Sentencing Law and Policy

Does the stimulus bill allow further prison growth in incarceration nation?

Over at TalkLeft in this effective post, Jeralyn identifies roughly $4 billion in the passed version of federal the stimulus bill which she calls "grants to law enforcement for lock em up programs."   Though within the context of the the huge spending bill, $4 billion might not seem like a lot of money, but I think it amounts to more than 20 times the amount of money that Congress has spent on the re-entray programs related to the Second Chance Act.

Just another telling statistic for another notable day in incarceration nation.

A deadly month leading up to Friday the 13th and Valentine's Day

With executions in Texas and Alabama on Thursday (details here), which followed two other executions earlier in the week, the United States brought to a close one of the deadly months in the administration of capital punishment in recent history.  As detailed in this DPIC list, a total of 13 murderers were executed in the month leading up to February's Friday the 13th and Valentine's Day.  (This is a ghoulish way to note these holidays, but it accords with Hollywood's murderous approach.)

In part because many states seek to avoid setting executions during the end-of-year holiday period in November and December, it is quite common for late January and early February to be a period with a large number of executions.  But anyone who is adamantly against the death penalty and also is a triskaidekaphobe must be really bumming these days.

Capturing the essence of the USSC's report on prison alternatives

As noted here, last week the US Sentencing Commission issued a new report providing an in-depth analysis of alternative sentences for federal offenders. The essence of that report is effectively discussed in this recent article by Marcia Coyle in The National Law Journal, which is headlined "New Report Shows Sharp Rise in Prison Time for Federal Offenders."  Here are excerpts from the article: 

The rate at which federal offenders are being sentenced to prison time has increased by 10 percentage points in the past 10 years — from 75.4 percent to 85.3 percent since fiscal year 1997 — while the use of alternative sentences, such as probation and probation with confinement, has decreased over the same period.

White, older citizens convicted of fraud, larceny or other white-collar crimes have a higher likelihood than other offenders of getting an alternative sentence, but they still are sentenced primarily to prison time, according to a new report by the U.S. Sentencing Commission....

The decline in the use of alternative sentences, according to the commission report, is largely due to noncitizen offenders who must be confined while awaiting deportation. In fiscal year 2007, more than one-third (37.4 percent) of offenders were noncitizens, the overwhelming majority of whom were illegal aliens. "The citizen/noncitizen issue is no small issue in terms of sentencing outcome," said Ryan King of the Sentencing Project. "If the offender is here illegally, the court is not going to release him."

Interesting reading on focused corrections and sentencing issues

Now available on SSRN are these two pieces that, though focused on relatively narrow issues, provide lots of food for sentencing thought:

• Do No Harm: An Analysis of the Legal and Social Consequences of Child Visitation Determinations for Incarcerated Perpetrators of Extreme Acts of Violence Against Women by Dana Harrington Conner
• Disputed Deductions: Delfino and the Fourth Circuit's Prudent Adoption of the Restrictive Approach to Tax Evasion Sentencing by Timothy J. Coley

Seventh Circuit reverses sentence based on insufficient evidence of "precrime" of attempted murder

The Seventh Circuit today in US v. England, No. 08-2440 (7th Cir. Feb. 13, 2009) (available here), suggests that we do not (yet) live in a Minority Report world in which special government agents can punish persons for crime they are predicted to commit.  Specifically, the Seventh Circuit in England finds error in a district court's decision to increase a defendant's sentence significantly based on the "court’s belief that the defendant would have committed the crime" of attempted murder if given the opportunity to be free on bond.  England, slip op. at 13. (emphasis in original).

The England opinion is fascinating for many reasons, and here is one particularly interesting passage discussing a sentencing judge's discretion (with some cites omitted):

We grant sentencing courts discretion to draw conclusions about the testimony given and evidence introduced at sentencing. Yet, this discretion is neither boundless nor is the information upon which a sentencing court may rely beyond due process limitations. To the contrary, we recognize that due process requires that sentencing determinations be based on reliable evidence, not speculation or unfounded allegations. United States v. Santiago, 495 F.3d 820, 824 (7th Cir. 2007); see also United States v. Berry, 2009 WL 22890, at *8 (3d Cir. Jan. 6, 2009) (“A defendant cannot be deprived of liberty based upon mere speculation.”). Indeed, the Supreme Court has long recognized that “[n]o individual or body of men has a discretionary or arbitrary power to commit any person to prison.” Hurtado v. California, 110 U.S. 516, 537 (1884). If the district court relied on unreliable or inaccurate information in making its sentencing decision, we return the case to the district court for a new sentencing hearing.

Interestingly (and somewhat disturbingly), though the Seventh Circuit reverses the sentence in this appeal, it hints that the real problem was just that the district court did not have enough evidentiary support for its conclusion that the defendant would have committed attempted murder.  Consider how the England opinion ends:

[W]e respectfully — and with a degree of reluctance considering the district court’s diligence in attempting to arrive at the correct disposition in this matter — vacate England’s sentence and remand to the district court for resentencing....

In arriving at our decision, we want to underscore that we do not pass judgment on the reasonableness of the 210-month sentence imposed by the district court. As noted above, the able and experienced district court judge conducted a thorough and meaningful § 3553(a) analysis and the sentence that he imposed very well may be reasonable. The district court need not repeat this analysis at resentencing; it can adopt the § 3553(a) findings arrived at during the June 2, 2008 hearing. We only require that the district court make its sentencing determination without reliance on a finding that England would have attempted murder if out on bond unless further evidence is adduced which would justify such a conclusion.

So, by my reading, if the prosecution can come forward with more evidence to support the claim that the defendant here would have committed attempted murder, the Seventh Circuit would be fine with the sentence imposed.  Perhaps some of those weird psychic precogs can come testify at the next sentencing hearing against the defendant to make sure he does not get away with his "precrime" of attempted murder.

Written testimony from US Sentencing Commission hearing in Atlanta now on-line

I am pleased to see that the US Sentencing Commission has now posted a lot of the written testimony that was submitted in conjunction with the USSC's first (of many?) regional hearings about the federal sentencing system (background here and here).  All of the testimony available on-line can be found through this link, and all of the testimony I have reviewed looks amazing and quite insightful.

Some related recent posts:

• On-the-scene report on the US Sentencing Commission regional hearings in Atlanta
• US Sentencing Commission's regional hearings to start next week
• Gearing up for US Sentencing Commission's regional hearing in Atlanta
• How a new administration is likely to impact federal sentencing practice
• 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?

State judges plead guilty to sending juves to jail for moolah

A number of readers have sent me various links to an incredible story from Pennsylvania.  The New York Times coverage in this article is headlined "Judges Plead Guilty in Scheme to Jail Youths for Profit"; a local paper has this article headlined "Pa. judges accused of jailing kids for cash." Here is the basic story from the NYTimes:

Mark A. Ciavarella Jr., and a colleague, Michael T. Conahan, appeared in federal court in Scranton, Pa., to plead guilty to wire fraud and income tax fraud for taking more than $2.6 million in kickbacks to send teenagers to two privately run youth detention centers run by PA Child Care and a sister company, Western PA Child Care.

While prosecutors say that Judge Conahan, 56, secured contracts for the two centers to house juvenile offenders, Judge Ciavarella, 58, was the one who carried out the sentencing to keep the centers filled.

“In my entire career, I’ve never heard of anything remotely approaching this,” said Senior Judge Arthur E. Grim, who was appointed by the State Supreme Court this week to determine what should be done with the estimated 5,000 juveniles who have been sentenced by Judge Ciavarella since the scheme started in 2003.  Many of them were first-time offenders and some remain in detention....

If the court agrees to the plea agreement, both judges will serve 87 months in federal prison and resign from the bench and bar.  They are expected to be sentenced in the next several months. Lawyers for both men declined to comment.

Though I do not know the particulars of the plea agreement or all the facts surrounding the defendants' crimes, I think both offenders should consider themselves very lucky that federal prosecutors were willing to agree to a sentence of only about seven years of imprisonment.  Based on the apparent nature and scope and consequences of the judges' crimes here, I certainly could make a strong argument based in the 3553(a) factors that these defendants should be serving a MUCH longer sentence than the average low-level drug dealer or downloader of child porn.

This case, in my view, presents a particularly interesting set of issues with respect to the federal Crime Victims Rights Act.  I think all of the 5,000 juveniles sentenced by Judge Ciavarella (and perhaps also their parents) could reasonably seek to assert rights under the CVRA.  I wonder how many will seek to address the district court at sentencing.

Notable new scholarship on therapeutic jurisprudence

I just noticed via SSRN this interesting new paper from David Wexler, titled "Therapeutic Jurisprudence, Legal Landscapes, and Form Reform: The Case of Diversion." Here is the abstract:

This essay, prepared for a therapeutic jurisprudence workshop at the Florida Coastal Law School, will be published in the Therapeutic Jurisprudence Review of the Florida Coastal Law Review.  It discusses several therapeutic and antitherapeutic legal landscapes operative in diversion, sentencing, and corrections, such as sentence credit for presentence confinement, the relevance of post-offense and post-sentence rehabilitation on sentence imposition, and the absence of motivational power in the federal mechanism of supervised release.  Finally, it discusses in detail the federal diversion program, and the pretrial diversion form and related procedures as detailed in the US Attorneys Manual. The essay concludes by conceptualizing the Manual as part of the federal "legal landscape" of interest to the field of therapeutic jurisprudence, and suggests "form reform" as an important new direction of scholarship.

Notable sentencing news from Ohio

My home state is lately full of sentencing news, and here are two afternoon headlines providing signs of the sentencing times:

• From the Cleveland Plain Dealer here, "Death Row inmate Jeffrey Hill's sentence commuted by Gov. Strickland"
• From the AP here, "Ohio prisons chief urges sentencing changes before inmate population soars"

What does Prez Obama's pick for drug czar suggest for possible drug policy reform?

As detailed in this Seattle Times article, "Seattle Police Chief Gil Kerlikowske has accepted a job as the nation's drug czar in the Obama administration, according to a source in Washington, D.C., who is familiar with the administration's plans."  This Seattle Post Intelligencer article, which is headlined "Kerlikowske seen as a progressive," suggests advocates for drug policy reform are relatively pleased with the decision: 

Many people, including those traditionally at odds with government policies, were "cautiously optimistic" about Kerlikowske, who became police chief in 2000.

"He's likely to be the best drug czar we've seen, but that's not saying much," said Ethan Nadelmann, executive director of the Drug Policy Alliance, a national nonprofit group focused on changing drug policies.

Nadelmann called Kerlikowske, 59, a "blank slate" because of his notable absence in drug-policy debates. But he was encouraged by the chief's ability to thrive in a city famous for its drug courts, needle exchanges, methadone vans and annual Hempfest celebration. "At least we know that when we talk about needle exchanges and decriminalizing marijuana arrests, it's not going to be the first time he's heard about them," he said.

Over at TalkLeft, Jeralyn in this post quotes some other reactions to the pick and expresses some faint praise.

Some recent related posts:

• Should we be worried or hopeful about the Obama Administration and the drug war?
• Terrific commentary and assessment of the war on drugs
• Interesting reflections on Obama appointees from drug policy reformers
• Will any Prez candidate promise to get us out of a failed war ... on drugs?
• The state of cost problems in the states of prison nation
• "Real commander needed for the war on drugs"
• "America's Forgotten War"
• What might 2009 have in store for . . . drug sentencing law and policy?

Another notable story of paralysis and prosecution for child porn

Regular readers may recall this post from December discussing a remarkable case from Buffalo in which federal prosecutors decided not to press charges against a quadriplegic who downloaded a lot of child porn.  Now this local story from Alabama, headlined "Judge delays sentencing in porn case involving paralyzed man," suggests that we may need to develop a jurisprudence of paralysis and porn.  Here are a few details from the article:

[A] federal judge in Mobile on Wednesday said she needs more information from prison officials before sentencing the man, who admitted to secretly videotaping young girls who used his bathroom. Under advisory sentencing guidelines, Robert Vezendy faces at least 14 years in prison on the charge he pleaded guilty to: receipt of child pornography.

But defense lawyer Dennis Knizley contended that anything longer than the five-year statutory minimum would be a "death sentence" for a 43-year-old man who has been paralyzed since an accident that occurred when he was 17....

Vezendy, seated in a wheelchair before the judge, apologized for downloading the child porn and making the secret videos. He said he never would have harmed the children, but offered little explanation for his conduct. "There's really no good reason why I made them," he said. "I have a lot of regret. I was just curious."

A doctor testified that Vezendy has no movement from about the middle of his back down. She said he has limited use of his hands and arms and can perform basic tasks, such as writing and eating, only with the assistance of special splints on his arms....

Susan Wardell, a mitigation and alternative sentencing specialist from Atlanta, testified that imprisoning Vezendy would be costly for the government as well as the defendant.  She said her inquiries to prison officials revealed that Vezendy would not be allowed to have his splints, which would render him virtually helpless.

Wardell said prison authorities also told her they do not have trained medical personnel who would be able to take care of him around the clock. Instead, she said, the responsibility would fall to fellow inmates.  "It's cruel and unusual punishment," she said. 

UPDATE:  Over at The Faculty Lounge here, Dan Filler has a number of interesting comments about these paralysis and porn cases.

Fascinating pitch for serious SCOTUS reforms

Marcia Coyle has this fascinating new piece in The National Law Journal, headlined "Law Profs, Former Judges, Attorneys Urge Major Reforms for Supreme Court."  Here is how it starts:

A group of 33 law professors, former state supreme court justices and practitioners are urging the attorney general and the heads of the Senate and House judiciary committees to consider four changes in the operation of the U.S. Supreme Court, including regular appointment of justices and the involvement of appellate judges in the selection of cases to be decided on the merits.

The group sent the proposals in draft legislative form and noted that all of its members do not support all of the proposals, but are "unanimous" that it is time for Congress to reconsider the law applicable to the Supreme Court, "a subject it appears not to have seriously considered for at least 70 years."

The proposals grew out conversations among the group's members over a period of years, said professor Paul Carrington of Duke Law School. Although the members are not unanimous on all four proposals, Carrington added, "All of them have one background thought -- the Supreme Court has gotten a little too big for its britches and it would be good for Congress to enact a law or two that says, 'You're part of an enterprise that we have some power over.' "

On-the-scene report on the US Sentencing Commission regional hearings in Atlanta

Professor Ronald Wright, who testified Wednesday during the second day of the US Sentencing Commission's regional hearings in Atlanta (background here and here), was kind enough to send along this terrific on-the-scene report of his experiences:

I could not attend the first day of the hearings, which had a full and interesting agenda.  The Day One sessions involved appellate judges, probation officers, defense attorneys, and state and local law enforcement.  Based on my quick perusal of the written comments from Day One (all available at a welcoming table out front), I can especially recommend pages 7-11 from the comments of Greg Forest, the Chief U.S. Probations Officer from the Western District of NC.  

The first panel on Day Two was devoted to four federal trial judges:  Chief Judge Bob Conrad (WD NC), Judge Gregory Presnell (MD FL), Chief Judge Robert Hinkle (ND FL), and Chief Judge William Moore (SD GA).  On the whole, the judges seemed satisfied with the basic structure of the guidelines in the post-Booker world.  They all expressed concerns about some particular provisions that were still creating injustices in particular cases (the child pornography guidelines were mentioned several times), and of course all four judges were critics of mandatory minimum statutes.  Chief Judge Conrad made an eloquent plea for a less active Commission:  invoking an image used by Chief Justice Roberts in Sears, he believes that the Commission should stop pulling the plant out of the ground so often to see if the roots are healthy.  The courts need time to sort out so many recent developments.  

The Commissioners were all engaged and seemed quite interested in the views of the sentencing judges (just as they should be!).  The room itself was deadly: 180 seats, occupied by a crowd ranging between 12 and 16 people, not counting the 5 staffers and 2 sound engineers in the room.  The speakers were certainly not feeding off the energy from the crowd.  

I appeared on the second panel, devoted to the views of academics.  Rod Engen (NC State, Criminology) talked about the need to advocate for smaller prison populations and to collect prosecutor data; Gordon Bazemore (Florida Atlantic, Criminology) talked about restorative justice.  I suggested that the commission should radically de-emphasize its efforts to control judicial discretion and should re-fashion its role as a source of study and information about sentencing practices, both federal and state.  I argued, based on state experience, that judges will reach a natural equilibrium of compliance with guidelines, regardless of the details of the guidelines or the precise standards of appellate review.  

The Commissioners were polite, and asked some very smart follow-up questions.  Still, I don’t think the academic panel spoke to the current mind-set of the Commission.  For reasons that I can certainly understand, the Commissioners seemed more engaged with the judicial suggestions about concrete system improvements than the more removed and less practical agendas of the academics.

So there’s one view of the hotel ballroom for you.  

Lots of mixed messages from the latest death penalty headlines

A scan of newspaper headlines this week provides lots of different messages about the status of the death penalty in the United States these days.  When in comes to executions, as these stories show, the death penalty seems quite "in" at least in some states:

• Texas executes man tied to 'bathtub slayings'
• Florida executes rapist who strangled Tampa girl
• Alabama AG Opposes Delaying Bradley Execution
• Houston killer set to be executed on Thursday

But when it comes to legislative reforms, as these stories show, the the death penalty seems quite "out" in some other states:

• Senate panel advances bill to abolish death penalty (from Montana)
• Legislator works to repeal state's death penalty (from New Hampshire)
• Proposal to abolish the death penalty draws almost no opposition (from Washington)

UPDATE:  The DPIC has this little item noting all the legislative activity afoot in the arena of capital punishment:

Several states have recently introduced legislation to abolish or limit the death penalty. Bills to end capital punishment have been introduced in at least eight states: Nebraska, Colorado, New Mexico, Montana, New Hampshire, Maryland, Washington, and Kansas. For some of these states, the high costs of the death penalty has been an important factor in the legislative debates. For example, Colorado’s bill to abolish the death penalty specifies that the money saved from not pursuing executions could be used for solving cold cases.

Other states, such as Virginia and Georgia, have proposed legislation that would expand the use of capital punishment.

One notable economist's reaction to the California prison litigation

In this column, famed economist Steven Levitt has these fascinating responses about the recent federal court "tentative opinion" calling for a massive reduction of California's prison population:

[A] prisoner’s rights group won a preliminary decision against the state of California’s prison system.  Consistent with my earlier [research], the lawsuit already seems to have had some impact on California’s prison population. For instance, in 2007 California’s prison population shrunk by about 1 percent, whereas the overall U.S. prison population grew by nearly 2 percent.  It will take a few years before a final court decision is handed down, but the likely outcome is that five or six years from now there will be 25,000 fewer inmates than there otherwise would have been.

What does this mean for crime?  If my estimates are correct, ultimately violent crime will be roughly 6 percent higher in California than it would have been absent the lawsuit.  That is roughly 150 extra homicides a year, 500 additional rapes, and 4,500 more robberies.

While those crime numbers sound bad, according to my estimates, letting out the prisoners is more or less a wash from a societal cost-benefit perspective.  The money we save from freeing the prisoners is on the same order of magnitude as the pain and suffering associated with the extra crime.

I do have one very specific policy recommendation to the state of California.  If they do a mass release of prisoners, it should be done with strings attached.  Namely, if the released prisoner gets convicted of a crime again in the future, his sentence the next time around should be whatever it normally would be plus all of the time that he should have served on his current sentence that gets cut short because of the early release.

This rule would strengthen the incentives for the ex-cons to stay straight.  Italy enforced such a policy after a mass release, and it appears to have been quite effective.

Some related prior posts:

• "Judges indicate they may order prison population reduced by 58,000" 
• Next stop SCOTUS (or settlement) for California prison litigation?

Sixth Circuit panel reinstates federal death sentence

This afternoon, I begin the death penalty unit in my sentencing class, and the Sixth Circuit this morning has provided me with a new case to discuss.  In US v. Lawrence, No. 06-4105 (6th Cir. Feb. 11, 2009) (available here), the panel reverses a district judge's determination that a federal death sentence could not stand.  Here is the start of the Sixth Circuit's opinion:

Defendant Daryl Lawrence was convicted of armed bank robbery, attempted armed bank robbery, murder, and firearms charges. Two of the counts, Counts Seven and Eight, charged death-eligible offenses. The jury returned a verdict of life imprisonment on Count Seven and a verdict of death on Count Eight. Ruling on defendant’s motion for new trial, the district court held that the jury’s verdicts on Counts Seven and Eight were inconsistent.  The court vacated the verdict of death on Count Eight and ordered a new sentencing hearing.  The government appeals, contending the verdicts are not inconsistent.  Lawrence has moved for dismissal of the government’s appeal as premature.

For the reasons that follow, we deny Lawrence’s motion to dismiss the government’s appeal, vacate the district court’s order partially granting the motion for new trial, and thereby reinstate the sentence of death originally imposed by the district court on Count Eight.

Because few death sentences get resolved without lots and lots of litigation, I can safely predict that there will be en banc debate and cert petitions in the future of this case.

Notable due process ruling from Massachusetts high court about detaining dangerous juves

Thanks to this post at How Appealing, I discovered yesterday's notable due process ruling coming from the Supreme Judicial Court of Massachusetts.  This article from the Boston Globe provides a useful summary of the ruling:

The highest court in Massachusetts struck down a law yesterday that allows the state to keep juvenile offenders who are slated to be released at 18 in custody for three more years if they are believed to be dangerous....

In yesterday's decision, [the court] wrote that the court warned the Legislature in 2004 that it had "grave concerns" about the constitutionality of the statute because of its failure to adequately define dangerousness, and "invited it to correct the deficiencies."  However, the Legislature did not change the law.  

The court found that the current law has "potential for abuse of unlimited discretion."  The DYS first makes a determination of dangerousness and then submits its recommendation to civil court, where a judge or jury ultimately decides whether the teenager should remain in custody.

Though limited to a specific factual setting, the court's expressed concerns about vagueness and limited procedural protections in the assessment of "dangerousness" could have implications in lots of other settings.  And, importantly, the court here made clear that its ruling was that the state "statute violates substantive due process" under the 14th Amendment.  Anyone concerned with the very concept of "substantive due process" may be concerned with the implications of how this court justified its holding.

The persistent problems with fast-track disparity after Booker and Kimbrough

One (of many) persistent post-Booker jurisprudence hot-spots concerns whether defendants who are not within so-called "fast-track" districts should be eligible for comparable early plea reductions when their cases are factually similar to those who get the benefit of such reductions in "fast-track" districts.  Before Kimbrough, the circuits had generally ruled that district court's lack discretion to provide such reductions without the blessing of the government.  After Kimbrough, this issue has divided the circuits. 

As evidenced by a recent district court opinion sent my way be a helpful reader, at least one district judge seems eager to have this issue reviewed with greater focus in light of current jurisprudential and fast-track realities.  The opinion in US v. Sanchez-Gonzalez, No. 08 CR 609 (N.D. Ill. Feb. 9, 2009) (available for download below), concludes this way:

Galicia-Cardenas and Martinez-Martinez are, of course, binding on this Court.  Mr. Sanchez-Gonzalez argues, however, that the Supreme Court’s intervening decision in Kimbrough v. United States, 128 S. Ct. 558 (2007), permits the Court, despite the Seventh Circuit’s decisions, to consider fast-track disparities as unwarranted within the meaning of section 3553(a)(6).  The Court disagrees.  The Supreme Court concluded in Kimbrough that a district court may base an outside-the-Guidelines sentence on its disagreement with the Sentencing Commission’s policy decisions.  The Court did not conclude, however, that a district court may base its sentence on its disagreement with Congressional directives.  Indeed, the Court took some pains in Kimbrough to point out that the policy decision at issue there – the Sentencing Commission’s adoption, in the Guidelines for narcotics cases, of a 100-to-1 ratio treating every gram of crack cocaine as the equivalent of 100 grams of powder cocaine – was not the result of an express legislative directive, id. at 570-71, or even an implied legislative directive, id. at 572-73.

This Court continues to believe, as a matter of policy, that it is unjust to permit sentencing disparities based on the fortuity of the judicial district in which a defendant in an illegal reentry case is charged. And one can legitimately take issue with the proposition that all fast-track reductions in illegal reentry cases are the product of Congress’ policy statement in the PROTECT Act and the companion legislative report cited by the Seventh Circuit.  As this Court pointed out in Medrano-Duran, and as reemphasized by the data defense counsel have submitted in the present case, a number of so-called fast-track reduction programs operate outside the bounds of Congress’ directive to the Sentencing Commission and Sentencing Guideline § 5K3.1.  See Medrano-Duran, 386 F. Supp. 2d at 946-47. That was part of the basis for this Court’s determination in Medrano-Duran that it was appropriate to consider such disparities in determining whether to impose a below-Guidelines sentence.

One might also legitimately argue that nothing in the PROTECT Act nor the legislative report cited in Martinez-Martinez amounts to express or implied legislative disapproval of deviation from the Sentencing Guidelines based on inter-district disparities resulting from the Department of Justice’s determination to adopt fast-track programs in some districts but not others.  See United States v. Rodriguez, 527 F.3d 221, 229 (1st Cir. 2008).  But the Seventh Circuit has taken a different course, and until it or the Supreme Court concludes otherwise, the choice is not one this Court is permitted to make.

For these reasons, the Court concludes that it is not permitted to consider, in imposing sentence in this case, the fact that a fast-track or early disposition program is not available in this District.

Download Fast_Track--J._Kennelly

"Deregulating Guilt: The Information Culture of the Criminal System"

The title of this post is the title of this interesting new paper from the always interesting Professor  Alexandra Natapoff.  Here is the abstract:

The criminal system has an uneasy relationship with information.  On the one hand, the criminal process is centrally defined by stringent evidentiary and information rules and a commitment to public transparency.  On the other, largely due to the dominance of plea bargaining, criminal liability is determined by all sorts of unregulated, non-public information that never pass through the quality control of evidentiary, discovery, or other criminal procedure restrictions.  The result is a process that generates determinations of liability that are often unmoored from systemic information constraints.  This phenomenon is exemplified, and intensified, by the widespread use of criminal informants, or "snitching," in which the government trades guilt for information, largely outside the purview of rule-based constraints, judicial review, or public scrutiny.  With a special focus on the Supreme Court's decision in United States v. Ruiz, this Article explores the criminal system's putative stance towards the proper use of information in generating convictions, in contrast with actual information practices that undermine some of the system's foundational commitments to accuracy, fairness, and transparency.  It concludes that the evolution of this deregulated information culture is altering the functional meaning of criminal guilt.

More ugliness revealed in prosecution of former Senator Ted Stevens

This New York Times article provides more fascinating details concerning more of the ugliness surrounding the federal prosecution of former Alaska Senator Ted Stevens:

An F.B.I. agent who worked on the investigation of Senator Ted Stevens of Alaska, who was convicted on ethics charges, has said in a stunning formal complaint that a fellow agent and prosecutors contrived to improperly conceal evidence from the court and the defense.

Among the startling accusations in the statement by the agent, Chad Joy, is that another agent maintained an inappropriate relationship with the prosecution’s star witness. Mr. Joy said his colleague, Mary Beth Kepner, almost always wore pants but on the day the witness, Bill Allen, took the stand, Ms. Kepner donned a skirt, which Mr. Joy said she described as “a present” to Mr. Allen....

Judge Emmet G. Sullivan, who presided over the Stevens trial in Federal District Court here, has called a hearing Friday to consider a request by Mr. Stevens’s lawyers for a new trial based on Mr. Joy’s complaint.

If this is what goes on even in a high-profile case when everyone knows their actions are likely to be scrutinized, imagine what might possibly take place in the thousands of other cases involving less prominent and powerful defendants.  I now remain truly sorry that Stevens lost his re-election bid because this experience might have turned him into a prominent critic of excessive prosecutorial power and a crusader for criminal defendants' rights.

Some related posts:

• Senator Stevens convicted on all counts
• Some sentencing questions after Senator Stevens conviction
• How should (and will) Senator Stevens' political past and future impact his sentencing?
• Prosecutorial misconduct or just standard operating procedures in Senator Stevens' prosecution?
• Plot thickens in allegations of prosecutorial misconduct in Senator Stevens' case
• A sentencing approach to dealing with prosecutorial misconduct
• District Court embraces a sentencing approach to dealing with prosecutorial misconduct (and highlights the impact of effective scholarship)

Another prominent (minority) athlete in trouble for lying about steriod use

The latest news on the steroid litigation front has to make Roger Clemens plenty worried. Here is today's steroid development as reported in this Bloomberg article:

Houston Astros shortstop Miguel Tejada was charged with lying to Congress about performance- enhancing drug use in Major League Baseball. Tejada “unlawfully, willingly and knowingly” failed to tell everything he knew about an unidentified player’s use of steroids and human growth hormone during meetings with the congressional investigators in August 2005, U.S. Attorney Jeffrey Taylor said in a criminal information filed today in Washington.

A criminal information can’t be filed in a felony case without the consent of the defendant, according to Sullivan & Cromwell attorney Karen Patton Seymour, former chief of the criminal division for the U.S. Attorney’s office in Manhattan. “Typically, consent is given when a plea agreement has been reached or is very close,” Seymour said in an interview.

Tejada, a citizen of the Dominican Republic who has a U.S. work permit, is scheduled to appear in U.S. District Court in Washington tomorrow at 11 a.m., a spokesman for the court said.

I didn't even know that Tejada was in the cross-hairs of federal investigators, and it will be interesting to see what kind of deal might have already been put together before this story broke. 

Whatever the particulars are related to Tejada, this latest federal charge makes me even more eager to see Roger Clemens subject to federal prosecution for his apparently false testimony to Congress.  Few persons were even aware that prominent minority defendants like Marion Jones and Barry Bonds and now Miguel Tejada ever testified about their alleged steroid use.  But Roger Clemens brazenly asked to testify before Congress and then offered testimony that did not seem at all credible (at least to me).  The percpetion of equal justice will be poorly served if only prominent minority altheles face charges for lying about steroid use.

Some related posts:

• Marion Jones gets six-month federal prison term
• Feds get another conviction in steroid investigations
• Another federal sentence for another athlete lying about steroid use
• A fascinating prosecutorial critique of the steroid investigation
• Should Roger Clemens now be indicted for perjury?
• More on Roger Clemens, Barry Bonds, perjury prosecutions and race concerns
• "McNamee's Lawyer Predicts Clemens Pardon"
• Barry Bonds indicted, what would be his guideline range?

Why do defense wins in sentencing appeals often go unpublished?

I tend not to be a strong believer in conspiracy theories, but this news story about a significant defense victory in an unpublished Fourth Circuit sentencing ruling leds me to again wonder why so many important defense wins in sentencing appeals often go unpublished?  First, here is the press account:

A federal appeals court has ordered a new sentencing hearing for a former Robeson County sheriff who admitted lying about corruption in his department.  The 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled Monday that U.S. District Judge Terrence Boyle  erred in June when he sentenced Glenn Maynor to six years in prison. Boyle did not adequately explain the sentence, the appeals court ruled....

"The court's perceived need to right the wrongs that occurred in Robeson County since the 1950s is an inappropriate basis for a variance sentence, since Maynor was indisputably not responsible for any wrongdoing prior to 1994," the court said.

The full opinion in US v. Maynor is available here; it is officially unpublished, but includes lots of interesting and important passages such as this one:

While, after the sentencing hearing, the court provided a report checking certain § 3553 factors as the basis for its decision, this report was insufficient to satisfy the court’s duty to make an individualized assessment of Maynor’s circumstances and provide an explanation of sentence. The court relied on irrelevant and faulty assumptions and failed to tie these assumptions to the § 3553 factors.  The large variance in this case required significant analysis that is simply absent. Accordingly, we conclude that the court abused its discretion when imposing sentence and that the court’s errors require that Maynor be resentenced.

Regular readers may recall some other big defense wins that were left unpublished, such as the lone decision (from the Ninth Circuit) finding a within-guideline sentence sunstantively unreasonable in Paul (noted here) and the important decision (from the Second Circuit) upholding a huge downward variance in Adelson (noted here).  It is bad enough that defendants rarely win major sentencing appeals.  It is worse, and quite disturbing, that many circuit courts seem to want to have the rare defense win go unnoticed.

Meanwhile, as evidenced by two big published rulings today by the Tenth Circuit, circuit judges usually make sure that major losses by defendants get the full published treatment.  In US v. Friedman, No. 07-4118 (10th Cir. Feb. 10, 2009) (available here), a defendant has his below-guideline sentence reversed in a published opinion, and in US v. Yanez-Rodriguez, No. 08-2100 (10th Cir. Feb. 10, 2009) (available here), a defendant has his above-guideline sentence affirmed in a published opinion.

Another prominent federal felon gets prominent TV gig

I always find it interesting how easy it is for the rich and famous to move past federal felony convictions.  Martha Stewart, some may recall, made lots of money during her incarceration because her company's stock rose significant while she served her federal prison sentence.  And Stewart's television show is still going strong.

Now, according to this news report, headlined "Rapper Lil' Kim joins 'Dancing with the Stars'," another well-known federal felon is going to get some notable post-release screen time:

Grammy-award winning rapper Lil' Kim, Olympic gymnast Shawn Johnson and former New York Giants linebacker Lawrence Taylor will hit the floor for "Dancing With the Stars" when the show returns for an 8th season in March, ABC said on Monday....

Johnson, 17, who won an Olympic gold medal at the Beijing games in 2008, is the youngest ever competitor on the hit show which returns with a two-hour season premiere on March 9.

Singer and actress Lil' Kim, 33, spent a year in prison in 2005 after being found guilty of perjury and conspiracy for lying about the involvement of her friends in a 2001 shooting in New York....

"Dancing With the Stars" has proved a ratings smash for ABC.  Its last season, which ended in September 2008, drew about 19 million viewers per episode.

It is nice to see that at least some prominent persons do not have their lives completely changed by federal felony convictions (though, as regular readers know, apparently these felons forever lost their Second Amendment rights by virtue of their convictions).  Perhaps Stewart and Lil' Kim can become official celebrity endorsers of the federal Second Chance Act.

Next stop SCOTUS (or settlement) for California prison litigation?

This morning's New York Times article about yesterday's tentative ruling by a three-judge panel in California's long-running prison litigation confirm my sense that this story has so many interesting dimensions.  Here are snippets from the very effective article in today's NYTimes: 

The California prison system must reduce overcrowding by as many as 55,000 inmates within three years to provide a constitutional level of medical and mental health care, a federal three-judge panel tentatively ruled Monday....  “The evidence is compelling that there is no relief other than a prisoner-release order that will remedy the unconstitutional prison conditions,” the panel said in its tentative ruling.

The California attorney general, Jerry Brown, vowed to appeal the ruling.  “This order, the latest intrusion by the federal judiciary into California’s prison system, is a blunt instrument that does not recognize the imperatives of public safety, nor the challenges of incarcerating criminals, many of whom are deeply disturbed,” Mr. Brown said in a statement.  “The court’s tentative ruling is not constitutionally justified,” he said. “Therefore, the state will appeal directly to the U.S. Supreme Court when the final order is issued.”...

The ruling left the door open for still more negotiations between the thousands of imprisoned plaintiffs and the state in the court proceedings, part of a series of class-action lawsuits accusing the state of failing to provide adequate health care to prisoners.  Federal judges have already ruled that the state’s failure to provide medical and mental health care is killing at least one inmate every month and has subjected inmates to cruel and unusual punishment, which is prohibited by the Constitution....

The judges have been reluctant to order specific reforms, however, and several times during final arguments they asked lawyers for the state what their plans were to reduce the prison population and whether the court had the authority to impose specific remedies....

The California prison system has doubled its design capacity, and some facilities are even more packed than that. Prison gymnasiums and classrooms are packed with three-tier prisoners’ bunks, and lines for prison health clinics often snake 50 men deep. Rehabilitation programs, recreational facilities and health care facilities are all compromised by the crowds of felons.

Lawyers for the prisoners said that despite California’s exceptionally poor conditions, the ruling could have a national impact on prison reform if other inmate lawsuits seek population caps on other overcrowded facilities.  The ruling is also an important success for inmates since the passage of the Prison Litigation Reform Act of 1995, which made it harder for prisoners to bring lawsuits and limited court remedies for allegations of prison abuse.

As regularly readers know, yesterday's tentative ruling hardly comes out of the blue.  California has been beset by extreme sentencing and prison crowding problems for many years, and the federal judges involved in this litigation have given the state lots and lots of opportunities to get its prisons in better order.  But a lack of political will and economic problems have prevented even minor reforms from moving forward, and I have reason to believe that truly reform-minded politicians in California may be glad that the federal courts are finally ordering that something drastic be done.

And yet, nothing has been ordered yet.  Notably, yesterday's action by the special federal judicial panel was only styled a "tentative ruling."  That fact alone is remarkable, since I do not recall reading the section of the Constitution that authorizes federal courts to issue "tentative rulings."  (Maybe the Supreme Court should try this its most controversial cases: just imagine how useful it might be to have tentative rulings on abortion rights or affirmative action; maybe Heller should have just been a tentative ruling about the Second Amendment.)

Tentative or not, the decision to suggest a cap on prison population is a very important development and one that should garner lots and lots of attention from all quarters.  Indeed, this facet of the ruling likely ensures that the Supreme Court will take up this case if (when?) a final ruling is entered and the state appeals.  But I predict (and partially fear) that some sort of highly imperfect settlement will be put together in order to prevent this tentative ruling from ever becoming a final order.

But if the tentative ruling does become an order, the litigation going forward could get real interesting because of the potential national impact of what the panel has ordered.  I think other states would likely chime in as amici if this case gets brought to the Justices, and the Justices likely would ask the Solicitor General to weigh in as well.  And, of course, every criminal-justice and prisoner-rights group could and should have something significant to say about what's going on in California if SCOTUS is to take up this issue.  In short, stay tuned.

Some prior posts providing some background on the litigation timelines:

• "Judges indicate they may order prison population reduced by 58,000" (Feb. 2009)
• "Federal judges to rule on California prison crowding" (Dec. 2008)
• The latest chapter in the California prison overcrowding saga (July 2007)
• California facing forced prison releases (Feb. 2007)
• Schwarzenegger's plan to reform California's prison problems (Dec. 2006)
• "Hasta la vista, prison overcrowding!" (June 2006)
• The challenging politics of reform (Feb. 2006)

The realties of family values in prison nation

Yesterday I received via e-mail this new about a notable new report from the folks atThe Sentencing Project:

A new analysis by The Sentencing Project highlights the growth in the number of incarcerated parents and their children since 1991.  Incarcerated Parents and Their Children: Trends, 1991-2007 reviews data from the Bureau of Justice Statistics and documents the growing impact of incarceration on children and families.

As of 2007, 1.7 million children had a parent in prison, an 82% increase from the figure of 936,000 in 1991.  The racial/ethnic variation among this group is quite broad: 1 in 15 African-American children has a parent in prison, as does 1 in 42 Latino children and 1 in 111 white children.

Due to the distance from home in which many parents are incarcerated — 62% of parents in state prisons are more than 100 miles from home — visits from children are declining over time. In 2004, more than half of parents in state prisons and nearly half in federal prisons had never had a visit from their children.

To address the issues presented by these developments, The Sentencing Project recommends policy responses [of various sorts in this report].

Washington Post urges Prez Obama to do better on clemency

I was pleased to just discover that the Washington Post had this editorial yesterday that echoes my calls for President Obama to make better and more prominent use of his clemency power.  The editorial is headlined "A Need for Mercy: President Obama should not replicate his predecessor's sad track record on pardons," and here are excerpts:

Mr. Bush's legacy on pardons will be shaped largely by what he failed to do. Mr. Bush pardoned 189 inmates and commuted the sentences of 11 others -- the stingiest record compiled by any two-term president since World War II.... Perhaps after the term-ending fiascos of the Clinton administration, which gave us the notorious pardon of fugitive financier Marc Rich, it is not hard to understand why a president might shy away from using the pardon power. Perhaps this explains Mr. Bush's failure to act on a whole host of cases.

President Obama should muster such courage when a failure to act allows the perpetuation of injustices that cannot be remedied elsewhere. Those decisions must be informed by the facts of the case and not governed by the political connections or financial contributions of the applicant. Mercy, as Shakespeare wrote, is the gift twice blessed, but that is true only if it is given freely and only on the merits.

Though President Obama and his team have been busy with other priorities, it remains notable and disappointing that he has now been in office a full three weeks and has not yet used his clemency power.  As P.S.Ruckman has effectively documented here, history shows that the majority of presidents were able to find the time to grant a few clemencies within the first few weeks in office. 

President Abraham Lincoln, who had to deal with a brewing civil war, granted a clemency before the end of his fourth full week in office.  I hope (but do not expect) that President Obama and his team will look to follow in Lincoln's path here and find the time for a few symbolic clemency grants.

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
• Commentary on how celebrity status effects clemency commitments
• 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
• Taking stock of President George W. Bush's clemency record
• Are the Border Agents the only federal offenders for whom President Bush feels compassion?
• "Compassionate Conservatism, My Ass"
• A request for a commutation for Weldon Angelos 
• What might 2009 have in store for . . . executive clemency?  

SCOTUSblog to live-blog the SG confirmation hearings

As detailed in this post, the folks at SCOTUSblog are going to make it easy to keep up today with the confirmation hearings for President Obama's nominee for Solicitor General (and Associate Attorney General):

Note to readers: beginning at 10 a.m. Eastern tomorrow, Tuesday February 10, we will provide live coverage of the executive nominations of Elena Kagan to be Solicitor General of the United States Department of Justice and Thomas J. Perrelli to be Associate Attorney General. In the LiveBlog, for which there is an automated reminder option below, we will relay the relevant questions and responses of the hearings as quickly as possible.

Though I doubt these hearings will include any major discussion of any significant sentencing law and policy issues, all sentencing fans should be aware of the possibility that Kagan as SG could play a role in shaping (and changing for the better?) the federal government's litigation approach to various still-dynamic post-Booker issues and various constitutional issues relating to sentencing.

Some related recent posts:

• HLS Dean Elena Kagan to be nominated for US Solicitor General
• How much can and will the "tenth justice" influence sentencing jurisprudence?
• How a new administration is likely to impact federal sentencing practice
• 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?

"Judges indicate they may order prison population reduced by 58,000"

The title of this post is the title of this new piece in the Los Angeles Times.  Here are the details of the prison crowding story coming out of California, which may quickly become the biggest story in prison nation:

A panel of three federal judges, ruling that overcrowding in state prisons has deprived inmates of their right to adequate healthcare, today indicated they would order the state to reduce the population in those lockups by as many as 58,000 people. The judges issued the tentative ruling after a trial in two long-running cases brought by inmates to protest the state of medical and mental healthcare in the prisons.

Although the order is not final, U.S. District Court Judges Thelton Henderson and Lawrence Karlton and 9th Circuit Court of Appeals Judge Stephen Reinhardt effectively told the state that it had lost the case and would have to make dramatic changes in its prisons unless it could reach a settlement with inmates' lawyers.

If the state is ordered to reduce the population, it would likely be able to do so over several years by limiting new admissions and other measures, so that it would not have to release large numbers of prisoners at once.  State prisons right now operate at about double their designed capacity, and the judges found that with inmates crammed into institutions, they could not receive the care to which they are entitled.

Thanks to How Appealing, everyone can find links to additional press coverage here and can access online at this link today's tentative ruling of a three-judge panel.

Gearing up for US Sentencing Commission's regional hearing in Atlanta

I am very pleased to see from this new Atlanta Journal-Constitution article, headlined "Hearings to open on sentencing guidelines," that the coming start of the US Sentencing Commission's regional hearings is already getting some press.   Here is how the piece starts:

The U.S. Sentencing Commission meets Tuesday in Atlanta, launching a series of hearings to determine what people think of guidelines that help decide the fate of tens of thousands of convicted felons every year.

The two-day hearings at the Hyatt Regency mark the 25th anniversary of the Sentencing Reform Act of 1984. Its goal was to eliminate unwarranted sentencing disparities with guidelines that give the same punishment to similar defendants who committed similar crimes.

“This is an opportunity to let us see how the system is working,” said commission chairman Ricardo Hinojosa, a federal judge from McAllen, Texas. “We can hear what people like about the guidelines, what they don’t like about them.”  One good thing about the sentencing guidelines, Hinojosa said, is transparency.

With all due respect to Judge Hinojosa, though the USSC has been somewhat better lately when it comes to transparency, the federal sentencing system still remains very opaque.  For example, does anyone know how many cases involve acquitted-conduct enhancements or how many child-porn downloading defendants have avoided an applicable mandatory minimum sentence through charge bargaining?  Does anyone know even how a researcher could possibly obtain this information? 

The USSC has been pretty good at providing a little more data and openness in recent years, but transparency is still more of a hope than a reality for most of us eager to really understand what happens in the federal criminal justice system.  That all said, these regional hearings should be great, and I hope to have time to blog about them a lot.  Right now, the US Sentencing Commission has this agenda posted on its website, and I am hoping that soon it will also have submitted written testimony from these hearings available on-line.

Some related recent posts:

• The revised make-up of the US Sentencing Commission
• US Sentencing Commission's regional hearings to start next week
• Notable news from the US Sentencing Commission
• How a new administration is likely to impact federal sentencing practice
• 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?

"Elderly Offender Home Detention Pilot Program"

The title of this post is the title of a one-page flyer (which is partially reprinted and linked below) that I received from a helpful reader.  The flyer provides a few details concerning a new federal prisoner release program that comes out of last year's passage of the Second Chance Act.  Here is part of the text of the flyer:

Beginning February 5, 2009, the Bureau of Prisons is implementing a two-year pilot program called the Elderly Offender Home Detention Pilot Program ("the Program").  The Program is required as part of the Second Chance Act of 2007, Section 231(g), and will involve re-designating certain elderly inmates to home detention for the final portion of their prison sentences....

The Program has many eligibility criteria [including as requirements that you] are 65 years old or older... [and] have served 10 years or more on your current sentence ... [and] have served 75% or more of your current sentence ... [and] have a suitable home in which to reside.

Download Elderly_inmate_notice

Hoping someone in a town hall might ask Prez Obama about government spending for the drug war in prison nation

This new entry at the White House blog reports that President Obama "is on his way to Elkhart, Indiana, for a town hall about the economic recovery plan. He'll talk for a bit, then take questions from the audience of about 1,700 people."

Though I seriously doubt any crime and justice issues will arise in this event or other such town halls, I am hoping someone in Indiana or elsewhere might have the courage to ask about the costs of the drug war and mass incarceration.  Specifically, I want President Obama pressed on whether his team, in its development of an "American Recovery and Reinvestment Plan," has given any attention at all to the apparent harms and ineffectiveness of investing so much federal and state taxpayer money in the never-ending war on drugs and in the still-growing US prison population.

Some recent related posts:

• Will we invest in classrooms or cells in these tough times?
• Terrific commentary and assessment of the war on drugs
• 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
• After fast work on excessive pay, now how about similar work on excessive sentences?
• Am I crazy to dream about a "Liberty Recovery Advisory Board"?
• Inaugural rhetoric about freedom and liberty in prison nation
• What do "our ideals" say about mass incarceration or LWOP for juves or acquitted conduct or the death penalty or GPS tracking or....
• "Real commander needed for the war on drugs"
• "America's Forgotten War"
• Will any Prez candidate promise to get us out of a failed war ... on drugs?

"Effort to Track Sex Offenders Draws Resistance"

The title of this post is the title of this important article in today's New York Times.  Here are excerpts:

An aggressive federal effort to keep track of sexual offenders is at risk of collapse because of objections from states and legal challenges from sex offenders and others.  The effort, approved by Congress three years ago, requires all states to adopt strict standards for registering sex offenders and is meant to prevent offenders from eluding the authorities, especially when they move out of state.... 

But officials in many states complain about the law’s cost and, in some instances, contend their laws are more effective than the federal one. The states also suggest that the federal requirements violate their right to set their own policies and therefore may be unconstitutional, at least in part.

Despite a looming July deadline, no state has been deemed compliant with the law, and some are leaning toward ignoring major requirements.  As a result, one of the toughest child-protection initiatives in the nation’s history is languishing.

“We support the intent, and I’m sure every one of my attorney general colleagues supports the intent,” said Mark J. Bennett, the attorney general of Hawaii. “But we believed we couldn’t follow every single provision because, legally and practically, some of the provisions didn’t make sense.”

Some sex offenders and civil liberties groups have also taken court action to block the law’s provisions. In Ohio, a man convicted 15 years ago of “gross sexual imposition” involving a teenage girl is challenging the requirement that he remain on the state’s registry of sex offenders for the rest of his life, instead of the 10 years previously required by Ohio law....

Members of Congress say they may try to address some of the problems with the law. Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Senate Judiciary Committee, said through a spokeswoman that he planned “to determine whether revisions and improvements can strengthen compliance, and then to quickly make whatever changes may be needed.”

While some of the law’s backers acknowledge that the states have legitimate concerns, they remain fundamentally committed to the law, and suggest that the delays leave a patchwork of differing state laws that keep children unnecessarily vulnerable to predators.  Even with the spotty compliance and shortcomings, supporters say, the law has reaped benefits. Since its passage, the Marshals Service has brought charges against 615 sex offenders for failing to register or update their registration, an agency spokesman said.

Some related posts:

• What might 2009 have in store for . . . sex offender law and policy?
• Study on sex offender registration in New Jersey suggests its ineffectiveness
• "States wrestle with how to fund federal sex offender law"
• Vermont struggling to implement AWA sex offender mandates
• Extended ABAJ article about sex offender registries
• Federal judge finds constitutional problems with new Nevada sex offender laws
• New article asserting Commerce Clause problems with federal Sex Offender Registration and Notification Act

More (overly?) optimistic predictions of reform

Though I have been disappointed that the new era of hope and change inside the Beltway has not found expression in any serious talk of criminal justice reforms, the editorial pages are now filled with hopes for change.  I noted here a recent op-ed saying the "end is in sight" for mass incarceration, and this morning I now see this new New York Times editorial headlined "Rockefeller Laws: An End in Sight."  Here are some snippets:

The New York Legislature finally seems poised to overturn the infamous Rockefeller drug laws.  The impending change comes too late for the tens of thousands of low-level, nonviolent drug offenders who wasted away in prison because of mandatory sentencing policies when they should have been given treatment and leniency.  But after years of building support for reform, legislative leaders now have it within their power to make wholesale changes in this profoundly destructive law.... 

Republican lawmakers who represent prison districts and the correction officers’ unions normally block reform. But Rockefeller reform seems almost certain now that that Democrats control the Legislature and the governor’s mansion. That’s welcome news in the state that has squandered many young lives and started the national trend toward mandatory sentencing.

After years of study and blogging, I think the only thing "almost certain" in legislative reform of sentencing law and policy is that very few reforms are ever "almost certain."  (Remember, dear readers, how "certain" many pundits were that Congress would respond to Booker with lots more mandatory minimums.)  Though I certainly hope that the Times is right about reforms to the Rockefeller drug laws, the smart money is always on the status quo and inertia in this arena.

Around the legal blogosphere

There is lots of good reading on lots of different subjects worth check out around the blogosphere:

• From Concurring Opinions here, "Why the Innocent Are Punished More Harshly Than the Guilty"

• From How Appealing here, SJC sees possible bias in rape case; Why charge only the boy? Judges bitterly divided on issue"

• From SCOTUSblog here, "Linked Retirements and the Summer of 2009"

• From Sex Crimes here, "Council of Europe: Surgical Castration 'Degrading'"

• From The Volokh Conspiracy here, "Would a Blog have Stopped Madoff?"

Alabama legislators discussing castration and other novel punishments for sex offenders

This local story from Alabama describes a number of novel or near-novel alternative punishment for sex offenders being proposed in the state legislature:

A bill introduced in the Alabama House of Representatives this week would require convicted sex offenders who targeted young children to be surgically castrated before leaving prison. The bill would require castration for male sex offenders older than 21 convicted of a sex crime against a victim younger than 12.

Rep. Steve Hurst, D-Munford, has pushed legislation authorizing castration for two years. “We need a stronger deterrent than what we have now,” said Hurst, who introduced the bill Tuesday. “I’d like for Alabama to take the lead and say that enough is enough.”...

If passed as it is now written, the proposed law would make Alabama the 10th state to authorize castration for sex offenders and the only state that would require surgical castration. The other states call for chemical castration....

In chemical castration, a man is routinely given shots that reduce the amount of testosterone in his body and lower his sex drive. Montana, Oregon and Wisconsin permit the chemical method only. California, Florida, Iowa and Louisiana also use the chemical method, but allow offenders to undergo a voluntary surgical operation.

Alabama would join Texas as the only state that authorizes surgical castration only, in which testicles, which produce most of the body’s testosterone, are surgically removed. Unlike the proposed Alabama law, Texas requires voluntary consent in all cases....

Other proposed bills affecting sex offenders have been introduced in the legislative session.  A House bill would add colleges and universities to the areas in which sex offenders cannot live within 2,000 feet.  A proposed Senate bill would prevent sex offenders from living in the county where the offense occurred.

A (too?) hopeful vision of the future for prison nation

The New York Daily News has this notable op-ed, headlined "Bend America's prison bars: The time is ripe for penal reform."  It starts with a call for reform and ends on a hopeful note:

America's penal system needs a top-to-bottom overhaul - and a movement of people ready to do something about it is taking shape nicely.

More than 2.1 million people are now behind bars in America — either in federal or state prisons or local jails — a larger proportion of the population than in any other civilized nation and a 500% increase since 1980. Another 5 million are under some kind of supervision, like parole, probation or house arrest, for a grand total of more than 7 million souls....

There is, unfortunately, a callous indifference in many sectors of society to the insanity of it all, the waste and futility and unfairness.

That's the bad news.  The good news is there's a growing consensus that the nation has gone too far — and that we must stop putting so much stress on our budgets and our morals.

A blizzard of books, papers, think tanks and forward-looking local officials have been pressing for reform over the last decade.... New York leaders have begun poring over a thick report, published by a special state sentencing commission, that calls for a range of reform.

After years of pressure, judges are getting more leeway to sentence drug-addicted offenders to treatment rather than prison.  And cash-strapped state governments are finally listening to reformers who say it's better — and cheaper — to pay for job and recreation programs than for prison cells.

The end is in sight for our nation's long, unhealthy love affair with mass incarceration. And not a moment too soon.

Because of the "callous indifference" rightly noted in this piece, I think modern mass incarceration is likely to get still worse before it starts getting better.  But I want to believe, in this era of supposed hope and change and with new concerns about ineffective government spending, that the "end is in sight."