert. in Thompson is available at this link; Justice Thomas' concurrence in support of the denial of cert. in Thompson is available at this link.

The lack of originalist justification for excluding felons from the Second Amendment

I just saw on SSRN this notable article by Carlton Larson about the Supreme Court's work in Heller, titled "Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit."  Here is the abstract:

This Symposium Essay examines the Supreme Court's Second Amendment decision in District of Columbia v. Heller.  Specifically, the Essay examines four exceptions to the right to bear arms that the Court specifically approved: laws disarming felons; laws disarming the mentally ill; laws prohibiting the possession of firearms in sensitive places; and laws regulating the commercial sale of firearms.  The Essay argues that these exceptions cannot be completely justified on originalist grounds, at least under the form of originalism that the Court is likely to employ.  The Essay further argues that the exceptions cannot be justified if strict scrutiny is the applicable standard of scrutiny.  Accordingly, some lesser standard of review of firearms regulation must apply.

This little essay confirms my own suppositions about the absence of sound and compelling originalist justification for categorically precluding all felons (not to mention some misdemeanants) from the protections of the Second Amendment.  Consider these passages from the piece:

[S]o far as I can determine, no colonial or state law in eighteenth-century America formally restricted the ability of felons to own firearms....

The absence of an explicit felon exception in the text of the Second Amendment is echoed in state constitutional provisions. Only one state constitutional provision addressing the right to bear arms contains an exception for felons.  This provision, Idaho’s, was enacted in 1978....

In sum, felon disarmament laws significantly post-date both the Second Amendment and the Fourteenth Amendment.  An originalist argument that sought to identify 1791 or 1868 analogues to felon disarmament laws would be quite difficult to make.

Some related Second Amendment posts:

• Justice Scalia sells out felon gun rights, but on what basis exactly?
• Former SG Ted Olson suggests Heller could impact broad prohibitions on felon gun rights
• SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
• Even the Chief and Justice Scalia are content to damn gun possession with faint praise
• Deafening silence from the gun rights crowd about Hayes
• Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
• What if no lower court judges participate in a "Second Amendment Revolution"
• Has there been a single pro-gun-rights rulings in lower courts since Heller?
• Still more proof that federal courts have no real interest in gun rights
• District Court rejects Second Amendment claim from misdemeanant
• Another (too?) brief opinion rejecting misdemeanant's Second Amendment claim
• Starting to make the Second Amendment case for Plaxico Buress
• "The New Second Amendment: A Bark Worse Than Its Right"
• Is anyone (other than me) discussing the apparent insignificance of Heller?
• What might 2009 have in store for . . . Second Amendment jurisprudence?

More calls for an end to the drug war and legalization of marijuana

The number of voices calling for and end to the drug war and/or the legalization of marijuana continues to grow.  For example, this cover story in The Economist this week is titled "Failed states and failed policies; How to stop the drug wars: Prohibition has failed; legalisation is the least bad solution."  Here is a snippet:

Next week ministers from around the world gather in Vienna to set international drug policy for the next decade. Like first-world-war generals, many will claim that all that is needed is more of the same.  In fact the war on drugs has been a disaster, creating failed states in the developing world even as addiction has flourished in the rich world.  By any sensible measure, this 100-year struggle has been illiberal, murderous and pointless.  That is why The Economist continues to believe that the least bad policy is to legalise drugs.

“Least bad” does not mean good. Legalisation, though clearly better for producer countries, would bring (different) risks to consumer countries. As we outline below, many vulnerable drug-takers would suffer. But in our view, more would gain.

Similarly, consider this local op-ed out of California, titled "California can lead the Nation out of this Depression by legalizing Marijuana."  Here are excerpts:

Californians, and the other states that allow medical marijuana, have received some good news. Assemblyman Tom Ammiano's landmark bill (AB 390) to tax and regulate marijuana just like alcohol and tobacco is being considered by state lawmakers....

According to NORML, Californians consume $1-$2 billion worth of medical marijuana per year, enough to generate some $100 million in sales tax.  According to a state analysis the tax would net $1.3 billion a year if this legislation passes.

There's no way to tell how many California residents smoke pot, but according to the Zogby Poll “Fifty-eight percent of respondents residing on the West Coast agree that cannabis should be taxed and legally regulated like alcohol and cigarettes.”

One might very well hope and want to believe that the traditional poltical left and political right ought to be able to come together on ending excessive government control/spending on (failed) efforts to thwart the inevitable (and now black) market for marijuana.  At the very least, one might hope and want to believe that the labratory of the states might give state-wide legalization (for persons over 21) a real try and see what happens.  I am not holding my breath, but tough economic times certainly make this a better possibility now than probably any other time is my lifetime.

Some recent related posts:

• "Time For Marijuana Legalization?"
• Should we end a failed expensive war (the war or drugs) during these hard economic times?
• Terrific commentary and assessment of the war on drugs
• The state of cost problems in the states of prison nation
• How many states are being forced by economic realities to consider releasing prisoners?
• Will we invest in classrooms or cells in these tough times?

The persistence of pre-Booker precedents in a post-Booker world

The Sixth Circuit's work today in US v. Blue, No. 07-5296 (6th Cir. March 9, 2009) (available here), provides yet another example that, even years after the Bookerdecision, many sentencings and appeals march forward as if the pre-Booker world was still in place.  The Blue decision does not really break any new ground in rejecting an appeal of a district court's refusal to depart for substantial assistance absent a government motion for such a departure.  But the start of the panel's analysis provides an example of how hard it has been to get lawyers to fully inculcate the import and impact of Booker:

We must begin by situating Blue’s appeal in the context of appellate review of sentencing post-Booker— a task that, regrettably, the parties did not undertake in their briefs.[FN1]

[FN1] The government cites United States v. Moore, 225 F.3d 637, 641 (6th Cir. 2000) — a case that pre-dates Booker by five years — for the proposition that we should “review the district court’s interpretation of the Sentencing Guidelines de novo.”  And Blue’s counsel fares no better by citing United States v. Hawkins, 274 F.3d 420 (6th Cir. 2001).  By the time the parties filed their appellate briefs with this Court in late 2007, Bookerhad been on the books for over two years. This Court expresses its fervent hope that the parties’ persistent recitation of pre-Booker cases is not evidence that counsel are unaware that the appellate standard for sentencing review now focuses on “reasonableness,” Booker, 543 U.S. at 262; Rita, 127 S.Ct. at 2464.

Should all sex offenders be barred from Facebook and MySpace?

The question in the title of this post is being debated now in Illinois as a result of new bills being proposed by some legislators.  This local article, headlined " GOP bills about sex offenders draw ire: Rights groups, others say they’re too strict," provides the details over the debate:

llinois House Republicans say state government should do more to keep sex offenders away from children and pornography on the Internet. But critics, including civil rights groups and Internet companies, say the ideas may go too far.

Republicans again are pushing a package of nearly a dozen bills that would strengthen laws against child pornography and restrict what Web sites registered sex offenders can visit.  The measures were spawned by a series of task force meetings House Republicans conducted in 2006, during which parents, law enforcement officials and community leaders testified about the growing dangers of social networking sites and child pornography.

The package includes House Bill 1312, introduced by House Republican Leader Tom Cross of Oswego. It would prevent registered sex offenders from accessing social networking Web sites like Facebook and MySpace. The measure also would require the owners of these sites to verify the ages of all their users and verify the status of all guardians of minors who use the sites....

The Republican ideas are backed by the Illinois Family Institute, a Christian organization that provides “a biblical perspective to public policy.” David Smith, the organization’s executive director, says the rights of sex offenders should not preempt public safety. “Their freedoms need to be curtailed, to tell you the truth, as a result of their violation of public trust,” Smith said.....

Braden Cox, the policy counsel of NetChoice, called the social networking regulations in Cross’ bill problematic.... “This bill sounds good in theory, but you quickly see that it’s something that is not technically feasible and would create more problems than it would solve,” he said....

Kate Dean, executive director of the U.S. Internet Service Provider Association, said Reboletti’s service provider bill could be successfully challenged in court if it became law. “The courts have found similar approaches to be unconstitutional,” said Dean.

An Indiana law passed in 2008 bans sex offenders from using social networking Web sites, and states such as Minnesota, North Carolina, and Connecticut are considering similar measures. A Pennsylvania law forcing Internet service providers to restrict access to Web sites accused of hosting child pornography was ruled unconstitutional in 2004 by a federal judge.

A picture of prison economy problems in Pennsylvania

Today's Pittsburgh Post-Gazette has this effective article on the prison economy realities.  The piece, which has this accompanying graphic, is headlined "Rendell's prison plan could lock him up in costly quandary: Increased budget likely to cause inmate population to swell."  Here are a few excerpts:

The nation's economic crisis has put a damper on most new construction, but there's one area where building is booming like it's 1999 — prisons. 

Pennsylvania's state correctional facilities are at 114 percent of capacity and several construction projects are in the works to meet demands for space.  Gov. Ed Rendell's proposed budget includes more than $1.8 billion for the Department of Corrections, a nearly 10 percent increase dedicated mostly to construction and increased staffing....

The Rendell budget proposal for fiscal year 2009-2010 also increases funding for the Board of Probation and Parole, which plans to use the money to hire more field agents.  But the 8.3 percent increase brings the department's budget to $99.2 million, less than one-eighteenth of Department of Corrections spending.

Even the DOC agrees that bringing down the prison population ... is a good idea.  But as Mr. Rendell's parole quandary suggests, it isn't easy politically or logistically.

In September, a parolee shot and killed a Philadelphia police officer a month after his release from prison, where he had been serving a sentence for a 1998 robbery and aggravated assault.  After the killing, Mr. Rendell imposed a moratorium on all parole in the state, causing prison populations to spike.  He lifted the moratorium for nonviolent offenders in October, then for violent offenders in January.

The 11-member Pennsylvania Commission on Sentencing is looking at reforming parole guidelines, but legislators might tackle a sweeping reform of their own — a mandate that repeat violent offenders serve out their maximum sentences. A bill is still in the drafting stages, but Mr. Rendell already has voiced support for such a measure.

While getting tougher on violent offenders -- classified as people convicted of murder, manslaughter, rape, aggravated assault, robbery, theft or arson — policymakers are looking at ways to get nonviolent offenders out from behind bars....

Department statistics show a sharp rise in the number of nonviolent offenders in the prisons. In 2008 nonviolent offenders comprised 41 percent of the prison population, with 44 percent classified as violent (the rest are parole violators).  In 2002, it was 51 percent violent, 30 percent nonviolent.

DOC spokeswoman Susan McNaughton pointed to tougher sentences — including mandatory minimums — for gun and drug convictions as contributors to the rise of nonviolent prisoners. For example, a first-time conviction for trafficking more than 10 grams of cocaine carries a mandatory three-year minimum sentence.

Rep. Tom Caltagirone, D-Berks, chair of the House Judiciary Committee, said he wants to take a hard look at mandatory minimums, but it's difficult to gain support from legislators wary of being labeled as soft on crime. "We have all these stupid mandatories," Mr. Caltagirone said. "It's a knee-jerk reaction: 'We're going to get all the bad guys off the street.' ... "The violent offenders — repeat, serious offenders — absolutely we need to lock them up.  But do we need to lock up everybody?"

"New look at sentencing guidelines for cocaine"

The title of this post is the title of this effective piece in today's San Francisco Chronicle. Here are snippets:

Willie Mays Aikens has returned to Kansas City, where he's still a star. He's worked in construction and hopes to land a job with Major League Baseball, maybe as a counselor, he says, "talking to people about what drugs can do to a person." People in Kansas City still talk about Aikens' four home runs for the Royals in the 1980 World Series. They seem ready to forgive the crack cocaine bust that earned him a 16-year prison term....

Aikens' path was dark indeed, but not because his crime was large. The drug sale that sent him to prison was 64 grams, about a quarter cup. The federal cocaine sentencing statutes treat that much crack the same as a bucket of cocaine powder, the material from which crack is produced.

Aikens' case exemplifies all that's gone wrong because of these federal sentencing laws: The focus on petty crimes. The distortion of priorities in the war on drugs. The lopsided impact on African Americans - the 83 percent of federal crack defendants who are black, though a federal health survey found most crack users are white. The problems have been documented for years. Now it's time for a change....

Federal prosecutions target petty crack cocaine cases throughout the nation, destroying the lives of many small-time offenders and squandering resources in the war on drugs. The U.S. Sentencing Commission tallied all 4,262 crack cases for 2006. It calculated a median drug quantity of 1.8 ounces.

Surprisingly, among the strictest jurisdictions was the Northern California district based in San Francisco. A single ounce of crack was involved in the median case here, enough to cover the bottom of a teacup.

Lots of AWA news and notes

Thanks to Corey Yung at Sex Crimes, it is a bit easier to keep up with all the dynamic developments surrounding all the dynamic aspects of the Adam Walsh Act.  Here are just a few recent posts from Sex Crimes covering recent AWA activity:

• 11th Circuit Rejects Constitutional Challenges to SORNA
• Heritage Foundation Supports Adam Walsh Act
• APA Praises Comstock Ruling, Criticizes Civil Commitment
• Walsh Wants Walsh Act Funded