Sentencing Law and Policy

"The Myths and Realities of Correctional Severity"

The title of this post is the partial title of this fascinating new article by John Pfaff appearing at SSRN.  The full title is "The Myths and Realities of Correctional Severity: Evidence from the National Corrections Reporting Program on Sentencing Practices," and here is the abstract:

Though the growth in US prison populations over the past three decades-from 300,000 inmates in the 1970s to 1.6 million today-is well known, its causes are not.  This paper examines one potential source of growth that has received surprisingly little rigorous attention: changes in time actually served in prison.  Using offender-level data from the National Corrections Reporting Program, this paper demonstrates that median and 75th percentile times to release have not risen dramatically, and have even declined in some jurisdictions-although some of the decline appears to be caused by states increasingly incarcerating minor offenders who may not have been admitted in earlier years.  In general, the results indicate that changes in admissions practices, rather than time served following admission, have played the dominant role in prison population growth.  This paper also examines how offender-level traits have shaped the probability of release. The young, the Hispanic, and the violent are less likely to be released in any given period, and those over forty more likely to be so.  Blacks, women, and property and drug offenders are no less likely to be released than their counterparts.

Another federal sentence for another athlete lying about steroid use

Joining the federal sentencing sporting alums Marion Jones and Tammy Thomas, former NFL player Dana Stubblefield was sentenced yesterday for lying to investigators about steroid use.  This San Francisco Chronicle story provides the basics:

Former San Francisco 49er and Oakland Raider Dana Stubblefield was fined $5,000 and placed on two years' probation Friday for lying to a federal agent about steroid use, a sentence prosecutors recommended because of his cooperation in an investigation of drugs in pro football....

He admitted lying when he denied to [an IRS] agent that he had taken the steroid THG, known as "the clear," or the oxygen-boosting drug EPO, and when he said he had not received those substances from Victor Conte, founder of the Bay Area Laboratory Co-Operative in Burlingame.

Conte and four others later pleaded guilty to illegally distributing drugs to athletes through BALCO. Former San Francisco Giants star Barry Bonds is scheduled to go to trial next month on charges of lying to the grand jury that investigated BALCO by denying he had ever knowingly used steroids.

Is it only a matter of time before Barry Bonds and Roger Clemens join the list of the steriod sentenced?  Has Alex Rodriguez ever lied under oath or to federal investigators about his apparent steroid use?

Two different pieces about different justice problems inside the Beltway

The Washington Post has two terrific recent pieces about two terrifically different concerns about the operation of justice systems inside the Beltway.  Both of these piece are must-reads for very different reasons:

• One Young Offender's History in D.C.
• Holder Seen as a Chance To Right Racial Wrongs

Study on sex offender registration in New Jersey suggests its ineffectiveness

This new story from New Jersey, headlined " Report finds Megan's Law fails to reduce sex crimes, deter repeat offenders in N.J.", ought to impact the debate over sex offender registration laws.  I doubt it will, in part because (as the article shows) politicians eager to show how tough they are rarely worry much about the true effectiveness of the laws they support. Still, for those authorities more interested in sound policy than popular rhetoric, this news should give everyone something to think about:

Megan's Law, the landmark legislation that brought a new level of scrutiny to convicted sex offenders, has failed to deter sex crimes or reduce the number of victims since its passage 15 years ago, a new study concludes.

The federally funded study, conducted by the state Department of Corrections and Rutgers University and focused solely on New Jersey, suggests the growing cost of carrying out the law -- estimated at $5.1 million statewide in 2007 -- "may not be justifiable."

"Despite wide community support for these laws, there is little evidence to date, including this study, to support a claim that Megan's Law is effective in reducing either new first-time sex offenses or sexual re-offenses," the researchers wrote in a 44-page report.

The study is the latest in a string of efforts to measure the effectiveness of Megan's Law, which has been adopted in all 50 states and the District of Columbia. Those earlier studies also found the measure does not act as a deterrent.

Defense lawyers and civil libertarians, who have long opposed the law and who have fought in court to overturn it, seized on Friday's findings, calling on lawmakers to dismantle what has grown into an elaborate system for tracking sex offenders and notifying communities of their presence.

Megan's Law supporters pushed right back, calling the measure a vital tool for parents to protect their children. State Sen. Bill Baroni (R-Mercer), said the study "completely misses the objective" of the law. "Any attempt to use this study to weaken or erode Megan's Law will never succeed," he said.

Am I crazy to dream about a "Liberty Recovery Advisory Board"?

As detailed in this Politico entry, today President Obama signed an executive order creating a new Economic Recovery Advisory Board.  This press release and this official blog entry at the White House website provides more background, as well as the text of the President's remarks at the signing.  This news and event got me to thinking about what might happen if Americans were as concerned about the sorry state of liberty in the United States as they are about the sorry state of the economy.

With these crazy ideas in mind — namely the idea that Americans and its political leaders might be just as concerned about human liberty as they are about economic prosperity — I have imagined a different version of some of the President's remarks today:

I have just had the opportunity to welcome the members of my Liberty Recovery Advisory Board. And I'm grateful that I will have the counsel of these extraordinarily talented and experienced men and women in the challenging months to come.

If there's anyone, anywhere, who doubts the need for wise counsel and bold and immediate action, consider the very troubling news we just received.  The Department of Justice just adjusted their imprisonment numbers for 2008, and now report that we've got nearly 2.5 million individuals lock up in prison or jail in this county.

That's 2.5 million individuals who wake up every day without the liberty to decide what to do that day and unable to be with family or friends who might need them.  That's 2.5 million individuals who cost hard-working taxpayers trillions of dollars through the costs of housing and feeding people who may be able to get off the government dole and lead more productive lives.

Now is the time for Congress to act.  It's time to pass an Liberty Recovery and Reinvestment Plan to restore our commitment to human liberty.  This is not some abstract debate.  It is an urgent and growing crisis that can only be fully understood through the unseen stories that lie underneath each and every one of those 2.5 million individuals now confined to cages.

It's very important to understand that, although we hit record incarceration rates every year, the problem is accelerating, not decelerating.  It's getting worse, not getting better.  These aren't my assessments -- these are the assessments of independent criminologists.  If we don't do anything, millions more will lose their liberty.

Americans did not choose more of the same in November.  They did not send us to Washington to get stuck in partisan posturing, to try to score political points.  They did not send us here to turn back to the same tried and failed approaches that were rejected, because we saw the results. They sent us here to make change, with the expectation that we would act.

Now, I have repeatedly acknowledged that, given the magnitude and the difficulties of the problem we're facing, there are no silver bullets and there are no easy answers.  Public safety may require denying liberty to some number of hardened criminals.  But many Western nations have incarceration rates only 1/5 or even 1/10 of ours without sacrificing public safety concerns. That is what America needs. It will take months, even years, to renew our liberty, but every day that Washington fails to act, a nation that President Lincoln noted was "conceived in liberty" fails to live up to its founding principles.

Now, we also know that no single act can meet the challenges of this moment.  This process is just the beginning of a long journey back to being the free society we like to think it is.  Given the scope of this crisis, we'll need all hands on deck to figure out how we are going to move forward. And that's why we took the unique step of creating the new institution whose members have gathered here today.  Put simply, I created this liberty recovery board to enlist voices to come from beyond the Washington echo chamber, to ensure that no stone is unturned as we work to get able-bodied people out of cages, in order to these put people back to work and help get our economy moving.

I'm not interested in groupthink, which is why the board reflects a broad cross-section of experience and expertise and ideology.  We've recruited Republicans and Democrats, people who come out of prison as well as those who have put people in prison.  Not everyone is going to agree with each other, and not all of them are going to agree with me -- and that's precisely the point, because we want to ensure that our policies have the benefit of independent thought and vigorous debate.

And we're also going to count on these men and women to serve as additional eyes and ears for me as we work to reverse modern mass incarceration.  Many of them have ground-level views of the changes that are taking place, as they work across different sectors of the criminal justice system and different regions of the country, and they can help us see the trends that are not fully formed, the trouble that may be on the horizon, and the opportunities that have yet to be seized.  I look forward to relying on their input and recommendations on specific questions as we jumpstart liberty recovery and pursue strong and stable communities.

Sadly, I know that, despite all the talk of hope and change, we should not expect to hear a speech like from any national political leader anytime soon (save perhaps Senator Jim Webb).  But I really do believe the founders of this country would have hoped and expected that modern Americans and its leaders would remain just as committed to liberty as they are to the pursuit of happiness.  Sadly, as the US prison population continues to grow as we continue to be world's modern leader in locking people in cages, I fear we have not lived up to the Framers hopes and expectations.

Some recent related posts:

• Inaugural rhetoric about freedom and liberty in prison nation
• My latest (academic?) musings about progressive punishment perspectives
• The state of cost problems in the states of prison nation
• Will we invest in classrooms or cells in these tough times?
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• What do "our ideals" say about mass incarceration or LWOP for juves or acquitted conduct or the death penalty or GPS tracking or....

"Alternative Sentencing in the Federal Criminal Justice System"

The title of this post is the title of this important new document now appearing on the US Sentencing Commission's website.  Here is how the USSC's describes its contents:

This publication provides an in-depth analysis of alternative sentences for federal offenders. It explains the types of alternative sentences available to sentencing courts under federal law, and the extent to which courts impose those sentences. The publication focuses on those offenders who are eligible for alternative sentences and the demographic and offense characteristics of the offenders who receive these sentences.

Though more descriptive than normative, this new USSC document concludes with this very valuable paragraph (that perhaps can and should be cut-and-pasted into many defense sentencing submissions):

Effective alternative sanctions are important options for federal, state, and local criminal justice systems. For the appropriate offenders, alternatives to incarceration can provide a substitute for costly incarceration. Ideally, alternatives also provide those offenders opportunities by diverting them from prison (or reducing time spent in prison) and into programs providing the life skills and treatment necessary to become law-abiding and productive members of society.

Friday forum for prosecutors: Has Michael Phelps now been punished enough?

The sports page of USA Today is asking here, "Is Michael Phelps' latest punishment fair?"  Here is how they set up the inquiry:

We see that USA Swimming has brought the hammer down on Michael Phelps. The organization has suspended him for three months after a photo of him smoking marijuana appeared in a British tabloid.

In addition, Kellogg's, one of his biggest sponsors, has dropped him, saying his image was not consistent with the breakfast cereal....

USA Swimming will also withhold Phelps' training grant money, which for the multi-gold medalist is probably more symbolic than punitive. Although they also decided to make Phelps' latest problem more of a punitive moment than a teaching one.

Phelps, who told the Baltimore Sun yesterday that he is re-thinking everything, including the 2012 Olympics, said he plans to swim in the world championships in July.

The superstar swimmer has apologized for his actions numerous times since the photo appeared. So the question this morning is, is Phelps reaping what he sowed or are we punishing a guy too strictly because of his fame?

As the title of this post suggests, I want to refine this question by asking actual or would-be prosecutors  whether all this extra-legal punishment for Phelps would or should influence their decision whether to bring charges against him for a state drug crime. 

As detailed here, South Carolina authorites have already talked up the possibility of a state drug charge.  Practically speaking, I think extra-legal factors often play a huge role in prosecutors' charging and bargaining choices, though these extra-legal factors rarely are the subject of open discussion. For today's forum, I hope the comments become a place for such an open discussion, with golden boy Phelps as our subject du jour.

Related posts:

• Is golden boy Michael Phelps going to be charged with a state drug crime?
• "Michael Phelps, Hypocrisy, and American Drug Policy"
• Should those seeking drug policy reform hope that Micahel Phelps get prosecuted?
• Michael Phelps punished by USA Swimming with suspension

Some state and international perspectives on child porn prosecutions

As detailed in posts linked below, I have blogged a lot about seemingly disparate prosecutorial charging and judicial sentencing decisions in how the federal criminal justice system is dealing with child porn downloading cases.  Thanks to a helpful reader, I saw two new stories providing a state-level and an international perspective on these issues.

At the state level, consider this sentencing story from California: "A Granada hills-based attorney who pleaded no contest to possessing child pornography on his computer was sentenced Wednesday to five years supervised probation and 1,000 hours of community service." 

At the international level, consider this enforcement story from Canada, headlined "Child porn scourge creates more suspects than can be arrested."  This article tries to put a number on how many people may be involve in trading child porn images:

Officials estimate there are at least 65,000 people in Canada — and up to 600,000 in the United States — trading pictures and videos of the sexual abuse of children. “There’s just not enough manpower to go and identify and arrest these 65,000 individuals,” said [Paul] Gillespie, [former head of Toronto police’s groundbreaking child exploitation unit and] now president and CEO of the Kids’ Internet Safety Alliance....

The Ontario Provincial Police special child pornography unit always has a backlog of cases.  “The OPP is arresting about 75 of these offenders a year, when we know there are tens of thousands of them,” said Insp. Andy Stewart.  “We’re never going to be in a position to arrest our way out of this.”

Stewart called the 65,000 a “very conservative” estimate for the number of Canadians collecting, trading and selling child pornography. The provincial force is trying to identify criteria that they can use to properly triage child pornography cases to make sure they’re going after the ones who pose the biggest threat to children, he added....

Police estimate child pornography is a $2- to $3-billion industry, with over 20,000 new images posted on the Internet every week. The ease with which digital photographs and videos can be shared online has meant police are discovering huge collections of child pornography when they make arrests.

“Years ago a large seizure might be 1,500 to 2,000 images, but with the electronic sharing of images,” Stewart said. “The average is now 100,000 images, and we’ve had seizures with well over 1,000,000 images and 1,200 videos.”...

Sentences for possessing and manufacturing child pornography vary widely, but rarely is maximum term of 10 years ever handed out in Canada unless there are additional charges such as sexual assault....  In the U.S., the Supreme Court last year let stand a 200-year prison term for an Arizona teacher who had been convicted of possessing 20 images of child pornography.

Some related recent federal child porn prosecution and sentencing posts:

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

Dueling editorials about the death penalty debate in Maryland

The two major papers in Washington DC have these two dueling editorials about the on-going debate in Maryland concerning possible repeal of the state's death penalty:

• From the Washington Post here, "A Vote Against Cruelty"

• From the Washington Times here, "Demagoguery vs. capital punishment"

Some related recent posts:

• Maryland commission urges abolition of state's death penalty
• As goes Maryland, so goes the nation on capital punishment?

• Gov pledges to do "everything" to abolish capital punishment in Maryland

Michael Phelps punished by USA Swimming with suspension

Though extra-legal and thus not a traditional sentencing, this AP story details that Michael Phelps is already being punished for being caught taking a bong hit:

Michael Phelps has been suspended from competition for three months by USA Swimming, the latest fallout from a photo that showed the Olympic great inhaling from a marijuana pipe. The sport's national governing body also cut off its financial support to Phelps for the same three-month period, effective Thursday.

"This is not a situation where any anti-doping rule was violated, but we decided to send a strong message to Michael because he disappointed so many people, particularly the hundreds of thousands of USA Swimming member kids who look up to him as a role model and a hero," the federation said in a statement. "Michael has voluntarily accepted this reprimand and has committed to earn back our trust."

Some related posts:

• Is golden boy Michael Phelps going to be charged with a state drug crime?
• "Michael Phelps, Hypocrisy, and American Drug Policy"
• Should those seeking drug policy reform hope that Micahel Phelps get prosecuted?

UPDATE:  The New York Times has more coverage here of the Phelps photograph fallout, as well as a long piece here about a sum wrestler in Japan getting even more grief for admitting marijuana use.  It seems that reefer madness is not just an American syndrome.

Latest faith-based executive order briefly mentions prisoner re-entry

As detailed in this CNN piece, President Barack Obama issued this executive order today to rename and rework the White House's faith-based office.  I was heartened to see the order included this little shout-out (highlighted by me below) for faith-based re-entry programming in the "policy" section of the executive order:

Faith-based and other neighborhood organizations are vital to our Nation's ability to address the needs of low-income and other underserved persons and communities. The American people are key drivers of fundamental change in our country, and few institutions are closer to the people than our faith-based and other neighborhood organizations. It is critical that the Federal Government strengthen the ability of such organizations and other nonprofit providers in our neighborhoods to deliver services effectively in partnership with Federal, State, and local governments and with other private organizations, while preserving our fundamental constitutional commitments guaranteeing the equal protection of the laws and the free exercise of religion and forbidding the establishment of religion.  The Federal Government can preserve these fundamental commitments while empowering faith-based and neighborhood organizations to deliver vital services in our communities, from providing mentors and tutors to school children to giving ex-offenders a second chance at work and a responsible life to ensuring that families are fed. 

I hope that, in addition to recognizing the valuable role played by faith-based re-entry programming, the Obama Administration will also voice support for the faith-based prison movement.

Some related posts on faith-based prison programs:

• Is faith the best thing to happen to prisons since ... the faithful started prisons?
• Interesting Ohio report on correctional faith-based initiatives
• Another report tentatively praising faith-based prisons
• The virtues of faith-based prisons
• Interesting examination of faith-based prison movement
• A thoughtful, but disappointing, attack on a faith-based prison program
• Religion, sentencing and corrections
• Having faith in prisons
• Say hallelujah for new faith-based prison scholarship
• Will the Obama Administration embrace and promote the faith-based prison movement?

Notable AWA and CVRA rulings

Thanks to the fine bloggers at The Volokh Conspiracy, I can cover two interesting rulings under two interesting federal criminal statutes by links to their posts:

• By Paul Cassell here, "Crime Victim's Victory in the Sixth Circuit"

• By Eugene Volokh here, "Another Case Holding a Gun Control Provision of the Adam Walsh Act Unconstitutional"

Terrific piece on constructions of equality in criminal law in first JLA issue

The first issue of a notable new law review, the Journal of Legal Analysis, is available here.  This new review is notable in part because it is faculty-edited and peer-reviewed, because it has an all-star editorial team and board, and because it is "dedicated to the best legal scholarship from all disciplinary perspectives and in all styles, whether verbal, formal, or empirical."  The first issue of JLA is notable for sentencing fans because it includes this great article by James Q. Whitman, titled "Equality in Criminal Law: The Two Divergent Western Roads."  Here is the abstract:

Every western society embraces the ideal of equality before the criminal law. However, as this article observes, that ideal is understood differently in the United States and Continental Europe. American law generally demands that all citizens face an equal threat of punishment, while continental European law generally demands that all citizens face an equal threat of investigation and prosecution.  This contrast raises a sharp normative challenge: Is it better to think of equality before the criminal law as pre-conviction equality or post-conviction equality?  The article makes the case that pre-conviction of the Continental kind is normatively superior. It then asks why American law has opted for what seems a normatively inferior solution, identifying a variety of factors in American culture and the common law tradition that have encouraged the belief that true equality lies in the equal threat of punishment rather than in the equal threat of prosecution.

The economic case against the death penalty getting more and more attention

Regular readers should not be surprised that one echo effect of hard economic times is that opponents of capital punishment are finding it easier to argue against the death penalty because of the extraordinary expense of properly administering the punishment of death. Here are just a few recent newspaper pieces reflecting these realities:

• From Kansas here, "Death penalty opponents introduce bill to abolish executions based on cost"

• From Montana here, "From a financial perspective, the death penalty fails"

• From Virginia here, "Expanding the death penalty is fiscally irresponsible"

• From the mountain states here, "One state looks to cut the death penalty, put money elsewhere"

Fascinating "personal prison" offer considered in prominent white-collar case

The New York Law Journal has this fascinating new piece headlined, "Bid to Create 'Private Prison' at Issue in Dreier Bail Determination."  Here is the first part of a long article:

For two months, attorney Marc S. Dreier has been jailed without bail at the Metropolitan Correctional Center. But if he gets his way, he soon will be released to less spartan accommodations -- his own midtown luxury apartment. First, however, Dreier has to convince Southern District Judge Jed S. Rakoff it would be fair to allow the lawyer to create his own "private prison" with financial resources available to him.

According to his attorney, Gerald Shargel, Dreier's sister and brother-in-law have offered to pay $70,000 a month for round-the-clock security guards to ensure that Dreier does not flee before charges that he bilked investors of $400 million are adjudicated.

Judge Rakoff is expected to rule today or tomorrow on the bid of Dreier, the founder and sole equity partner of Dreier LLC, to be released on bail.

At a bail hearing before Rakoff on Monday, Shargel argued that his client was "penniless" after being stripped of all his assets in the wake of his Dec. 2 arrest in Toronto and his Dec. 7 arrest in New York City and does not pose a flight risk.

At the Metropolitan Correctional Center, Dreier lives in a small cell with a bunk mate, and has limited contact with the outside world. He is permitted to meet once a week with his ex-wife and teenage daughter and his 19-year-old son, Spencer Dreier. He receives an allotment of 320 minutes per month for phone calls, which includes calls to his lawyer. He can see Shargel every day.

Shargel contends the 1984 federal Bail Reform Act, 18 U.S.C. §3142(c)(1)(B), requires the court to release Dreier, provided a set of conditions exist that will "reasonably assure" his appearance and the safety of the community. House arrest with armed guards stationed inside Dreier's apartment would meet those requirements, Shargel said Monday night at the bail hearing.

UPDATE:  I just learned, via this New York Law Journal piece, that Judge Rakoff has issued this eight-page decision in the case.  Here is how that opinion starts:

How glorious to be an American citizen.  In so many countries, the rights of citizens are not worth the paper they are printed on.  But here, any citizen – good, bad, indifferent, famous, infamous, or obscure – may call upon the courts to vindicate his constitutional rights and expect that call to be honored.

Here, citizen Marc Dreier, whom the Government accuses of colossal criminality, calls upon the Court to fulfill the pledge of the Eighth Amendment to the Constitution that “Excessive bail shall not be required.”  He argues that the bail set by Magistrate Judge Eaton, which required, among much else, that he post $10 million in cash to secure his release, is excessive, because all his funds have already been frozen by orders previously obtained by the Securities & Exchange Commission and by the U.S. Attorney’s Office.  The Government, for its part, argues that no conditions of bail can reasonably assure against what it considers to be a high risk of flight, and accordingly urges that bail be denied altogether.  Following substantial briefing and a lengthy hearing, this Court, reviewing the matter de novo, see United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985), concludes that such risk of flight as exists can be so minimized by the by the imposition of conditions that Dreier may likely meet as to warrant his release.

"Ginsburg is hospitalized with pancreatic cancer"

Because the Justices are in the midst of a long break, I did not expect much significant SCOTUS news this month.  But, as detailed in this AP report, the health of the only current female Justice is now making headlines:

Supreme Court Justice Ruth Bader Ginsburg had surgery Thursday after being diagnosed with pancreatic cancer, the court said.

Ginsburg, 75, had the surgery at the Memorial Sloan-Kettering Cancer Center in New York. She will remain in the hospital for seven to 10 days, said her surgeon, Dr. Murray Brennan, according to a release issued by the court.  The court announcement said the cancer is apparently in the early stages.

Is hope and change coming to the issue of medical marijuana?

The Washington Times has an interesting report on a high-profile drug reform issue in this article, headlined "DEA continues pot raids Obama opposes:President vowed to end policy." Here is how it starts:

Drug Enforcement Administration agents this week raided four medical marijuana shops in California, contrary to President Obama's campaign promises to stop the raids.

The White House said it expects those kinds of raids to end once Mr. Obama nominates someone to take charge of DEA, which is still run by Bush administration holdovers. “The president believes that federal resources should not be used to circumvent state laws, and as he continues to appoint senior leadership to fill out the ranks of the federal government, he expects them to review their policies with that in mind," White House spokesman Nick Shapiro said.

UPDATE: Over at The Volokh Conspirary, this news gets some significant love in this notable post by David Kopel:

Hurray for President Obama! The White House affirms that he will end the Bush/Clinton policy of raiding medical marijuana providers who are operating within the parameters of state law. A victory for patients, for the Tenth Amendment, and for responsible use of federal law enforcement resources, as Mike Krause and I argued in 2001.

US Sentencing Commission's regional hearings to start next week

I am please to see that the US Sentencing Commission now has posted to its website this official press release and this agenda concerning its first of a series of regional hearings.  Here are the basic details from the press release:

The United States Sentencing Commission will hold in Atlanta on February 10-11, 2009, the first of a series of regional public hearings on federal sentencing policy. The Commission is holding these public hearings to gather feedback on federal sentencing practices and the operation of the federal sentencing guidelines. The regional hearings coincide with the 25th anniversary of the Sentencing Reform Act of 1984....

At the hearings, the Commission expects to hear from a wide range of witnesses from across the nation, including the judiciary, law enforcement, prosecutors, defense attorneys, community interest groups, sentencing experts, and others interested in federal sentencing. The Commission is interested in any suggestions regarding changes to the Sentencing Reform Act and other relevant statutes, the federal sentencing guidelines and policy statements, and the Federal Rules of Criminal Procedure that, in the view of the witness, will further the statutory purposes of sentencing.

As this press release suggests and as the hearing agenda highlights, the USSC seem genuinely eager to consider broadly and dynamically about how the next generation of federal sentencing law and policy should unfold.  Though the USSC has not been at the forefront of bold sentencing reforms in recent years, perhaps it is time for those troubled by federal sentencing realities to be a bit more optimistic concerning the possibility of hope and change finding expression in the USSC's coming work.

Some related recent posts:

• The revised make-up of the US Sentencing Commission
• Notable news from the US Sentencing Commission
• How a new administration is likely to impact federal sentencing practice
• The revised make-up of the US Sentencing Commission
• Why federal sentencing reformers must focus on the USSC and lower courts
• Are we on the verge of a new changed era concerning federal sentencing law and policy?
• What might 2009 have in store for . . . the US Sentencing Commission?

Should those seeking drug policy reform hope that Michael Phelps gets prosecuted?

Over at Reason, Jacob Sollum and Radley Balko are talking about whether Michael Phelps might get charged with a drug crime in the wake of the picture of his bong hit.  This final point in Balko's commentary caught my eye:

[T]he spectacle of seeing a world class athlete like Phelps frog-marched in handcuffs, tried, and given a few days in the county jail might do wonders toward enlightening the public to the fact that the most dangerous thing about marijuana doesn't come from smoking it, but from what the government will to you if it catches you.

This sentiment reminds me a bit of all the death penalty opponents who keep hoping to find conclusive evidence that an innocent defendant has been executed.  Balko thus taps into a sad but true aspect of many sentencing law and policy debates: one high-profile case is often an essential catalyst for long-urged reforms.

Is six months about typical for the amount of time between a federal trial conviction and sentencing?

Paul Cassell over here at The Volokh Conspiracy asks, "Is a Three Year Delay in Sentencing Too Long?".  Here is the factual background prompting Paul's query:

According to this interesting article, a federal judge has recently set the sentencing date for four plant managers convicted of environmental and safety crimes on April 26, 2006.  The sentencings are now set for April 24, 2009 — nearly three years later.

It is not clear what has caused the delay. Federal prosecutors filed a motion in December to speed things up. They argued that the sentencing delay affected public perception of justice.  They also cited the Crime Victims' Rights Act, which promises crime victims that they have a right to a trial "free from unreasonable delay." The case involves a forklift accident at a foundry that killed a plant worker.

I would generally consider a three-year delay between conviction and sentencing to be extreme and problematic for various reasons.  Then again, in an extreme and problematic case in which the applicable guideline range and the scope of a judge's sentencing authority and discretion is being hotly contested, it can often take a long time to "paper-up" important pre-sentencing issues.

In light of this case, I thought it useful to see if practitioners agree with my rough estimate that, in an average case (whatever that means), about six months will elapse between the time of a trial conviction and a sentencing hearing in the federal system.  In cases involving a plea, I suspect the timeline tends to be a bit shorter (especially in fast-track cases, of course), and in particularly complicated cases I suspect the pre-sentencing timeline is a bit longer.  I ask this question not only to confirm my own (ivory tower?) sense of federal sentencing timelines, but also to provide some context for a fair assessment of whether the three-year delay in the case noted above is truly extreme. 

UPDATE:  The comments below and additional feedback I have received via e-mail suggest that three to four months is more typical as the standard period between conviction and sentencing.

Lots of (minor?) sentencing action in the circuits

Because so much else has been keeping me busy lately, I have not blogged about many notable circuit rulings handed down this week.  Specifically, the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth and Eleventh Circuits have all issued opinions this week that cover some consequential sentencing issues ranging from guideline interpretation (in the Second and Third Circuits) to Rule 35(a) modifications (in the Fifth Circuit) to crack retroactivity motions (in the Seventh and Eleventh Circuits).

Based on my quick reads, though all of these rulings have had blog-potential, none seemed major enough to merit its own post during an otherwise busy week.  My gauge of blog-worthy opinions, however, is often off-kilter during busy weeks.  Thus, I encourage anyone who thinks I might have overlooked an important aspect of a recent opinion to let me know what should not go unblogged.

Detailed local account of plea realities (and state/federal disparities)

The Iowa City Press Citizen has this notable piece discussing local plea practices. The piece, which is titled "Plea deals: Are they soft or necessary?", covers a story surely familiar to many practitioners, but one that is not often fully appreciated by the public (or many academics).  Here are some excerpts:

From 2002 to 2007, Iowa City police officers charged 74 people with second-degree robbery.  Sixty-one of those arrests -- or 82 percent -- resulted in pleas to or convictions of lesser offenses, according to a review of court records.  However, while that number might seem high, it's actually in line with national figures....

Tom Sneddon, interim executive director of the National District Attorney Association, said that doesn't mean 95 percent of cases are plea bargained, however.  Some criminals will plead as charged, he said.  You're talking clearly in the 80s (percent) where there was some kind of bargain struck," Sneddon said. "That is very, very common practice. It's the only way the court system survives."

While the disparity between charges filed by police and dispositions made in the court system might be surprising to many, neither the police nor the Johnson County Attorney said the plea bargain figures were unexpected.  "I think this is true, not just with robberies, but across the board with charges, period," Police Sgt. Troy Kelsay said.

Sgt. Mike Brotherton, who leads Iowa City's gang and drug team, said he sees the same disparity between charges and plea deals. While it is frustrating for officers, Brotherton said there are further reaching implications.  "What you don't see is what the consequences are," Brotherton said. "What's the end result? Very, very few go to prison."...

Brotherton has found at least one way to avoid this issue -- he takes cases to the federal court system.  However, it's not easy to elevate a case to that level, he said.  In drug cases, there must be sizeable quantities of drugs involved.  If a weapon is involved, the case can possibly go to the federal level as well.

These criteria are based on guidelines for crimes that are indictable at the federal level and ensure that the federal courts only get cases that are appropriate for their jurisdiction.  All types of robberies are prosecuted at the state level, but bank robberies often are prosecuted federally because of their federal protection.

This article is intriguing for many reasons, but I find especially interesting the willingness of a senior state police officer to state to a reporter that he actively "tries to make a federal case" out of some local crimes because of his concerns about undue leniency in the state sentencing system. 

New report from The Sentencing Project on the state of sentencing

I just received via e-mail this notice of a new report from the folks at The Sentencing Project:

A new report by The Sentencing Project highlights 17 states that enacted sentencing and corrections reforms in 2008.  The State of Sentencing 2008: Developments in Policy and Practice finds that a nationwide budget crisis coupled with widespread prison overcrowding has led many states to address critical challenges in the areas of sentencing, drug policy, parole revocation, racial justice, felony disenfranchisement, juvenile justice, and higher education in prison.... 

In the report, The Sentencing Project urges state policymakers and practitioners to reconsider sentencing policies that result in lengthy terms of incarceration; invest in strategies proven to reduce recidivism; and expand diversion and treatment programs beyond first-time and non-violent offenders.

After fast work on excessive pay, now how about similar work on excessive sentences?

As detailed in this CNN piece, President Obama and his administration is responding quickly to last week's news that corporate executives handed out $18 billion in bonuses in 2008.  While I am disinclined to opine on the specifics of such matters, I am pleased the new folks in DC are concerned about how my tax dollars are being spent on Wall Street.  Now, with the new Attorney General in place, the new administration should start showing similar concern for how taxpayer dollars are being spent on Main Street.

Specifically, as highlighted in many prior posts (examples here and here), states are struggling with tight budgets and are having to make hard choices about the prison economy.  Along the way, many states are asking for taxpayer dollars from the federal government (here is a piece about Ohio's eagerness for stimulus dollars).  Just as President Obama is seeking to limit excessive corporate pay for any company requesting monies from the feds, how about also seeking limits on excessive and costly imprisonment terms for any state requesting monies from the feds?

There is significant precedent for tying federal aid to state sentencing reform efforts: during the Clinton years, the feds required states to eliminate parole in order to get certain funds; during the Bush years, the feds required states to change sex offender registration laws to get certain funds.  For so many reasons, the feds ought to try this method again, but do so in ways that encourage states to make more sensible choices concerning short and long-term corrections spending. 

Sadly, other than perhaps Senator Jim Webb, I doubt any other politician inside DC has the insight and the courage to even consider such a bold idea to these festering prison economy problems.  Still, this kind of prison economy reform would not have to have a legislative push to get started.  President Obama could jump-start cost-oriented sentencing reforms by just granting a few clemencies to non-violent first offenders while stressing the savings from no longer having to use federal tax-payer dollars to continue housing and feeding offenders who clearly pose no threat to public safety.

Some recent related posts:

• The state of cost problems in the states of prison nation
• How many states are being forced by economic realities to consider releasing prisoners?
• My latest (academic?) musings about progressive punishment perspectives
• Will we invest in classrooms or cells in these tough times?
• Making an economic case for cost-oriented sentencing and prison reforms
• Is it too early to start demanding President Obama use his clemency power?
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• Inaugural rhetoric about freedom and liberty in prison nation

Is golden boy Michael Phelps going to be charged with a state drug crime?

This latest news from South Carolina suggests that criminal justice authorities are seriously working up criminal charges against record-breaking Olympian Michael Phelps:

Olympic superstar Michael Phelps could face criminal charges as part of the fallout from a photo that surfaced showing the swimmer smoking from a marijuana pipe at a University of South Carolina house party. Mike & Mike in the Morning

A spokesman for Richland County Sheriff Leon Lott, who is known for his tough stance on drugs, said Tuesday the department was investigating. "Our narcotics division is reviewing the information that we have, and they're investigating what charges, if any, will be filed," said Lt. Chris Cowan, a spokesman for the agency....

"The bottom line is, if he broke the law, and he did it in Richland County, he's going to be charged," Cowan said. "And there's no difference between Michael Phelps and several other people that we arrest for the same type of a charge everyday."

Under South Carolina law, possession of one ounce or less of marijuana is a misdemeanor that carries a fine up to $200 and 30 days in jail for the first offense.  Possession of paraphernalia is a $500 fine.

The Richland County sheriff has long sought to fight drug crimes. He rose from patrol officer to captain of the narcotics division in the early 1990s, after the television series "Miami Vice" made its splash. Lott played the part well. He wore stylish suits and had long hair then. He drove a Porsche seized from a drug dealer and even worked undercover with federal agents in Florida.

"The Plea Jury"

The title of this post is the title of this really intriguing new article by Laura Appleman available via SSRN. Here is the abstract:

For over thirty years, scholars, courts, defense attorneys and prosecutors have been deeply troubled by the guilty plea procedure, concerned about the sacrifice of rights and due process for cheap efficiency.  Although many legal players seem to dislike the plea, few have taken on its reform.

With the Supreme Court's recent iteration of the jury's constitutional rights and powers in criminal adjudication, however, a way to meaningfully reform the guilty plea has finally arisen.  I propose incorporating the community into the guilty plea process through the use of a plea jury.  With a plea jury, a lay panel of citizens would listen to the defendant's allocution and determine the acceptability of the plea and sentence, reinvigorating the community's right to determine punishment for offenders.

My goal in this piece is to restore the community jury right to its proper place by envisioning its integration into the guilty plea, theoretically as well as procedurally.  In doing so, I will illustrate not only how a standard jury would be incorporated, but also why the critical norms embedded into jury participation will help improve the existing guilty plea procedure.

Virginia legislature working on cost-saving sentencing reforms

The Washington Post has this report from Virginia on the latest local sentencing reforms being driven by prison economy realities.  The article is headlined "Nonviolent Inmates Could Get Out Early: Va. Senate Drafts A Budget Assist Worth $50 Million," and here are excerpts:

Leaders in the Virginia Senate are drawing up plans to overhaul the state's criminal sentencing policies so that hundreds, perhaps thousands, of inmates can be released from prison early, a politically risky move aimed at saving tens of millions of dollars.

Under the proposal being drafted by Senate leaders from both parties, Virginia would expand its use of home monitoring and make it easier for nonviolent offenders to be released after they complete drug treatment programs.

The state would then close one or two prisons, which would free up at least $50 million to help address a $3 billion budget shortfall.... "In talking to my constituents, they are not interested in spending $25,000 a year to incarcerate these people when we are talking about cutting higher education, public education and health care," said Sen. Janet D. Howell (D-Fairfax)....

Senate leaders say the budget shortfall is forcing them to look for savings within the state's prison system. Virginia operates 41 correctional facilities. The typical facility has 1,024 beds and costs $25 million annually to operate. In December, Kaine proposed that four prisons be closed as part of ongoing budget cuts. Howell said the Senate would like to add to that list....

According to a working draft of the Senate plan, some nonviolent offenders would be sent home with electronic monitoring equipment to complete their sentences.  But before anyone is released, the state would have to complete an aggressive risk assessment.  Only those inmates who are deemed unlikely to reoffend would be eligible for early release.   Virginia already conducts electronic monitoring of about 4,000 probationers. The state does not use the devices as an alternative to incarceration, said P. Michael Leininger, a legislative liaison for the Department of Corrections.

Some recent related posts:

• The state of cost problems in the states of prison nation
• How many states are being forced by economic realities to consider releasing prisoners?
• My latest (academic?) musings about progressive punishment perspectives
• Will we invest in classrooms or cells in these tough times?
• Making an economic case for cost-oriented sentencing and prison reforms
•  Effective op-ed about dealing with prison costs coming due

More on whether and how criminal justice records should be on-line

In this recent post, I wondered aloud "Should all federal plea agreements be generally available on-line?".  A helpful reader pointed me to this forthcoming article by Caren Myers Morrison, titled "Privacy, Accountability, and the Cooperating Defendant: Towards a New Role for Internet Access to Court Records," which addresses related issues.  Here is the abstract:

Now that federal court records are available online, anyone can obtain criminal case files instantly over the Internet.  But this unfettered flow of information is in fundamental tension with many goals of the criminal justice system, including the integrity of criminal investigations, the accountability of prosecutors and the security of witnesses.  It has also altered the behavior of prosecutors intent on protecting the identity of cooperating defendants who assist them in investigating other targets.  As prosecutors and courts collaborate to obscure the process by which cooperators are recruited and rewarded, Internet availability, instead of enabling greater public understanding, risks degrading the value of the information obtained.

There is a growing body of scholarship considering the privacy implications of electronic access, but the literature has not yet addressed these issues from the perspective of the criminal justice system.  This Article begins to fill that gap by focusing on the skittish responses of prosecutors and courts to the expanding availability of information that had always been public, but was traditionally hard to obtain.  Such evasion is particularly troubling in the context of cooperation, an important law enforcement tool that is essentially unregulated and susceptible to capricious application.  The Article proposes an approach that pairs limitations on online access with systematic disclosure of detailed plea and cooperation agreements in their factual context, but divorced from identifying data.  This proposal would protect privacy and security, while enabling the public and press to engage in genuine government oversight.

Some related posts with related questions:

• Should plea agreements be available to the public?
• Will a commitment to "transparency and the rule of law" extend to DOJ in the new administration?
• Can and will judges, defense attorneys and academics now get lots of sentencing data from BOP, DOJ and the USSC?

Fourth Circuit limits reach of ACCA in light of Begay

The Fourth Circuit today holds in US v. Thornton, No. 08-4251 (4th Cir. Feb. 3, 2009) (available here), that statutory rape is not a violent felony under Armed Career Criminal Act. Here is the start of the opinion:

A jury convicted Michael Ray Thornton of possessing a firearm and body armor in violation of 18 U.S.C. §§ 922(g)(1) and 931.  During his sentencing, the district court classified Thornton as an armed career criminal subject to a sentence enhancement based in part on a 1986 statutory rape conviction. At issue on appeal is whether Virginia’s statutory rape offense, which makes it a crime to "carnally know[ ], without the use of force, a child" between thirteen and fifteen years of age, is a "violent felony" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B). Because we find that Virginia’s carnal knowledge offense does not constitute a violent felony under the ACCA as interpreted by Begay v. United States, 128 S. Ct. 1581 (2008), we are constrained to reverse.

Interesting time for Time's discussion of death's demise

Time magazing has this new piece on death penalty developments, headlined "The Tide Shifts Against the Death Penalty."  Here are a few excerpts:

If there were such a thing as a golden age of capital punishment in America, it peaked in 1999. There were 98 executions in the U.S. that year, the highest number since 1976, when the Supreme Court, which had overturned all death penalty laws in 1972, began approving them again. For most of the 1990s the number of death sentences handed down annually by courts had been humming along in the range of 280 to 300 and above.  And it had been years since the Supreme Court had done much to specify whom states could execute and how they could do it.

A decade later, capital punishment has a lot less life in it.  Last year saw just 37 executions in the U.S., with only 111 death sentences handed down.  Although 36 states and the Federal Government still have death penalty laws on the books, the practice of carrying out executions is limited almost entirely to the South, where all but two of last year's executions took place.  (The exceptions were both in Ohio.)  Even in Texas, still the state leader in annual executions, only 10 men and one woman were sentenced to death last year, the lowest number since the death penalty was reinstated in 1976.  In recent years the Supreme Court has voted to forbid the execution of juveniles and the mentally retarded, and it banned using the death penalty for crimes that did not involve killings....

Even more significantly, where states once hurried to adopt death penalty laws, the pendulum now appears to be swinging in the other direction.  In 2007 New Jersey became the first state in 40 years to abolish its death penalty.  In that same year repeal bills were narrowly defeated in Montana, Nebraska and New Mexico, all of which are revisiting the issue this year.  Now the focus is on Maryland.  After years of failed attempts by death penalty opponents to bring a repeal bill to a vote in the state legislature, Maryland Governor Martin O'Malley is personally sponsoring this year's version, promising that he will fight to have the legislature pass it during the current 90-day session.

As regular readers know, I have been documenting the death penalty's decline for quite sometime.  But this Time article comes out, coincidentally, when death is making a bit of a comeback.  The last few weeks of January 2009 brought seven executions (five of which were in Texas), the most in any concentrated period since June 2007.  In addition, there are two executions scheduled for tomorrow (one in Tennessee and one in Texas).  Also, Virginia's legislature recently voted to expand that state's death penalty law.

In addition, today was the swearing in of Eric Holder as Attorney General.  Though AG Holder's track record on the death penalty is mixed, he was deputy AG in the Clinton Administration during what Time calls "the golden age of capital punishment in America."  Though lots of forces contributed to the death penalty's rise in the 1990s and its more recent decline, our new Attorney General may not be nonplussed if execution rates and death sentences return to rates of the so-called golden age.

Some recent related posts:

• What might 2009 have in store for . . . the death penalty in the US?
• DPIC releases year-end report on state of death penalty in 2008
• Notable second-term Presidential execution realities
• As goes Maryland, so goes the nation on capital punishment?
• More evidence that the death penalty is dying a slow death on the front lines
• Any speculations on what this Election Day could mean for the death penalty?
• What might a new administration mean for the federal death penalty?
• Effective media coverage of capital punishment realities in China (but not of federal capital realities)

UPDATE:  As detailed in this local article, Tennessee executed Steve Henley early Wednesday morning.  Here is the start of the local coverage:

Convicted murderer Steve Henley met his death at the hands of the state with a smile on his face and maintained his innocence even in his final moments amid the cries and prayers of his family.  “As I have said ever since this happened, I didn’t kill them,” Henley said during his final words of his victims, Fred and Edna Stafford. “I hope they can rest easier after this procedure is done.”

New York commission calling for major drug sentencing reforms

As detailed in this official press release, a "bi-partisan panel that spent nearly two years studying New York State’s sentencing statutes today called for further reforms to the state’s drug laws and provided the Governor, Legislature and Judiciary with several different options for historic reform."  Here is more from the press release:

The Commission on Sentencing Reform agreed on five major principles of drug law reform:

• Community-based drug treatment, especially when required in a criminal justice setting where the offender faces clearly defined sanctions for program failure, works and should be an available option in every region of the state.
• The state’s network of existing diversion programs and drug courts has been effective for thousands of drug-addicted offenders, and any new diversion model must be structured so as not to undermine these programs.
• New York should adopt a comprehensive plan to provide statewide access to substance abuse treatment programs.
• New York must continue to reserve costly prison resources for high-risk offenders and make greater use of alternatives to incarceration for non-violent offenders while not jeopardizing the state’s significant gains in public safety.
• While New York has a large network of successful drug treatment courts and prosecutor-based diversion programs..., these programs are not always made available to deserving offenders in need of treatment. The result is a “hit-or-miss” system that leaves many non-violent, drug-addicted offenders – and particularly persons of color – without access to this potentially life-changing alternative. To help close this gap, the Commission supports the adoption in statute of a uniform statewide drug diversion model.

Though the official press release in conjunction with the release of full report devotes the focused attention on drug sentencing reforms, the full report (available hereand running 326(!) pages) covers many more topics.  The report has an effective executive summary starting at page 27 of the pdf, and everybody following modern debates over sentencing law and policy should make the time to read at least the executive summary ASAP.

Newsday provides here the first press coverage of the report, but I expect there will be (as there should be) a lot more attention given to the terrific work of the New York Commission on Sentencing Reform in the days ahead.

UPDATE:  The Albany Times Union has this blog report on a negative letter from Sheldon Silver, the Speaker of the New York State Assembly, to the chair of the Commission on Sentencing Reform in response to the report.  Here is a snippet:

I write to express my deep disappointment with the final report of the Commission on Sentencing Reform.  Unfortunately, the Commission’s report represents a historic missed opportunity to advance meaningful reform of New York’s antiquated “Rockefeller-era Drug Laws”....

I am troubled that the Commission’s report fails to address a system that has ignored, and still ignores, the health and societal implications of drug abuse, and has ignored the failed laws that have led to African- Americans and Latinos constituting 90% of those incarcerated in our state prisons for drug offenses.  This profound discriminatory impact is even more shocking when the rates of illicit drug use are 8.1 percent for Whites, 7.2 percent for Latinos and 8.7 percent for African-Americans.

MORE:  This New York Times article suggests that the Commission's report is generally getting a warm reception from most state policy-makers:

Legislative leaders said they saw the report as the first step toward broader reform of New York’s drug penalties.  The subject is expected to be revisited in the coming weeks as newly empowered Democrats, who now control both chambers of the Legislature and the governor’s mansion, move to put their imprint on the state’s social policy.

Taking stock of President George W. Bush's clemency record

Though perhaps not providing the truly final word on the clemency efforts of our 43rd president, former Pardon Attorney Margaret Love has created (and allowed me to post) a terrific review of President George W. Bush's clemency record.  Here are snippets of her effort, which can be downloaded in full below:

The final figures on President Bush’s clemency record establish that he granted fewer pardons and commutations than any two-term president since Thomas Jefferson, and fewer per term than any full-term president since John Adams, with the exception of his father. Statistically, he is tied with his father for the lowest favorable grant rate for pardon petitions (9.8%), and his grant rate for commutations barely registers (.012%). While he pardoned fairly regularly through out his two terms, 76 of his 189 pardons and seven of his eleven commutations were granted in his final year.

President Bush received more clemency petitions than any president since FDR (not counting petitions received pursuant to general grants of amnesty), and he denied more. In eight years, he denied almost 7500 commutation and 1800 pardon requests, three times the number denied by Bill Clinton....

The disappointing shortage of grants at the end of President Bush’s term, like the torrent of irregular pardoning at the end of Clinton’s, is traceable to a chronically dysfunctional pardon advisory system, dominated by the perspective of prosecutors, which can take years to process an application and produces very few favorable recommendations.  The difference in the end-games for the two presidents is attributable to their very different personal inclinations to dispense forgiveness. But neither president was well-served by a Justice Department whose pardon office has become a place where petitions for presidential mercy go to die. If President Obama wants to make the most of his constitutional pardon power as an instrument of government, he will have to ensure that there is a strong and independent program for administering it, with a staff committed to the enterprise and the resources necessary to carry it out.

Download Margy Love's Bush Pardons Profile

Some recent related posts:

• "Compassionate Conservatism, My Ass"
• Inaugural rhetoric about freedom and liberty in prison nation
• Are the Border Agents the only federal offenders for whom President Bush feels compassion?
• ACS issue brief on the pardon power
• More proof politicians are very compassionate toward criminals ... who are fellow politicians
• Commentary on how celebrity status effects clemency commitments
• Few giving the President sentencing thanks
• The sad (unpardonable) state of compassion in the Bush Administration
• Latest FSR issue on "Learning from Libby"

The changed timing of executions

Triggered by the fact that Tennessee has an execution scheduled for the middle of the night, the AP has this new piece headlined "States shift away from holding midnight executions."  Here are a few snippets from an interesting article: 

Many states have adjusted their schedules in recent years, and the vast majority of U.S. executions now occur during daylight or early evening hours when courts are more accessible, according to an Associated Press review.  Of the 34 states where the death penalty has been carried out since 1976, 15 states still execute inmates in the middle of the night.

One of them is Tennessee, where double-murderer Steve Henley is to die by injection at 1 a.m. CST Wednesday at Riverbend prison in Nashville.  The late hour has some victims' advocates in the state upset.  "It's a very long, stressful day. It just puts you completely off any routine. It's exhausting and really not necessary," said Verna Wyatt, executive director of You Have the Power, a Nashville-based crime victim advocacy group that has asked Tennessee corrections officials to give up midnight executions.

Corrections officials in states that still schedule executions between midnight and 3 a.m. argue that inmates are less likely to protest or become violent.  The state also has more time to fight late challenges....  Those issues haven't greatly complicated daytime or evening executions, according to victims' advocates and states that prefer those times. "We know other states are not facing extreme difficulties doing it (earlier)," Wyatt said. "So why not make it easier for everyone?"

Four of the five states that have carried out the most executions — Texas, Virginia, Florida and Oklahoma — set afternoon or evening times, while Missouri is the only state to still schedule executions at midnight, the AP found.

Texas changed its execution time in 1995, moving it from midnight to 6 p.m. or later to ease the pressure on lawyers filing late appeals and the judges who must rule on them, said Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice.... Ohio quit midnight executions in 2001 partly to save thousands of dollars in overtime to prison workers.

"A Life Term for Rape at 13: Cruel and Unusual?"

The question in the title of this post is the headline of this latest piece by Adam Liptak in the New York Times.  The article is focused on this case of Joe Sullivan, whose cert petition I posted in this recent entry.  Here are excerpts from the Times article:

In 1989, someone raped a 72-year-old woman in Pensacola, Fla. Joe Sullivan was 13 at the time, and he admitted that he and two older friends had burglarized the woman’s home earlier that day. But he denied that he had returned to commit the rape....

The trial lasted a day and ended in conviction. Then Judge Nicholas Geeker, of the circuit court in Escambia County, sentenced Mr. Sullivan to life without the possibility of parole. “I’m going to send him away for as long as I can,” Judge Geeker said.

Mr. Sullivan is 33 now, and his lawyers have asked the United States Supreme Court to consider the question of whether the Eighth Amendment’s ban on cruel and unusual punishment extends to sentencing someone who was barely a teenager to die in prison for a crime that did not involve a killing.

People can argue about whether the punishment in Mr. Sullivan’s case is cruel. There is no question that it is unusual. According to court papers and a report from the Equal Justice Initiative, which now represents Mr. Sullivan, there are only eight people in the world who are serving sentences of life without parole for crimes they committed when they were 13. All are in the United States.

And there are only two people in that group whose crimes did not involve a killing. Both are in Florida, and both are black. Joe Sullivan is one; Ian Manuel, who is in for a 1990 robbery and attempted murder, is the other.

Some related posts on juve LWOP and the Sullivan case:

• EJI files seeks cert on claim that juve LWOP is unconstitutional for 13-year-old offender
• NYTimes coverage of very young lifers
• Does Roper suggest young juve LWOP is unconstitutional?
• Juves serving life terms
• Life without parole for juvenile may be cruel, but it is not unusual
• The next issue in sentencing of juveniles?
• Forthcoming PBS program "When Kids Get Life"
• New HRW report assailing juve LWOP in California
• LDF report documents disparities in juve LWOP in Mississippi

Eric Holder confirmed as Attorney General

This AP article has the news about the confirmation of the nation's new top cop:

Eric Holder won Senate confirmation Monday as the nation's first African-American attorney general, after supporters from both parties touted his dream resume and easily overcame Republican concerns over his commitment to fight terrorism and his willingness to back the right to keep and bear arms. The vote was 75-21.

Some posts on the Holder pick for Attorney General and related issues:

• President-Elect Obama officially names Eric Holder as his AG pick
• Real headaches or just hiccups on nominee Holder's path to AG?
• Any early federal sentencing thoughts on Eric Holder, the next U.S. Attorney General?
• Three late afternoon thoughts on the Holder pick: race, tough and tech
• Interesting reflections on Obama appointees from drug policy reformers
• Why federal sentencing reformers must focus on the USSC and lower courts
• Are we on the verge of a new changed era concerning federal sentencing law and policy?

Departure patterns as a guide to whether guidelines are balanced

This effective local article about judicial departure rates from Virginia's state sentencing guidelines provides a terrific reminder about what judicial decisions can tell us about balances (and imbalances) in an advisory sentencing system.  Here are some statistical snippets from the article:

According to the Virginia Criminal Sentencing Commission’s 2008 annual report, judges in the 16th Circuit sentenced criminals in felony cases within sentencing guidelines 76.9 percent of the time.  They strayed from sentencing guidelines for more serious consequences in 13.7 percent of 642 cases while opting for lighter sentences in 9.3 percent.

In fiscal 2007, 16th Circuit judges followed the guidelines for 80.6 percent of 568 total cases. The judges in the circuit ... chose more severe sentences 8.8 percent of the time and lighter sentences 10.6 percent of the time....

The most recent commission report also detailed statewide compliance to sentencing guidelines in certain crimes.  Judges across Virginia stuck to sentencing guidelines 63.4 percent of the time in 232 total homicide cases, choosing more serious sentences 21.6 percent of the time and less severe sentences 15.1 percent of the time. 

Morris said he wasn’t surprised that judges strayed from the guidelines more often in violent crimes.  “That is where judges are really considering punishment and removing the person from the community for a lengthy period of time,” Morris said.

Of the 551 sexual assault cases in fiscal 2008, 20.5 percent of sentences were higher than the guidelines suggested, while 13.2 percent were lower than the recommendation. However, 22.8 percent of 202 total rape cases had less severe sentences, while 8.9 percent of sentences were more severe. Officials explained that disparity might have to do with the number of charges that falls into the sexual assault category, potential factual issues in rape cases and certain factors, such as age, that can worsen the recommended sentences.

In fiscal 2008, judges stuck to the guidelines more often in fraud, high abuse-risk drug and larceny cases, with 84.5 percent, 83.3 percent and 82.8 percent in compliance, respectively.

These data (as well as those reflected in the chart reprinted here) showcase that Virginia state judges are, generally speaking, as likely to find a guideline-recommended sentence to be too lenient as too harsh.  In sharp contrast, in the federal system, sentencing judges are roughly 10 times more likely to sentence below the guidelines than above the guidelines.  (In drug trafficking case, this ratio goes even higher; judges conclude that the federal guideline range is too harsh roughly 20 times more often than they conclude the federal guideline range is too lenient.)

Though a perfectly equal amount of upward and downward departures does not necessarily shows that a guideline system is perfectly balanced, a departure pattern like what we see in Virginia seems much sounder than what we see in the federal system.  And, what is especially troubling is that, both before and after Booker, despite departure patterns suggesting the federal guidelines are already way too harsh, the vast majority of US Sentencing Commission guideline amendments call for making the guidelines even harsher.

Should all federal plea agreements be generally available on-line?

I just saw this fascinating article from The National Law Journal, headlined "Federal judge defies DOJ wishes, orders all plea agreements to be posted online."  Here is how it starts:

Chief Judge Federico Moreno of the Southern District of Florida, bucking the wishes of the U.S. Department of Justice, has ordered all plea agreements to be posted online.

In an order issued on Jan. 22, Moreno stated that as of Feb. 20, all plea agreements "will be public documents, with full remote access available to all members of the public and the bar, unless the Court has entered an order in advance directing the sealing or otherwise restricting a plea agreement." Moreno's order rescinds a previous order of April 2007 taking all plea agreements offline and making them accessible for physical viewing only at the courthouse.

The issue of whether plea agreements should be publicly available, able to be viewed electronically through the PACER system, is a controversial one, pitting prosecutors against defense lawyers and First Amendment advocates. In 2007, the Justice Department asked the Judicial Conference to restrict electronic access to plea and cooperation agreements in order to keep information about cooperating witnesses secret.

This is a dynamic and important issue that implicates a lot more interests and concerns than even DOJ and defense attorney often acknowledge.  A recent student note (discussed here) spoke to some of these issues, and also generated some terrific comments.  Perhaps readers will use the comments to this post to continue an on-line dialogue about on-line plea agreements.

Some related posts with related questions:

• Should plea agreements be available to the public?
• Will a commitment to "transparency and the rule of law" extend to DOJ in the new administration?
• Can and will judges, defense attorneys and academics now get lots of sentencing data from BOP, DOJ and the USSC?

California Supreme Court finds Cunningham retroactive to Blakely

Providing perhaps a fitting judicial celebration of Groundhog Day, the Supreme Court of California has decided today that the Supreme Court's ruling in Cunningham must be applied retroactively to state cases that become final on direct appeal between Blakely and Cunningham.   The unanimous decision in In re Sotero Gomez, S155425 (Cal. Feb. 2, 2009) (available here), starts this way:

This case presents the question whether Cunningham v. California (2007) 549 U.S. 270 (Cunningham) applies on collateral review of a judgment that became final before Cunningham was decided but after Blakely v. Washington (2004) 542 U.S. 296 (Blakely) was decided.  We conclude that Cunningham does apply in these circumstances, and reverse the contrary decision of the Court of Appeal.

Why I fear change will not come quickly to federal sentencing policy and practice

The headline of this new article in the New York Times, "Justice Dept. Under Obama Is Preparing for Doctrinal Shift in Policies of Bush Years," might make sentencing fans hopeful that change may be coming soon to federal sentencing policy and practice as new personnel and new philosophies take over the top positions at the Justice Department.  But, as these snippets highlight, issues other than traditional federal criminal justice enforcement top the new DOJ's agenda:

Eric H. Holder Jr., whom the Senate is expected to confirm on Monday as the nation’s 82nd attorney general, plans to take the oath of office that evening to demonstrate a quick start, which will include overseeing the creation of a new detention policy for terrorism suspects.

Mr. Holder will have to contend with that and other issues rapidly. Lawyers inside and outside the department say he will face crushing time constraints. Chief among them is a pledge by President Obama to close the detention facility at Guantánamo Bay, Cuba, within a year. Mr. Holder and a department task force must find a solution to the question of what to do with the remaining prisoners there and any apprehended in the future....

“I can’t imagine a more challenging time to come in as attorney general,” said Walter Dellinger, a legal scholar who was an acting solicitor general in the Clinton administration. “The number of legal issues left behind to be resolved is really staggering.”

In the Justice Department, there is considerable restiveness as employees await new direction. The civil rights division, which had been reshaped in a conservative direction under President George W. Bush, is ripe for sharp change, administration officials said. “Many of us cannot wait for the changes,” said one career lawyer in the division, who spoke on the condition of anonymity to describe the atmosphere.

As this article documents, the triage plan for change at DOJ starts with terrorism policies and then turns to civil rights issues.  And though I view many ugly aspects of federal criminal justice law and policy to be the most pressing of civil rights issues, I doubt that the new personnel making key decision in the Obama Administration are focused first and foremost on acquitted conduct enhancements or inconsistent application of mandatory minimum sentencing statutes.

In other words, with so much else to do under extraordinary conditions, I fear that the status quo of federal sentencing policy and practice will seem good enough for the time being even to the most change-oriented of the new DOJ decison-makers.  And, even if new DOJ appointees might be eager to change course on various federal criminal justice policies, I fear that advisors will formally assert or informally suggest that the Obama Administration ought not risk spending political capital on any potentially hot-button criminal justice reforms when so many other issues are vying for attention.

The fact that we have not seen any clemency action in the first two weeks of the Obama presidency (which, as noted here, puts him behind the historical pace of presidential pardoning) confirms my instinct that change will not come quickly to federal sentencing policy and practice.  Though this comes as no surprise, my deeper concern is whether change will come at all in this arene of justice.

Some recent related posts:

• Is it too early to start demanding President Obama use his clemency power?
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• Inaugural rhetoric about freedom and liberty in prison nation
• Are the Border Agents the only federal offenders for whom President Bush feels compassion?
• A request for a commutation for Weldon Angelos 
• What might 2009 have in store for . . . executive clemency?  
• What do "our ideals" say about mass incarceration or LWOP for juves or acquitted conduct or the death penalty or GPS tracking or....
• Will a commitment to "transparency and the rule of law" extend to DOJ in the new administration?
• Why federal sentencing reformers must focus on the USSC and lower courts
• Are we on the verge of a new changed era concerning federal sentencing law and policy?

"Michael Phelps, Hypocrisy, and American Drug Policy"

The title of this post is the title of this effective new commentary by John Santore at the Huffington Post.  The piece reflects some of my own reactions to the hub-bub over the news, detailed here at CNN, concerning the published picture of Olympic champion Michael Phelps smoking a marijuana pipe.  Here are two potent paragraphs from the commentary:

While marijuana laws have changed over time, and while past administrations have attempted to show that the situation isn't as dire as it appears to be, drug policy in the United States is immensely hypocritical and destructive.  Today, public figures justify past drug use as "youthful indiscretions" and the matter is dropped.  But huge numbers of ordinary Americans are introduced to the jail system because of minor drug offenses, and as the records show, the overwhelmingly disproportionate nature of drug arrests creates a justified perception of injustice and both economic and racial bias.

Will Michael Phelps have to go to court for his actions? No. (Nor should he have to.)  Will any law enforcement jurisdiction in America conduct a systematic raid of a college dorm at a prominent university with the goal of arresting everyone in possession of marijuana? Of course not.  If such an action was taken on a broad scale, the arrests would likely be in the thousands.  At the same time, will poor Americans, overwhelmingly minority in ethnicity, continue to be arrested by local police for the possession of small amounts of pot? Absolutely.

Two notable new death penalty books

The Death Penalty Information Center Provides these reports on two notable new books covering the modern stories of capital punishment from distinct perspectives:

The Future of America's Death Penalty: An Agenda for the Next Generation of Capital Punishment Research (discussed here), edited by Charles S. Lanier, William J. Bowers, James R. Acker, is a new book comprised of original chapters authored by nationally distinguished scholars.  It is an ambitious effort to identify the most critical issues confronting the future of capital punishment in the United States and the steps that must be taken to gather and analyze the information that will be necessary for informed policy judgments. Contributors articulate the most pressing issues of administration, litigation, legislation, and executive action confronting the future of capital punishment, and identify research strategies designed to supply answers to those questions. 

Life and Death Matters: Seeking the Truth About Capital Punishment (discussed here) is a new book that  documents author Robert Baldwin’s personal journey in confronting racism and the death penalty in the Deep South.  Baldwin shares his evolution in a conversational, first-person style with a declared faith perspective.  Written for people of all beliefs and backgrounds, he focuses on the myths and misconceptions about prisons and the death penalty discovered through his personal experiences.  Baldwin began his career as a medical doctor and now devotes his time to public service work in prison ministry and to helping children born deaf and hard of hearing.

California Supreme Court to address Cunningham retroactivity

Thanks to this post at C&C, I see that the Califorina Supreme Court is due to hand down on opinion on Monday concerning the retroactive application of the Cunningham decsion to state cases that become final on direct appeal between Blakely and Cunningham.  My first instinct is to say that Cunningham should apply to these cases, but I know better than to make any firm predictions about how appellate courts are going to resolve Blakely issues.