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August 22, 2009

Some of the latest media coverage of California prison debates

The debate over California's proposes prison and sentencing reforms are fascinating, and both national and local media are providing this on-going story the considerable coverage it merits.  Here are some of the newest pieces I have noticed today:

August 22, 2009 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

"Fumo disclosure on addictions could pay off"

The title of this post is the headline of this local article discussing the possibility that a prominent  defendant, who received a federal sentence already considered lenient, may be able to get another reduction based on a (little-discussed, but very significant) substance-abuse treatment program for federal prisoners.  Here are the basics:

Former State Sen. Vincent J. Fumo's effort to delay his prison term by citing addictions to Xanax and alcohol may have failed, but the embarrassing disclosure might still pay off for him.  Under federal Bureau of Prisons policy, the 66-year-old Fumo could slash a year off his sentence by enrolling in a substance-abuse treatment program while incarcerated.   The former lawmaker thus conceivably could end up serving only three years behind bars.

In a July decision that sparked widespread anger, U.S. District Judge Ronald L. Buckwalter gave Fumo a 55-month prison sentence.  With time off for good behavior, Fumo would be expected to serve just four years of that.

Carla Wilson, a regional official with the Bureau of Prisons, said the year of reduced time for addiction treatment would be in addition to the discount for good behavior.  It was not known yesterday whether Fumo intended to seek admission to such a program.  The leaders of his legal team, Dennis J. Cogan and Samuel J. Buffone, did not return telephone calls.

Assistant U.S. Attorney Robert A. Zauzmer, who prosecuted Fumo along with Assistant U.S. Attorney John J. Pease, declined to comment yesterday.  The two have filed notice that they wish to appeal Fumo's sentence, which they have called "unduly lenient."

A dominant political figure in Harrisburg and Philadelphia for almost three decades, Fumo was convicted in March of all 137 counts with which he had been charged. A jury found he had defrauded the Senate and a pair of nonprofit organizations of at least $2 million and tried to obstruct the FBI's investigation.

Congress added the sentence reduction for drug treatment to federal law in 1994 to give inmates an incentive to seek help. Linda Thomas, a spokeswoman with the Bureau of Prisons in Washington, said prisoners who seek to enroll in the program are vetted to verify their addictions. "If they are accepted," she said, "they would work with the team to address the [dependency] issues."

Inmates get varying amounts of reduction in their time based on the length of their sentence. Fumo could qualify for up to a year, the maximum permitted any prisoner.

Recent related posts on the Fumo sentencing:

August 22, 2009 in Offender Characteristics, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (2) | TrackBack

Notable news (and posts) on drug war issues

Thanks to TalkLeft and other sources, I see that there is a lot of interesting and significant "war on drugs" news of late.  Specifically, check out all these recent posts of note from TalkLeft:

Also, I have been meaning to note this story from earlier this week detailing that "90 percent of U.S. bills carry traces of cocaine."  I wonder if this technically makes every ATM machine guilty of federal drug dealing offenses.

Meanwhile, as detailed in this press release from the US Department of Justice this week, the traditional law enforcement approach to the drug war had a big "victory" through a major bust.  Here is how the official release describes what happened:

Forty-three defendants in the United States and Mexico, including 10 alleged Mexican drug cartel leaders, have been charged in 12 indictments unsealed yesterday and today in U.S. federal courts in Brooklyn and Chicago, the Department of Justice, U.S. Drug Enforcement Administration (DEA) and U.S. Immigration and Customs Enforcement (ICE) announced.  The alleged leaders and other high-ranking members of several of Mexico’s most powerful drug cartels are charged with operating continuing criminal enterprises or participating in international drug trafficking conspiracies.

"Breaking up these dangerous cartels and stemming the flow of drugs, weapons and cash across the Southwest border is a top priority for this Justice Department," said Attorney General Eric Holder.  "The cartels whose alleged leaders are charged today constitute multi-billion dollar networks that funnel drugs onto our streets and what invariably follows is more crime and violence in our communities.  Today’s indictments demonstrate our unwavering commitment to root out the leaders of these criminal enterprises wherever they may be found.  We will continue to stand with our partners in Mexico to dismantle the cartels’ insidious operations."

August 22, 2009 in Drug Offense Sentencing | Permalink | Comments (3) | TrackBack

August 21, 2009

Seventh Circuit affirms stat max sentence in child porn case

The Seventh Circuit finds reasonable a 20-year statutory maximum sentence in a child porn case today in US v. Nurek, No. 07-3568 (7th Cir. Aug. 21, 2009) (available here).  Here is how the opinion starts:

Joseph Nurek pleaded guilty to receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and was sentenced to 240 months in prison, the statutory maximum.  On appeal Nurek challenges the district court’s application of the two-level sentencing guidelines enhancement for obstruction of justice, see U.S.S.G. § 3C1.1; the government’s refusal to move for a third-point reduction in his offense level for acceptance of responsibility, see U.S.S.G. § 3E1.1(b); the district court’s use of the 2006 Guidelines Manual (in effect at the time of sentencing) instead of the 2003 Guidelines Manual (in effect at the time of his offense); and the overall reasonableness of his sentence. We reject these challenges and affirm.

Upon reviewing the decision and the underlying facts, I am a bit more troubled that the defendant here was allowed to plead guilty to a single count with a  20-year statutory maximum than by the fact that he got the max.

August 21, 2009 in Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

Attacking Dershowitz attack on Scalia's "Catholic Betrayal"

As noted in this post, Alan Dershowitz in a commentary decided, in reponse to this week's Supreme Court Davis decision concerning the possible execution of an innocent defendant, to attack Justice Sclia's commitment to Catholicism.  At Bench Memos, Ed Whelan has these posts in response:

In addition, the folks at Mirror of Justice have been talking a lot about Dershowitz's attack on Scalia, and here is a sample of the commentary there:

August 21, 2009 in Death Penalty Reforms | Permalink | Comments (4) | TrackBack

Crooked state judges make plea to have their plea deals accepted

As noted in this post, a federal judge recently rejected the plea deal secured by two former Pennsylvania county judges who had pleaded guilty to a kickback scheme involving sending juveniles to private detention facilities.  Now, as detailed in this new article from The Legal Intelligencer, the judges are seeking reconsideration of their rejected deals.  Here is how the piece begins:

Two disgraced former Luzerne County, Pa., judges have asked that a federal judge reconsider his decision to reject their plea agreements.

Michael T. Conahan and Mark A. Ciavarella Jr. made a joint filing Thursday, petitioning U.S. District Judge Edwin M. Kosik to reinstate their agreed-upon sentence of 87 months in prison because neither could be found at fault for his post-plea hearing actions.  Neither attempted to "obstruct and impede justice" or contradict the government's evidence in public comments, as Kosik had written, the ex-judges argued. In fact, the filing continued, Conahan and Ciavarella only did what the law entitled them to do.

The 12-page memorandum asserts that Conahan's objections to the federal probation office's pre-sentence report were within the guidelines established by the Federal Rules of Criminal Procedure and that Ciavarella was right to make public comments denying "quid pro quo" in the scandal that has been called "kids for cash" in some media outlets.

Related posts:

August 21, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Debate and drama continues in California over prison and sentencing reform

This article from the San Jose Mercury News, headlined "California prison plan stalls in Assembly; new plan to be considered Monday," provides the latest news on the state and fate of prison and sentencing reforms being considering in California.  Here are the basics from the start of the article:

After an acrimonious debate over whether dangerous criminals would be released to the streets before their sentences expire, the state Senate narrowly agreed Thursday to make sweeping changes to the correctional system to relieve severe overcrowding in state prisons.

Hours later, the Assembly balked. Speaker Karen Bass said she plans to strip the most controversial provisions that would have trimmed the state's prison population by 27,000 inmates. The Assembly version would keep about 10,000 more inmates behind bars and leave the state with a new, nearly $200 million budget hole, Bass said early today.

Bass said the new plan — to be considered Monday — would do away with proposals by Gov. Arnold Schwarzenegger to allow home detention with electronic monitoring for inmates with less than 12 months to serve, who are over age 60 or who are medically incapacitated.  The Assembly will also reject the Republican governor's plan to lower sentences for certain property crimes to misdemeanors, making those offenders ineligible for prison. But the Assembly plan would let inmates earn up to four months of early release credits for completing educational, vocational and other rehabilitation programs, up from six weeks in the Senate proposal.

The events underscored the difficulty of addressing public safety issues in the highly partisan and political atmosphere of the Capitol, where prison reform has been stymied for years.

The article closes with this effective discussion on the challenging intersection of political realities and sound policy-making in this context:

The hesitation in the Assembly in part reflects the political reality of term limits.  Members in that body can serve only six years and frequently are looking ahead to run for other offices.  Even many Democrats could find it difficult to vote for the prison reforms, knowing they could be cast as soft on crime by a future opponent, particularly if one of the inmates granted house arrest under the measure went on to commit a violent crime.

"Some of my members thought it should have gone further, and others thought that it went too far," Bass said of the Senate-passed plan after adjourning just before midnight. "You do have a lot of hysteria that was whipped up. We were going to release all these people, and that scares folks."

Still, Schwarzenegger urged lawmakers to be courageous and vote for the proposal, which is opposed by many law enforcement agencies. Other criminal justice experts have endorsed many of the plan's reforms. "It's always ... politically risky to talk about these kinds of issues," the governor said. "But we need to do what is right for the state."

Some recent related posts:

August 21, 2009 in Scope of Imprisonment | Permalink | Comments (2) | TrackBack

August 20, 2009

"Fans talking like lawyers over Burress, Stallworth"

The title of this article is the headline of this AP articlenoting that it is hard to avoid comparing the crimes and punishments of NFL players Plaxico Burress, Donte Stallworth and Michael Vick.  Here is a snippet:

Of the first 10 reader comments about the story posted on NFL.com, half mentioned Stallworth or Vick.  "The legal system is a joke" began the title of one thread on the message board on the Giants' Web site.  And so it went throughout cyberspace, with debate about whether Burress' sentence was too severe inevitably comparing his punishment to that of the two other players.

Stallworth, the Cleveland Browns receiver, served 30 days in jail for running over and killing a man while driving drunk.  Vick, the former Atlanta Falcons star quarterback who recently signed with the Philadelphia Eagles, served 18 months in prison for torturing animals and running a dogfighting ring for years.  With time off for good behavior, Burress will likely serve 20 months.

High-profile cases often provide the public with a skewed sense of the realities of sentencing justice.  The ultimate outcomes in these three cases, however, may provide a rough reflection of modern sentencing realities.  As I often complain on this blog, drunk driving sentences tend to be quite lenient in light of the profound harms that drunk driving causes, and yet many "regulatory" crimes can result in more prison time than may seem essential.

Though I am not prepared to say the legal system is a joke, I will continue to view the Second Amendment as a joke even after Heller due to the fact that Burress ended up with the most prison time of these NFL criminals simply for accidently shooting himself while possessing a gun for self-defense.

August 20, 2009 in Celebrity sentencings | Permalink | Comments (9) | TrackBack

Plaxico Burress cuts a plea deal requiring two-year prison term for his gun possession

As detailed in this New York Daily News article, "Plaxico Burress took a surprise plea bargain Thursday that will land the talented but troubled wide receiver behind bars for two years." Here are more legal details and some notable reactions:

The unexpected agreement with the Manhattan district attorney came nine months after Burress, 32, shot himself through the thigh with an illegal .40-caliber Glock in a crowded nightclub. "Do you wish to plead guilty?" asked state Supreme Court Judge Michael Melkonian as a chastened Burress stood before him. "Is that what you want to do?" "Yes, sir," replied the subdued star, who returns to court Sept. 22 for his official sentencing. He's expected to begin his jail term the same day.

Once he reports to jail, Burress - if he avoids trouble behind bars — should serve about 20 months, said his lawyer, Benjamin Brafman.... Burress, whose deal included two years of probation, pleaded guilty to a reduced count of attempted criminal possession of a weapon....

Ex-Giants teammate Steve Smith, speaking at the team's Albany training camp, said he felt bad for Burress. "I think they wanted to set an example with him, which sucks," the fellow receiver said. "He didn't hurt nobody else."

Mayor Bloomberg, who had called for Burress to receive at least 3 1/2 years in jail, wouldn't second-guess the plea bargain deal. "I believe the laws should apply to everyone, and the district attorney should treat everyone the same," the mayor said in Queens. "You'll have to ask the district attorney whether or not he would have made the same deal with anybody."...

Brafman, outside court, said Burress decided to take the plea after an "agonizing period of discussions."  Burress "decided he wanted to put this behind him as quickly as possible," Brafman said. "This is a perfect example of how bad judgment sometimes has very bad consequences."

Brafman said Burress — who will leave a son and a pregnant wife behind when he goes to jail - intends to resume his football career after finishing his time. "I'm disappointed," Brafman said. "This breaks my heart."

Burress — who caught the game-winning touchdown in the Giants' 2008 Super Bowl win over the Patriots — testified before a grand jury last month in a "Hail Mary" attempt to beat the rap.  He was indicted on two counts of weapons possession and reckless endangerment.  The 6-foot-5 Burress had faced 3-1/2-to-15 years if convicted.

As regular readers know, I thought Burress should have been aggressively pressing a Second Amendment defense to these criminal charges.  That approach, however, would have produced a lot of uncertainty as to his fate, but it still seems to me worth pursuing.  But, with Burress surely having limited time to play pro football in light of his age, I suppose I understand his decision to seek a quick plea.  I have a hard time understanding, however, why Burress was unable to secure a better plea given data  (reported here around the time of his arrest) that nearly half off all persons who plead to the lesser charge of third-degree criminal possession of a weapon — a crime that has no mandatory sentence — did not serve any prison time.

I cannot help but wonder if the recent activity in the criminal cases involving Michael Vick and Donte Stallworth also played a role in Burress's decision to plead guilty.  Specifically, Vick served a lot more time in prison, and this fact likely played a role in the NFL's decision to let him resume playing football as soon as he was released.  Stallworth, in contrast, got a light sentence from the legal system, and the NFL followed up with a long ban from the league.

Some related posts on the Burress cases:

August 20, 2009 in Celebrity sentencings | Permalink | Comments (2) | TrackBack

Split Eighth Circuit discusses reasonableness review and cooperation discounts at length

The entire Eighth Circuit today in long opinions discusses the relationship between reasonableness review and substantial assistance discounts in US v. Burns, No. 04-2901(8th Cir. Aug. 20, 2009) (available here). All followers of federal sentencing discretion and review will want to find time to read all of Burns, though this unofficial summary from the Eighth Circuit opinion page provide an effective overview of the majority opinion:

[Judge Wollman, for the Court En Banc]  On remand from the Supreme Court for reconsideration of the court's en banc opinion in light of Gall v. United States.  For the court's panel opinion in the case, see United States v. Burns, 438 F.3d 826 (8th Cir. 2006). For the court's prior en banc opinion, see United States v. Burns, 500 F.3d 756 (8th Cir. 2007).  The government is under no obligation to apprise the district court with respect to the bases underlying its recommendation of a particular downward departure under 18 U.S.C. Sec. 3553(e) in the absence of a showing that the its recommendation was based upon an unconstitutional motive such as race or religion; Gall has not affected the limitations imposed by 18 U.S.C. Sec 3553(e) upon the district courts' authority to impose a sentence below the statutory minimum; the standard of appellate review laid down in Gall applies to the court's review of a sentence imposed under the provisions of 18 U.S.C. Sec. 3553(e); after putting aside all notions of exceptional/extraordinary circumstances, departure percentages, proportionality review and similar data-based standards of review, the question for the appellate court is whether the reduction granted the defendant is substantively unreasonable; here, the court could not say the sentence was unreasonable or an abuse of discretion, and it is affirmed.

Judge Bright, concurring, joined in part by Judge Bye.

Judge Colloton, dissenting, joined by Chief Judge Loken and Judges Riley and Gruender.

August 20, 2009 in Booker in the Circuits | Permalink | Comments (6) | TrackBack

"Priority Test: Health Care or Prisons?"

The title of this post is the headline of this effective op-ed from the pen of Nicholas D. Kristof in today's New York Times. Here are excerpts:

At a time when we Americans may abandon health care reform because it supposedly is “too expensive,” how is it that we can afford to imprison people like Curtis Wilkerson? 

Mr. Wilkerson is serving a life sentence in California — for stealing a $2.50 pair of socks.  As The Economist noted recently, he already had two offenses on his record (both for abetting robbery at age 19), and so the “three strikes” law resulted in a life sentence.

This is unjust, of course. But considering that California spends almost $49,000 annually per prison inmate, it’s also an extraordinary waste of money.

Astonishingly, many politicians seem to think that we should lead the world in prisons, not in health care or education. The United States is anomalous among industrialized countries in the high proportion of people we incarcerate; likewise, we stand out in the high proportion of people who have no medical care — and partly as a result, our health care outcomes such as life expectancy and infant mortality are unusually poor.

It's time for a fundamental re-evaluation of the criminal justice system, as legislation sponsored by Senator Jim Webb has called for, so that we’re no longer squandering money that would be far better spent on education or health....

Look, there’s no doubt that many people in prison are cold-blooded monsters who deserve to be there. But over all, in a time of limited resources, we’re overinvesting in prisons and underinvesting in schools.

Indeed, education spending may reduce the need for incarceration. The evidence on this isn’t conclusive, but it’s noteworthy that graduates of the Perry Preschool program in Michigan, an intensive effort for disadvantaged children in the 1960s, were some 40 percent less likely to be arrested than those in a control group.

Above all, it’s time for a rethink of our drug policy. The point is not to surrender to narcotics, but to learn from our approach to both tobacco and alcohol. Over time, we have developed public health strategies that have been quite successful in reducing the harm from smoking and drinking....

Opponents of universal health care and early childhood education say we can’t afford them. Granted, deficits are a real constraint and we can’t do everything, and prison reform won’t come near to fully financing health care reform. Still, would we rather use scarce resources to educate children and heal the sick, or to imprison people because they used drugs or stole a pair of socks?   

August 20, 2009 in Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Possibility of California sentencing commission continues to generate controversy

Those scholars who focus on sentencing issues disagree about plenty, but there tends to be consensus in the academic community that the creation of a sentencing commission can help a jurisdiction reform (or at least monitor) criminal justice law and practices effectively.  Yet, as revealed by this Sacramento Bee article, which is headlined "Sentencing panel sets off alarms," just the creation of a sentencing commission in California is controversial.  Here are the basics:

A package of money-saving prison measures that lawmakers will debate today includes creation of an appointed commission with broad powers to rewrite sentencing guidelines. The state's police chiefs and district attorneys associations slammed the sentencing commission proposal, saying it would give an unelected body authority to transform sentencing laws.

But Gov. Arnold Schwarzenegger, who usually sides with the police chiefs and district attorneys, backs the commission idea, said spokesman Aaron McLear....

The California Police Chiefs Association had supported [other prison and sentencing reforms] but will re-evaluate its stance after learning of the sentencing commission proposal, said the association president, Bernard Melekian, chief of the Pasadena Police Department.

Under the proposal, the commission would have until July 1, 2012, to establish new sentencing guidelines, which then would automatically take effect on Jan. 1, 2013, unless rejected by the Legislature and the governor.

The commission would include 13 voting members, including the chief justice of the California Supreme Court and eight others appointed by the governor. It also would have three nonvoting members, including an ex-felon selected by the speaker of the Assembly and a crime victim chosen by the governor.

Melekian said legislators hadn't told the association they were adding the sentencing commission until recently. Steinberg spokeswoman Alicia Trost disputed that, saying all the proposals had been discussed publicly for months. "We think that the fact that there's this commission that has to be overruled by the Legislature is a problem," Melekian said. "We think it's an abrogation of legislative authority."...

Earlier Wednesday, Schwarzenegger said he backed efforts to reform the state's prison system although he said he wouldn't touch California's tough "three-strikes" sentencing laws.  He had just toured parts of the California Institution for Men in Chino badly damaged in an Aug. 8 prison riot. McLear said the governor supported the sentencing commission because it would allow him to appoint the members, would have a majority of public safety members and "has teeth." "It's important that the commission would have real authority," McLear said. "We've been debating this for two years. It's time to act."

Informed readers should realize that the authority proposed for the new California commission is comparable to the powers exercised by the US Sentencing Commission.  Moreover, in light of the unpredictable (but predictably dysfunctional) politics of crime and punishment in California, a lot could and surely would happen between the creation of a California Sentencing Commission now and the development of new sentencing guidelines for implementation in three years.

UPDATE:  Kent Scheidegger in this post at Crime and Consequence showcases the political argument against creating a sentencing commission in California:

The purpose of this commission is to effectively disenfranchise the people of California on the subject of criminal sentencing by insulating most of the legislators from the wrath of the voters when our laws are softened and criminals are let loose to prey on us again.  The veto bills will be killed in committees by members from "safe" districts, and the legislators from competitive districts will be able to tell angry constituents they would have voted for the veto, but it never got to the floor....

Sentencing commissions allow philosopher kings to decide what is best for the people, whether they like it or not.

My initial response is to wonder whether Kent feels "disenfranchised" on the subject of federal sentencing and whether he thinks that the US Sentencing Commission is full of philosopher kings.  As indicated above, it appears that the proposed California commission's authority is modeled on the USSC's power structure.  My sense is that the USSC has been very attuned to political concerns and pressures, perhaps more so than might be healthy for effective development of sentencing law and policy.

Moreover, all objective measures — recidivism rates, budget economics, prison security and conditions —  suggest that California's politicians have so far done a very poor job on "the subject of criminal sentencing."  Unless and until Kent makes a full-throated case for the current California punishment and sentencing status quo, I have a hard time understanding his full-throated attack on the creation of a sentencing commission to try to make things better in California.

August 20, 2009 in Who Sentences | Permalink | Comments (9) | TrackBack

Compassionate release for Lockerbie bomber spotlights different visions of justice

As detailed in this New York Times article, headlined "Scotland Lets Lockerbie Bomber Return to Libya," a very high-profile terrorist is being shown compassion by Scotland:

The Scottish government announced Thursday that it was freeing the only person convicted in the Lockerbie bombing, permitting Abdel Basset Ali al-Megrahi, a 57-year-old former Libyan intelligence agent, to return home on compassionate grounds after serving 8 years of a 27-year minimum sentence on charges of murdering 270 people in Britain’s worst terrorist episode.

The decision to release him early on compassionate grounds was made against strenuous American opposition after Mr. Megrahi’s lawyers said he had little time left to live because he is suffering from terminal prostate cancer.  The announcement at a news conference by Scotland’s Justice Minister, Kenny MacAskill, came almost 21 years after a bomb smuggled onto Pan Am Flight 103 exploded at 31,000 feet over the Scottish town of Lockerbie on Dec. 21, 1988, killing 259 people on board and 11 on the ground.

Of the dead, 189 were Americans.  The Scottish decision was certain to provoke anguished protest from American families of the victims who had demanded that he serve his full sentence.  It was his decision, and his alone, Mr. MacAskill said, that Mr. Megrahi “be released on compassionate grounds and allowed to return to Libya to die.” “I have followed due process,” he said.

The White House said in a news release that it “deeply regrets” the Scottish decision. “We continue to believe that Megrahi should serve out his sentence in Scotland.”

Mr. MacAskill acknowledged that Mr. Megrahi “did not show his victims any comfort or compassion” and that they were not allowed to go home to their families. “No compassion was shown by him to them,” he said. “But that alone is not a reason for us to deny compassion to him.”...

He said Scottish law provided for release on compassionate grounds of prisoners with terminal illnesses whose life expectancy was less than three months. After receiving medical reports from prison doctors and others, he said it was clear that “he has a terminal illness and recently there has been a significant deterioration in his health.” “The three-month prognosis is a reasonable estimate. He may die sooner. He may live longer,” he said.

While he acknowledged that “the pain and suffering will remain forever” for the families of the victims, “our belief dictates that justice be served and mercy be shown.” Mr. MacAskill said Mr. Megrahi could be leaving within an hour from Scotland’s Greenock prison, and transferred to Glasgow airport to be flown home.  “I am conscious there are deeply held feelings and that many will disagree whatever my decision,” Mr. MacAskill said. “However, a decision has to be made.”...

Scottish authorities were braced for a hostile reaction from the Obama administration, which has vigorously opposed Mr. Megrahi’s release.  On Wednesday Secretary of State Hillary Rodham Clinton, said it would be “absolutely wrong” to release Mr. Megrahi.

Though federal law has a statutory provision for compassionate release in 18 USC § 3582(c), the application of this statute has been notoriously stingy (as recently detailed by Mary Prince in this recent Federal Sentencingt Reporter article).  As detailed in this ABA document, the US Sentencing Commission a few years ago issued new guidelines concerning the implementation of federal compassionate release rules.  But the reactions of the White House and the Secretary of State to Scotland's decision in this high-profile case spotlights that the concept of compassionate release is still not seriously embraced in the United States.

Some related posts:

August 20, 2009 in Sentences Reconsidered | Permalink | Comments (28) | TrackBack

August 19, 2009

California prison and sentencing reforms getting closer to reality

As detailed in this local article from California, "Democratic lawmakers and Republican Gov. Arnold Schwarzenegger are poised as soon as today to enact a package of far-reaching prison reforms that would allow some prisoners to serve the last 12 months of their sentences under house arrest, reclassify some property crimes from felonies to misdemeanors and create a new sentencing commission to examine how sentencing laws contribute to prison overcrowding."  Here are more details:

Altogether, the proposal would cut the prison population by 27,000 in the next year, saving $1.2 billion, and 37,000 in the next two years. Republican lawmakers strenuously object and assert the plan would put dangerous criminals back on the streets, but they appear to be powerless to stop it.

The Capitol is under enormous pressure to act. Two weeks ago, a panel of federal judges ordered the state to craft a plan that would slash the 165,000-inmate population by about one-quarter within two years to relieve what the judges called a dangerous level of overcrowding. And the state budget plan the governor signed late last month included $1.2 billion in unspecified cuts to corrections; this proposal would realize those savings, proponents say.

To overcome GOP opposition, Democrats say they will pass the prisons package on a majority instead of a two-thirds vote. Although doing so means the plan would not take effect for 90 days, the governor's staff and Democrats say any erosion of savings would be minimal. Many ideas in the plan came from the governor, and Schwarzenegger has signaled he will sign it into law.

Some recent related posts:

August 19, 2009 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Split Massachusetts high court strikes down retroactive GPS tracking for probationers

As detailed in this Boston Globe story, in Massachusetts yesterday a "divided Supreme Judicial Court ruled yesterday that sex offenders convicted before 2006 cannot automatically be forced to wear GPS devices because it creates an unconstitutional burden on their freedom."  Here are the basics and how the decision has been received:

In a 4-to-3 decision, the court said a 2006 law mandating GPS devices on all sex offenders placed on probation cannot apply retroactively.

Ruling in the case of a Bristol County sex offender convicted in 1997, the majority said public safety must give way to constitutional protections against government intrusion into citizens’ lives, including those of sex offenders. “The GPS device burdens liberty in two ways: by its permanent, physical attachment to the offender, and by its continuous surveillance of the offender’s activities," Justice Margot Botsford wrote for the majority.

The decision, which forced judges to weigh child protection against constitutional rights, outraged law enforcement officials and a Beacon Hill lawmaker. “If there is even one individual that is not required to be monitored, and that individual reoffends, which is likely the case, that is one too many,’’ said state Representative Karyn E. Polito, a Shrewsbury Republican who sponsored the law. “There are too many instances where a child is harmed that shouldn’t be.’’

The full ruling in Massachusetts v. Cory, No. SJC-10314 (Mass. Aug 18, 2009), is available at this link [NOW FIXED thanks to a helpful reader and the folks at the NC Criminal Law blog].

August 19, 2009 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Dershowitz says Davis opinion shows "Scalia's Catholic Betrayal"

The title of this post notes the headline of this new piece at the Daily Beast from the pen of Alan Dershowitz. Though I find it a bit odd that a famous Jewish law professor would be lecturing a famous Catholic Associate Justice about Catholicism, I am not too surprised that Dershowitz could not resist going after Justice Scalia for his work in the recent Davis decision.  Here are snippets from the provocative piece:

I never thought I would live to see the day when a justice of the Supreme Court would publish the following words:

“This court has neverheld that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”

Yet these words appeared in a dissenting opinion issued by Justices Antonin Scalia and Clarence Thomas on Monday....

It would be shocking enough for any justice of the Supreme Court to issue such a truly outrageous opinion, but it is particularly indefensible for Justices Scalia and Thomas, both of whom claim to be practicing Catholics, bound by the teaching of their church, to do moral justice.  Justice Scalia has famously written, in the May 2002 issue of the conservative journal First Things, that if the Constitution compelled him to do something that was absolutely prohibited by mandatory Catholic rules, he would have no choice but to resign from the Supreme Court....

Surely it is among the worst sins, under Catholic teaching, to kill an innocent human being intentionally. Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution....

[W]hatever the view of the church is on executing the guilty, surely it is among the worst sins, under Catholic teaching, to kill an innocent human being intentionally.  Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution. How could he possibly consider that not immoral under Catholic teachings?  If it is immoral to kill an innocent fetus, how could it not be immoral to execute an innocent person?

Ordinarily I would not include a justice's religious views in a criticism of a judicial opinion, but with regard to capital punishment, it is Justice Scalia who has introduced the religious dimension. I am simply trying to hold him to his own published standards.

I am not a Catholic, yet I teach principles of Catholic morality in my Harvard Law Schoolfreshman seminar, “Where Does Your Morality Come From?” I hereby challenge Justice Scalia to a debate on whether Catholic doctrine permits the execution of a factually innocent person who has been tried, without constitutional flaw, but whose innocence is clearly established by new and indisputable evidence....  Although I am neither a rabbi nor a priest, I am confident that I am right and he is wrong under Catholic Doctrine.  Perhaps it takes chutzpah to challenge a practicing Catholic on the teachings of his own faith, but that is a quality we share.

I invite him to participate in the debate at Harvard Law School, at Georgetown Law School, or anywhere else of his choosing. The stakes are high, because if he loses — if it is clear that his constitutional views permitting the execution of factually innocent defendants are inconsistent with the teachings of the Catholic Church — then, pursuant to his own published writings, he would have no choice but to conform his constitutional views to the teachings of the Catholic Church or to resign from the Supreme Court.

Also riffing on Justice Scalia's work in Davis in the Daily Beast is LawProf Paul Campos, whose piece here is titled "Scalia's Death Row Lunacy."

Related Davis ruling posts:

August 19, 2009 in Death Penalty Reforms | Permalink | Comments (27) | TrackBack

Yet another district judge formally adopts 1-to-1 crack/powder sentencing ratio

As detailed in this effective local article, a federal judge in Pennsylvania has now "said 'sound policy reasons' — including the new stance of the Justice Department — led him to reject long-established guidelines for sentencing crack-cocaine defendants."  Here are more basics from the article:

Senior U.S. District Judge Maurice B. Cohill Jr. characterized the guidelines as unfair.... Cohill rejected the crack-cocaine guidelines for two defendants, whom he sentenced in Erie Aug. 4. He issued two nearly identical written opinions on Thursday that detailed his reasoning.

The chief federal prosecutor in Erie, Assistant U.S. Attorney Marshall Piccinini, told Cohill last week that the guidelines were meant to consider the intense high and craving that crack cocaine brings compared to powder cocaine. As Cohill said in his written decisions, the guidelines also assumed that violence accompanied the trafficking of crack.

Piccinini said his office would file no motions objecting to Cohill's decision in the crack cases.

The rulings referenced here came in US v. Owens and US v. Russell, and here is how the Russell decision (which is uploaded below) gets started:

Defendant Cleotis Eugene Russell, Jr. appeared before this Court for resentencing on August 4, 2009.  At Mr. Russell’s original sentencing hearing on November 28, 2007, I rejected Mr. Russell’s request to vary from the guideline range based on the imbalance in sentencing between crack and powder cocaine.  The United States Court of Appeals for the Third Circuit remanded this case for resentencing because the United States Supreme Court in Kimbrough v. United States, 128 S. Ct. 558 (2007) and Spears v. United States, 129 S.Ct. 840 (2009), effectively overruled United States v. Ricks, 494 F.3d 394 (3d Cir. 2007), a case I relied upon in rejecting Mr. Russell’s request for a variance.  At resentencing I applied a 1-to-1 crack-to-powder ratio, an approach to sentencing in crack cocaine cases which I intend to apply in all future crack cocaine sentencings. I write this Opinion to explain my reasons for this.

Download Russell crack opinion

Some recent related posts:

August 19, 2009 in Booker in district courts | Permalink | Comments (1) | TrackBack

Oklahoma legislator pushing death penalty for repeat sex offender

Though I read the 2008 Supreme Court decision in Kennedy as suggesting that the death penalty is always constitutionally disproportionate for non-murder personal crimes, it seems that some state legislators still view capital punishment for certain sex offenders as a possibility.  Specifically, as detailed in this local piece, which is headlined "Debate Continues Over Death For Sex Offenders," at least one Oklahoma legislator is not willing to give up on death as a possible punishment for repeat sex offenders:

The debate over whether the death penalty should be an option for repeat sex offenders is heating up. One state lawmaker says yes and that he plans to introduce a bill to make it happen. But, not everyone is on board.

The move comes after the recent arrest of Marcus Berry, a twice-convicted sex offender who is now being held in the Tulsa County Jail on a million dollars bond for allegedly abducting a two-year-old girl from her front yard.

Many people are asking how can a man who has two convictions for lewd molestation still be out on the streets? Being taken away in handcuffs isn't something new for the 56-year-old, who was convicted of lewd or indecent acts or proposals to a child in 1986 and lewd molestation in 1993. On that 1993 conviction, Berry served less than 13 years of a 30-year sentence before being released.

Just last week, Berry was arrested after police found his truck in a field. Inside, police say Berry was found with his pants down. Next to him -- a partially dressed two-year-old girl he allegedly kidnapped from her home.

State Representative Rex Duncan wants to make sure that never happens again. "As a father of daughters, this just screams out for some change, something different," Duncan says. "This guy is the Willy Horton of child rapists, child molesters.  And, it should never have happened."

Duncan wants to make it tougher for sex offenders. His legislation would set the penalty for a first-time sex offender at life without parole. Prosecutors would be able to seek the death penalty for a second conviction.  "They need to die in prison so that Oklahoma families and parents will have the peace of mind and confidence to know that a Marcus Berry will never walk the streets again," Duncan says.

A similar bill passed in Oklahoma in 2006, but was shot down by the Supreme Court a year later. Duncan says his bill would be much more specific than that bill and thinks it would be upheld by the Supreme Court.

When the Supreme Court took up the Kennedy case, I was disappointed that the Justices were to consider the constitutionality of capital punishment for child rape in the context of a first offender rather than a repeat child rapist.  Though I do not read the majority opinion in Kennedy as allowing different constitutional treatment of recidivist offenders, other Eighth Amendment rulings clearly support the concept that a punishment which would be unconstitutional for a first offender might be permissible for a repeat offender.  Thus, perhaps what is being debated in Oklahoma is not so constitutionally crazy.

August 19, 2009 in Sex Offender Sentencing | Permalink | Comments (12) | TrackBack

Stressing the importance of sentencing explanations by district courts

In a unpublished Sixth Circuit opinion today in US v. Herrod, No. 07-2197 (6th Cir. Aug. 19, 2009) (available here), Judge Clay writes an extended and effective concurrence stressing the importance of district judges explaining their sentencing rulings fully after Booker.  Here are excerpts:

The majority rejects Herrod’s claim, concluding that the sentence imposed by the district court was procedurally reasonable.  While I agree with the majority’s conclusion that the district court’s sentencing pronouncement was sufficient, I write separately on this particular issue to emphasize that sentencing judges are responsible for providing an adequate record for appeal.  Our case law imposes this obligation on district courts for reasons of fairness and practicality.  From every perspective, it is preferable for district courts to explicitly address every nonfrivolous argument raised by a defendant.  Expressly articulating the grounds for rejecting the particular claims raised by a defendant, at least with respect to a defendant’s nonfrivolous arguments, promotes several critical goals: (1) it provides the defendant with a clear understanding of the basis for his or her sentence; (2) it allows the public to understand the rationale underlying the chosen sentence; and (3) it helps this Court avoid the difficulties of parsing the sentencing transcript when determining whether the district court in fact considered the defendant’s arguments.  In fact, if district courts fully complied with this obligation, many frivolous appeals and clarification remands could be avoided....

[I]t is not enough that the district court considerthe parties’ nonfrivolous arguments, it also must explain on the record its reasons for accepting or rejecting such arguments.  Requiring district courts to articulate their reasoning on the record is critical, otherwise the transcript would be devoid of any evidence that the district court in fact considered the parties’ arguments, let alone ruled on those issues.  Absent such a public statement, this Court would be forced to make inferences and guess at what arguments and sentencing factors the district court actually considered when determining a defendant’s sentence, something we repeatedly have expressed disdain for doing.

Some related posts:

August 19, 2009 in Booker in the Circuits | Permalink | Comments (2) | TrackBack

August 18, 2009

A great new blog for resources on criminal informants, aka snitches

CrimProf Alexandra Natapoff has done ground-breaking work on criminal informants in articles and a book, and I am pleased to learn that she has now brought her expertise to the webvia a new blog called Snitching Blog.   An introductory post here provides details of the project:

Snitching Blog is about a part of our criminal system that most people know little or nothing about: criminal informants, or snitches.  At any given moment, thousands of informants are trying to work off their own criminal liability by giving information to the government. These informants may be in court, in prison, on the street, or in the workplace.  Police and prosecutors often rely heavily on information obtained from snitches — especially in drug enforcement but also in white collar crime, organized crime, and terrorism investigations.  In fact, it is impossible to fully understand the U.S. legal system without understanding snitching.  Nevertheless, there is very little public information available about this important public policy.  That's where Snitching Blog comes in.

This blog does a bunch of things.  It discusses how snitching works — on paper and in reality. It provides resources to individuals, lawyers, law enforcment, and legislators — check out the links on the left.  It covers current events and news stories. And it lets you share your own experiences by posting a "Testimonial" — click on the link at the right.

Looks like I have another regular must-read to add to my blog browsing, especially since so many big sentencing cases have a snitching element.  For example, Sasha has this recent post on the Troy Davis case, titled "Troy Davis Gets a Hearing — Recantation Redux."

August 18, 2009 in On blogging | Permalink | Comments (2) | TrackBack

"Criminals 'could be spared jail if they are a parent'"

The title of this post is the provocative headline of this provocative article coming from across the pond.  Here are the details:

Criminals could be spared jail if they are a parent, Scotland's new children's tsar said today.

Children's Commissioner Tam Baillie said judges should consider the impact of prison on an offender's children before deciding whether to lock them up. Sheriffs and judges should have a statutory obligation to take the human rights of an accused's children into account, said Mr Baillie. And the existence of children could "tip the balance" in cases where there is a close decision between a custodial and community sentence.

He said he hopes the forthcoming Criminal Justice Bill will include an amendment, with children's rights added as a factor which must be taken into consideration along with previous convictions. He has reportedly met with justice secretary Kenny MacAskill to discuss the matter.

Mr Baillie told The Herald newspaper today: "The bill has a list of factors which have to be taken into account before sentencing, such as previous convictions, and I think there is the potential to add this to that list. "It is not that it determines the sentence, but in cases where there is a close decision between custody and community, it might be the thing which tips the balance."

He added: "There still has to be the administration of justice but it would help in future if there was more information fed to the courts at the time of sentencing about the impact it will have on children – in particular where the decision is on a knife edge."

The role of the Children's Commissioner is to ensure Scotland fulfils its obligations under the United Nations Convention on the Rights of the Child.

Federal sentencing gurus know that the federal sentencing guidelines include a specific policy statement asserting that "family ties and responsibilities are not ordinarily relevant in determining whether a departure may be warranted."  And, before Booker, whether and when extraordinary parental responsibilities could and should provide a basis for a departure was hotly debated in caselaw.  After Booker, I surmise parental responsibilities sometimes plays a role in sentencing outcomes, though rarely is this role now formally discussed or debated much.

August 18, 2009 in Offender Characteristics | Permalink | Comments (7) | TrackBack

Another notable reversal of a high-profile, white-collar conviction

Though only a little bit of a sentencing story, all white-collar crime folks should be interested in this news out of the Ninth Circuit (via this piece in The Recorder):

The 9th U.S. Circuit Court of Appeals has thrown out Gregory Reyes' conviction for stock option backdating while he was CEO at Brocade Communications Inc. The court ruled that Assistant U.S. Attorney Adam Reeves committed prosecutorial misconduct by saying during closing argument that the entire Brocade finance department was ignorant of the fraud.  "In representing the United States, a federal prosecutor has a special duty not to impede the truth," wrote Judge Mary Schroeder.  Judges Stephen Reinhardt and Louis Pollak, sitting by designation, concurred.

The court also upheld the conviction of Brocade HR director Stephanie Jensen, but remanded for resentencing, saying U.S. District Judge Charles Breyer should not have increased her sentence due to obstruction of justice by her attorney.

The full panel opinion in US v. Reyes is available at this link, though the make-up of the panel makes me wonder whether this case might get en banc review.

UPDATE:  Ellen Podgor comments on the Reyes ruling in this post at the White Collar CrimProf Blog.

August 18, 2009 in White-collar sentencing | Permalink | Comments (3) | TrackBack

Second Circuit panel advocates "more flexible approach" to tough guideline determinations

In an intriguing and potentially very important little ruling today, a (two-judge) panel of the Second Circuit in US v. Dharfir, No. 05-5965 (2d Cir. Aug. 18, 2009) (available here), endorses and seems to urge district judges to adopt a "more flexible approach" to the guidelines when sentencing in cases involving "ambiguous circumstances."  Because of its potential impact in lots of settings, Dharfir should be read in full by folks both inside and outside the Second Circuit.  Here is some of the key language:

Given these ambiguities and the contradictory positions the government took at trial and at sentencing, we believe the judge overlooked another permissible approach under our post-Booker jurisprudence.  In United States v. Crosby, 397 F.3d 103, 112 (2d Cir. 2005), we stated that “precise calculation of the applicable Guidelines range may not be necessary [in making a sentencing determination]. . . . [S]ituations may arise where either of two Guidelines ranges, whether or not adjacent, is applicable, but the sentencing judge, having complied with section 3553(a), makes a decision to impose a non-Guidelines sentence, regardless of which of the two ranges applies.”  “This leeway,” we wrote, “should be useful to sentencing judges in some cases to avoid the need to resolve all of the factual issues necessary to make precise determinations of some complicated matters, for example, determination of monetary loss.” Id; see also United States v. Cavera, 550 F.3d 180, 190 4 (2d Cir. 2008) (en banc) (stating that omission of the Guidelines calculation may sometimes be justified, citing Crosby); see also Cavera, 550 F.3d at 200 n.4 (Raggi, J., concurring) (explicitly reaffirming Crosby’s approach in this regard).

The factual ambiguities in this case present just these circumstances.  The district court was correct that choosing § 2S1.1(a)(2) rather than § 2S1.1(a)(1) would avoid the odd result that Dhafir would receive a lower sentence if the laundered money was “criminally-derived” than if it was “legally-obtained.”  But post-Booker, there was no need for the district judge to pigeonhole the case into § 2S1.1(a)(2) to avoid an illogical result and run the risk of setting a bad precedent; indeed, there was no need for him to choose between the two at all.  We reiterate here that the district court is not bound in ambiguous circumstances such as these to choose one Guidelines range in particular, and is free to take the more flexible – and often, more direct – approach of arriving at a more appropriate sentence outside the Guidelines.  In light of Booker, the judge could simply look at all of the facts, take both suggestions into account, consider the § 3553(a) factors, and come up with a “hybrid” approach if he so chose.

We do not hold that the district court erred in determining that the appropriate Guidelines provision was § 2S1.1(a)(2) or that the sentence was unreasonable; we remand only to permit the district court to consider whether a different sentence would result from the application of this more flexible approach.

As a general matter, I always thought the Crosby court was wise to permit the occassional guideline-calculation dodge as part of proper post-Booker sentencing.  And yet, I am not sure such a dodge is fully consistent with the post-Booker Supreme Court rulings in Rita and Gall, though obviously this Second Circuit panel still thinks "this more flexible approach" is a permissible (and perhaps even a prefered) way to deal with tough guideline disputes.  I'd be very interested to hear when federal sentencing litigants think.

August 18, 2009 in Booker in the Circuits | Permalink | Comments (5) | TrackBack

"Supreme Court's Davis Ruling Raises New Death-Penalty Questions"

The title of this post is the headline of this very effectice piece on the Supreme Court's Davis decision from Time.   The start and end of the piece capture a lot of the dynamic and challenging issues and questions that flow from the Supreme Court's work yesterday:

Under normal circumstances, it takes a case of national importance to rile the Supreme Court during its summer recess.  But in the words of an old axiom of capital punishment, "death is different."  And so, on a sleepy mid-August Monday, Aug. 17, the court — over a strong dissent — dusted off an antique tool, unused for nearly half a century, to force a new hearing into the slow-rolling fate of a Georgia death-row prisoner named Troy Davis.  In the process, the court has opened up new questions about the death penalty: most crucially, how far the courts must go to ensure that an innocent man — as a wide array of politicians, former prosecutors and judges contend Davis is — is not executed....

Among the questions: Is the district judge advising the Supreme Court on how to handle the Davis case, or is the matter now formally in the district court again?  Do the three silent Justices, who signed neither opinion — Chief Justice John Roberts and Justices Anthony Kennedy and Samuel Alito — have a shared view of this unusual action?  (Newly sworn-in Justice Sonia Sotomayor did not participate in the case.)  Is this step a prelude to an official determination that the Constitution forbids the execution of an innocent prisoner, a seemingly obvious assumption that has never been formally declared?  If so, what new filters of trial procedure and judicial review will have to be installed to reach that level of certainty and perfection?  In his dissent, Scalia wrote, "This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."

The court's August eruption highlights once again the fundamental screwiness of America's death penalty.  In the marble halls of our rational humanity, we demand absolute clarity and justice.  As one of the many judges who has reviewed Davis' case puts it, "I do not believe that any member of a civilized society could disagree that executing an innocent person would be an atrocious violation of our Constitution and the principles upon which it is based." But most murders don't happen in the precincts of the rational or the just.  They happen on the late-night mean streets, where truth is often a figment, and memory is as slippery as the greasy pavement.

Related Davis ruling posts:

August 18, 2009 in Death Penalty Reforms | Permalink | Comments (9) | TrackBack

Supporting a plan that would involve "opening California cell doors"

The Los Angeles Times this morning has this new op-ed that makes arguments in support of cutting California's prison population.  The title and subtitle of this piece highlights its basic themes: " Opening California cell doors can free up needed budget money: Rather than playing to fears that dangerous criminals will be released, state officials should be explaining that a court order to reduce the prison population dovetails with the need to cut costs."  Here are excerpts:

Nearly three years ago, Gov. Arnold Schwarzenegger finally recognized the "conditions of extreme peril" in his state's prisons and declared a state of emergency.  Since then, though, he has done little more to address the problem than to blame the Legislature.  The Legislature, a remarkably fractious, undisciplined and unprincipled body by any measure, in turn has proved effective at blocking good ideas to reduce the prison population — and ineffective at approving any.

So it has been up to the courts.  The genius of the country's founders was to create a system that authorizes federal courts to act when the executive and legislative branches acquiesce — through sins of omission or commission — to blatant constitutional violations.

The court's decision that the state must cut its prison population by 40,000 over two years comes at a propitious moment.  Because of the unprecedented budget crisis, the state must reduce its expenditures — among which prison costs figure greatly.  The fiscal imperative of cutting corrections expenditures thus dovetails with the constitutional imperative of reducing overcrowding.  Reducing the prison population will also free up resources needed to improve medical and mental healthcare and for expanding cost-effective, community-based rehabilitation programs that will in turn help reduce the prison population even further.

Unfortunately, Atty. Gen. Jerry Brown, eyeing a possible run for governor, talks of appealing the federal judges' decision.  That would be foolish.  He should sit down with corrections officials, legislators and other stakeholders to help map out sensible ways to meet the court's order — the court left it up to the state to determine how best to cut the population; for example, by keeping more low-level nonviolent offenders out of prison and by releasing the elderly and disabled.

Instead of pandering to the public's fears, Brown and other state officials should explain that the court order does not mean that dangerous murderers and rapists will be released. Instead, a smaller prison population will enhance community safety, as well as meet the dictates of the U.S. Constitution, common sense and fiscal responsibility.

Some recent related posts:

August 18, 2009 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

"Sotomayor on losing end in Ohio man's death appeal"

The title of this post is the headline of this AP article detailing what appears to be Justice Sotomayor's first notable vote in what appears to be the last legal hope for an Ohio death-row defendant. Here are the basics:

Sotomayor made what appears to be her first public decision as a justice on Monday, voting unsuccessfully to delay the execution of an Ohio death row inmate.  She voted along with the court's liberal bloc — Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer — to stop the execution of Jason Getsy, whose execution is Tuesday.

In related news, the Sixth Circuit yesterday refused to consider the Getsy case en banc, though the order to that effect, which is available here, included a number of notable dissents.

UPDATE:  This AP article reports that the state of Ohio executed Jason Getsy on Tuesday morning, apparently without any obvious problems relating to Ohio's lethal injection protocol:

Getsy tilted his head to the left and appeared to smile at his aunt and uncle and spiritual adviser before his eyes closed at about 10:19 a.m. His chest rose and fell three times and then he was still.  "Sleep my friend, sleep," said Saundra Cardillo, the wife of Getsy's spiritual adviser.

Warden Phillip Kerns shook Getsy and called his name to see if he was unconscious, as part of prison policy when putting inmates to death.  A member of the execution team re-entered the death chamber and checked the shunts on both arms after the administration of the first drug, which puts inmates to sleep, also part of prison policy.

August 18, 2009 in Death Penalty Reforms | Permalink | Comments (6) | TrackBack

What can and should we take away from the "trial" of Texas Judge Sharon Keller?

I have not closely followed the controversy surrounding Texas Court of Criminal Appeals Judge Sharon Keller because I have never been confident that her actions on the day the Supreme Court granted cert in the Baze lethal injection case — or the vocal complaints about her actions that day — reflected anything more than the usual sturm und drang that surrounds the death penalty in Texas.  Nevertheless, the controversy rages on, as evidenced by this New York Times report on the start of Judge Keller's "trial" yesterday:

The highest-ranking criminal judge in Texas, the woman who presides over the most active execution chamber in the country, sat at a defense table on Monday to face charges of intentionally denying a condemned man access to the legal system.

The judge, Sharon Keller of the Texas Court of Criminal Appeals, took her seat before a gallery crowded with bloggers, lawyers and death penalty protesters.  Outside the courthouse, demonstrators called for her ouster. Inside, lawyers on both sides emphasized that capital punishment was not on trial. 

But to some, Judge Keller has come to embody the practice.  An intensely private former member of the Dallas County District Attorney’s Office, she won election to the court in 1994 and to the post of presiding judge in 2000. She has cultivated a reputation for rulings favorable to the prosecution in death penalty cases.

On Sept. 25, 2007, Judge Keller put in a 10-hour workday and went home around 4 p.m. to meet a repairman. That morning the United States Supreme Court had effectively suspended lethal injection as a manner of execution by accepting a challenge to its constitutionality in a Kentucky case. Largely on the basis of the justices’ action, lawyers for a Texas death row inmate were putting together an appeal to stave off execution. An assigned duty judge was waiting at the courthouse for any last-minute appeal on the inmate’s behalf.

Around 4:45 p.m., the general counsel of Judge Keller’s court called her to relate a request to file paperwork after 5 p.m., the usual closing time for the court clerk’s office. Judge Keller replied that the clerk’s office closed at 5 p.m. A few hours later, the inmate was executed.

As the story behind the execution spread, defense lawyers, editorial boards and legislators called for Judge Keller’s removal. In February, the State Commission on Judicial Conduct filed formal charges. The case was assigned to a special master, Judge David Berchelmann Jr. of the district court here in Bexar County, for the civil fact-finding proceeding that opened Monday.

In written arguments, the commission contends that Judge Keller circumvented normal procedures, which provide for after-hours appeals in capital cases. Judge Keller responds that the lawyers for the inmate, Michael Richard, a convicted murderer who made no claim of innocence, should have filed their paperwork with the assigned duty judge rather than trying to go through the clerk’s office.

The trial, expected to last most of the week, promises to unfold as a finely wrought dance around the details of an afternoon’s timeline.....

A lawyer for Judge Keller, Charles L. Babcock, argued that the entire case amounted to a few innocent, misunderstood words spoken on the telephone. “Judge Keller is an honorable, competent, popularly elected judge who believes in and follows the rule of law,” Mr. Babcock said.

As suggested by the title of this post, I am not sure what to take away from the trial of Judge Keller.  I am sure, however, that Scott at Grits for Breakfast is likely to provide a sober and shrewd perspective on this case.  Consider, for example, this post at Grits, titled "Sharon Keller misconduct trial more about judicial activism than the death penalty."

August 18, 2009 in Who Sentences | Permalink | Comments (15) | TrackBack

August 17, 2009

The re-leaunch of CrimProf blog

I am pleased to be able to report on an exciting new development in the climinal law blogosphere. Here is the news (with links) from an e-mail I received today from Professor Kevin Cole:

My CrimProf colleagues here at the University of San Diego School of Law — Larry lexander, Don Dripps, Yale Kamisar, Adam Kolber, and Jean Ramirez — and I are happy to report that we have re-launched the CrimProf blog.  You can find our introductory post here and can access the entire site at http://lawprofessors.typepad.com/crimprof_blog/.

We hope to continue the efforts of the blog’s previous editors to make this site a valuable resource for criminal law and procedure teachers.  Please send comments and content suggestions to crimprofblog@gmail.com.

If you would like to receive daily email updates about new postings on the blog, you can “subscribe” by going to the blog at http://lawprofessors.typepad.com/crimprof_blog/ and entering your email address in the column at the left under the heading “News Readers and Feeds."

The "new" CrimProf blog already has lots of new content, including links to lots of new criminal law papers appearing on SSRN.  I made a regular habit of checking the "old" CrimProf blog, and now I suspect that site will be a daily must-read.

August 17, 2009 in On blogging | Permalink | Comments (2) | TrackBack

How many justices decided death and innocence (and original habeas) are different in Davis?

The law geek in me is having a hard time thinking about my upcoming classes because I am so taken by the Supreme Court's fascinating little ruling this morning (discussed here), which addresses the "original" habeas petition In re Troy Davis, No. 08–1443 (S. Ct. Aug. 17, 2009) (ruling available here).  And, as explained below, I have lots and lots of follow-up questions. 

First, consider Kent's effective comments at C&C about the Davis procedural posture:

And now, for something completely different... The U.S. Supreme Court and its individual Justices have the jurisdiction to issue "original" writs of habeas corpus -- "original" in the sense that the petitioner applies directly to the Supreme Court for relief, as opposed to applying to a lower court and then appealing the denial....

The Court used this jurisdiction in the nineteenth century to review cases it had no other way to review, but the power pretty much gathered dust in the twentieth century and, until today, in the twenty-first.  Term after term, every Monday orders list has had one-liner denials of original habeas petitions.... And now comes Troy Davis.

In other words, Fed Court fanatics ought to be excited (or at least intrigued) that SCOTUS has dusted off and made use of its unique "original" powers in this case.  But, dear readers, have these powers been used for good or for mischief?

Second, consider the Court's formal two-sentence ruling in Davis:

The petition for a writ of habeas corpus is transferred to the United States District Court for the Southern District of Georgia for hearing and determination.  The District Court should receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence.

By virtue of this ruling, Fed Court fanatics ought to be excited (or perhaps puzzled) that SCOTUS has ordered a US district court to receive testimony and find facts as to whether Troy Davis, based on "evidence that could not have been obtained at the time of trial," can now "clearly establish[ his] innocence."  But does SCOTUS have the inherent power to make district courts do its "original" work?  On the merits, does Davis has to prevail by a preponderance or by clear and convincing stanard or some other burden of proof?  And will SCOTUS immediately review the "findings of fact" it has ordered or will the Eleventh Circuit take the first "appeal" in this "original" habeas matter?

Third, consider the final paragraph of Justice Scalia's dissent from the ruling in Davis:

Today, without explanation and without any meaningful guidance, this Court sends the District Court for theSouthern District of Georgia on a fool’s errand.  That court is directed to consider evidence of actual innocence which has been reviewed and rejected at least three times, and which, even if adequate to persuade the District Court, cannot (as far as anyone knows) form the basis for any relief.  I truly do not see how the District Court can discern what is expected of it.  If this Court thinks it possible that capital convictions obtained in full compliance with law can never be final, but are always subject to being set aside by federal courts for the reason of “actual innocence,” it should set this case on our own docket so that we can (if necessary) resolve that question.  Sending it to a district court that “might” be authorized to provide relief, but then again “might” be reversed if it did so, is not a sensible way to proceed.

As a matter of pure procedure, I think Justice Scalia makes some strong points.  But only Justice Thomas joined his dissent.

Fourth, consider the final paragraph of Justice Stevens' concurrence in the ruling in Davis:

JUSTICE SCALIA would pretermit all of these unresolved legal questions on the theory that we must treat even the most robust showing of actual innocence identically on habeas review to an accusation of minor procedural error.  Without briefing or argument, he concludes that Congress chose to foreclose relief and that the Constitution permits this.  But imagine a petitioner in Davis’s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man.  The dissent’s reasoning would allow such a petitioner to be put to death nonetheless.  The Court correctly refuses to endorse such reasoning.

As a matter of pure substance, I think Justice Stevens is reasonable to assert that neither Congress nor the Constitution mean to permit the execution of a once-properly-convicted, but now-obviously-innocent defendant.  But only Justices Ginsburg and Breyer joined this concurrence (and we are told that Justice Sotomayor did not participate in the case).

In short, three Justices made clear via Justice Stevens' opinion that they view death as a punishment and innocence as a claim (and original petitions as a vehicle) to be different in a way that justified the Court's peculiar ruling in this case.  Meanwhile, two Justices made clear via Justice Scalia's opinion that they do not view death as a punishment and innocence as a claim to be different so as to justify the Court's  peculiar (and cursory) ruling in this case.

A big question then remains:  what's up with the other three Justices (aka Chief Justice Roberts and Justices Kennedy and Alito)?  Notably, this troika is made up of the three (swing?) Justices who established the middle-ground position that the Supreme Court adopted in the Baze lethal injection case. 

Based on past votes in tough capital cases, I'd guess that Justice Alito found Justice Scalia's opinion attractive, and that Justice Kennedy was drawn to Justice Stevens' opinion.  But neither put their names on an opinion.  And, because I suspect that the Chief Justice's vote may have been influenced mostly by how the Davis case would reflect on the Court as an institituion, I have a strange feeling that he may have been centrally involved in the decision to punt this matter to the district court.

August 17, 2009 in Sentences Reconsidered | Permalink | Comments (15) | TrackBack

"The Emerging Criminal War on Sex Offenders"

The title of this post is the title of this new article on SSRN from Corey Rayburn Yung (who also runs the terrific blog Sex Crimes).  Here is the abstract for Corey's new piece:

This article addresses four central questions.  First, what is the difference between normal law enforcement policy and a “war” on crime?  Second, assuming such a line can be discerned, has the enactment of the Adam Walsh Child Protection and Safety Act (“AWA”) in combination with other sex offender laws triggered a transition to a criminal war on sex offenders?  Third, if such a criminal war is emerging, what will be the likely effects of such a transition?  Fourth, if such a criminal war is emerging with substantial negative consequences, can it be stopped?

By reviewing America’s history of criminal wars, primarily in the War on Drugs, the article identifies three essential characteristics of a criminal war: marshaling of resources, myth creation, and exception making.  It concludes that the federalization of sex offender policy brought about by the AWA elevated law enforcement to a nascent criminal war on sex crimes.  This change could have repercussions as substantial as the drug war has had on American criminal justice and society.

August 17, 2009 | Permalink | Comments (3) | TrackBack

SCOTUS orders innocence hearing in Troy Davis case

The Supreme Court is making some rare summer news this morning through a ruling in a high-profile capital case.  Here are the basic details from this SCOTUSblog postby Lyle Denniston:

The Supreme Court, over two Justices’ dissents, on Monday ordered a federal judge in Georgia to consider and rule on the claim of innocence in the murder case against Troy Anthony Davis (In re Davis, 08-1443)  The Court told the District Court to “receive testimony and make findings of fact as to whether evidence that could have been obtained at the time of trial clearly establishes [Davis'] innocence.”

Justices Antonin Scalia and Clarence Thomas dissented, and some of their arguments were answered in a separate opinion by Justice John Paul Stevens, joined by Justices Stephen G. Breyer and Ruth Bader Ginsburg.   The new member of the Court, Justice Sonia Sotomayor, took no part in the Court’s action.

The action was highly unusual, because Davis had filed what is called an original writ of habeas corpus — that is, a plea for his release, filed directly in the Supreme Court rather than in lower courts.  Justice Scalia noted in his dissent that the Court had not taken a similar step “in nearly 50 years.” The original writ, petition for certiorari, brief in opposition, and amici filings can be downloaded here.

The action also was unusual because the Court normally does not take actions of this significance during its summer recess....

The Court’s order and Justice Stevens’ separate opinion can be downloaded here. Justice Scalia’s dissent is available here.

The AP has this report on the ruling, which is headlined "Supreme Court says Georgia man should get hearing."

August 17, 2009 in Death Penalty Reforms | Permalink | Comments (17) | TrackBack

August 16, 2009

Is Illinois's new internet ban for sex offenders constitutional?

As detailed in this Chicago Tribune report from last week, Illinois " Gov. Pat Quinn signed new laws Tuesday designed to limit sex offenders' use of technology as a way to find more victims" by making it "a felony for registered sex offenders to use social networking sites."  This CBS News discussion of the new law raises some interesting questions about its potential reach:

"If the predator is supposed to be a registered sex offender, they should keep their Internet distance as well as their physical distance," said sponsor Bill Brady, a Republican state senator, according to the Chicago Tribune. "The object is to protect innocent individuals on the Internet from sex offenders."   If that were its effect, this would be a laudable piece of legislation. But in reality, the state law is written so broadly it would effectively prohibit registered sex offenders from using the Internet.

It says "social networking websites" are off-limits, and defines those as "an Internet website containing profile web pages of the members of the website that include the names or nicknames of such members," or photographs, or any other personal information. Offenders must "refrain from accessing or using" such Web sites.

Unfortunately, the Illinois state legislature didn't seem to recognize that many popular Web sites -- perhaps even the majority of the large ones -- fall into those categories.  Google.com features user profiles, including name, photos and personal information.  So do Yahoo.com, Amazon.com, geek site Slashdot.org, and aggregator site Digg.com.

Sites like Hulu.com, Netflix, and Pandora do too, as do TV.com, MP3.com, and CNET.com. This overly broad scope makes the law vulnerable to a First Amendment challenge. (Those last three are our sister sites and are owned by CBSNews.com publisher CBS Interactive.)

(It is surely coincidence that Bill Brady is a candidate for governor of Illinois, whose campaign biography says: "He fought for and passed legislation to protect children from sexual predators.")

Now, perhaps Brady's intent truly was to ban sex offenders from the Internet, although if that's true you wouldn't know it from the former developer and realtor's public statements on the topic.  Nor was it probably apparent to his colleagues in the state capitol, where the legislation was unanimously approved by both chambers -- or to Gov. Pat Quinn, who signed it into law this week.
Like it or not, using Google, Yahoo, TV.com, and so on is part of modern life, and it's reasonable to hope that even sex offenders could be reintegrated into society rather than cordoned off from it and therefore more likely to relapse.  One Justice Department release says that 5.3 percent of male sex offenders were rearrested within three years after their release from state prison.

Brady's legislation also does not distinguish between violent criminals who have served prison time for rape -- and adults who are registered sex offenders because of youthful hijinks.

It seem that this new law is ripe for constitutional challenge under any number of theories.  The law apparently goes into effect January 1, 2010, but I suspect there will be litigation over its terms getting started sooner.

August 16, 2009 in Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Are there any must-reads (beyond Heller) for my Second Amendment Seminar?

Regular readers know I am interested in the intersection of the Second Amendment and the criminal justice system in the wake of Heller.  My interest is finding expression this coming fall semester — which starts tomorrow(!) at The Ohio State University Moritz College of Law — through the teaching of a Second Amendment Seminar.

Though I am going to have students help shape the direction and content of the seminar, I want to make sure I cover modern Second Amendment essentials.  But, as I assembled a reading list, I started thinking that the only essential read in the modern corpus is just the Supreme Court's decision in Heller

Of course, there are lots of cases and lots and lots and lots of commentary — both pre-Heller and post-Heller — discussing the Second Amendment.  I plan to cover key post-Heller issues like incorporation and standards of review in the seminar, and I will have students read cases and commentaries on these and other topics.  But I am not sure if anything qualifies as a true must-read for discussing and debating the modern Second Amendment other than Heller itself.

Perhaps readers have a different view, and I would be grateful for any input on the topic in the comments.

Cross-posted at LSI

August 16, 2009 in Second Amendment issues | Permalink | Comments (8) | TrackBack

Examining life sentences (and their connnection to death) in America's heartland

Today's Des Moines Register has this interesting article, headlined "In Iowa prisons, life means life." Here are a few excerpts:

Iowa is one of the most difficult states in the nation for an inmate serving a life sentence to gain release, according to a study issued last month by the Sentencing Project, a Washington advocacy group.

Iowa's three most recent governors have commuted life sentences only nine times in 26 years. At the same time, the population of lifers in Iowa's prison system has risen dramatically, from 162 inmates in 1983 to 617 today, an increase of 281 percent.

Critics want to reduce that number, citing the high cost in dollars - nearly $19 million a year to house current lifers - and in lost human potential. But that notion threatens to disturb Iowa's uneasy truce over capital punishment: Iowa lawmakers have repeatedly rejected the death penalty, but only because "life means life" for the most serious crimes, noted Corwin Ritchie, executive director of the Iowa County Attorneys Association.

The issue highlights the conflict between two deeply held societal views about crime and punishment: that everyone deserves a second chance, and that some crimes against society are so heinous that criminals must forever forfeit their freedom.... Iowa's growing number of lifers reflects a national trend. Throughout the United States, more than 140,000 individuals are incarcerated with life sentences, according to the Sentencing Project report, "No Exit: The Expanding Use of Life Sentences in America." State legislators have stepped up their fight against crime by expanding which crimes result in life sentences, restricting parole and increasing the use of life sentences without parole, the report said....

During the 2009 session of the General Assembly, legislation was introduced to give another chance to some inmates serving life sentences for crimes committed when they were juveniles. It would have allowed them to apply for parole or work release after serving at least 15 years. The legislation was pushed by groups such as the Iowa Coalition to Oppose Life Without the Possibility of Parole for Youth, but it never came to a vote.

Ritchie, who heads the Iowa County Attorneys Association, said his organization continues to support Iowa's imposition of a life sentence without parole for the most serious crimes. "It is an excellent alternative to the problems associated with the death penalty," he said....

State Rep. Clel Baudler, a Greenfield Republican and retired state trooper, said he is willing to consider the possibility of having the Legislature expand parole provisions for lifers, but only if capital punishment is included in the debate: "I truly believe there are some crimes that deserve the death penalty."

Other recent posts on life sentences:

August 16, 2009 in Scope of Imprisonment | Permalink | Comments (4) | TrackBack

"What Prevents the Application of the Thirteenth Amendment in Prison?"

The question of this post is from the title of this new article by Raja Raghunath appearing on SSRN. The full title is "A Promise the Nation Cannot Keep: What Prevents the Application of the Thirteenth Amendment in Prison?" and here is the abstract:

The walls of the prison are not solely physical.  The doctrine of judicial deference to prison officials, which compels courts to defer to the discretion of those officials in almost all instances, obstructs the effective scrutiny of modern practices of punishment.  Since its ratification, the Thirteenth Amendment — which prohibits slavery or involuntary servitude anywhere within the United States or its jurisdiction, except where imposed 'as a punishment for crime whereof the party shall have been duly convicted' — has been seen by courts as one brick in this wall.  This article makes the novel argument that, properly read, the amendment should instead function as a breach in this wall — one of sufficient size to allow some needed light to shine within.

Although in some states inmates may still be sentenced to hard labor, in most systems today they labor under a more general requirement that, if they are able-bodied, they must work.  Reading the word 'punishment' in the Thirteenth Amendment in a manner consistent with the way that same word is used in the Eighth Amendment, and is understood in the rest of the Constitution, reveals that only those inmates who are forced to work because they have been so sentenced — which is not the vast majority of inmates compelled to work in the present day — should be exempted from the general ban on involuntary servitude. In addition to examining the jurisprudence of the Eighth and Fifth Amendments as it relates to this question, this article also details the history of forced labor programs as punishment, and how courts’ reading of the punishment exception is not supported by either the circumstances surrounding ratification of the Thirteenth Amendment, or the ways that courts have construed it as a whole since that time.

This article argues that the reason courts have broadened of the meaning of 'punishment' in the Thirteenth Amendment, while simultaneously narrowing it in the Eighth Amendment, is because these directly contradictory acts of constitutional interpretation both serve the same end of judicial deference to the actions of prison officials, which has resulted in the general abdication by courts of their constitutional obligations to oversee those officials’ actions.  This article also theorizes about the potential outcomes of interpreting the Thirteenth Amendment properly with respect to prison labor, and suggests that the resulting recognition of the punitive purposes that have always driven our prison labor programs may actually lead to an improvement in the overall well-being of prisoners, and perhaps of society as a whole.

August 16, 2009 in Recommended reading | Permalink | Comments (5) | TrackBack