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July 4, 2009

What to the American imprisoned is the Fourth of July?

SOL Upon Randy Barnett's astute suggestion, I celebrated the Fourth of July this morning by reading Frederick Douglass's famed Independence Day oration from 1852, which was titled "What to the Slave is the Fourth of July?".  The speech is remarkable for many reasons; it is not only a wonderful reminder of the forceful antebellum moral arguments against slavery, but it is also a fitting condemnation of those who failed to condemn slavery as inconsistent with the ideals of liberty and freedom expressed in the Declaration of Independence and in the US Constitution.

As Randy notes, historian Jonathan Bean in this piece at the National Review Online advocates for Douglass's themes to resonate through modern American politics.  As Bean puts it:

[T]he words of the Sage of Anacostia remain not only relevant, but essential. Why? Douglass unfailingly opposed any man’s exercising control over another.... His principles are not the stuff of “New New Deals” but rather a brief for a “New Independence Day” based on small-government principles....

If today’s Republican party wants to move forward, it would do well to look backward, and it can begin by adding Douglass to the GOP’s annual Lincoln Day celebrations....  Democrats should also learn from Douglass.... 

On this Fourth of July, let us join Douglass in remembering that the Declaration of Independence laments the “swarms of Officers [who] harass our People and eat out their substance.”  With new swarms of hungry officers gaining power in Washington, Douglass’s own declaration of independence offers an inspiring alternative.

I share Bean's eagerness to have both parties embrace Douglass's themes, but I approach those themes from a different perspective.  As regular readers might imagine, I read Douglass's speech with my mind's eye on modern mass incarceration.  Thus the title of this post, which asks what those currently imprisoned think about when seeing Americans celebrate their country's committment to liberty and freedom.  Especially with US prison population starting to approach three million, these passages from Douglass's 1852 speech really stood out:

FD Fellow-citizens; above your national, tumultuous joy, I hear the mournful wail of millions!  whose chains, heavy and grievous yesterday, are, today, rendered more intolerable by the jubilee shouts that reach them.  If I do forget, if I do not faithfully remember those bleeding children of sorrow this day, "may my right hand forget her cunning, and may my tongue cleave to the roof of my mouth!"  To forget them, to pass lightly over their wrongs, and to chime in with the popular theme, would be treason most scandalous and shocking, and would make me a reproach before God and the world....

What, to the American slave, is your 4th of July?  I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelly to which he is the constant victim.  To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade, and solemnity, are, to him, mere bombast, fraud, deception, impiety, and hypocrisy -- a thin veil to cover up crimes which would disgrace a nation of savages.  There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour....

You boast of your love of liberty, your superior civilization, and your pure Christianity, while the whole political power of the nation (as embodied in the two great political parties), is solemnly pledged to support and perpetuate the enslavement of three millions of your countrymen....

In [the US Constitution] I hold there is neither warrant, license, nor sanction of the hateful thing; but, interpreted as it ought to be interpreted, the Constitution is a GLORIOUS LIBERTY DOCUMENT.  Read its preamble, consider its purposes.

Critically, any parallels to be drawn between slavery and mass incarceration must not be taken too far: thankfully, persons are now deprived of freedom in America only for illegal acts, not merely due to the color of their skins.  Many persons in prison created victims; very few can legitimately claim to be mere victims.  Nevertheless, even if we believe that the state should punish severely all serious wrongdoing, Douglass's strong accusation of American hypocrisy concerning liberty and freedom should still capture our attention in our modern era of mass incarceration.

Though our national monument is a "Statute of Liberty," the United States is now the world's leader in imprisonment by a considerable margin.  (As Douglass might put it, there is not a nation on the earth currently confining more humans in cages than are the people of these United States, at this very hour.)   Moreover, a significant number of persons in prison have good reasons to view "shouts of liberty and equality [to be] hollow mockery" given that the "drug war" has resulted in the denial of liberty to many minorities for various nonviolent behaviors. 

As stressed above, I do not mean to assert or even suggest that mass incarceration is anywhere near the modern moral equivalent of slavery.  But I do mean to encourage everyone, on this day of patriotic celebration, to consider whether it is time for all Americans who are truly committed to the principles of freedom and liberty to start working against the national stain of mass incarceration before it becomes as ugly or harmful as was the national stain of slavery.

July 4, 2009 in Scope of Imprisonment | Permalink | Comments (22) | TrackBack

July 3, 2009

Deep thoughts on freedom and liberty for the holiday weekend

These two new pieces appearing on SSRN seem like fitting reading for some deep reflections on freedom and liberty this holiday weekend:

Neoliberal Penality: A Brief Genealogy by Bernard E. Harcourt

Abstract: The turn of the twenty first century witnessed important shifts in punishment practices. The most shocking is mass incarceration — the exponential rise in prisoners in state and federal penitentiaries and in county jails beginning in 1973. It is tempting to view these developments as evidence of something new that emerged in the 1970s — of a new culture of control, a new penology, or a new turn to biopower. But it would be a mistake to place too much emphasis on the 1970s since most of the recent trends have antecedents and parallels in the early twentieth century.  It is important, instead, to explore the arc of penality over a longer course: to relate recent developments to their earlier kin at the turn of the twentieth century.

What that larger perspective reveals is that the pattern of confinement and control in the past century has been facilitated by the emergence and gradual dominance of neoliberal penality.  By neoliberal penality, I have in mind a form of rationality in which the penal sphere is pushed outside political economy and serves the function of a boundary: the penal sanction is marked off from the dominant logic of classical economics as the only space where order is legitimately enforced by the state. This essay traces a genealogy of neoliberal penality going back to the emergence and triumph of the idea of natural order in economic thought — back to the Physiocratic writings of François Quesnay and other economists during the 1760s.  It is precisely their notion of natural order that metamorphosed, over time, into the modern idea of market efficiency that is at the heart of neoliberal penality.

Free Will Ideology: Experiments, Evolution and Virtue Ethics by John A. Humbach

Abstract: Free will could never have evolved in a world of ordinary biological forces.  There is, moreover, substantial experimental evidence against it.  This evidentiary situation is a serious moral concern because free will ideology plays a key role in justifying punishment in criminal law. People draw a sharp distinction between the suffering of innocents and suffering that is deserved. As a basis for criminal punishment, the very concept of just deserts usually presupposes that wrongdoers have a choice in what they do.

The essay proceeds from the assumption that hurting people is presumptively wrong and therefore requires justification. If this assumption is true, then the factual dubiousness of free will presents a serious problem for current penal practices.  Because the evidence makes free will unlikely and the logic of evolution makes it impossible, an important underpinning of the criminal law appears to fail.  A variant of free will, so-called compatibilism, does not solve or avoid the problem of justification.  It seems on the contrary to be merely a repackaging of an ancient form of virtue-ethics under which people are deemed to deserve to suffer because they are what they are.

July 3, 2009 in Recommended reading | Permalink | Comments (5) | TrackBack

"Is 150 Years Appropriate, or Just Silly?"

The question in the title of this post is the headline of this effective column in the New York Times.  The piece quotes lots of academics in an effort to help answer the question (including me), but I am even more eager to hear from readers of this blog.

Most recent Madoff sentencing posts:

UPDATE: For additional takes on this question, one can now check out this blog-friendly column at the New York Times, headlined "Weekend Opinionator: Did Madoff Get More Than He Deserved?".  The column quotes lots of Madoff-sentencing reaction around the blogosphere, and here is how the column gets started:

On Saturday America turns 233 years old, but the first chance Bernie Madoff will have to celebrate the Fourth of July as a free man will be the nation’s 383rd birthday.  Before you enjoy any schadenfreude, however, remember that you and I are no more likely to make that party than he is.  We will, however, have more room to roam in the interim.

July 3, 2009 in White-collar sentencing | Permalink | Comments (13) | TrackBack

July 2, 2009

"Judge Acquits Lori Drew in Cyberbullying Case, Overrules Jury"

The title of this post is the headline of this breaking report from Wired news.  It is not clear to me that the judges has exactly "overruled" the jury, but rather just concluded as a matter of law that the charges against Drew could not be legally sustained.  Whether this is activist judging or justice is an interesting question (and perhaps one that will be presented to the Ninth Circuit if prosecutors decide to appeal).

July 2, 2009 in Offense Characteristics | Permalink | Comments (26) | TrackBack

California Supreme Court rejects Apprendi challenge to using juve convictions as strikes

Apprendi fans have a lot worth reading today.  In addition to my new little discussion of Apprendi-land in the Columbia Law Review's sidebar (discussed here), today the California Supreme Court has lots of Apprendi talk in People v. Nguyen, No. S154847 (July 2, 2009) (available here). Here is how the majority opinion starts: 

California‘s Three Strikes Law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d))1 increases the maximum sentence for an adult felony offense upon proof that the defendant has suffered one or more qualifying "prior felony convictions" — a term that specifically includes certain prior criminal adjudications sustained by the defendant, while a minor, under the juvenile court law.  Does the United States Constitution allow such use of a prior juvenile adjudication even though there was no right to a jury trial in the juvenile proceeding?  Like the majority of recent decisions to address the issue, we conclude the answer is yes.

Here is how Judge Kennard's solo dissent gets started:

In California, a minor accused of a crime in a juvenile court proceeding — unlike a person accused in an adult criminal proceeding — has no right to a jury trial. The lack of that right becomes an issue when, as here, a juvenile court adjudication is based on one of certain statutorily specified felonies and later the juvenile, by then an adult, commits another felony.  At that point, California's "Three Strikes" law comes into play.  Because of the prior juvenile court adjudication, the sentence for the new felony conviction is doubled, as happened here; with two such priors, the prison term is a minimum of 25 years to life.

Central here is the United States Supreme Court‘s decision in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), which holds that the federal Constitution requires a jury trial on "any fact" that increases the maximum penalty for a charged offense.  Is that right violated when, as here, the additional punishment is imposed because of prior juvenile criminal conduct for which there was no right to a jury trial?  The majority perceives no problem.  I do.

July 2, 2009 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (3) | TrackBack

Judge Alex Kozinski cleared of misconduct (but my illegality concern is not addressed)

The blogosphere is buzzing with the news that the Third Circuit, which was tasked with reviewing misconducts complaint against Judge Alex Kozinski, has concluded its investigation via this just-released opinionin which Judge Kozinski is admonished for poor judgment, but cleared any official judicial misconduct.  Specifically, effective coverage can already be found at Above the Law and How Appealing and Patterico's Pontifications.

Though the outcome of this matter strikes me as just right, I am a bit disappointed that the Third Circuit opinion and related commentary completely dodges the dicey question of whether any of the files possessed by Judge Kozinski might have technically been child pornography or illegal obscenity.  The Third Circuit opinion notes that some content Kozinski had was "sexually explicit material [that] is undoubtedly offensive to many."  Slip op. at 27.  But nowhere does the opinion confront the (real?) possibility that this content was illegal to possess under federal law because it could fit the technical definition of child pornography or illegal obscenity under federal law.

I am not eager to assail Judge Kozinski for his behavior, but rather eager to highlight how expansive the technical definitions of child pornography and illegal obscenity can be under federal law.  For that reason, I am not really surprised (bit still remain disappointed) that the Third Circuit and others are eager to dodge these issues altogether.

Some related posts:

July 2, 2009 in Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Split Sixth Circuit panel upholds Tennessee's lethal injection procedures

Today in Harbison v. Little, No. 07-6225 (6th Cir. July 2, 2009) (available here), a (divided) Sixth Circuit panel declares that Tennessee's lethal injection protocol is constitutionally sound. Here is how the majority opinion starts:

Edward Jerome Harbison is a Tennessee prisoner under death sentence who has exhausted all appeals and was denied a writ of habeas corpus.  In 2006, Harbison filed a complaint under 42 U.S.C. § 1983, challenging Tennessee’s lethal injection protocol.  The district court granted judgment in favor of Harbison, holding that the protocol violated the Eighth Amendment.  The state defendants (State) appealed, relying on the Supreme Court’s decision in Baze v. Rees, 128 S. Ct. 1520 (2008), which was decided after the district court decision in this case.  Baze upheld Kentucky’s lethal injection protocol and held that a substantially similar protocol would not violate the Eighth Amendment.  Finding Tennessee’s protocol substantially similar, we vacate the district court’s judgment and remand for further proceedings.

Here is the heart of the complaint about this ruling coming from Judge Clay in his dissent:

By failing to provide the district court with an opportunity to consider Tennessee’s protocol in light of Baze, the majority effectively usurps the district court’s role as a factfinder and decides an issue never presented to the district court: whether there are material differences between Kentucky’s and Tennessee’s lethal injection protocols.  As a court of appeals, we are obligated to provide the district court with the first opportunity to receive evidence and rule on this question. Because I would remand this case for an evidentiary hearing in light of Baze, I respectfully dissent.

July 2, 2009 in Baze and Glossip lethal injection cases | Permalink | Comments (13) | TrackBack

Second Circuit blesses future medical expense restitution in child porn sentencing

The Second Circuit has an intriguing little restitution ruling today in US v. Pearson, No. 07-0142 (2d Cir. July 2, 2009) (availalbe here).  Here is how the opinion starts:

Defendant-appellant Abraham Pearson appeals from a judgment entered January 12, 2007, in the United States District Court for the Northern District of New York (McAvoy, J.) convicting him, following a guilty plea to multiple counts of producing, transporting, receiving, and possessing child pornography, and sentencing him, inter alia, to serve fifteen years’ imprisonment and to pay restitution to the child victims of his crime in the amount of $974,902.  Because we conclude that the defendant has not waived his right to appeal the restitution amount, we are called upon to consider whether a restitution order pursuant to 18 U.S.C. § 2259 may include an amount for estimated future medical expenses, and, if so, whether the amount of restitution ordered, which included an estimate of the victims’ future medical expenses, is reasonable.  We hold that a restitution order pursuant to 18 U.S.C. § 2259 may provide for estimated future medical expenses, but we find that the district court has not explained adequately its calculation of the restitution amount.  Therefore, we vacate that portion of the judgment and remand for further sentencing proceedings limited to that issue.

Notably, the estimated future medical expenses at issue in this case concerned the need for lifetime counseling due to the the victims’ mental health issues resulting from their underage involvement in sexual activity induced by the defendant.

July 2, 2009 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

"Cyberbully" Lori Drew scheduled to be sentenced in federal court this afternoon

This AP article, headlined "Sentencing scheduled for Mo. mom in MySpace hoax," reports that the rescheduled sentencing of Loi Drew is slated for this afternoon.  This ABCNews feature provides some of the pre-sentencing basics:

U.S. District Judge George Wu had earlier postponed Drew's sentencing, saying he wanted to review testimony by prosecution witnesses....

Drew was convicted in November of three misdemeanor counts of unauthorized access to computers for violating MySpace's terms of service. She was acquitted of more serious felony charges of intentionally causing emotional harm while accessing computers without authorization. She was charged in Los Angeles because MySpace's computer servers are based there.

Federal prosecutors charged Drew under the Computer Fraud and Abuse Act, which bans unauthorized access to computers and has previously been used to combat computer hacking, for violating MySpace's terms of service. Drew's lawyers and outside legal experts have argued that the unusual prosecution could broaden the scope of what's considered criminal conduct on the Internet.

As detailed in the posts linked below, there are lots of interesting issues for sentencing fans to be found in this controversial case:

July 2, 2009 in Celebrity sentencings | Permalink | Comments (1) | TrackBack

Interesting guideline debate in upcoming federal sentencing of Monica Conyers

This local article out of Detroit, headlined "Conyers sentence fires up debate," highlights the challenge of assessing financial figures under the federal sentencing guidelines in a high-profile public corruption case.  Here are excerpts from this effective article:

Detroit City Council President Pro Tem Monica Conyers says she chose her words carefully on her TV show this week because "I don't want to go to jail."  And although she pleaded guilty Friday to a five-year felony, the possibility exists she won't.

"I'm certainly going to make my best-case argument that she should receive a non-prison sentence," her Detroit attorney, Steve Fishman, said Wednesday.  Fishman would not disclose the arguments he will make, saying he would make his case in a memorandum he will file in federal court before Conyers' sentencing in about three months.  But there is disagreement over what federal sentencing guidelines should apply to Conyers, who announced this week she will resign Monday.

Even after that question is settled, federal judges are no longer bound by sentencing guidelines, so the sentence Conyers receives will be whatever U.S. District Judge Avern Cohn believes is appropriate.  Cohn said when he accepted Conyers' guilty plea that prosecutors believe her guidelines exceed the maximum penalty for conspiring to commit bribery.  That means that if Cohn sentences Conyers within the range calculated by prosecutors, she will get the full five years.

Fishman calculated a much lower guideline range for Conyers -- 30 to 37 months -- and can ask Cohn to sentence Conyers below that range.  One apparent area of disagreement is the value of the benefit received -- a key component in calculating the sentencing guidelines.

The numbers prosecutors used to calculate Conyers' sentencing guidelines have not been released. But calculation worksheets for Rayford W. Jackson, her co-accused, show prosecutors used a $20-million-plus "benefit value."  That large figure is based on the $1.2 billion value of the sewage sludge contract, rather than the bribe amount of $5,000 to $6,000 that Jackson admitted paying and Conyers admitted receiving....

Using the amount of the bribe in place of the amount of the contract would reduce the recommended sentence.  Still, experts were skeptical Wednesday that Fishman could keep Conyers out of prison....

Frank Perry, director of investigations and public affairs for the Foundation for Ethics in Public Service in Raleigh, N.C., said he feels the crucial nature of Conyers' vote -- having changed her position from opposing to supporting the Synagro Technologies Inc. sludge deal in 2007 to allow it to pass 5-4 -- mitigates against a lighter sentence, regardless of the size of the bribe.  "There's a growing sense of increasing the accountability of public officials by way of stiffer sentences," said Perry, a former FBI special agent who handled public corruption cases.  "I believe that's the trend."

July 2, 2009 in White-collar sentencing | Permalink | Comments (6) | TrackBack

July 1, 2009

"Should Juries Be the Guide for Adventures Through Apprendi-Land?"

In this post a few weeks ago, I spotlighted 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."   I was honored to have been asked by the CLR folks to write a response to Ball's piece in the CLR's great Sidebar section, and my piece is now available in pdf form at this link.  My little article carries the same title as this post, and here is how it starts:

David Ball’s article, Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and the Meaning of Punishment, merits a place on any top ten list of must-read pieces concerning the Supreme Court’s modern sentencing jurisprudence.  Ball’s article is valuable not only for its fresh conceptual and functional perspectives on this jurisprudence, but also for its exploration of new and important regions of the sentencing universe.  In particular, Ball’s take on the Supreme Court’s work in Apprendi v. New Jersey and its progeny is a major contribution because, as he adventures through what Justice Scalia once called “Apprendi-land,” he spotlights what this jurisprudential terrain could mean for parole decisionmaking, especially in California.

It is a pleasure to travel with Ball as he seeks to better understand the topography of Apprendi-land.  I fear, however, that Ball’s impressive work places undue emphasis on a particular vision of juries which, while perhaps conceptually appealing, is functionally problematic.  I am also troubled that, like other commentators and even many Justices, Ball allows an undue affinity for jury trial rights to dominate his view of Apprendi-land.  I believe Ball and others should focus much greater attention on constitutional concepts other than the jury in their efforts to articulate and advance sound procedural rules for modern sentencing decisionmaking.

July 1, 2009 in Recommended reading | Permalink | Comments (22) | TrackBack

Lots of notable (and notably different) state death penalty headlines

There have been a number of interesting (and quite different) death penalty stories coming from the states this week.  Here are some of the highlights as provided by these headlines and links:

July 1, 2009 in Death Penalty Reforms | Permalink | Comments (5) | TrackBack

An international perspective on proportionality

I just saw via SSRN this paper coming from Australia titled "Proportionality in Sentencing and the Restorative Justice Paradigm: ‘Just Deserts’ for Victims and Defendants Alike?". Here is the abstract:

The doctrine of proportionality seeks to limit arbitrary and capricious punishment in order to ensure that offenders are punished according to their ‘just desert’.  Proportionality goes some way toward achieving this ‘balanced’ approach by requiring a court to consider various and often competing interests in formulating a sentence commensurate with offence seriousness and offender culpability.  Modification of sentencing law by the introduction of victim impact statements or the requirement that sentencing courts take explicit account of the harm done to the victim and community has generated debate, however, as to the extent to which offenders may be now subject to unjustified, harsher punishments.

This article proposes that in order to overcome the controversy of the modification of offender and victim rights in sentencing, sentencing courts adhere to a doctrine of proportionality which is explicitly sensitive to the needs of victims and offenders in a model of restorative justice that focuses on the consequences of crime as against the individual, rather than the state.  The extent to which proportionality, as the current constitutive principle of Australian sentencing law, may be modified to better encourage a dialogue between victim and offender is discussed.

July 1, 2009 in Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Eleventh Circuit addresses notice requirement for special release conditions

Sentencing proceduralists should be interested in the new opinion from the Eleventh Circuit in US v. Moran, No. 08-16987 (11th Cir. July 1, 2009) (available here).  Here is how the opinion starts:

This appeal presents an issue of first impression: whether a defendant is entitled to notice before a district court may impose special conditions of supervised release to address a defendant’s proclivity to sexual misconduct when the crime of conviction did not involve sexual activity.  Virgil Lee Moran, a convicted sex offender, was convicted of being a felon in possession of a firearm after officers discovered him living with his girlfriend and her minor daughter in violation of his terms of supervised release for an earlier conviction.  Soon after officers discovered Moran in that residence, state officials charged him with failing to register as a sex offender.  Moran argues that he was entitled to notice before the district court imposed special conditions of supervised release related to potential sexual misconduct.  Moran also argues that there is no reasonable relationship between those special conditions and his conviction for being a felon in possession of a firearm. 18 U.S.C. §§ 922(g)(1), 924(e).  In the light of the decision of the Supreme Court in Irizarry v. United States, 128 S. Ct. 2198 (2008), we conclude that no notice was necessary.  We also conclude that the district court did not abuse its discretion in imposing the special conditions on Moran’s supervised release.  We affirm.

July 1, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Should Bernie Madoff bother to appeal his sentence?

The question in the title of this post is prompted by this new article in USA Today, which is headlined "Appeal of Madoff's 150-year sentence wouldn't matter." Here is a big part of an effective article:

Bernard Madoff has potential legal grounds to appeal his 150-year prison sentence, but the chances are slim that he could avoid dying behind bars for bilking thousands of investors in a massive Ponzi scheme, sentencing experts said Tuesday.

Federal guidelines state that criminal penalties should be "sufficient but not greater than necessary" to reflect the seriousness of the offense, promote respect for the law, ensure just punishment and provide adequate deterrence of criminal conduct.

In imposing the maximum allowed sentence Monday, U.S. District Judge Denny Chin cited the "extraordinarily evil" nature of an at least $13 billion scam that victimized investors and institutions rich and poor, exacting "a staggering human toll."  The judge also cited deterrence, saying, "The symbolism is important here because the strongest possible message must be sent to those who would engage in similar conduct ... that they will be punished to the fullest extent of the law."

Madoff defense attorney Ira Lee Sorkin called the sentence "absurd" in an NBC Today show appearance Tuesday. "There's nothing in the sentencing guidelines that talks about making symbols of people," he said.  Sorkin said in a subsequent interview he had not decided whether to appeal.

Mark Allenbaugh, a former attorney for the U.S. Sentencing Commission, said if he represented Madoff he'd argue the penalty "was unreasonable on its face" because it was disproportionate to sentences in most other major white-collar-crime cases....

But a higher court would likely uphold the sentence, because Chin "spoke to the issues" in the guidelines, said Alan Ellis, a National Association of Criminal Defense Lawyers past president in California who specializes in federal sentencing and prison issues. "The sentence was designed to send a deterrence message around the world," said Ellis. "And it has."

But, if an appeals court ruled the term unreasonable, it would send Madoff, 71, back to Chin for re-sentencing.  Pointing to his age, the experts said even reducing his sentence to the 50 years recommended by probation officials would still represent a life term.  "There's a slim chance he'd win the battle," said Allenbaugh, "but he'd lose the war."

Most recent Madoff sentencing posts:

July 1, 2009 in White-collar sentencing | Permalink | Comments (11) | TrackBack

June 30, 2009

Notable new article on "Appellate Review of Sentence Explanations"

I see from this post at Prawfs that Michael O'Hear has another important new piece on SSRN about sentencing explanations.  This new piece is titled "Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experiences," and here is the abstract:

For at least half a century, reformers have urged American appellate courts to play a more active role in the sentencing process. Outside a small number of jurisdictions with binding sentencing guidelines, however, the appellate courts have generally failed to establish a meaningful role for themselves.

The present article focuses on one particular function that appellate courts might usefully perform: that is, reviewing the adequacy of the explanations given by trial-court judges to justify their sentencing decisions. Such “explanation review” is conceptually distinct from substantive review of the sentence: the former asks whether the sentence has been adequately justified, while the latter asks whether the sentence could be adequately justified. As a matter of formal doctrine, explanation review is already an accepted feature of the sentencing law in several jurisdictions. But courts have struggled to give the explanation requirement coherent content, and few sentences are actually overturned on the basis of inadequate explanation. The difficulties may stem, in part, from the courts’ failure to appreciate what may be achieved through rigorous explanation review.

Against this backdrop, the purposes of the present article are threefold. First, the article makes the case for robust explanation review, identifying several useful purposes that are plausibly served by a systematically enforced explanation requirement. Second, the article describes and critiques the explanation review jurisprudence in two specific jurisdictions, Wisconsin and the federal system. Finally, drawing on the best parts of the Wisconsin and federal case law, the article proposes a set of principles that may be used to give explanation review more precise and rigorous content.

June 30, 2009 in Who Sentences | Permalink | Comments (3) | TrackBack

Another stiff sentence for a Ponzi schemer

Perhaps this local sentencing story reflects the echo effect of Bernie Madoff getting maxed out at his federal sentencing:

It may not be as wide-ranging as the theft orchestrated by Wall Street investor Bernard Madoff, but the $6 million stolen by Glyn Richards still destroyed dozens of lives.  So for his crimes, Richards will spend 30 years in federal prison.

Richards, 45, pled guilty last year to setting up a fake freight company: All Freight Logistics, Inc. in Audubon, N.J. From that office, he ran a Ponzi scheme that bilked more than 100 investors out of $5.8 million. In exchange for a hefty buy in — ranging from $25,000 to more than $100,000 — prosecutors say Richards promised his investors quick and big returns.  He told them he was about to land a government defense contract....

Nearly a year after he pleaded guilty, dozens of victims packed the courtroom to hear Richards' sentence.  Several made impassioned pleas for the judge to issue the maximum sentence.

In a move that surprised even prosecutors, Renée Marie Bumb went beyond the federal guidelines in handing Richards 30 years. She said it was "one of the most despicable crimes imaginable."

"It doesn't take a life — like a violent crime does, but it does destroy life," Bumb said.  "I think you are a con man.  You have been and you always will be.  I think you'll be pulling a scam when you walk out the gates of prison."

June 30, 2009 in White-collar sentencing | Permalink | Comments (3) | TrackBack

Seventh Circuit rejects broad-side attack on child porn guidelines

The Seventh Circuit today handed down an intriguing little per curian opinion dealing with the federal child porn guidelines in US v. Huffstatler, No. 08-2622 (7th Cir. June 30 2009) (available here). Here are the choice quotes:

[W]e need not ultimately decide whether Kimbrough gives district courts the discretion to disagree with the child-pornography guidelines on policy grounds, because Huffstatler does not contend that the district court abused its discretion. See United States v. Taylor, 520 F.3d 746, 747-48 (7th Cir. 2008).  He argues instead that the methodological flaws that supposedly run through the child-pornography guidelines invalidate them entirely.  Thus, he submits, not only may a district court sentence below the child-exploitation guidelines based on policy disagreements with them, it must.

Huffstatler’s stance is untenable.  His argument is based on analogy to the crack guidelines, yet those guidelines remain valid, even after KimbroughSee United States v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008).  Judges are not required to disagree with them; a within-guidelines sentence for a crack offense may be reasonable. Id.; see also United States v. Lopez, 545 F.3d 515, 516-17 (7th Cir. 2008) (affirming a within-guidelines sentence for possession with intent to distribute crack).  The child-exploitation guidelines are no different: while district courts perhaps have the freedom to sentence below the child-pornography guidelines based on disagreement with the guidelines, as with the crack guidelines, they are certainly not required to do so.  Because the district court was not obligated to sentence Huffstatler below the range recommended by valid sentencing guidelines, Huffstatler cannot establish error, let alone plain error.

June 30, 2009 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Latest FSR issue, "On the Shoulders of Giants," now available on-line

I am very pleased to report that the latest issue of the Federal Sentencing Reporter is available on-line.  The issue is titled "On the Shoulders of Giants," and Professors Steven Chanenson and Marc Miller were the the chief editors who assembled a great set of articles honoring the gigantic sentencing reform work done by Marvin Frankel and Daniel Freed and Norval Morris in their careers.

The Table of Connects for this latest FSR issue can be accessed at this link, and all the articles are available electronically here .  (A full subscription to the Federal Sentencing Reporter can be ordered on-line here.)  Here is a portion of the Editors' Notes that preview the issue and notes the event that inspired it:

This issue celebrates a professional milestone for this journal and expresses the personal joy of long and close friendships for those of us at the Federal Sentencing Reporter.

In August 2008, in our twentieth year of publication, FSR cosponsored our first symposium in honor of sentencing giants Daniel J. Freed and Norval R. Morris.  This issue adds coverage of sentencing giant Judge Marvin Frankel.  The symposium was integrated into the Annual Conference of the National Association of Sentencing Commissions (NASC), which benefited at that time from the able leadership of Jack O’Connell, Jr., the long-serving director of the Delaware Statistical Analysis Center.  The symposium could not have happened without the full partnership and support of three institutions — NASC, our intellectual home and publishing partner the Vera Institute of Justice (in New York), and the excellent Stanford Criminal Justice Center.

The Stanford Criminal Justice Center, based at Stanford Law School, is run by the brilliant team of Bob Weisberg and Kara Dansky.  Working from a sustained effort to fix California’s troubled systems of sentencing and punishment, they have made the search for wisdom in other systems and through the interaction of scholars, legislators, judges, and other policy actors a hallmark of the center. Weisberg and Dansky recognized that this approach echoes through the careers of Freed and Morris.

It was particularly fitting for the NASC Conference to be the setting for these remarks.  NASC is a unique organization that comprises people interested in sentencing and includes members and staff of sentencing commissions, judges, public officials, lawyers, academics, and other practitioners. It is one of the few places where people from these varied — but interdependent — backgrounds meet and exchange ideas. Most of the contributions in this issue stem from this symposium.

Other recent FSR issues:

June 30, 2009 in Recommended reading | Permalink | Comments (3) | TrackBack

Should SCOTUS or USSC resolve circuit split on who counts as a fraud victim?

The National Law Journal has this new piece noting a circuit split over who counts as a victim for a guideline enhancement in fraud cases.  The article is headlined, "Circuits split on sentencing for financial fraud —  At issue is whether people who are reimbursed for financial losses from criminal schemes should be counted as victims," and here are snippets:

The U.S. Court of Appeals for the 1st Circuit last Friday waded into a growing circuit split over how tough judges can be on defendants accused of financial fraud.  At issue is whether judges should count people who are reimbursed for financial losses from criminal schemes as victims when deciding whether to increase a defendant's sentence.

In a pair of opinions, Judge Kermit V. Lipez, writing for unanimous 1st Circuit panels, upheld 72-month sentences for defendants who were accused of stealing debit card numbers, personal identification numbers, credit card numbers, and ultimately money, from customers of Stop & Shop supermarkets in Rhode Island.  The cases are United States v. Stephanian and United States v. Ter-Esayan.

Federal sentencing guidelines allow for a sentence enhancement for financial crimes like embezzlement and fraud if there are more than 250 victims.  Regarding defendant Mikael Stephanian, Lipez concluded that "the card holders bore the first part of the total losses before the funds were restored" and were unable to access the money the defendants withdrew from their account for a period of time....

That's in line with a 2005 ruling by the 11th Circuit in United States v. Lee, which considered reimbursed persons as victims.  Lipez wrote that the court was rejecting the position of the 6th Circuit in a case, United States v. Yagar, that account holders did not suffer "actual pecuniary harm" because they got their money back.  He noted similar rulings by the 3rd, 5th, 9th and 10 circuits.

Pat Harris of Los Angeles-based Geragos & Geragos, who represented Arman Ter-Esayan in the appeal, said he and his client are disappointed because so many circuits ruled the other way. "There's a real split in the circuits," Harris said.  "I think at some time the Supreme Court is going to have to take a look at this.  When you've got this prominent of an issue, at some point there's going to have to be some clarification."

Especially since the federal sentencing guidelines are supposed to help achieve nationwide consistency in sentencing law and policy, I agree that this circuit split needs to be resolved ASAP.  But, because the split involves a guideline interpretation issue, it is not clear that the Supreme Court must or even should be primarily in charge of providing needed clarification.  As the Supreme Court noted in the (too rarely discussed) Braxton case at the outset of the guideline era, it may make more sense for the US Sentencing Commission to resolve these issues through guideline amendments than for the Supreme Court to deal with the issue via adjudication.

One of my very first articles, Sentencing Commission as Guidelines Supreme Court: Responding to Circuit Conflicts, 7 Federal Sentencing Reporter 142 (1994), talked through this issue of who should respond to these kinds of conflict.  In that piece, I highlighted some of the pros and cons of the USSC rather than SCOTUS being primarily in charge of dealing with these kinds of issues.  And I continue to be unsure whether in general or in this particular fraud setting who should take charge of these kinds of splits.

June 30, 2009 in White-collar sentencing | Permalink | Comments (1) | TrackBack

Notable veto by Texas Gov of sex offender registration reforms

This local article from Texas, headlined "Gov. Rick Perry vetoes bill lifting sex offenders 21, younger from registry," spotlights an interesting development in the Lone Star State.  Here is how the piece starts:

Aaron Jernigan had just started college at age 18 and was planning a career as a music teacher when he met a girl at a party and his whole world changed.  Now 25, Jernigan finished a four-year prison sentence instead of a four-year degree.

He is trying to get on with his life, but a year out of prison he still cannot find work and has had to move twice because he will forever carry with him the black mark of a registered sex offender. "I was pretty much just a regular old kid in high school," he said.  "And they kinda threw away the key on me."

Last week, Gov. Rick Perry vetoed a bill that would have given people such as Jernigan the chance to try to have their names removed from the Texas sex offender registry.  Perry said the measure approved by legislators failed to protect young victims.

For Jernigan and other sex offenders like him, who got involved with young people close to their own age, the veto was a disappointment and a setback.  "We were already ready to get everything settled and get our lives back," Jernigan said.

June 30, 2009 in Sex Offender Sentencing | Permalink | Comments (36) | TrackBack

Around the blogosphere

Lots of good new reading at some of my favorite criminal justice blogs:

June 30, 2009 in Recommended reading | Permalink | Comments (0) | TrackBack

"Prisons in Africa: An Evaluation from a Human Rights Perspective"

The title of this post is the title of this interesting-looking article I just found on SSRN.  Here is the abstract:

While prisons in Africa are often considered the worst in the world many other prisons systems are worse off in terms of violence, overcrowding and a host of other problems.  This is not to argue that African prisons are human rights friendly.  Many are in a deficient condition and their practices are at odds with human rights standards.  However, prisons in many parts of the world are in crisis.  Never before have there been so many problems within penal systems and such large numbers of people in institutions of incarceration.  This article examines the historical development of African prisons from colonial times and considers the legacy that colonialism has left in prisons on the continent.  The article also examines a range of issues in prisons throughout Africa including pretrial detention, overcrowding, resources and governance, women and children in prison, and rehabilitation.  A substantial amount of space is devoted to the reforms that are occurring across the continent, and recommendations are made with regard to what further reforms are necessary.  The role of the African Commission on Human and Peoples' Rights as well as the Special Rapporteur on Prisons and Conditions of Detention in Africa are also considered.

June 30, 2009 in Sentencing around the world | Permalink | Comments (2) | TrackBack

Is deterrence of child porn offenses sought by federal harshness undermined by state leniency?

Regular readers know about the many federal child porn downloading cases in which the federal sentencing guidelines call for many years or even decades of imprisonment.  Federal prosecutors frequently defend these harsh sentencing terms by contending they are needed in order to send a message and deter others from getting involved in accessing child porn.  But this message and the goal of general deterrence must surely be undermined by this kind of local story noting a prominent child porn offender getting sentenced only to probation:

Thomas Adams, the former Green Oaks mayor and Lake County Republican chairman, was sentenced to probation Monday in his child pornography case.  Judge Patricia Golden, who was brought in from Kane County to hear the case, went along with a recommendation from a pre-sentencing investigation and prosecutor Patricia Fix's suggestion that Adams is suitable for probation.

Adams, 71, pleaded guilty in February to 16 counts of possession of child pornography, a Class 3 felony, which is punishable by up to five years in prison, but is also probationable. As part of his plea deal, more serious charges connected to the dissemination of child pornography were dropped....

Adams was arrested on July 24, 2006, after authorities discovered that he e-mailed pornographic photos to an undercover agent in Clearwater, Fla. He was charged with 33 counts of child pornography, including 11 counts for dissemination. The images mostly depicted young boys.  In the days after his arrest, Adams resigned as mayor and as leader of the Lake County Republican party.

Mark Pleasant, an investigator for Lake County State's Attorney's Office, said during the sentencing hearing that Adams got most of the photos through AOL Instant Messenger and AOL chat rooms.  In one online conversation, Adams discussed the possibility of having sex with an undercover agent's teenage sons, though it never progressed, Pleasant said.

June 30, 2009 in Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

June 29, 2009

It was 37 years ago today, SCOTUS jurists decided to play...

and the Justices have been in the business of regulating state administration of capital punishment ever since its ruling June 29, 1972 ruling in Furman v. Georgia (opinions available here; basics here and here). This is how Ed Whelan describes the decision in his NRO Bench Memos post today in "This Day in Judicial Activism":

In Furman v. Georgia five justices vote to overturn a death penalty as cruel and unusual punishment in violation of the Eighth Amendment but can’t agree on a rationale.  Each of the five justices instead issues his own opinion.  Despite the fact that the Fifth and Fourteenth Amendments expressly assume the existence of the death penalty, Justices Brennan and Marshall each assert that the death penalty is in every instance an Eighth Amendment violation.  The Court’s per curiam declaration creates massive confusion and requires states to rewrite their capital-sentencing laws.

I suspect that more than a few readers might have a different take on Furman, and I welcome any and all thoughts and insights in the comments concerning this historic ruling as it approaches middle-age.

June 29, 2009 in Death Penalty Reforms | Permalink | Comments (13) | TrackBack

A new white-collar benchmark: the main reason the number 150 matters in Madoff

As many people recognized in anticipation of Bernie Madoff's sentencing, any prison term of 20 years or more was a functional life sentence for the 71-year-old super Ponzi schemer.  And, notably, the presentence report for Madoff apparently recommended a term of 50 years, perhaps to give him a kind of break due to his decision to plead guilty and also because this was double the 25 years given to Bernie Ebbers for what was previously thought to be the biggest corporate fraud sentenced in New York federal courts.

But the government argued for a maximum permissible statutory sentencing term of 150 years in prison, and Judge Denny Chin apparently decided that only this term was "sufficient, but not greater than necessary" to achieve the purposes of punishment than Congress set out in 3553(a)(2).  And though the choice of this magic sentencing number of 150 years — as opposed to 30 years or 50 years or 100 years — really means very little to Bernie Madoff, it could end up meaning a lot to the government and to some future defendants as a new white-collar sentencing benchmark.

Before Madoff, defendants like Ebbers and Jeff Skilling and others prominent white-collar defendants who were sentenced to around 25 years often served as the functional benchmark for sentencing debates for corporate fraudsters.  In more than a few prominent white-collar cases, both the feds and defense attorneys would often compare and contrast the defendant to be sentenced to Ebbers and Skilling and the sentences they were given.  Now, the most prominent benchmark will be Madoff and the number 150.

Because there will be few other Madoffs (we all hope), I suspect that few other defendants will also get the magic number 150.  But if the original Madoff got only about 15 or 20 years in this case, lots of lesser fraudsters likely would be claiming that they deserved only a few years because Madoff caused so much more harm.  But now that Madoff got 150, only the prosecutors are likely to be talking about the sentencing benchmark that his case has now set.

UPDATE Ellen Podgor has lots of effective early commentary here at White Collar Crime Prof Blog.

June 29, 2009 in White-collar sentencing | Permalink | Comments (10) | TrackBack

Madoff gets sentenced to max of 150 years in federal prison!

Early reports from the MSM says Bernie Madoff gets the max from Judge Denny Chin, 150 years in federal prison, which was the most he could get for all the counts to which Madoff pled guilty.  Of course, with a possible 15% off for good behavior, Madoff could get out as early at 2138.

Here is early coverage from the Wall Street Journal:

Bernard Madoff was sentenced to 150 years in prison Monday, meaning he will likely spend the rest of his life behind bars after admitting in March to running one of the largest and longest financial frauds in recent memory.

At a packed hearing Monday, U.S. District Judge Denny Chin in Manhattan ordered Mr. Madoff, 71 years old, to serve the statutory maximum sentence in prison. Applause briefly broke out after the sentence was announced....

"Here the message must be sent that Mr. Madoff's crimes were extraordinary evil," Judge Chin said.

June 29, 2009 in White-collar sentencing | Permalink | Comments (11) | TrackBack

"This is really a fascinating term for Justices Scalia and Thomas"

The title of this post is a quote from Tom Goldstein's live-blogging at SCOTUSblog in reaction to the handing down of the final opinions of the 2009 Supreme Court Term.  I largely agree with this sentiment, though I have found everything these two do interesting since the Apprendi jurisprudence got going.  I would be interested in how regular readers of this blog respond to this comment.

UPDATE:  Here is how Tom unpacked his quote in these end-of-term reflections:

I think that the most interesting Justices, by far, were Justices Scalia and Thomas.  Both remain the most principled members of the Court.  They joined the defendant-favoring majorities in Gant in Melendez-Diaz, as they consistently have done in the recent lines of jury-right and confrontation cases. Justice Scalia joined the left to provide a majority in Cuomo and Spears.  Justice Thomas did the same in the maritime punitive damages case, Atlantic Sounding.  There is no counter-example in which a member of the left joined the Court’s four most conservative Justices to provide a majority.

Justice Thomas, in particular, remained willing to front new theories on critical questions, often writing only for himself, as in NAMUDNO.  No other member of the Court is so independent in his thinking.  The irony of course is that there remains a public perception, rooted in ignorance, that he is the handmaiden of other conservative Justices, particularly Justice Scalia.  I disagree profoundly with Justice Thomas’s views on many questions, but if you believe that Supreme Court decisionmaking should be a contest of ideas rather than power, so that the measure of a Justice’s greatness is his contribution of new and thoughtful perspectives that enlarge the debate, then Justice Thomas is now our greatest Justice.

June 29, 2009 in Who Sentences | Permalink | Comments (3) | TrackBack

SCOTUS takes up another honest-services fraud case

Though today's SCOTUS headlines will mostly be about the completion of the '09 Term, the Justices also granted cert on a bunch of new cases this morning. This order list reveals that one of the cases, Weyhrauch v. US, the Court specified the issue to be examined in this way:

The petition for a writ of certiorari is granted limited to the following question: Whether, to convict a state official for depriving the public of its right to the defendant's honest services through the non-disclosure of material information, in violation of the mail-fraud statute (18 U.S.C. §§1341 and 1346), the government must prove that the defendant violated a disclosure duty imposed by state law.

June 29, 2009 in White-collar sentencing | Permalink | Comments (0) | TrackBack

"Everything You Need to Know About the Madoff Sentencing"

This post at the WSJ Law Blog claims to provide a primer on everything one needs to know before the Madoff mania starts at 10am Monday morning.  But, if you want to know more, you might check out new pre-sentencing pieces from CNN Money and from the Financial Times and from Reuters and from lots of other media sources.  Also, if you are already thinking about Madoff's next home, this CNN article headlined "Prison survival tips for Madoff," explains why weekends at Bernie's are going to be much different after today's sentencing. 

Of course, as highlighted below, I have chronicled lots of the Madoff pre-sentencing stories in these prior posts:

June 29, 2009 in White-collar sentencing | Permalink | Comments (0) | TrackBack

New York Times editorial about feeding prisoners

This morning's New York Times has this notable editorial, headlined "Two Meals and Not Always Square."  Here are excerpts:

With budgets tight, states and local governments have been looking at prisons — and prison food — as a place to save money.  Three days a week, Georgia now serves inmates only two meals. And across the country, there have been increasing reports of substandard food.  This is inhumane.  Adequate meals should be a nonnegotiable part of a civilized penal system.  It is also bad policy.  Researchers have found a connection between poor food quality and discipline problems and violence.

Georgia has nevertheless decided to save on staff costs by serving just two meals on Friday, as it already did on Saturday and Sunday.  The state says it gives prisoners the same number of calories on days when one meal is skipped.  Even if it does — and some prisoners’ advocates are skeptical — it can be oppressive to go so long without eating.

In Alabama earlier this year, a federal judge ordered the Morgan County sheriff locked up in his own jail for contempt for failing to adequately feed his inmates.  Alabama allows sheriffs to keep food money they do not spend, and the sheriff reportedly pocketed more than $200,000 over three years.

Prisoners’ rights advocates say they are receiving an increasing number of complaints from inmates nationwide who report being served spoiled or inedible food or inadequate portions....

If states and localities want to save money on corrections, they should reduce their prison and jail populations.  The United States, which has less than 5 percent of the world’s population, has almost one-quarter of its prisoners.  Many are in for nonviolent crimes that could be punished in more constructive, and less costly, ways.  If governments decide to put inmates behind bars, they have to give them adequate food — which means no less than three healthy meals a day.

June 29, 2009 in Prisons and prisoners | Permalink | Comments (13) | TrackBack

June 28, 2009

Noting the latest state of the crack-powder sentencing debate

The Washington Post has this new article reviewing the latest developments in the never-ending debate over federal crack and powder sentencing terms.  The piece is headlined "Two Judges Target Cocaine Penalties: Disparity for Crack Crimes Criticized," and here is how it starts:

Federal judges are beginning to equalize punishment for crack and powder cocaine crimes, resulting in shorter prison terms for crack dealers and putting pressure on Congress to address a wide disparity in how the legal system handles cocaine-related offenses.

In two recent rulings and interviews, a federal judge in the District and one in Iowa said they had policy differences with Congress and a judicial commission that they said did not go far enough to change the guidelines for crack sentences in 2007.  From now on, the judges wrote, they will calculate sentences for crack offenders by using the more-lenient sentencing guidelines for powder cocaine crimes.

Recent Supreme Court rulings and supportive statements from top Justice Department officials paved the way for the judges' decisions.  Nonetheless, such unilateral action from the bench is unusual.  Legal scholars said the decisions highlight the judiciary's irritation at the slow pace of sentencing reform as Congress considers the first major revision of crack statutes in decades.

Regular readers with a good memory will know that the two rulings discussed in this article are Judge Mark Bennett's opinion in Gully (discussed here) and Judge Paul Friedman's opinion in Lewis (discussed here).

June 28, 2009 in Drug Offense Sentencing | Permalink | Comments (0) | TrackBack

Should I care about being (mis?)quoted in a White House press release?

While doing a little weekend surfing, I stumbled across this press release appearing on whitehouse.gov from the Office of the Vice President (dated June 9), which seeks to champion Judge Sotomayor's criminal justice credentials.  The release seeks to marshall a bunch of evidence to support the assertion that "as a prosecutor and then on the federal bench, Judge Sotomayor has always been both fair and tough, and has followed the rule of law at every turn." 

Both the tone and substance of the press release reveals that, even in what is supposedly an new era of hope and change, the Obama Administration still thinks it is critically important to play up "tough-on-crime" talking points.  But what really caught my eye was how a quote of mine from an AP story is utilized to help make the case for Judge Sotomayor in this press release. 

Toward the very end of the press release, there is a final heading, "Experts and lawyers in the field have praised Judge Sotomayor’s approach to criminal law," and then five bullet-point quotes, including this entry: "Law Professor and Sentencing Expert Doug Berman has said: 'She certainly doesn't seem to have a pro-criminal bias and, if anything, because of her history, may have a pro-state bias.'"  On the one hand, I am intrigued and flattered that an official White House press release took note of what I had to say in this AP quote; on the other hand, as regular readers might surmise, I was not seeking through this AP quote to "praise Judge Sotomayor’s approach to criminal law."

I should note that I have added my name to a law professors letter expressing support for Judge Sotomayor's nomination to the Supreme Court.  Thus, I am not deeply troubled that my AP quote is being used in this way to help make the case for Judge Sotomayor.  But I still find the packaging a bit worrisome: apparently it is taken as a given by the White House that a possible "pro-state bias" is an approach to criminal law that merits praise.

June 28, 2009 in Who Sentences | Permalink | Comments (12) | TrackBack

Counting some of the economic costs of the death penalty in North Carolina

Thanks to this entry at the Death Penalty Information Center, I saw this interesting report in the Independent Weekly, which is headlined "The high cost of the death penalty: Nickel-and-dimed to death." Here are snippets from the piece:

[C]ourt fees related to capital trials, those in which prosecutors seek the death penalty for murder, cost North Carolina millions of dollars.  The costs are incurred even if the charges are reduced or dismissed.  Given the state's budget crisis, which has forced lawmakers to cut funding for education, social services and children's health insurance, money spent on pursuing death penalty cases arguably could be better used.  Nationwide, several states, including Colorado and Kansas, are considering abolishing the death penalty to save money....

Between 2001 and 2008, N.C. Indigent Defense Services cost the state an additional $36 million when prosecutors sought the death penalty instead of life imprisonment for 733 people, according to the Indy's analysis of a 2008 IDS report.  IDS is a publicly funded agency that provides private attorneys for defendants charged with capital crimes, but cannot afford a lawyer.

Several factors contribute to higher costs for death penalty cases: The state requires that capital defendants have two attorneys; there may be a greater need for expert testimony and a there is a separate sentencing phase.  "The attorneys have to treat their cases as serious capital cases, unless they're told it's not," says Thomas Maher, executive director of N.C Indigent Defense Services.  "The result is, a significant amount of money is spent on capital cases, although at the end of the day, district attorneys as a group only find a dozen in a year they even think are worthy of putting in front of a jury — and of that group, the majority don't get death."

Of the 733 defendants IDS represented who faced the death penalty, less than 3 percent — 20 — received death sentences....  Part of the reason for the extra expense in capital cases is that attorney and expert-witness fees begin accruing immediately — even if the charges are eventually dropped or reduced or the cases don't go to trial....

Earlier this month, after lobbying against the Racial Justice Act (see "District attorneys differ on Racial Justice Act," June 10), Wake County District Attorney Colon Willoughby told the Indy that analyzing the potential savings from limiting capital punishment represents a "fallacious way to make an evaluation." 

"I don't think that we ought to be trying to evaluate someone's life in terms of dollars," he said. "What we ought to be concerned about is whether it's right and sound."

Some recent related posts:

June 28, 2009 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Problems with registration requirements for homeless sex offenders

Thanks to this post at How Appealing, I discovered that state court in Pennsylvania held in this opinion that, though "the Legislature could have drafted the Megan’s Law registration requirement to require a homeless and transient person to register ... it did not."  The opinion notes that other states have struggled with registration requirements as applied to homeless sex offenders, and concludes this way:

Because Wilgus’s homeless existence precluded the possibility of a residence, or fixed place of habitation or abode, we are constrained to hold Wilgus was without a “residence” to register, change or verify within the meaning of Pennsylvania’s Megan’s Law.  The Legislature may well consider amending the statute to address the status of homeless offenders within the registration requirements of Megan’s Law.

June 28, 2009 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Local examination of the realities of plea bargaining

A local paper from Maryland this morning has these two pieces talking about the dynamic realities of plea bargaining:

Here is a portion of the first of these articles:

Because of the volume of jury trial requests alone, plea negotiations are a necessity of the criminal justice system nationwide, local prosecutors and defense attorneys agree. The situation is in no way unique to Frederick County.

Former State's Attorney Scott L. Rolle, now a defense lawyer trying cases against some of the prosecutors he hired, calls plea agreements "a necessary evil."

Frederick County processes more than 10,000 criminal and criminal-related cases each year, including probation violation and child support cases. "With only seven sitting judges in eight courtrooms, every case can't go to trial," Rolle said of Frederick County's judges, three in District Court and four in Circuit Court. "The system would simply come to a screeching halt if that happened."

June 28, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack