Sentencing Law and Policy

A simple plea for Prez Obama: grant at least a single clemency in your first 100 days

As evidenced by this Politico feature and this New York Times article, there is already no shortage of buzz and analysis of President Obama's first 100 days.  Let me add my meta-punditry with a spin on the plea that titles this post: media pundits and especially public policy groups that work on sentencing reforms should be calling out President Obama if (and when?) the record of his first 100 days in office does not include a single grant of clemency. 

As this chart from PS Ruckman shows, from the era of Thomas Jefferson through Ronald Reagan, only 3 of 38 US presidents failed to grant any clemencies during their first 100 days.  And yet, while the federal criminal justice system has grown by staggering amounts over the last two decades (see USSC data here), only clemency pleas by cronies seemed to get serious and quick attention from the last three Presidents.  I keep hoping that President Obama's promise of hope and change would apply to this historically important presidential prerogative, but my hope seems ever more false as each week goes by without any mention of these realities.

It will be a sad and telling commentary of the emptiness of the rhetoric of hope and change if President Obama was not able to find — or lacked the interest and courage to try to find — even a single case in the massive federal criminal justice system meriting some kind of clemency relief during his first 100 days in office.  And it will be an even sadder and more telling commentary on the emptiness of modern political and social debate if prominent media pundits and public policy groups — many of whom rightly criticized President Bush for his failure to show compassion toward many requesting clemency — continue to fail to even note President Obama's continued failings in this regard.

I sincerely hope that, as part of the 100-day plans, the Obama team might have at least one single (and thus necessarily symbolic) clemency up its sleeves.  But I am not optimistic that we will see even a single clemency grant by Wednesday or that any prominent media pundits or public policy groups — on either the left or the right — will vocally criticize President Obama in this arena.

Some related posts:

• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• How about some targeted clemency grants to save $100 million of federal tax dollars?
• Another public and potent call to reinvigorate the pardon power
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• Still waiting ... and waiting ... and waiting ... on the clemency front
• Are the Border Agents the only federal offenders for whom President Bush feels compassion?
• "Compassionate Conservatism, My Ass"
• The sad (unpardonable) state of compassion in the Bush Administration
• ACS issue brief on the pardon power
• Latest FSR issue on "Learning from Libby"
• "The Fall of the Presidential Pardon"
• What might 2009 have in store for . . . executive clemency?

"Money, Morality, and Repealing the Death Penalty"

The title of this post is the title of this notable commentary on the PBS website.  Here is an excerpt from the middle of the piece:

For many death penalty opponents, New Mexico’s repeal was the result of years of hard work. The bill was first introduced 12 years ago, but it always faced challenges in the senate’s judiciary committee.  “It was heartbreaking,” says the Rev. Dr. Holly Beaumont, a Disciples of Christ minister and legislative advocate for the New Mexico Conference of Churches.  She represents the conference on the New Mexico Coalition to Repeal the Death Penalty.

Over the years faith-based death penalty opponents in New Mexico remained resolute, says Beaumont.  “We weren’t going away, and the legislature knew that we would be back again.”  She attributes their ultimate success to the multi-layered nature of the coalition, a collaboration of faith communities, the families of murder victims, Death Row exonerees, and other “people of conscience.”  The coalition focused on reaching and educating those who had not yet made up their minds about capital punishment and pointed its advocacy efforts directly at the Roundhouse, New Mexico’s state capitol building and the home of its legislature.

In addition to New Mexico, a number of other states around the country have been dealing with death penalty repeal this year.  A coalition of religious leaders, lawyers, and the families of murder victims is supporting passage of a pending bill to abolish the death penalty in Colorado, where this month the House of Representatives voted down capital punishment by a one-vote margin, and lawmakers say they will use the money saved (estimated at about $1.4 million per death penalty case) to solve hundreds of “cold” murder cases.  The Colorado bill now heads to the state Senate, where it is expected to pass.

New Hampshire and Kansas have also considered anti-death penalty legislation this year. In New Hampshire, the House voted to end capital punishment, but the governor has said he will veto any repeal. In Kansas, where repeal was advocated primarily as a way to save money, the effort stopped short of a vote and the issue is scheduled for more study.  According to the Wichita Eagle, each death penalty case costs an average of 70 percent more than each non-capital case. The paper also suggests that Kansans will be watching to see how nuanced the stand on capital punishment held by US Senator Sam Brownback, a Republican and a Methodist covert to Roman Catholicism, will be in his coming bid for governor.

Ceremonial signing of New York drug law reforms

This local piece provides this effective report on the ceremonial event yesterday in New York to mark the state's recent drug sentencing reforms:

Gov. David Paterson did a ceremonial signing in Queens [Friday] of a bill that reduces sentences for non-violent drug offenders. The legislation, which was passed as part of the 2009-10 state budget early this month, gives judges total discretion to divert non-violent addicts to drug treatment, and it expands the state’s treatment programs.

“This is a proud day for me and so many of my colleagues who have fought for so long to overhaul the drug laws and restore judicial discretion in narcotics cases,” Paterson said at Elmcor Youth and Adult Activities Inc., a state Office of Alcoholism and Substance Abuse Services-funded drug-treatment center. “For years, thousands of New Yorkers have spoken out against the Rockefeller Drug Laws.”

The Rockefeller-era drug laws set up mandatory sentencing for non-violent criminals convicted of drug offenses. There were some changes made to the laws in recent years, but advocates said they were not enough. Besides providing judges more authority over offenders, the new law provides opportunities for additional relief to offenders who were sent to prison under the old statutes. Drug offenders who are not addicted but who sell drugs will be sent to prison under the laws. The law also creates new crimes to ensure that adults who sell drugs to children are appropriately required to serve time in State prison.

Sen. Ruth Hassell-Thompson, D-Mount Vernon, said the new law creates a “balanced approach to drug addiction and crime.” “We are now shifting resources to treat addiction as a medical problem. By diverting addicts to drug-treatment courts, we believe we can get people off drugs and thereby reduce the demand for them,” she said in a statement.

Notable (and major?) child porn ruling from the Second Circuit

Regular readers may recall US District Judge Jack Weinstein's fascinating Polizzi decision last year, in which he ruled that he should have informed the jury of which counts in a child pornography case carry mandatory minimum sentences (basics here, early commentary here, amicus briefing here).  Today the Second Circuit reversed Judge Weinstein's ruling, but seems to do so in a way that could have a much bigger impact than if they had just affirmed.  Here is the Second Circuit's summary of its ruling in US v. Polouizzi, No. 08-1830 (2d Cir. April 24, 2009) (available here):

Appeal from a judgment entered April 9, 2008, in the United States District Court for the Eastern District of New York (Weinstein, J.), convicting defendant of eleven counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).  Cross-appeal from an order and judgment entered April 9, 2008, granting defendant’s motion pursuant to Federal Rule of Criminal Procedure 33 for a new trial on twelve counts charging receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2).  Because the defendant’s possession as charged in the indictment constituted a single unit of prosecution and because the district court erred by granting defendant’s motion for a new trial on the counts charging receipt of child pornography, we vacate the April 9, 2008 order of the district court granting defendant’s motion for a new trial and remand this case to the district court to vacate all but one of the possession convictions and for further proceedings consistent with this opinion.

Here is the key language of what strikes me as a very important holding (and a footnote with caveats) in this decision:

Based on the clear language of the statute, we conclude that Congress intended to subject a person who simultaneously possesses multiple books, magazines, periodicals, films, video tapes, or other matter containing a visual depiction of child pornography to only one conviction under 18 U.S.C. § 2252(a)(4)(B). [FN5]

[FN5]We note that Polizzi was charged with possessing, on a single date, eleven computer files stored on three hard drives housed in two adjacent rooms in a single premises, his detached garage. Moreover, the government has not maintained, either below or on appeal, that Polizzi’s multiple possession convictions under § 2252(a)(4)(B) could be sustained because Polizzi “acquired possession of the [prohibited matters] on different occasions, or that he stored them at different sites.” United States v. Olmeda, 461 F.3d 271, 280 (2d Cir. 2006) (construing 18 U.S.C. § 922(g)). Thus, we need not decide whether § 2252(a)(4)(B) could be construed to support multiple possession convictions if such a theory were pleaded and proved. See Chiarella v. United States, 445 U.S. 222, 236-37 (1980) (noting that “we cannot affirm a criminal conviction on the basis of a theory not presented to the jury”); United States v. Mittelstaedt, 31 F.3d 1208, 1220 (same).

Because I haveto take advantage of the first perfect spring day in Columbus to go to the driving range, I likely will not have sufficient time this afternoon to completely consume and comment on this notable Second Circuit ruling.  But I am hopeful that others will use the comments to help me figure out if the decision is a big deal or really just a big dodge from the Second Circuit.

Related posts on Polizzi and the challenges of child porn downloading cases:

• Judge Weinstein makes notable headlines with notable jury-based ruling
• Judge Weinstein's magnum opus on jury rights
• Fascinating amicus brief filed in Polizzi case
• Third Circuit issues big opinion finding child porn sentence unreasonable
• Notable long child porn sentence upheld by split Sixth Circuit
• Another notable sentencing opinion in a child porn downloading case
• Acquitting and downloading some additional USSC priorities
• Effective review of federal uptick in child-porn prosecutions
• Is there a law student sentencing discount for federal child porn charges?
• Is there an ivy-leaguer exception to federal child porn charges?
• Another notable child porn sentencing decision
• More examples of sentencing uncertainty surrounding federal child porn cases

UPDATE:  The Second Circuit decision also includes an interesting discussion of whether and when it might be appropriate to advise a jury of the mandatory minimum sentencing terms associated with certain charges.  This post at New York Federal Criminal Practice effectively discusses this issue.

District court resists excessive piling of mandatory minimum 924(c) sentences

Thanks to this post at the Second Circuit Sentencing Blog, I discoverd a notable opinion from last month by Judge Jed Rakoff dealing with extreme mandatory minimum stacking 924(c) gun sentences.  Though the procedural posture and precise ruling US v. Ballard, 599 F. Supp. 2d 539 (S.D.N.Y. March 2, 2009), is complicated, this closing line captures the spirit of the ruling: "When the letter of the law so far departs from justice as to become the instrument of brutality, common sense should call a halt."

"Imprisoned by stereotypes"

Inside Out, the online magazine of the Prison Fellowship, has this interesting cover story with the same title as the title of this post.  Here is how it gets started:

When the average person conjures an image of a prisoner, what is pictured?  Does the mind’s eye see a lone shadow with defiance and anger on his face and evil and ill-intent in his heart, prowling for trouble and poised to wreak violence?  And who or what provides this image?  Movies?  The news media?  Fear?

When three people from Texas look into the faces of prisoners, they see an opportunity for repentance, a prospect for a second chance, a vessel of potential. Their perception of prisoners is not based on sensationalized images from any screen, or on what they think it means to be a prisoner. Among them, they have more than three decades of experience in prison ministry. And while they, too, acknowledge that there are prisoners who live up to society’s stereotypes, there are also those who reduce such notions into myth.

"House Members Push Supreme Court Toward Transparency"

The title of this post is the title of this great new piece by Tony Mauro in the Legal Times. Here are excerpts:

The annual House hearing called to consider the Supreme Court's budget request began with its usual rituals Thursday morning.... But then a Texas congressman decided to test just how well the justices were listening and whether they would take his heartfelt message to heart -- a strong plea to the Court to ramp up its transparency and public face....

The provocateur was conservative Rep. John Culberson, R-Tex ... [who was] urging the Court to go to the next level of transparency. The justices had already talked about the occasional release of oral argument audio tapes, and of plans for an improved Web site. Culberson said there would be "no logical distinction" between what the Court has already done, and streaming the video of oral argument on the Court's Web site Suddenly, dressed in high-tech clothes, the old debate over cameras in the Supreme Court had been resurrected.

"It's a very easy matter on the Internet," Culberson said, and to prove it, he took out a device, aimed at the justices and announced that at that very moment, their visages were being seen live on the Internet. (Culberson's video is available at this link.)  The justices were startled, but smiled for the camera....

"The next American revolution is going to come through the Internet," Culberson told the justices. "I encourage you to break down that wall. It's as easy as pushing this button."...

The justices retreated into their usual arguments against camera access.  As he often does, Breyer said the current members of the Court are just temporary stewards of a cherished institution who don't want to damage it in anyway.  Before deciding if the gains are worth the risk, Breyer said "social science research" is needed.  Later, Culberson implored Breyer and Thomas, "Don't wait for the social science research. Trust your hearts."...

Will Thursday's impassioned display of pro-cameras sentiment in Congress make a difference?  Thomas had said that the appropriations committee's views had spurred Supreme Court action on improving technology over the years.  Thomas and Breyer must have left the hearing feeling the momentum on cameras coming from Congress and from technology was heading strongly toward openness.  If the Court eventually, finally, says yes sometime in this century, Thursday's hearing of the financial services and general government subcommittee of the House Appropriations Committee will have played a significant part.

Sentencing in medical marijuana case impacted by statutory minimums

This article from the Los Angeles Times reveals the continued impact of mandatory minimum sentencing statutes even though the guidelines are advisory.  Here are a few of the details:

The sentencing of a man who has become a key figure in the national debate over medical marijuana was postponed Thursday, with a federal judge saying he was inclined to impose a more lenient sentence than the five years required by federal sentencing guidelines, but questioning whether he had the authority to do so.

"If I could find a way out, I would," U.S. District Judge George H. Wu said. He gave lawyers in the case until June 2 to file briefs regarding the impending sentence of Charles Lynch.

Lynch, 47, ran a medical marijuana dispensary in Morro Bay on the Central Coast in 2006 and 2007. Despite having the blessing of the city's mayor and other public officials, he was charged with violating federal drug laws for distributing marijuana and was convicted by a federal court jury in Los Angeles last year.

At the hearing Thursday, Wu heard from several character witnesses, including one of Lynch's patients and the young man's father. "I stand before you today because I believe a man is being punished for reasons that don't make much sense," said Owen Beck, whose parents took him to Lynch's Central Coast Compassionate Caregivers when he was battling bone cancer at age 17. "I believe a great injustice is being done."...

Janice Peters, the mayor of Morro Bay, described Lynch as a "polite, compassionate" man who did everything the city asked of him with respect to his business. Rob Schultz, the town's city attorney said he received only one complaint about Lynch the whole time he was in business "and that had to do with the quality of the medical marijuana."

The comment drew loud laughter from Lynch's supporters, who packed the courtroom, many of them wearing green ribbons with the word "compassion" printed on them.....

Though Lynch was not charged with violating state law, prosecutors contend that he broke the law because he was not truly a "primary caregiver" entitled to dispense marijuana to patients and that he profited from the operation of his business.

Much of the discussion Thursday dealt with whether Wu was required to sentence Lynch to a mandatory minimum of five years or whether the defendant was entitled to a lesser sentence under a so-called safety valve.

Scholarly examination of New Jersey's death penalty repeal

I just notice on SSRN these two pieces that have emerged from the symposium held at Seton Hall in 2008 to discuss the death penalty in New Jersey:

• Herald of Change: New Jersey's Repeal of the Death Penalty

• Litigation, Legislation, Reflection and Repeal: The Legislative Abolition of the Death Penalty in New Jersey

Proposal to cut drug offense sentences in the UK

Especially during National Call-In Day in the US (background here), folks might be intrigued to see this report of a significant development in drug offense sentencing in the UK:

Long prison sentences for drug barons are ineffective as a deterrent and should be cut by up to two years, according to official proposals published yesterday.  Sentences for drug couriers who import small amounts of heroin or cocaine but are very often "naive and vulnerable" women from the developing world are also to be reduced under the recommendations.

But the advice, from the panel that draws up sentencing guidelines, says that heavier sentences should be given to dealers who focus on psychiatric hospitals, drug treatment centres and bail hostels, or who try to smuggle drugs into prisons. 

The proposals feature in a consultation paper published yesterday by the Sentencing Advisory Panel.

Its proposals will be considered by the Sentencing Guidelines Council, which is chaired by Sir Igor Judge, the lord chief justice, and includes the director of public prosecutions. The council lays down the sentencing framework for all the courts in England and Wales.

Prof Andrew Ashworth, the chairman of the panel, said the point was not that a robust approach to sentencing drug barons was inappropriate: crown court judges were giving longer sentences in the most serious cases of importing drugs than they were for adult rape or causing death by dangerous driving....

The panel recommended that the starting point -- when sentences are decided for those guilty of the most serious cases of importing or supplying drugs (bringing in at least 5kg of heroin or cocaine, or 50,000 tablets of ecstasy) -- should be cut from 14 years to 12 years. The final sentence, depending on the nature of the case, should be in the range of 10 to 14 years.

The members advise that the shorter sentences should be accompanied by much more extensive use of asset confiscation orders, which can cover not only ill-gotten gains but also legitimate assets such as houses, cars and yachts.  Confiscation orders are only used in one in eight serious drugs cases at the moment....

The panel also suggested that the sentences for drug mules or couriers should be much shorter. Often their role in criminal organisations was a minor one.  "They are very often naive, vulnerable, men and women from third world countries whose fates are totally disregarded by those at the top of the drug supply chain," said the panel members.

Flawed HLR note on federal white-collar sentencing

The April 2009 issue of the Harvard Law Review includes this student Note focused on federal white-collar sentencing, titled "Go Directly to Jail: White Collar Sentencing After the Sarbanes-Oxley Act."  Here is how the note's conclusion starts:

If the purpose of the WCCPA was to deter white collar crime, the statute’s harsh penalties have not achieved their goal.  Moreover, by introducing the potential for enormously disparate sentences for precisely the same crime, the WCCPA detracts from just punishment.  This Note has proposed merely one way of reforming the sentencing process, in hopes that sentencing will become more consistent and predictable across judges and jurisdictions.

Though the note does a reasonable job of documenting some of the challenges and problems with modern white-collar federal sentencing, there is a telling lack of sophistication in much of the analysis.  This lack of sophistication is most clear from a fundamental flaw in the Note's call for reform: "Congress or the United States Sentencing Commission must take steps to stabilize and rationalize the white collar sentencing system [and this] Note proposes that the best way to achieve this goal would be to tie Guidelines sentencing levels to actual loss, rather than intended loss...." 

As all informed white-collar practitioners know, the federal guidelines have always tied "sentencing levels to actual loss" though USSG 2B1.1, and "intended loss" enters the picture only if and when the intended loss is greater than actual loss.  Moreover, most modern white-collar sentencing decisions that have garnered lots of attention (e.g., Olis and Adelson and Parris) involve cases in which the the actual loss calculation produced a sentencing range that seemed much too high in light of the defendant's true culpability.

Anyone eager for a much more accurate and more sophisticated examination of federal white-collar sentencing must get the Federal Sentencing Reporter's February 2008 issue on this topic (available here, described in detail here and here).  On the precise topic of loss, the FSR issue includes these terrific articles:

• Sentencing High-Loss Corporate Insider Frauds After Booker
• Challenging the Guidelines’ Loss Table
• Is Booker a “Loss” for White-Collar Defendants?

The fact that the Harvard Law Review could publish a note that incorporates such a fundamental flaw provides yet another sobering reminder of the extraordinarily poor instruction at at least one elite law school concerning the basics of federal sentencing law.

Are federal prosecutors over-charging the Somali pirate?

This recent AP article has me wondering if federal prosecutors should be accused of "over-charging" the Somali pirate (and also wondering if anyone really cares if they are).  Here are excerpts from an interesting piece, which is headlined "Prosecutors beefed up charges against scrawny teen":

When U.S. prosecutors brought piracy charges against a teenager from Somalia, they dusted off a law that has been on the books since George Washington was president and used only sparingly since then.

The law's obscurity, the lack of recent precedent and murky definitions of what constitutes piracy could present challenges to law enforcement. But prosecutors also boosted their case with more common nonpiracy charges that could lead to a long prison sentence, even if the piracy count doesn't stick.

The government "threw pretty much everything they had at this guy because I think they wanted to hedge their bets," said Eugene Kontorovich, a professor at Northwestern University Law School....

There are varying accounts of his age — his lawyers say 15, his parents say 16 and the government says at least 18. The judge heard testimony from his father via telephone from Somalia and from government officials Tuesday before determining Muse should be tried as an adult.

The top count against Muse accuses him of piracy under the law of nations, a charge not used regularly since the 1800s. It carries a mandatory life sentence.

The other charges against him — discharging a firearm, conspiring to commit hostage taking and brandishing a firearm — could be found in drug, kidnapping and conspiracy cases throughout federal courthouses in the United States. They also offer potential penalties up to life in prison.

The government also set up a scenario in which they could eventually drop the piracy count in a plea bargain that would give Muse a chance to dodge a life sentence. That could be necessary if legal questions are raised by the piracy statute.

 Recent related posts:

• Might the Somali pirate have an Apprendi claim to try to thwart his federal prosecution?
• Scholarly exploration of applying Apprendi to juve transfer decisions

Will "National Call-In Day for Justice" achieve anything?

I have already received two (not quite distinct) e-mails reminding me that today is "national Call-In Day."  Here are parts of these e-mails:

From FAMM:

Help flood Congress with calls!  Call your federal lawmakers today and tell them that it is time to end the sentencing disparity between crack and powder cocaine.  Your calls will make an important difference.

The National Call-In Day is part of "Crack the Disparity" National Month of Advocacy, a month-long coordinated push to eliminate the sentencing disparity between crack and powder cocaine....

Twenty-three years of a failed policy is long enough!  It's time to end this unjust and disproportionate sentencing policy.  Follow this link to get talking points and contact information for your federal senators and representative.

If you experience any problems using FAMM's Action Center to look up the names of your federal lawmakers, please call the U.S. Capitol Switchboard three times at (202) 224-3121 and ask to speak to your representative and two senators.

From The Sentencing Project:

Today, be one of thousands of people across the country to phone your members of Congress to call for an end to the sentencing disparity between crack and powder cocaine.  Your calls will make an important difference. 

This National Call-In Day is part of Crack the Disparity National Month of Advocacy, a month-long coordinated push to eliminate the sentencing disparity between crack and powder cocaine.

Twenty-three years of a failed policy is long enough!  It's time to end this unjust and disproportionate sentencing policy.

To participate call the U.S. Capitol Switchboard right now at 202.224.3121, and ask to speak to your representatives in the Senate and House.  Urge them to support and co-sponsor H.R. 265, the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act in the House and legislation in the Senate that eliminates the 100 to 1 disparity between crack and powder cocaine. 

 You should place three calls because you have one representative and two senators.  Use this link to help you with your calls to Congress:  Click here for talking points and script.

Regular readers know that I am generally supportive of these sentencing reform efforts, but I cannot help but question whether and how this "call-in" day will achieve anything.  Both of these e-mails assert that "calls will make an important difference," but I genuinely wonder if they will make any difference. 

For at least half of the 23 years of this "failed policy," the US Sentencing Commission and many other important institutions and individuals have been speaking out against crack-powder sentencing disparities.  And yet inertia and a lack of leadership and courage among federal legislators and executive branch officials have kept this policy firmly entrenched in federal statutes.  I sure hope a day of calls might make a difference, but I am not at all optimistic.

Another victim loss in a CVRA ruling from the Tenth Circuit

Today the Tenth Circuit has issues another opinion in the interesting victims rights case In re Antrobus (available here).  Here is the concluding section of the opinion:

This case has a frustrating procedural history.  It is, for example, regrettable that the petitioners were not given access to the ATF report, given the government’s lack of opposition.  But in our system we do not possess perpetual power to revisit regrettable results, especially those we are never asked to review.

In the end, there is no one to blame here.  The CVRA is a relatively new statute that effects dramatic changes to our traditional criminal justice system.  The participants in that system—prosecutors, defendants, victims, and courts alike—are rightfully struggling with its scope and meaning.  Understandably, the process of working out these changes may not be perfect.  District courts and prosecutors must become sensitive to Congress’s new demand that victims have a seat at the table. At the same time, all litigants have to be aware of the constraints associated with efforts to relitigate issues repeatedly, and the scope of our review under law.

New note on sex offender residency restrictions in new Drexel Law Review

Thanks to this post at The Faculty Lounge, I see that "the moment has arrived for the first issue of the Drexel Law Review," and that it includes a "strong student note ... on sex offender residency restrictions."  In fact, I see that the first issue of the DLR includes lots of interesting pieces, and the sex offender piece is titled "Sex Offender Residency Restrictions: How Common Sense Places Children at Risk," and can be accessed here.

Notable and encouraging comments from new USSC chair-nominee

This morning's Rutland Herald has this new piece, headlined "Sessions tapped for federal position," that with lots of intriguing comments from the new nominee for the head of the US Sentencing Commission. Here are some highlights:

Judge William Sessions, who was nominated Monday to be chairman of the U.S. Sentencing Commission, hopes to continue reforming federal sentencing guidelines to address prison overcrowding. "We're at a particular point in history where prisons are incredibly overcrowded," Sessions said. "We're also at a particular point in time in which there's a potential for real change."...

Options other than standard incarceration should be used more to address prison overcrowding, Sessions said. That includes drug treatment courts, placement in home confinement or community confinement, and split sentences in which part of a sentence is served in prison and part is served in the community.

Sessions also hopes to make rehabilitation a higher priority in federal sentences. "For the last 15 years there's been little interest in rehabilitation," Sessions said. Instead, punishment has been the priority. "A person commits a crime, and they get X," he said. "We're going back to, 'How do we get these people rehabilitated so when they get out of prison, they're not a danger?'"

Sen. Patrick Leahy, D-Vt. said he hopes Sessions wins unanimous confirmation in the Senate, and the Vermont senator's position as chairman of the Senate Judiciary Committee could help Sessions' confirmation....

[Recently], the sentencing commission was successful in reforming the crack sentencing guidelines by taking a more incremental approach, Sessions said.  The crack cocaine reforms were retroactive, so the sentences were changed for roughly 20,000 federal prisoners who were already incarcerated.

"To order the federal court system to re-sentence 20,000 people and reduce their sentences by two to three years was a major deal," Sessions said.  The effort also showed Sessions that an incremental approach — along with consensus-building prior to formally proposing sentencing changes — is the key to getting acceptance from Congress....

As the chairman, Sessions said he would have more control over the direction the commission takes.  The chairman sets the agenda and the policy, and speaks before Congress, Sessions said. "You're the face of the commission," he said.  "If you have a real conservative chair, sometimes the perception is that the sentencing commission is real conservative, and vice versa."

Some related posts:

• Judge Sessions, vice-chair of the USSC, now officially nominated to be chair of USSC
• Why federal sentencing reformers must focus on the USSC and lower courts
• Interesting reflections on Obama appointees from drug policy reformers
• More evidence Obama's DOJ is just not that into change in the criminal justice arena
• How a new administration is likely to impact federal sentencing practice
• Should the US Sentencing Commission have more members?
• US Sentencing Commission's regional hearings to start next week
• Lots of news and notes from the US Sentencing Commission
• What might 2009 have in store for . . . the US Sentencing Commission?

Too much of a good thing at the new site The Legal Workshop?

I am pleased to report on a new scholarly on-line project (which I hope will evolve to better achieve its laudatory goals).  The project is the Legal Workshop, and here is its basic mission statement:

The Legal Workshop is a website providing a single online forum for cutting-edge legal scholarship from the top law journals in the country....

The Legal Workshop features “op-ed” versions of the articles published by the member journals. These concise and lively pieces are written for a generalist audience, combining the best elements of print and online publication.

Each Legal Workshop Editorial undergoes the same rigorous editorial treatment and quality screening as the journals’ print content, but readers are able to offer comments and esteemed academics have the option of submitting response pieces, which are checked for citations and substance.

By aggregating the work of multiple law reviews, The Legal Workshop is able to provide frequently updated content. New article-based content is posted every Monday and most Wednesdays and Fridays. The Legal Workshop provides a one-stop forum for readers wishing to stay abreast of contemporary legal scholarship.

Larry Solum has a terrific early analysis here, which includes these three spot-on reactions:

First, the basic idea of creating an outlet for short-form legal scholarship is to be applauded....

Second, I am a bit skeptical of the ambitious claims in the press release about reaching "the general public."...

Third, I am also skeptical about potential for the format of "The Legal Workshop" to produce pieces that will directly influence practitioners -- lawyers and judges, who are most interested in descriptive doctrinal scholarship.

The fact that there is currently only this single criminal law piece now posted on the site, and that it runs nearly 4000 words and proposes a radical change to modern habeas law, confirms all that Larry has to say about this new project.  It is great to have a short-form version of this 70-page habeas article from the Duke Law Review, but I doubt that either the general public or practitioners are going to find the short-form version much more useful and accessible than the long form version. 

Plus, on a very practical level, I will be much less likely to cite the short-form version of the article inbecause its cite form -- which much include this cumbersome URL: http://legalworkshop.org/2009/03/18/habeas-corpus-and-state-sentencing-reform-a-story-of-unintended-consequences -- is much longer than the cite form for the full article.

Cross-posted at LSI here

Huge opinion concluding(?) Ohio lethal injection litigation

A helpful readers sent me a copy of the latest federal district court ruling in Ohio's lethal injection litigation.  The ruling in Cooey v. Strickland is 159 pages(!) and it starts and ends this way:

This matter is before the Court upon remand for consideration of whether the Court should continue a previously granted stay of execution to intervening plaintiff Kenneth Biros in light of Baze v. Rees, 128 S. Ct. 1520 (2008).  For the reasons that follow, this Court finds that Biros is not entitled to a continued stay and VACATES the stay of execution prohibiting the State of Ohio and any person acting on its behalf from implementing an order for the execution of Kenneth Biros....

This is not to say that Biros or any of the various plaintiffs involved in this litigation are incapable of ultimately prevailing in this litigation. Ohio’s method of execution by lethal injection is a system replete with inherent flaws that raise profound concerns and present unnecessary risks, even if it appears unlikely that Biros will demonstrate that those risks rise to the level of violating the United States Constitution.  Thus, although the fact that the evidence at this stage of the litigation does not present a likelihood of Biros prevailing on his claim of a constitutional violation proves dispositive of his request for a continued stay of execution, it does not foreclose the possibility that additional evidence will indeed prove that the problems with Ohio’s policies and practices rise to the level of constitutional error.

Today’s decision therefore neither holds that Ohio’s method of execution by lethal injection is constitutional nor unconstitutional. Rather, today’s decision reflects only that at this juncture, Biros has not met his burden of persuading this Court that he is substantially likely to prove unconstitutionality. It would wholly confound this Court and no doubt many if not most of the people of the State of Ohio, however, if Defendants regarded today’s interlocutory decision as a wholesale endorsement of Ohio’s protocol, practices, and policies, both written and unwritten, and then did nothing to improve them.  Such a misconstrued legal victory for Defendants would be Pyrrhic given that Defendants are charged with carrying out humane and constitutional executions and not with simply prevailing in litigation.

Director Collins appears to recognize as much, given that he testified that the ultimate goal is for Ohio to be as humane as possible and as professional as possible in carrying out its lawful executions.  These are indisputably correct goals.  But Collins also testified that he believes Ohio’s procedures are as humane and the best they can be right now, and he is incorrect.  Thus, despite Defendants’ victory on the narrow issue of injunctive relief today, the aspirations of the State would suggest that the question should not be simply what must be done under compulsion by the Constitution, but also what should be done to meet the professed laudable goals of the State of Ohio.

Download Cooey v. Strickland opinion

Might the Somali pirate have an Apprendi claim to try to thwart his federal prosecution?

This latest news from New York federal courts all of a sudden gives me a great excuse to end my afternoon with a little pirate blogging from Apprendi-land:

A Somali teenager accused of holding hostage a U.S. ship captain in the Indian Ocean after an attempted hijacking will be tried as an adult in New York on piracy charges, a U.S. judge ruled on Tuesday.

Abduwali Abdukhadir Muse, the sole surviving accused pirate from the foiled bid to hijack huge U.S. container ship the Maersk Alabama earlier this month, was put in custody until his next court appearance on May 21.

Muse is charged with piracy, conspiracy to seize a ship by force, conspiracy to commit hostage taking and related firearms offenses.  He faces a maximum sentence of life in prison if convicted....

Muse appeared at a hearing in Manhattan federal court after being brought to New York by U.S. authorities late on Monday.  Parts of the hearing were closed to the public due to questions about whether Muse was less than 18 years old.

Defense attorney Philip Weinstein said he spoke to Muse's father in Somalia, who said his son is 15 years old but prosecutors said Muse told the FBI he was over 18.  U.S. Magistrate Judge Andrew Peck eventually ruled Muse is 18 years old.

As all sentencing fans know, Apprendi holds that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."  Though some might be inclined to argue that the age of the Somali pirate use is a "jurisdictional fact" not subject to Apprendi, functionally a determination of Muse's age is highly consequential to his fate.  And, though I doubt Muse's attorneys would want this age determination made by a jury, I am certain he would prefer that the proof standard on this issue was "beyond a reasonable doubt."

Does anyone know if the proof standard was discussed or debated before Judge Peck in today's hearing?  Does anyone know whether and how Muse's attorneys might appeal this determination at this stage of the proceedings?

One recent related post:

• Scholarly exploration of applying Apprendi to juve transfer decisions

UPDATE:  I just found this effective new AP article suggesting good reasons to wonder about the proof surrounding Muse's age, which in turn suggests that the applicable proof standard for Muse's age could be very important going forward:

Muse's personal details are murky, with his parents in Somalia insisting he was tricked into getting involved in piracy.  His age also remained unclear. 

His parents said he is only 16.  U.S. law enforcement said he is at least 18 and a federal judge agreed Tuesday, ruling that Muse is an adult and that the case can proceed in open court.  Muse's mother said she has no records to prove his age, but she and the teen's father say he is 16. "I never delivered my babies in a hospital," she said.

A classmate, however, said he believed Muse could be older — and that he studied English at school.  "I think he was one or two years older than me, and I am 16," said Abdisalan Muse, reached by telephone in Galkayo. "We did not know him to be a pirate, but he was always with older boys, who are likely to be the ones who corrupted him."

It is rare for Somalis to have formal birth records, and U.S. officials did not say on what basis they believe him to be 18 or older....

In New York, legal experts said the age issue will play a key role as the case develops.

"Age very much matters to how this case will be treated and how he himself will be treated in both the short and long term," said Daniel Richman, professor of Law at Columbia University Law School.  He said it was important from a federal prosecutor's perspective on getting him treated as an adult to "avoid difficult and cumbersome proceedings."

Karen Greenberg, executive director of the Center on Law and Security at New York University's Law School, said that the case could bring the U.S. under international criticism.  "If he is a juvenile and he is tried as an adult and given life imprisonment, it will not help the reputation we are trying hard to reform," she said. "International law is more lenient when it comes to juveniles and we already take criticism."

Colorful developments from the Centennial State

Thanks to two posts from TalkLeft, I see that there are colorful sentencing developments from the great state of Colorado: Colorado House Votes to Repeal Death Penalty and Denver Post Urges Feds to Legalize Marijuana.  Though these developments surely do not mean that all state capital defenders in Colorado should give up their day jobs to start making plans for opening up a head shop, they do provide yet another interesting sign of the current crime and justice times.

I would be grateful to hear from anyone truly in the know about the chances of Colorado formally repealing the death penalty.  This local report suggests that the biggest question now is whether the Governor would sign off on a repeal bill:

The Colorado House approved a plan Tuesday to eliminate the death penalty and use the money to focus on cold cases.

The measure now goes to the Senate, where it's expected to pass. Gov. Bill Ritter, a former prosecutor, hasn't said whether he would sign the bill.

Effective review of Third Circuit's remarkable recent sentencing work

Writing in The Legal Intelligencer, Shannon P. Duffy has this new piece headlined "3rd Circuit Hands Major Victories to Criminal Defense Bar." The piece effectively reviews the two huge sentencing rulings from the Third Circuit last week (blogged here and here), and this is how the piece starts:

Criminal defense lawyers were thrilled by a pair of decisions handed down by the 3rd U.S. Circuit Court of Appeals last week that, like a one-two punch to the government, held that appellate courts must take a hands-off approach even when a sentence is very lenient, and that a below-guidelines sentence is sometimes not lenient enough.

Thursday's ruling in United States v. Olhovsky was especially significant because it marked the first time that the court has instructed a trial judge reduce an already-below-guidelines sentence (pdf) and to focus on the so-called "parsimony provision," which says courts must impose a sentence that is "sufficient but not greater than necessary" to comply with the purposes of sentencing.

Just one day later in United States v. Tomko, a 13-judge en banc panel voted 8-5 in holding that a sentence of probation and house arrest was not "unreasonable" for a wealthy confessed tax cheat -- even though prosecutors complained that the house arrest took place in the "gilded cage" of the defendant's mansion, which was built with the very funds he had hidden from the Internal Revenue Service.

How might new drug war buzz impact SCOTUS student strip-search case?

As detailed in this SCOTUSblog post, the Supreme Court this morning hears an interesting Fourth Amendment case:

[T]he Court will hear argument in Safford Unified School District v. Redding (08-479), on the constitutionality of strip-searching a student at a public school in search of drugs.  Matthew Wright of Holm Wright Hyde & Hays PLC in Phoenix will argue for 25 minutes for the school district. David O’Neil, Assistant to the Solicitor, will argue for 10 minutes for United States as amicus curiae supporting reversal.  Adam Wolf of the American Civil Liberties Union Foundation in Santa Cruz will argue for the student.

Though there are many interesting aspects to this case, I will be reviewing the oral argument transcript closely to see if any of the Justices suggest they see this case as collateral damage from the failed drug war.  As regular readers know, these days are bringing lots of new commentary about the war on drugs being a failure, and I cannot help but wonder if all this buzzing might impact how the Justices think about Redding.

UPDATE:  And, providing the latest proof that outcomes and votes are unpredictable in modern search cases, the Supreme Court today finally handed down its opinion in the car search case of Arizona v. Gant.  Check out this notable alignment of the Justices:

STEVENS, J., delivered the opinion of the Court, in which SCALIA, SOUTER, THOMAS, and GINSBURG, JJ., joined.  SCALIA, J., filed a concur-ring opinion.  BREYER, J., filed a dissenting opinion. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and KENNEDY, J., joined, and in which BREYER, J., joined except as to Part II–E.

Judge Sessions, vice-chair of the USSC, now officially nominated to be chair of USSC

This press release from the White House details that yesterday President Obama made official a nomination that had been rumored for some time:

Today, President Obama announced that he is nominating Judge William K. Sessions III to be the Chair of the United States Sentencing Commission.  Judge Sessions, who is currently a Vice Chair of the Commission, has served on the Sentencing Commission since President Clinton nominated him and he was confirmed by the Senate in 1999.  President Bush re-nominated him for a second Commissioner term in 2003.  Judge Sessions has been a federal judge on the District Court of Vermont since his nomination and confirmation in 1995.

I have great respect for Judge Sessions, and I am confident he will be an effective Chair of the USSC.  But I must express a hint of disappointment that a President who campaigned on a promise of change is content here to just shuffle chairs on the deck of the USSC.  As the official announcement documents, Judge Sessions has served on the USSC for a decade; it seems unlikely he will now try as Chair to move the USSC in a significantly different direction.  The failure of President Obama to pick someone fresh and new for the open USSC Chair strikes me as an opportunity lost.  

That said, perhaps it is a shrewd move for the new Administration to put an insider in the Chair position and then to use other USSC openings to add new and fresh perspectives to the Commission.  There is still an open slot on the 7-member USSC, and I believe additional slots may become open before too long.  The appointment of Judge Sessions to the Chair position might provide useful continuity if President Obama follows up with some real change in other USSC nominations.

Some related posts:

• Why federal sentencing reformers must focus on the USSC and lower courts
• Interesting reflections on Obama appointees from drug policy reformers
• More evidence Obama's DOJ is just not that into change in the criminal justice arena
• How a new administration is likely to impact federal sentencing practice
• Should the US Sentencing Commission have more members?
• US Sentencing Commission's regional hearings to start next week
• Lots of news and notes from the US Sentencing Commmission
• What might 2009 have in store for . . . the US Sentencing Commission?

CNN covers Sullivan case as SCOTUS considers juve LWOP

CNN has this new piece on a notable sentencing appeal, headlined " Sentenced as teen, convicted rapist appeals to highest court." The article is mostly focused on the pending cert petition from Joe Sullivan, whose case I have blogged here and here. Here are snippets:

At 33, Joe Sullivan is serving a life term without the possibility of parole in a Florida prison while confined to a wheelchair.

The crime for which he was convicted was brutal: burglary and the rape of a 72-year-old woman in Pensacola. The man's lawyers say the punishment was equally harsh, particularly for someone with Sullivan's circumstances. He was 13 at the time, and is one of only two people his age in the world, say his supporters, tried as an adult and sentenced to "die in prison" for a crime that wasn't a homicide.

Now the Supreme Court is being asked to decide whether that sentence was cruel and unusual punishment for someone who was barely a teenager at the time of his crime....

Outside a death-penalty context, the high court has offered little recent guidance on how to treat the youngest of underage criminal defendants. The appellate record for rapists under age 15 is almost nonexistent, say legal experts consulted by CNN....

A study by the Equal Justice Institute found eight prisoners serving life terms for crimes committed at 13, all in the United States. Besides Sullivan, Florida inmate Ian Manuel is in a similar situation. He was 13 when convicted of attempted murder and robbery in 1990 and will not get out of prison.

The Justice Department reports no 13-year-old has been given life without parole for crime that wasn't a homicide in a decade. And while about a thousand people every year under 15 are arrested for rape, none have been given life without parole since Sullivan.

Only a handful of states -- including Alaska, Colorado, Kansas, New Mexico and Oregon -- prohibit sentencing minors to life without a chance for parole, according to the National Conference of State Legislatures. Equal Justice Institute says 19 states have laws allowing the possibility of life without parole for those under age 14.

The high court in April 2008 refused to hear the case of a South Carolina boy who was 12 when he murdered his grandparents and was given a 30-year sentence, the maximum allowed under state law. Tried as an adult, Christopher Pittman's lawyers had argued the sentence was excessive, and that heavy doses of antidepressants the boy was taking at the time sent his mind spinning out off control.

While disappointed, Pittman's attorney Michelle Deitch speculated the justices may "have recognized the growing national trend against sentencing young children to harsh mandatory terms in prison, and wants to give state legislatures the opportunity to correct this problem before it rules again on the issue."

Some related posts on juve LWOP and the Sullivan case:

• EJI files seeks cert on claim that juve LWOP is unconstitutional for 13-year-old offender
• "A Life Term for Rape at 13: Cruel and Unusual?"
• NYTimes coverage of very young lifers
• Does Roper suggest young juve LWOP is unconstitutional?
• Juves serving life terms
• Life without parole for juvenile may be cruel, but it is not unusual
• The next issue in sentencing of juveniles?
• Forthcoming PBS program "When Kids Get Life"
• New HRW report assailing juve LWOP in California
• LDF report documents disparities in juve LWOP in Mississippi

Are there any unique California criminal laws that should now be subject to Heller attacks?

As noted here at How Appealing, a unanimous Ninth Circuit panel today held in this opinionthat "the Second Amendment is indeed incorporated against the states."  And at the Volokh Conspiracy, Eugene Volokh already has this remarkable series of follow-up posts:

• Second Amendment Incorporated by Ninth Circuit Panel
• Why the Gun Show Organizers Nonetheless Lost their Case

• What Now for the Question Whether the Second Amendment is Incorporated Against State and Local Governments?

Of course, Eugene and others who focus on all aspects of Second Amendment litigation will surely have a lot more useful insights and questions about this decision and its aftermath than I ever will.  But, regular readers can perhaps already predict the spin I have: this ruling means that California criminal defendants subject to prosecution for certain very broad state or local gun crimes may now have one less hurdle to overcome when arguing that Heller makes their state prosecution constitutionally problematic.

My spin, however, is predicated on a big assumption --- namely that California has certain very broad state or local gun crimes that Heller might make constitutionally problematic.  This, then, provides the basis for today's bleg question in the title of this post:  can readers report on any unique California criminal laws that should now be subject to Heller attacks in the wake of the Ninth Circuit's ruling?

The real story of the death penalty in Kansas and Pennsylvania

I always appreciate reporting and analysis of the death penalty that moves beyond the usual (boring) rhetoric and looks at the reality of how the system gets applied in particular states.  And, helpfully, two new newspapers articles from Kansas and Pennsylvania fit this model.

From places in the heartland comes this piece, headlined "Ruling may void sentences," which includes these notable real-world details of what's the matter with Kansas:

A Kansas Supreme Court ruling that took the death penalty off the table for a Wichita man convicted of two murders could void the death sentences of three other Kansans, lawyers familiar with the law say....

Defense lawyers said the ruling demonstrates how the state's death penalty law remains largely unsettled.  Two of 11 defendants sentenced to death are now off death row, and lawyers said the remaining nine cases contain issues that have yet to be resolved by the state Supreme Court.

Wichita lawyer Richard Ney, who has defended death penalty cases in several states, said the Kansas law remains largely untested by the courts. "There's been a death penalty in Kansas for 15 years, and we haven't gotten one case -- not one single case -- through the first level of appeals," he said. "Not a single case has been affirmed by the Supreme Court of Kansas."

Rebecca Woodman, a state public defender who handles death penalty appeals, agreed. "The reversal rate is 100 percent," she said.

From the Keystone State comes this piece, headlined "Killers languish on Pennsylvania death row as appeals drag on, stats show," which shows the Keystone cop quality of capital punishment in its lead:

Accused cop killer Richard Poplawski is more likely to die from cancer than lethal injection. At least that's what statistics suggest.

Pennsylvania's death row holds 224 convicted killers, the fourth-most in the country. Pennsylvania has executed only three killers since the death penalty returned in 1978 and none in the past decade. During that same period, 20 death row inmates have died of natural causes.

Gov. Ed Rendell said he would sign a death warrant "without a minute's thought" if Poplawski, 22, of Stanton Heights is sent to death row for killing three Pittsburgh police officers April 4 outside his home.  But prosecutors have failed to get death sentences in the past three trials involving the slayings of police officers in Western Pennsylvania.

How about some targeted clemency grants to save $100 million of federal tax dollars?

This new Politico piece, headlined "Obama to order $100 million in cuts," spotlights this latest news from the White House:

At the first Cabinet meeting of his presidency, President Obama on Monday will challenge the departments to collectively cut $100 million over the next three months, a senior administration official said.  The official said the exercise is “part of his commitment to go line by line through the budget to cut spending and reform government.”

“Agencies will be required to report back with their savings at the end of 90 days,” the official said.

Here is my suggestion for a simple way to cut $100 million of wasteful federal spending ASAP: commute the final year(s) of the prison sentences for a few non-violent offenders serving overly long federal prison terms due to mandatory sentencing statutes/guidelines.  There are now well over 200,000 federal inmates costing US taxpayers around $50,000 per year to keep incarcerated.  Commuting just the final year of the prison sentence for just the most deserving 1% of this population would, in one quick and easy step, cut $100 million in wasteful federal government spending.

Consider in this context that the retroactive application of the new reduced crack guidelines, according to the latest official USSC data, has cut over 25,000 years of scheduled federal imprisonment (over 12,500 crack offenders have received sentence reductions that have averaged 2 years in length) and thus saved federal taxpayers over $1 billion in scheduled federal incarceration costs.  I think we could and should try to save an addition $100 million by cutting some breaks to a few other federal offenders).

Some related (old and new) posts:

• 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
• Another public and potent call to reinvigorate the pardon power
• Inaugural rhetoric about freedom and liberty in prison nation
• Will we invest in classrooms or cells in these tough times?
• The state of cost problems in the states of prison nation
• Why we need a re-entry czar and a task force on the prison economy
• Hoping someone in a town hall might ask Prez Obama about government spending for the drug war in prison nation
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
• FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"

SCOTUS grants cert in three criminal cases (including the "animal porn" case)

As detailed in this postat SCOTUSblog, the Supreme Court this morning "has granted certiorari in three cases: Bloate v. US, US v. Stevens,  and Pottawattamie County et al. v. McGhee et al."  As revealed by these SCOTUSblog summaries, all these cases involve criminal justice issues:

Bloate v. US Issue:Whether time granted at the request of a defendant to prepare pretrial motions qualifies as “delay resulting from other proceedings concerning the defendant” and is thus excludable from the time within which trial must commence under the Speedy Trial Act of 1974, 18 U.S.C. 3161 et seq.

US v. Stevens Issue: Is 18 U.S.C. 48, on depictions of  animal cruelty, facially invalid under the Free Speech Clause of the First Amendment?

Pottawattamie County et al. v. McGhee et al. Issue: Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation, and then introduced that same testimony against the criminal defendant at trial.

As noted in this post last summer about the Third Circuit's ruling in the Stevens case, the constitutionality of the federal criminal statute at issue in that case has potential implications for child porn prohibitions and also related sex crimes.  And, ironically, the very fact that the Supreme Court has taken up the Stevens case may lead more persons to become interested in the very behavior that the underlying criminal statute seeks to address.

UPDATE:  SCOTUSblog reports a little more on these grants here, and the AP has this explanation of the animal porn videos that helped bring these issues to the highest court in the land:

The Supreme Court will consider reviving a federal law banning the sale of images of animal cruelty. A federal appeals court said the law illegally restricts this form of free speech.... The government says it has a "compelling interest in protecting animals from wanton acts of cruelty."

The Humane Society of the United States, backing the government, says that the 1999 law played a critical role in stopping the spread of so-called crush videos that show women crushing to death small animals, often with their bare feet or high-heeled shoes.

Injustices, waste and mis-management in Texas capital defense system

Providing a fitting follow-up to The Constitution Project's important report on indigent defense (discussed here), the Houston Chronicle has this effective and important article headlined "Death row lawyers get paid while messing up: Attorneys who continue to miss appeal dates are still getting cases."  Here are a few of the details:

Texas lawyers have repeatedly missed deadlines for appeals on behalf of more than a dozen death row inmates in the last two years — yet judges continue to assign life-or-death capital cases and pay hundreds of thousands in fees to those attorneys, a Chronicle records review shows.  Missing deadlines means their clients can be automatically denied constitutionally mandated reviews before their execution. 

Houston lawyer Jerome Godinich missed three recent federal deadlines, the Chronicle reported in March. One client was executed in February after the federal appeal was filed too late.  In March, the 5th Circuit Court of Appeals chastened Godinich for using the same excuse — a malfunctioning after-hours filing machine — for missing another deadline for a man still on death row.

A recent review of the Harris County Auditor’s billing records and district court records shows Godinich remains one of the county’s busiest appointed criminal attorneys, billing for $713,248, including fees for 21 capital cases.  He was appointed to handle 1,638 Harris County cases involving 1,400 different defendants from 2006-March 2009, court records show....

Godinich is not the only attorney to miss death row deadlines....  Only one of three Texas lawyers who repeatedly missed such death row deadlines has faced fines or been forced to forgo fees by judges....

Jack V. Strickland Jr., a Fort Worth lawyer who specializes in capital case law, also has repeatedly missed death row deadlines. However, judges accepted his explanations and allowed late filings for four of five appeals. Being overwhelmed on capital cases was the excuse for two late 2008 filings....

In another case, Strickland missed both state and then federal deadlines for the death row inmate, Quintin Jones.  Before losing his federal appeal due to lateness, Jones repeatedly tried to get another attorney. Strickland said he “almost begged the magistrate judge to appoint someone else. Jones and I had a very unpleasant relationship.”  He was left on the case anyway.

Strickland blamed the deadline error on miscalculating the due date.  He earned $428,850.62 in court-appointed fees in Tarrant County from 2006-2009.  More than a quarter were bills for late appeals, auditor’s records show.

"America Should Decriminalize Drugs"

According to this piece at The Daily Beast, the title of this post is "what César Gaviria, the former president of Colombia, tells the Daily Beast in an exclusive interview following Obama's visit to Latin America."  Here is more from the piece:

[E]nforcements efforts are important, but when it comes to diluting the demand for drugs, the U.S. is missing the point, says the former President of Colombia, César Gaviria, in an exclusive interview with The Daily Beast.  A central player in the 1990s drug wars, Gaviria was the leader of a country that supplied the bulk of the planet’s cocaine.  Now, he believes the best way to break the world’s thirst for drugs is to decriminalize them — not just the “soft” ones, but all of them....

Gaviria has lived the drug war first-hand, and says fighting it was “a very frustrating experience.” He believes “it is a failure because there are hundreds of thousands of people jailed, while consumption remains basically unchanged in the U.S. and is growing significantly in Europe.”  He also points out that it has been “a source of indiscriminate violence and corruption in Latin America, and is weakening our democratic institutions.”

For the 62-year-old Gaviria, the former Secretary General of the Organization of American States, to call for such a radical change as decriminalization is groundbreaking.  As president of Colombia from 1990 to 1994, he battled the cartels during some of that country’s most violent years. He led the crackdown that would ultimately bring down the powerful Medellín Cartel and its infamous leader, Pablo Escobar.  “The fight against the drug cartels is unavoidable,” Gaviria says.  “If you don’t do it, they become too powerful and may even pose a military threat, as we saw in Colombia. But that does not mean that such efforts reduce the flow of drugs.”

Some recent related posts:

• Talk of drug courts, but not major policy changes, in drug war from Obama team
• Thoughtful academic thoughts on ending marijuana prohibitions
• "Time For Marijuana Legalization?"
• Terrific commentary and assessment of the war on drugs
• Renewing a lawyerly pitch for ending drug prohibition
• More calls for an end to the drug war and legalization of marijuana

Major report from The Constitution Project on right to counsel

Last week, the folks at The Constitution Project released a massive report on the state of indigent defense titled "Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel." The work is available here, and it is an impressive and important contribution.  This page describes the report's background:

The National Right to Counsel Committee was created in 2004 to examine the ability of the American justice system to provide adequate counsel to individuals in criminal and juvenile delinquency cases who cannot afford lawyers.  Decades after the United States Supreme Court ruling in Gideon v. Wainwright and other landmark Supreme Court decisions, which recognized the right to lawyers for those who cannot afford them, there was disturbing evidence that states and localities were not providing competent counsel, despite the constitutional requirement that they do so.

The Committee’s charge was to assess the extent of the problem, the various ways that states and localities provide legal representation to those who cannot hire their own lawyers, and to formulate recommendations about how to improve systems of indigent defense to ensure fairness for all Americans.  The result is Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel.

Justice Denied is not just for those who provide indigent defense services, although everyone in the business of providing such services will surely find it of interest.  Instead, the report should be required reading for legislators, executive branch officials, judges, researchers, bar leaders, and everyone else who possesses the power to remedy or influence the problems that this report vividly documents.  Justice Denied is the handbook that lights the way toward genuine and lasting improvement in the delivery of indigent defense services in America, thus enhancing the quality of justice for all. Its findings and recommendations must — at long last — be heeded.

This post at The BLT provides follow-up info:

[P]roject president Virginia Sloan is determined not to let the 213-page report, full of recommendations, gather dust on a shelf. "We went right from the press conference to David Ogden's office," she said, referring to the new deputy attorney general. "And we are talking to folks on the Hill and policymakers at the state level as well."...

The federal government will need to play a key role in remedying the problem through increased grant funding, the report states. It even urges individual defenders to refuse new cases if their current workload leaves them unable to meet their professional obligations.

"We've already heard from people that this is the most comprehensive look at indigent defense in 30 years," says Sloan. "And it wasn't done by the defense community or the ABA. It is completely bipartisan."

I am not optimistic that, at a time when states are pinching every penny, more money will be spent on defense systems.  But I sincerely hope that this report and the folks at The Constitution Project can succeed on this very important issue.

Talk of drug courts, but not major policy changes, in drug war from Obama team

This big story from CNN on the latest drug war talk coming from the Obama team reveals that drug courts, but not any moves toward legalization, appears to be focus on the new Administration:

The man Obama picked to be the new "drug czar," Gil Kerlikowske, has made it clear that the United States is going to do a better job of treating addicts to try to reduce the demand for narcotics. Kerlikowske, 59, is a military veteran with 36 years of law enforcement experience. The drug czar oversees an agency that sets the country's drug-control strategy.

The White House and Congress want to see more drug courts, and increased funding for the program 250 percent in the spending bill signed in March....

Vice President Joe Biden stressed the importance of drug courts and prisoner re-entry programs when he announced Kerlikowske's position in March, saying they "can serve as the light at the end of the tunnel, of a very long, long dark tunnel, for those who are stuck in the cycle of drug addiction and incarceration."...

The White House has listened to those who say legalizing marijuana will pull the rug from under the violent cartels in Mexico and boost the U.S. economy, but that option is not on the table. Asked Thursday if that is something realistic, Homeland Security Secretary Janet Napolitano quickly responded, "No, it is not."

Sixty percent of drug criminals sent to prison re-offend, compared to 17 percent of graduates of drug court, according to the National Association of Drug Court Professionals.  Drug policy experts like those numbers, but say the nation needs more treatment options.

"For individuals who don't have the resources, don't have public health insurance, can't afford it themselves, the single best way that they can access treatment is to get arrested," said Ryan King, a policy analyst with the Sentencing Project.  "And that's wrong.  What we need to do is make sure for every American that is abusing drugs and wants to stop, that they have the resources made available to them, regardless of whether they can afford them."

Georgia struggles to pay for a costly capital system

This morning's Atlanta Journal Constitution has this article about the ugly reality of capital case costs, headlined "‘Crisis’ in death-penalty trial system: Too little money available, attorney says." Here is how it starts:

They involve some of Georgia’s most heinous slayings, with death-penalty defendants accused of massacres, child killings, crimes of unthinkable depravity.

Yet almost one in five of all pending capital cases statewide is stalled because there is no money to pay for the defense of the accused. Judges and prosecutors are exasperated. Defense attorneys are filing contempt motions and asking to withdraw from their cases.

“It’s a constitutional crisis,” Forsyth Superior Court Judge Jeffrey Bagley said at a recent hearing for Frank Ortegon Jr., accused of a murderous rampage at a farmhouse three years ago. Not only is a defendant’s right to a fair and speedy trial compromised, Bagley said, but the community isn’t getting resolution, either.