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August 1, 2009

Defending the prison cuts in the new California budget

Writing in the Sacremento Bee, Michael Vitiello has this new commentary, headlined "Prison budget cuts, done well, do no harm," praising the prison reforms in California's recently hammered out budget.  Here is how the commentary starts:

Watching California's recent budget negotiations could make grown-ups cry.  But one potentially healthy development is the proposal to reduce the prison budget by $1.2 billion.

Many scholars and nonpartisan observers have argued for several years that California's prison budget is bloated and that sensible policies could reduce expenditures without sacrificing public safety. Not everyone agrees. For example, when Republican Assemblyman Sam Blakeslee learned that the Democrats and the governor backed early prisoner release and creation of a sentencing commission, he accused the Democrats of "concocting a radioactive corrections bill that includes the worst of the worst – a sentencing commission and release of 27,000 prisoners." According to Blakeslee, "such policies would endanger the public and (are) unacceptable."

Attacks such as these may explain why many legislators have feared being accused of being soft on crime. Dating back at least to the Willie Horton ads during the 1988 presidential election, politicians have feared the "soft on crime" label. No matter how sensible a proposal, legislators wonder what will happen to their careers if a prisoner released on their watch commits a well-publicized crime.

So what are the realities about early prisoner release programs and sentencing commissions? While neither is a panacea, both offer realistic chances of reducing prison costs while maintaining public safety.

When Californians read about high recidivism rates for paroled prisoners, we can be forgiven for fearing early release programs. Our recidivism rates far exceed the national average. Elsewhere, prison and parole officials have developed far better systematic intervention programs, including better prisoner re-entry programs, which reduce recidivism rates. California is in an excellent position to benefit from similar programs.

California has an aging prison population, expensive to maintain and unlikely to re-offend upon release. Around the nation, far less "progressive" states have adopted early release programs for older prisoners based on a variety of actuarial factors and have avoided recidivism entirely in that population.

That is not surprising given a number of facts: Violent crime is a young man's game; by the time an offender reaches 30 years old, his violent conduct is on the decline. While that is not true for all offenders, data collection – like everywhere else in the computer age – has improved measurement of risk and protective factors, allowing accurate predictions about the probability of recidivism. Thus, a well-thought-out early release program could protect the public, while reducing prison costs.

Some recent related posts:

August 1, 2009 in Scope of Imprisonment | Permalink | Comments (10) | TrackBack

District judge rejects plea deal offered to crooked state judges

As detailed in this New York Times article, " a federal judge rejected the plea agreement of two former Pennsylvania county judges who pleaded guilty in February to a kickback scheme that involved sending juveniles to private detention facilities."  Here are more details:

The ex-judges, Mark A. Ciavarella Jr. of the Luzerne County juvenile court and Michael T. Conahan of the Luzerne County Court of Common Pleas, pleaded guilty in February to wire fraud and income tax fraud for taking more than $2.6 million in kickbacks to send teenagers to two privately run youth detention centers.

In a highly critical order, issued Friday, Judge Edwin M. Kosik of Federal District Court in Scranton, Pa., said he based his decision on the comments and conduct of the two men after they entered guilty pleas to serve 87 months in prison....

Judge Kosik said the plea agreements were well below the sentencing guidelines. The men face a maximum penalty of 25 years, a fine of $250,000, a maximum term of supervised release of up to 5 years to be determined by the court, Judge Kosik said.

The full memorandum and order from Judge Kosik is available at this link.

August 1, 2009 in Offense Characteristics | Permalink | Comments (4) | TrackBack

Hot debate over whether DOJ is going soft on porn

At Politico, Josh Gerstein has this intriguing article, headlined "Porn prosecution fuels debate," which discusses a variety of issues concerning federal prosecution of obscenity crimes.  Here is a snippet:

Social conservatives railed against the Clinton Administration for not prosecuting adult obscenity and were disappointed when few such cases were brought in the early years of the Bush Administration.  Things perked up a bit in 2005 when Attorney General Alberto Gonzales set up an Obscenity Prosecution Task Force, which ultimately focused on prosecuting fetish, bestiality and so-called fringe porn.

Six months into the Obama Administration, the task force is still in business and is still headed by a former U.S. Attorney for Utah under President Ronald Reagan, Brent Ward....

Since Obama’s inauguration, prosecutors have pressed on with pending obscenity cases and accepted guilty pleas in one high-profile prosecution brought in Pittsburgh.  However, there have been no announcements of new adult obscenity indictments, a trend that Justice Department officials declined to discuss, though they did note that federal prosecutions for child pornography have continued apace.

August 1, 2009 in Who Sentences | Permalink | Comments (2) | TrackBack

July 31, 2009

China saying it will use death penalty less

This AP article, headlined "China says death penalty to be used more sparingly," reports on a planned cut back on capital punishment from the world's leader in executions.  Here are a few details:

The highest court in China, which executes more people than any other country, has called for the death penalty to be used less often and for only the most serious criminal cases, state media reported Wednesday.  The remarks indicate that the Supreme People's Court, which reviews all death sentences from lower courts before they are carried out, could overturn more of them.

Rights group Amnesty International reported earlier this year that China put at least 1,718 people to death in 2008. The penalty is used even for nonviolent crimes such as corruption or tax evasion.

The court will revise legislation to cut down the number of death sentences and will stress commuting sentences to life in prison for some criminals who show good behavior, a senior director in charge at the court told the Legal Daily newspaper.  "A policy of strictly controlling and being cautious to use the death penalty ... requires judicial departments to use as few death penalties as possible, meaning you don't kill those who you don't have to kill," the official was quoted as saying in an interview, a partial transcript of which was published on the Legal Daily Web site.

July 31, 2009 in Sentencing around the world | Permalink | Comments (1) | TrackBack

"Why it’s time to end the war on drugs"

The title of this post is the headline of this commentary by Matthew Engel from the Financial Times.  Here is a snippet:

For decades many academics and professionals have regarded the current blanket prohibition on recreational drugs (though not alcohol or tobacco) as absurd, counter-productive and destructive. But there has never been any political imperative for change, and a thousand reasons to do nothing.

But 2009 has seen a change: among the academics and professionals who study this issue, from Carlisle Racecourse to the think-tanks of ­Washington, there is growing sense that reform is possible and increasingly urgent.  The argument is not that drug use is A Good Thing.  It is that the collateral damage caused by the so-called war on drugs has now reached catastrophic proportions. And even some politicians have started to think this might be worth discussing. The biggest single reason (as with so much else this year) is the Obama Effect.  In one way, this may be short-lived since the president’s reputation will eventually be tarnished by ­reality.  But the chief barrier to reform has been that the international agreements barring the drugs trade have been enforced primarily by threats of retaliation from the White House.

Obama is the third successive president believed to have used illegal drugs: Bill Clinton famously did not inhale; in a conversation that was secretly taped when he was governor of Texas, George W. Bush didn’t deny that he had smoked marijuana or used cocaine; Obama has admitted using both dope and “a little blow”.  Unlike the other two, he is also on record as favouring decriminalisation of cannabis and more generally addressing the problem.  The president having other preoccupations, there is no sign of him proposing the Do What The Hell You Like Bill to Congress any time soon.  There is every sign that the blanket ban on other people’s initiatives has been partially lifted.

Obama has also come to power amid a growing sense of alarm about the US prison population. Nearly four million Americans are either physically in jail (including almost 5 per cent of all black males) or under some form of state or federal jurisdiction.  About 20 per cent of these are listed as having committed drug offences.  But this must be a gross underestimate of reality.  I recently asked a British judge what percentage of the defendants in his court were there for drugs-related crimes: not just direct breaches of the drug laws, but also crimes committed by those whose behaviour was affected by drug use or who were trying to obtain money to buy them.  He thought for a moment then said: “Sixty per cent. And most of the rest involve alcohol.”  We may assume that, in the more drug-pervasive ­American culture, the figure would be higher than this.

July 31, 2009 in Drug Offense Sentencing | Permalink | Comments (12) | TrackBack

Tenth Circuit reverses Nacchio's sentence while thoughtfully discussing federal fraud sentencing

Though a thoughtful ruling in a major case, the Tenth Circuit today has reversed the sentence imposed on former Qwest CEO Joe Nacchio following his conviction for insider trading.  The unanimous panel opinion in US v. Nacchio, No. 07-1311 (10th Cir. July 31, 2009) (available here), is a must-read for everyone involved or interested in white-collar sentencing issues.  

The full opinion runs 59 pages and has lots of notable quotes.  Here is one of many sections (with important cites and footnotes left out) that should whet the appetite of sentencing fans:

Contrary to the district court’s net-profit approach, a disgorgement approach is entirely consonant with central principles of federal sentencing policy in that it endeavors to hold the defendant accountable for the portion of the increased value of the stock that is related to his or her criminally culpable conduct. Consequently, it militates against the creation of unwarranted sentencing disparities among similarly situated defendants.

Federal sentencing is individualized sentencing: the sentencing court seeks to craft a sentence that fully reflects a particular defendant’s criminally culpable conduct, including the harm caused by it, and the defendant’s personal circumstances....

However, if the impact of unrelated twists and turns of the market is ignored in the sentencing calculus then an insider trading defendant is likely to suffer a sentence that is detached from his or her individual criminal conduct and circumstances.  And this detachment can have a profound, detrimental impact onanother objective of federal sentencing — the elimination of unwarranted disparities between similarly situated defendants.

Therefore, from a policy perspective, it makes sense to adopt a sentencing approach that is focused on a defendant’s criminally culpable conduct and has the effect of excising — even if not completely — unrelated market forces from the sentencing calculus, thereby narrowing the zone of unpredictability in sentencing.  Such is the disgorgement approach we adopt here: it takes into consideration the fact that stocks have inherent value (quite apart from criminally fraudulent conduct) and seeks to exclude that unrelated value from the computation of a defendant’s punishment, and it sets a logical, temporal cutoff point for assessing the gain of the illegal conduct, i.e., the point when the information is disclosed and absorbed by the market.

As this excerpt spotlights, this big sentencing opinion from the Tenth Circuit in the Nacchio case covers matters of great interest and importance to both sentencing theorists and practicing corporate lawyers.  And how often do I get to say that?

July 31, 2009 in White-collar sentencing | Permalink | Comments (2) | TrackBack

Recommended reading on race and criminal justice after the "beer summit"

In the wake of the so-called "beer summit"  — which probably has gotten so much attention because everyone is tired of thinking hard about hard issues like health care reform — here is a piece from SSRN that everyone should check out.  The piece by Ian Haney-Lopez is titled "Post-Racial Racism: Crime Control and Racial Stratification in the Age of Obama," and here is the abstract:

What does the 2008 election of Barack Obama to the United States presidency portend for race in America?  This Essay uses the tremendous racial disparities in the American crime control system to assess race and racism as key features of contemporary society.  The Essay begins by considering a compelling thesis that racialized mass incarceration stems from backlash to the civil rights movement.  If true, this raises the possibility that Obama’s election, potentially marking the end of backlash politics, also represents a likely turning point in the war on crime.

The Essay then reconsiders mass imprisonment from the perspective of “racial stratification,” a structural theory that emphasizes the simultaneous formation of racial categories and the misallocation of resources between races.  A stratification approach leaves one less sanguine about rapid change in American race relations, though without disparaging either the historic nature of Obama’s inauguration or the possibility of incremental improvements in racial justice. Reflecting the continued need to push for positive racial change, the Essay concludes by arguing morally and politically for a renewed focus on racism, in particular on “post-racial racism.”

July 31, 2009 in Race, Class, and Gender | Permalink | Comments (4) | TrackBack

July 30, 2009

"Mandatory Sentencing Guidelines by Any Other Name: When 'Indeterminate Structured Sentencing' Violates Blakely v. Washington"

The title of this post is the title of this new article available via SSRN by Bradley Hall.  Here is the abstract:

While striking down Washington's mandatory sentencing guidelines scheme in Blakely v. Washington, the Supreme Court made clear that '[w]hen a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment . . .’ and the judge exceeds his proper authority.'  Conversely, the Court approved of sentencing schemes that do not employ mandatory sentencing guidelines based on judicial fact-finding, but instead vest judges with full sentencing authority at the moment of conviction, i.e., schemes in which judge-found facts are not 'essential to the punishment.'

The Court imprecisely referred to these unproblematic schemes, however, as 'indeterminate,' apparently borrowing from another characteristic common to the nonguideline sentencing schemes that were widespread prior to the 1980s: the idea that a defendant’s actual time in custody is not “determined” solely by the sentencing judge, but depends in part upon nonjudicial factors, typically an executive branch parole board.

A careful examination of its earlier precedents reveals that the Supreme Court has never been concerned with the existence of a parole board when it has used the term 'indeterminate.'  Rather, the Court’s sole concern has been whether a sentencing scheme employs mandatory sentencing guidelines that narrow a judge’s sentencing discretion.

Buoyed by the Supreme Court’s acceptance of 'indeterminate sentencing' in an otherwise confusing post-Blakely landscape, but without the least bit of thought as to what the Court actually meant by the term, some state courts have found that any sentencing regime employing a parole board, and therefore meeting the dictionary definition of 'indeterminate,' withstands constitutional scrutiny.  The Michigan and Pennsylvania courts have led the way.  Those states employ what Steven Chanenson has aptly called 'Indeterminate Structured Sentencing' (ISS) schemes because they include both a parole component (they are 'indeterminate') and a sentencing guidelines component (they are 'structured').

In upholding these schemes, the state courts’ primary concern has been the 'indeterminate' side of this equation, but this Article argues that it is the form of the 'structure,' rather than the presence of a parole board, that governs the Blakely analysis.  Specifically, when indeterminate (parolable) sentencing involves mandatory sentencing guidelines, as in Michigan, it runs afoul of Blakely.  Although a sentence in Michigan takes the form of a parolable range, leaving an additional layer of discretion to a parole board, the range often increases in severity based on judge-found facts. Thus, judges are regularly required to 'inflict punishment that the jury’s verdict alone does not allow . . . .'

July 30, 2009 in Blakely in the States | Permalink | Comments (3) | TrackBack

"Mentally ill struggle to meet sex registry regulations"

The title of this post is the headline of this sad article from The Tennessean. Here is how it starts:

Carlton Hunter consistently fails to register as a sex offender, and he has served nearly 500 days in jail over the past five years as punishment for that.  Hunter, 45, was convicted in 1990 of two counts of attempted rape. He has racked up dozens of arrests since, almost all nonviolent misdemeanors: obstructing a passageway, public intoxication, possession of drug paraphernalia.  And after he gets released on the minor charges, a new warrant inevitably is issued for his arrest when he fails to report it to the sex offender registry.

Hunter is homeless.  He also is mildly mentally retarded and has paranoid schizophrenia.  His attorneys say he has no family, nobody to watch over him, and he simply can't comprehend or comply with the rules of the sex offender registry.

The state agreed, granting Hunter an exception.  He no longer will have to follow the rules of the registry. And though Hunter is an extreme case, some advocates are concerned that the law may need to be changed to deal with repeat offenders who lack the mental capacity to follow it. "In terms of understanding mental illness, it's inconceivable that anyone could meet the requirements if they're mentally incapacitated," said Ben Middleton, senior vice president of core services at Centerstone.

Though there's no way to track how many people on the sex offender registry have mental illness, an analysis of the database showed that 9 percent of the 1,300 offenders in Nashville list themselves as homeless. Roughly 50 percent of those homeless offenders have been arrested for violating the laws of the registry in Nashville, according to their court records.  About 30 percent of homeless people have a severe mental illness, according to the National Alliance on Mental Illness.

July 30, 2009 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

House bill to end crack/powder disparity continues moving forward

This post at Jurist provides an effective review (with lots of links on the latest news on a bill to equalize federal sentences for crack and powder cocaine offenses. Here is the start of its report: "The US House Judiciary Committee voted 16-9 Wednesday to approve a bill that would eliminate sentencing disparities for powder and crack cocaine offenses. The bill, co-sponsored by committee chairman John Conyers (D-MI) would eliminate the distinction between the two forms of the drug under federal law."

July 30, 2009 in Who Sentences | Permalink | Comments (0) | TrackBack

Some innovative approaches to sentencing drunk drivers

At Grits for Breakfast, Scott Henson has this extended post on a new proposal being implemented in Harris County, Texas for dealing with drunk driving offenders.  Here are the basics via Grits: "Bottom line, all first time DWI defendants will be offered two options: 30 days in jail or two-years on probation in a newly created (and poorly named) 'diversion' program, after which charges will be dismissed."  This Houston Chronicle story highlights the negative buzz the proposal is getting from the defense bar:

Defense lawyers said the Harris County District Attorneys office's new DWI diversion program, set to begin Aug. 1, may be unworkable, and possibly illegal, after hearing the details Wednesday....

JoAnne Musick, president of the Harris County Criminal Lawyers Association, said the program is coercive and appears to thwart the intent of the Legislature, which prohibits deferred adjudication for DWI offenses.

"It could have been a good program. It could have been an exceptional opportunity for people who have made a mistake and driven when they shouldn't have,” Musick said. “At the same time, I think it's very poor planning and execution on how to conduct the program.”  She said the plan is coercive because defendants have to waive their rights, sign a contract and plead guilty.  She said defendants could be sent to jail at the smallest amount of evidence of a mistake or if they fail to fulfill every requirement.

Meanwhile, this story from USA Today, which is headlined "U.S. may require anti-DWI locks on vehicles," spotlights what strikes me as a more effective and sophisticated approach to sentencing first-offense drunk drivers:

A national campaign against first-time drunken-driving offenders is gaining ground as states and the federal government weigh mandatory use of devices requiring violators to prove their sobriety before their engines start.  Three more states have enacted laws this year requiring all violators to install devices called alcohol ignition interlocks, bringing to 11 the number of states with such rules.  The instrument blocks a vehicle engine from starting if it detects alcohol on the breath of drivers.

The current version of a federal transportation funding bill, which could be debated by Congress this fall, requires all 50 states to mandate the devices for anyone convicted of drunken driving or risk losing federal highway money.  Today, 47 states and the District of Columbia have interlock ignition laws for at least some offenders. Alabama, South Dakota and Vermont have no such laws. They are installed in about 150,000 vehicles in the USA — a number that would approach 1 million if they were required for every convicted drunken driver.

Proponents of broader use of interlock systems — including MADD, the Insurance Institute for Highway Safety and the Governors Highway Safety Association — say they would save an additional 4,000-8,000 lives a year.  They point to New Mexico, which was a perennial national leader in alcohol-related crashes in 2005 when it became the first state to require ignition interlocks for all convicted drunken drivers.  The interlock law was part of a campaign that has spurred a 35% drop in drunken-driving deaths there.

Some related posts on sentencing drunk drivers:

July 30, 2009 in Criminal Sentences Alternatives | Permalink | Comments (1) | TrackBack

Heller's impact on felon-in-possession crimes finally starting to generate attention

As regular readers know, I have been blogging about the possible impact of the Second Amendment on federal felon-in-possession crimes and sentencing since the Supreme Court first granted cert in Heller.  Now, thanks to a terrific concurrence by Judge Tymkovich (discussed here) about Heller and the 922(g)(1) felon-in-possession law in US v. McCane, No. 08-6325 (10th Cir. July 28, 2009) (available here), this issue is finally starting to get some broader attention. 

Specifically, in this post at SCOTUSblog, Lyle Denniston responds to Judge Tymkovich's opinion and asks "Did Heller say too much?". Similarly, in this post at The Volokh Conspiracy, Eugene Volokh comments thoughtfully on Judge Tymkovich's opinion.  Here is hoping that other big bloggers and also the media start engaging with this issue more thoughtfully and dynamically.

Some related Second Amendment posts:

July 30, 2009 in Second Amendment issues | Permalink | Comments (21) | TrackBack

Should having multiple sclerosis be a viable defense to a local pot charge?

The question of this post is inspired by this commentary piece, which is headlined "Judge forgets to bring conscience to work, denies MS patient proper defense," and complains about a legal ruling from a state court in New Jersey.  Here are the basics:

A New Jersey man with Multiple Sclerosis is being charged for growing his own medicine to treat his pain and muscle spasms. John Ray Wilson, of Franklin, New Jersey is facing the charge of operating a drug manufacturing facility for growing his own medicine, and the Judge is refusing to allow any mention of the man’s medical condition at trial.

A lot of people might ask why this man didn’t just go to the doctor and get medications. The answer, according to Wilson’s attorney, is simple.  Wilson had no health insurance and could not afford to pay for the medications to treat his condition.  This is what led Wilson to seek alternative remedies like bee venom and medical cannabis.

Now, none of this matters, because Judge Robert Reed is refusing Wilson to admit his medical condition as an excuse for growing his own medicine.  The judge states his reason being New Jersey does not currently comprehend the use of marijuana for medicinal purposes.  Apparently, they also don’t comprehend the fact that one’s ability to pay or afford his/her medical care has no impact on the reality that he/she is sick.

July 30, 2009 in Offender Characteristics | Permalink | Comments (7) | TrackBack

"Legitimizing Local Variations in the Federal Sentencing System"

The title of this post is the title of this effective new piece on SSRN.  Here is the abstract:

This Essay attempts to provide an all-things-considered approach to justifying local sentencing variations in the federal system.  Instead of trying to eliminate those disparities, this Essay contends that the federal sentencing system should embrace regional variations to increase the moral credibility of the system at the local level.  To do this, it argues for the creation of regional sentencing commissions (one for each federal circuit), which would promulgate their own, regional sentencing guidelines.  By premising each set of guidelines on Professor Paul H. Robinson’s distributive principle of empirical desert, which is informed by lay intuitions of justice, the federal system would be made to respond to community norms and conditions, thereby increasing local credibility.

July 30, 2009 in Federal Sentencing Guidelines | Permalink | Comments (2) | TrackBack

July 29, 2009

Split DC Circuit says federal judges cannot increase a prison sentence for rehabilitative reasons

As detailed in this post from The BLT, the DC Circuit ruled yesterday that federal district judges "cannot use a greater likelihood of rehabilitation to justify a longer prison sentence for a criminal defendant."  The ruling comes is In re: Sealed Case, No. 08-3029 (DC Cir. July 28, 2009) (available here), which starts this way:

Sentenced to eleven years in prison after pleading guilty to unlawful distribution of 2.1 grams of heroin, defendant appeals, arguing that the district court improperly sought to promote his rehabilitation through a longer term of imprisonment. Although defendant’s failure to object to the district court’s reasoning at sentencing limits us to plain error review, we agree that 18 U.S.C. § 3582(a) expressly prohibits sentencing courts from treating rehabilitation as a reason for imposing a longer term of imprisonment. In light of this clear statutory provision, and because this case also meets the remaining elements of the stringent plain error test, we vacate the sentence and remand for resentencing. Also, in accordance with our general practice and the government’s concession, we remand defendant’s additional claim that he received ineffective assistance of counsel.

As The BLT post notes, the "8th and 9th circuits have both determined that district judges can sentence a defendant to a longer prison sentence to promote rehabilitation.  The 2nd and 3rd circuits say judges cannot increase a prison sentence for rehabilitative reasons."

July 29, 2009 in Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

Justice news of notes from The BLT

The Blog of Legal Times (aka The BLT) has lots and lots of recent posts of note (many of which should be of special interest for criminal justice fans):

July 29, 2009 in Recommended reading | Permalink | Comments (1) | TrackBack

"The Fiscal Crisis in Corrections: Rethinking Policies and Practices"

The title of this post is the title of an important new report from the Vera Institute of Justice, which is available at this link.  Here is Vera's description of its efforts:

States across the United States are facing the worst fiscal crisis in years.  All but two states are dealing with budget deficits, and spending is being cut across the board.  Second only to Medicaid, corrections has become the fastest growing general fund expenditure in the United States. Considered off limits for many years, corrections budgets are now subject to these same cuts. Based on a survey of enacted FY2010 state budgets and other recent sentencing and corrections legislation, this new report from Vera’s Center on Sentencing and Corrections found that at least 22 states have reversed the trend of recent decades and cut funding for corrections. This report examines the form of these cuts, including reductions in operational costs, reforms in release policy, and strategies for reducing recidivism, and it highlights some of the innovations that states are pursuing for long-term savings while also maintaining public safety.

July 29, 2009 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

"Neoliberal Penality: A Brief Genealogy"

The title of this post is the title of this new piece from Bernard Harcourt available here via SSRN.  Anyone thinking a lot (or even a little) about modern mass incarceration ought to be reading all of Professor Harcourt's work, and here is the abstract from this new piece:

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.

July 29, 2009 in Scope of Imprisonment | Permalink | Comments (5) | TrackBack

July 28, 2009

Reviewing how tough times are resulting in prison releases

This new AP article, headlined "States target prisons for cuts, raising worries," provides a review of the many states being forced to make prison cuts in tough economic times.  Here are snippets:

Nine states are considering closing prisons or cutting staff, according to the National Conference of State Legislatures, while others are shedding inmate education programs that researchers say are critical to reducing recidivism.

Kentucky has released more than 2,800 inmates early since last year by allowing prisoners to get more credit than normal for time served. More than 150 violent felons and two dozen sex offenders were initially set free because of a loophole that has since been closed....

And Michigan has thinned its prison population from more than 51,000 to about 47,500 through paroles and commutations and an expanded effort to keep parolees from committing new crimes.  The goal is to get the number below 45,000 and close three state prisons and five prison camps to save $120 million. Gov. Jennifer Granholm's administration says only low-risk offenders are getting early parole.

The cost of running state lockups, including paying guards, offering drug treatment and running probation and parole programs, is among the biggest drains on state budgets, making them vulnerable when states face a cash crunch....

At the Stateville prison in Joliet, guard Ralph Portwood said some watchtowers already go unmanned because of cutbacks, and inmates are double-bunked almost throughout the prison.  "Security has taken the back seat to the budget right now," Portwood said. "I know everyone's got a job to do. But remember, security should supersede everything."...

Several states are considering changing their systems of probation and parole by easing strict requirements that easily trip up newly released convicts.  An expert panel convened by California officials said the state could save more than $800 million a year by not sending parolees back to jail for technical violations and making it easier for convicts to complete classes for early-release credit.

Ian Pulsifer, a policy specialist at the National Conference of State Legislatures, said states considering early release or easing parole and probation requirements are targeting nonviolent inmates — mostly drug offenders and those not accused of sex crimes. "States are looking at things to cut down corrections costs, but they're not going to be sacrificing public safety for the sake of saving money," he said.

July 28, 2009 in Scope of Imprisonment | Permalink | Comments (12) | TrackBack

Ohio Supreme Court blesses retoractive application of its response to Blakely

As detailed  this official summary, the "Ohio Supreme Court on Tuesday upheld the constitutionality of a criminal sentencing decision it made in 2006, rebuffing the claims of a defendant who argued the ruling violated his rights to a jury trial and due process."  The full ruling in Ohio v. Elmore, No. 2009-Ohio-3478 (Ohio July 28, 2009), is available at this link, and here is how the official summary starts:

The Supreme Court of Ohio ruled today that the resentencing of criminal offenders pursuant to the Court’s February 27, 2006  decision in State v. Foster for crimes committed before that date does not violate offenders’ Sixth Amendment right to a jury trial or their rights under the Ex Post Facto or Due Process clauses of the U.S. Constitution.

In a 7-0 decision authored by Justice Judith Ann Lanzinger, the Court also held that a trial court resentencing an offender pursuant to Foster is not required to impose the minimum prison term for each offense for which the defendant  was convicted, and has discretion to order that  sentences for multiple convictions be served either concurrently (at the same time) or consecutively (one after the other).

In this local article concerning the ruling, the defendant's lawyer indicates he is eager to appeal this ruling to the US Supreme Court:

Keith Yeazel, Elmore's attorney, said he will recommend to his client that he appeal the Ohio Supreme Court's decision to the U.S. Supreme Court. Yeazel said the U.S. Supreme Court has found that no more than the minimum sentence can be applied unless additional evidence is considered.

He also said Ohio law directs judges to issue concurrent sentences except under certain conditions."The Ohio Supreme Court has decided that they don't want to do what the Ohio General Assembly said they should do," Yeazel said.

July 28, 2009 in Blakely in the States | Permalink | Comments (2) | TrackBack

Texas to establish its first another capital defender office

As detailed in this Houston Chronicle article, which is headlined "State to handle capital appeals," Texas is reforming its process of capital defense.  Here are more details:

Texas, which executes more convicts than any other state in the nation, will open its first capital defense office next year to manage appeals for death row inmates after years of reports that appointed private attorneys repeatedly botched the job.

“The status quo has been an international embarrassment,” said state Sen. Rodney Ellis, D-Houston, who sponsored the law that created the office.  It was supported by an unusual alliance between the State Bar of Texas, the Court of Criminal Appeals and public defense advocates, who all backed it in the last legislative session.

The law was inspired by a series of stories about Texas inmates who lost crucial appeals after court-appointed attorneys missed deadlines or filed only so-called “skeletal” writs — documents with little information often copied from other cases.  It represents a significant reform for Texas, one of the only capital punishment states that lacks a public defender to oversee key death row appeals known as state writs of habeas corpus.

The office, with an annual budget of about $1 million and a staff of nine, won't open soon enough to help any of the inmates whose appellate rights were squandered recently.  “Better late than never,” said Juan Castillo, one of four death row inmates whose state appeals were never filed by the San Antonio attorney assigned to represent them.  “This is a start.  There's a lot of cases” that have been screwed up....

The Office of Capital Writs will be funded by redirecting money already in the state budget: $500,000 formerly used to pay private attorneys for appeals and $494,520 from the state's Fair Defense account, already earmarked for indigent defense.  Ultimately, its attorneys will likely handle most state appeals — about 10 a year, if the current pace of death sentences continues.

UPDATE:  Post title altered in response to comments.

July 28, 2009 in Death Penalty Reforms | Permalink | Comments (8) | TrackBack

"Prison consultants help inmates get good digs"

The title of this post is the headline of this article about "a type of prison consultant increasingly popular among white-collar wrongdoers."  Here's more from an interesting piece:

From Martha Stewart to Michael Vick, prison consultants are often hired by celebrities, white-collar miscreants and disgraced politicians to lobby for good prison placement, mitigate sentence length and offer crash courses in prison culture.  Last week's arrests of 44 people in a wide-ranging corruption probe that netted public officials and religious leaders in New York and New Jersey may soon produce a batch of new clients.

The Federal Bureau of Prisons is aware of the work of prison consultants, but the agency treats all requests from prison consultants as it would any request from the general public, said spokeswoman Felicia Ponce.  Consultants say that they never promise good placement and that lobbying for it is only one aspect of what they do for their clients.

"It's like going to a foreign country that you've never been to before — different language, people's mannerisms," said Tim Miller of the San Diego-based Dr. Prison consultant service.  "When people are entering into the system, we help them look at themselves in ways they may not see themselves."

Miller says his firm first assesses a client's "prison demeanor" and then tailors advice accordingly. Often, former powerbrokers are told they can no longer order others around and shy people are urged to learn to play cards or talk sports so they don't seem anti-social.  Clients are counseled, he said, to always stick with their own race — regardless of how open-minded they might be in the outside world — and are coached to never let anyone cut in front of them in the food line. They're warned that dorm environments are more volatile than single cellblocks and that most altercations take place in the TV room....

Herbert Hoelter said he is on retainer as a professional favor to Madoff's lawyer, Ira Sorkin, but is not being paid by the disgraced financier he describes as indigent.  A trained social worker and pioneer in sentencing consulting, Hoelter co-founded in 1977 the Maryland-based nonprofit National Center on Institutions and Alternatives, which has represented Stewart, Vick, Michael Milken and Ivan Boesky.

Several other consultants learned the trade the hard way: by serving time themselves. "Many lawyers think their job is done the day of sentencing, that's when my job typically begins," said John Webster, founder of the Nashville-based National Prison and Sentencing Consultants. Webster, a former attorney, started his company in 2002, shortly after his release from a 13-month stint in federal prison for lying to the FBI while representing a client in a New Jersey securities fraud case.

"The true punishment of a federal prison camp is the sheer boredom," said Webster, who charges a flat rate of $3,500 for what he calls "complete prison preparation," or a per-diem rate for cases that involve travel or investigative work. White-collar offenders "have to understand where they're going and the kinds of people they'll be around," Webster said.  "They're no longer the captain of the ship or the leader of the pack."

Larry Levine of the Los Angeles-based companies Wall Street Prison Consultants and American Prison Consultants says his 10 years of hard time for narcotics and possession of counterfeit securities, among other charges, guarantee that his advice is genuine.  His firm offers a primer called "Fed Time 101," covering everything from inmate etiquette to suing a Bureau of Prisons employee. .

July 28, 2009 in Prisons and prisoners | Permalink | Comments (1) | TrackBack

Some of the amici briefs in support of the defendants in Graham and Sullivan

I am still working through the top-side merits briefs in Graham and Sullivan (discussed here), which are the two SCOTUS juve LWOP cases that present fascinating Eighth Amendment question.  I hope to be able to find time in the weeks ahead to blog about what these merits briefs argue (and what they do not argue).  

In the meantime, folks ahead of me on their juve LWOP reading can and should start checking out the 14 amicus briefs filed on behalf of the defendants that the SCOTUSwiki folks have posted here and here.  Though I hope to eventually blog about what some of these amici argue, I hope readers might get a running start by noting any especially interesting or unexpected argument to be found in these friendly briefs.

It seems as though the Obama Administration's Department of Justice did not file a brief on behalf of the defendants in these cases.  I perhaps can understand the political calculus leading to that reality, but it is another disappointing example of the disinclination of Obama's DOJ to spend any political capital in order to advocate on behalf of even juvenile criminal defendants.

Some other posts on the Graham and Sullivan cases:

July 28, 2009 in Graham and Sullivan Eighth Amendment cases | Permalink | Comments (0) | TrackBack

"[T]he felon dispossession dictum may lack the 'longstanding' historical basis that Heller ascribes to it"

The title of this post is a line from a concurrence by Judge Tymkovich about Heller and the 922(g)(1) felon-in-possession law in US v. McCane, No. 08-6325 (10th Cir. July 28, 2009) (available here). 

In his concurrence to an opinion rejecting a Second Amendment challenge to a 922(g)(1) conviction, Judge Tymkovich explains why he feel he must follow the dicta in Hellerindicating that felon-in-possession laws are sound under the Second Amendment.  But he goes on to express concern about its soundness --- which he describes as "deus ex machina" dicta and leads him to wonder "at least with regard to felon dispossession, whether the Heller dictum has swallowed the Heller rule."  Judge Tymkovich also expresses concern with the Heller dicta's "inhibiting effect" on lower courts charged with applying Heller.

Needless to say, in light of many of the prior posts in which I have discussed these issues, I am very glad to see Judge Tymkovich giving this matter thoughtful treatment.

Some related Second Amendment posts:

July 28, 2009 in Second Amendment issues | Permalink | Comments (1) | TrackBack

New York Times editorial on "12 and in Prison"

Today's New York Times has this notable editorial about young kids in adult criminal justice systems.  Here are some excerpts:

The Supreme Court sent an important message when it ruled in Roper v. Simmons in 2005 that children under the age of 18 when their crimes were committed were not eligible for the death penalty.  Justice Anthony Kennedy drew on compassion, common sense and the science of the youthful brain when he wrote that it was morally wrong to equate the offenses of emotionally undeveloped adolescents with the offenses of fully formed adults.

The states have followed this logic in death penalty cases.  But they have continued to mete out barbaric treatment — including life sentences — to children whose cases should rightly be handled through the juvenile courts.

Congress can help to correct these practices by amending the Juvenile Justice and Delinquency Prevention Act of 1974, which is up for Congressional reauthorization this year.  To get a share of delinquency prevention money, the law requires the states and localities to meet minimum federal protections for youths in the justice system.  These protections are intended to keep as many youths as possible out of adult jails and prisons, and to segregate those that are sent to those places from the adult criminal population.

The case for tougher legislative action is laid out in an alarming new study of children 13 and under in the adult criminal justice system, the lead author of which is the juvenile justice scholar, Michele Deitch, of the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin.  According to the study, every state allows juveniles to be tried as adults, and more than 20 states permit preadolescent children as young as 7 to be tried in adult courts.

This is terrible public policy.  Children who are convicted and sentenced as adults are much more likely to become violent offenders — and to return to an adult jail later on — than children tried in the juvenile justice system....

The study’s authors rightly call on lawmakers to enact laws that discourage harsh sentencing for preadolescent children and that enable them to be transferred back into the juvenile system. Beyond that, Congress should amend the juvenile justice act to require the states to simply end these inhumane practices to be eligible for federal juvenile justice funds.

The study referenced in the editorial is available at this link.

July 28, 2009 in Offender Characteristics | Permalink | Comments (25) | TrackBack

Japan continues its recent stepped-up pace for executions

ALeqM5i1rkN-jQHPveqLsh_FqosDm29W3w As detailed in this news report, which is headlined "Japan executes three for multiple murders," the one other major industrial nation with the death penalty has been stepping up its pace of executions in recent years.  Here are details from the article:

Japan on Tuesday hanged three inmates convicted of multiple murders including a Chinese national and a middle-aged man who found his victims through an Internet suicide site, the justice minister said.

The government identified the condemned as Hiroshi Maeue, 40, Yukio Yamaji, 25, and Chinese national Chen Detong, 41, who had killed three of his compatriots and wounded three more Chinese people.

All three men had committed "grave and cruel" crimes and "taken precious lives with very selfish motives," Justice Minister Eisuke Mori said after the sentences were carried out in Tokyo and the western city of Osaka.

Maeue, executed in Osaka, killed three people including a 14-year-old in 2005 after he got to know them separately through an Internet website where people contemplating ending their lives meet to make suicide pacts. Maeue arranged to meet his victims under the pretense they would jointly commit suicide through carbon monoxide poisoning. He then lured them into a van in a parking lot, tied their hands and feet and choked them to death. He confessed to deriving sexual pleasure from watching people suffocate.

Yamaji, also executed in Osaka, raped and then stabbed to death two sisters, stole their money and set fire to their apartment in 2005. Chen, the Chinese national, was executed in Tokyo for killing three of his compatriots and injuring three more in Kawasaki, southwest of Tokyo, in 1999.

Japan, which executed four convicted murderers in January, is the only major industrial nation other than the United States to impose the death penalty.  Capital punishment is overwhelmingly supported by the public in Japan, which has one of the world's lowest crime rates.

But Japan has regularly come under fire from the European Union and campaigners over its use of the death penalty, especially its practice of hanging inmates without any prior warning for them or their families.... Despite the criticism, conservative governments have stepped up the pace of executions.  Last year Japan hanged 15 death-row inmates, the highest number since 1975, when the country executed 17 people.

July 28, 2009 in Sentencing around the world | Permalink | Comments (5) | TrackBack

"Court rejects state banishment of sex offender"

The title of this post is the headline of this local article reporting on a state intermediate appellate court ruling out of Mississippi.  Here are the particulars:

The state Court of Appeals has thrown out a lower court order that a McComb man be banished from Mississippi once he completes a 25-year sentence for a sex crime conviction.

Richard A. Simoneaux pleaded guilty in 2004 in Pike County to spying on and assaulting nursing home residents. Simoneaux pleaded guilty to attempted burglary, two counts voyeurism, sexual battery, sexual abuse of a vulnerable adult and burglary of a dwelling....

The trial judge sentenced Simoneaux to a total of 30 years without parole with five years suspended. The judge also ordered Simoneaux to leave Mississippi once he is released from prison....

On the issue of banishment, the Appeals Court said Simoneaux consented to it as part of the sentencing agreement with prosecutors. Nonetheless, Appeals Judge Jimmy Maxwell said the "practice of dumping defendants on other jurisdictions has been held improper by the Mississippi Supreme Court and federal courts on public policy grounds."

Maxwell said banishment has been upheld where the trial court found, among other things, that it did not hinder rehabilitation and could be shown as in the best interests of the defendant and the public. "While banishing Simoneaux from Mississippi would perhaps provide a degree of protection to the citizens of our state, we certainly do not want our sister states repaying us for the favor," Maxwell said.

The full Mississippi Cort of Appeals opinion in this case can be accessed at this link.

July 28, 2009 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Two more death sentences "completed" in California

Though executions in California have been on hold for more than three years, this local story spotlights that some of the nearly 700 condemned persons on the state's death row are still dying.  The story is headlined "Natural Causes Kill 2 Calif. Death Row Inmates," and here are the particulars:

Two San Quentin death row inmates died of natural causes over the weekend, state corrections officials said Monday Fred Harlan Freeman, 69, and Miguel Angel Martinez, 39, both died while being treated at community hospitals in Marin County for long-term illnesses, San Quentin spokesman Lt. Rudy Luna said....

Since California reinstated the death penalty in 1978, 47 death row inmates have died of natural causes, according to the Department of Corrections and Rehabilitation. Seventeen have committed suicide, 13 have been executed in California and five have died from other causes, including killings by other inmates.

July 28, 2009 in Death Penalty Reforms | Permalink | Comments (4) | TrackBack

Resentencing in terror case results in life sentence

As detailed in this Washington Post article, a controversial terrorism prosecution has resulted in a life sentence following a resentencing required by a Fourth Circuit ruling that found an initial sentence of 30-years to be unreasonably lenient.  Here are the details:

A Falls Church man convicted of plotting with al-Qaeda to kill President George W. Bush was resentenced to life in prison Monday after the judge said his release would threaten "the safety of the American citizenry."

Ahmed Omar Abu Ali had been given a 30-year prison term after he was convicted in 2005 of joining an al-Qaeda conspiracy to mount a series of Sept. 11-style attacks and assassinations in the United States. The U.S. Court of Appeals for the 4th Circuit upheld the conviction last year but sent the case back for resentencing, indicating that the sentence should be more severe.

U.S. District Judge Gerald Bruce Lee obliged on Monday, saying he had reevaluated the case and concluded that the danger of ever releasing Abu Ali is too great. "I cannot put the safety of the American citizenry at risk," he said, citing Abu Ali's "unwillingness to renounce the beliefs that led to his terrorist activities."...

Before the judge imposed the tougher sentence Monday, Abu Ali said he was being mistreated at the highly secure federal prison in Colorado known as the "supermax," and he blamed "a rogue Justice Department" for his conviction.  "I cannot pretend that this is justice," said Abu Ali, who said he wanted to "remind" the judge "that one day you will go before the divine tribunal. Allah, he knows the doings of every soul.  If you are comfortable with that, then you can decree whatever you want to decree."  As he left the courtroom, Abu Ali smiled and waved to a large crowd of supporters, some of whom called out in Arabic "Salaam aleikum," or "Peace be with you."...

His attorney, Joshua Dratel, said in an interview that the life term was "unfortunate" and that the original sentence was reasonable. "What they are really doing is setting a mandatory minimum term of life in prison for terrorism cases," said Dratel, who had urged Lee to resentence Abu Ali to no more than 30 years. "That's contrary to what the law is."

Prosecutors asked the judge to impose life. "This defendant planned acts of terrorism that were designed to inflict massive casualties on innocent civilians within the United States," said Assistant U.S. Attorney Stephen M. Campbell.

David H. Laufman, who prosecuted the case and is now a Washington defense lawyer, attributed the sentence in part to "Abu Ali's refusal to express even a scintilla of remorse for his conduct," and he said the case "underscores the ability of federal courts to resolve the most complex legal issues" in terrorism matters.  For years, U.S. officials have been debating whether to bring such cases before the criminal justice system or to military tribunals.  The 4th Circuit judges who reviewed Abu Ali's conviction indicated they thought some terrorism cases should remain in the federal courts.

July 28, 2009 in Offense Characteristics | Permalink | Comments (0) | TrackBack

July 27, 2009

Federal felon Michael Vick allowed to return to work in NFL

Though it is pehaps too soon to call this latest news from the NFL evidence of a successful prisoner reentry, it is notable (and I think appropriate) that Michael Vick will be able to try to play professional football again now that he has completed his federal prison term.  Here are the basics:

Michael Vick can make a conditional return to the National Football League, about two years after he was indefinitely suspended after pleading guilty to federal dogfighting charges.

Vick can practice immediately and play in the preseason’s final two games, if he can find a team that will hire him, the NFL said in a news release.  Commissioner Roger Goodell will consider allowing Vick to play in regular season games by mid-October, the sixth week of the regular season. “My decision at that time will be based on reports from outside professionals, your probation officer and others charged with supervision your activities,” Goodell said in a letter to Vick.  “This step-by-step approach is not meant to be a further punishment and should not be viewed as such. Instead it is intended to maximize the prospect that you can successfully resume your career and your life.”

July 27, 2009 in Reentry and community supervision | Permalink | Comments (5) | TrackBack

"'Crack tax' shot down: Supreme Court rules case violates state constitution"

The title of this post is the headline of this local article reporting on a notable split ruling from the Tennessee Supreme Court.  Here are the details:

Ruling in a case that originated in Knox County, the state Supreme Court has deemed the so-called "crack tax" enacted by the Legislature five years ago in violation of Tennessee's constitution.

Modeled after a North Carolina law, the Unauthorized Substances Tax required those who have marijuana, cocaine and other illegal drugs to buy tax stamps from the Department of Revenue, which promised confidentiality to purchasers.

People arrested with drugs could then be assessed for back taxes and penalties under the law if they couldn't produce the appropriate tax stamps. Sen. Randy McNally, R-Oak Ridge, was a leading proponent of the legislation.

The Supreme Court ruling came in a 3-2 decision with Justice Gary Wade writing the majority opinion. Joining him were Justices William M. "Mickey" Barker, who is now retired but sat on the hearing panel, and Janice Holder. Justices William Koch and Cornelia Clark voted to uphold the tax.

Basically, the majority said that illegal drugs are not subject to taxation under the state constitution, which authorizes taxes on "merchants, peddlers and privileges." The tax is on possession, they reasoned, not sales, so the possessors are not merchants or peddlers. And since possession of the products in question is outlawed, it's not a legal privilege subject to taxation.

The majority rejected arguments that the law violates the U.S. Constitution's provisions against self-incrimination and double jeopardy. In theory, that means the Legislature could revise the law -- as in making the tax apply to drug sales -- and the statute could pass legal muster.

The majority opinion in this case is available at this link, the dissenting opinion is available at this link.

July 27, 2009 in Criminal Sentences Alternatives | Permalink | Comments (1) | TrackBack

"Rethinking the Federal Role in State Criminal Justice"

The title of this post is the title of this Essay from Professors Joe Hoffmann and Nancy King that was recently published in the NYU Law Review.  I blogged about this piece when it first showed up on SSRN, but I think the important piece merits another mention now that it is in print.  Here is the abstract:

This Essay argues that federal habeas review of state criminal cases squanders resources that the federal government should be using to help states reform their systems of defense representation.  A 2007 empirical study reveals that federal habeas review is inaccessible to most state prisoners who have been convicted of noncapital crimes and offers no realistic hope of relief for those who do reach federal court.  As a means of correcting or deterring constitutional error in noncapital cases, habeas is failing and cannot be fixed.  Drawing upon these findings as well as the Supreme Court’s most recent decision applying the Suspension Clause, the authors propose that Congress eliminate federal habeas review of state criminal judgments except for certain claims of actual innocence, claims based on retroactively applicable new rules, or death sentences.  The federal government should leave the review of all other state criminal judgments to the state courts and invest, instead, in a new federal initiative to encourage improved state defense services.  This approach can deter and correct constitutional error more effectively than any amount of habeas litigation ever could.

July 27, 2009 in Recommended reading | Permalink | Comments (1) | TrackBack

Sixth Circuit rules – in an unpublished decision! – that reduced child-porn sentencing is substantively unreasonable

A Sixth Circuit panel issued an important and potentially controversial decision today in a child porn case, though the ruling in US v. Harris, No. 07-4175 (6th Cir. July, 27, 2009) (available here), was handed down as an unpublished opinion.  Here is how the opinion starts and ends:

David Harris pleaded guilty to possession and distribution of child pornography.  The district court calculated an advisory Guidelines range of 210-262 months for Harris.  The district court sentenced Harris to 84 months in prison with three years of supervised release and mandatory mental health treatment.  For the reasons given below, we vacate the sentence and remand for resentencing....

The bottom line is that the factors the district court relied on, as articulated in the record, do not appear to justify a variance of this size.  This is not to say that the variance itself is per se unreasonable – only that the district court must provide a sufficient justification for such a major variance.  The district court in this case did not do so.  Instead, the district court placed an unreasonable amount of weight on Harris’s character.  It did so despite Harris’s lack of distinguishing characteristics and despite the seriousness of the offense.  Accordingly, we find the variance here substantively unreasonable based on the current record.

Though it is clear after Gall, Rita, and Kimbrough that we should not disturb a district court’s discretion absent substantial justification, we remain responsible for ensuring the reasonableness of the sentences imposed by district courts.  Accordingly, we VACATE and REMAND for resentencing consistent with this opinion.

This ruling seems especially significant because the panel declares a seven-year prison sentence for a non-violent, first offender "substantively unreasonable."  And yet the fact that the decision is released as an unpublished opinion perhaps indicates that the panel does not want its ruling to be too consequential.  Further still, the opinion suggests that a sentence somewhat below the 17+ years recommended by the guidelines could be reasonable, but it gives no real guidance as to when the magic reasonableness line lies between 7 and 17 years in prison for this kind of offense and offender

Some related federal child porn prosecution and sentencing posts:

July 27, 2009 in Booker in the Circuits | Permalink | Comments (5) | TrackBack

Around the blogosphere

Here are a few of the posts of note from around the blogosphere that should be of interest to criminal justice fans:

UPDATE:  Here is one more of note from this afternoon:

July 27, 2009 in Recommended reading | Permalink | Comments (2) | TrackBack

July 26, 2009

Potent op-ed notes what is missing from the Gates-gate debate

Writing in today's New York Times, Glenn Loury has this potent op-ed putting the brouhaha surrounding the Gates incident in a broader context.  Here are excerpts:

[T]his much-publicized incident is emblematic of precisely nothing at all. Rather, the Gates arrest is a made-for-cable-TV tempest in a teapot. It is the rough equivalent of a black man being thrown out of a restaurant after having berated an indifferent maître d’ for showing him to a table by the kitchen door, all the while declaring what everybody is supposed to know: this is what happens to a black man in America.

Certainly, the contretemps shed no relevant light on the plight of the millions of black men on society’s margins who bear the brunt of police scrutiny and government-sanctioned coercion. I find laughable, and sad, Professor Gates’s declaration that he now plans to make a documentary film about racial profiling. Is that as far as his scholarship on the intersection of race and policing in America extends? Where has this eminent scholar of African-American affairs been these last 30 years, during which a historically unprecedented, politically popular, extraordinarily punitive and hugely racially disparate mobilization of resources for the policing, imprisonment and post-release supervision of those caught up in the criminal justice system has unfolded?

Moreover, it is a shame that it takes an incident like this to induce a (black!) president to address these issues forthrightly. President Obama spoke to the N.A.A.C.P. this month, reaffirming the standard racial narrative while lecturing the black community on the need for better family values. But he barely uttered a word about the ways in which public policies — policies over which he might exert no small influence — have resulted in the hyper-incarceration of poor black men.

UPDATE:  Here's more of Loury's potent observations:

It is depressing in the extreme that the president, when it came time for him to expend political capital on the issue of race and the police, did so on behalf of his “friend” rather than stressing policy reforms that might keep the poorly educated, infrequently employed, troubled but still human young black men in America out of prison. This is to say that, if Mr. Obama were going to lose some working-class white votes to the charge of “elitism,” I’d much rather it have been on countering the proliferation of “three strikes” laws, or ratcheting down the federal penalties for low-level drug trafficking, or inveighing against the racial disproportion in the administration of the death penalty....

I hope that something of lasting value might come from the uproar surrounding the Gates arrest. But my firm conviction is that change will not come about from the moral posturing of politicians or from more intense “sensitivity training” for police officers. Nor will it come from the president having a beer with Professor Gates and Sergeant Crowley, as Mr. Obama suggested in his follow-up meeting with the press on Friday.

Rather, along with Senator James Webb, Democrat of Virginia, I believe we should be pursuing far-reaching reforms in our criminal justice system. We should invest more in helping the troubled people — our fellow citizens — caught in the law enforcement web to find a constructive role in society, and less in punishing them for punishment’s sake. We need to change the ways in which we deal with juvenile offenders, so that a foolish act in childhood doesn’t put them on the road to lifetimes in prison. We should seriously consider that many of our sentences are too long — “three strikes” laws may be good politics, but they are an irrational abomination as policy. We should definitely consider decriminalizing most drug use. We need to reinvent parole.

And, most important, we should weigh more heavily the negative and self-defeating effects that our policy of mass incarceration is having on the communities where large numbers of young black and Hispanic men live.

July 26, 2009 in Race, Class, and Gender | Permalink | Comments (11) | TrackBack

Noting the realities of federal sentencing after Booker in corruption cases

This new article in the Philadelphia Inquirer, which is headlined "Federal judges freed from sentencing rules," spotlights how the discretionary federal sentencing regime created by Booker has been playing out in corruption cases.  Here is how it starts: 

Both were powerful state senators. Both were found guilty of fraud. And both submitted reams of letters from supporters who hailed their good deeds as public servants.

Pennsylvania's Vincent J. Fumo, convicted of all 137 counts against him, will soon head off to prison for 4.5 years. New Jersey's Wayne Bryant, who was found guilty of 12 charges, was sentenced Friday to four years behind bars.

While prosecutors had sought longer sentences for both politicians, the cases highlight a kind of back-to-the-future event in the criminal-justice system: the return of discretion in federal sentencing since the U.S. Supreme Court ruled that once-mandatory guidelines are merely advisory.

"We're certainly back to much more subjective and idiosyncratic and discretionary sentencing," said Edward Ohlbaum, a law professor at Temple University who said the prosecutors' expected appeal of Fumo's sentence may well open the next chapter in the debate about how to punish corrupt politicians.

July 26, 2009 in Booker in district courts | Permalink | Comments (9) | TrackBack

The controversial intersection of criminal justice practice and immigration policy

This New York Times article, which is headlined "Debate Intensifies Over Federal Deportation Policy," spotlights the array of controversial and interesting issues that arise when criminal justice practice and immigration policy intersect. Here is how the article starts:

The Obama administration is vastly expanding a federal effort begun under President George W. Bush to identify and deport illegal immigrants held in local jails. But here in the city where the effort got a trial start eight months ago, people on each side of the immigration debate have found fault with it.

Under the effort, known as Secure Communities, local officials check every set of fingerprints taken at jails against those of people who have had a brush with federal immigration authorities; in the past, they could check only for a criminal history in the F.B.I. database. If a person turns out to be an illegal immigrant, the case is turned over to Immigration and Customs Enforcement for possible deportation proceedings in addition to the criminal charges.

The Obama administration considers the trial program successful enough to pledge $195 million over the next year to expand the effort with an eye toward establishing it nationwide by late 2012, when it is projected to cost about $1 billion a year. It is now under way in 70 counties across the country, including those containing the cities of San Diego, Phoenix, Dallas, Miami and Durham, N.C. “Before we had no idea who was deportable,” said Sheriff’s Deputy Gwen Carroll of Harris County, where Houston is located.

But the trial program’s experience here has raised difficult questions about its goals, critics say, and serves as a stern reminder of the political and practical challenges facing the larger rollout.

Federal officials say that while they are pleased with their new ability to identify illegal immigrants, they do not have enough agents to deport all of those identified. Over all, only a third of those identified in the first seven months of the program as foreign nationals — which includes people with visas and temporary residence cards as well as illegal immigrants — have been deported. “We do have a limited amount of resources,” said David J. Venturella, the director of the federal program. “It’s our priority to focus on the more serious offenders.”

Proponents of stricter enforcement of immigration laws complain that by concentrating on people who pass through the jails, the government is letting too many other illegal immigrants off the hook. On the other side, advocacy groups for immigrants complain that the program has created a climate of fear and paranoia among Hispanics, hampering the police.

July 26, 2009 in Collateral consequences | Permalink | Comments (0) | TrackBack

Washington Post editorial on "Cocaine Justice"

Today's Washington Post includes this editorial on federal crack/powder cocaine sentencing reform.  Here are snippets:

This year marks the 25th anniversary of legislation that created mandatory minimum sentences and established a 100-to-1 sentencing disparity between crack and powder cocaine.  Over those 25 years, something close to consensus has emerged that the imbalance is unfair and possibly discriminatory.  Attorney General Eric H. Holder Jr. has called for closing the gap, commenting that "we all know that this egregious difference in punishment is simply wrong."  Yet it has persisted, filling America's prisons and undermining many people's faith in the criminal justice system....

Such stringent rules have put thousands behind bars: Of current federal prisoners, 55 percent are serving time for drug offenses. Given that 84.7 percent of crack cases are brought against African Americans, the clear inequality fuels witnesses' hesitancy to testify and drives judges and juries to take the law into their own hands, torn between mandatory minimums and their own sense of fairness.  For too long, fears of being marked "soft on crime" have deterred members of Congress from correcting this palpable wrong. So last week's unanimous move by the House Judiciary subcommittee on crime, terrorism and homeland security to pass the Fairness in Cocaine Sentencing Act -- which would eliminate references to cocaine base from the federal criminal code and thus equalize penalties for crack and powder -- is an encouraging step in the right direction. The executive branch has already begun to work toward a more rational sentencing policy, with Mr. Holder launching a working group within the Justice Department to review sentencing and corrections policy.  If Congress and the Justice Department can join forces on this issue, they may be able to make progress in an area that has long needed it.

Some recent related posts:

July 26, 2009 in Drug Offense Sentencing | Permalink | Comments (0) | TrackBack