Sentencing Law and Policy

"California Inmate Plan Draws Ire"

The title of this post is the headline of this article in today's Wall Street Journal.  Here are excerpts from the start of the article:

California spent the past two decades making criminals pay ever-higher prices for their misdeeds, with stricter enforcement and stiffer sentences. Now, the high price of housing its inmate population has the cash-strapped state looking to dump thousands of future convicts into crowded local jails.

The proposal is part of Gov. Arnold Schwarzenegger's plan to help Sacramento overcome a $21 billion budget deficit projected for the fiscal year beginning in July. The governor wants to change sentencing guidelines so that offenders who commit such low-level felonies as auto theft or drug possession could be charged with only misdemeanors -- allowing them to serve sentences in county jails instead of state prisons.

Local law-enforcement officials warn that an influx of new inmates could force them to release their own prisoners to make room. Changing sentencing guidelines would eventually steer 20,000 inmates away from state prisons to county jails, Mr. Schwarzenegger estimates. California's county jails now hold about 80,000 inmates, according to the state Department of Corrections and Rehabilitation.

Mr. Schwarzenegger estimates the plan would save the state about $1.1 billion over the next three years. If state lawmakers approve the idea, along with a range of other options being negotiated -- such as closing state parks and cutting school budgets -- it could be in place as early as July....

Los Angeles County Sheriff Lee Baca said Friday that Mr. Schwarzenegger's plan would "result in the undesirable release of some offenders." Los Angeles County has the state's largest jail system, with seven facilities housing nearly 20,000 prisoners. The L.A. County system is already near its court-ordered capacity cap, said sheriff's department spokesman Steve Whitmore. The governor's proposal could result in about 4,000 more inmates sent to county jails every year, he said, and "there is no place to put those inmates."

Great new article on Apprendi and parole in Columbia Law Review

I am pleased to be able to highlight the publication of this great new article by W. David Ball in the June 2009 issue of the Columbia Law Review, titled "Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and the Meaning of Punishment."  The full article can be accessed at this link, and here is the abstract:

Under Apprendi v. New Jersey, any fact that increases an offender’s maximum punishment must be found by a jury beyond a reasonable doubt.  The Apprendi literature has focused on the allocation of power between judge and jury, ignoring entirely the role of the parole board in indeterminate sentences — that is, sentences which terminate in discretionary parole release. In an indeterminate sentence, a judge makes a pronouncement about the length of the prescriptive sentence to be imposed, but the parole board decides the actual sentence that is, in fact, imposed.  In this Article, I explore the Apprendi ramifications of indeterminate sentencing. In states where a prisoner is presumptively entitled to parole release, the denial of parole increases the maximum punishment without a jury finding the relevant facts beyond a reasonable doubt. In California specifically, the parole board can transform parole eligible offenses into parole ineligible offenses based on its own findings of fact about the crime, even when these findings contradict the jury’s.  A purely mechanical reading of Apprendi would require jury findings of fact for all components of the parole release decision.  I argue for a reading of the Apprendi rule more consonant with Justice Stevens’s Apprendi opinion itself, where the jury’s power comes from its role as the retributive conscience of the community.  Because indeterminate sentences combine retributive and rehabilitative components, they delineate where — and, more importantly, why — the Apprendi jury right applies to some facts and not to others.  Exploring Apprendi in this context restores needed coherence to the doctrine, illustrating larger issues about the punitive and rehabilitative aspects of sentencing as well as the judicial and executive limits of punishment.

I was graciously asked to write a little review/response to this article for the Sidebar feature of the Columbia Law Review, so I will avoid pre-empting myself with extended comments now.  But I will here quote my first line: "David Ball’s article merits a place on any Top 10 list of must-read pieces concerning the Supreme Court's modern sentencing jurisprudence."

"Judge Orders Former Bristol-Myers Executive to Write Book"

The title of this post is the headline of this New York Times article discussing a creative sentencing term imposed by a federal judge on a white-collar offender.  Here are a few of the details:

On Monday, Judge Ricardo M. Urbina of the United States District Court for the District of Columbia, sentenced a former senior pharmaceutical executive to write a book. Earlier this year the executive, Dr. Andrew G. Bodnar, a former senior vice president at Bristol-Myers Squibb, had pleaded guilty to making a false statement to the federal government about the company’s efforts to resolve a patent dispute over the blood thinner Plavix.

The judge sentenced Dr. Bodnar to two years of probation during which he is to write a book about his experience connected to the case. Dr. Bodnar must also pay a $5,000 fine. Elkan Abramowitz, Dr. Bodnar’s lawyer, said he had never before heard of a case in which a judge sentenced a defendant to write a book.

But this is not the first time Judge Urbina has demanded written penance. In 1998, he sentenced a prominent Washington lobbyist to write and distribute a monograph to 2,000 lobbyists at the defendant’s own expense. The lobbyist, James H. Lake, pleaded guilty to making illegal corporate campaign contributions. Judge Urbina ordered him to pay a $150,000 fine and to write a monograph describing the criminal provisions of federal laws governing corporate campaign contributions.

In the sentencing hearing on Monday, Judge Urbina said he would like to see Dr. Bodnar write a book about the Plavix case as a cautionary tale to other executives. The case concerned accusations that Bristol-Myers had made false statements to federal investigators about the company’s attempt to resolve a patent dispute with a Canadian maker of generic drugs, Apotex.

The WSJ Law Blog has this useful follow-up post on the sentence, which is titled "Go Directly to . . . Authorship? More on Judge Urbina’s Odd Sentence" and includes an interesting Q&A with Dan Markel.

ABA Journal covers the controversies over federal child porn sentences

The June issue of the ABA Journal includes this long article on the debate over federal child porn sentencing.  The article is titled, "A Reluctant Rebellion," and here are some excerpts:

[Judge Lynn] Adelman’s criticism [of the child porn sentencing guidelines] goes to the heart of a much larger struggle in the federal courts over the federal sentencing guidelines that apply to computer-based child pornography offenses. Those guidelines tend to treat even first-time offenders with no history of abusing or exploiting children as seriously as murderers, rapists or child molesters.

Critics say the mandatory and recommended pen­alties for child porn offenses under the guidelines far exceed the seriousness of the crime committed by the typical offender who is swapping and down­loading child porn online with other like-minded in­dividuals in the presumed privacy of his own home.... But prosecutors and activists say the proliferation of child pornography on the Internet is an insidious problem that justifies the taking of extreme measures.

It is a debate that pits polite society’s disgust and revulsion against a judge’s solemn duty to impose a penalty that serves the three main purposes of sentencing: to punish the defendant, protect the public and deter the offender from re-offending.

Child porn cases account for about 2 percent of the entire federal criminal caseload, according to the U.S. Department of Justice, but they make up one of the fastest-growing segments of the federal court docket. The number of new cases filed has grown from a few dozen annually in the late 1990s to more than 2,200 in fiscal 2008, ending Sept. 30. That latest figure represents a 33 percent increase over the 2006 fiscal year, and a doubling in the number of new cases since 2003.

The average sentence has lengthened as well, according to the U.S. Sentencing Commission. In 1997, child porn offenders (not including those involved in its production) received an average sentence of less than 21 months in prison. In 2007, the same class of offenders received an average sentence of more than 91 months, an average annual increase of more than seven months per offender and a nearly 350 percent increase over the previous decade.

But those same statistics also show that more than one-third of all child porn defendants sentenced for nonproduction-related offenses in 2007 — 351 out of 1,025 offenders — received sentences below the recommended guidelines. And, in the past two years alone, a small but growing number of federal judges have felt strongly enough about the guidelines to register their objections in the form of a written opinion.

Some related federal child porn prosecution and sentencing posts:

• Strong sentencing opinion noting disparities in federal child porn downloading cases
• Yet another notable written opinion in a federal child porn downloading case
• Is there an ivy-leaguer exception to federal child porn charges?
• More examples of sentencing uncertainty surrounding federal child porn cases
• Is there a law student sentencing discount for federal child porn charges?
• Judge Adelman operationalizes deconstructed child porn guidelines
• Another notable child porn sentencing decision
• Another notable sentencing opinion in a child porn downloading case
• Acquitting and downloading some additional USSC priorities
• Thoughtful opinion focused on bad health as the basis for a below-guideline sentence
• Effective review of federal uptick in child-porn prosecutions
• Another puzzling report on federal child porn sentence
• Notable long child porn sentence upheld by split Sixth Circuit

Ohio — aka the Texas of the north — setting busy execution schedule

Though not historically a state with lots of executions, Ohio in recent years has been one of the most active death penalty states.  And, as detailed in local articles here and here, the "pace of executions in Ohio has become so brisk that the Ohio Supreme Court plans to slow it down a tad."  

As indicated in this order denying a stay for a defendant who is scheduled to be executed next month only a week after another scheduled execution, the Ohio Supreme Court indicated that "[i]n general, future execution dates will be scheduled in order that at least three weeks will lapse between scheduled executions."  And, as reporting in this AP feature, an additional four Ohio executions are also scheduled for later in 2009. 

If all seven executions go forward in Ohio, the state will have a (not-quite-)record-setting number of executions in a single year in a state not named Texas.  I also think the Ohio would be setting a record for the number of executions in a state with a Democratic governor.  In addition, if a few more states also keep their execution chambers busy, the first year of Obama's presidency might, remarkably, end up having more execution than any year in which George W. Bush was president.

UPDATE:  In the comments here, a few folks have rightly noted that  Missouri, Oklahoma and Virginia have all executed more than 7 defendants in a single calender year (though I am not sure if any of those states had Democratic governors in those years).

Around the blogosphere

Returning from the USSC conference in New Orleans to discover lots of posts of note around the criminal law blogosphere:

• From Capital Defense Weekly, "Alabama kills"
• From Grits for Breakfast, "Early education and crime"
• From StandDownTexas, "District Attorneys Disagree on Racial Justice Act"
• From TalkLeft, "Judge Sotomayor Is Either Tough Or Soft On Crime (Part 1)"
• From TalkLeft, "Sotomayor and AEDPA: Blame AEDPA More"
• From TalkLeft,"WA State Grants Clemency to Three Strike Offender"

Justice Stevens refuses to grant bail for Conrad Black

In this post at SCOTUSblog, titled "Black loses bail plea — for now," Lyle Denniston reports that "Supreme Court Justice John Paul Stevens refused on Thursday to order the release on bail of Canadian media mogul Conrad M. Black, but allowed Black’s lawyers to make a new plea for his freedom from a federal judge."  Here are more details:

Stevens’ order, containing no explanation, can be found here.  The bail issue (application 08A1063) is separate from the Supreme Court’s planned review of Black’s conviction; the Justices will hear and decide that case next Term (Black, et al., v. U.S. 08-876).

Black, if he chooses to do so, can now take the bail issue back to a federal judge who earlier had concluded that Black need not be held while his case proceeded beyond his conviction in a high-profile executive compensation case involving accusations of fraud and obstruction of justice.

That judge, District Judge Amy J. St. Eve of Chicago, denied a request by the government — while Black was awaiting sentencing — to order him detained.  He was then sentenced to a 78-month sentence, and went to prison when the Seventh Circuit Court refused further bail while he pursued an appeal to the Circuit Court.

In the Big Easy to discuss not-so-easy sentencing topics

I am in New Orleans today to talk about departures and variances at the US Sentencing Commission's National Annual Seminar.  I expect blogging will be light the rest of today, but I am hoping events at this conference will inspire some new post-Booker insights for future posts.

Pot dispensary owner scheduled to be finally sentenced... (and gets a year in prison)

As detailed in this AP piece, a high-profile case involving a dispenser of medical marijuana is suppose to finally get to sentencing today:

A medical marijuana dispensary owner is scheduled for sentencing in one of the nation's first cases since the Obama administration modified its pot policy.

Charles Lynch will appear Thursday in the Los Angeles federal courtroom of U.S. District Judge George Wu, who said at a hearing in April that he would consider reducing Lynch's mandatory minimum five-year sentence. Lynch was convicted of five offenses last year for running a medical marijuana collective in San Luis Obispo County.

As detailed in some of the posts below, this case has already generate a number of notable sentencing issues.

• Medical marijuana fans now feeling they can exhale and inhale
• Maui wowie: pot sentencing impacted by new federal policy
• Sentencing in medical marijuana case impacted by statutory minimums

UPDATE:  As detailed in this article from the New York Times, Lynch got a year in prison.  Here are the sentencing basics:

In imposing his sentence on Charles C. Lynch, who ran a dispensary in the surfing hamlet of Morro, Judge George H. Wu said the changed federal policy did not directly affect his ruling. But the judge talked at length about what he said were Mr. Lynch’s many efforts to follow California’s laws on marijuana dispensaries and the difficulty the judge had finding a loophole to avoid sending him to prison.  “I find I cannot get around the one-year sentence,” Judge Wu said of federal sentencing laws.

The judge said he had reduced the sentence from a mandatory five years because Mr. Lynch had no criminal record or history of violence, and did not fit the strict definition of a “leader” of a criminal enterprise.

"Teen with 47 IQ gets 100 years in sex abuse case"

A helpful reader forwarded to me this article with the headline that appears in the title to this post.  Here are the particulars:

A teenager who has profound mental disabilities was sentenced to 100 years in prison after pleading guilty to charges in a sex abuse case involving his 6-year-old neighbor.

Aaron Hart, 18, of Paris, was arrested and charged after a neighbor found him fondling her stepson in September. The teen pleaded guilty to five counts, including aggravated sexual assault and indecency by contact, and a jury decided his punishment.

Lamar County Judge Eric Clifford decided to stack the sentences against Hart after jurors settled on two five-year terms and three 30-year terms, The Dallas Morning News reported Wednesday. The judge said neither he nor jurors liked the idea of prison for Hart but they felt there was no other option.

Senate hearing to discuss Senator Webb's national crime commission bill

As detailed at this official webpage and in this report from The Sentencing Project, on Thursday June 11, the Senate Judiciary Subcommittee on Crime and Drugs will host a hearing  to discuss Senator Jim Webb's bill proposing the creation of a national commission to comprehensively review national crime and punishment issues.  The hearing is entitled "Exploring the National Criminal Justice Commission Act of 2009," and this eclectic group of persons are scheduled to testify: 

Chief William Bratton
Los Angeles Police Department
Los Angeles, CA

Pat Nolan
Vice President
Prison Fellowship
Lansdowne, VA

Professor Charles J. Ogletree
Harvard Law School
Cambridge, MA

Brian W. Walsh
Senior Legal Research Fellow
Center for Legal and Judicial Studies
The Heritage Foundation
Washington, D.C.

Some related (old and new) posts:

• Senator Jim Webb takes his concerns about prison nation to the next level
• NY Times editorial backs Senator Jim Webb's reform plans
• My latest (academic?) musings about progressive punishment perspectives
• How many states are being forced by economic realities to consider releasing prisoners?
• Will we invest in classrooms or cells in these tough times?
• Senator Jim Webb continues his important campaign for serious sentencing and prison reforms
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• (Too) little coverage of JEC hearing on US drug policy
• Upcoming JEC hearing on costs of US drug policy
• Congressional hearing on mass incarceration
• More on the JEC hearing on mass incarceration
• Great TNRcoverage of JEC hearing on mass incarceration

"Tough sentencing harder on budgets than on crime"

The title of this post is the headline of this recent op-ed by Marc Mauer of The Sentencing Project.  Here are some excerpts:

[G]overnors across the nation are finding that prison expansion in the midst of an economic crisis is not sustainable, since it cuts into funding for higher education and other vital services.

The fiscal crisis, though, offers an opportunity to get beyond the "tough on crime" rhetoric that has shaped criminal-justice policy and to promote bipartisan initiatives that are both fiscally responsible and enhance public safety. If prison growth is to be brought under control, three areas of policy are critical for success: sentencing reform, prisoner re-entry and reducing parole revocations.

Much of the get-tough approach to sentencing of recent decades has been driven by the war on drugs, which has produced a remarkable rise in the number of drug offenders in prisons and jails — from 40,000 in 1980 to 500,000 today....

By crowding prisons with nonviolent drug and property offenders at an annual cost of $25,000 per prisoner, we have diverted precious resources that could be used in more targeted ways to address serious crime problems.

Indeed, New York reduced its rate of incarceration by 15 percent from 1997 to 2007, yet registered a 40 percent decline in violent crime during that period.

For three decades, criminal-justice policy has been governed by a tough on crime mentality that has produced record prison populations, with only a modest impact on crime.  The fiscal crisis now provides incentives for policy makers to abandon ideological rhetoric and to focus instead on what works to reduce crime.  Such a policy is neither liberal nor conservative but a smart way to focus on the problem.

Should and will Conrad Black get bail from the Supreme Court?

As detailed in posts here and here at SCOTUSblog, all the briefs are now before the Supreme Court in Conrad Black's request for bail from the Supreme Court.  Here are the basics from Lyle Denniston's most recent dispatch:

Lawyers for a Canadian newspaper magnate convicted in the U.S. in a high-profile executive compensation case made their final plea Tuesday night for his release on bail.  In a reply brief (found here) to Supreme Court Justice John Paul Stevens, attorneys for Conrad M. Black completed their arguments for his freedom so he could return to Canada.

The exchanges between Black’s counsel and the Justice Department over the bail issue have come to center primarily on the fate of his conviction on charges of obstruction of justice.  Black was also convicted on fraud counts, but the Supreme Court last month agreed to rule on the validity of that part of his conviction.

Black contends that, if the fraud counts are overturned by the Supreme Court when it rules on its case in the Term starting next October, his obstruction conviction will be undermined. The Justice Department disputed that.

In their closing filing, Black’s lawyers asked Justice Stevens to grant bail while the Supreme Court case is pending, and then refer the release issue to a federal judge to impose a bond.   Justice Stevens has the authority to act on his own, or to refer the matter to the full Court.

Black is currently in prison in Florida, having served so far 18 months of his 78-month sentence.  He is the only one reamining in prison among the former colleagues in his media empire who were convicted. Others were not given prison terms, or have been released on bail pending the Supreme Court ruling.

I think the Supreme Court should grant bail, but I fear it won't.  Anyone else have thoughts about whether the Justices should or will grant Black's request for release?

Another district judge adopts 1-to-1 crack/powder sentencing plan

In this post last month, I reported on the thoughtful opinion in US v. Gully, No. CR 08-3005-MWB (N.D. Iowa May 18, 2009), Judge Mark Bennett explaining why  he adopted a 1:1 ratio for crack sentencing cases.  Thanks to a helpful reader, I can now post another thoughtful district court opinion, this one from Judge Paul Friedman of the U.S. District Court for the District of Columbia, that also mebraces a 1-to-1 crack-to-powder ratio.  The opinion in US v. Lewis, No. 04-0430 (D.D.C. June 9, 2009), can be downloaded below, and here is the key part of Judge Friedman's explanation for his sentencing plans:

For all of these reasons, this Court disagrees, as a matter of policy, with both the amended 100-to-1 crack-to-powder ratio currently embodied in the Sentencing Guidelines and the 20-to-1 ratio the Sentencing Commission more recently endorsed for practical political reasons.  The Court instead concludes that the appropriate ratio is 1-to-1.  Thus, in the future, this Court will apply the 1-to-1 ratio in all crack cocaine cases and then will separately consider all aggravating factors applicable in any individual case, such as violence, injury, recidivism or possession or use of weapons.

Henceforth this Court will employ a three-step approach – or where mandatory minimum sentences are implicated, a four-step approach – to sentencing in crack cocaine cases.  First, it will calculate the sentencing range under the existing Sentencing Guidelines (i.e., it will use the amended 100-to-1 ratio found in the Guidelines and then factor in any appropriate adjustments or departures contained within the Guidelines).  Second, it will calculate an alternative sentencing range using a 1-to-1 ratio (by using the powder cocaine Guidelines) and then factor in any appropriate adjustments or departures contained within the Guidelines.  Third, it will consider whether it is appropriate to vary from the alternative 1-to-1 sentencing range based on the Court’s consideration of the relevant factors set forth in 18 U.S.C. § 3553(a) as they apply to the individual defendant and the particular case – including, but of course not limited to, any aggravating factors such as violence, injury, recidivism or possession or use of weapons.  See United States v. Gully, 2009 WL 1370898 at *9.  While theoretically this could lead to a downward variance, in view of the Court’s approach it would more likely lead to an upward variance in an individual case to take account of the defendant’s history of violence, the use of violence in a particular case, injury to others, the presence or use of firearms or other weapons, or the defendant’s recidivism.  As a fourth and final step, the Court will of course implement any statutory mandatory minimums applicable to the case – even though the statutory mandatory minimums themselves embody the now-discredited 100-to-1 ratio between crack and powder cocaine offenses.

Download Lewis on crack

UPDATE:  I now see that The BLT has this coverage of the Lewis opinon

Do female sex offenders present special issues and problems?

This new piece at CorrectionsOne, titled "Female sex offenders: A new phenomena?," prompts the question in the title of this post. Here are snippets from the article:

The majority of sex offender research pertains to male offenders. However, in recent years some big cases have called attention to a "new phenomenon" — the female sex offender. The media is responsible for much of the hype, primarily because many of the perpetrators have been attractive school teachers....

According to a 2006 report by the Federal Bureau of Investigation, women commit less than 10 percent of prosecuted sex crimes in the U.S.  Females represent only one percent of arrests for forcible rape and about six percent for other sex crimes.

While adult female sex offender rates have not increased, research shows that female juvenile sexual offenses are on the rise.  Between 1997 and 2002, juvenile cases with girls as the offender rose 62 percent for violent sex offenses and 42 percent for non-violent sex offenses.

This new population of offenders presents a different set of challenges for police, corrections officers and treatment providers.

Gender and cultural stereotypes can impact how the criminal justice system handles female sex offenders.  For instance, the notion that adolescent males must "conquer" women to gain social status undermines and minimizes the detrimental impact that female sex offenders can have on their victims.  Further, far too few mental health professionals specialize in handling female sex offender.

By virtue of their gender, female sex offenders are often seen as non-threatening.  Meanwhile, because of societal stereotypes, male victims are given conquest status when they have sex with an older female.  Not only can this undermine the tragic results of victimization, it can lead to under reporting of the crime.

The research on female sex offenders is minimal at best. In order to better understand and treat this growing population, academics and practitioners alike must expand this field. Treatment options for female sex offenders must be explored as well as reasons why the offending behavior began in the first place.

"California can't afford the death penalty"

The title of this post is the headline of this op-ed authored by a former California Attorney General and district attorney, John Van de Kamp.  Here is how the opinon piece starts:

There are many reasons why people object to the death penalty. Opponents point to the ever-present risk of wrongful conviction.  They note that there's bias against people of color and low-income defendants, as well as geographic disproportionality in its administration.  And there's the fact that most other civilized societies around the world have concluded that it should be abolished.

But these days, there's also a strong economic argument for doing away with capital punishment. With California facing its most severe fiscal crisis in recent memory -- with draconian cuts about to be imposed from Sacramento that will affect every resident of the state -- it would be crazy not to consider the fact that it will add as much as $1 billion over the next five years simply to keep the death penalty on the books.

Here's the math. Today, California has 678 offenders on death row, more than any other state. Yet, in the last 30 years, we've had only 13 executions.  With 20 more people sentenced to death each year -- and an average wait of 25 years from sentencing to execution -- the number of inmates on death row is continuing to climb.

Now consider what capital punishment costs.  According to the final report of the California Commission on the Fair Administration of Justice, which I chaired from 2006 to 2008, the cost of a murder trial goes up by about half a million dollars if prosecutors seek the death penalty. Confinement on death row (with all the attendant security requirements) adds $90,000 per inmate per year to the normal cost of incarceration. Appeals and habeas corpus proceedings add tens of thousands more.  In all, it costs $125 million a year more to prosecute and defend death penalty cases and to keep inmates on death row than it would simply to put all those people in prison for life without parole.

On top of that $125-million extra cost per year, California is also facing the need to build a new death house for death penalty inmates at an estimated cost of $400 million.

Some recent related posts on the costs of capital punsihment:

• Georgia struggles to pay for a costly capital system
• The challenging economics of death causing problems in Chicago
• Great new (though still dated) examination of the death penalty and plea bargaining
• CNN now talking about the costs of the death penalty and state reforms 
• States considering laying off the death penalty during tough economic times
• The economic case against the death penalty getting more and more attention
• More discussion of cost concerns in debates over the death penalty
• Capital case cost concerns continue to inform reform debate
• Still more discussion of the costs of the death penalty
• "Opponents Focus On Cost In Death Penalty Debate"
• What might 2009 have in store for . . . the death penalty in the US?

An initial (deep?) thought about modern Eighth Amendment jurisprudence

Ever since the Supreme Court's cert grant in the juve LWOP cases of Graham and Sullivan (basics here and here), I have been thinking about ways the Justices might breathe some new life into a troublesome modern Eighth Amendment jurisprudence.  Though I may not do full series of posts about my recent Eighth Amendment thoughts, I wanted to at least of some of my thinking here in the space for group discussion purposes.

Problematically, the more deeply I think about the Eighth Amendment, the less sure I am that I have a good answer for how to improve the modern jurisprudence.  Nevertheless,  I am developing some interesting new thoughts and insights about why existing Eighth Amendment jurisprudence is so troublesome.  For example, consider this (simple?) thesis:

Modern Eighth Amendment jurisprudence is such a mess in part because it is informed much too much by unsophisticated punishment theory and much too little by sophisticated constitutional theory.

As Linda Richman from Coffee Talk might say, talk amongst yourselves as I head out to talk some more about prosecutorial power.

Bill addressing capital racial injustice making progress in North Carolina

More than two decades ago in the famous McClesky case, the Supreme Court suggested it was less able than legislatures to address systemic racism in the application of the death penalty. As detailed in this local article, headlined "Committee OKs bill meant to help defendants challenge death penalty," it appears that North Carolina's legislature is now moving forward on this project:

A bill that would establish a new pro�cedure for defendants to challenge the use of the death penalty advanced yesterday in the General Assembly.

The bill, known as the "North Carolina Racial Justice Act," was approved 7-5 by a committee in the state House.  It now moves to a different committee before coming up for a vote in the full House.  The Senate passed a previous version of the bill last month.

Supporters of the bill say it would give defendants and death-row inmates clear legal channels through which they could argue that the application of capital punishment was racially motivated, either on the part of a prosecutor who sought the death penalty or on the part of a jury that imposed the death penalty.  "It takes steps toward eradicating the problem of racial bias in the capital-punishment process," said Jeremy Collins, the campaign coordinator of the N.C. Coalition for a Moratorium....

Opponents say that the bill, while well-intentioned, goes too far because it would allow defendants to use statistical evidence from previous cases to show racial bias.  For instance, if a black death-row inmate proved that, in his county, other black defendants were significantly more likely than white defendants to be sentenced to death, that would be enough for a judge to throw out the inmate's death sentence.  The sentence would be converted to life in prison without parole.

State Rep. Sarah Stevens, R-Surry, argued yesterday that statistics can be misleading.  Simply showing racial disparities in overall death sentences is not an accurate picture, she said. "Who's committed the crimes?" Stevens asked.  "How many of the white race have created this murder? How many of the black race have created this murder?"

I know that Kentucky has an interesting death penalty racial justice act on the books, though I am not aware of much (any?) capital litigation it has impacted.  Similarly, I am not aware of many (any?) other states that have been working legislatively on these issues despite McClesky's shout out to state legislatures.

Sixth Circuit ruling on sentencing discretion under Rule 35(b)

The Sixth Circuit has a split panel ruling of note today in US v. Grant, No. 07-3831 (6th Cir. June 9, 2009) (available here), concerning the scope of sentencing discretion when prosecutors seek to credit a defendant's cooperation effort via Rule 35(b).  Here is how the majority opinion starts:

This sentencing appeal raises the question of what factors a district court may consider when deciding a motion to reduce a sentence pursuant to Federal Rule of Criminal Procedure 35(b), which allows the sentencing judge to reduce a sentence for substantial assistance to the government by the defendant.  Defendant Kevin Grant pleaded guilty to several crimes related to heroin trafficking, and was sentenced to 25 years’ imprisonment, the statutory mandatory minimum.  A statutory mandatory minimum sentence does not permit a sentencing judge to fully consider all of the factors normally required for a just sentence under 18 U.S.C. § 3553(a).  Thus Grant has never received a sentence that considers all of the factors required for a just sentence under § 3553(a), including a sentence “not greater than necessary” under § 3553(a)(2)(D) (rehabilitation).  Subsequently, he provided substantial assistance to the government in several other cases.  In response, the prosecution filed a motion to reduce Grant’s sentence pursuant to Rule 35(b), and the District Court lowered his sentence from 25 years to 16 years.  In so doing, the court concluded that the only factor it could consider was the degree of Grant’s substantial assistance.  We hold that a district court is permitted to consider other factors normally required for a just sentence under § 3553(a), and therefore reverse and remand for further proceedings. Once the grip of the mandatory minimum sentence is broken, the sentencing judge may consider § 3553(a), including subsection (2)(D) on rehabilitation.

"Drunk-Driving Foes Split on Severity of Penalties"

The title of this post is the headline of this intriguing Wall Street Journal article on a sentencing topic that, as regular readers know, I find fascinating.  Here are excerpts:

Mothers Against Drunk Driving has severed ties with an ally backed by the liquor industry, contending that the group is undermining MADD's campaign to eliminate drunken driving.  MADD asked the Century Council, a nonprofit organization funded by liquor makers such as Diageo PLC, to stop proclaiming it is a partner in MADD's mission and to remove MADD's logo from its Web site and other materials.

MADD, a nonprofit based in Irving, Texas, said the Century Council has hindered its efforts by, among other things, opposing state legislation requiring harsher penalties for people convicted of drunken driving for the first time.  MADD said the Century Council had pledged to stay neutral on the measures.  It also said the Century Council places too much emphasis on so-called hardcore drunken drivers and not enough on confronting the broader problem of all people who drink and drive....

The dispute highlights tension among several groups about how the U.S. should address drunken driving.  The U.S. made big strides in reducing deaths related to drunken driving from the early 1980s through the mid-1990s.  But since then, alcohol-related car-crash deaths have remained around 13,000 a year, according to the National Highway Traffic Safety Administration, or NHTSA.

MADD in 2006 announced a multifaceted campaign aimed at eventually eliminating drunken driving.  The plan included support for research of technology that one day could enable cars to automatically detect if a driver's blood-alcohol level is over the legal limit and, if so, keep the vehicle from starting.

In the meantime, MADD is pushing states to require first-time offenders to install "ignition interlocks" in their vehicles.  These devices, when a driver breathes into them, can detect alcohol levels and prevent a vehicle from starting.  About a dozen states have adopted such mandates for all first offenders.

The Century Council, founded in 1991 to fight drunken driving and underage drinking, said it supports the mandatory use of interlock devices for first offenders with blood-alcohol content of at least 0.15% — nearly twice the legal limit of 0.08%.  The group said it is neutral on bills targeting lower-level offenders, preferring to leave those matters to a judge....

MADD said it agrees that hardcore drunken drivers — often defined as those with repeat offenses and very-high blood-alcohol levels — must be targeted. But it emphasized that many deaths are caused by drivers with no previous arrest record, and by those exhibiting blood-alcohol levels lower than 0.15%.  In 2007, drivers over the legal limit, but below 0.15%, accounted for about a third of all alcohol-related crash deaths in the U.S., according to the NHTSA.

Some related posts on sentencing drunk drivers:

• "Car breath tests for 1st-time DUI offenders?"
• Shouldn't we be much, much tougher with drunk drivers?
• Tougher (but still not tough enough?) on DUI
• Getting tougher on drunk driving
• Why do we worry so much more about sex offenders than drunk drivers?
• Technology versus toughness to combat drunk driving
• Undue leniency for drunk drivers?
• More discussion of leniency for drunk drivers
• Is capital punishment for drunk driving morally required?
• More examples of undue leniency shown to repeat drunk drivers
• "Some Coloradans drive until they kill" 

Discussing prosecutorial power at Ohio events on Tuesday

I have the honor and the pleasure of participating in two panel discussions on Tuesday sponsored by the Buckeye Institute for Public Policy Solutions, which will be focused on lessons to draw from this great new book by Jon Entine of the American Enterprise Institute tit;ed "No Crime But Prejudice: Fischer Homes, the Immigration Fiasco and Extra-judicial Prosecution."  Details about these events (which take place in the early morning in Columbus and the late afternoon in Cincinnati) can be found here and here, and this is the introduction from the Buckeye Institute:

The justice system relies on extracting plea deals, sometimes even from the innocent and from supposedly deep-pocketed businesses. What happens when a public-minded business owner -- in this case the CEO of a prominent Cincinnati and Columbus area homebuilder -- risks his reputation and financial peril to fight for citizen's rights, fairness in the justice system and the jobs of his associates?  Three distinguished panelists, including two former federal prosecutors and an internationally recognized expert on criminal law from The Ohio State University will be on hand to discuss concerns about the power of prosecutors and why we all should care.

Looking at a case in which SCOTUS will look at Alabama's death penalty

This week's installment of Adam Liptak's Sidebar column in the New York Times is headlined "Death Penalty Case Reveals Failings," and it examines a capital case from Alabama now before  the Supreme Court.  Here are excerpts:

Kenneth B. Trotter had been practicing law for less than a year when an Alabama judge appointed him to assist two more seasoned lawyers in defending a man facing the death penalty.  After the man, Holly Wood, was convicted in 1994 of murdering his former girlfriend, Mr. Trotter led the effort to persuade the jury to spare his life.  The young lawyer came up just short: the jury recommended death by a vote of 10-to-2, the minimum allowed under Alabama law.

Mr. Trotter failed to pursue or present evidence that his client was mentally retarded, though he had a competency report in hand that said as much.  In September, a divided three-judge panel of the federal appeals court in Atlanta ruled that he had made a strategic decision, not a grave error....

Last month, the United States Supreme Court agreed to hear Mr. Wood’s case.  It will give the court a glimpse of Alabama’s capital justice system, which is among the most troubled in the nation.  The state lacks a public defender’s office, elects judges for whom death sentences are a campaign promise, pays appointed lawyers a pittance and sometimes leaves death row inmates to navigate the intricacies of post-conviction challenges with no lawyers at all.

The root problem is money, said Bryan Stevenson, the executive director of the Equal Justice Initiative of Alabama, a nonprofit law firm that represents poor people and prisoners.  The lawyers appointed to represent Mr. Wood in 1994 were entitled to a maximum of $1,000 to prepare for the penalty phase of the trial. “It ought not be a shock to anyone that you get this kind of defense with that kind of funding,” Mr. Stevenson said. “The poor quality of indigent defense is still the ugliest scar on capital punishment in America.”

House hearing on bill to eliminate juve LWOP sentences

As detailed at this page from The Sentencing Project, on Tuesday afternoon the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security will hold an hearing on the "Juvenile Justice Accountability and Improvement Act of 2009," which includes provisions to eliminate life without parole sentences for juvenile offender.

This official House webpage list witnesses scheduled to testify (and may soon provide links to written testimony).  The bill being discussed can be accessed here, and one of its key provisions calls upon each State to "have in effect laws and policies under which each child offender who is serving a life sentence receives, not less than once during the first 15 years of incarceration, and not less than once every 3 years of incarceration thereafter, a meaningful opportunity for parole or other form of supervised release."

I do not think this bill is likely to get too much legislative traction, but it should be interested to see what gets said about juve LWOP while briefing is underway in the two juve LWOP cases, Graham and Sullivan, recently taken up by the Supreme Court (basics here and here).

Other recent posts on juve LWOP and the Graham and Sullivan cases:

• "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?
• New HRW report assailing juve LWOP in California
• LDF report documents disparities in juve LWOP in Mississippi
• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• What might (and should) DOJ and other potential amici say about Graham and Sullivan?
• Analyzing the cert grants in both Graham and Sullivan

Judge Easterbrook on barbarity and the summum bonum of federal sentencing

A Seventh Circuit panel opinion authored by Judge Easterbrook in US v. Bartlett, No. 08-1196 (7th Cir. June 8, 2009) (available here), is this week's first must-read for sentencing fans. The ruling, which covers lots of issues, gets off to this poetic start:

The distance between civilization and barbarity, and the time needed to pass from one state to the other, is depressingly short.  Police officers in Milwaukee proved this the morning of October 24, 2004.

The opinion also includes a number of other profound observations, ranging from "Thrusting a pen into a person’s ear canals is torture by any definition." to "The old regime of 'departures' is defunct."  And, as this latter sentence highlights, the Bartlett opinion is full of notable sentencing talk.  Here are just a few passages of sentencing note (with emphasis in original):

But there is more to §3553 than §3553(a)(6).  A judge must respect all of the statutory criteria in order to mete out a sentence “sufficient, but not greater than necessary, to comply with the purposes [of sentencing] set forth in paragraph (2) of this subsection.” 18 U.S.C. §3553(a).  The Court held in Kimbrough, and reiterated in Spears, that a judge need not accept the Sentencing Commission’s penological framework.  The court may adopt its own.  It follows that §3553 permits a judge to reduce one defendant’s sentence because of another’s lenient sentence — not because of §3553(a)(6), but despite it.  Avoiding “unwarranted” disparities (as the Sentencing Commission or a court of appeals defines them) is not the summum bonum in sentencing.  Other objectives may have greater weight, and the court is free to have its own policy about which differences are “unwarranted.”...

Although the judge need not use the Guidelines as the fulcrum of analysis, the court still needs to understand the relation between the Guidelines and the ultimate sentence.  Both Rita and Gall say that the court must construct a Guideline range accurately.  A sentence is procedurally unreasonable if the judge thinks it within the range, but it isn’t — either because the range was not determined accurately in the district court, or because the judge misunderstood what that range was.

More on Sotomayor as a young NY state prosecutor

Today's New York Times includes this article, headlined "Sotomayor Is Recalled as a Driven Rookie Prosecutor," with more cover of the professional past of a likely future Justice. Here is a snippet:

Ms. Sotomayor spent about five years as a prosecutor. Interviews with her colleagues and supervisors painted a portrait of a frightened rookie prosecutor who quickly gained the confidence and the trust of others.  She became a driven and focused prosecutor who easily fit in, whether in debating fine points of law with lawyers or judges or in interviewing a victim whom she perhaps recognized in broad outlines from her own upbringing in the Bronx.

“She had a foot in both worlds, and she was comfortable in both of those worlds,” said Richard H. Girgenti, a former supervisor.

Peter M. Kougasian, a friend who attended Princeton and Yale Law School with her and joined the district attorney’s office at the same time, in 1979, said he was struck by her maturity as a young prosecutor.  “When you walk into a courtroom and say you represent the people of the State of New York, I think for her that was not just an abstraction,” he said.  “She had experienced so many aspects of life that make up a great city,” he added, “that when she said that, you had the feeling that she knew what she was talking about in a way that the rest of us maybe didn’t.”

Prior posts on the background of Judge Sotomayor:

• Examining Judge Sotomayor's years as a New York state prosecutor  
• President Obama to nominate Judge Sonia Sotomayor for Supreme Court
• Notable background parallels between Judge Sotomayor and Justice Alito
• Some very early, very brief sentencing reflections on Judge Sotomayor
• Examining Judge Sotomayor's criminal justice record

Appreciating the real American challenge in balancing liberty and security

A helpful reader flagged this new commentary from Dahlia Lithwick at Slate, titled "Cage Match: Guantanamo is the least of America's prison problems."  Here are snippets from its start and end:

The public-opinion two-step on the wisdom of closing the prison camp at Guantanamo is fascinating, and not just because Americans are now inclined to keep the detention facility there open forever. The current legal meltdown about what to do with prisoners still at Guantanamo shows that contrary to popular belief, Americans care a good deal about prisons, prisoners, and prison reform, but only when the inmates threaten to tumble out into their backyards.

But there's the rub: We already have a prison problem, and it's already in our backyards.  That's what Sen. James Webb, D-Va., wants us to understand as he launches an ambitious new effort to reform U.S. prisons nationwide.  It's not quite as dramatic as the prospect of Abu Zubaydah escaping from the Supermax prison in Colorado and rampaging through the Rockies, but the U.S. prison crisis gets worse every year, and nobody seems to mind....

The Guantanamo problem we've finally started to grapple with in a pragmatic, rather than symbolic, way — it's a dangerous place with some dangerous people — is a mere speck in the eye of America's larger prison program.  An AP story last week described a small Montana town that was more than willing to take all of the Guantanamo prisoners and incarcerate them because, ultimately, a jail is a jail and prisoners are prisoners.  If we are so worried about locking up a few terrorists for life in maximum-security U.S. jails, shouldn't we be giving at least some thought to the folks already there?  As Dennis Jett observed recently in the Miami Herald, "even if everyone at Guantánamo were transferred to a U.S. prison it would amount to an increase of less than one hundredth of one percent in the total number incarcerated in this country."

Compared with the powder keg of our domestic prison system, Guantanamo actually starts to look pretty benign. And if we are going to have a huge national panic attack about detaining dangerous individuals after 9/11, let's be honest that the dangers of a handful of Guantanamo prisoners "rejoining the battlefield" or escaping from maximum-security prisons is far more remote than the crisis now festering in our own jails and prisons.  Americans who claim to be worried about allowing alleged terrorists into their own backyards would be well advised to recognize what's already happening in their own backyards.  The U.S. prison system as it now exists makes even less sense than the prison camp at Guantanamo.  And unlike Guantanamo, no matter what we may wish, it won't be contained, ignored, or walled off forever.

"Low-level felons add millions to spending"

The title of this post is the headline of this article from North Carolina providing another local dispatch from the prison economy. Here is how the piece begins:

North Carolina's habitual-felon law is powerful: A three-time criminal who breaks into a parking meter or has a crack pipe with cocaine residue can be sentenced as if he were a rapist.

It is expensive: These longer sentences add an average $195,000 in prison costs for each habitual felon, an analysis by The News & Observer of Raleigh shows.  Since the law took effect in 1994, taxpayers have committed an additional $1.5billion to house habitual felons  — and an additional $264million to build prisons for them.

And it is untouchable at the General Assembly.  District attorneys and sheriffs have squashed all attempts to change it by painting opponents as coddlers of criminals, said former Rep. Joe Kiser, a Republican and the former sheriff of Lincoln County. “I blocked it every time,” Kiser said. “I'd say, ‘Here we go, soft on crime again.'”

Being tough on crime has been hard on the state budget.  And now that the state has a $4.5 billion shortfall, fighting a path toward fiscal health has seldom been so critical. In the past, the General Assembly has been unwilling to take tough stands. Legislators are afraid to end goodies for powerful industries, kill pet projects or make hard calls on crime issues that provide fodder for attack ads....

In the case of habitual felons, changing the law would bring gradual but significant savings.  If the state stopped sentencing people to eight to 10 years for low-level offenses, it would save roughly $5million in the first year.  The savings would compound each year, saving the state a total of $190million after five years.

Since the law was passed, the prison population has grown steadily, from 27,052 in June 1995 to more than 41,000 this year.

In that period, the Department of Correction has been on a construction binge, opening 20 prisons that hold a total of 16,424 inmates.  Building prisons is not cheap; it costs $66,000 per inmate to build a medium-security prison and $28,000 a year to house each prisoner.  Despite its costs, the law has been unchanged since it was approved 15 years ago.

Judge Kent's letter discussing judicial activism, isolation and substance abuse

While others are very busy trying to figure out what the heck judicial activism means in light of Judge Sotomayor's record, I thought it remarkable what Judge Samuel Kent said on this topic and othersin this letter he sent last week to the task force discussing whether he will be impeached for his crimes (background here and here and here).  Specifically, consider these snippets of Judge Kent's letter:

I remain proud of other aspects of my 18-year record of servive on the federal bench.  From 1990 through 2008, I closed almost 13,000 cases.  I always took an active role in seeking to fairly level the playing field for many, many families who sought justice against large corporations and business interests....

I hope that in the future, the federal judiciary may take steps to proactively promote and safeguard the emotional and mental health of its members.  This is particularly important since federal judges naturally become alienated from many friends and colleagues upon undertaking service to the judiciary.  Some of us faced with this isolation and altered identity bear the weight of our obligations and responsibilities in self-destructive ways.  I am sure I am not the only federal judge who has faced severe emotional and mental problems as well as substance abuse.

Though this letter obviously represents an effort by a sex offender to suggest excuses for his crimes and to place his criminal behavior in the context of his judicial career, the final sentences of both these paragraphs strike me as remarkable.  The first seems to take pride in judicial activism (and empathy?) on behalf of "many, many families" when up against "large corporations and business interests."  The second seems to suggest that some (many?) federal judges are deciding cases while beset with "severe emotional and mental problems" and while engaged in "substance abuse."

I would love to see these issues — in particular whether many federal judges are beset with "severe emotional and mental problems" and engaged with "substance abuse" — discussed in the upcoming hearings for Judge Sotomayor.  She has served for nearly two decades on the federal bench, and I wonder if she shares shares Judge Kent's view that the federal judiciary needs to be taking steps "to proactively promote and safeguard the emotional and mental health of its members." 

Related posts on the Kent case and related proceedings:

• Judge Kent takes a deal (and now becomes the latest, greatest topic for sentencing debate)
• "Is Kent getting off easy?"
• More questions and fall-out following Judge Kent's guilty plea
• Latest notable news surrounding former judge (now felon) Sam Kent
• Any predictions on former Judge Sam Kent's sentence? UPDATE: 33 months
• Latest news on impeachment process for former Judge Kent
• Interesting materials from the hearing surrounding impeachment of Judge Kent

"Some Coloradans drive until they kill"

This title of this post is the headline of this long Denver Post article that spotlights some of the reasons why I am not confident that society's current sentencing and punishment schemes for drunk driving are sound.  Here are excerpts from the piece:

Richard Strock was arrested for drunken driving 18 times before he killed anyone. In his 19th case, his 63-year-old ex-wife was thrown into the windshield and died....

A Denver Post examination of 195 vehicular homicide-DUI cases since 2005 found that at least 30 percent of the defendants had other drunken-driving cases.  Twenty-two drivers had multiple DUI arrests before they killed people.

Three picked up new drunken-driving charges after killing people while under the influence.  One was arrested for driving drunk the day after he ran a red light and killed a woman.  "That's the hardest part about these DUI offenders — especially the repeat offenders, as we describe them — they're ticking time bombs," said Adams County District Attorney Don Quick....

"You look at any state in the union, and this is a major, major cause of death," said state Rep. Kent Lambert, R-Colorado Springs, who co-sponsored a 2007 bill to create a felony DUI statute in Colorado. "We should be providing safe highways for the citizens of the state, and we need to get serious about it."...

Unlike most states, Colorado has no felony law for the third, fourth or 10th drunken-driving offense. A habitual traffic offender who drives drunk with a revoked license can face up to 18 months in prison on a low-level felony charge.   And there are 53,201 people who have three or more drunken-driving offenses in Colorado, according to Division of Motor Vehicle records provided to The Post.  Fifty-one have 10 or more drunken-driving cases in Colorado.

Quick said he has noticed a growing courtroom reluctance to impose jail time even for multiple drunken-driving offenses.  "Whether it's jail overcrowding or a shift in philosophy on sentencing, I can't tell you why," he said.  He finds this trend troubling.  With persistent drunken drivers, "we've tried the treatment model and it's not working," he said.  When somebody dies, "it doesn't matter that the person used a car rather than a gun."

Some legislators say Colorado needs a felony law to stop persistent drunken drivers before they kill people.  "We slap them just as hard on the wrist for their fifth as we did for the first," said state Rep. Steve King, R-Grand Junction.  "Granted, they're going to pay more money, but that's not going to keep them from driving. They need to go to jail."

But previous efforts to pass such a law have been stopped by cost estimates and the reality of overcrowded prisons. And "the thing about jail is they will still get out and they will still drive, if that's what they do," said Rep. Beth McCann, D-Denver. "So we really have to look at some way to prevent them from driving."

As I have suggested in this prior post, I think technology in the form of ignition-interlock devices (which require drivers to blow into a tube that checks BAC) might be a viable way to try to prevent drunk drivers from being such a menace on the road.  I have seen reports that ignition interlock laws and punishment are effective at reducing alcohol-related accidents, and thus I'd like to see much greater use of this technology (or others) to help deal with the loader driver or a car who can often be even more dangerous than a loaded gun. 

Some related posts on sentencing drunk drivers:

• "Car breath tests for 1st-time DUI offenders?"
• Shouldn't we be much, much tougher with drunk drivers?
• Tougher (but still not tough enough?) on DUI
• Getting tougher on drunk driving
• Why do we worry so much more about sex offenders than drunk drivers?
• Technology versus toughness to combat drunk driving
• Undue leniency for drunk drivers?
• More discussion of leniency for drunk drivers
• Is capital punishment for drunk driving morally required?
• More examples of undue leniency shown to repeat drunk drivers
• Another drunk driving sentencing story we can follow on the sports pages
• NFL receiver charged with DUI manslaughter in Florida, while MLB pitcher gets wrist slapped in Nebraska