Sentencing Law and Policy

Trying the old "my cat downloaded the kiddie porn" defense

A helpful reader alerted me to this amusing local news story, headlined "Treasure Coast man blames cat for downloaded child pornography," that allows me to do a little cat blogging along with the usual child porn coverage:

Martin County Sheriff's detectives didn't buy it when a 48-year-old Jensen Beach man claimed that his cat was downloading child pornography on his computer.

Keith R. Griffin, of the 3600 block of Northeast Jeannette Drive, was charged Wednesday with 10 counts of possession of child pornography after detectives found more than 1,000 child pornographic images on his computer, according to a news release.

Griffin told detectives he would leave his computer on and his cat would jump on the keyboard. When he returned, there would be strange material downloaded, the release states.

Too bad for this defendant that the Sheriff was not Steve Martin, since his classic "Cat Handcuffs" routine talks about a trusted cat who embezzled fom the comedian to buy $3000 worth of cat toys. 

"Free 40,000 California inmates? Not so fast."

The title of this post is the headline of this new article in The Christian Science Monitor.  Here are some excerpts from an effective piece:

Is California about to open its prison gates, freeing more than 40,000 inmates?  Earlier this week, a federal judicial panel gave the state 45 days to come up with a plan to cut its prison population in order to adequately care for its inmates.

But don't expect inmates to be freed from any of California's 33 adult prisons next month.  Even if prison officials come up with a plan that both lawmakers and the federal court justices accept, the state would have two years to carry out any reduction.

If the court does actually mandate a release, the state would appeal that ruling to the US Supreme Court. Right now, state lawyers are still reviewing the justices' 184-page decision that was issued Tuesday.  "All the court has asked for in this ruling is for the state to develop a plan in 45 days … so the legal question is whether or not the state can appeal a ruling that directs us to come up with a plan," says Seth Unger, press secretary for the California Department of Corrections and Rehabilitation....

The judges want to see a reduction in population to "137.5 percent of the adult institutions' total design capacity."  Prison population is now at 195 percent of capacity, according to Mr. Unger. "But design capacity can be somewhat misleading.  Capacity is based on one inmate per cell…. You can put two inmates in a cell and have them safely housed," he says....

The state government doesn't dispute that prisons are overcrowded – Gov. Arnold Schwarzenegger declared an emergency over the issue in October 2006.  But California Corrections Secretary Matthew Cate says the justices overstepped their authority in forcing the state to come up with a plan....

Independent of this week's court order, the state has already proposed several ideas for lawmakers to ponder.  These proposed measures could result in a reduction of some 27,000 inmates and save the state $1.2 billion in one year.

Fourth Circuit rejects DC sniper's capital habeas appeal

Proving that it need not take decades to move capital appeals through the court system, the Fourth Circuit this afternoon upheld the Virginia death sentence of John Allen Muhammad, the so-called DC sniper who randomly shot sixteen people and killed ten.  As the Fourth Circuit panel opinion in the case details, Muhammad's death sentence was formally entered in March 2004.  As often happens in Virginia capital cases, Muhammad's appeals have gone through all direct review and various stages of capital review in just a matter of years, rather than taking multiple decades.

Though Muhammad can still seek en banc review and petition for cert, all of his viable appeals likely will be completed relatively soon.  Virginia then can — and likely will — seek an execution date, and Muhammad's death sentence may be carried out while lots of people can still remember the nature and horror of his crimes.  Though I am not completely familiar with all the legal issues in this case, my sense is that these proceedings — unlike many other capital cases — have been handled in a manner that should impress and comfort everyone except those categorically opposed to capital punishment.

The Washington Post has this article, headlined "Court Rejects Sniper's Appeal: Ruling Leaves John Allen Muhammad Few Options for Avoiding Execution," about today's Fourth Circuit ruling.

UPDATE:  A few commentors spotlight that the Fourth Circuit ruling shows that Virginia prosecutors actually did a poor job with its Brady obligation, so perhaps I am too quick to praise the legal process in this case.  But I still have little problem praising the result in this high-profile, poster-child case for the death penalty.

President Obama nominates his first(?) non-judge to the circuit courts

Thanks to this post at How Appealing, I see that President Obama has made two more nominations to the federal circuit courts.  This official press release provides the basic details:

President Obama today announced that he has nominated Jane Stranch for a seat on the United States Court of Appeals for the Sixth Circuit and Judge Thomas Vanaskie for a seat on the United States Court of Appeals for the Third Circuit. Stranch is currently a partner at Nashville law firm Branstetter, Stranch and Jennings.  Judge Vanaskie currently sits on the United States District Court for the Middle District of Pennsylvania.

As the title of this post indicates, I am pretty sure (but not entirely certain) that the nomination of Jane Stranch to the Sixth Circuit makes her the first of (seven?) circuit nominees who is not already a confirmed federal district court judge. 

Meanwhile, Josh Gerstein notes in this post at Politico, which is entertainingly headlined "For judges, Obama still drives 55," that both of the new appointees are older than some commentators might like.

Some related old and new posts on judicial appointments:

• Should President Obama practice ageism when making judicial nominations?
• Names starting to emerge for early Obama circuit court nominees
• Noticing the biggest bias in the federal judiciary
• How a new administration is likely to impact federal sentencing practice
• Why federal sentencing reformers must focus on the USSC and lower courts
• Judging, politics, sentencing and elections
• Brave New Justice and sentencing issues
• A modest(?) proposal for filling the bench from the ivory tower
• Urging President-elect Obama to elevate district judges to the circuit courts

"Judge urges Obama to cut coke dealer's sentence"

The title of this post is the headline of this effective new piece by Josh Gerstein now up at Politico.  Here is how it starts:

A federal judge is calling attention to President Obama's uncertain stance on executive clemency by making a rare judicial plea for a presidential commutation of a drug convict. In an opinion issued Wednesday, U.S. District Court Judge Paul Friedman urged President Barack Obama to reduce the 27-year sentence Friedman imposed on Byron McDade back in 2002 after a jury found him guilty of conspiring to distribute more than five kilos of cocaine.

"Twenty-seven years is a very long time," Friedman wrote. "None of Mr. McDade's former co-defendants or co-conspirators received more than a seven-and-one-half year sentence. While each of them pled guilty and provided substantial assistance to the government by testifying against Mr. McDade (and some provided assistance in other ways), this sentence is disproportionate."

Friedman said that when McDade was sentenced, federal sentencing guidelines required the 324-month term. Those guidelines became advisory as the result of a Supreme Court decision in 2005, but Friedman said he had no authority to re-open McDade's sentence even though someone sentenced after him for the same offense may have gotten a much shorter term.

However, in an unusual move, the judge made a public appeal to Obama to use his constitutional power to shorten the convict's sentence. "The Court urges the President to consider executive clemency for Mr. McDade and to reduce Mr. McDade's sentence to fifteen years in prison followed by...supervised release," the judge wrote.

Judge Friedman's full opinion in US v. McDade is available at this link.  Here is more of what Judge Friedman had to say at the close of the opinion to explain his concerns with the sentence the defendant is serving:

Indeed, had Mr. McDade not exercised his constitutional right to a jury trial and instead pled guilty, the likely sentence under even a mandatory Guideline regime would have been approximately 168 months, approximately half the sentence the Court was required to impose after Mr. McDade was found guilty at trial.  Had the Sentencing Guidelines been advisory in 2002, or if Booker were retroactive now, the Court would vary substantially from the Guideline sentence of 324 months.  This Court, however, is without authority to reduce Mr. McDade’s sentence at this juncture.

As regular readers know, President Obama's failure to grant even a single clemency through now his second 100 days in office should keep McDade from expecting too much in response to Judge Friedman's call for presidential action.  Nevertheless, I think it is useful (and could eventually be consequential) for judges to vocally express concerns with particular sentencing outcomes they may be obliged by law to impose or uphold.

Some related posts on clemency:

• A simple plea for Prez Obama: grant at least a single clemency in your first 100 days
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• Still waiting ... and waiting ... and waiting ... on the clemency front
• Another public and potent call to reinvigorate the pardon power
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• The sad (unpardonable) state of compassion in the Bush Administration
• ACS issue brief on the pardon power
• Latest FSR issue on "Learning from Libby"
• "The Fall of the Presidential Pardon"
• What might 2009 have in store for . . . executive clemency?

You be the judge: what sentence should mom get for drunken breastfeeding?

Earlier this summer, I noted here the North Dakota story of a mother who pleaded guilty to child neglect after police found her “extremely intoxicated” while breast-feeding her 6-week-old baby.  As detailed in this new piece from the Grand Forks Herald, this mom is scheduled to be sentenced this morning: 

The sentencing of a Grand Forks mother who police say was “extremely intoxicated” while breastfeeding her 6-week-old is set for 11 a.m. today. Stacey Anvarinia, 26, pleaded guilty to child neglect, a Class C felony, in state District Court in June.

Grand Forks police responded to a domestic disturbance at Anvarinia’s home in February. Officers reported that she was drunk and breastfeeding.  The child was taken to Altru Hospital, and Anvarinia was arrested . The unusual case has stirred debate and grabbed international attention.

Authorities have emphasized that breastfeeding while drunk was not the only reason for Anvarinia’s arrest, saying she was intoxicated to the point of not being able to care for her child.  Anvarinia, who is no longer in custody, faces a maximum penalty of five years in prison and a $5,000 fine.

UPDATE:  The Grand Forks Herald has this news update, headlined "Grand Forks mom receives 6 months in breastfeeding case."

"Iran Executions Increase Since Election"

The title of this post is the headline of this report from CBS News.  Here are the details of how politics and punishment mix in Iran:

An Iranian justice official has confirmed the execution of 24 convicted drug traffickers at the end of July, believed to be one of the largest mass-executions carried out by the Islamic Republic since the revolution brought the Ayatollahs to power 30 years ago.

The message of swift, decisive "justice" delivered by Iran's leaders is clear, and comes at a time when those leaders, both political and religious, are wrestling to overcome an image of internal dispute and reassert their authority following post-election violence that left at least 30 people dead and hundreds jailed.  Tehran's deputy prosecutor, Mahmoud Salarkia, said the 24 were hanged at the notorious Karaj prison on July 30th. "Their execution was approved by the supreme court," said Salarkia, without naming the prisoners.

Iran has killed at least 219 prisoners already this year, according to a tally from the French news agency AFP, and the pace of the executions seems to have increased amid the postelection turmoil....

Iran has executed at least 44 drug convicts, 19 Baluch minorities convicted of supporting a terrorist group, and possibly two young men sentenced for murders they allegedly committed before the age of 18.

Thus far, international outrage over the supposedly coincidental uptick in executions amid the postelection turmoil has been muted, at best.  The European Union condemned the July 30 executions and said in a statement that the 27-member bloc was "concerned about the continued large-scale use of the death penalty in Iran, including the repeated incidence of collective executions during the past month."...  The United States government has made no official remarks on the sanctioned killings.

Iran came second only to China in the number of prisoners executed during 2008, with a reported total of 246.  China is believed to have killed as many as 5,000 of its convicts, but that number is unconfirmed.  In the United States, by comparison, 37 people were executed in state death chambers, according to the Death Penalty Information Center.

Jefferson (advisory) jury calls for big forfeiture

As detailed in this article, which is headlined "Jefferson faces financial hits at sentencing: Jury says he should forfeit shares, $470,653," former representative William Jefferson is already dealing with some tough sentencing realities in the wake of his bribery conviction. Here are the basics:

The same jury that convicted the Louisiana Democrat of 11 of 16 corruption charges decided Thursday that he should forfeit $470,653 he collected from his illegal schemes. The jury also said the government should seize stock shares of indeterminate value that Jefferson also received as bribes.

Judge T.S. Ellis III will issue a final forfeiture order when he sentences Jefferson.  The judge scheduled the sentencing hearing for Oct. 30.

In most bribery and racketeering cases that produce guilty verdicts, forfeiture issues are decided directly by the judge.  But the Jefferson legal team chose to exercise its legal right to have a jury hear the issue.

When asked why the Jefferson team made the unusual move of requesting a jury to hear the forfeiture case, lawyer Robert Trout said without elaboration, "We believe in the jury system."  The case took less than the whole morning session Thursday to hear.  The jury reached its decision, which is a recommendation that does not bind Judge Ellis, before the end of the afternoon.

Jefferson, 62, faces up to 150 years in prison, though federal sentencing guidelines will undoubtedly call for a far shorter sentence.  Prosecutors have said the guidelines could suggest a prison term of more than 20 years.

Remarkable coda at end of First Circuit opinion affirming child porn sentence

The First Circuit yesterday in US v. Stone, No. 08-1459 (1st Cir. Aug. 5, 2009) (available here), affirmed a long within-guideline sentence for a first offender in a child porn case.  The opinion talks through a number of sentencing issues, though what make the ruling  blog-worthy is this remarkabl final paragraph in Stone:

We add a coda.  Sentencing is primarily the prerogative of the district court, and the sentence imposed in this case is within permissible limits.  There is no error of law and no abuse of discretion.  That said — and mindful that we have faithfully applied the applicable standards of review — we wish to express our view that the sentencing guidelines at issue are in our judgment harsher than necessary.  As described in the body of this opinion, first-offender sentences of this duration are usually reserved for crimes of violence and the like. Were we collectively sitting as the district court, we would have used our Kimbrough power to impose a somewhat lower sentence.

This coda — which strikes me as truly unprecedented — surely provides little solace to the defendant whose long prison sentence was affirmed.  But it should provide inspiration and assistance to practitioners and judges within the circuit who might otherwise worry about how the First Circuit would view significant downward variances from the child porn guidelines in other cases.

 Some related federal child porn sentencing posts:

• ABA Journal covers the controversies over federal child porn sentences
• Potent DOJ response to ABA Journal article about federal child porn sentencing
• Potent response to DOJ account of federal child porn sentencing
• Strong sentencing opinion noting disparities in federal child porn downloading cases
• Yet another notable written opinion in a federal child porn downloading case
• Is there an ivy-leaguer exception to federal child porn charges?
• More examples of sentencing uncertainty surrounding federal child porn cases
• Is there a law student sentencing discount for federal child porn charges?
• Judge Adelman operationalizes deconstructed child porn guidelines
• Another notable child porn sentencing decision
• Another notable sentencing opinion in a child porn downloading case
• Effective review of federal uptick in child-porn prosecutions
• Another puzzling report on federal child porn sentence
• Notable long child porn sentence upheld by split Sixth Circuit

We now get to call her Justice Sotomayor

This National Law Journal article provides the official SCOTUS transition news following this afternoon's vote by the US Senate:

The Senate has confirmed Judge Sonia Sotomayor to the Supreme Court in a historic vote that will make her the nation's first Hispanic justice and the third woman appointed to the Court.

Sotomayor, born in New York City to parents who moved there from Puerto Rico, won over nine Republican senators to go with the 59 members of the Democratic caucus who were present. The final margin of 68-31 was larger than the 58-42 vote three years ago for Justice Samuel Alito Jr., but it was still a smaller margin than other justices have received.

The vote gives President Barack Obama's administration a significant, early win in the judicial confirmation wars. Smaller battles are just over the horizon, as the Senate considers whether to confirm Obama's first nominees for federal circuit courts....

Sotomayor replaces retired Justice David Souter, who spent 19 years on the Court but submitted his resignation this spring to return to New Hampshire. No plans for Sotomayor's swearing-in have been announced, but she is likely to take her seat within days if not hours.  She will participate in her first oral argument next month, when the Court rehears the campaign finance case Citizens United v. FEC.

As this piece highlights, Justice Sotomayor is going to have to hit the ground running because of the unusual reargument scheduled for September.  In addition, there is a big pile of summer cases in which cert has been requested that, I assume, she will get a chance to consider in some way.  And, as I stressed in my very first substantive post about the Sotomayor nomination, she is now the Justice with the most personal sentencing experience, and she will have to jump right into the dynamic Eighth Amendment debate that surrounds Graham and Sullivan, the two juve LWOP cases from Florida on the SCOTUS docket this fall.

UPDATE:  As this post at The BLT notes, Sonia Sotomayor will be sworn in by Chief Justice John Roberts Jr. on Saturday at 11 am. at the Supreme Court.  Apparently it is notable that this swearing in will take place at the Court rather than at the White House, and it means the new Justice will be in the right place to get cracking with her new job this weekend.

Jury sentencing system in Japan has lay citizens and judges working together

I noted earlier this week that Japan was conducting its first criminal jury trial in decades and that its new jury system was to include sentencing responsibilities.  This BBC News piece provides a fascinating report on the result of the first trial:

Japan's first jury trial for more than 60 years has ended with a man in his 70s being sentenced to 15 years in prison for murder. The new jury system is the result of a major overhaul of Japan's legal system, aimed at speeding up trials and offering greater transparency.

In the landmark case, six men and women working with three judges convicted and sentenced Katsuyoshi Fujii, 72. Until now Japanese trials have been decided by a panel of judges.

The last time a citizen jury was part of a Japanese trial was in a short-lived experiment before World War II. Since then, the system has been prosecution-led, largely based on confessions and with little emphasis on court testimony....

Fewer people go to jail in Japan than in the West. But the conviction rate -- 99% of all cases -- is astronomic by Western standards, our correspondent adds. Critics say the old system was slow, lacked transparency and was out of touch.

The jury system has also come in for criticism, with some experts arguing that randomly selected members of the public are not fit to decide the outcome of serious criminal cases.

In the new system, the jurors -- who are considered lay judges -- must have the agreement of at least one of three professional judges for their decision to stand. They also decide on the sentencing.

During the four-day trial in Tokyo District Court, the citizen judges questioned the defendant over the fatal stabbing of a 66-year-old neighbour in May. Fujii had pleaded guilty but his lawyers sought leniency in the sentencing.  Murder can result in the death penalty in Japan, although it is rare in cases involving a single victim.

Presiding Judge Yasuhiro Akiba said the jury had sentenced the defendant to 15 years in jail -- one year short of what prosecutors had sought -- because the stabbing was not premeditated. The citizen judges later said it had been difficult to decide on the sentence, but they praised the professional judges, prosecutors and defence team for making their arguments easy to follow.

As I mentioned before, in my recent Sidebar commentary for the Columbia Law Review, I assert that the conceptual and constitutional principles behind the Apprendi-Blakely line of cases justify greater jury involvement in both capital and noncapital sentencing proceedings.  And I especially like the idea that Japan is now pioneering of lay jurors and professional judges working together to decide upon a sentence.

A few follow-up questions for SL&P readers: Should hybrid judge-jury sentencing be worth trying in some American jurisdictions for at least some crimes?  Need a state interested in this new Japanese model have to worry if it was constitutionally kosher in the US?

Ninth Circuit affirms above-guideline child porn sentence over various objections

The Ninth Circuit today affirms an above-guideline sentence today in US v. Vanderwerfhorst,, No. 07-30336 (9th Cir. Aug. 6, 2009) (available here).  The substantive result here is not too surprising because the defendant, despite having a name with Fletch qualities, seems like a pretty bad dude.  But the Ninth Circuit covers a lot of notable sentencing law in a short space, and here is how the opinion starts:

We are once again asked to review the sentencing procedure where the underlying crime itself is not at issue. Jared Vanderwerfhorst, a convicted sex offender, pled guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2).  On appeal, he contends that the district court violated the notice requirement of Federal Rule of Criminal Procedure 32(h) when the court imposed a sentence above the advisory range set forth by the U.S. Sentencing Guidelines (“Guidelines” or “U.S.S.G.”).  He also claims the court committed procedural error by relying upon unreliable information and assumptions and by failing to adequately explain the sentencing determination.  We have jurisdiction pursuant to 28 U.S.C. § 1291.  We reject Vanderwerfhorst’s arguments and affirm.

"Inmate Hides Gun In Fat Layers"

The title of this post is the headline of this local news story from Texas.  Here are the basics:

A nearly 600-pound man was able to hide a weapon for more than a day while he was in custody, police told KPRC Local 2 Wednesday. "Obviously the system broke down," former Harris County Detention Major Mark Kellar said. "The procedures didn't work as they were designed to work."

Houston police said George Vera, 25, was arrested Aug. 2 and taken to the city jail.  He spent a day there before being transferred to the Harris County Jail. After being there for 14 hours, going through intake procedures, he was taken to the showers, the final step before going to his cell. There, Vera told police he had a 9mm handgun on him, along with 2 clips.

"If a person has a weapon, narcotics, anything of danger, it should have been found before he winds up in the county jail," said Kellar.  Kellar said Vera should have been searched at least three times before getting to the jail.

Vera weighs nearly 600 pounds and the gun was allegedly hidden between fat layers. Houston Police Officers Union President Gary Blankinship said cadets are trained how to search morbidly obese people. "We teach officers to lift up and look under," Blankinship said. "The officer may not have arrested anyone this big before."

NBA's crooked ref results in interesting restitution ruling from Second Circuit

The Second Circuit today has an interesting ruling on restitution awards in US v. Battista, No. 08-3750 (2d Cir. Aug. 6, 2009) (available here).  Here is how it starts:

Defendant-Appellant James Battista appeals from a judgment of the United States District Court for the Eastern District of New York (Amon, J.), entered on July 24, 2008, convicting him, after a guilty plea, of conspiracy to transmit wagering information in violation of 18 U.S.C. §§ 371, 1084. Battista was a co-conspirator, along with Thomas Martino, in the much-publicized National Basketball Association (“NBA”) gambling scandal involving former referee Timothy Donaghy. Following guilty pleas by all three defendants, the NBA, and the United States on its behalf, sought restitution.  The district court determined that each defendant was required to pay restitution to the NBA as a victim of their criminal offenses.  Only Battista challenges the imposition of restitution on appeal. For the reasons that follow, we affirm the restitution order of the district court.

NC Racial Justice Act going to governor's desk

This local story, headlined "Racial Justice Act passes, now goes to Perdue," provides the latest news on a notable death penalty bill that may be on the verge of becoming law in North Carolina:

The General Assembly has approved a landmark bill that will allow death-row inmates to challenge the death penalty by arguing that there is systemic racial bias in the way that capital punishment has been applied. 

Under the bill, which is expected to be signed into law by Gov. Bev Perdue, an inmate will be able to present statistical evidence showing racial disparities in how the death penalty has been used. If a judge finds the evidence convincing, the judge can overturn that inmate's death sentence and convert it to a sentence of life in prison.  Similarly, in future murder trials in North Carolina, judges will be able to block prosecutors from pursuing the death penalty if they find a historical pattern of racial bias in the use of the death penalty.

The bill is seen by its supporters as a long-overdue solution to a history of discrimination that they say permeates the criminal-justice system and the system of capital punishment.  Opponents, including prosecutors and victims' groups, say that the bill substitutes statistical data and historical trends for the particular facts of a case. It will, they say, set up an enormous roadblock for capital punishment and reopen old wounds for the families of murder victims.

The bill, which supporters named the N.C. Racial Justice Act, has been the subject of intense debate and legislative wrangling for months.  Last night, the N.C. Senate voted 25-18 to adopt a version of the bill that had been approved by the N.C. House last month.  In both chambers, Republicans opposed the bill, and most Democrats supported it.

The Senate's vote sends the bill to Perdue, a Democrat.  A spokesman for Perdue said that she will closely review the bill but is likely to sign it.  If she does, North Carolina will become just the second state — after Kentucky — to enact a law allowing challenges to the death penalty on the basis of statistical disparities from previous cases.

As I have noted in the past, it is not clear what (if any) impact Kentucky's law on this issue has impacted the operation of that state's capital punishment system.  Thus, I am hesitant to assert that the enactment of the N.C. Racial Justice Act will have a profound practical impact.  And this legislative development is still symbolically interesting and important even if it does not end up having a profound effect on death penalty practices in North Carolina.

Seventh Circuit goes into the woods and splits over career offender enhancement

Despite the fact that the Supreme Court has issued a series of opinions recently concerning what prior offenses qualify for various criminal history enhancements under federal law, these issues remain a murky doctrinal mess.  This reality is born out by a split ruling from the Seventh Circuit yesterday in US v. Woods, No. 07-3851 (7th Cir. Aug. 5, 2009) (available here). Here is how the significant majority opinion, per Judge Wood, gets started:

Vernon Woods was convicted of two counts of distributing ecstasy, in violation of 21 U.S.C. § 841(a)(1), and one count of possession of a weapon by a felon, in violation of 18 U.S.C. § 922(g). The district court found that Woods was a career offender and thus was subject to an enhanced sentence under § 4B1.1 of the United States Sentencing Guidelines. The court imposed a sentence of 192 months, well above the 84-month sentence Woods might have received without the career offender enhancement. Woods now appeals his sentence, challenging whether, following the Supreme Court’s decision in Begay v. United States, 128 S. Ct. 1581 (2008), and this court’s decision in United States v. Smith, 544 F.3d 781 (7th Cir. 2008), his prior conviction for involuntary manslaughter — which required only a finding of recklessness — qualifies as a prior violent felony conviction for the purpose of the Guidelines.  We conclude that Begay and Smith resolve this question in Woods’s favor, and we therefore vacate the judgment of the district court and remand for further proceedings.

Here is how the dissent, per Judge Easterbrook, gets started and ends:

Begay v. United States, 128 S. Ct. 1581 (2008), called into question many of this court’s decisions interpreting U.S.S.G. §4B1.2(a)(2) and similar recidivism provisions, such as 18 U.S.C. §16(b) and §924(e)(2)(B)(ii).  Last January the court set for argument before two panels several appeals that presented issues affected by Begay.  As it happens, the six judges on those panels do not agree on how Begayapplies, so proposed opinions in two cases were circulated to the full court under Circuit Rule 40(e).  We decided to resolve the disputes through this circulation, without argument en banc. The approach proposed by the panel in Woods has the support of a majority and becomes the law of the circuit.  I disagree with some aspects of the panel’s analysis and would proceed differently....

When a recidivism enhancement raises the statutory floor under a sentence, or the maximum allowable sentence, a court should be punctilious about ensuring that the enhancement applies.  But when the prior conviction just affects an exercise of discretion, the approach should be more flexible: when selection of the sentence is not governed by rule, why employ elaborate rules about “divisibility” and “recklessness” that the district judge may elect to bypass in the end?

For anyone not concerned with all the federal sentencing complications for repeat offenders, the opinions in this case can be readily forgotten like old Brothers Grimm fairy tales.  But, for the many folks regularly beset by these often-consequential criminal history issues, it is now essential to head into the Seventh Circuit's Woods.

California AG Jerry Brown assails federal panel ruling demanding prisoner release

The Los Angeles Times has this new report on the reaction of California's tough-on-crime(?) attorney general to the ruling yesterday (discussed here) by a panel of federal judges that the California prison system must reduce its inmate population drastically within two years.   Here are excerpts:

Atty. Gen. Jerry Brown has denounced a court order to release more than one out of every four state prisoners in California as counterproductive interference by judicial activists, and said state officials were still deliberating Wednesday whether to appeal to the U.S. Supreme Court.

While acknowledging that Tuesday's ruling by a three-judge federal panel aims to resolve the same problems with severe prison overcrowding that Gov. Arnold Schwarzenegger wants, Brown said the court's latest edict on how to improve the corrections system has only contributed to the "Kafka-esque nightmare" confronting the cash-strapped state....

Brown, who is expected to run for governor next year, said he would recommend to Schwarzenegger that the state appeal the court decision imposing a cap on California's prison population that will require the release of nearly 43,000 prisoners over the next two years. The judges gave the state 45 days to come up with a plan for reducing the number in state custody or face a court order on how to do it.

Asked if Californians were in peril if the state meets the court's demand to bring the prison population down to 137% of designed capacity, or 115,080 instead of the roughly 158,000 currently in state prisons, Brown wavered, noting that about 10,000 prisoners are already released every month after completing their sentences. A 70% recidivism rate keeps them coming back though, he said.  "The formula for letting out 40,000 prisoners and cutting cops is not a smart one," Brown said, referring to the budget crises forcing local communities to make trims in law enforcement.

Although he excoriated the judges' order as unnecessary and costly interference in a problem already being tackled by the governor and the Legislature, Brown acknowledged that state lawmakers also were to blame for letting partisan politics prevent their agreement on reforms needed to improve rehabilitation programs, pre-release screening and parole.

I am already looking forward to seeing what California's cert. petition looks like in this case, though I have a feeling this case will not get o the Justices anytime soon.

"Want to be a corporate criminal? Move to Canada"

The title of this post is the headline of this sharp commentary from Canada's Globe and Mail paper in response to today's sentencing of two high-profile corporate fraudsters up north.  Here are excerpts from the piece:

Madam Justice Mary Lou Benotto wants to send a message to white-collar crooks like Garth Drabinsky: Our justice system will deal with you severely.  As she sentenced the former impresario to seven years in prison Wednesday, she argued that a crime like his is serious, because it “fosters cynicism [and] erodes public confidence in the financial markets.”  Sternly, she noted, “Those in business must know that this must be the response.”

In fact, those in business must know Canada is a fine place to fleece the innocent and cook the books.  Not for us the crusading prosecutors, the quick indictments, the speedy trials, and the lifetime jail sentences so popular in the United States.  Here, you can be pretty sure the law will take years to catch up to you (if it ever does). In the event you are found guilty, the penalty won't be so bad.

Thanks to our generous parole provisions, Mr. Drabinsky could get out of jail after 14 months or so.  Not that he's going to the slammer any time soon.  Not until his lawyer exhausts the appeals. “In the U.S., he probably would have been tried eight or nine years ago,” says forensic accountant Al Rosen, who thinks Canada's systematic failure to prosecute corporate fraud is a bad joke.  “And he probably would've got 20 to 40 years.”

Today, after a decade of hefty legal bills, Mr. Drabinsky is so broke he has been reduced to begging money off distant acquaintances in exchange for discounts at his Yorkville art gallery.  On the other hand, 10 years of freedom (and counting) may well be worth it.  Journalists who began covering the Livent debacle early in their careers have grey hair now. Perhaps that explains the sense of anticlimax in the courtroom yesterday.

Compared to the obscure manipulations of Conrad Black (part of whose conviction may well be overturned by the U.S. Supreme Court), the fraud scheme carried out by Mr. Drabinsky and his partner, Myron Gottlieb, was plain vanilla. It involved an old-fashioned kickback scheme and a years-long effort to dupe the shareholders by making Livent's financial picture look far brighter than it was. The most surreal moment of the trial came when lawyer Eddie Greenspan (who also acted for Lord Black) proposed that instead of doing jail time, his client could embark on an inspirational speaking tour with the goal of urging young people to pursue their dreams in the performing arts. Had he made a similar proposal for Lord Black, he'd have been laughed right out of Chicago.

Lord Black, unlike Mr. Drabinsky, will have to serve almost all of his 61/2-year sentence. Mr. Drabinsky could well get out of jail first.  Surely, Lord Black (who stood by his old friend when times got tough) must be tempted to contemplate the unfairness of it all.  After all, if Canada and not the United States had gone after him, chances are he'd still be a free man....

Back in court, the judge had more tough words. “Members of the business community must be put on notice that honesty is the currency in which they trade,” she said.  “If they stray, the punishment will be certain and severe.”  Stirring words indeed.  If only the system worked that way.

For more of the basics on the case and the sentencing, this piece from the Ottawa Citizen provides the essential details.

Another former member of Congress now has to worry about the federal sentencing guidelines

As detailed in this New York Times piece, another prominent politician who once only worried about what federal sentencing rules meant for others now has to worry a lot about what these rules might mean for him:

Former Representative William J. Jefferson was convicted Wednesday afternoon of using his office to try to enrich himself and relatives through a web of bribes and payoffs involving business ventures in Africa.

A federal court jury in Alexandria, Va., deliberated for five days before finding Mr. Jefferson, 62, a New Orleans Democrat who served in Congress for 18 years until being defeated in 2008, guilty of 11 of 16 counts of bribery-related crimes.  The jurors thus rejected defense assertions that Mr. Jefferson’s business-promotion activities in Africa did not qualify as “official acts” under public corruption laws. Mr. Jefferson faces a long prison term, unless his conviction is overturned on appeal.

In a six-week trial before Judge T.S. Ellis, prosecutors said that from 2000 to 2005, Mr. Jefferson sought hundreds of thousands of dollars in bribes from a dozen companies involved in oil, communications, sugar and other businesses, often for projects in Africa.  In return, prosecutors said, the Mr. Jefferson used his position as a member of the House Ways and Means trade subcommittee to promote the companies’ ventures without disclosing his own financial stakes in the deals.

Mr. Jefferson led official delegations to Africa, wrote letters to American and foreign officials and had members of his staff promote ventures in Nigeria, Ghana and Equatorial Guinea in which he had a financial interest, prosecutors said. While he sought millions of dollars in bribes, Mr. Jefferson may have actually received less than $400,000, the prosecutors said.

I do not know enough about the ins-and-outs of the applicable guideline to make a quick guess at what kind of sentencing range Jefferson might be facing, but I suspect the government is not going to be in a mood to go easy on him with its recommendation.

Why Second Amendment supporters need to be helping out Plaxico Burress

I just noticed this item from a New York-based website carrying this title, "Gun control 101: Plaxico Burress going to prison should end 2nd amendment confusion."  Here is a snippet:

Burress going to jail should be the final proof to anyone who thinks differently about the 2nd amendment applying to individuals instead of what it is: a constitutional guarantee that the states will always have the right to have their owned armed militias (today, the National Guard)....

So if the 2nd amendment applies to individuals where are the gun groups and the NRA, where are the 2nd amendment lawyers willing to challenge the law in court as being unconstitutional?  You cant have it both ways.  If the 2nd amendment applies to individuals then Burress' arrest and jail sentence is unconstitutional.

Burress of course being a star football player making about $10 million a year has access to the best legal counsel money can buy.  His legal counsel is trying to plea bargain for Burress and has offered a year in jail (the law carries a mandatory 3 1/2 years).  One thing is certain.  Burress is going to jail, the only question is for how long. Does that sound like a person has a fundamental constitutional right to keep and bear arms and that the right  cant be infringed?...

Burress is going to jail for carrying a concealed weapon without a permit within the New York City limits.  No one has said the law is unconstitutional.  And no one will.

Obviously, the author of this commentary has not been reading this blog, since I have been repeatedly questioning the constitutionality of New York's law in light of Hellersince Plaxico Burress first shot himself.  But the deeper point is that the failure of Second Amendment fans to speak up loudly in support of Plaxico's constitutional rights to gun possession for self-protection enables gun control supporters to use a high-profile case to undermine arguments for Second Amendment rights.  Unless and until Second Amendment supporters fight back on the Plaxico front (with at least some gun rights rhetoric if not gun rights litigation) the general public will get the (justified?) impression that the Second Amendment remains legally inconsequential even after Heller.

Some related posts on the Burress cases:

• NYC Mayor Bloomberg pushing for Plaxico Burress to get at least 3½ years in state prison, leading me to many questions
• "Main Threat to Burress Is a Sentencing Law"
• Starting to make the Second Amendment case for Plaxico Buress  
• Interesting data on the application of NY gun law for Plaxico's consideration
• Talk of a plea deal to resolve gun charges against Plaxico Burress
• Lawyer for Plaxico Burress making much of sweet plea deal given to other NFL receiver
• Now that Plaxico Burress has been formally indicted for gun possession, will Second Amendment fans come to his defense?

UPDATE:  A number of commentators are making much of the fact that Plaxico Burress did not seek a permit for carrying a gun in New York City and suggest that he is justifiably and constitutionally punished for this failing.  In light of these comments, I will quote another notable portion of the above-linked commentary:

One thing is certain.  Burress is going to jail, the only question is for how long.  Does that sound like a person has a fundamental constitutional right to keep and bear arms and that the right can't be infringed?

And it really has nothing to do with the fact that Burress didn't have a permit.  Its close to impossible to get a concealed weapons permit from the NYPD in New York City.  No ordinary citizen can get one.  You have to prove you have a compelling reason to carry a concealed weapon and if the NYPD doesn't agree you don't get it....

Requiring a permit to have a gun is typcial in most states.  Can anyone name one single fundamental right in the constitution that requires a permit in order for a person to exercise that right?  Do you need a permit to practice your religion?  To be a journalist?  To write or publish anything you wish?  Do you need a permit not to testify against yourself?

Critically, my main point with this post and others concerning Plaxico's fate — as well as what I take to be the main point being made by the piece linked above — is that the seem to expose the apparent faint-heartedness of the many groups and politicians who in "safer" settings make a lot of noise about the importance of gun rights and the fundamental nature of the Second Amendment.  I do not think Plaxico necessarily has a slam-dunk Second Amendment claim — there is the issue of incorporation and other legal complications — but the basic fact that the usually vocal pro-gun folks have said so little  in Plaxico's defense suggests to me that few really, truly believe in or are prepared to vocally advocate a forceful and fundamental individual right to carry arms for self-protection.

"Citing Cuts, Public Defenders Refuse New Cases"

The title of this post is the headline of this new article from San Francisco's legal newspaper, The Recorder.  It provides yet another window into how tight budget times are impacting criminal justice systems and also how dysfunction the justice system has become in the nation's most populous state. Here is how the piece starts:

Alameda County, Calif.'s public defenders on Monday stopped taking many out-of-custody misdemeanor and probation violation cases, citing the expected loss of 14 attorneys through layoffs on Sept. 4.

Public Defender Diane Bellas confirmed in an e-mail that her attorneys have started declaring conflicts of interest "based on overload."  The move is part of a "transition plan," she said. Bellas told county leaders that could shift more than 10,000 cases to a panel of private attorneys over the next year.  " ... The public defender is barred from undertaking representation in cases when it knows it has neither the necessary resources nor capacity," Bellas wrote.  "And ... the public defender will not abandon existing clients. Accepting new referrals through Sept. 4, 2009, when attorney staff will drop from 102 to 88, would result in a violation of both of these recognized canons and, operationally, give rise to an unmanageable caseload on Sept. 8, 2009."

Bellas informed Alameda County leaders of the plan in a July 13 memo. County Administrator Susan Muranishi was in meetings and unavailable to talk about the public defender's office Monday, a spokeswoman said.

Bellas' actions reflect the dire choices public defenders around the nation are facing as government budgets shrink.  Across the bay in San Francisco, Public Defender Jeff Adachi said his office started declining complex, time-intensive cases in March and has since referred about 20 defendants to private counsel.  And even though the Board of Supervisors restored $950,000 of the proposed cuts his office was slated to take, Adachi said he's certain he'll have to refuse representation "in an even greater number of cases." "When your staff is already working beyond capacity, there is no way to absorb those cases," he said.

In refusing to take new cases, attorneys are citing a March decision by California's 1st District Court of Appeal, In re E.S., 09 C.D.O.S. 3042, that said public defenders who can't effectively assist their clients because of overwhelming caseloads should do everything they can, including declining new cases, to ease their burden. "That really was the first case to acknowledge that, not only does the chief defender have a moral and professional obligation to declare unavailability" but they must do so or risk being held responsible "for failure to represent clients," Adachi said.

U Penn JCL symposium on Eighth Amendment litigation

I just noticed that a terrific issue of the University of Pennsylvania Journal of Constitutional Law, which follows-up on its symposium on "Litigating Under the Eighth Amendment," is fully available on-line here. 

The pieces in the issue, all authored by leading scholars in the field, cover a wide array of topics ranging from the death penalty, to prison reform litigation, to how excessive prison punishments should be assessed under the Eighth Amendment.  Especially with many of these issues on the Supreme Court's docket for the coming Term, this JCL issue is a must-read for constitutional law fans as well and criminal law folks.

"DOC May Have To Pay For Sex Offenders To Stay In Motels"

The title of this post is the headline of this local story from Colorado that highlights the challenges facing sex offenders — and facing those responsible for managing and monitoring sex offenders — after release from prison.  Here is how the piece starts:

The Department of Corrections and the Denver Police Department told 7NEWS they were scrambling to find alternative housing for roughly 100 registered sex offenders who currently stay at Crossroads, an overnight men's shelter run by the Salvation Army.

Last week, the Salvation Army announced they would be closing the shelter by mid-August. The city and law enforcement urged them to keep it open until Aug. 31.  Sex offenders told 7NEWS that housing isn't easy to come by because of the stigma associated with the crime. They said they can't find a job and can't find a place to live.

Law enforcement officers said they understand, which is why they believe Crossroads worked so well for these men.  In many cases, the DOC even paid the $35 a week required for a bed. DOC spokesman Tim Hand said the Dept. of Corrections had to find and provide a transitional housing situation for men who couldn't afford it and Crossroads made it easier for them to monitor the offenders in their system.

Now, the DOC will be forced to go to the families of sex offenders and ask them to take these men in. If that doesn't work they will be forced to put them in motels.  Hand said the Dept. of Corrections will have to look at their budget because the money comes out of their general fund and they were not prepared for Crossroads' closing.

New NY Times editorial on felon disenfranchisement

Responding in part to this recent split First Circuit ruling upholding Massachusetts decision to deny the vote to incarcerated prisonder, the New York Times today has this editorial headlined "A Loss for Voting Rights."  Here are excerpts:

Voting rights advocates have had little success challenging felon disenfranchisement laws in court. Last week, the United States Court of Appeals for the First Circuit, in Boston, became the latest federal court to uphold a ban on voting by convicted felons. Despite these setbacks, the cause is important. Voting rights advocates should keep fighting in the courts, state legislatures and Congress.

In 2000, Massachusetts changed its laws to prohibit felons in prison from voting. Until then, it was one of only three states that let felons vote from behind bars. Even with the change, Massachusetts remains one of just 13 jurisdictions that disenfranchise felons while they are incarcerated but not after they are freed....

The United States aspires to be a nation in which the government rules by the consent of the governed people. Prisoners do not cease to be people.

Felon disenfranchisement is also bad prison policy. In recent years, the prison system has all but given up on trying to rehabilitate prisoners. Allowing felons to vote is good preparation for making them free, law-abiding citizens.

Federal judicial panel orders California to drastically cut prison population

This New York Times piece provides the highlights of a major prison conditions ruling coming from California late today:

A panel of federal judges ordered the California prison system on Tuesday to reduce its inmate population of 150,000 by 40,000 — roughly 27 percent — within two years.

The judges said that reducing prison crowding in California was the only way to change what they called an unconstitutional prison health care system that causes one unnecessary death a week. In a scathing 184-page order, the judges criticized state officials, saying they had failed to comply with previous orders to fix the health care system in the prisons and reduce crowding, and recommended remedies, including reform of the parole system.

The special three-judge panel also described a chaotic prison system where prisoners were stacked in triple bunk beds in gymnasiums, hallways and day rooms; where single guards were often forced to monitor scores of inmates at a time; and where ill inmates died for lack of treatment.

“In these overcrowded conditions, inmate-on-inmate violence is almost impossible to prevent, infectious diseases spread more easily, and lockdowns are sometimes the only means by which to maintain control,” the panel wrote. “In short, California’s prisons are bursting at the seams and are impossible to manage.”

Attorney General Jerry Brown said previously that he intended to appeal the ruling to the United States Supreme Court. Officials said they would not comment on Tuesday until they had time to read the decision.

Thanks to this post at How Appealing, everyone can check out additional major medial coverage and the full 184-page order(!) at this link.  Here are the first two paragraphs of the ruling:

“California’s correctional system is in a tailspin,” the state’s independent oversight agency has reported. Ex. P3 at i (Jan. 2007 Little Hoover Commission Report, “Solving California’s Corrections Crisis: Time Is Running Out”).  Tough-on-crime politics have increased the population of California’s prisons dramatically while making necessary reforms impossible. Id. at ii, 2-5, 9, 20. As a result, the state’s prisons have become places “of extreme peril to the safety of persons” they house, Ex. P1 at 7-8 (Governor Schwarzenegger’s Oct. 4, 2006 Prison Overcrowding State of Emergency Declaration), while contributing little to the safety of California’s residents, Ex. P3 at ii.  California “spends more on corrections than most countries in the world,” but the state “reaps fewer public safety benefits.” Id. at 14. Although California’s existing prison system serves neither the public nor the inmates well, the state has for years been unable or unwilling to implement the reforms necessary to reverse its continuing deterioration.

In this proceeding, we address two particular problems that every day threaten the lives and health of California prisoners.  First, the medical and mental health care available to inmates in the California prison system is woefully and constitutionally inadequate, and has been for more than a decade.  The United States Constitution does not require that the state provide its inmates with state-of-the-art medical and mental health care, nor does it require that prison conditions be comfortable.  California must simply provide care consistent with “the minimal civilized measure of life’s necessities,” Rhodes v. Chapman, 452 U.S. 337, 347 (1981) – care sufficient to prevent the unnecessary and wanton infliction of pain or death, Estelle v. Gamble, 429 U.S. 97, 103-04 (1976).  Tragically, California’s inmates have long been denied even that minimal level of medical and mental health care, with consequences that have been serious, and often fatal. Inmates are forced to wait months or years for medically necessary appointments and examinations, and many receive inadequate medical care in substandard facilities that lack the medical equipment required to conduct routine examinations or afford essential medical treatment.  Seriously mentally ill inmates languish in horrific conditions without access to necessary mental health care, raising the acuity of mental illness throughout the system and increasing the risk of inmate suicide.  A significant number of inmates have died as a result of the state’s failure to provide constitutionally adequate medical care.  As of mid-2005, a California inmate was dying needlessly every six or seven days.

UPDATE:  The Sacremento Bee has this new op-ed responding to the ruling, which is headlined "Voters, politicians let prison costs soar." Here are its closing paragraphs:

Make no mistake: California brought this situation onto itself, as the judges declared, by continuing to pass tough sentencing laws, such as three-strikes-and-you're-out, but refusing to spend what it would take to legally house, clothe, feed, medicate and educate what became a flood of new inmates.

When California launched this lock-'em-up policy 30 years ago -- the result of some Democratic legislators and judges losing their positions after being accused of softness on crime -- the state had about 20,000 inmates. Now it has more than 160,000.

There's an old saying in police and prosecutorial circles: Don't do the crime unless you want to do the time. A political corollary should be: Don't crack down on crime unless you're willing to spend the dime.

"State Intentions and the Law of Punishment"

The title of this post is the title of a newly posted piece on SSRN from Alice Ristoph.  Here is the abstract:

Forget dogs: do people distinguish between being stumbled over and being kicked? Assessments of intentions are considerably more complex than Holmes’s classic quip suggests.  This Article examines the substantial, but so far overlooked, role of intent analysis in the constitutional law of punishment.  As a doctrinal matter, the success or failure of a constitutional challenge to punishment often depends on a judicial assessment of official intent.  As a normative matter, constitutional theory and moral philosophy offer conflicting accounts of the significance of intentions to the legal or moral permissibility of acts.  Many of the constitutional theorists’ arguments for motive analysis have little applicability in the context of state punishment, and many of the philosophical reasons to deny the normative significance of intentions are especially powerful in that context.  If the Constitution is to provide meaningful limitations on the power to punish, we should reconsider, and reduce, the current doctrinal emphasis on state intentions.

Lots of interesting sex offender residency news and notes

I happened to notice a lot of different and interesting local press stories about sex offender residency restrictions this afternoon.  Here is a sample:

• From the Miami Herald here, "GOP's McCollum calls Florida sex offender limits too harsh"

• From Florida Today here, "Florida sex offender's real estate empire capitalizes on buffer zones"

• From Foster's Daily Democrat here, "Judge rejects Dover's sex-offender ordiance"

Smokin' Okun: tax scheme scammer gets 100 years in the federal slammer

The feds can now add another triple-digit notch to its white-collar sentencing belt after today's sentencing of the Miami businessman Edward Okun.  This Bloomberg report provides the basics:

Edward Okun, the Miami businessman convicted of stealing from customers of his tax-deferral firm, 1031 Tax Group LLC, was sentenced to 100 years in prison for running a $126 million fraud scheme.

U.S. District Judge Robert Payne handed down the sentence today in Richmond, Virginia, where Okun’s company was based. Prosecutors sought a sentence of 400 years, or a similar term amounting to life in prison. Jurors in March found Okun, 58, guilty of conspiracy, wire fraud, money laundering, smuggling and perjury following a three-week trial. “The sentence must deter those who have access to funds of others,” Payne said.  “If you ruin lives of others, your life stands to be ruined.”

Okun argued that a term of 10 years to 15 years would suffice.  He cited Bernard Madoff’s 150-year sentence, the maximum possible, in June for running a $65 billion Ponzi scheme, and lawyer Marc Dreier’s 20-year sentence last month for defrauding hedge funds of more than $400 million. Prosecutors sought 145 years for Dreier.

Assistant U.S. Attorney Michael Dry argued Okun’s fraud was worse than others, because his victims thought they were using a risk-free service, as opposed to investing.  The tax-deferral industry temporarily holds real-estate sale proceeds for a fee under section 1031 of the U.S. tax code, allowing customers to defer taxes when similar properties are bought within 180 days.

As this Bloomberg report of the sentencing highlights, this proceeding appears to confirm again the accuracy of my Madoff sentencing reaction-prediction here that "though the choice of the 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."

Some recent related posts:

• Another big federal fraud sentencing dealing with Madoff echoes
• The "Bernie benchmark" already brought to bear in Dreier case
• Dreier gets 20-year federal prison sentence
• Madoff gets sentenced to max of 150 years in federal prison!
• A new white-collar benchmark: the main reason the number 150 matters in Madoff

The emerging jurisprudence over conditions of supervised release

In addition to noting yesterday's Third Circuit child porn sentencing ruling (discussed here), this article in today's Legal Intelligencer spotlights the emerging jurisprudence over supervised release conditions. The piece is headlined "3rd Circuit Upholds 10-Year Internet Ban in Child Porn Case," and here are excerpts:

[T]he decision in United States v. Thielemann is legally significant because it helps define a still emerging area of the law that trial judges have found perplexing: how far judges can go in crafting the "conditions of release" that restrict a criminal defendant's behavior in the period just after a prison term.  In prior decisions, the 3rd U.S. Circuit Court of Appeals has overturned some restrictions as too harsh, such as a lifetime ban on using computers or barring a defendant from possessing all forms of pornography, including legal adult pornography.

But in the case of Thielemann, the 3rd Circuit concluded that the conduct was far worse and justified the harsh restrictions imposed by U.S. District Judge Sue Robinson because the evidence showed that Thielemann not only traded child pornography with nine other men, but also encouraged some of the men to engage in acts of child molestation and to share images of those acts on Web cams.

Senior U.S. Circuit Judge Leonard I. Garth concluded that Robinson hadn't violated Thielemann's First Amendment rights when she barred him from possessing any "sexually explicit" materials.  "We hold that there is a significant nexus between restricting Thielemann from access to adult 'sexually explicit' material and the goals of supervised release, and that the restriction here is not overbroad or vague considering the content of the instant record," Garth wrote in an opinion joined by 3rd Circuit Judge Marjorie O. Rendell and visiting U.S. District Judge Thomas I. Vanaskie of the Middle District of Pennsylvania.

Garth also found that Robinson had properly tailored a restriction that bans Thielemann from accessing the Internet for 10 years after his release unless he gets permission from his probation officer. "Thielemann can own or use a personal computer as long as it is not connected to the Internet; thus he is allowed to use word processing programs and other benign software," Garth wrote.  Garth found there were sharp contrasts between Thielemann's case and that of Daniel Voelker, whose lawyers successfully argued in June 2007 that the trial judge had gone too far in imposing a lifetime ban on using computers.

Some related posts on federal supervised release conditions:

• Are quirky supervised release conditions getting out of hand?
• Interesting Second Circuit ruling on supervised release conditions

• Fifth Circuit rejects supervised release residency condition

Speculating on the next Nacchio prosecution twist and turn

As noted in this recent post, a unanimous Tenth Circuit panel late last week reversed the sentence imposed on former Qwest CEO Joe Nacchio following his conviction for insider trading.  Though a lot more could (and surely will) be said about that opinion, here I want to speculate on what comes next for a case that has already gone through a number of notable twists and turns.  Helpfully, these two recent Denver Post articles provide a basic primer on some of the coming possibilities:

• Nacchio's jail time could be cut
• Re-sentence for Nacchio not unusual

The first article notes that further appellate review of the panel decision is possible: "The government has 14 days to ask the panel to reconsider or request a rehearing from the entire 10th Circuit, or both. It also can appeal the panel's decision to the Supreme Court."  The second article spotlights some possible battles when this case gets back to the district court: 

[T]he ruling from a three-judge panel of the 10th Circuit Court of Appeals may start another set of legal battles, including a renewed request to allow the imprisoned Nacchio to be free on bail while the sentence is sorted out....

If the government is not successful in challenging the panel's ruling, Nacchio's sentencing would start anew in U.S. District Court in Denver, likely meaning a fresh round of filings and hearings, said Peter Henning, a professor of law at Wayne State University.  Experts could be asked to testify about the gain.  

As white-collar crime fans may recall, Nacchio had won a reversal of his convictions in an initial Tenth Circuit panel decision that was later reversed by the full en banc Tenth Circuit.  I doubt that the full circuit will be again eager to review this latest sentencing decision (and I would not be surprised if the Government does not even seek en banc or cert review).

The potential bail battle strikes me as especially interesting given that Nacchio has already served about four months in prison, but still seems relatively unlikely to get resentenced to much less than a few years even if his new sentencing judge — recall that District Judge Marcia Krieger took over over the Nacchio case after Edward Nottingham resigned last year — is sympathetic to his situation at resentencing.  And, adding further complications to these matters, as the Denver Post notes, "Nacchio has a motion for a new trial pending before Krieger, contending that new evidence has surfaced. He also has asked the Supreme Court to review the case."

A pair of timely reports on state correction costs

I recently received this summary of two new reports on state correction costs via e-mail from the fine folks at the Pew Center on the States:

With state budgets in dire straits and corrections expenditures consuming one in 15 state general fund dollars, sentencing and prison policies are receiving special scrutiny.  New publications from the Vera Institute of Justice and the National Conference of State Legislatures (NCSL), partners of the Public Safety Performance Project of the Pew Center on the States, describe several solutions that help to contain costs while preserving or improving public safety. 

Vera’s report, The Fiscal Crisis in Corrections: Rethinking Policies and Practices, reviews enacted FY2010 corrections budgets and recent state legislation. It finds that 22 state departments of corrections (of 33 that had enacted state budgets at the time of printing) experienced budget reductions and details how they have absorbed the cuts.  Common strategies include finding operating efficiencies, working to reduce the rate at which offenders return to prison, and accelerating the release of lower-risk inmates.

NCSL’s report, Cutting Corrections Costs: Earned Time Policies for State Prisoners, explores cost-cutting policies that speed release of inmates who complete programs and activities designed to increase their chances of success once they return to the community. NCSL’s statutory review describes the eligibility criteria and incentive structure for earned time policies in 31 states.  It summarizes several research studies that find earned time policies can save substantial funds while maintaining or reducing recidivism rates. It also includes three brief Q&As with a leading policy analyst from Washington State, a Kansas legislator and Pennsylvania’s corrections director.

Together, the reports provide timely and detailed information on sentencing and corrections policies that can help states navigate the budget crunch.

AG Holder continues to talk about being "smart on crime" (and other important stuff)

Continue his stumping for new approaches to crime and punishment (see prior speeches noted here and here and here), Attorney General Eric Holder earlier today gave a keynote address to the ABA House of Delegates outlining the Department of Justice's latest vision and priorities for reform of the nation's criminal justice systems.  Some of the speech reiterates points made by AG Holder in prior speeches, but there is some new stuff in this ABA speech (and some old stuff worth hearing again). 

An audio recording of AG Holder's remarks can be found at this link and the full text is available here.  The audio reveals ovations from the crowd during Holder's remark about improving indigent defense systems and DNA availability (and also a gentle dig at the outset about patent law).  Here are a few sentencing-oriented highlights from the text:

By 2007, the nation’s violent crime rate had dropped by almost 40% from its peak in 1991. Few would dispute that the imprisonment of offenders has been at least partially responsible for this dramatic drop in crime rates. But just as everyone should agree that incarceration is — and will continue to be — part of the answer, everyone should also agree that it is not the whole answer. And so, we at the Department of Justice will continue to put the people who threaten our communities where they belong — behind bars. But we will also recognize that imprisonment alone is not a complete strategy for enforcing our nation’s criminal laws, and we will act on that fact.

We will not focus exclusively on incarceration as the most effective means of protecting public safety.  For although spending on prison construction continues to increase, public safety is not continuing to improve.  Crime rates appear to have reached a plateau beyond which they no longer decline in response to increases in incarceration. Indeed, since 2003, spending on incarceration has continued to rise, but crime rates have flattened.

But there is another reason to consider new law enforcement strategies: simple dollars and cents, and the principle of diminishing marginal returns.  Every state in the Union is trying to trim budgets. States and localities are laying off teachers, cutting back on public health, and canceling after-school programs for our children.  But in almost all cases, spending on prisons continues to rise. This is unsustainable economically.  Many jurisdictions simply cannot afford the monetary costs of focusing exclusively on incarceration, to say nothing of the social costs associated with high rates of imprisonment.

So what can we do to lower the crime rate further, to make American communities safer, and to get smarter on crime? We need to add new tools and new strategies to our existing efforts to fight crime. One of these strategies is to look several steps past the point where we put people in prison, and to consider what happens to those people after they leave prison and reenter society....

Adapting our law enforcement strategies to get smart on crime is both necessary and possible — if we are willing to demand it.  The challenges we face have evolved with time. But the opportunities available to us have changed too.  We are able to compare the cost and suitability of different criminal justice strategies.  We no longer must choose between more prisoners or more crime: we can reduce our dependence on incarceration and we can reduce crime rates.  At the same time we can increase the integrity of our criminal justice system.  We can harness science and data to tackle emerging problems and to preserve our foundational principles. The more we know, the better we can do, the more sophisticated we can be.

If all of us — judges, attorneys, law enforcement personnel, corrections officials, Justice Department lawyers, policymakers, and all Americans concerned with the cause of safe streets and equal justice — approach these challenges with open minds and determined action, there is no question that a smarter- and better- criminal justice system is within our grasp.

Now that Plaxico Burress has been formally indicted for gun possession, will Second Amendment fans come to his defense?

As detailed in this Bloomberg news piece and this official press release from the office of Manhattan District Attorney Robert Morgenthau, today former New York Giants receiver Plaxico Burress was indicted "on charges of possession of a loaded pistol and reckless endangerment in connection with an incident in which he shot himself in the leg at a Manhattan nightclub."  Here are more sentencing details from the Bloomberg report:

After shooting himself, Burress was initially charged with two counts of possession of an unlicensed handgun. His trial was delayed until Sept. 23 when Morgenthau decided to present the evidence to the grand jury.  Morgenthau told the New York Post on July 27 that Burress agreed to serve a year in jail and that prosecutors insisted on two.

If convicted, Burress faces from 3-1/2 years to 15 years in prison for each gun count.  The maximum prison sentence for reckless endangerment is one year, according to Morgenthau.  He will be arraigned in New York state court.  No date is scheduled.

As I have highlighted in some prior posts, I think anyone seriously and deeply committed to enforceable invidivudal right to possess a gun for self-protection ought to be greatly troubled by both the decision to criminally prosecute Burress and by the considerable prison terms being threatened in this case.  Though a few Second Amendment fans have previously express some concern for Plaxico's plight, I will be interested to see if more start coming to his defense now that he has been formally indicted.

Some related posts on the Burress cases:

• NYC Mayor Bloomberg pushing for Plaxico Burress to get at least 3½ years in state prison, leading me to many questions
• "Main Threat to Burress Is a Sentencing Law"
• Starting to make the Second Amendment case for Plaxico Buress  
• Interesting data on the application of NY gun law for Plaxico's consideration
• Talk of a plea deal to resolve gun charges against Plaxico Burress
• Lawyer for Plaxico Burress making much of sweet plea deal given to other NFL receiver

"The Real Murder Mystery? It’s the Low Crime Rate"

The title of this post is the headline of this great article from the weekend's Week in Review in the New York Times.  Here are just a few snippets from a great read:

Maybe it is time to call in one of those clairvoyants who help detectives solve the case. Because no one else can explain what criminals have been doing in the first half of 2009....

No single lens — sociological, econometrical, liberal or conservative — seems an adequate one through which to view crime.  The economy, which seems as if it should be fundamental, has never been a good predictor; the Prohibition era was far more violent than the Great Depression.  Adding prison beds has not helped; the incarceration rate has marched grimly upward for decades, while the crime rate has zigzagged up and down, seemingly oblivious.  Years ago, criminologists thought demographics explained a lot — remember the warnings about thousands of cold-blooded, teenage “superpredators” in the mid-1990s? — but demographics cannot shed light on what is happening now.  Improved policing deserves credit for bigger declines in certain cities, but not the overall national trend....

The search for a silver bullet — a single factor that could explain the steady drop in crime since the mid-1990s — has taken theorists far afield.  There is the abortion theory, which proposes that legalized abortion reduced the number of unwanted children who turned to a life of crime.  It’s a seductive explanation for United States data, but it does not bear out in other countries that legalized abortion in the 1970s, said Franklin E. Zimring, a law professor at the University of California at Berkeley.  There is the gun theory, which posits that expanded gun ownership rights have deterred criminals who now must consider whether their victims are armed.  But that does not explain the most significant decline in the country, in New York City, where gun ownership is low, said Mr. Zimring, who dedicated part of his book, “The Great American Crime Decline,” to debunking such theories. (Despite writing that exhaustive volume, Professor Zimring admits that for criminologists, “the score is Know: 2; Don’t Know: 8.”)...

One reason for the lack of answers is lack of money, said Alfred Blumstein, a prominent criminologist at Carnegie Mellon University in Pittsburgh. “The National Institutes of Health spends $400 million a year on dental research,” he said. “The National Institute of Justice spends $50 million a year on criminal justice research.”  Perhaps as a result, police departments and prosecutors can be swayed by fads, spending millions on programs like Drug Abuse Resistance Education, or D.A.R.E., which came under fire from critics who said it lacked a proven success record (it later changed its strategy).  “Police research is to research like military music is to music,” Mr. Krisberg said. “It has never matured to be a very sophisticated science.”...

While the decline may not have taken hold in the minds of the public, it has undermined a cherished belief, particularly among liberals, in root causes — that criminals are born of misery and the limited options of poverty.  “There are people that are putting up with an awful lot of suffering, and they’re not complaining all that much,” said Andrew Karmen, a criminologist at the John Jay College of Criminal Justice in New York.

But the fact that so few forces have a demonstrable effect on crime can be viewed, in a twisted kind of way, as good news.  The decline, Mr. Zimring said, has shown that it isn’t necessary to accomplish major feats, like improving education or raising wages, or punitive ones, like increasing prison sentences, to bring crime down.  Smart policing can have an effect.  “Crime isn’t an essential part of cities as we know them,” Mr. Zimring said. Instead, it is a mystery with a direction all its own, one that may be beyond the reach of public policy.  Which is easier to tolerate when that direction is down.

Third Circuit upholds stat max sentence and special restriction in child porn case

The Third Circuit, which has issued a number of notable child porn rulings in recent times (see here and here), has another such ruling today in US v. Thielemann, No. 08-2335 (3d Cir. Aug. 3, 2009) (available here). Here is how the panel opinion starts:

The defendant, Paul Thielemann, was indicted and pleaded guilty to one count of receiving child pornography.  He was sentenced to the statutory maximum of 240 months of imprisonment, plus 10 years of supervised release subject to a number of conditions, including two Special Conditions of Supervision.

Thielemann appeals his prison sentence because the District Court considered non-charged relevant conduct in fashioning his sentence. Thielemann also challenges the two Special Conditions of Supervised Release imposed by the District Court. These conditions restricted Thielemann’s computer use and his viewing of sexually explicit material.

We reject Thielemann’s arguments concerning his relevant conduct and we conclude that both Special Conditions of Supervised Release must be upheld. In particular, we hold that restricting Thielemann’s possession and viewing of sexually explicit material, as defined in 18 U.S.C. § 2256(2)(A), does not violate the Constitution. Accordingly, we will affirm the District Court’s judgment and sentence of April 30, 2008.

Judge Posner talks through some post-Kimbrough concerns for the Seventh Circuit

The Seventh Circuit has this intriguing little opinion today which purports "to flag a growing problem created by the Booker decision, which in the name of the Sixth Amendment demoted the federal sentencing guidelines to advisory status."  The ruling in US v. Aguilar-Huerta, No. 08-2505 (7th Cir. Aug. 3, 2009) (available here), comes from the pen of Judge Posner, and here are a few snippets (with cites omitted and the emphasis from the original):

A sentencing judge is free, as we said, to reject a guideline as inconsistent with his own penal theories; and rejecting a guideline as lacking a basis in data, experience, or expertise would thus be proper.  But we do not think a judge is required to consider, not a nonfrivolous argument that a guideline produces an unsound sentence in the particular circumstances of the case, but an argument that a guideline is unworthy of application in any case because it was promulgated without adequate deliberation.  He should not have to delve into the history of a guideline so that he can satisfy himself that the process that produced it was adequate to produce a good guideline. For if he is required to do that, sentencing hearings will become unmanageable, as the focus shifts from the defendant’s conduct to the “legislative” history of the guidelines.

Moreover, while if a defendant makes a nonfrivolous argument that a guideline is invalid the judge should consider the argument, there is no harm done if he doesn’t consider it because the defendant can renew the argument on appeal; validity issues are issues of law.

What does Sarah Palin think about Heller's limits on Second Amendment right?

According to this CNN item, Sarah Palin addressed a National Rifle Association dinner in Anchorage on Saturday and gave “a stirring speech on 2nd Amendment rights.”  Though I doubt former Gov. Palin gave lots of attention to the Second Amendment sentencing issues about which I often blog, I cannot help but enjoy speculating that she decided to quit being governor so that she could join me as one of the few (but growing?) active and vocal critics of the unspecified and unjustified (and unjustifiable?) extreme limits on Second Amendment rights that appear in Heller.

Some related Second Amendment posts:

• Heller's impact on felon-in-possession crimes finally starting to generate attention
• First(?) significant(?) Second Amendment ruling favoring a federal criminal defendant
• Might Judge Sotomayor think the Second Amendment "deserves to be on equal footing with the First Amendment" for ex-cons?
• Seventh Circuit resists extending Second Amendment to the states
• NRA quickly petitions SCOTUS for Second Amendment incorporation 
• SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
• Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
• The lack of originalist justification for excluding felons from the Second Amendment
• Assailing the unjustified Second Amendment limits in Heller
• Notable new Alaska appellate decision on denying gun rights to non-violent felons
• "Why Can’t Martha Stewart Have a Gun?"
• Is anyone (other than me) discussing the apparent insignificance of Heller?
• "The New Second Amendment: A Bark Worse Than Its Right"
• What might 2009 have in store for . . . Second Amendment jurisprudence?

Kenya's leader commutes all death sentences

This new AP article, headlined "Kenyan leader reduces all death sentences to life," details an intriguing international death penalty development:

Kenya's president says all prisoners on death row will immediately have their sentences commuted to life imprisonment.

President Mwai Kibaki said in a statement Monday he made the decision because no death sentence has been carried out in the past 22 years, leading to more than 4,000 prisoners on death row.  The president says he has directed government officials to study whether the death penalty has any impact on fighting crime.

Snarky aside (which I fear will prompt off-topic comments):  Do we need to worry that the "birthers" and Lou Dobbs might suggest this news provides reason to believe that President Obama was really born in Kenya?

SCOTUS Ice ruling undercuts Ohio defendant's habeas claim

The Sixth Circuit issued an intriguing little habeas ruling today in Evans v. Hudson, No. 08-3717 (6th Cir. Aug. 3, 2009) (available here).  Here is how it starts:

Respondent-Appellant Stuart Hudson (“Hudson”), the warden of Mansfield Correctional Institution, appeals the district court’s grant of a conditional writ of habeas corpus to Petitioner-Appellee Glen Evans (“Evans”), requiring the state of Ohio to resentence Evans within 90 days or release him. Hudson contends that the district court erred in concluding that Evans received ineffective assistance of appellate counsel because appellate counsel failed to raise, during Evans’s direct appeal, a claim under Blakely v. Washington, 542 U.S. 296 (2004), regarding Evans’s sentence to consecutive terms of imprisonment. For the reasons discussed below involving the Supreme Court’s recent decision in Oregon v. Ice, — U.S. —, 129 S. Ct. 711 (2009), we REVERSE the district court’s grant of habeas relief.

Japan's revival of jury trials to include jury sentencing

Fans of Blakely and jury involvement in criminal justice administration should be interested in this international news report, which is headlined "Japan holds 1st criminal jury trial since WWII."   In addition to discussing Japan's decision to start having jury trials, the report details that the first such trial came after a guilty plea so that the very first jury's role is all about making a sentencing judgment rather than doing basic guilt fact-finding.  Here are the interesting details:

Japan opened its first jury trial since World War II on Monday under a major overhaul of a legal system that has often been criticized as unfair and arduous. Six jurors are working with three judges to hand down a verdict for 72-year-old Katsuyoshi Fujii, who has been charged with murder in the fatal stabbing of a 66-year-old neighbor in May....

Japan launched a jury trial system in 1928, but dropped it in 1943 as the country headed into chaos with World War II. The system was never popular because legal professionals opposed allowing regular people as jurors, and defendants had to pay legal fees....

Fujii's lawyers say he is pleading guilty but that they are asking for leniency in sentencing because he has expressed remorse.  Murder carries a maximum penalty of death in Japan, although it's unlikely in a case involving one victim.

The son of the victim is expected to take the stand to plead with the jurors, according to the court. His mother was stabbed to death, allegedly after a quarrel, the court said. "This is a historic trial, and I feel I must do my best to be up to the job," prosecutor Tetsuo Maeda told reporters on NKH TV news, as he headed into the courtroom, where jury selection started in the morning.

Japan is set to hear about 2,000 to 3,000 jury trials per year, all involving serious crimes such as murder and kidnapping.  About 300,000 candidates are being randomly selected from eligible voters nationwide annually to serve jury duty each year.

Since 2004, when the nation decided on the new jury system, legal experts have held seminars to make trials easier to understand and have held about 300 mock trials. Some people are still reluctant to serve on a jury.  "It is such a heavy responsibility to cast judgment on other people," said Tomoe Obata, a 49-year-old office worker, who attended a mock trial earlier this year. "What if I'm assigned to a murder case and we are asked to consider the death penalty?"

With the arrival of a jury trial, Japanese will have a chance to play a bigger role in doling out justice, Bar Association President Makoto Miyazaki said in a recent interview with The Associated Press. "A more transparent and fair criminal justice system serves everyone's interests," he said.

As I discussed in my recent Sidebar commentary for the Columbia Law Review, I think anyone seriously committed to the conceptual and constitutional principles behind the Apprendi-Blakely line of cases ought to favor greater jury involvement in both capital and noncapital sentencing proceedings.  Though the particulars of Japan's new system are unclear, it will be quite ironic if the country's new jury trial program means the Japanese people end up having a lot more say in typical sentencing outcomes than do modern American jurors (outside the capital context).

Latest FSR issue, "Fast-Track Sentencing," now available on-line

I am pleased to report that the latest issue of the Federal Sentencing Reporteris available on-line, bearing the title "Fast-Track Sentencing."  Through this Issue, thanks to the extraordinary efforts of guest editor Alison Siegler, FSR has now published a set of articles and primary materials concerning federal early-disposition programs, which are known more commonly as “fast-track” sentencing programs. 

As explained in Alison's Guest Editor’s Observations, which can be accessed at this link, the goal of this FSR Issue was to describe the history of fast-track sentencing programs, as well as to illuminate the current debates over whether and when judges have discretion to consider fast-track disparities when sentencing defendants who quickly plead guilty in non-fast-track districts.  To this end, this Issue reprints a variety of difficult-to-obtain primary sources that reveal the dynamic and diverse nature of fast-track sentencing programs in federal districts across the nation.

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.) 

Other recent FSR issues:

• FSR Issue 21.4: On the Shoulders of Giants
• FSR Issue 21.3: "Second Look" Sentencing Reforms
• FSR Issue 21.2: Sex Offenders: Recent Developments in Punishment and Management
• FSR Issue 21.1: Thoughts for the U.S. Sentencing Commission
• FSR Issue 20.5: American Criminal Justice Policy in a "Change" Election
• FSR Issue 20.4: Debates and Realities Surrounding Crack Retroactivity
• FSR Issue 20.3: White-Collar Sentencing
• FSR Issue 20.2: Prisoner Reentry 

Famed researchers write in support of NC Racial Justice Act

Thanks to this post at DPIC, I see that renowned researchers David Baldus and George Woodworth have penned an op-ed supporting North Carolina's proposed Racial Justice Act. Here is how the piece starts:

The various attacks on the proposed North Carolina Racial Justice Act, a bill that would allow capital defendants to present claims of racial bias to the court, are, at best, based on a lack of understanding, and at worst, emotional and misleading arguments used in an effort to obscure the issues.

Some critics claim that the use of statistics to show racial bias in death penalty cases is inappropriate, but these critics offer no alternatives. Statistical analysis provides the only way to understand the role of racial bias in a system. Rigorous statistical analyses, grounded in actual information about the crimes and the charging and sentencing decisions relating to them, facilitate a nuanced understanding of the real role of race. The only alternative is willful blindness.

Closing the door to this kind of analysis closes the door to an informed debate. It is for this reason that statistical analyses are used routinely and properly in housing and employment discrimination cases.

Some critics claim that there is no evidence of racial discrimination in the death penalty system. The enormity of this canard is breathtaking. Supreme Court Justice Antonin Scalia has said that racial discrimination in capital punishment is "real, acknowledged in the decisions" of the Supreme Court, and "ineradicable."

Does the death penalty process aggravate victim suffering?

This new AP article, headlined "Death-penalty cases harder on survivors than life sentences," prompts the question in this title of this post. Here are snippets from the piece:

As lawmakers weigh the future of the death penalty in some states, officials are giving greater weight to the effect of prolonged death-penalty cases on victims’ families. Commissions in New Jersey and Maryland in recent years found that death-penalty cases are more harmful to the families of victims than cases that end with life sentences.

“The commission finds that regardless of whether or not a survivor supports an execution, years of court dates, reversals, appeals and exposure to the killer is harmful to the family members of murder victims,” the Maryland commission wrote in its report last year. New Jersey repealed its death penalty in 2007, while Maryland has had a moratorium since 2006.

Across the country, relatives of murder victims say the plodding pace of a death-penalty case in court is difficult.

Phyllis Bricker of Baltimore has sat through 26 years of court hearings since her parents were murdered in 1983. Their killer, John Booth-El, remains on death row. “It’s hard on the family, very hard,” Bricker said. “Your life is on hold because you never know when another trial is coming up, another appeal is coming up.” One time, Bricker said, the defendant turned to her family and said “See you next year.”

Despite the protracted battle, Bricker said she does not favor a sentence of life without parole. She said that option did not exist at the time of the crime and she’s skeptical prisoners would be kept behind bars for life.

The Rev. Cathy Harrington’s daughter, Leslie Ann Mazzara, was killed in 2004 in California. A 2007 plea agreement was reached in which her convicted killer, Eric Copple, got life in prison. “I could see us exhaling,” Harrington said of her family at the sentencing. “I hadn’t realized how tense we were. I didn’t have any room to really grieve properly. I was so busy trying to get through this, never knowing when the phone rang who it was going to be.”

Madoff's prison consultant speaks out

Herb Hoelter, the consultant who played a role in Bernie Madoff case (and runs the National Center on Institutions and Alternatives), has this new commentary in today's New York Daily News. Here is how it starts:

Bernie Madoff's 150-year prison sentence was an affront to the federal criminal justice system. There were a number of idiosyncrasies in his sentencing that even a seasoned expert could not have expected: the length of the sentence, the justification by the court for imposing the sentence and the evolution of a new term to describe people in my profession — "prison coaches."

I've been a professional federal sentencing consultant for more than 32 years.  I have worked with hundreds of white-collar offenders over the past 25 years — Madoff, most recently — whose punishments dramatically increased in direct proportion to the government trumpets of justice, punishment and deterrence.  Having lived through the past two decades of federal sentencing guidelines (no longer to be "presumed reasonable," ruled the Supreme Court this year), I know that the Madoff sentence was the crown jewel for the government.

In imposing sentence, however, the court ignored virtually all statutory sentencing principles and trumped the defunct federal sentencing guidelines.  The sentence was imposed, acknowledged Judge Denny Chin, for symbolic purposes, which violates the supposed blindfolds of our nation's justice system.

The sentence was, of course, within the law.  But being within the law does not always mean a sentence is appropriate.  Legal scholars will be hard-pressed to find a first-offender sentence of Madoff proportions — the maximum statutory term imposed on each count, to be served consecutively.