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May 1, 2010

Lots of interesting questions in upcoming sentencing proceeding for hacker of Sarah Palin's e-mail

As detailed in this story from InformationWeek, which is headlined "Hacker Of Sarah Palin's E-Mail Found Guilty: Palin calls violating the law for political gain 'repugnant'," a high-profile federal computer crime case is now ready to shift into a sentencing phase.  Here are the basics:

David C. Kernell, the former University of Tennessee-Knoxville student linked in 2008 to the hacking of Sarah Palin's Yahoo Mail account, was found guilty on Friday afternoon of a felony and a misdemeanor.  A federal jury in Knoxville, Tenn., convicted Kernell, 22, of obstruction of justice, a felony, and unauthorized access to a computer, a misdemeanor.

The jury deadlocked on a charge of identity theft and acquitted Kernell on a charge of wire fraud. The obstruction of justice charge carries a maximum sentence of 20 years. The misdemeanor charge carries a one year maximum sentence. Based on federal sentencing guidelines, Kernell's sentence is likely to be less than two years.

Kernell obtained access to Palin's e-mail account when Palin was running as the Republican candidate for vice president by guessing her password, "popcorn." He then posted screenshots of his findings on an Internet forum.

Wikileaks subsequently posted some of the data that Kernell had obtained, stating that it had done so because "Governor Palin has come under criticism for using private e-mail accounts to conduct government business and in the process avoid transparency laws."

The whistle blowing site posted five screenshots of Palin's Yahoo Mail account, three text files with contact information and related data culled from the account, and two photos of Palin's family. "The list of correspondence, together with the account name, appears to re-enforce the criticism," said Wikileaks.

The case generated intense media interest in part because Kernell is the son of Tennessee Democratic state Rep. Mike Kernell, a link that convinced many Republican supporters that the hack was politically motivated.

In a statement posted to her Facebook page, Sarah Palin expressed gratitude to the jury for its verdict and likened the account break-in to the Watergate scandal.

"Besides the obvious invasion of privacy and security concerns surrounding this issue, many of us are concerned about the integrity of our country's political elections," she wrote.  "America's elections depend upon fair competition.  Violating the law, or simply invading someone's privacy for political gain, has long been repugnant to Americans' sense of fair play.  As Watergate taught us, we rightfully reject illegally breaking into candidates' private communications for political intrigue in an attempt to derail an election."

Though the involvement of Sarah Palin is principally what gives this case its high-profile status, I see lots of interesting and important computer crime sentencing issues raised by this case.  For example:

1.  Does Palin qualify as a victim of David Kernell's crimes under the CVRA so as to provide he with special statutory rights during the sentencing proceedings?  Relatedly, will Palin opine formally about what sort of sentence she wants Kernell to receive?

2.  Should the politics surrounding this matter serve as an aggravating or mitigating factor at sentencing?  On the one hand, illegal hacking for political advantage seems to make these computer crimes, in Palin's words, more "repugnant to Americans' sense of fair play."  But, on the other hand, the important and valid public interest in knowing about public figures perhaps makes "political figure" hacking more understandable.

3.  Should Kernell's age be an aggravating or mitigating factor at his sentencing?  On the one hand, retributivists might argue that he is less culpable because young people these days really do not understand fully the significance of on-line privacy.  But, on the other hand, consequentialists might argue that he should be punished more severely to send an especially strong message to young people about the importance of respecting on-line privacy.

I could go on and on: e.g., is this case one that may uniquely justify prison alternatives and/or shaming sanctions and/or community service?  is the recommended guideline range really likely to speak to any of the special factors involved in this case?  Is it entirely appropriate for Palin to be using Facebook to tell the world how awful she thinks the defendant's crimes are (especially given that he was acquitted on two counts)?

May 1, 2010 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Victims' Rights At Sentencing | Permalink | Comments (6) | TrackBack

April 30, 2010

Why the proposed new federal guideline amendments are symbolically important

There are lots of practical and technical reasons why the proposed new federal guideline amendments released today by the US Sentencing Commission (basics here) are quite important and potentially very consequential for the day-to-day work of litigants and judges in the federal sentencing system.  But, the ivory-tower academic in me cannot help but suggest that folks note and reflect upon the symbolic importance of these new amendments.  Let me explain.

First, these amendments are really the first set of changes to the US Sentencing Guidelines that fully and formally reflect the import and impact of the Supreme Court's decision in Booker.  It is pretty crazy and sad that it has taken the USSC more than five years to fully deal with Booker as the law of the land, but it is also quite significant and telling that the Commission is now making sure that the guidelines expressly take account of post-Booker realities.

Second, and even of greater symbolic import, virtually all of the Commission-driven proposed amendments in this cycle are intended to (and are likely to) reduce applicable sentencing ranges and the overall severity of the guidelines.  Through the first 20+ years of guideline sentencing, the vast majority of proposed amendments have called for increases in applicable sentencing ranges and the overall severity of the guidelines.  This set of amendments thus reflects a quite tangible (and perhaps enduring) change in focus and direction of the Commission's on-going guideline-revision work.

This second point, critically, also prompts an important practical and technical issue (assuming Congress allows these new proposed guideline to become effective): will the US Sentencing Commission later this year vote to make any of its new guideline-reducing amendments retroactive for the benefit of already-sentenced defendants now in federal prison?

April 30, 2010 in Federal Sentencing Guidelines, Scope of Imprisonment, Who Sentences | Permalink | Comments (5) | TrackBack

Interesting split Eleventh Circuit ruling on whether ADA applies to a private prison

Because I am not an expert on the American with Disabilities Act, I cannot readily assess the merits of the split ruling by the Eleventh Circuit today in Edison v. Douberly, No. 08-15819 (11th Cir. 2010) (available here).  But the majority's holding and the forceful dissent have me thinking the case implicates not just the procese issue of whether just the ADA applies to a private prison, but also whether and how private prison operators can be sued by the prisoners they manage.  Moreover, this concluding sentiment by the dissent cannot help but invoke a little sympathy for the losing litigant here:
In light of the fact that Edison is legally blind, his case raises novel issues of law, and he did not benefit from the assistance of counsel during the district court proceedings, the case should be remanded with the opportunity for Edison to amend his complaint. Leaving the majority’s holding on the ADA aside, it is an injustice to leave a blind, incarcerated litigant without any legal recourse in this complex litigation because his request for counsel was wrongfully denied during the district court proceedings.

April 30, 2010 in Prisons and prisoners, Who Sentences | Permalink | Comments (4) | TrackBack

"Convicted Felon Sues State Over Right To Bear Arms"

The title of this post is the headline of this notable press story sent to me by a helpful reader.  Here is how the piece starts:

A Franklin man is suing the state of Tennessee for not honoring a pardon allowing him the right to bear arms. David Scott Blackwell received a felony charge for drug possession in 1988, when he was 20 years old.

"I was young and dumb and moved from a small town in Mississippi and got involved with the wrong crowd in Atlanta," said Blackwell. "I'd sold some cocaine to an undercover officer. Boom - I went to prison, went to jail."

After serving his sentence and earning a bachelor's degree in nursing, the father said he petitioned the state of Georgia for a pardon, including the restoration of the right to bear arms, which was granted on August 11, 2003.

Blackwell ran into a problem in Tennessee. "Wanted to go hunting about two years ago and went to purchase a little .22 rifle for my son, and was denied," said Blackwell.

After two years of going back and forth with the Tennessee Bureau of Investigation and the Attorney General's office, Blackwell decided to file a declaratory relief lawsuit against the State of Tennessee, Governor Phil Bredesen and Attorney General Bob Cooper.

The lawsuit was filed in Davidson County Chancery Court on Thursday morning, and served to the state later that afternoon. Cooper's office had no comment on the lawsuit, but said they are in the process of reviewing it.

"It is just amazing to me that if you have a pardon, a full pardon that specifically gives you restoration of rights that the attorney general can say 'no, you're not a person. You have no rights. You don't have the same rights as anyone else,'" said Blackwell's attorney David Raybin.

"According to the attorney general, even if the governor of Tennessee pardoned a person in Tennessee, that wouldn't help them," continued Raybin. "Under the attorney general's opinion, there's no power on the planet that can restore his right to have a firearm and I reject that. I think that's wrong."

"We call it a Department of Corrections, not a Department of Punishment," said Blackwell. "We all want people to be corrected in their behavior, but there has to be that touchdown, that goal line that somebody can attain to become a citizen again."

A few related Second Amendment posts:

UPDATE:  Thand to Blackwell's attorney David Raybin, I have a copy of the complaint filed in Blackwell v. Bredesen, which can now be downloaded here:

Download Blackwell_v_Bredesen_FILE_STAMP_copy

April 30, 2010 in Clemency and Pardons, Second Amendment issues | Permalink | Comments (10) | TrackBack

US Sentencing Commission posts full text of its significant new guideline amendments

I am very pleased to report that the US Sentencing Commission now has posted on its website the full text of its new "Amendments to the Sentencing Guidelines, Policy Statements, and Official Commentary." Here is how this technical document is officially described:

Pursuant to section 994(p) of title 28, United States Code, the United States Sentencing Commission hereby submits to the Congress the following amendments to the sentencing guidelines and the reasons therefor. As authorized by such section, the Commission specifies an effective date of November 1, 2010, for these amendments.

Though there are a lot of important and interesting aspects to all the amendments, the first five amendments are especially significant and all could be hugely consequential.  Of particular interest because it potentially impacts every federal sentencing proceeding, is the second amendment concerning changes to the language about departures based on certain offender characteristic.  Specifically, the proposed amendment eliminates the guidelines long-standing assertion that certain key offender characteristics are "not ordinarily relevant" to a departure decision.  Now, as this document explains:

As amended, these policy statements generally provide that age; mental and emotional conditions; and physical condition or appearance, including physique, "may be relevant in determining whether a departure is warranted, if [the offender characteristic], individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines."

Though arguably not too much more than a tweak in how the guidelines call for these offender characteristic to be considered, I suspect many (all?) defense counsel and some (many?) sentencing judges will view this tweak to be very significant in some (many? all?) cases.

April 30, 2010 in Federal Sentencing Guidelines, Offender Characteristics, Who Sentences | Permalink | Comments (4) | TrackBack

Is California finally getting closer to bringing its death chamber back on line?

As detailed in this Los Angeles Times article, which is headlined "California revises execution guidelines," the state with the largest death row has finally taken a critical step forward in its long-stalled efforts to revise its execution protocol in response to constitutional litigation:

California moved a step closer to resuming executions Thursday when corrections officials announced new lethal injection procedures, beating a May 1 deadline by one day. The proposed changes in the death chamber procedures, though mostly minor, are intended to address concerns expressed by a federal judge in 2006 that the state's earlier three-drug sequence may have exposed some of those who were executed to unconstitutionally "cruel and unusual punishment."

Although the new procedures could get final approval by mid-June, executions are unlikely to resume soon because federal and state judges must first review the changes and decide whether they address the constitutional questions and procedural complaints brought by death penalty opponents. Those reviews are likely to extend at least through the end of the year, and other pending legal challenges could keep the current moratorium in effect for months or years....

California has 702 inmates on death row. Despite having the nation's largest population of condemned prisoners, there has not been an execution in the state since convicted killer Clarence Allen was put to death in January 2006.  At least six death row inmates have exhausted all appeals and could be scheduled for execution as soon as the legal reviews are completed, said Kent Scheidegger of the Criminal Justice Legal Foundation that supports the resumption of executions.

Terry Thornton, spokeswoman for the California Department of Corrections and Rehabilitation, said Thursday's submission of the protocols was the final step for the agency in the "rule-making process." She declined to predict when executions might resume, noting the involvement of other state agencies and the courts.

Thanks to C&C, I saw that the California Department of Corrections and Rehabilitation has this new document titled "Timeline of Lethal Injection Protocol Regulations," which details why it has take the state moreso long to revise effectively its execution protocol.

April 30, 2010 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (4) | TrackBack

New Florida bill to criminalize sex offenders coming with 300 feet of places where children congregate

This new local article, which is headlined "Fla. Senate to vote on restricting sex offenders from within 300 feet of schools, parks," indicates that Florida is soon to have a new restriction on the conduct of sex offenders. Here are the basics:

Senators are set to vote Friday on a bill that would ban convicted sex offenders and predators from loitering or prowling within 300 feet of places where children congregate, such as schools, parks and playgrounds.

The proposed new law (HB 119), sponsored by Rep. Richard Glorioso, R-Plant City, would be enforceable 24 hours a day, statewide. A convicted sex offender or predator caught within the buffer zone would be subject to a first-degree misdemeanor, punishable by up to a year in jail.

House members unanimously passed the bill, 115-0, earlier this month.  Broward County commissioners unanimously approved an identical law Tuesday. The county ordinance is punishable by 60 days in jail or a $500 fine. Miami-Dade County approved the same zones earlier this year.

The move in Broward comes on the heels of outrage earlier this year over reports that a confessed child killer was hanging out in Stranahan Park, next to the main library in downtown Fort Lauderdale....

Sen. Dave Aronberg, D-Greenacres, had sought to include a provision in his version of the bill (SB 1284) that would repeal some of the restrictive residency requirements, which make it increasingly difficult for convicted sex offenders and predators to find places to live.

State law does not allow convicted sex offenders and predators to live within 1,000 feet of schools, playgrounds and parks, but many cities and counties have extended the areas to 2,500 feet. The result has created a statewide patchwork of restrictive zones. Two dozen Broward cities have passed their own residency ordinances.

Aronberg reluctantly withdrew his residency provision, which would have established a statewide 2,500-foot residency ban around schools and day care centers. The goal was to set a consistent standard and stop municipalities from expanding the restriction even more.  Sex offenders unable to find a legal place to live move onto the streets and fail to report their whereabouts to state authorities, Aronberg said.  "Sex offenders have been pushed underground," Aronberg said. "They go homeless, don't report and they roam our streets. This is a very dangerous situation. We need more standardization and we need to keep our streets safer."

April 30, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (20) | TrackBack

Federal prosecutors now seeking 25-year prison term for Rubashkin

This AP article, which is headlined "25-year term sought in Iowa slaughterhouse case," provides a recap of the conclusion of the two-day sentencing hearing in a high-profile white-collar case in Iowa. Here are some of the details:

Prosecutors asked a federal judge on Thursday to sentence a former kosher slaughterhouse executive to 25 years in prison, less than the life sentence they have said they were entitled to request.

Former Agriprocessors Inc. manager Sholom Rubashkin, who was convicted of 86 counts of financial fraud in November, gave a tearful, halting speech at the end of his sentencing hearing in U.S. District Court in Cedar Rapids. He was charged following a May 2008 immigration raid at the former Agriprocessors slaughterhouse, where 389 workers were arrested on immigration charges.

Rubashkin told the court he had made mistakes and was remorseful. In a thick Brooklyn accent, he reiterated that he was sorry for his actions, and that he was put in a position by his family of running the operations of a large plant for which he had no training or interest....

Prosecutors had added up the charges in pre-sentencing documents and the total came to a life sentence. But assistant U.S. Attorney Pete Deegan said Thursday in court that the government would seek 25 years and not life, which is "usually reserved for violent criminals."

"Here you have a defendant who had everything: family, love and support," Deegan said. "And he's asking for a lesser sentence because of it."

Defense attorney Guy Cook, who had requested a six-year sentence, said the request for 25 years would essentially be a life sentence for the 50-year-old Rubashkin. Cook asked that he serve it at a facility in Otisville, N.Y., which better caters to the needs of Hasidic Jews. "He only has about 25 or 26 years left on this earth," Cook said. "Twenty-five years is a life sentence."

U.S. District Court Judge Linda Reade says she'll issue a ruling on May 27....

Deegan said there were many victims in the case: the banks who lost money to Rubashkin because of the fraud, the cattle sellers who had to take out loans to avoid closure, and the citizens of Postville, who watched their largest employer fall into bankruptcy and their town's economy crumble. Deegan said Rubashkin wasn't some far-removed corporate officer who "sets (fraud) in motion," but rather a hands-on executive who personally broke the law and directed others to do the same.

But Cook said he had gotten to know Rubashkin since he took on the case, and found him to be a deeply religious man who put the needs of others in front of his own. "It was not a Ponzi scheme, it was not a Madoff scheme," Cook said. "He made mistakes and he compounded those mistakes. And he felt trapped and didn't know how to get out."

Related posts on the Rubashkin case:

April 30, 2010 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (9) | TrackBack

April 29, 2010

"The Stability of Case Processing and Sentencing Post-Booker"

The title of this post is the title of this notable empirical paper that I just noticed via SSRN.  The piece is  authored by Jeffery Todd Ulmer and Michael Thomas Light, and here is the abstract:

In January of 2005, the U.S Supreme Court ruled in United States v. Booker and Fanfan that in order to be constitutional, the federal guidelines must be advisory rather than presumptive. The uncertainty regarding how Booker may change sentencing practices has been a major discussion among legal scholars.  The wake of Booker/Fanfan may bring decreased uniformity and consistency in sentencing between District Courts, and also increased unwarranted disparity based on the social status characteristics of defendants. This is one of the first empirical studies to examine if and how Booker has changed federal sentencing.

We first review the Booker/Fanfan decision and its importance and aftermath, and then review what is known from previous studies of disparity in federal sentencing pre-Booker/Fanfan.  Using survey data taken from judges, lawyers, and probation officers in federal courts, we examine how practices in courts may have changed post-Booker.  We then examine several of the central questions surrounding whether Booker has increased disparity using USSC data on federal sentencing outcomes from three time periods: prior to the 2003 PROTECT Act, the period governed by the PROTECT Act, and the post-Booker/Fanfan period (2006-2007).  The results from the survey data show that while some sentencing practices have changed slightly, Booker has not dramatically altered them.  And from the USSC data we find that while federal judges in general sentence more leniently post-Booker, extralegal disparity and interdistrict variation in the effects of extralegal factors on sentencing have not increased post-Booker.  Thus, allowing judges greater freedom to exercise discretion does not necessarily result in increased extralegal disparity.

April 29, 2010 in Booker in district courts, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (4) | TrackBack

Intriguing little Ninth Circuit ruling rejecting various challenges to denial of parole

For anyone too quick to assume that defendants always win in the Ninth Circuit with novel constitutional claims, consider checking out today's panel ruling in Moor v. Palmer, No. 07-16045 (9th Cir. Apr. 29, 2010) (available here).  In Moor, a Ninth Circuit panel rejects a variety of intriguing constitutional complaints from a Nevada state prison complaining in a habeas petition about the denial of his parole.  I do not think the ruling breaks any significant new jurisprudential ground, but it does effectively review the array of (often not successful) constitutional claims that can be raised in this setting.

April 29, 2010 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Researchers requesting information on attorney plea and jury selection strategies

I have been contacted by a doctoral student in legal psychology at the John Jay College of Criminal Justice, who has kindly asked for me to post the following formation about research she and a colleague are doing on attorney judgment strategies in plea negotiations and during jury selection:

Plea Bargaining Research Study (prosecutors and defense attorney participants needed): Researchers at the John Jay College of Criminal Justice are conducting a study investigating the factors that influence attorneys' plea bargaining decisions.  The study is conducted online and takes approximately 20 minutes to complete.  Participants will receive $30 for their participation, payable by check or PayPal.  Participants will be asked to assume the role of an attorney in a robbery case.  Participants will receive case information (police reports, witness statements) and will be asked questions about how they would proceed with plea negotiations.  The results of this study will be disseminated in academic journals and in presentations at academic conferences.  We will share the results of the study with participants when it is completed.  If you are interested in participating in the study, please contact Caroline Crocker at psychlaw.research@gmail.com to receive a link to the online study and a personal identification number.  This study is funded by a grant from the National Science Foundation and is supervised by Dr. Steven Penrod.

Jury Selection Decision Making Study (prosecuting attorney participants needed): Researchers at John Jay College of Criminal Justice are conducting an online study on jury selection funded by the National Science Foundation.  The study takes approximately 20 minutes to complete and pays $35.  We are recruiting attorney participants from all over the country.  This study is being supervised by Dr. Margaret Bull Kovera.  Results of this study will be disseminated in peer reviewed psycholegal journals, such as Law and Human Behavior, and results will be published as aggregate data; attorneys' names will never be linked to their data.  Attorneys who participate in the study will be asked to read a short trial summary and a potential juror profile, and then asked to answer some brief questions about the potential juror. Interested attorneys can contact the researcher for this study, Julia Kennard, at juryselection@gmail.com.  We will share the results of the study with participants when the study is completed.

April 29, 2010 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Of interest from The BLT

The Blog of Legal Times has a number of new (and lengthy) posts this week that may be of interest to various sentencing fans for various reasons:

April 29, 2010 in Recommended reading | Permalink | Comments (1) | TrackBack

Any fresh thoughts about President Obama's pending SCOTUS nomination decision?

In addition to being a bit (unjustifiably?) annoyed that it is taking quite some time for President Obama to name a replacement for Justice Stevens, I am annoyed that the same usual suspects keep getting talked up on the usual short lists.  For example, this Newsweek featurehas an array of intriguingly different commentors discussing the same old short list candidates (with the possible exception of Elizabeth Warren, who is championed by Jonathan Alter).  Similarly, SCOTUSblog prognosticator Tom Goldstein had this long post earlierthis week saying all the politics have changed and thus he is now predicting the selection of... Elana Kagan, the same person he predicted would be selected way back in February.

Consequently, looking for some fresh names and fresh thoughts if only for the joy of discussion, I wonder if any readers have come across or come up on their own with any truly original possibilities for the next Justice.

Some related SCOTUS short-list posts (both recent and distant):

April 29, 2010 in Who Sentences | Permalink | Comments (6) | TrackBack

President Obama nominates Judge Patti Saris to take over as Chair of USSC

As detailed in this press release from the White House, yesterday "President Obama nominated Judge Patti B. Saris as Commissioner and Chair of the United States Sentencing Commission and Dabney Langhorne Friedrich as Commissioner on the United States Sentencing Commission."

I had heard rumors that Judge Saris, who has served since 1994 on the District Court for the District of Massachusetts, would be taking over the Chair position from outgoing Chair Judge William Sessions.  And the reappointment of Commissioner Dabney Friedrich, who was first appointed to the USSC by President Bush and was counsel to Senator Orrin Hatch back when he was chair of the Senate Judiciary Committee, is likely part of an overall plan to help ensure that these nominations do not face any confirmation problems.

Because outgoing USSC Chair Sessions is concluding his lengthy tenure on the Commission with a set of proposed guideline amendments that could be extraordinarily consequential, and because DOJ under AG Eric Holder is likely soon to announce its conclusions from its own internal sentencing policy review, Judge Saris is due to take over the USSC at an especially dynamic and important (and challenging) time. I wish her the very best of luck.

April 29, 2010 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (4) | TrackBack

April 28, 2010

Is anyone still preserving Apprendi/Blakely challenges to judge-determined restitution awards?

Thanks to the Supreme Court deciding only civil cases this week, I have finally found time to read the argument transcript from last week's SCOTUS oral argument in Dolan v. US (which is available at this link).  There are lots of interested aspect of the Dolan transcript ranging from frequent discussion of what is a final sentence to the potential impact of the 3553(a)'s requirement that district judges consider the need for restitution. 

But one particular line from the start of one of Justice Scalia's questions to the Government prompts my question in the title of this post.  Specifically, on page 31 of the Dolan transcript, Justice Scalia starts a line of questioning by saying "I think it's bad enough to have the issue of whether this victim suffered $100,000 damages decided by the judge...."  In addition, on pages 51-52 of the Dolan transcript Justice Scalia suggest with another line of questions that he is troubled by the fact that "it's the judge who finds that the victim suffered so much money" and that the judge does not use a beyond a reasonable doubt standard when making this finding.

In other words, it appears that Justice Scalia remains quite concerned that the constitutional requirements imposed on sentencing determinations in Apprendi and Blakely are not being applied with respect to the fact-finding involved in the setting of criminal restitution awards.  Thus, despite the fact that every circuit has rejected arguments to apply Apprendi and Blakely to restitution awards, there is at least one Justice (and perhaps there are more) who might be eager to give some new life to these kinds of claims.

I fear that few defendants even try to preserve Apprendi/Blakelychallenges to judge-determined restitution awards since these claims never got any real traction in lower courts after Blakely.  But the Dolan transcript suggests that perhaps these claims ought still be preserved and pressed all the way up to the Justices.

April 28, 2010 in Blakely Commentary and News, Blakely in the Supreme Court, Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (9) | TrackBack

Ninth Circuit to review en banc whether Washington's disenfranchisement of felons violates the VRA

As detailed in this prior post, back in January a split Ninth Circuit panel in Farrakhan v. Gregoire, No. 06-35669 (9th Cir. Jan. 5, 2010) (available here), ruled that Washington's felon disenfranchisement law violates the federal Voting Rights Act.  At the time of the opinion, I opined that this was "a ruling that surely will not be the last word on the topic," and I felt "confident predicting that this notable and important ruling will be subject to en banc review by the Ninth Circuit and/or to Supreme Court review."  As detailed in this order, today the Ninth Circuit made me a prognostic savant by formally ordering that Farrakhan v. Gregoire be reheard en banc.

April 28, 2010 in Criminal Sentences Alternatives, Who Sentences | Permalink | Comments (2) | TrackBack

Interesting probation condition claim in (novel?) "couple sentencing" rejected by Seventh Circuit

The Seventh Circuit has an interesting sentencing ruling today in US v. Diekemper, No. 09-2081 (7th Cir. Apr. 28, 2010) (available here), which caught my eye particularly because of a novel claim is a (perhaps) novel sentencing deal involving a couple involved in fraud conspiracy . Here is how the Diekemper opinion starts:

Joseph Diekemper pled guilty to conspiracy to commit bankruptcy fraud, conspiracy to commit mail fraud, making false statements for the purpose of influencing the United States Department of Agriculture (“USDA”) Commodity Credit Corporation, and perjury. Diekemper’s wife and co-conspirator, Margaret Diekemper, was sentenced first and received two years’ probation for her involvement in the conspiracy. As a condition of that probation, Mrs. Diekemper was prohibited from all contact with her husband during those two years. Diekemper was sentenced subsequently, and after receiving a four-level enhancement for his leadership role, he received a within-guidelines sentence of 120 months’ imprisonment.

Diekemper appeals his sentence, alleging that (1) his wife’s probation condition violates his fundamental right to a marital relationship; (2) the district court judge’s failure to recuse himself for bias violates Diekemper’s right to due process; (3) the district court’s application of the sentencing enhancement was in error; and (4) the district court’s failure to weigh all of the sentencing factors in 18 U.S.C. § 3553 was in error. We affirm.

April 28, 2010 in Booker in the Circuits, Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (9) | TrackBack

Effective USA Today coverage of President Obama's clemency stinginess

Clemencyx Yesterday's edition of USA Today had a pair of pieces (and this reprinted graphis) discussing federal clemency realities, which effectively stressed the significant fact that President Obama has received a huge number of clemency requests while having granted not a single one during his first 16+ months in the Oval Office.  One piece, which is headlined "Record number seek president's clemency," starts this way:

President Obama has received more petitions for pardons and shorter prison sentences than previous presidents at this point in office, and he hasn't approved a single one. 

Obama has already logged 2,361 clemency petitions, according to the Justice Department.  He also faces a backlog of 2,173 old requests, a legacy of a system that civil rights groups and conservative jurists say has fallen into disuse.

A related piece, which is headlined "Convict petitions Obama to reduce crack penalty," highlights the story of, Kenneth Harvey, just one of thousands of offenders hoping that President Obama will give his pledge of hope and change a little more meaning in this context. Here is a brief segment from that piece:

Harvey's family wants him back home — and they thought when Barack Obama got elected president, they'd have a shot. Now, they're not so sure.

Obama has not approved a single request for a pardon or a shorter prison sentence since he took office, despite having more petitions before him — 2,361 according to the Justice Department — than any previous president at this point in his term.

The White House won't discuss the issue, other than to say Obama has asked Justice to review how it processes petitions and makes recommendations.

As regular readers know, I have been urging President Obama to exercise his clemency power with vigor since literally his very first day in the Oval Office (as evidenced by some of the posts linked below).  Though I remain deeply disappointed at the lack of action by the President in this setting, I am perhaps even more disappointed by the lack of criticism concerning the Obama Administration's failings in this historically significant setting.

Some related posts:

April 28, 2010 in Clemency and Pardons, Criminal justice in the Obama Administration | Permalink | Comments (6) | TrackBack

Federal sentencing hearing starting in high-profile Rubashkin white-collar case

As detailed in this Des Moines Register article, which is headlined "Stage set for arguments over Rubashkin sentence," anyone interested in debates over white-collar sentencing ought to be following events in an Iowa federal district court this week:

A fierce debate over Sholom Rubashkin's prison sentence begins in federal court today with arguments over the former slaughterhouse manager's role in a bank fraud scandal, his past, and a chorus of supporters who say the possible life sentence would be too harsh.

Rubashkin, 50, faces sentencing today for his conviction last year on 86 financial fraud charges. Defense attorneys have asked for a prison term no greater than six years; prosecutors argue that Rubashkin's combined actions merit a life sentence.

Rubashkin's supporters have mounted an aggressive letter-writing and public relations campaign to push for a lighter sentence. Defense lawyers also presented Chief Judge Linda Reade with a letter signed by 24 prominent government officials, including former U.S. Attorneys General Janet Reno, Ramsey Clark and Edwin Meese III.

Prosecutors describe the campaign as an orchestrated effort to distract attention from Rubashkin's crimes. The U.S. attorney's office in Cedar Rapids has received more than 1,300 e-mails from Rubashkin supporters with "consistent threads of misinformation," spokesman Bob Teig said.

Teig, who usually declines to comment about Rubashkin and the Agriprocessors Inc. case, said misconceptions have grown so widespread that prosecutors decided to respond. "The focus has really been skewed, trying to paint the defendant as a victim," Teig said.

Rubashkin's backers have shown continued support for the former executive since his November conviction in Sioux Falls, S.D. Their efforts include a "Justice for Sholom" website, press releases from a New York public relations firm and prayer vigils in major U.S. cities.

In interviews, several Rubashkin supporters insisted that the campaign was a grass-roots effort. Busloads of supporters are expected to arrive in Cedar Rapids today from Chicago, Detroit, Brooklyn, N.Y., and other cities, said Rabbi Pinchos Lipschutz, a Rubashkin family friend from New York.

Related posts on the Rubashkin case:

April 28, 2010 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (11) | TrackBack

"Jailbirds Order Up Hot Wings"

The title of this post is the headline of this fascinating article about a modern new development in the economics of prison food from yesterday's Wall Street Journal.  Here is how the piece starts:

In a bid to raise cash and keep the peace in crowded jails, wardens nationwide are offering inmates the chance to order meatball subs, cheeseburgers, chicken parmesan — even a "Pizza and Wings Party Pack," complete with celery, blue cheese and a Pepsi.

The program goes beyond the old-fashioned prison commissary, with its cup-a-soups and bags of chips, and it can be quite lucrative for corrections departments.  "We have to be creative in tough fiscal times," said Edwin G. Buss, commissioner of Indiana's Department of Correction.

But critics worry the service will trigger jealousies, promote unhealthy diets and coddle prisoners.

The service, launched in 2006 by food-service giant Aramark Corp., took off in the past two years amid the recession. Inmates — or, more often, their relatives — place orders on Aramark's "iCare" Web site. The company tailors its menus to each jail's rules.  Prices generally run $7 to $12 for a hot meal and $20 to $100 for a junk-food box filled with beef jerky, iced cookies, vanilla cappuccino or other goodies not available in the commissary.

The Indiana state prison system is on track to make more than $2 million this year on sales from the service. In San Antonio, Texas, the Bexar County jail, which makes 45 cents on every dollar in sales, projects its revenue could hit $500,000.

Advocates say the deliveries give guards a potent disciplinary tool: Be good or you won't get your jalapeno poppers.

Revenue from the meals has saved prison programs, such as parenting classes, wardens say. And in some institutions, inmates get job-training credit for preparing the hot meals in the jail kitchen and packaging the junk-food boxes.  Plus, said Deputy Chief Debra Jordan, who runs detention programs in Bexar County, given the "very humble" quality of prison food, letting an offender's mom buy him a club sandwich now and then "is an act of kindness."

Critics, however, fear the deliveries will inspire envy, violence and extortion. "It's like with kids — you don't bring cookies to school unless you've got enough for everyone," said Gordon Crews, a criminal-justice professor at Marshall University.

Wardens who have tried the program say that hasn't been a problem.  Many prisons have long let well-behaved inmates order goods such as CD players, sneakers and mini-TVs.  "Jails are always run better when your inmates are happy," said Capt. Richard Fisher, the jail administrator in Rock Island County, Ill.

April 28, 2010 in Prisons and prisoners, Who Sentences | Permalink | Comments (7) | TrackBack

Latest FSR issue, "Booker at Five," now available on-line

I am overdue in reporting that the latest issue of the Federal Sentencing Reporter, which is full of analysis and primary materials assessing federal sentencing law and practice five years after the Booker decision, is available on-line.  This issue bears the simple title "Booker at Five," and an array of professors and practitioners discuss various of current state of the post-Booker sentencing landscape.  The Table of Connects for this latest FSR issue can be accessed at this link, and the full issue and/or a full subscription to the Federal Sentencing Reporter can be ordered on-line here.) 

FSR editor Paul Hofer played a central role in this timely FSR issue; Paul and I co-authored the issue's Editors' Observations, which is available here and is titled "A Look at Booker at Five."  Here is how our introduction gets started:

The old saw “time flies when you’re having fun” does not quite capture the five years since the Supreme Court’s decision in United States v. Booker.  To most observers, at least those outside the Department of Justice and perhaps a few circuit courts, the advisory guideline sentencing system created by the Booker remedial opinion is an improvement over the rigid mandatory guidelines system that the Booker merits opinion declared unconstitutional.  Yet the U.S. Bureau of Prisons still runs the largest prison system in the United States, which is itself the nation with the highest incarceration rate in the world. And even district judges and defense attorneys, who may be the biggest fans of the post-Booker federal sentencing system, would surely agree that many aspects of the current system are far from perfect.

Though not everyone may be having “fun,” there has been no shortage of federal sentencing activity to keep everyone busy thinking about the ruling and its consequences and impact. In this time, more than 350,000 defendants have been sentenced under the effectively advisory guidelines.  The Supreme Court has handed down five additional opinions clarifying implications of the Booker decision (with more in the works), and both district and circuit courts have grappled with issues left unanswered, with varying degrees of success (and expressions of frustration).  Almost as noteworthy is what has not happened. Congress has not picked up the ball hit into its court by the Supreme Court’s Booker remedy, and the U.S. Sentencing Commission has barely acknowledged that the guidelines are advisory in its Guidelines Manual — plus, no major guideline revisions can be attributed to the decision.

In this issue of Federal Sentencing Reporter, we have solicited a range of authors to provide their perspective on what has and has not changed in the federal sentencing system after Booker.  And, in these Editors’ Observations, we seek to spotlight how these perspectives provide a deeper understanding of whether the changes wrought by the Booker decision and its aftermath are the sort that those interested in sentencing justice should believe in.

Other recent FSR issues:

April 28, 2010 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Recommended reading | Permalink | Comments (0) | TrackBack

Federal district judge rejects corporate plea deal

This New York Times story, which is headlined "Judge Rejects Plea Deal on Guidant Heart Device," reports on an interesting development in a notable federal corporate prosecution. Here are the basics:

A federal judge in Minnesota on Tuesday rejected a plea agreement between the federal government and the Guidant Corporation, saying that the deal did not hold the company sufficiently accountable for an episode in which it sold potentially flawed heart defibrillators.

The ruling was a setback for the Justice Department, which had characterized the agreement as a demonstration of its get-tough approach to corporate crime. The deal called on Guidant to plead guilty to two misdemeanors and pay a $296 million fine, described as the largest by a medical device company.

But in his opinion, the judge, Donovan W. Frank of United States District Court said the provisions of the agreement were “not in the best interest of justice and do not serve the public’s interest because they do not adequately address Guidant’s history and the criminal conduct at issue.”

The case results from disclosures in 2005 that Guidant did not alert doctors and patients that some of its defibrillators had a defect that might cause them to fail when needed to interrupt an erratic and possibly fatal heart rhythm. At least six patients who got the devices died.

Judge Frank said that prosecutors should have sought probation for Guidant and its parent, Boston Scientific. Probation would have required the companies to take certain steps, like helping to rebuild public confidence in the safety of heart devices, in addition to paying a fine.

The judge also outlined other provisions that might be suitable in a new plea deal, including charitable activities by Guidant to improve heart device safety and improve medical care among minority patients.

After a hearing this month, several doctors and patients wrote to Judge Frank urging him to reject the deal and arguing that former Guidant executives should be criminally charged in the case. But Judge Frank noted in his ruling that it was up to prosecutors, not a court, to decide who should be prosecuted....

At the hearing this month before Judge Frank, both government prosecutors and a Guidant lawyer testified that the deal was fair. Also, under questioning by Judge Frank, prosecutors defended their decision not to seek probation, saying it was not necessary because, among other things, the company created to enter Guidant’s plea, Guidant LLC, existed only on paper.

In his ruling, Judge Frank took direct aim at that argument, suggesting it contradicted the Justice Department’s own public statements about the case. He noted that a department news release said Guidant’s plea deal was “about accountability.” Judge Frank wrote, “The interests of justice are not served by allowing a company to avoid probation simply by changing their corporate form.”

The judge also noted complaints by others, including Dr. Hauser and Dr. Maron, that Guidant had violated the law in the past without much consequence and that Boston Scientific, while not responsible for Guidant’s behavior, could still be held accountable. “The court believes that a period of probation would likely benefit, rather than harm, Guidant and Boston Scientific’s public image,” he wrote.

April 28, 2010 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4) | TrackBack

April 27, 2010

"FAMM Condemns Mandatory Life Sentence for NV Woman"

The title of this post is the heading of this new press release from the folks at Families Against Mandatory Minimums in response the the remarkable Nevada sentencing story discussed in this prior post.  Here is an excerpt from the press release:

According to published news reports, a jury convicted Ms. Taylor, 34, of lewdness with a minor under 14 for forcing a 13-year-old boy to touch her breast through her clothing and soliciting him for sex.  Conviction for lewdness with a minor under 14 carries a mandatory life sentence in Nevada with parole eligibility after 10 years.

"Based on what we've learned so far, we believe the life sentence handed to Ms. Taylor is a total travesty of justice," said Julie Stewart, FAMM founder and president.  "FAMM does not condone criminal behavior, especially where a minor is the victim, but no reasonable person can believe that the punishment fits the crime in this case.  Life sentences are usually reserved for murderers and repeat violent offenders."

"FAMM opposes mandatory minimum sentencing laws that carry disproportionate one-size-fits-all sentences and enormously expensive penalties.  Keeping Ms. Taylor in jail for the rest of her life could cost Nevada taxpayers well over $1 million.  This seems like a terrible waste of a life, and limited taxpayer resources," concluded Stewart.

April 27, 2010 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

"Fixing the Prison Health Care System Through Changes in Punishment"

The title of this post is the title of this new piece on SSRN that might be of special interest to policy-makers and prison officials in California who are trying to get out from under various court-ordered requirements to improve prison health care conditions.  Here is the abstract:

Something must be done to improve access to health care in America’s prisons.  A prison sentence today imposes an illegitimate burden of poor quality medical care on prisoners. The prison system neither treats inmate fairly nor effectively, and exacerbates and spreads disease. Existing pathways to reform have failed.  Legislative fixes have been mired in losing political battles.  Efforts at litigating for change have been derailed by hostility both from the judiciary and legislatures.  Finally, common-sense prison based remedies have been stymied by extraordinarily rare application.  The best hope for improving conditions comes through a radical expansion of sentencing and early-release initiatives.  These proposals limit the sentences of sick inmates at the outset, and provide for early release of sick inmates who are already incarcerated.  These measures serve as a safety-valve for the overburdened prison health-care system, while avoiding the problems of other measures.

April 27, 2010 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Interesting Padilla echo in Second Circuit ruling

The Second Circuit has an interesting ruling today in US v. Cerna, No. 09-1170 (2d Cir. Apr. 27, 2010) (available here), which seems to reflect the echoes of the Supreme Court's important recent ruling in Padilla concerning effective assistance to noncitizen defendants. Here is how the Cerna opinion begins:

This case gives us occasion once again to take note of the exceptionally poor quality of representation often provided by attorneys retained by aliens as they attempt to negotiate the complexities of our immigration law. See Aris v. Mukasey, 517 F.3d 595, 596 (2d Cir. 2008).  Here, despite the fact that the immigration judge (“IJ”) specifically found that the defendant was eligible for relief from deportation in the form of a waiver of inadmissibility under former § 212(c) of the Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1182(c) (repealed 1996), and despite the fact that the defendant’s counsel indicated that he would file an application for such relief, no application was ever filed.   We hold today that the district court committed clear error when it found that the defendant knowingly and intelligently waived his right to contest the deportation order that was subsequently issued. Because the district court’s determinations that the defendant did not meet the requirements of § 1326(d)(2) and (3) either were predicated on this erroneous factual conclusion or were legally erroneous, its decision cannot stand on these additional findings.  We further hold that ineffective assistance of counsel may be grounds to excuse the requirement of 8 U.S.C. § 1326(d)(1) that a defendant charged with illegal reentry who brings a collateral challenge to the prior deportation order must have exhausted administrative remedies in the immigration proceeding.

For non-citizens at risk of deportation the consequences of inadequate counsel can be devastating. Because such incompetence undermines the fair and effective administration of justice, courts must be ever vigilant.  We cannot countenance the circumstance in which the failure of counsel to meet the most basic professional standards denies the alien a meaningful opportunity for judicial review. Cf. Padilla v. Kentucky, No. 08-651, 559 U.S. ___, slip op. at 6 (2010) (“The importance of accurate legal advice for noncitizens accused of crimes has never been more important.”).  Accordingly, we vacate the judgment of the district court and remand for further proceedings consistent with this opinion.

April 27, 2010 in Collateral consequences, Sentences Reconsidered, Who Sentences | Permalink | Comments (2) | TrackBack

Eleventh Circuit rejects various constitutional challenges to federal child porn convictions

The Eleventh Circuit has a notable ruling today in US v. Paige, No. 09-13067 (11th Cir. Apr. 27, 2010) (available here), which rejects various constitutional challenges to various federal child porn convictions. Here is how the opinion begins:

Robert D. Paige appeals his convictions for permitting his minor child to engage in sexually explicit conduct for the purpose of producing child pornography, in violation of 18 U.S.C. § 2251(b); and possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). He also appeals his 180- month total sentence.  Paige argues that § 2251(b) is facially unconstitutional, because Congress exceeded its Commerce Clause authority in enacting the statute.  He also argues that both §§ 2251(b) and 2252A are unconstitutional as applied in his case, because of an insufficient nexus between his conduct and interstate commerce.  Finally, Paige argues that applying 18 U.S.C. § 2251(e)’s 15-year statutory minimum sentence violated the separation of powers doctrine. For the reasons set forth below, we affirm.

April 27, 2010 in Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

With more SCOTUS opinions coming this week, will April include a sentencing blockbuster?

The Supreme Court has announced that it will be handing down new opinions this morning (and tomorrow morning), which means we could be getting one or more decisions in some of the big criminal cases still pending.  Because I will be on a plane and thus off-line most of this morning, Murphy's Law suggests that the Justices will issue blockbuster sentencing opinions this morning in Graham and Sullivan, the two big juve LWOP Eighth Amendment cases from Florida.

When I get back on-line this afternoon, I will be quick to report on any notable SCOTUS action.  In the meantime, all criminal justice fans can and should head over to SCOTUSblog and How Appealing for all the Supreme Court news as it breaks.

UPDATE:  The Justices kept it "civil" with their rulings today, so it appears that last chance for an April criminal justice blockbuster is Wednesday.

April 27, 2010 in Who Sentences | Permalink | Comments (1) | TrackBack

Triple-digit sentence for child molester

In case anyone was concerned that only white-collar offenders received triple-digit sentences, this local story about a state sentencing of a child molester should provide a useful reality check.  Here are excerpts of note from the story:

Receiving what could be one of the longest non-homicide sentencings in Bedford County history, Greg Allen Gibbs Sr., 32, was sentenced Monday to 120 to 240 years in prison for committing sexual offenses against children.

Bedford County District Attorney William Higgins said he was "very happy" with Monday's sentencing. "This is a chance where the judge took advantage of an opportunity to take a child sex offender off the streets," Higgins said.

Gibbs, formerly of Mercer, was found guilty of 29 charges in December after a two-day trial and two hours of deliberation. According to testimony from Gibbs' wife, Tammy, she and her husband demonstrated sexual acts to three children, all younger than 10, and instructed the minors in how to perform explicit sexual acts with each other.

Bedford County President Judge Daniel Howsare also found Gibbs to be a sexually violent predator under Pennsylvania's Megan's Law. Howsare made the ruling upon the recommendation of Herbert Hays, a member of the Pennsylvania Sexual Offenders Assessment Board....

Tammy Gibbs pled guilty in 2008 to three counts of endangering the welfare of children and served time in the Bedford County Prison from August 2007, when the pair was arrested, to February 2009. She aided in her husband's prosecution.

Higgins argued against concurrent sentences, saying Gibbs should be punished for each of the 29 separate and distinct criminal offenses. "The defendant should not be afforded a bulk discount for the multitude of depraved acts," Higgins said.

The maximum sentence recommended by the prosecution was 482 years.  Higgins was pleased nonetheless.  "The bottom line is that this sexually violent predator, Greg Gibbs, will never have access to children again, and absent a medical miracle, he will die behind bars," he said.

Though the crimes involved here are horrible, I cannot help but be a bit amused by the reporting of this sentencing.  That the sentence of 120 to 240 years in prison was less than half of what the prosecution requested is remarkable, as is the prosecutor's off-handed suggestion that the defendant here might outlive his triple-digit prison sentence with the help of a medical miracle.

April 27, 2010 in Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

April 26, 2010

"More Former AGs Question Sentence Sought in Bank Fraud Case"

The title of this post is the headline of this new item over at The Blog of Legal Times, which is reporting on some of the latest news involving a high-profile upcoming sentencing. Here are some of the details:

More former Department of Justice officials are voicing concern over the potential life sentence facing Sholom Rubashkin, the kosher slaughterhouse manager in Iowa whose sentencing on federal bank fraud and money laundering charges is set for this week.

On April 21, former attorneys general Nicholas Katzenbach and Edwin Meese III submitted a letter to Chief Judge Linda Reade of the U.S. District Court for the Northern District of Iowa that expressed concern about the guideline sentence proposed in the Rubashkin case. Former Deputy Attorney General Larry Thompson, who is now general counsel at PepsiCo Inc., and eight former U.S. attorneys also signed the letter. Click here for a copy.

Nathan Lewin, a lawyer for Rubashkin, said today that several more former DOJ officials —including former attorneys general William Barr, Janet Reno and Richard Thornburgh — have signed the letter submitted to Reade.  Former Deputy Attorney General Jamie Gorelick and former Solicitor General Seth Waxman are also signatories, said Lewin of Washington's Lewin & Lewin.  Gorelick and Waxman are partners in the Washington office of Wilmer Cutler Pickering Hale and Dorr. Thornburgh is of counsel in the Washington office of K&L Gates, and Barr serves on the Time Warner board of directors.

Rubashkin was convicted in November on 86 financial crime and related counts for his role in a scheme to defraud a bank that provided a $35 million line of credit to the Rubashkin family-owned Agriprocessors Inc., a kosher slaughterhouse in Postville, Iowa.  At trial, Rubashkin, 51, admitted making mistakes regarding the loan; he denied any criminal wrongdoing. He has been jailed pending sentencing.

The lead prosecutor, Assistant U.S. Attorney Peter Deegan Jr., who called Rubashkin's fraud "extraordinary," noted in the government’s sentencing memo that Rubashkin faces a potential life sentence. Rubashkin’s lawyers argue that the guideline should not be followed. The attorneys say a six-year prison term, at most, is just punishment. A two-day sentencing hearing is set to begin April 28 in Reade’s courtroom.

The court has received more than a thousand letters and e-mails that support leniency for Rubashkin.

I have not recently blogged about the sentencing debate swirling around Sholom Rubashkin, in part because I was asked earlier this month to play a small role in aid to Mr. Rubashkin's defense team.  Specifically, and in the interest in full disclosure, I had a hand in helping to draft the above-referenced letter to Chief Judge Linda Reade that has now been signed by many former US Attorneys General and former senior Justice Department official.  The full letter with the names of the signors can be downloaded here: Download Former AGs letter about Rubashkin sentencing 

As evidenced by the post at The BLT and by this new ABC News story, it seems that this letter is further raising the profile of a sentencing that is already getting plenty of attention from lots of different folks.

April 26, 2010 in Federal Sentencing Guidelines, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (16) | TrackBack

House bill to create "National Criminal Justice Commission" to be rolled out tomorrow

This new press release from the office of Representative Bill Delahunt (D-MA) reports on a notable legislative development to be formally annouced at a press conference tomorrow. Here are the details:

U.S. Reps Bill Delahunt (D-MA), Darrell Issa (R-CA), Marcia Fudge (D-OH), and Tom Rooney (R-FL) will hold a press conference on Tuesday April 27, 2010 at 11:30AM in Room 2255 of the Rayburn House Office Building to announce the introduction of the National Criminal Justice Commission Act of 2010.

The National Criminal Justice Commission Act of 2010, was introduced in the Senate as S. 714 by Senators Jim Webb. The bill has received widespread bipartisan support and has 37 cosponsors in the Senate, including Chairman of the Senate Judiciary Committee Senator Patrick Leahy (D-VT), Chairman of the Subcommittee on Crime and Drugs Senator Arlen Specter (D-PA) and Ranking Member Senator Lindsey Graham (R-SC), and Judiciary Committee member Senator Orrin G Hatch (R-U).

It will create a blue-ribbon bipartisan commission charged with undertaking an 18-month comprehensive review of the Nation’s criminal justice system.  The Commission will study all areas of the criminal justice system, including federal, state, local and tribal governments’ criminal justice costs, practices, and policies.  After conducting the review, the Commission will make recommendations for changes in, or continuation of oversight, policies, practices, and laws designed to prevent, deter, and reduce crime and violence, improve cost-effectiveness, and ensure the interests of justice.  The bill has been endorsed by approximately 100 organizations.

A copy of the bill will be available at the press conference.

I think much good could come from having a new "blue-ribbon bipartisan commission charged with undertaking an 18-month comprehensive review of the Nation’s criminal justice system," especially if this National Criminal Justice Commission is effectively staffed and funded.  But I am fearful that the creation of a new study commission, who won't issue recommendations until probably 2012 or beyond, could become a distraction from the critical important federal criminal justice reform work that could and should be getting done right now.

Indeed, this very press release has me wondering (again!) about the status of crack/powder sentencing reform in the House.  It has now been more six weeks since the full US Senate unanimously approved legislation to reduce (but not eliminate) the notorious 100:1 ratio in the amount of powder cocaine versus crack cocaine that trigger statutory mandatory minimum sentences.  I had heard rumors that similar compromise legislation might get through the House in April, but these rumors now seem unlikely to become a reality. 

In light of this background, I am not especially excited by House members getting all excited about the introduction of the National Criminal Justice Commission Act of 2010.  I do not think this development is itself a reason for criticism, but it does remind me of how important it is for those interested in serious criminal justice reform to keep their eyes on the prize.

Some related recent and older posts:

April 26, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (6) | TrackBack

"California Case Spotlights Dysfunctional Death Penalty"

The title of this post is the headline of this new ABC News piece providing a follow-up to the plea bargained resolution of the high-profile Chelsea King prosecution.  Here is how the piece starts:

Chelsea King's parents reluctantly agreed to a sentence of life in prison for their daughter's rapist and killer, calling the death penalty in California "an empty promise."

The Kings join a growing list of victims' families, law enforcement officials and other capital punishment proponents who have grown disillusioned with California's death penalty. The decision to forego capital punishment for registered sex offender John Gardner, who this month admitted killing Chelsea King and another teen girl, has once again thrust the gridlocked system into the spotlight.

Five more inmates joined California's death row this year, pushing the population past a record 700 inmates, by far the nation's largest. Florida is second with 394 inmates on death row, and Texas is third with 333, but both of those states regularly carry out executions.

Legal challenges over how lethal injections are administered to condemned prisoners in California have halted executions in the state since Clarence Ray Allen was put to death Jan. 17, 2006. The lawsuits are far from being resolved, and most observers believe it could be years before another execution takes place at San Quentin Prison.

Even before the suspension, only 13 condemned inmates have been executed from the time capital punishment resumed in the state in 1977 until February 2006, when U.S. District Court Jeremy Fogel halted executions until prison officials revamped their lethal injection process....

California Chief Justice Ron George told the California Commission on the Fair Administration of Justice that the state's capital punishment system is "dysfunctional." Death penalty appeals account for 25 percent of the high court's workload, he has said.

If the only goal and value of having the death penalty on the books is to have lots of murderers executed, then it is fair to call California's capital punishment system is "dysfunctional."  But, if the total number of executed persons is the critical metric here, then nearly every state's capital punishment system except Texas and Oklahoma and Virginia (and Ohio lately) should be deemed "dysfunctional."  Also, the federal death penalty would also be very dysfunctional if judged merely by an execution metric.

In contrast, if one useful goal and value of having the death penalty on the books is to have lots of murderers sentenced to death, then California's capital punishment system is significantly more functional that those of lots of other states.  Indeed, as this recent story out of California highlights, there may be many cases in which a prosecutor and the victim's family care more about getting a death sentence imposed than about having an execution take place.

Further, as I explained in this post, the California's capital punishment system may have been the key (functional) factor that helped bring the Chelsea King murder case to a relatively satisfying conclusion in relatively short order.  As I have stressed recently in this post, a critical function of a capital punishment system is to help process via pleas some really awful murder cases.  It seems that this function is still working in California.

I raise all these points largely because I suspect that relatively few Americans would take pride in a capital punishment system that regularly resulted in lots of murderers executed.  Just to catch up with the current death row "backlog," there would need to be ten executions each and every week until 2016.  I suspect that such a strong and steady pace of US executions, especially if the firing squad becomes fashionable, would not be welcomed even by most person who support the death penalty (though maybe I underestimate the affinity for executions among ardent supporters of capital punishment).

Some related posts:

April 26, 2010 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (7) | TrackBack

New litigation laboratory for criminal justice federalism with Arizona immigration law

The big news lately in the debate over immigration from from Arizona thanks to its recent passage of a controversial immigration-enforcement bill.  Based on what I have seen and read, the new law almost reads like a law professor's exam question, and this Arizona Republic article ably reviews some of the major legal issues that are sure to be hotly litigated in the weeks and months ahead.  The article is headlined "Court fight looms on new immigration law; Legislation vulnerable to challenge, says expert; supporters argue it's legally sound," and this particular passage caught my attention:

Kris Kobach, a law professor at the University of Missouri-Kansas City School of Law who counseled [Arizona State Senator Russell] Pearce when he was writing Senate Bill 1070, said Arizona simply is taking action on what Congress already has deemed illegal, so the state is not infringing on federal authority or running afoul of the supremacy clause.

"The bill basically makes it a penalty under state law to do what is already a crime under federal law," he said.  "If the state is concurrently prohibiting the same behavior that the federal government is, then the state is not preempted and is acting consistently with Congress' objectives."

Because I am not an expert on either immigration law or federalism jurisprudence, I cannot readily assess whether Professor Kobach's argument here is compelling.  But I can readily assert that the litigation which will unfold in Arizona over this new state criminal law is must-watch-closely material for everyone interested in modern criminal justice debates. 

In various traditional criminal justice settings  e.g., in the always on-going fight against illegal gun, drug and sex trafficking  "cooperative federalism" is often praised and championed as the best way for different sets of police and prosecutors to take on challenging crime problems.  Professor Kobach's claim here is essentially that Arizona is merely trying to be a cooperative criminal justice partner with the feds in enforcing illegal immigration laws.  But, as all the media buzz highlights, lots of different folks seem deeply concerned with Arizona's chosen approach to "cooperative federalism" in this context.

April 26, 2010 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2) | TrackBack

SCOTUS to examine California law banning sale of violent video game to minors

As detailed in this new SCOTUSblog post, the Supreme Court this morning announced that it will review the constitutionality of another law that seek to prohibit access to certain forms of violent "speech."  Here are the details thanks to Lyle Denniston's reporting:

The Supreme Court agreed Monday to rule on the constitutionality of a state law banning the sale or rental of violent video games to minors.  The Court accepted for review an appeal by the state of California, urging the Court to adopt a new constitutional standard that would enable states to ban such games for those under age 18. The case is Schwarzenegger v. Video Software Dealers Association (08-1448).

The Court apparently had been holding the case until it decided another First Amendment case involving violence — U.S. v. Stevens (08-769). In that ruling, the Court struck down a federal law that banned the depiction of animal cruelty in videotapes.  In that ruling, the Justices refused to create a new exception to the First Amendment free speech right.  The Court could have opted to send the California case back to the Ninth Circuit Court to weigh the impact of the Stevens decision.  Instead, it simply granted review; the case will be heard and decided in the Court’s next Term, starting Oct. 4.

As with the Stevens case, this new case does not have SCOTUS directly examining sentencing-related issues.  But, as with the Stevens case, there are an array of potential criminal justice implications that could result from the Court's ultimate resolution of this new case.

UPDATE:  I just learned from this new AP article, which is headlined "Court to hear appeal in guard's sexual assault," that the Justices' cert grant in Ortiz v. Jordan (09-737),  a case focused on civil appellate procedure, has an especially notable criminal justice backstory:

The Supreme Court has agreed to consider reinstating a $625,000 judgment against Ohio prison officials who did nothing to prevent a guard's sexual assault of an inmate and then punished the victim.

The justices said Monday they will review a federal appeals court that threw out the award to Michelle Ortiz. The lower court had said the prison officials did not violate her constitutional rights. Another federal judge called the appellate decision a "legal travesty."

Ortiz was serving 12 months at the Ohio Reformatory for Women in November 2002 when she reported that a male guard fondled her breasts and warned, "I'll get you tomorrow, watch." He did, returning when Ortiz was asleep to molest her again. When Ortiz discussed the attacks with other inmates, she was shackled and sent to solitary confinement.

She filed a federal civil rights lawsuit against the officials and won a jury verdict. But the appeals court in Cincinnati found by a 2-1 vote that one official, Paula Jordan, could not be held liable even though she did not take immediate action when Ortiz reported the first incident. The court said the other official, Rebecca Bright, did not violate Ortiz's rights by sending her to solitary confinement.

Bright and Jordan tried to get the case against them dismissed before the trial. A judge refused to do so and they did not appeal then. The legal issue in the case is whether they could wait until after the trial to appeal the judge's ruling.

April 26, 2010 in Who Sentences | Permalink | Comments (0) | TrackBack

"Trial Penalties in Federal Sentencing: Extra-Guidelines Factors and District Variation"

The title of this post is the title of this new must-read empirical work available via SSRN and in print in Justice Quarterly. Here is the abstract:

The guarantee of the right to a jury trial lies at the heart of the principles that underlie the American criminal justice system’s commitment to due process of law. We investigate the differential sentencing of those who plead guilty and those convicted by trial in U.S. District Courts.  We first investigate how much of any federal plea/trial sentencing differences are accounted for by substantial assistance to law enforcement, acceptance of responsibility, obstruction of justice, and other Guideline departures.  Second, we investigate how such differences vary according to offense and defendant characteristics, as well as court caseloads and trial rates. We use federal sentencing data for fiscal years 2000-2002, along with aggregate data on federal district court caseload features.

We find that meaningful trial penalties exist after accounting for Guidelines-based rationales for differentially sentencing those convicted by guilty plea versus trial.  Higher district court caseload pressure is associated with greater trial penalties, while higher district trial rates are associated with lesser trial penalties.  In addition, trial penalties are lower for those with more substantial criminal histories, and black men.  Trial penalties proportionately increase, however, as Guideline minimum sentencing recommendations increase. We also supplement our analysis with interview and survey data from federal district court participants, which provide insights into the plea reward/trial penalty process, and also suggest important dimensions of federal court trial penalties that we cannot measure.

April 26, 2010 in Detailed sentencing data, Procedure and Proof at Sentencing | Permalink | Comments (17) | TrackBack

Should sentencing fans be rooting for a non-judge replacement for Justice Stevens?

The question in the title of this post is prompted by this effective new piece in The National Law Journalby Tony Mauro, which is headlined "Pressure Grows to Pick a Nonjudge for the High Court: All nine justices on the current U.S. Supreme Court hail from the federal appellate bench."  Here is how the piece starts:

So where, exactly, is the "judicial monastery" that Washington keeps talking about these days? And why do so many people want President Barack Obama to steer clear of it when picking a replacement for U.S. Supreme Court Justice John Paul Stevens?

More than any other time in recent memory, the drumbeat of politicians and pundits alike against naming another federal appeals court judge to the Supreme Court is running high.

With nine former federal appellate judges on the current Court, some are saying: Enough already. Even if Obama ultimately puts a federal judge on the Court — as all his predecessors have done since Ronald Reagan named state judge and former legislator Sandra Day O'Connor in 1981 — the push for more background diversity on the Supreme Court is likely to intensify in advance of the next vacancy.

Invoking the likes of O'Connor, Earl Warren and William Rehnquist — all noted justices who joined the Court with no federal judicial experience — politicians, academics and others say the current Court needs to be leavened with justices who bring different experiences to the bench.

Because I am a fan of all flavors of background diversity, I think I am rooting for President Obama to appoint a non-judge to replace Justice Stevens. But I think it is reasonable to worry that a non-judge (especially one without any prior criminal justice experience) might not be able to effectively engage with other Justices on important sentencing issues.

April 26, 2010 in Who Sentences | Permalink | Comments (9) | TrackBack

April 25, 2010

Tough in juves, but very soft on repeat drunk drivers in Florida

If one only follows the docket of the Supreme Court, where the Justices are now considering the constitutionality of two Florida life without parole sentences for teenagers who did not kill, one might think that Florida is the toughest sentencing state in the nation.  But as documented by this local article, which is headlined Lee "County drunken drivers get plenty of shots: Repeat offenders are undeterred," even recidivist drunk drivers get mere slaps on the wrist in Florida.  Here are some of the details:

The penalties for being convicted of driving under the influence has not stopped almost 10,000 Lee County motorists from committing the crime twice or more. Some were so undeterred, they drove drunk again the same year they were convicted of an earlier DUI charge.

In 2009, 24 drunken or high drivers were convicted, then arrested for another DUI — some within a week of each other. Two others picked up their 10th DUI charge last year.

The number of repeat drunken drivers worries local judges and prosecutors, but sentences focus on rehabilitation and prevention instead of lengthy jail time. That likely won’t change soon. Any proposal that would send more people to jail or prison would probably be rejected in the Legislature because of budgetary concerns, one state senator said.

“Any bill that has a fiscal impact — more prison beds — is dead on arrival,” said Sen. Dave Aronberg, D-Greenacres. “If you tighten the penalties, it won’t go through.”...

Some believe rehabilitation and treatment are key to addressing substance abuse. Incarceration is guaranteed to keep drunken drivers off the streets and the Lee County Jail offers substance abuse programs, but being locked up may not address inmates’ alcohol dependency.

A study of 353 DUI court defendants by The Century Council, a nonprofit anti-drunken driving organization, revealed 80 percent said they believe more severe sanctions for their first drunken-driving conviction would have prevented subsequent arrests and convictions.

Lee County judges John Duryea Jr. and James Adams said they recognize letting off a defendant with a light sentence could lead to them being back on the road, possibly endangering others.

In Lee County last year, alcohol was involved in 611 crashes and 21 traffic fatalities, according to preliminary statistics from the Florida Highway Patrol. From 2004 to 2008, an average of more than 22,000 alcohol-related crashes were reported statewide, while about 1,100 people die in alcohol-related accidents each year in Florida.

Florida legislators have changed the law year after year, Duryea said, by doubling and tripling fines, making probation mandatory and lowering the requirement of the ignition interlock device — a device that requires a sober person to blow in order to start a vehicle — from a blood-alcohol level of .20 to .15 on first offense.  The device is required for those convicted of two or more DUIs.

“They’ve probably significantly changed that statute every year since I’ve been a judge,” Duryea said. “I think the trend is to get harder penalties, absolutely.”

Of the 24 convictions of three-time offenders in 2009, 19 were charged with felonies. Eighteen of the 24 were convicted as charged, instead of a lesser charge, and the average stay behind bars was a little more than four months. Two who were charged with misdemeanors weren’t sentenced to any incarceration.

I am pleased to learn that Florida is getting tougher on drunk drivers and that ignition interlock devices are to be used more.  But the contrast here to Florida's tough treatment of juvenile offenders still sticks in my mind.  I am certain that teenagers do not kill 1,100 people each year in Florida, and I would bet they do not even kill more than 100 people each year.  And yet Florida is eager to defend its authority to lock up certain kids and throw away the key at the same time that they keep giving the keys back to drunk drivers who pose a much larger threat to innocent life.

April 25, 2010 in Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (12) | TrackBack