Sentencing Law and Policy

Great reading around the blogosphere

Lots of interesting reading around the criminal justice blogosphere this weekend:

• From Crime & Consequences here, "Illinois House moves to reform death-penalty fund"

• From Grits for Breakfast here, "Rumor: Some [Texas] CCA judges want Keller to resign, worry about future investigations, elections"

• From PrawfsBlawg here, "Will the election for Morgenthau's successor fail us?"

• From Think Outside the Cage here, "Meth Goes Bust"

• From The Volokh Conspiracy here, "Crime Victims Win in the Ninth Circuit"

Lots of big (though really little) congressional sentencing activity

Thanks to a series of entries by the folks at The Sentencing Project, I can review lots of recent and upcoming congressional sentencing news through a few links to its website:

• Rep. Robert "Bobby" Scott Hosts Crime Summit March 3

• Cardin, Specter Introduce Bill to Return “Equal Protection Under the Law” to U.S. Justice System

• U.S. House of Representatives Approves Over $133 Million for Reentry in FY 2009, Including $25 Million for the Second Chance Act

All of this news is welcome and notable, but all if it has the feel to me of a few good efforts to empty an ocean of federal criminal justice problems with a bucket.  Here's why:

1.  A "crime summit" dedicated to exploring "smart on crime" proposals is surely welcome (and this formal announcement details all the great speakers).  But, especially with the national mood all about cost-effective new programs, it is high time for less talk and more action on serious federal criminal justice reform.  I hope that the summit includes serious discussion of the need to demand President Obama and AG Holder to make criminal justice reform a real institutional priority.

2.  Last time I checked, the US Constitution still required equal protection under the law, which makes me wonder if the "Justice Integrity Act of 2009" (more details here from the Brennan Center) should really be a top priority for criminal justice reformer.  And the particulars of the Act seem to ensure more government bureaucracy to produce more government reports to confirm problems already evident from reports already produced by the US Sentencing Commission and other government agencies.

3.  Though federal reentry monies are always useful, this $133 million appropriation constitutes less than .05% of the monies committed through the recent stimulus bill.  Even though reentry initiatives are likely good for the economy are likely to result in long-term criminal justice expenditure savings, a lot more money could and should be invested reentry programming at the federal level.

The latest chapter in the amazing sentencing story of Patrick Lett

Regular readers may recall the amazing sentencing story of my client Patrick Lett.  This local press account reports on the latest amazing news in his amazing case:

Patrick Lett walked out of a federal courtroom in Mobile Friday as a free man.  Considering the twists and turns that his case has taken over the last 3.5 years, that was no small event.

The Army veteran from Pascagoula watched in April 2006 as U.S. District Judge William Steele handed down a five-year prison sentence.  Within days of the hearing, Steele entered a judgment amending the sentence to the 11 days Lett had spent in jail, trying to correct what the judge, himself, now calls a mistake.

But the U.S. Attorney's Office in Mobile appealed, and the Atlanta-based 11th U.S. Circuit Court of Appeals ruled that Steele could not change his mind.  That sent the case back to Mobile, where it appeared all but certain that Lett would be sentenced to prison for five years.

But Steele on Friday agreed with the defense that a decision by the U.S. Sentencing Commission to change advisory guidelines for certain crack cocaine offenders gave him newfound discretion to reduce the five-year prison term. Steele sentenced Lett to time served — the sentence that the judge felt that Lett deserved all along....

Steven Butler, the chief of the appellate division for the prosecutors' office in Mobile, objected that the short sentence was "procedurally and substantively unreasonable" and argued that the judge exceeded his authority. Prosecutors could take the case back to the appeals court, although Butler on Friday gave no indication of his next move.

Lett, 40, is a veteran of both the first Gulf War and the current Iraq war. He left the Army in 2004 when he began selling crack cocaine in Monroe County for his cousin, Michael Lett.  After about five weeks that fall, Patrick Lett quit peddling drugs and rejoined the Army.  He was back in uniform by the time a federal grand jury indicted him.

Steele said he was impressed by Lett's military service, the testimony of his fellow soldiers and his reform, which was unprompted by an encounter with the criminal justice system.  The judge said he sees many a defendant who tells him he has repented and changed his ways.  "But the difference between them and Mr. Lett is that all of them repented after they had been caught," he said.

Though I have been proud to have a chance to represent Patrick Lett in various appellate proceedigns, both Patrick and I were especially lucky to have the pro bono help of former Ohio State Solicitor Douglas Cole (who is now at Jones Day).  Doug Cole deserves more credit than me for helping to secure this outcome for Patrick.

Some related posts on the Lett case:

• Should prior military service reduce a sentence?
• My amicus effort to support our troops
• NLJ coverage of Patrick Lett appeal
• Technicality leads Eleventh Circuit to require 5-year mandatory for veteran
• Petition for rehearing in US v. Lett
• The amazing federal sentencing story of Sgt. Patrick Lett
• The cert petition in US v. Lett (and amici encouragement)
• AP covers the remarkable story of (my client) Patrick Lett

NY Times editorial notes Second Amendment silence in Hayes

While praising the Supreme Court's work in Hayes week, this New York Times editorial highlights the fact that the Second Amendment dog did not bark at all in the first SCOTUS gun control ruling since Heller:

The Supreme Court brushed past flimsy arguments by the gun lobby this week to uphold an important restriction on gun ownership that protects public safety.

The 7-to-2 decision upheld a broad reading of a 1996 federal law written by Senator Frank Lautenberg, Democrat of New Jersey, that bars people convicted of crimes involving domestic violence from owning guns.  A narrow interpretation of the law, excluding domestic abusers convicted of a generic charge of battery, would have rearmed thousands of dangerous people.

The ruling was the court’s first on guns since last year’s landmark decision striking down the District of Columbia’s ban on possessing handguns in the home.  It was an encouraging sign that the court sees no blanket constitutional barrier to common-sense regulation of firearms. It is notable that not even the two dissenters in the case — Chief Justice John Roberts and Justice Antonin Scalia — asserted that depriving domestic abusers of guns raises a Second Amendment issue.

It is worth noticing that this Times editorial goes out of it way to avoid mentioning that the persons being convicted under the law at issue in Hayes were guilty of only committing a misdemeanor.  Perhaps there were thousands of dangerous misdemeanants that were just waiting to go on shooting sprees if Hayes came out differently, but this kind of talk about dangerousness reminds me of some of the rhetoric often used by the "tough-on-crime" types eager to resist efforts to reduce extreme sentence.

Other recent posts on the Hayes decision:

• SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
• Even the Chief and Justice Scalia are content to damn gun possession with faint praise
• One notable expression of concern about Hayes and gun rights
• Deafening silence from the gun rights crowd about Hayes
• Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?

Efforts to kill death penalty in Maryland appear to be dying

The latest news out of Maryland would seem to suggest that the Governor's efforts to kill the state's death penalty are proving not so potent.  Here are details from the Baltimore Sun in this blog entry headlined "Death penalty debate could end with fizzle":

Today, the Senate Judicial Proceedings Committee rejected a bill that would repeal the death penalty. Like two years ago, the effort failed on a 5-5 tie vote (a majority is needed for passage).

For most legislation, that would be the end of the story. But not this bill. Not this year. Gov. Martin O’Malley has said he would do “everything in my power” to end capital punishment in Maryland this year. He’s calling for a full vote in the Senate, and Senate President Thomas V. Mike Miller says that will happen – as soon as next week....

“This is a bill of some importance,” Miller, a death penalty supporter, said this morning before the committee action. “A bill that the public reads about and expects their legislators to take a stand.”  Miller supports the death penalty. And no one knows the thinking of the other 46 members of the Senate better than him.  “I don’t anticipate a long, protracted debate,” Miller said yesterday. “I think I know where the votes will be.” 

That sounds like the Great Death Penalty Debate of ’09 could end wth a fizzle. A Baltimore Sun survey of senators showed that majority want to keep capital punishment.  So after next week the Assembly could put the death penalty behind it for another year, and get back to talking about just how bad the state budget is.

Alaska Supreme Court rejects Blakely retroactivity claim

Thanks to a helpful reader, I learned that the Alaska Supreme Court today issued a big ruling reversing a lower court determination that Blakely should be given retroactive application.  Here is how the opinion in Alaska v. Smart, No. S-12493 (Ak. Feb. 27, 2009) (available here) gets started:

The question presented in these two cases is whether the right to a jury trial announced in Blakely v. Washington should be retroactively applied to two state defendants, Troy Smart and Henry Douglas, whose sentences were final before June 24, 2004, when Blakely was decided.  Blakely requires that any fact — except a fact admitted by the defendant or the fact of a prior conviction — necessary to increase a sentence above the statutory presumptive maximum be proved to a jury beyond a reasonable doubt.  We decline to give Blakely full retroactivity.  We conclude that the purpose of Blakely does not raise serious questions about the accuracy of past sentences and must be weighed against the state’s reliance on the old rule for over twenty years and the administrative burden of implementing the new rule retroactively.  We therefore reverse the rulings of the court of appeals in these two cases and remand.

Notable legislative response to Hayes in Wyoming

Though I have been troubled by the lack of a robust public dialogue about gun rights in the wake of the Supreme Court's ruling in in the Hayes case, I am intrigued to see a legislative response in Wyoming.  This local story provides the details:

Wyoming residents accused or convicted of domestic violence may find it easier to regain their federal gun rights thanks to recent action by the state Legislature.

"For those that want their guns back, it's good," Suzan Pauling, public policy director of the Wyoming Coalition Against Domestic Violence and Sexual Assault, said of the changes to Wyoming law. "I think for domestic violence victims, it's not very good."

Congress in 1996 expanded the law that bans convicted felons from owning guns to apply to people convicted of misdemeanor domestic violence. Wyoming, where hunting and gun ownership are cherished ways of life, has been trying to find a way around the domestic violence provision for years. "Judges in the state seem to be hesitant to take away gun rights because it's such a huge thing in Wyoming," Pauling said. "Having your gun in Wyoming is kind of like being a Wyomingite."

Gov. Dave Freudenthal on Thursday signed House Bill 106.  It will allow Wyoming residents who have been convicted of domestic violence to apply to the court to expunge their record and regain their gun rights.

It requires them to wait at least five years following the conviction before they apply to court and limits them to one expungement. Freudenthal said he's comfortable that judges will be able to review people's conduct for five years after a conviction before considering their expungement requests. "I think that gives you a pretty good chance to look at it, and evaluate their conduct," he said Thursday.

As the story suggests, this legislation was obviously in the works before this week's Hayes ruling.  But I suspect the Hayes case may have help move the legislative process along in some way.

Other recent posts on the Hayes decision:

• SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
• Even the Chief and Justice Scalia are content to damn gun possession with faint praise
• One notable expression of concern about Hayes and gun rights
• Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?

An effort to address juve LWOP in California

This local story from California, headlined "Senator takes aim at juvenile prison terms," provides encouraging news about an effort to address one type of extreme sentence:

Juveniles convicted of crimes should still risk being sentenced to life in prison without parole but have their terms reviewed after 10 years for possible re-sentencing, according to the San Francisco state senator who is taking a second stab at decreasing the number of minor convicts without hope of freedom.

Sen. Leland Yee, D-San Francisco/San Mateo, introduced Senate Bill 399 which, if passed, would not offer the complete overhaul he suggested last year but tweak current law so those convicted under age 18 have a second shot at release from custody.

“Children have a greater capacity for rehabilitation than adults,” said Yee. “The neuroscience is clear; brain maturation continues well through adolescence and thus impulse control, planning and critical thinking skills are still not yet fully developed.”...

Approximately 200 juveniles in the state are currently serving life without a parole — the alternative to capital punishment for first-degree murder and special circumstances, according to Yee.  In comparison, only 12 juveniles in the world outside of the United States are serving the term, he said.

Though I am not sure about the numbers set forth in this final paragraph, it is certainly accurate that America's affinity for juve LWOP puts us far out of the international mainstream a lot more than America's affinity for capital punishment.  And yet, precious few politicians and public policy advocates are vocal and persistent critics of this kind of extreme sentencing, even through there are plenty of politicians and public policy advocates who are are vocal and persistent critics of the death penalty.

Some related posts on juve LWOP:

• NYTimes coverage of very young lifers
• PBS program "When Kids Get Life"
• Life without parole for juvenile may be cruel, but it is not unusual
• New HRW report assailing juve LWOP in California
• California considering eliminating LWOP for juveniles
• Nebraska working to reform juve LWOP sentences
• LDF report documents disparties in juve LWOP in Mississippi
• Does Roper suggest young juve LWOP is unconstitutional?
• EJI files seeks cert on claim that juve LWOP is unconstitutional for 13-year-old offender

Latest notable news surrounding former judge (now felon) Sam Kent

Thanks to Mary Flood at the Houston Chronicle, there is lots of good reporting on all the latest developments in the wake of the felony plea entered earlier this week by now-former federal district judge Samuel Kent (basics here).  Here are the headlines and links:

• Gag order lifted in case against federal judge Kent
• Lawyer says Kent deserves pension

The second of these stories provides an early preview of what will become chief topics of interest in Kent's sentencing proceedings this spring:

Judge Samuel Kent is a psychologically broken man who served well on the bench for 18 years and deserves mercy and his pension, his lawyer said Thursday.

In the first interview he gave on the Kent case since a gag order was imposed last fall, Kent’s lawyer Dick DeGuerin told the Houston Chronicle that he would not discuss the particulars of the case but he would talk about the plight of his client. “The truth is he’s been a walking basket case for several years,” DeGuerin said. “He’s not the same man since his wife, Mary Ann, died a long and tragic death.  He probably should have taken off a year and gotten psychological help.”  Kent’s first wife of more than 30 years had a brain tumor and died in 2000.

DeGuerin, able to discuss the case because the gag order was lifted Thursday, said Kent threw himself into his work. “Any conduct he’s accused of in this case happened since then,” said DeGuerin.

Kent pleaded guilty Monday to obstruction of justice for lying to a judicial committee investigating an allegation he sexually harassed an employee. Kent also acknowledged that he’d had unconsensual sexual contact with two female employees between 2003 and 2007. DeGuerin said he hopes the sentencing judge will consider all the good Kent has done when it comes time to decide whether to follow the prosecutor’s suggestion he be sent to prison for three years.

Rusty Hardin, whose client Cathy McBroom was one of the women Kent made unwanted advances toward, said his client and other women will wait until sentencing to tell their stories. “But what he put these women through is all that should really be considered,” Hardin said. “During those 18 years he claims to have served, it should also be noted that he made life miserable for a legion of litigants in his court.”

Related posts on the Kent proceedings:

• Judge Kent takes a deal (and now becomes the latest, greatest topic for sentencing debate)
• "Is Kent getting off easy?"
• More questions and fall-out following Judge Kent's guilty plea

Useful reading for technocorrections fans (or foes)

As I have noted in prior posts (many linked here), the future of crime and punishment will include all sort of technocorrections for economic reasons if not for lots of others.  Thus, it is important for both theorists and practitioners to be thinking proactively now about the future of technology and criminal punishment, whether one is a fan or foe of technocorrections.  Such thinking can be aided by this interesting book chapter appearing on SSRN, titled "Crime Control Technologies: Towards an Analytical Framework and Research Agenda." Here is the abstract:

The substantive focus of this chapter — crime control technologies — can be stated simply enough, but this simplicity is deceptive for several reasons.  Firstly, technology — which we define as the application of scientific knowledge, materials, techniques, systems, methods of organisation and the use of electronic and mechanical devices — is ubiquitous in contemporary criminal justice, as it is in many other spheres of human activity. Therefore the range of types of technical devices that we might write about is extremely wide.  Secondly, as Marx suggests, throughout history crime control has been a motor for technological innovation in many apparently unrelated areas; therefore the boundaries of the field are fuzzy.  Thirdly, the range of technological applications in the criminological field is incredibly wide and includes the management and communication of information, physical defence against crime, surveillance, public order maintenance, crime prevention and detection, criminal justice administration, and punishment.

We have, it seems, carved out an impossibly wide brief and can do little more here than to provide a descriptive overview of the technological applications studied by criminologists, to describe the legal framework within which crime control technologies are developing, to raise some questions about the ways in which technology is changing the criminal justice system as a system and make some suggestions for inter-disciplinary research.

"Shaming and scaring johns into becoming average joes"

The title of this post is the headline of this interesting article in today's Los Angeles Times.  The sub-title of this article describes the basics: "L.A. tests a program for men caught soliciting prostitutes, giving them some reasons not to reoffend. It's like traffic school, but the stakes are higher and the presentations are squirm-inducing."  Here are snippets from the story:

This is john school, a new effort by law enforcement officials to stem prostitution in Los Angeles. Built on the belief that a heavy dose of in-your-face shame and scare tactics can do more to dissuade men from looking to the streets for gratification than traditional punishment, the class -- think traffic school with higher stakes -- offers first-time offenders leniency in exchange for a promise that they will change their ways. It is the latest example of how prosecutors and police around the country are rethinking their strategies in the age-old battle against prostitution.

"I've arrested hundreds of street walkers and busted countless tricks," said Margolis, who spent nearly three decades working in the Los Angeles Police Department's vice squad. "All those years, we'd send them to court, they'd pay a fine, spend maybe a day or two in jail and then be on their way.

"We're never going to arrest our way out of this problem and we're never going to stop it altogether. But we can try to educate johns about the dangers to themselves and about the violence the women face. Hopefully we can reduce the demand."

Launched recently by the Los Angeles city attorney's office, the Prostitution Diversion Program currently targets only those johns nabbed by the LAPD along a cheerless stretch of Figueroa Boulevard pockmarked by liquor stores and cheap motels -- one of the city's epicenters for street-walking prostitutes. There are tentative plans to expand the class citywide if the pilot program proves successful, said Sonja Dawson, the no-nonsense city prosecutor who helped start the program.

If this approach works effectively for those who seek illegal sex, perhaps someone smart will consider  expanding the program to also bring in those who seek illegal drugs and  illegal rock-and-roll.

After winning SCOTUS battle, Danforth loses state retroactivity war

As habeas fans know, last year the Supreme Court held in Danforth that state courts were not obligated to apply the federal habeas standards of Teague when deciding whether to give constitutional rulings retroactive effects.  This important victory for defendant Stephan Danforth has proved to by temporary, because today in this split ruling, the Minnesota Supreme Court chose to adopt the Teague rule for state retroactivity purposes even though it now knows it does not have to. 

Here are snippets from the majority opinion in this round of Danforth:

Some states have found Teague too narrow or strict, or out of place where a state court is reviewing its own convictions. See, e.g., Colwell v. State, 59 P. 3d 463, 471 (Nev. 2002) (adopting modified version of Teague).  Since the Danforth ruling freed states to fashion their own retroactivity standards, only one state appears to have considered the question, and that state opted to retain Teague.  See Ex Parte Lave, No. AP-75,912, 2008 WL 2512820, at *2 (Tex. Crim. App. June 25, 2008) (concluding that “[a]lthough not required by the United States Supreme Court to do so, we adhere to our retroactivity analysis . . . that Crawford does not apply retroactively to cases on collateral review in Texas state courts.”).

Danforth argues that we should abandon Teague....  We elect to retain Teague. While we acknowledge that one of the policy concerns underlying Teague – that federal habeas courts not excessively interfere with state courts – is absent when a state court is reviewing state convictions, we continue to share the other policy concern behind Teague, which is the finality of convictions.  Finality of state convictions is a matter that States are “free to evaluate, and weigh the importance of.”  Danforth, 552 U.S. at __, 128 S. Ct. at 1041.

The dissent makes a pitch for a modified approach: "I would not adopt Teague in total, rather I would, as the Nevada Supreme Court has done, adopt the basic approach set forth in Teague but with some significant qualifications.  See Colwell v. State, 59 P.3d 463 (Nev. 2002)."

Looking for hope and change in the DOJ part of the Obama budget

Via whitehouse.gov, I discovered that the full text of the budget for Fiscal Year 2010 is on the website of the Office of Management and Budget.  And here is a link to a few pages discussing funding for the Department of Justice, which starts this way:

The President’s Budget for the Department of Justice (DOJ) is $26.5 billion.  The Budget addresses the key priorities of the President and the Attorney General, including those for National Security and crime fighting programs in the FBI and other DOJ components, to include resources for combating financial fraud and protecting the public interest.  The Budget funds the Community Oriented Policing Services (COPS) hiring program, ensures that prison and detention programs are adequately funded, to include prisoner reentry programs, reinvigorates Federal civil rights enforcement, and increases border security.

Here is the specific discussion of reentry funding in the DOJ document:

Expands Prisoner Reentry Programs. The Budget includes $109 million for prisoner reentry programs, including an additional $75 million for the Office of Justice Programs to expand grant programs authorized by the Second Chance Act that provide counseling, job training, drug treatment, and other transitional assistance to former prisoners.

Because I have never been a budget maven, I am not sure whether or how these numbers might reflect "change we can believe in."  But, since all the hope and change talk has been slow to come to discussions of the federal criminal justice system, I doubt this budget portends any significant changes from the status quo with regard to federal crime and punishment issues.

Great new (though still dated) examination of the death penalty and plea bargaining

Regular readers know that I often note the failure of others to note and consider the potential impact of the death penalty on plea practices.  Excitingly, Kent Scheidegger of the Criminal Justice Legal Foundation has now focused attention on this issue through this new working paper, titled "The Death Penalty and Plea Bargaining to Life Sentences."   Here is the paper's abstract:

This study examines the disposition of murder cases in a sample of large urban counties to determine if there is a connection between the availability of the death penalty and the number of cases that are disposed of by guilty plea with a life sentence or a long term of years.  Consistently with expectations, significantly more defendants plea bargain to a life or long sentence in states where the death penalty is available.  The average county with the death penalty disposes of 18.9% of murder cases with a plea and a long sentence, compared to 5.0% in counties without the death penalty.  The difference is statistically significant at the p<.05 level. Implications for the claim that repeal of the death penalty will save substantial public funds in trials are discussed.

As the last line of this abstract highlights, one interest aspect of this paper is the suggestion that the death penalty may savemoney by prompting more pleas and avoiding costly trials.  The CJLF's official press release about this report (available here) stresses this point:

Legislatures expecting a large savings in trial costs from repealing the death penalty may be in for a disappointment, according to a study released today by the Sacramento-based Criminal Justice Legal Foundation.  The most widely cited estimates ignore or minimize an important cost-saving effect of having the death penalty available.

In states where the death penalty is the maximum punishment, a larger number of murder defendants are willing to plead guilty and receive a life sentence.  The greater cost of trials where the prosecution does seek the death penalty is offset, at least in part, by the savings from avoiding trial altogether in cases where the defendant pleads guilty.  Although this effect is well known to people working in the field, there appears to be no prior study to determine the actual size of this effect. 

Any and everyone seriously interested in the realstory of the death penalty and its impact can and should read this new CJLF report.  Unfortunately, as the report itself acknowledges, the data used for the analysis in the CJLF report are for 1988 murders and prosecutions.  There are reasons to suspect (and hope? or fear?) that plea practices are much different in capital cases two decades later.  Because of this, we all can and should be wary about using long-ago past performance to predict future realities.

Some related posts on the death penalty and plea bargaining:

• Debating the death penalty as bargaining chip
• New article on "Plea Bargaining and Victims"
• First-cut reactions to the NJ report on the death penalty
• Another challenge to prosecutors' capital discretion
• Another example of the death penalty as an effective plea bargaining tool
• Another notable example of capital plea bargaining
• A bloggy plea to look closely at pleas

Some recent related posts about death penalty costs:

• States considering laying off the death penalty during tough economic times
• The economic case against the death penalty getting more and more attention
• More discussion of cost concerns in debates over the death penalty
• Death penalty abolition becoming more realistic in a few western states
• Interesting time for Time's discussion of death's demise
• DPIC releases year-end report on state of death penalty in 2008
• What might 2009 have in store for . . . the death penalty in the US?

Deafening silence from the gun rights crowd about Hayes

With the Supreme Court's Hayes gun possession decision now a few days old, I cannot help but note that none of the prominent gun rights groups or pundits have said boo about the decision.  Whenever there is talk of a new or expanded gun control effort, I can typically count on seeing comments (usually critical) from prominent gun groups like the National Rifle Association or Second Amendment Foundationor from prominent legal bloggers/pundits like David Kopel and Glenn Reynolds at Instapundit and other folks at The Volokh Conspiracy and at Pajamas Media.  Yet, I am still awaiting a single word from any of these folks on the Supreme Court's work in Hayes.

I am not especially surprised that prominent gun rights activists are disinclined to support domestic abuser like Randy Hayes even when he is being federal prosecuted simply for having a rifle in his home.  Nevertheless, I find it notable and telling that, while many traditional First Amendment advocates will vocally defend the speech rights of neo-Nazis, none of the traditional Second Amendment advocates will defend the gun rights of a misdemeanant.  And the conspicuous silence on the Hayes case shows that gun advocates would like to just completely avoid talking about any of the hard political and legal questions raised by the Heller decision.

Other recent posts on the Hayes decision:

• SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
• Even the Chief and Justice Scalia are content to damn gun possession with faint praise
• One notable expression of concern about Hayes and gun rights
• Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?

Justice Breyer talking up Rule of Lenity when interpreting statutes with mandatory minimum sentencing terms

As detailed in this recent post, the Supreme Court yesterday heard oral argument in Flores-Figueroa v. United States, which deals with the reach of the federal aggravated identity theft statute.  When first scanning the oral argument transcript, these comments from Justice Breyer jumped off the page:

In the case of mandatory-minimum sentences, there is a particularly strong argument for a Rule of Lenity with bite.  And that is because mandatory minimums, given the human condition, inevitably throw some people into the box who shouldn't be there.  And if this person should be there and we put him outside, the judge could give him the same sentence anyway.

So the harm by mistakenly throwing a person outside the box through the Rule of Lenity to the government is small.  The harm to the individual by wrongly throwing him into the box is great.  The Rule of Lenity is, therefore, limited to a very small subset of cases where it has particular force, but this is one of them.

Oral argument transcript in Flores-Figueroa at 42. 

I sure hope these sentiments make their way into whatever opinion is written in Flores-Figueroa.  I have long thought that various defendant-oriented statutory canons and constitutional principles should have more force and impact in cases involving mandatory minimum sentencing terms.  It is nice to see Justice Breyer articulate this point at oral argument, and it would be very valuable to have this idea find expression in the Court's jurisprudence.

How Appealing has at this link some of the major press coverage of the entire argument in Flores-Figueroa.

"Time For Marijuana Legalization?"

The title of this post is the question being asked here by CBS News analyst Andrew Cohen.  Cohen picks up on the latest discussion of the costs of the death penalty to take the idea of criminal justice reform in tough times one step further.  Here are snippets:

After generations of defending capital punishment and marijuana possession laws on moral, ethical and religious grounds, after years of declaring that the death penalty acted as a deterrent against violent crime and that pot smokers were more dangerous to society than, say, alcohol consumers, all of a sudden thanks to our economic crisis more and more mainstream powerbrokers are considering dramatic changes to our criminal justice system....

These declarations, from the political and legal arena, are not just isolated voices shouting into the wilderness.  Consider the late, great Milton Friedman, the Nobel Laureate, former Reagan advisor, and esteemed scholar associated with the very conservative Hoover Institution.  He was among hundreds of important economists who argue that pot should be legalized and taxed - and that the income from such taxation could generate billions in new revenues and billions more in enforcement savings.  If you live in California,  what would you rather have?  Pot smokers whose cases are tying up the legal system?  Or better health care and roads thanks to a marijuana tax. I’m just asking the question— and others are too.

Friedman and his colleagues first made these arguments years ago — before the economy tanked. Is it time to take his view more seriously with states facing huge budget shortfalls that threaten to curtail vital projects and policies?  It is such a great leap from releasing prisoners from prison early to save money and not sending them there at all to save more?  I would suspect a survey of police officials and prosecutors, and a survey of state budget officials, would indicate that the matter is being taken more seriously today than it ever has been.

Some recent related posts:

• States considering laying off the death penalty during tough economic times
• More discussion of cost concerns in debates over the death penalty
• Should we end a failed expensive war (the war or drugs) during these hard economic 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?
• Will we invest in classrooms or cells in these tough times?

New York's highest court rejects again Sixth Amendment challenge to its persistent felony offfender law

A helpful reader alerted me to a new opinion from the New York Court of Appeals, which turns down yet again a Sixth Amendment attack on New York's persistent felony offender sentencing scheme.  Here is how the unanimous opinion in NY v. Quinones, No. 14 (N.Y. Feb. 24, 2009) (available here), gets started:

This appeal presents another Apprendi challenge to New York’s discretionary persistent felony offender sentencing scheme. The primary issue before us is whether, in light of Cunningham v California (549 US 270 [2007]), this sentencing scheme violates Apprendi and defendant’s due process and Sixth Amendment rights.  We again uphold the constitutionality of New York’s discretionary persistent felony offender sentencing scheme and further hold that defendant’s constitutional rights were not violated.

Significantly, this latest Quinones ruling from the New York Court of Appeals does not address or even mention the federal habeas ruling in Portalatin v. Graham, No. 06 CV 5002 (EDNY Mar. 22, 2007) (available here), in which EDNY District Judge John Gleeson essentially disagreed with a New York's state court decision that the state's discretionary persistent felony offender statute is constitutionally sound (discussed here). 

In Portalatin, Judge Gleeson concluded that the Supreme Court's work in Cunningham confirmed the unconstitutionality of New York's law.  But in Quinones the New York Court of Appeals reads Cunningham and Ice to confirm its prior conclusion that there are no constitutional problems with New York's sentencing structure.  Assuming the defendant in Quinones seeks cert., it is interesting to speculate as to whether this state/federal split of authority might lead the Justices to make yet another trip into the crazy mixed-up world that is Apprendi-land.

En banc Tenth Circuit reinstates insider trading conviction of former Qwest CEO Nacchio

Though not technically a sentencing ruling, the white-collar sentencing world should surely take note of the Tenth Circuit's decision today, via a 5-4 en banc ruling, to reinstate Joe Nacchio's federal criminal insider trading conviction.  This post from the WSJ Law Blog provides some details (noting some sentencing realities) and useful links:

In a squeaker of a decision, the full Tenth Circuit earlier today upheld former Qwest CEO Joseph Nacchio insider trading conviction, offering another setback to the former telecom high flyer’s attempt to reverse a jury’s decision in 2007.  The court also revoked his bail, so Nacchio is likely headed to prison in the near future. Click here for the ruling; here for the Denver Post’s account.

Nacchio was convicted nearly two years ago of 19 counts of insider trading for selling off Qwest’s stock even as he knew the Denver-based telecom company’s finances were heading south.  Since then he’s been fighting the conviction, with the help of his high-profile attorney, Latham & Watkins’s Maureen Mahoney.  Nacchio has been free on a $2 million bond since then, and has spent toggling between his New Jersey and Florida homes.

In a 5-4 vote, the appeals court overturned an initial three-judge panel’s decision to grant Nacchio a new trial....  Former U.S. Attorney Troy Eid, who oversaw the case but recently left to become partner at Greenberg Traurig, was ebullient about the decision. “It’s a tremendous day for the United States government,” he said. “I couldn’t be happier.”

Maureen Mahoney [has now said]: “We are profoundly disappointed by the Court of Appeals’ closely divided en banc decision. . . . We are optimistic that the Supreme Court of the United States will review the case, not just to resolve the conflicts but to correct what the chief judge of the Court of Appeals described as a ‘draconian decision’ to deprive Nacchio of his fundamental right to a defense. . . ”

Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?

The failure of any Justice to even mention the Second Amendment or Heller or the statutory interpretation canon of constitutional doubt in Hayes (basics here and here) has me wondering how far jurisdictions can go in categorically criminalizing gun possession by certain types of persons. 

For example, can a jurisdiction interested in gun control (like DC and other cities) draw from Hayes the idea that it could and should categorically prohibit and criminalize gun possession by anyone and everyone ever convicted of any type of misdemeanor?   Could (and might) a jurisdiction criminalize gun possession by anyone guilty of a moving violation traffic offense or even by anyone with an arrest record?

For various reasons, there is good reason to believe that some jurisdictions will be eager to evade whatever constitutional limits on gun control emerges from Second Amendment or Heller.  I am blogging so much about Hayes in part because I think it helps create a ready blueprint for such evasion.

Other recent posts on the Hayes decision:

• SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
• Even the Chief and Justice Scalia are content to damn gun possession with faint praise
• One notable expression of concern about Hayes and gun rights

Federal judge imposes large restitution punishment for downloading child porn

Thanks to this post by Jonathan Turley, I just discovered this local article from Connecticut about a ground-breaking new type of federal sentence for downloading child porn.  Here are the basics:

Connecticut has set a new precedent for people who have child porn.  A Stonington man convicted of possessing child pornography must pay about $200,000 in restitution to a woman photographed as a child while being sexually abused.  Senior U.S. District Judge Warren W. Eginton said his ruling Monday was the first criminal case in which someone convicted of possessing illegal images — but not creating them — is required to pay restitution.

The case involves Alan Hesketh, a British citizen who was sentenced in October to 78 months in prison for possessing and distributing nearly 2,000 photographs of child pornography. The resident of Stonington, Conn., was a vice president of Pfizer.  Pictures of the victim as a child being subjected to sexual abuse turned up in Hesketh's collection, according to prosecutors.

"There is a feeling of revulsion about this type of conduct," Eginton said, noting that Hesketh and his family were humiliated and his career was ruined. "We're dealing with a frontier here," Eginton said. But judges have discretion with criminal restitution orders.

Hesketh's attorney, Jonathan Einhorn, said he would appeal the order.  He called it unreasonable and predicted it would probably lead to similar claims by child pornography victims.  He said his client had no contact with the woman and defendants should only pay restitution to victims whose injuries they directly caused.

Einhorn also said the woman had not proven she was one of those whose image turned up on Hesketh's computer, and those who actually participated in creating pornography in other cases were ordered to pay less restitution than his client.

But James Marsh, the woman's attorney, said there is no distinction between those who produce the pornography and what Hesketh did. "The victim is a victim of sexual exploitation caused by this defendant," Marsh said.  Marsh said he did not believe the ruling would necessarily lead to a flood of new claims. Victims are often reluctant to come forward or do not have the ability or awareness to pursue cases, he said.

This is an interesting and potentially very important development in the controversial and dynamic arena of federal child porn sentencing.  Because I am a fan of financial punishments and because I see virtue in sentencing judges getting creative in difficult cases, I am inclined to praise this ruling (though I hope to see some form of written opinion to explain and support this ground-breaking ruling). 

But, as this post by Jonathan Turley highlights, a very broad definition of who is entitled to restitution raises a lot of new and potentially troublesome questions.  I also think it could (and perhaps should) lead to lots of debate about the relationship between victim restitution and prison sentences in these types of cases (especially in the context of plea discussions).  Could and should a wealthy child porn downloader offer lots of "restitution" to identified victims in exchange for a recommendation (from prosecutors and/or the victims) for s shorter prison sentence?  In light of the rights of victims under the CVRA, should victims and their advocates now be seeking to be heard about their need for restitution in the dozen of child porn cases sentenced in federal courts every week?

Notably, this AP story about the case highlights that at least one important public policy group hopes that this kind of restitution award becomes more common:

Ernie Allen, president of the National Center for Missing and Exploited Children, said he hopes the ruling leads to more restitution orders and that they serve as deterrents to child pornography. "We think this is a terrific precedent," Allen said. "The photos stay out there forever. Every time they are downloaded, every time they are distributed, the victim in that image is revictimized."

Similarly, this notable new editorial from the Connecticut Post, headlined "A welcome ruling on pornography," plainly embraces the possibility of child porn victims participating in every child porn downloading sentencing: "If [this ruling] opens the floodgates for others to pursue recompense, so much the better."

Some related recent federal child porn prosecution and sentencing posts:

• Strong sentencing opinion noting disparities in federal child porn downloading cases
• Yet another notable written opinion in a federal child porn downloading case
• Is there an ivy-leaguer exception to federal child porn charges?
• More examples of sentencing uncertainty surrounding federal child porn cases
• Is there a law student sentencing discount for federal child porn charges?
• Judge Adelman operationalizes deconstructed child porn guidelines
• Another notable child porn sentencing decision
• Another notable sentencing opinion in a child porn downloading case
• 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

SCOTUS argument today on intriguing federal criminal statute

Continuing a Term in which it is considering a whole bunch of federal criminal statutory interpretation questions, the Supreme Court today will hear argument in Flores-Figueroa v. United States.  This entry at SCOTUSwiki provides an effective account of the basic legal issue in the case:

The federal aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), imposes a mandatory two-year sentence on anyone who, during and in relation to certain predicate offenses, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.”  In Flores-Figueroa v. United States, No. 08-108, the Court will consider whether, to secure a conviction under this statute, the Government must show that the defendant knew that the means of identification he used belonged to another person.

But this editorial in today's New York Times, headlined "And Unequal Justice for Some," effectively highlights that there is a lot more to this case:

The Supreme Court hears arguments Wednesday in the case of an illegal immigrant who provided an employer with phony identification numbers. The court must decide whether he can be convicted of the crime of aggravated identity theft — which carries a heavy mandatory prison sentence — even though he did not know the numbers belonged to specific people.

This is a case about the misapplication of federal law. It also is a case about unequal justice.  The government is misusing the identity theft law to pressure illegal immigrants to agree to quick deportation....

The federal aggravated identity theft statute is aimed at the most serious forms of identity theft — and it says the theft must be done knowingly. Congress wanted to punish those who take the identities of other people to do them harm, typically by trying to drain their bank accounts. Mr. Figueroa did not have the intent necessary to violate this law.  He was guilty of identity fraud — a separate, and lesser, crime.

One of the criminal law’s most important tasks is sorting out degrees of culpability. People like Mr. Flores-Figueroa enter the country illegally to work at jobs that pay little and are often dangerous. Their actions are illegal, but they fall far short of stealing a specific person’s identity to rob someone’s life savings. The Supreme Court should reverse Mr. Flores-Figueroa’s conviction to stop overly aggressive prosecutors from going beyond what the law allows — and to ensure that in identity theft cases, the punishment fits the crime.

More questions and fall-out following Judge Kent's guilty plea

I am most interested in the plea and sentencing issues in light of the ugliness surrounding the crimes and prosecution of now-former federal district judge Samuel Kent (basics here).  But, as detailed in these stories, this notable case stirs up a lot of other interesting legal issues:

• From the Houston Chronicle here, "Congressman wants Kent impeached."
• From the National Law Journal here, "Kent's abrupt retirement shrouded in mystery"
• From the Sex Crimes blog here, "Will Judge Kent have to Register as a Sex Offender?"

The Chronicle story spotlights how Kent's latest claim of mental disabilities could lead to attempts to re-open some cases:

Kent told a judge Monday that he’s been treated for diabetes and psychiatric and psychological problems for the past three years.  He also said he is taking medications for all those conditions.

Tuesday the more than 200 cases that were on Kent’s Houston courthouse docket were reassigned, according to David Bradley, chief deputy clerk for the Houston area federal district. Kent had only heard civil cases since January 2008 and stopped hearing any cases in January of this year. 

Some area lawyers said Kent’s claim of disability to get retirement could raise questions about his legal decisions in the last few years in which he said he was suffering the same problems.

Kent Schaffer, a local criminal defense attorney, said if Kent thinks his symptoms are severe enough that he could take disability, they might be severe enough that attorneys should take another look at cases he decided.  “It would be malpractice for a lawyer who had a case before Kent in the last two years or so to not take a look at this,” Schaffer said. “In essence it’s an invitation to reopen cases.”

One notable expression of concern about Hayes and gun rights

As of this writing, I have yet to see any public comments on the Hayes gun crime decision from the National Rifle Association or Second Amendment Foundation or on prominent legal blogs like Instapundit and The Volokh Conspiracy.  But I did come across this post at The Firearm Coalition, which provides this take on the import and impact of the Hayes ruling:

Today's Supreme Court decision means that anyone who has ever been convicted of any misdemeanor crime of violence — to include threats of violence, even if there was no possible way for the threat to be carried out and even if the punishment for the crime was only a $25 fine — is barred from ever possessing firearms or ammunition for the rest of their life if the victim of their crime was a person within the perpetrators household.  This leaves a large number of people at risk of committing unintentional felonies like Hayes did and it means that anyone with any record of battery or assault is likely to face drawn out delays whenever purchasing a firearm as NICS will have to determine the details of the case before approving the sale.

And of course — as with all gun control legislation — the objective and result of this law is not to keep guns away from dangerous criminals, but rather to make criminals of regular citizens and make gun ownership more cumbersome and problematic.  The passage of the Lautenburg Amendment cost thousands of police and military personnel their careers and often their pensions because they could no longer be in positions that required them to possess firearms, and it has ruined the lives of countless others who, like Randy Hayes, had no idea that they were not supposed to possess firearms and were caught up and prosecuted for being a "prohibited person" on possession of a gun.

Other posts on the Hayes decision:

• SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
• Even the Chief and Justice Scalia are content to damn gun possession with faint praise

More discussion of cost concerns in debates over the death penalty

FOXNews has this new article on capital punishment's costs, headlined "Lawmakers Cite Economic Crisis in Effort to Ban Death Penalty: A number of state legislators are citing the country's economic woes as a reason to overturn capital punishment laws." Here are excerpts:

Kansas Republican state Sen. Carolyn McGinn, who has proposed a bill to overturn the death penalty in the state, is one of a growing number of legislators nationwide who are citing drained resources and severe budget cuts as a reason to ban capital punishment. "We're looking at any way we can to save money moving forward in the state of Kansas," McGinn told FOXNews.com. "This will save significant money -- money that could be used toward education programs and toward community corrections programs," she said.

Colorado, Kansas, Maryland, Montana, New Hampshire, Nebraska and New Mexico are among those states actively considering abolishing executions as a way to cut costs. But in other states, including Texas and California, the debate has gained little ground.

The proposal has infuriated many who say the death penalty cannot be decided in dollars and cents. "You cannot put a price on justice," said Kansas Attorney General Stephen Six. "Our death penalty statute is a useful tool for law enforcement as they bring justice to families devastated by heinous and violent murder."...

A 1992 estimate in Texas -- which has had more executions than any other state since the U.S. Supreme Court reinstated the death penalty in 1976 -- showed that death row cases cost taxpayers $2.3 million per case, compared to $750,000 for life sentence cases.

McGinn cited a 2003 state audit that reported the median cost for death penalty cases in Kansas was $1.26 million through execution, while non-death penalty cases cost $740,000 through the end of a prisoner's incarceration. McGinn said legal fees related to death row cases make up a large expense for states, which often have to pay the costs of both the prosecution and defense in capital punishment trials.

"When you add all those costs up and weigh it against that individual being isolated and locked up for the rest of his or her life, it's a much greater cost," said McGinn. She said capital murder trials, on average, cost 16 times more than non-death penalty cases.  The appeals cost 21 times more, she said.

Some recent related posts:

• States considering laying off the death penalty during tough economic times
• Death penalty abolition becoming more realistic in a few western states
• Interesting time for Time's discussion of death's demise
• What might 2009 have in store for . . . the death penalty in the US?

UPDATE:  Wednesday's New York Times has this similar article, headlined "Citing Cost, States Consider End to Death Penalty." Here is how this piece starts:

When Gov. Martin O’Malley appeared before the Maryland Senate last week, he made an unconventional argument that is becoming increasingly popular in cash-strapped states: abolish the death penalty to cut costs. Mr. O’Malley, a Democrat and a Roman Catholic who has cited religious opposition to the death penalty in the past, is now arguing that capital cases cost three times as much as homicide cases where the death penalty is not sought. “And we can’t afford that,” he said, “when there are better and cheaper ways to reduce crime.”

Lawmakers in Colorado, Kansas, Nebraska and New Hampshire have made the same argument in recent months as they push bills seeking to repeal the death penalty, and experts say such bills have a good chance of passing in Maryland, Montana and New Mexico. Death penalty opponents say they still face an uphill battle, but they are pleased to have allies raising the economic argument.

Efforts to repeal the death penalty are part of a broader trend in which states are trying to cut the costs of being tough on crime. Virginia and at least four other states, for example, are considering releasing nonviolent offenders early to reduce costs. The economic realities have forced even longtime supporters of the death penalty, like Gov. Bill Richardson of New Mexico, to rethink their positions.

Relatedly, I just noticed this new editorial from a local paper in Florida, headlined "Capital-Punishment Cost: Death Penalty and Taxes."  Here is how it starts:

The high cost of death-penalty cases becomes ever harder to justify as recession threatens basic law-enforcement funding.  Last month, dozens of probation officers and about 100 positions at the Florida Department of Law Enforcement were cut, with others barely escaping the state budget blade. Counties are trimming sheriff's personnel. Many jails are overcrowded.

All of this occurs as violent crime in Florida persists at rates higher than the national averages.  In such a climate, the state should rethink its pursuit of the "ultimate punishment."  Because of heightened constitutional requirements, death-penalty cases are far more expensive than murder trials in which life without parole is sought.

GPS tracking confirms, but does prevent, murder of teen by sex offender

Though GPS tracking might seem to hold great promise for regulating the activities of certain dangerous offenders upon their release from prison, this local story from Oregon highlights why this technology is not a panacea:

A GPS tracking unit that a homeless sex offender is required to wear corroborates his story that he killed a 13-year-old girl in a Hazel Dell field, investigators said today. According to a probable cause affidavit filed in Clark County Superior Court, Darrin Eugene Sanford was being monitored by the state Department of Corrections, and the GPS unit shows he was in the field when Alycia Nipp was killed Saturday night.

Detectives investigating the case identified Sanford, 30, based on descriptions provided by people who had seen him in the area. The affidavit says that when they questioned him, he confessed. He told detectives he met the girl near some vacant homes and walked with her into the field, where he tried to have sex with her....

Department of Corrections records show Sanford as a Level III sex offender — the category considered most likely to reoffend — and that he had been convicted in Clark County for communicating with a minor for immoral purposes.

Department spokesman Chad Lewis said today that Sanford had been on GPS monitoring because he did not have stable housing. Sanford also had been complying with requirements that he check in daily with his community corrections officer and pay court-ordered restitution, Lewis said. He passed at least his last two drug tests and there was no indication he had tried to tamper with his GPS locator, at least not recently, Lewis said.

Federal sentences imposed on cops after deadly collateral damage from the drug war

As detailed in this CNN report, a trio of "former Atlanta police officers were sentenced Tuesday to prison terms ranging from five to 10 years for covering up a botched drug raid in which a 92-year-old woman was killed."  In this discussion of the sentencing, Radley Balko at Reason notes some drug war comparison outcomes:

By comparison, Ryan Frederick — the Chesapeake, Virginia man who says he mistakenly fired one shot that struck and killed a police officer during a drug raid on his home — received a 10-year sentence. Cory Maye, who also mistakenly shot and killed a cop during a botched drug raid, is still in prison for the rest of his life.

Yet another notable written opinion in a federal child porn downloading case

I received this afternoon yet another fascinating district court opinion concerning sentencing in a federal child porn downloading case. In US v. Beiermann, No. CR 07-4018-MWB (N.D. Iowa Feb. 24, 2009) (available for download below), the defendant faced a guideline sentence range of 210-262 months' imprisonment. In an opinion that runs over 50 pages(!), the district judge explains in detail why he imposed a sentence of 90 months.  Here is how the Beiermann opinion starts and ends:

This case, one of approximately 2,200 sentencings over which I have presided in nearly fifteen years on the federal bench, came before me for sentencing of a defendant who had been an Eagle Scout, with no criminal history points, for offenses involving possessing, receiving, transporting, and shipping child pornography in violation of 18 U.S.C. § 2252A.  This case raises the question of the merits of the advisory United States Sentencing Guideline for defendants convicted of child pornography offenses, U.S.S.G. § 2G2.2, where, inter alia, this guideline purportedly is the result of congressional mandates rather than the United States Sentencing Commission’s exercise of its institutional expertise and empirical analysis.  Although I find that the defendant’s offenses are very serious, I nevertheless find, as have several other district court judges, that a sentence in strict accordance with the advisory guideline for child pornography offenses would be at odds with the “parsimony provision” of the federal sentencing statute, 18 U.S.C. § 3553(a), which directs me to impose a sentence that is “sufficient, but not greater than necessary” to accomplish the goals of sentencing. This memorandum, therefore, explains my rationale for the sentence imposed....

Recognizing that Beiermann has committed serious crimes, but that, for all of the reasons discussed in detail above, the applicable advisory sentencing guideline is not a reliable indicator of the Sentencing Commission’s perspective on a fair sentence — and, indeed, the advisory guideline sentence must be rejected both on categorical, policy grounds, even in a “mine-run” case, and certainly must be rejected on the basis of an individualized determination in this case — I find that a sentence that is “sufficient, but not greater than necessary” to accomplish the goals of sentencing, see 18 U.S.C. § 3553(a), is 90 months of incarceration followed by 10 years of supervised release. Such a sentence is appropriate in light of all of the § 3553(a) factors and, therefore, is sufficient, but not greater than necessary, to accomplish the goals of sentencing.

Download Beierman.sentencing.final.022409

Eleventh Circuit holds erroneous sentencing does not violate a constitutional right

I have long thought that being sentenced to a longer prison term than is legally appopriate would constitute a violation of a constitutionally protected liberty interest.  But a short opinion from the Eleventh Circuit today in Hunter v. US, No. 07-13701 (11th Cir. Feb 24, 2009) (available here) suggests otherwise.  Here is how Hunter starts:

This appeal presents the issue whether a criminal defendant who was erroneously sentenced has made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Demarick Hunter is a federal prisoner serving a sentence of imprisonment of 188 months for being a felon in possession of a firearm, 18 U.S.C. § 924(g).  He moved to vacate his sentence, 28 U.S.C. § 2255, and the district court denied his motion.  Hunter then sought certificate of appealability from this Court, and we denied the application.  The Supreme Court vacated our order denying the certificate of appealability and remanded for reconsideration in the light of its decision in Begay v. United States, 553 U.S. __, 128 S. Ct. 1581 (2008), which held that driving under the influence was not a violent felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e).  Because Hunter has failed to make “a substantial showing of the denial of a constitutional right,” we deny his motion for a certificate of appealability.

Even the Chief and Justice Scalia are content to damn gun possession with faint praise

I have now read the Supreme Court's work in the Hayes gun possession case, and it confirms my sense that none of the Justices (even those who championed individual Second Amendment rights in Heller)have any interest in giving real force or even serious attention to the constitutional right to gun possession in the home.  Consider first this passage from the majority opinion in Hayes, authored by Justice Ginsburg and joined by Justices Alito and Kennedy:

Practical considerations strongly support our [broad interpretation of this federal criminal statute prohibiting gun possession by certain persons].  Existing felon-in-possession laws, Congress recognized, were not keeping firearms out of the hands of domestic abusers, because “many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies.” 142 Cong.Rec. 22985 (1996) (statement of Sen. Lautenberg).  By extending the federal firearm prohibition to persons convicted of “misdemeanor crime[s] of domestic violence,” proponents of §922(g)(9) sought to “close this dangerous loophole.” Id., at 22986.

Construing §922(g)(9) to exclude the domestic abuser convicted under a generic use-of-force statute (one that does not designate a domestic relationship as an element of the offense) would frustrate Congress’ manifest purpose.  Firearms and domestic strife are a potentially deadly combination nationwide.  See, e.g., Brief for Brady Center to Prevent Gun Violence et al. as Amici Curiae 8–15....

I highlight here key sentences because they reveal the willingness of a majority of the Supreme Court, including two of the Justices in the majority in Heller, to embrace and endorse assertions by proponents of broad gun bans and by the Brady Center as to just when certain types of firearm possession are sufficiently "dangerous" and "potentially deadly" to obviate any apparent constitutional concerns with using federal criminal prohibitions to restrict broadly any gun possession in the home by certain persons.

Perhaps even more telling, however, are the punches pulled by even Chief Justice Roberts in his closing statements in his Hayes dissent (which was joined by the surprisingly silent Justice Scalia, author of Heller majority opinion):

It cannot fairly be said here that the [statutory] text [prohibiting prohibiting gun possession by certain persons] “clearly warrants” the counter-intuitive conclusion that a “crime of domestic violence” need not have domestic violence as an element.  That leaves the majority’s arguments about legislative history and statutory purpose.  This is not the “rare” case in which such grounds provide “fair warning,” especially given that there is nothing wrong with the conduct punished — possessing a firearm — if the prior misdemeanor is not covered by the statute.

If the rule of lenity means anything, it is that an individual should not go to jail for failing to conduct a 50-state survey or comb through obscure legislative history.  Ten years in jail is too much to hinge on the will-o’-the-wisp of statutory meaning pursued by the majority.

I highlight here a key phrase that sure seems to damn "possessing a firearm" with faint praise.  Note that the Chief says merely that "there is nothing wrong with the conduct" of possessing a firearm.  In the wake of Heller, it is telling that he does not say instead that "there is a provision of the Constitution that protects an individual right to engage in the conduct" of possessing a firearm in the home for self-protection.  Moreover, in light of Heller, wouldn't reference to the Second Amendment have been appropriate at the close of this dissent?  Why didn't the Chief (or Justice Scalia) add something like this:

If the Second Amendment and Heller means anything, it is that an individual should not forever lose his right to possess a gun just because he may have long ago pled guilty to a misdemeanor that the state now says makes him too dangerous to retain his constitutional right to personal self-defense in the home.  Ten years in jail is too much to threaten on the will-o’-the-wisp of potential misdemeanor prosecutions secured by states that might be eager to pursue back-door limits on who can exercise Second Amendment rights.

Especially in light of the disrespect Heller has been given in so many other criminal justice settings, I am not at all surprised with the outcome in Hayes.  I am troubled, however, that all the Justices seem content to hope that nobody will notice their gutting of Heller is the case is simply not mentioned.  And I will be further troubled if the gun rights community fails to take even their favorite Justices to task for trying to sweep these issues under the statutory interpretation rug.

Some related Second Amendment posts:

• SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
• What if no lower court judges participate in a "Second Amendment Revolution"
• Has there been a single pro-gun-rights rulings in lower courts since Heller?
• Still more proof that federal courts have no real interest in gun rights
• "The New Second Amendment: A Bark Worse Than Its Right"
• Is anyone (other than me) discussing the apparent insignificance of Heller?
• SCOTUS takes new gun case ... is this a Heller tea leaf?
• Media coverage of Hayes oral argument is not gun shy
• What might 2009 have in store for . . . Second Amendment jurisprudence?

UPDATE:  I see Tony Mauro in this coverage of the Hayes ruling has this money quote from the folks at the Brady Center:

The Brady Center to Prevent Gun Violence applauded the decision. "In its first gun case since the landmark Hellerdecision, the Court wisely upheld this reasonable restriction, said center president Paul Helmke. "Today's ruling is the right one for victims of domestic abuse and to protect law enforcement officers who are our first responders to domestic violence incidents."

Similarly, this coverage of Hayes from The Hill has various anti-gun advocates commenting that this ruling shows Heller does not mean a hell of a lot:

Gun control advocates hailed the ruling as a good sign following the Court's decision in District of Columbia v. Heller, a 2008 decision that defined the Second Amendment as covering an individual's right to possess weapons.... "That's a good sign that Heller is the limited ruling we thought it was," said Daniel Vice, a senior attorney at the Brady Center to Prevent Gun Violence.

“Today, the Supreme Court sided with abused women and children and against the gun lobby,” said Sen. Frank Lautenberg (D-N.J.), a gun control advocate and the author of the original amendment. “Today's decision means we can continue keeping guns out of dangerous hands and saving innocent lives.”

Gun control advocates spun the decision as a blow to gun rights groups. The National Rifle Association and major gun rights backers in Congress did not immediately comment for this story.

New CVRA circuit filing in big environmental case

Anyone interested in crime victims rights and the scope and application of the federal Crime Victims' Rights Act will want to keep a close eye on the high-profile environmental case involving the the criminal trial of W.R. Grace in Montana.  As detailed in this post, titled "Who Are "Victims" of Environmental Crimes? Ninth Circuit Fight Brewing in the W.R. Grace Prosecution," former federal judge Paul Cassell is taking to the Ninth Circuit this mandamus petition arguing that the district court unduly limited the reach of who qualifies as a victim under the CVRA.

As regular readers know, the the Crime Victims' Rights Act calls upon the court of appeals to "take up and decide such application forthwith within 72 hours after the petition has been filed."  In other words, it would appear that the Ninth Circuit has to rule on this matter before the end of this week! 

More notable local news from the business pages of prison nation

Regular readers know my favorite modern political mantra: "It's the prison economy, stupid."  The latest opportunity to chant this mantra arises in connection with this local article from Colorado, headlined "State senator keeps Rifle prison open to protect local economy."  Here are snippets:

Dave Scherbarth, associate warden at Rifle Corrections Center, didn’t know what to think when he learned Friday that his facility would be spared from the state’s frenzied budget cuts.  The roughly 50 people who work under him were likewise at a loss.  They had, after all, spent the past month convinced they needed to find a new job because the prison was closing down, Scherbarth said.

Sen. Al White, R-Hayden, ... looked at the situation as a prime example of how the government can save jobs in tough economic times and not aggravate the problem. “We need to diversify our economy so that when these oil and gas resources dry up, or when the companies leave the area as they’re doing now, people still have a place to work,” White said.

Rifle Corrections provided that diversification for the town it’s named after, he added. “This was important to my district,” White said. “It’s a stable, diversified employment base that serves a need in the Piceance Basin, which kind of largely lives and dies on oil and gas.”

It was for those reasons he fought Gov. Bill Ritter’s plan to close the facility and transfer its employees as part of a strategy to cut into the state’s deficit, White said....

About 300 community members from around the region attended a community forum about the prison’s closing, Scherbarth said. People started writing letters to the Legislature and, pretty soon, they started getting responses. “I’m glad I don’t have to sell my house now ... (and) I’m glad my staff doesn’t have to go into the job market right now,” Scherbarth said. “This showed that when the community bands together, things do happen.”

Some related posts:

• It's the prison economy, stupid
• More evidence that it's the prison economy, stupid
• Still more evidence it's the prison economy, stupid
• Economic woes in Michigan impacting corrections and sentencing
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• Why we need a re-entry czar and a task force on the prison economy

"Is Kent getting off easy?"

The title of this post is the title of this piece in today's Houston Chronicle.  As highlighted in this post on the Kent case yesterday, I think the answer to this question is a tentative "yes" right now.  Here is how the Chronicle talks through the sentencing issues:

[Y]et to be seen is whether Kent will spend one night in prison for his crime. He faces 20 years, and prosecutors have requested three, but Senior U.S. District Judge Roger Vinson, visiting from Florida, has discretion.

Vinson’s track record in the case suggests Kent may rest easy in the punishment phase. After all, Vinson has been so concerned with protecting Kent from the powerful forces of media influence that he instated his own, unsolicited, gag order. Vinson continued enforcing the protective cloak of secrecy Monday even after the potential of jury taint was gone.

The pointless muzzle, which had also allowed Vinson to hold private hearings in the case, on Monday robbed the two victims the right to have their say in public after they’d lost the opportunity to do so in the courtroom.

Justice has been a long time coming for Kent, who may have escaped it altogether if not for the prying persistence of the press, notably the Houston Chronicle’s Lise Olsen, Rick Casey and Harvey Rice.

A just punishment for a federal judge who abused his powerful position and disgraced his office isn’t a wrist slap or a lifetime payout. Justice for Kent must sound more like a banging gavel than a half-hearted whisper.

Related post:

• Judge Kent takes a deal (and now becomes the latest, greatest topic for sentencing debate)

SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment

As regular readers know, I have been watching the Hayescase involving a federal statute prohibiting gun possession by certain misdemeanants as a potential Second Amendment sleeper case.  And today the Supreme Court decided Hayes and kept the Second Amendment sleeping.  Indeed, I think we can and should read Hayes as an indication that the Justices are just fine with the Second Amendment sleeping with the fishes: not a single Justice even mentions Helleror the Second Amendment in the course of broadly interpreting a federal criminal statute that prohibits certain misdemeanants from ever possessing a gun.

Posts by Lyle Denniston here and here provide the basic story of Hayes, which will appear (and may be reported) to be just a technical little statutory interpretation case:

The Court has issued an opinion in United States v. Hayes(No. 07-608). The decision below, holding that a predicate offense under 18 USC 922(g)(9) must have as an element a domestic relationship between offender and victim, was reversed in a 7-2 opinion by Justice Ginsburg. Justice Thomas joined the majority only in part. The Chief Justice filed a dissenting opinion in which Justice Scalia joined. The opinion is available here...

[T]he Court expanded the reach of a 1996 federal law that bars possession of guns by a person convicted of a domestic violence crime that was a misdemeanor.  The law applies, the Court said, whenever the battered victim was in fact the wife or other family relative of the offender.  Thus, while such a domestic relationship must be proved beyond a reasonable doubt, it is not a necessary element of the crime, the decision found.  “It suffices for the government to charge and prove a prior conviction that was, in fact, an offense committed… against a spouse or other domestic victim,” the Court explained.

Once I have a chance to review the Hayes opinion closely, I will have a lot more to say about the opinion.  But my first reaction results from the fact that the Second Amendment and Hellerdo not even get mentioned by the dissenters, even though the majority's ruling would seem to provide a green light to jurisdictions looking for pretty easy ways to functionally work around the rights supposedly championed in Heller.

Because Hayestechnically involves the gun rights of "bad men" who have been convicted of certain misdemeanors rather than "good men" who never break the law, I suspect and fear that gun rights activists will try to brush this major loss under the rug.  But, as Justice Scalia stressed in his dissent yesterday, "bad men, like good men, are entitled" to have certain constitutional rights enforced on their behalf.  But, as Hayes reveals, if and whenever any government entity decides you are the wrong kind of of man, the Second Amendment and Heller become not merely diminished but entirely mute/moot.

Some related Second Amendment posts:

• What if no lower court judges participate in a "Second Amendment Revolution"
• Has there been a single pro-gun-rights rulings in lower courts since Heller?
• Still more proof that federal courts have no real interest in gun rights
• Former SG Ted Olson suggests Heller could impact broad prohibitions on felon gun rights
• District Court rejects Second Amendment claim from misdemeanant
• Another (too?) brief opinion rejecting misdemeanant's Second Amendment claim
• An argument that the Second Amendment and Heller should help Weldon Angelos
• Starting to make the Second Amendment case for Plaxico Buress
• "The New Second Amendment: A Bark Worse Than Its Right"
• Monday madness at SCOTUS: ACCA, confrontation and a Second Amendment sleeper
• Is anyone (other than me) discussing the apparent insignificance of Heller?
• SCOTUS takes new gun case ... is this a Heller tea leaf?
• Media coverage of Hayes oral argument is not gun shy
• What might 2009 have in store for . . . Second Amendment jurisprudence?

Different debates about death penalty in statehouses

The stories of legislative reform of the death penalty in different states remains amazingly dynamic as evidenced by these stories in today's papers:

• Alaska House committee debates death penalty

• House panel backs bill banning death penalty in Colorado

In Alaska, "lawmakers have begun hearings on a proposal to reinstate the death penalty, a practice abolished even before statehood was granted more than half a century ago."  But in Colorado, a "House committee Monday night, after hearing hours of emotional testimony, approved a bill that would ban the death penalty."

Also, from Maryland comes this report that "Senate President Thomas V. Mike Miller Jr. (D-Calvert) said yesterday that he would like to see a relatively quick, up-or-down committee vote on a bill to repeal Maryland's death penalty."  Because debate over death penalty repeal in Maryland has been going on for years, I am sure this story will keep making headlines, too.

What's up with all the SCOTUS capital case cert grants from the Sixth Circuit?

There are lots of interesting issues to be mined from the group of criminal cases that the Supreme Court accepted for review today (basic details here).  But among the stories lurking therein is the Justices' continuing interest in capital cases from the Sixth Circuit.

Notably (and largely to my delight in light of my recent scholarly kvetching about the Supreme Court taking too many capital cases), the Justices have not taken up very many death penalty cases recently.  Of course, last Term brought a capital case cornucopia, with the blockbuster Baze and Kennedy and Medellinrulings.  But, since then, the Justices have decided to consider only a precious few capital cases (despite a slowly growing docket).  And, intriguingly (and coincidentally?), all of the capital cases before the Court this Term arise via habeas rulings coming from the Sixth Circuit: Cone v. Bell, Bobby v. Bies, and now Smith v. Spisak.

There are many notable case-specific aspects to each of these cases and the Sixth Circuit rulings that are now under review by the Supreme Court.  But, especially in light of my broader interest in how the Supreme Court sets its criminal docket, this pattern of cert grants seems noteworthy.

A CRS report on "Sentencing Levels for Crack and Powder Cocaine"

I just recived a pdf copy of a report recently issued by the Congressional Research Service, titled "Sentencing Levels for Crack and Powder Cocaine in Light of Kimbrough and the Impact of Booker."   This document, which can be downloaded below, provides a very effective review of past and present federal sentencing realities, all the way through the new guidelines and most recent Supreme Court and circuit jurisprudence.

Download Sentencing Levels for Crack and Powder Cocaine - Kimbrough and the Impact of Booker

Can anyone report on Judge Samuel Kent's sentencing record?

Before diving even further into all the interesting sentencing issues raised by U.S. District Judge Samuel Kent's guilty plea (basics here), I thought it might be useful to hear about Judge Kent's record as a sentencing judge.  Because the US sentencing system does not keep judge-specific data, there is no way to formally look up Judge Kent's sentencing record during his 18 years as a federal district judge.  But I am hopeful that some readers in the know from direct experiences might be able to use the comment to report on his basic sentencing reputation.

Judge Kent takes a deal (and now becomes the latest, greatest topic for sentencing debate)

I have not blogged at all about the ugly allegations against federal judge Samuel Kent, but this latest news about his case from Mary Flood at the Houston Chronicle means that Judge Kent may soon to become my new post-Booker federal sentencing poster-child.  Here are the basics:

U.S. District Judge Samuel Kent pleaded guilty to one count of obstruction of justice today and retired from the bench, avoiding a trial on that charge and five others accusing him of sexually abusing two female employees.  Kent was scheduled to see a jury selected this morning for his trial on all six felony counts.

Few federal judges ever go to trial, but his would have been the first in which a federal judge was accused of sexual charges. “Judge Kent believes that this settlement is in the best interest of all involved,” his attorney, Dick DeGuerin, said after this morning’s hearing.  “A trial would have been long, embarrassing and difficult for all involved,” DeGuerin added. He said Kent has retired from the bench.

Kent faces up to 20 years in prison on the obstruction charge.  Prosecutors have suggested he be sentenced to three years in prison, but the judge is not bound by that recommendation.

Senior U.S. District Judge Roger Vinson has imposed a gag order on those involved in the case, but allowed DeGuerin to make his statement to the news media. The two female court employees with whom Kent now admits he had non-consensual sexual contact also were barred from speaking by Vinson’s order. Gag orders are designed to protect the rights of defendants from public prejudice before trial. Kent has waived his right to appeal and it is unclear why Vinson would issue a gag order....

Although, in most pleas in the federal courthouse in Houston, defendants are made to state their crimes, neither Kent nor prosecutor Peter Ainsworth stated the crimes in court.  Instead, papers were filed stating that Kent had non-consensual sex with two former female employees between 2003 and 2007.  The papers also state that, as part of the investigation into a complaint by one of the women, Kent lied about his relationship with the second woman to the Special Investigative Committee of the 5th Circuit.  Kent signed those papers admitting his wrongdoing....

Kent’s sentencing [is] set [for] May [and a lawyer for one victim] said he expects the victims will have a chance to speak then. Federal law requires judges to consider the victims’ input in sentencing.

So, let's review the offense and plea basics: a federal judge has admitted to "non-consensual sex" with two federal employees and he gets to cop a plea to one obstruction count and gets a sentence recommendation from prosecutors of only three-years imprisonment.  This seems like a pretty sweet deal, especially given that hundreds of federal defendants are now serving much long prison terms for just downloading the wrong kinds of dirty pictures on their computers. 

These issues really concern me in light of the (peculiar) gag order on Judge Kent's real victims.  I wonder if the victims of his "non-consensual sex" — which is sometimes called rape where I come from — were consulted (as the Crime Victims' Rights Act arguably requires) before federal prosecutors made this sweet deal.  I also wonder if they might now urge state prosecutors to go after Judge Kent for state crimes now that he has secured such a sweet deal from the feds. 

Now, let's spot some sentencing issues:

• should Judge Kent's guideline calculations be focused on his admitted "non-consensual sex" as relevant conduct?
• should Judge Kent get any credit (under the guidelines or otherwise) for his (late-in-the-day) acceptance of responsibility?
• should Judge Kent have to register as a sex offender?
• should Judge Kent's prior government and status be a mitigating or an aggravating sentencing factor in light of the provisions of 3553(a)?
• should all the collateral consequences of his conviction (including the likely loss of his federal pension) be a mitigating sentencing factor in light of the provisions of 3553(a)?
• is the gag order on the victims consistent with the federal Crime Victims Rights Act?

I could go on and on, but it looks like we will have at least a few months to work through these issues.  (The CVRA issues, however, strikes me as one that might merit consideration (and litigation?) sooner rather than later.)

The inane and insane realities of federal felon-in-possession prosecutions and sentencings

A little decision today from the Eighth Circuit, US v. Littrell, No. 08-1149 (8th Cir. Feb. 23, 2009) (available here), provides yet another reminder of how the federal felon-in-possession law is utilized to convict and sentence defendants for all sort of outrageous behavior that has relatively little connection to the illegal possession of a firearm.  Here are the basic offense facts as described by the Eighth Circuit in Littrell:

Early on the morning of August 2, 2006, Littrell argued with his landlady, Melissa Stout, at her home in West Des Moines, where Littrell had been renting a room for about two months.  When Stout reminded Littrell that he owed her more than $1,000 in rent and other debts, Littrell went to his bedroom, returned with a hard-sided case, and pulled a firearm.  Littrell pointed the gun at Stout and threatened to kill her, then fired a bullet into the living room ceiling and out the roof.  Littrell and his girlfriend, Chrissy Highland, went to his bedroom and packed his belongings in pillowcases and sheets.  Littrell went to the basement and cut the phone lines and threatened to kill Stout if she left the house.  Some two or three hours after firing the shot, Littrell left with Highland in Stout’s car.  Stout called the police from the home of a friend.  Five days later, the police recovered the damaged car outside a store in Des Moines about four miles from Stout’s home.  Store employees told the police that the car had been there for several days.

To me, this account of Bobby Littrell's crime spree reads like the start of a law school exam in which a student is expected to name all the serious felonies with which Littrell might be charged in state court.  In the inane and insane "real-world" of federal crime and punishment, however, the defendant here merely faces the criminal charge of a felon-in-possession offense. 

And yet, as the Littrell opinion highlights, in the inane and insane world of federal sentencing, all the offense-related facts remain relevant to federal sentencing because the district judge applies a four-level guideline sentencing enhancement because he concluded (by a preponderance of evidence) that the Bobby Littrell "used the firearm 'in connection with another felony offense,' namely, theft of his landlady’s car."  The defendant appeals by stressing evidence that the landlady "regularly allowed Littrell to borrow her car" and by arguing that his illegal firearm possession was not "in connection with" his disputed car thievery.  Not surprisingly, Bobby Littrell finds few judicial friends in the Eighth Circuit.

Given the ugly facts of the Bobby Littrell's behavior, the district court's imposition and the circuit court's affirmance of a (statutory maximum) sentence of 10 years' imprisonment seems justifiable.  But I cannot help but wonder if the authors of the Bill of Rights would have been even more troubled by the ugly way federal criminal power is exercised here.  Rather than having state authorities indict and try the defendant for all his local crimes, the feds come in, secure a conviction through a broad regulatory law, and then obtain a long prison sentence by "proving" state crimes to a federal district judge (by a preponderance of evidence) at sentencing.  Thanks to modern criminal justice realities, federal prosecutors can easily make a sentencing end-run around most of the constitutional criminal procedure rules the Framers put into the Fifth and Sixth Amendments.

SCOTUS action in assortment of interesting criminal justice cases

As effectively detailed over at SCOTUSblog, the Supreme Court returned from its month-long break with a bunch of cert grants.  And, as this post details, four of the six grants involve interesting criminal justice issues:

• Alvarez v. Smith (08-351) — The legal standard for a court hearing to test the forfeiture of property used in a drug crime... 
• Padilla v. Kentucky (08-651) — The duty of an attorney to advise a client facing mandatory deporation from the U.S. after pleading guilty to trafficking in marijuana....
• Smith v. Spisak (08-724) — Judges’ duty to advise jurors on whether unanimity is required in finding factors that bear upon imposing a death sentence. 
• Johnson v. US (08-6925) — The status of a state conviction for felony battery as a violent crime under the federal Armed Career Criminal Act.

In addition, Justice Scalia  has a lot to say about federal criminal justice issues in this potent dissent from the denial of certiorari in a case concerning federal "honest services" fraud. Here is how the raving criminal justice liberal, Justice Brennan Scalia, concludes his latest dissent:

It may be true that petitioners here, like the defendants in other “honest services” cases, have acted improperly.  But “[b]ad men, like good men, are entitled to be tried andsentenced in accordance with law.”  Green v. United States, 365 U.S. 301, 309 (1961) (Black, J., dissenting). In light of the conflicts among the Circuits; the longstanding confusion over the scope of the statute; and the serious due process and federalism interests affected by the expansion of criminal liability that this case exemplifies, I would grant the petition for certiorari and squarely confront both the meaning and the constitutionality of §1346.  Indeed, it seems to me quite irresponsible to let the current chaos prevail.

Shotgun killing by juvenile in PA raising lots of legal and other challenges

The latest shocking killing by a very young juvenile offender, this one in Pennsylvania, is creating legal and other difficulties for the prosecutor who has to figure out to do with a unique type of offender.  These challenges are noted in local articles: from the Pittsburgh Tribune-Review here, " DA not yet sure how to try boy accused of murder"; from the Pittsburgh Post-Gazette here, "Law ties DA's hands over jailing of juvenile in homicide."  Here are excerpts from the latter article, which highlights how hard cases make mandatory sentencing laws especially problematic for everyone involved in these cases:

It's a case that cries for the wisdom of Solomon. On one hand, a pregnant mother of two was fatally shot in the back of the head and left to be found by her frightened 4-year-old who was alone in the house.  On the other hand, an 11-year-old boy is accused of the horror, caught in limbo between adult and juvenile courts, sitting in isolation in a county lockup with little more than a cot, a sink and a commode for company.

"Yeah, it's enough to make me throw up," said Lawrence County District Attorney John Bongivengo, prosecutor of the child who, in the eyes of the law, is an adult facing the most serious criminal charge on the books: two counts of premeditated homicide....  The subject has been keeping the district attorney up at night as he struggles to discern the right way to proceed. "I don't think I've slept more than three hours since Friday," he said.

That's the day when Jordan Brown, a fifth-grader from New Beaver, Lawrence County, allegedly killed his father's pregnant girlfriend, Kenzie Marie Houk, 26. Police say he used the child-sized 20-gauge hunting shotgun his father, Chris, had given him for Christmas.  Ms. Houk, who was due to deliver a son in a couple of weeks, was shot while lying on her bed in the family's two-story farmhouse near New Castle.  Her body was found by her 4-year-old daughter, Adalynn.

Mr. Bongivengo described the killing as "premeditated and cold-blooded."  He said Jordan shot his future stepmother, put the shotgun back in his bedroom, got rid of the spent shell casing and rode the bus to Mohawk Elementary School with Ms. Houk's 7-year-old daughter, Jenessa.  Jordan's father was at work at a local factory at the time of the killing.

By early Saturday, Jordan had been arrested and charged with two counts of homicide, including the killing of an unborn child.  And Mr. Bongivengo was beginning what he expects to be one of the most difficult cases he'll ever face. "I'm really struggling with this," said the district attorney, a 38-year-old father of a nearly 9-year-old son and twin 6-year-old boys. "I can't help but pull on my experience as a father here. I don't like thinking of this boy in jail, either. But, I also have to be a DA," he said. Mr. Bongivengo is in his fourth year as the county's chief prosecutor.

The dilemma is what to do with a child who has been deemed an adult. If he had his druthers, Mr. Bongivengo said, he would see the state Legislature change the law that employs what's known as a "direct transfer," which automatically requires children 10 and older to be charged immediately as adults if they are suspected of homicide. "The law puts us in the position of dealing with a child who must be treated as an adult," he explained. "I feel like I'm short on options."

How could more female offenders impact the reality and perception of sex offender sentencing?

This new article from the Dallas Morning News, headlined "Child sex cases involving women are on the rise in Texas," discusses a notable trend in sex offense cases:

The number of women serving time in Texas prisons for having sex with minors has increased more than 36 percent in the last five years. "Up to five years ago, we didn't talk about this," said Keith Durkin, a criminologist and researcher at Ohio Northern University. "Our culture is becoming more aware that women can and do commit these offenses."...

Last month, as a Collin County jury deliberated whether a 40-year-old Allen woman was guilty of having sex with two teenage boys, two other young men came forward with similar accusations against her. Rather than wait for a verdict, Regina Bowling pleaded guilty to two counts of indecency with a child and was sentenced to 10 years in prison.

Bowling is one of a growing number of women in Texas and nationwide accused of committing sex crimes against minors. So far this year, at least six Collin County women charged with having sex with minors – including Bowling – are either being prosecuted or have already had their cases adjudicated....

Studies suggest that female sex offenders often have a history of depression and anxiety. In addition, like many of their male counterparts, women abusers also may have been sexually abused as children. Durkin said teenage boys are ideal victims of such crimes because they're less likely to complain and, if they do, their outcries "may be dismissed as teenage fish stories."...

Most of the women convicted of sex crimes against minors have had relationships with men their own age but abuse children for their own emotional needs, said Anne Mooney, supervisor of the prison treatment program, which launched in October 2000. She said that unlike male sex offenders, who often seem to lead outwardly normal lives and have families and stable jobs, women convicted of these crimes often have chaotic lives, marked by substance abuse, frequent moves and erratic employment.

I have blogged before about notable cases in which female sex offenders have been sentenced differently than male sex offenders.  But while it is easy to note how sex offense cases appear impacted by gender dynamics, it is hard to feel confident if and how these cases should be impacted by gender dynamics. 

Some prior related posts:

• Notable plea deal to avoid mandatory minimum in notable sex case
• A better example of sex-offense plea deal gender disparity?
• Another example of gender bias in adult-youth sex offense sentencing?

"The last thing the Supreme Court needs: Another judge"

The title of this post is the title of a new op-ed in the Chicago Tribune from Professor Timothy P. O'Neill.  As regular readers know, this op-ed echoes some points I have been making whether SCOTUS appointments become a topic of discussion and speculation.  Here is a snippet from the op-ed:

For the first time in American history, every justice now on the court has come from exactly the same job: judge on the U.S. Circuit Court of Appeals. Chief Justice John Roberts has approvingly noted this fact, calling the court a "judges' court" that has "a more legal perspective and less of a policy perspective."

But Roberts neglects to mention several other "firsts."

For the first time in American history not a single justice has had any legislative experience. Not one has ever been elected to Congress, a state legislature or a city council.

For the first time in American history not a single justice has ever held—or even run for—any elective office at any level of government.

For the first time in American history eight of the nine justices attended one of two law schools: Harvard or Yale.

This narrow background is unprecedented. We now have eight justices who can sing the Harvard or Yale fight songs, but not one who has ever shaken hands with a voter, introduced a bill in a legislature or decided whether to veto a piece of legislation.

Some related old and new posts on judicial appointments:

• Does SCOTUS need a trial judge?
• Developing a SCOTUS short list of district court judges
• Insider myopia and the diverse benefits of a short bench
• Thinking creatively about different SCOTUS short lists
• Reflections on the politics of SCOTUS and personhood of its members
• Is career diversity a bad thing in the highest court in the land?
• Judging, politics, sentencing and elections
• Will the next SCOTUS nominee have any criminal law background?
• Brave New Justice and sentencing issues
• A modest(?) proposal for filling the bench from the ivory tower
• Urging President-elect Obama to elevate district judges to the circuit courts

The capital punishment back-up in California

The San Francisco Chronicle has this new front-page article, headlined "3 years later, state executions still on hold," detailing the messy status of capital punishment in California. Here is how the piece starts:

It's been three years since the night a federal judge blocked an execution at San Quentin State Prison because of concerns that the state's haphazard lethal injection methods could inflict prolonged and excruciating pain on a condemned inmate, violating the U.S. Constitution.

Today, the state is no closer to executing the Stockton murderer-rapist who was to have died that night, Michael Morales, or any of the other 679 prisoners on the nation's largest death row. Gov. Arnold Schwarzenegger's administration says it's trying to break the logjam by agreeing to let the public comment on proposed new procedures for executing convicts, a concession that it opposed in court for more than two years....

Even if the state now moves quickly to evaluate public comment on the revamped injections, and rapidly persuades the federal courts that it's solved the previous problems, executions are unlikely to resume in California for at least another year.