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May 8, 2010

Notable (and justified?) attack by old Maryland governor on current governor concerning death penalty

I found very interesting this new piece discussing Maryland death penalty issues in today's Washington Post.  The piece is headlined "Ehrlich takes issue with O'Malley's delays on death penalty," and here are excerpts:

Maryland Gov. Martin O'Malley (D) has repeatedly fallen short in his attempts to persuade lawmakers to abolish capital punishment. But as he nears the end of his term, O'Malley is close to achieving through delay and inertia what he could not change in the law.

Three-and-a-half years after the state's highest court halted use of the death penalty on a technicality, O'Malley has yet to implement regulations required for executions to resume. Although O'Malley says his administration is working diligently in that direction, advocates on both sides of the issue say they strongly doubt that any of Maryland's five condemned prisoners will be put to death before the governor stands for reelection this fall.

With jobs and the economy dominating the political debate, there is little evidence that O'Malley's posture on the death penalty has hurt him politically to this point. But his leading opponent, former governor Robert L. Ehrlich Jr. (R), said that he plans to make it an issue, accusing O'Malley and other death penalty opponents of "shenanigans" to avoid carrying out the law.

"This is the kind of thing that makes people cynical about the criminal justice system," said Ehrlich, who presided over the state's last execution, in 2005. "Governor O'Malley took an oath to uphold the law. He's certainly violating the spirit of it."...

O'Malley bristled at Ehrlich's characterization, attributing part of the delay to a legislative review committee that six months ago raised numerous questions about regulations drafted by the administration, including its choice of a three-drug cocktail for lethal injections. Administration officials said a formal response was mailed to the committee Friday morning. "We are following the process for putting the new regulations in place," O'Malley said. "Everything about the death penalty is cumbersome and can be slow."

Ehrlich's emphasis could help shore up support among conservative Democrats, a key constituency that he courted far more successfully in his 2002 victory than his 2006 defeat. Although O'Malley's stance puts him at odds with many of those voters, his advisers say that some will appreciate the governor's conviction on the issue, even if they disagree with him.

O'Malley, who rose to political prominence as a tough-on-crime mayor of Baltimore, said he has a strong record on public safety as governor, including a sharp decrease in violent crime statewide. On Tuesday, he signed bills toughening restrictions on sex offenders and giving law enforcement new tools to monitor gangs. "He may define public safety success by how many people are executed," O'Malley said of Ehrlich. "I define it by how many lives we save."

In December 2006, during Ehrlich's last full month in office, Maryland's highest court ruled that the state's death penalty procedures had not been properly adopted, halting executions until new regulations were issued by the administration.

O'Malley focused instead on lobbying the legislature to repeal the death penalty. In high-profile testimony shortly after he took office in 2007, the governor, a Catholic, argued that capital punishment is "inherently unjust," does not serve as a deterrent to murder and consumes resources that could be better used preventing crime. It was not until July of last year, after the legislature balked at repealing the death penalty for the third year in a row, that O'Malley's administration proposed regulations that would allow executions to resume.

In September, the co-chairmen of the legislative review committee, both of whom oppose capital punishment, asked that the regulations be put on hold to allow more study. O'Malley's administration agreed. In October, the committee submitted a four-page letter, asking detailed questions about aspects of the proposal.

Sen. Paul G. Pinsky (D-Prince George's), a co-chairman of the legislative panel, said that neither he nor his co-chairman is trying to speed up the process and that he would not mind waiting to act until after the elections.  "On a visceral level, we haven't heard much out there," Pinsky said. "People aren't saying, 'You've got to get on this.' ... If it takes another six months, so be it.  I'm not in a hurry to allow the needle to be inserted."

I find it sad, but not very surprising, how often commitments to responsible good government will take a back-seat to strong personal (and political?) feelings in the arena of the death penalty.   Though perhaps Maryland law ensures that "[e]verything about the death penalty is cumbersome and can be slow," Ohio was able to create and deploy an improved lethal injection protocol in less than three months.  That Maryland has taken more than three years to move forward on this front certainly leads me to be cynical about certain government officials putting a commitment to responsible governing behind other interests in this setting.

May 8, 2010 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (15) | TrackBack

The latest legal plot twists in the Polanski prosecution

This New York Times piece, which is headlined "Polanski Transcript Plea Opposed by Prosecutors" provides the latest update on the real-life legal drama that Roman Polanski is helping to create through his various efforts to undermine his prosecution three decades ago.  Here are the details:

The legal battle over Roman Polanski’s possible sentencing in the United States on a 33-year-old sex charge continues, as prosecutors on Thursday registered opposition to Mr. Polanski’s request that recent secret testimony in the case be unsealed.  Mr. Polanski, who fled the United States before sentencing in 1978, and his lawyers have asked the Los Angeles County Superior Court to provide them with transcripts of testimony by Roger Gunson, the original prosecutor in the case.

 In court filings, Mr. Polanski’s lawyers have said Mr. Gunson described a plan under which Judge Laurence J. Rittenband intended to use Mr. Polanski’s time in prison for psychiatric evaluation as his punishment in the case. In their brief on Thursday, District Attorney Steve Cooley of Los Angeles County and his deputy David Walgren asserted that the testimony should remain sealed and noted that the authorities in Switzerland, where Mr. Polanski is being held pending possible extradition, had not requested transcripts of the sealed testimony.  A hearing on the request is set for Monday.

May 8, 2010 in Celebrity sentencings, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

May 7, 2010

"Elena Kagan Will Be Obama's Supreme Court Pick: Mike Allen"

The title of this post is the headline of this new Huffington Post piece, which reports on an insider account that indicates that this news will be "officially" leaked on Sunday in anticipation of a Monday formal announcement.  Solicitor General Kagan has been the "leader in the clubhouse" since Justice Stevens announced his retirement, so this pick would not be at all surprising.  It still would be historic, as it would mean (assuming confirmation) that the US Supreme Court will have three female Justices for the first time in its history.

For criminal justice fans, the prospect of a Justice Kagan is especially interesting because she has, to my knowledge, no tangible record whatsoever on any of the criminal justice issues that regularly come to the Supreme Court (and fills up much of the cert pool).  Especially given that the last two new Justices were both former prosecutors, it will be especially interesting to what now adding a criminal justice "novice" to the Court could mean for its jurisprudence.

May 7, 2010 in Who Sentences | Permalink | Comments (24) | TrackBack

Have the new (proposed) amended federal guidelines had any ripple effect yet?

During the terrific sentencing panel yesterday at the Sixth Circuit judicial conference festivities (basics here), I suggested that the new federal guideline amendments released last Friday by the US Sentencing Commission (basics here) could be like a pebble in a pond with important and highly consequential ripple effects on federal sentencing law and policy.  I stressed my view that the size and significance of this ripple effect would depend greatly on just how practitioners and district judges interpret and give effect to the changes (and especially the vague and open-ended language in changes to the offender circumstances policy statements).

Of course, as discussed in this prior post, Formally, the proposed amended guidelines do not become legally effective until November 1, 2010, and thus I probably should not be looking for any big ripples from the new guidelines until this fall.  But, as explained before, because  the Commission has now formally and functionally indicated its view the provisions of 3553(a) are better served by sentencing in accord with its amended guidelines, a district court could right now probably feel free, and maybe even should feel an obligation, to sentence in accord with this new proposed guidelines ASAP.  Thus, I am using this post to ask for early reports from those in the field about whether any practitioners and/or district judges are seeing or feeling the new (proposed) amended federal guidelines having any ripple effect yet

May 7, 2010 in Federal Sentencing Guidelines, Offender Characteristics, Who Sentences | Permalink | Comments (3) | TrackBack

"Men’s Central Jail is a modern-day medieval dungeon"

LA jail The title of this post is part of the quote that accompanies this picture from the Los Angeles County jail depicted here and in a series of photos available here from the ACLU of Southern California.  Here is the full quote/caption:

“Men’s Central Jail is a modern-day medieval dungeon, a dank, windowless place where prisoners live in fear of retaliation and abuse apparently goes unchecked. The jail is not an appropriate facility for housing prisoners with mental illness, many of whom do not receive proper treatment for their mental illness,” said Peter Eliasberg, ACLU/SC managing attorney. “At the root of the many problems plaguing this toxic facility is overcrowding and the only solutions are to either reduce the jail population dramatically or close it.”

The photo-spread accompanies a new report released by the ACLU of California concerning the jail conditions.  This press release, which is headlined "Overcrowded Men’s Central Jail Plagued by Violence and Hazardous Living Conditions, New ACLU Report Finds," provides this overview of the report:

A report released today by the American Civil Liberties Union shows that overcrowding and unsanitary conditions that have plagued the jail for more than 30 years still persist, along with an apparent culture of violence and fear, including prisoner-on-prisoner assaults and the use of excessive force by deputies. The picture of the jail that emerges in stark and disturbing detail in the report suggests that mentally disabled prisoners suffer some of the worst treatment, and that retaliation and a lack of transparency in conducting investigations into prisoner complaints make it difficult to assess the true extent of violence that occurs there....

With approximately 20,000 detainees, the Los Angeles County jail system is the largest and most expensive in the nation, costing nearly $1 billion a year to operate. Men’s Central Jail is nearly 50 years old and currently houses an average of 5,000 detainees. More than half are simply awaiting trial – in other words, they are presumed innocent and have yet to get their day in court.

The ACLU/SC and the ACLU National Prison Project are the court-appointed monitors of conditions within the jail.

The new report, based on the observations of ACLU jail monitors, numerous interviews with prisoners, and thousands of prisoner complaints gathered between 2008 and 2009, focuses on conditions inside Men’s Central Jail, the largest jail in the county’s system.

The full ACLU/SC report can be found at this link.

May 7, 2010 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Notable variations in state approaches to juve sex offenders

This new AP story, which is headlined "States vary on dealing with youth sex offenders," provides an effective review of the diversity in how different states deal with juvenile sex offenders. Here are excerpts:

When Ricky Blackman was 16, he pleaded guilty to having sex with a 13-year-old girl, and an Iowa judge ordered him to register as a sex offender. But if Blackman had lived in at least a half-dozen other states, his name would never have appeared on a registry because states are deeply divided on how to deal with the nation's youngest sex offenders.

Juvenile justice advocates want rehabilitation instead of registration, yet public safety experts argue children must be protected from predators, even if they are minors. The confusing array of rules for juvenile sex offenders persists despite a vast overhaul that was adopted four years ago to bring clarity and consistency to the nation's sex offender registration laws.

"It's a real bind for the states," said Michele Deitch, an attorney who teaches criminal justice policy at the University of Texas. "Do you want to comply with what could be poor public policy or risk not complying with the federal law? And there's no easy answer."

Twenty-one states currently require juveniles convicted of a serious sex crime to register with law enforcement, according to an Associated Press review of state laws and interviews with state officials.

In 19 other states, only juveniles convicted as adults or who move from a state that requires registration are required to provide their information to authorities. In the remaining states, the laws vary. In Nevada, for instance, a juvenile sex offender can petition a judge to set aside registration requirements.

In 2006, President George W. Bush signed a law requiring states to adopt a series of sex offender measures, including the registration of all juveniles who commit serious sex crimes such as abuse or rape. The law was designed to create a national sex offender registry and toughen penalties for those who fail to register.

Ohio is so far the only state to meet the new federal standards, but states have until July to comply so they can build up their online registries and ensure the information can be incorporated into the national database.

Of the 21 states that require juvenile sex offenders to register, at least four states do not publish all of their details online, such as photographs and home addresses.

Critics said young offenders will be more likely to reoffend because of the humiliation of being labeled a sex offender. "These kids can get better and here you are punishing them for life without offering any treatment. That to me is unethical," said Dr. Valerie Arnold, the interim chief of child and adolescent psychiatry at the University of Tennessee. "Even convicted murderers aren't put on a list like this."

It's unclear how many of the nation's estimated 686,000 sex offenders are juveniles. But a recent study by the University of New Hampshire Crimes against Children Research Center that found more than a third of those who sexually abuse children are juveniles. "It's a difficult balance," said Ernie Allen of the National Center for Missing and Exploited Children. "We're in favor of the rehabilitative ideal and targeting treatment for the youngest offenders, but many of America's offenders are kids — and they are committing very serious sex offenses."...

Those who want juvenile sex offenders on registries acknowledge the requirements are not ideal, but they say the benefits to public safety far outweigh the impact on a juvenile sex offender's psyche.

Supporters often refer to the case of Amie Zyla, who was sexually assaulted when she was 8 years old in Wisconsin by a 14-year-old family friend. She became a leading advocate of juvenile registration requirements when her perpetrator was sentenced to 25 years in prison after pleading guilty to later fondling two teen boys. "The simple truth is that juvenile sex offenders turn into adult predators," she said at a 2005 Congressional hearing. "Kids all over the country need the same kind of protection as in Wisconsin."

Yet there is a wide disparity in how states treat juvenile offenders. In Texas, where judges decide whether to put juveniles on the registry, lawmakers led a push several years ago to make it automatic. But the measure's sponsor, Texas state Rep. Jim McReynolds, said he abandoned the effort after concluding the new requirements would be too costly and may end up harming the juvenile offenders. "The more I began to look at it, the more I saw it was pretty doggone tough on juveniles," said McReynolds, who chairs the House Corrections Committee. He now favors more treatment.

In Maryland, powerful lawmakers are aiming to require those 14 and older who commit rape and other serious sex crimes to register. "Juveniles are treated as adults in other areas of the law," said Delegate Bill Frank of Baltimore County, one of the measure's sponsors. "And if a juvenile commits a first-degree rape, that juvenile should be required to register as a sexual offender."

The challenging question upon reflection is whether we ought to regard the state-by-state differences here as a healthy form of "laboratory of the states" federalism or instead as an unjust form of national sentencing disparity.  Any thoughts dear readers on whether we should be pleased or troubled by the state diversity found regarding juve sex offender law and policy?

May 7, 2010 in Offender Characteristics, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (8) | TrackBack

May 6, 2010

NFL Hall of Famer Lawrence Taylor charged with rape of teenager in New York

This new AP story, which is headlined "Ex-NFL star Lawrence Taylor charged with NY rape," provides the latest sad and disturbing story at the intersection of sports stars and crime.  Here are the basics:

Pro Football Hall of Famer Lawrence Taylor was charged Thursday with raping a 16-year-old runaway in an encounter that police said was arranged by a man who beat her up before driving her to Taylor's suburban hotel room while she texted her uncle for help.

Taylor, the 51-year-old former New York Giant who has faced drug and tax evasion charges in the past, paid the girl $300 for sex in a Holiday Inn, where he was arrested early Thursday, said Christopher St. Lawrence, supervisor of the town of Ramapo.

Ramapo Chief of Police Peter Brower said Taylor was cooperative when police woke him up around 4 a.m. Taylor was arraigned Thursday on charges of third-degree rape and patronizing a prostitute. "I'm not that important," Taylor told a scrum of media after being released on $75,000 bail.

His attorney, Arthur Aidala, said Taylor is a "loving family man" who did not have sex with the teenager. "My client did not have sex with anybody," Aidala said. "Lawrence Taylor did not rape anybody."

Brower would not comment on whether Taylor knew the girl's age; third-degree rape is a charge levied when the victim is under the age of consent, which is 17 in New York. "Ignorance is not an excuse to an individual's age," Brower said....

Police said the girl was reported missing by her family in March and had been staying with a 36-year-old parolee, Rasheed Davis, in the Bronx. The two met a few weeks ago at a Bronx bus stop, NYPD spokesman Paul Browne said. "He chats her up. She explains she doesn't have a place to stay. He provides one," Browne said.

Davis, who was arrested on charges of unlawful imprisonment, assault and endangering the welfare of a child, then forced her to perform sexual favors for others, authorities said.

Early Thursday morning, Davis punched and kicked her, drove her to the hotel against her will and told her she had to have sex with Taylor, police said.  When she refused, Davis handed her over to Taylor, who sexually assaulted her, they said.  Taylor paid her $300, which she gave to Davis, police said.

On the way to Suffern, the girl sent text messages to her uncle spelling out what was happening, Browne said. The uncle then went to the NYPD, he said.

I find almost as disturbing as the facts of this case the New York state sentencing realities apparently surrounding the charges that LT is facing.  According to this New York Times article, for "the prostitution charge, a misdemeanor, he faces a year maximum in jail. The maximum sentence for third-degree rape, a felony, is four years."  

In other words, LT appears to be facing a maximum state sentence of no more than 5 years for raping a teenage prostitute.  (Meanwhile, under current federal sentencing statutes, a loner who simply downloaded via computer some images of this sex offense would be facing a mandatory minimum sentence of no less than 5 years simply for receiving these images.)  Perhaps there can and will be more charges forthcoming as the investigation unfolds.  But I find troublesome the notion that the allegations of rape here, if proven true, do not allow for a more significant sentence.

May 6, 2010 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (25) | TrackBack

"People who commit crimes do so because of disorderly souls"

The title of this post is one line from this lengthy commentary by Eric Simpson, an associate editor of In Communion: The Journal of the Orthodox Peace Fellowship, that appears at The Huffington Post.  The piece's is titled "I Changed My Mind on the Death Penalty," and the author explains why, when he became an "Orthodox Christian, [his] views began to change rather swiftly over a period of years [as he] began to meditate on the meaning of divine Love, ... [and] as a response to [his] understanding of who God is, what Christ accomplished, and what the Traditions of the Church teach." Here is how the piece concludes:

It may seem radical to say, therefore, that the murderer is to be pitied rather than hated because he has made his soul a hellish place, whether it is felt by him on an immediate level or not.  The cocksure smirks of the denizens of hell would be plastered across the psychopath's face whether we put him to death or not.  It is a demonic sign, and where there are demons -- even if the demons are merely psychological afflictions -- there is torment. I see criminal smirks and empty bravado, even totally lack of affectation or regret, as signs of torment, and they do not bother me.  For me to react in a similar fashion -- with violence and hatred -- by putting him to death does nothing more than carry me closer to his level of hell, whether it is sanctioned by the state or not.  It does not satisfy my own sense of grief and loss.

Where the murderer lacks decency and compassion, we should show him what true decency and compassion is, otherwise we become just like him.  Where the murderer has no value for life, responsible state policy should rather affirm life, rather than confirm the murderer's impulse to end it. Otherwise, we are doing nothing more than making a mockery of the principle of justice as exemplified by Christ himself.

In addition to making for an interesting read, this piece reinforces my own sense that many persons' with strong perspectives on the death penalty often have their views grounded in faith rather than in reason or science.

Some older posts on religion and the death penalty:

May 6, 2010 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Religion | Permalink | Comments (11) | TrackBack

Fascinating political corruption federal sentencing to follow in New York

I will be again off-line most of today with Sixth Circuit judicial conference festivities (basics here), but when I get back on-line I will be eager to report on what happens today in a high-profile political corruption sentencing scheduled for today in New York.  This New York Times piece, which is headlined "Day of Sentencing Looms for Former New York Senate Leader," provides the background:

On Thursday, five months after his conviction on federal corruption charges, Mr. Bruno, 81, who as a former Senate majority leader was once one of the most powerful officials in Albany, will learn his sentence.

His lawyers, citing his years of public service, his good standing in the community and his age, have requested that he be fined but not imprisoned. Prosecutors, arguing that Mr. Bruno exploited his power to enrich himself and abused the public trust, have asked that he be imprisoned for more than eight years.

As the day of his sentencing arrives, Mr. Bruno, who was a generous benefactor to his upstate New York district, has come to terms with his fate, according to those who have spoken with him. “He’s philosophical,” said Stephen R. Coffey, an Albany lawyer who helped raise money for Mr. Bruno’s legal defense fund. “He accepts the fact that he may go to prison.”...

He holds out hope, they say, that the United States Supreme Court, which is reviewing three cases challenging the federal statute under which he was convicted, for depriving constituents of “honest services” by concealing conflicts of interest, will find that it is not valid. “He’s extremely hopeful — no one’s ever confident — about what the Supreme Court will do,” said Mr. Coffey....

Mr. Bruno, who was a Republican senator for 30 years, including 14 as the majority leader, remains revered by many. Letters urging leniency keep arriving at Judge Gary L. Sharpe’s chambers from friends, relatives and former colleagues....

Ultimately, Judge Sharpe has wide discretion in choosing Mr. Bruno’s sentence. Should Mr. Bruno be sent to prison, he would be one of the oldest inmates in the federal system. Out of a total population of 210,159, only 47 are Mr. Bruno’s age or older. Where he would serve a sentence would depend on complex screening conducted by the federal Bureau of Prisons, though authorities generally try to house inmates within 500 miles of their homes.

UPDATE:  According to this AP report, "Joseph Bruno, once one of the most powerful political figures in New York, was sentenced Thursday to two years in prison on two federal fraud counts."

May 6, 2010 in Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (1) | TrackBack

Notable new report complaining about the erosion of criminal intent in federal law

Withoutintentcover As detailed in this NACDL press release, yesterday the Heritage Foundation and NACDL released a big report and recommendations on Capitol Hill concerning federal criminal law. Here are the basics:

In a joint press conference this morning on Capitol Hill commemorating Law Day 2010, Rep. Bobby Scott (D-VA) and Rep. Louie Gohmert (R-TX), the Chairman and Ranking Member of the House Crime Subcommittee, respectively, sponsored the release of the groundbreaking, non-partisan report prepared by the National Association of Criminal Defense Lawyers and the Heritage Foundation, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law. In addition, NACDL Executive Director Norman Reimer and Former Attorney General Edwin Meese also spoke.

In recent decades, Congress has enacted scores of fundamentally flawed criminal statutes that lack adequate criminal intent protection for innocent actors. NACDL and Heritage undertook an unprecedented study of the federal legislative process which yielded this report. Among its findings, the study determined that during the 109th Congress, of the 446 non-violent, non-drug-related criminal offenses proposed, 57 percent lacked an adequate guilty-mind requirement. The report also reveals that 23 of those inadequately protective offenses were even enacted into law.

The full "Without Intent" report can be accessed at this link, and a helpful one-page fact sheet is available here. In addition, the reports four-page executive summary is availble at this link.

In addition to urging all federal criminal practitioners to read this new report, I hope that all criminal law professors will have this report in mind as they prepare to teach basic criminal law to new law students this coming Fall.  I have long lamented that traditional criminal law instruction still puts extraordinary emphasis on mens rea concepts even though modern criminal law often fails to give much attention to these matters.  Though mens rea will always be a fundamental aspect of criminal law theory, this report reinforces my concern that we disserve law students if and when we give them the impression that mens rea is the most fundamental aspect of actual modern criminal law practice.

May 6, 2010 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (9) | TrackBack

May 5, 2010

Second Circuit finds procedural problems with re-sentencing after 15-year delay

They say bad facts make bad law, but today's ruling from the Second Circuit in US v. Hernandez, No. (2d Cir. May 5, 2010) (available here), strikes me as an example of ugly facts resulting in a very sound sentencing ruling. Here is how the panel opinion starts in Hernandez:

Defendant-appellant Hector Hernandez appeals from a judgment entered in the United States District Court for the Eastern District of New York (Platt, J.) in 2009, which re-mposed a 405-month sentence of incarceration after remand from this Court back in 1993. The record indicates that the district court evidently started with an assumption -- invalid after so long an interval--that the baseline for the re-sentencing was the sentence imposed in 1991, and thereby failed to properly consider the factors set out in 18 U.S.C. § 3553(a) -- particularly Hernandez’s submission of evidence of rehabilitation--at the time of re-sentencing. Accordingly, we vacate and remand for re-sentencing before a different district court judge.

May 5, 2010 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (8) | TrackBack

Fourth Circuit uses Booker to support rejection of effort to extend Shepard

The Fourth Circuit has an interesting discussion of Booker and its progeny today in US v. Dean, No. 08-4439 (4th Cir. May 5, 2010) (available here), in the course of rejecting a defendant's complaint about judicial fact-finding in the course of applying a career offender enhancement.  Here is how the opinion begins:

Antonio Bernard Dean challenges the imposition of a "career offender" sentence enhancement under the U.S. Sentencing Guidelines following his conviction on a drug possession charge. Dean was eligible for that enhancement only if the two predicate offenses upon which it was based were "separated by an intervening arrest."  See U.S. Sentencing Guidelines Manual § 4A1.2(a)(2) (2007). Dean argues that in determining that an intervening arrest had occurred, the district court erred by relying on materials prohibited by the Supreme Court’s decision in Shepard v. United States, 544 U.S. 13 (2005).

In United States v. Booker, 543 U.S. 220 (2005), and its progeny, the Supreme Court intended two things.  First, it sought to eliminate conflict between the Sixth Amendment jury trial right and the Sentencing Guidelines scheme, a task it accomplished by rendering the once-mandatory Guidelines advisory.  Second, it endeavored to accord a greater, though not a complete, measure of latitude to district courts at sentencing, both in their ability to find facts and to determine the most appropriate sentence.  Dean’s contention runs afoul of both these principles and would require us to backtrack significantly on the teachings of Booker and its progeny.

May 5, 2010 in Almendarez-Torres and the prior conviction exception, Booker in the Circuits, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Sixth Circuit Judicial Conference keeping me mostly off-line...

but giving me the chance to listen in a big ballroom to a star-studded line-up that includes Justice Stevens, AG Holder, SG Kagan, former SG Clement, and frequent SCOTUS litigators Dean Erwin Chemerinsky and Professor Jeff Fisher.

Paul Clement's early comments focused on Justice Scalia as an important swing vote in many criminal cases. He also astutely suggested that Prez Obama was not likely applying an Apprendi or Crawford litmus test when considering potential replacements for Justice Stevens.

UPDATE:  Here is some media coverage of today's Sixth Circuit Conference activities:

May 5, 2010 in Who Sentences | Permalink | Comments (8) | TrackBack

May 4, 2010

Norway's new prison sound far more pleasant than punishing

As detailed in this new Time magazine piece, which is headlined "Norway Builds the World's Most Humane Prison," the folks in the Land of the Midnight Sun have a different vision of incarceration than do folks in the Land of the Free.  Here are the details:

Ten years and 1.5 billion Norwegian kroner ($252 million) in the making, Halden is spread over 75 acres (30 hectares) of gently sloping forest in southeastern Norway.  The facility boasts amenities like a sound studio, jogging trails and a freestanding two-bedroom house where inmates can host their families during overnight visits.  Unlike many American prisons, the air isn't tinged with the smell of sweat and urine. Instead, the scent of orange sorbet emanates from the "kitchen laboratory" where inmates take cooking courses.  "In the Norwegian prison system, there's a focus on human rights and respect," says Are Hoidal, the prison's governor. "We don't see any of this as unusual."

Halden, Norway's second largest prison, with a capacity of 252 inmates, opened on April 8.  It embodies the guiding principles of the country's penal system: that repressive prisons do not work and that treating prisoners humanely boosts their chances of reintegrating into society. "When they arrive, many of them are in bad shape," Hoidal says, noting that Halden houses drug dealers, murderers and rapists, among others.  "We want to build them up, give them confidence through education and work and have them leave as better people."  

Countries track recidivism rates differently, but even an imperfect comparison suggests the Norwegian model works. Within two years of their release, 20% of Norway's prisoners end up back in jail. In the U.K. and the U.S., the figure hovers between 50% and 60%. Of course, a low level of criminality gives Norway a massive advantage.  Its prison roll lists a mere 3,300, or 69 per 100,000 people, compared with 2.3 million in the U.S., or 753 per 100,000 — the highest rate in the world.

Design plays a key role in Halden's rehabilitation efforts.  "The most important thing is that the prison looks as much like the outside world as possible," says Hans Henrik Hoilund, one of the prison's architects.  To avoid an institutional feel, exteriors are not concrete but made of bricks, galvanized steel and larch; the buildings seem to have grown organically from the woodlands. And while there is one obvious symbol of incarceration — a 20-ft. (6 m) concrete security wall along the prison's perimeter — trees obscure it, and its top has been rounded off, Hoilund says, "so it isn't too hostile."

The cells rival well-appointed college dorm rooms, with their flat-screen TVs and minifridges. Designers chose long vertical windows for the rooms because they let in more sunlight.  There are no bars.  Every 10 to 12 cells share a living room and kitchen.  With their stainless-steel countertops, wraparound sofas and birch-colored coffee tables, they resemble Ikea showrooms.

Halden's greatest asset, though, may be the strong relationship between staff and inmates. Prison guards don't carry guns — that creates unnecessary intimidation and social distance — and they routinely eat meals and play sports with the inmates.  "Many of the prisoners come from bad homes, so we wanted to create a sense of family," says architect Per Hojgaard Nielsen.  Half the guards are women — Hoidal believes this decreases aggression — and prisoners receive questionnaires asking how their experience in prison can be improved.

There's plenty of enthusiasm for transforming lives.  "None of us were forced to work here.  We chose to," says Charlott-Renee Sandvik Clasen, a music teacher in the prison and a member of Halden's security-guard chorus.  "Our goal is to give all the prisoners — we call them our pupils — a meaningful life inside these walls."  It's warmth like that, not the expensive television sets, that will likely have the most lasting impact.

May 4, 2010 in Prisons and prisoners, Sentencing around the world | Permalink | Comments (17) | TrackBack

Former Qwest CEO Nacchio, in court to waive right to be in court, says street folks better than suite folks

As detailed in this prior post, former Qwest CEO Joe Nacchio was ordered last month to appear in federal court in order to be able to effectively waive his right to appear in federal court for his resentencing.  This new AP article provides an interesting report on today's waiver hearing, as detailed in these excerpts:

A federal judge on Tuesday agreed to let imprisoned former Qwest CEO Joe Nacchio waive his right to attend his re-sentencing hearings in June, but not before Nacchio said he has met better people in prison than some of the people he once worked with.

Nacchio, sporting a shaved head, goatee, glasses and a khaki-colored prison jumpsuit, was transferred from a federal prison camp in Minersville, Pa., for the hearing in Denver.  He and his attorney had insisted in court documents that Nacchio wanted to skip the hearings June 22-24, when U.S. District Judge Marcia Krieger will recalculate his sentence of six years in prison, plus $71 million in fines and forfeitures, for insider trading.  An appeals court ruled the sentence was too harsh.

However, Krieger wanted to see Nacchio in person to make sure his decision was informed and voluntary.  Nacchio, who has spent a year in prison, told Krieger he wanted to stay closer to his family rather than be transferred to Denver for the hearings, a trip that can take several weeks as an inmate.  He said he spent more than a week in solitary confinement during his transfer for the hearing Tuesday, unable to speak with his lawyer or wife....

He said he serves as the Roman Catholic eucharistic minister to fellow inmates and said there aren't Sunday services when he isn't there. "Everybody I've ever met in prison finds it a difficult situation, so the state has accomplished what it set out to do," Nacchio said....

Nacchio said it is important for him and his fellow inmates to support each other and that being in prison offers many opportunities to sit alone and think. "I've met plenty of good people in prison," Nacchio said, adding he'd met better people in prison than some of the people he's worked with. "But that's subjective," he said....

Krieger didn't comment on Nacchio's reasons for skipping the June hearings but found him competent to waive his right to attend. Nacchio was handcuffed before being escorted out of the courtroom.

May 4, 2010 in Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (2) | TrackBack

The criminal complaint in USA v. Faisal Shahzad...

can be accessed at this link.  Obviously, this case is not yet at the sentencing stage, but the complaint reveals that Shahzad is already admitting his involvement in various criminal activities.  Thus, it seems that the guilt of this defendant is not much at issue and this particular case is already functionally and perhaps soon will be formally all about sentencing.

I wonder whether Shahzad knows enough and can say enough to earn a substantial assistance 5K letter.  I wonder if the politics surrounding this high-profile case would even permit federal prosecutors to provide such a letter even if they felt it was earned.

May 4, 2010 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (18) | TrackBack

Lengthy split Seventh Circuit panel ruling on ACCA and juve predicates

A split Seventh Circuit panel has an interesting (and quite lengthy) discussion of proper application of the Armed Career Criminal Act and of use of juvenile prior to trigger ACCA's increased sentenced.  The majority opinion in Welch v. US, No. 08-3108 (7th Cir. May 4, 2010) (available here), gets started this way:

In 2005, Devin Welch pleaded guilty to unlawful possession of a firearm by a felon. He then brought a motion under 28 U.S.C. § 2255 to vacate his sentence. The district court denied the § 2255 motion in pertinent part. We granted a certificate of appealability to address two of Mr. Welch’s contentions. First, he submits that his prior conviction for the Illinois crime of aggravated fleeing or attempting to elude a police officer cannot qualify as a “violent felony” within the meaning of the Armed Career Criminal Act (“ACCA”).  Second, he submits that his prior juvenile adjudication cannot be used to enhance his sentence beyond the statutory maximum because it was not obtained by a jury trial. For the reasons set forth in this opinion, we affirm the judgment of the district court.

A forceful dissent authored by Judge Posner assails the majority's conclusions on both grounds, and it includes an especially interesting discussion of Apprendi prior conviction issues.  Here is how that discussion concludes:

Of particular relevance to Apprendi, the literature finds that judges are more likely to convict in juvenile cases than juries are.  They are exposed to inadmissible evidence; they hear the same stories from defendants over and over again, leading them to treat defendants’ testimony with skepticism; they become chummy with the police and apply a lower standard of scrutiny to the testimony of officers whom they have come to trust; and they make their decisions alone rather than as a group and so their decisions lack the benefits of group deliberation.  It would be hasty to conclude that juvenile court judges are more prone to convict the innocent than juries are.  But if it is true that juvenile defendants fare worse before judges than they would before juries — if there is reason to think that trial by jury would alter the outcomes in a nontrivial proportion of juvenile cases — one cannot fob off the Apprendi argument with the observation that a jury makes no difference.

Only the Supreme Court can decide authoritatively what its decisions mean.  But the government’s inability to give a reasoned basis for that position is telling, and the better view, I believe, is that a juvenile court “conviction” is not usable for enhancing a federal sentence.

May 4, 2010 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News | Permalink | Comments (1) | TrackBack

"Senators Ask, Should Financial Fraud Mean More Prison Time?"

The title of this post is the headline from this new report at The BLT on a Senate hearing that took place today.  Here are the basics:

Amid the flurry of securities-fraud investigations, a Senate Judiciary subcommittee today is considering whether the laws governing conduct on Wall Street need an overhaul.  The subcommittee on crime and drugs, chaired by Sen. Arlen Specter (D-Pa.), is hearing testimony from academics, advocates, and at least one voice from Big Law.  One major point of dispute: a proposed requirement for some financial-services employees to meet a fiduciary duty to their customers, or else face criminal charges and potential prison time.

“I have long believed that it is insufficient to have fines for fraud,” Specter said in an opening statement, adding that fines from the Securities and Exchange Commission are “calculated as part of doing business.”  The Justice Department has brought criminal fraud charges stemming from the financial crisis, but one of its biggest cases, against two former Bear Stearns hedge-fund managers, ended in acquittal in November.

Among those testifying at the hearing is Andrew Weissmann, former director of the Justice Department’s Enron Task Force.  Now the co-chair of the white-collar defense practice at Jenner & Block, he said a new criminal statute relating to fiduciary duty would raise questions of fairness and proper notice to those who might be covered.  “Would every breach of a duty of care now become a crime?” Weissmann asked this morning.

As detailed in on this Senate webpage, the official title of this hearing was "Wall Street Fraud and Fiduciary Duties: Can Jail Time Serve as an Adequate Deterrent for Willful Violations?”  On that page one can find the written testimony from the various witnesses, including this testimony from Assistant Attorney General Lanny Breuer which discusses federal white-collar sentencing at some length.

This hearing, and especially the idea of making financial-services employees subject to criminal sanctions for breach of a fiduciary duty, is especially notable given the real possibility that the Supreme Court may soon strike down the statute making "honest-services fraud" a federal crime.  I suspect Senator Specter may be calling more hearing this summer on these topics if (when?) the Justices knock out part of that federal criminal law in the Black and Weyhrauch and Skilling cases.

May 4, 2010 in Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (3) | TrackBack

"State Court Standards of Review for the Right to Keep and Bear Arms"

The title of this post is the title of this lengthy (and newly revised) piecefrom David Kopel and Clayton Cramer available via SSRN. Here is the abstract:

Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues.  Although some people have claimed that state courts always use a highly deferential version of "reasonableness," this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means.  Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms).

Even when formally applying "reasonableness," many courts have used reasonableness as a serious, non-deferential standard of review. District of Columbia v. Heller teaches that supine standards of review, such as deferring to the mere invocation of "police power," are inappropriate in Second Amendment interpretation.  This article surveys important state cases from the Early Republic to the present, and explains how they may be applied to the Second Amendment.

As regular readers know from a variety of prior posts, I think a lot of tough federal sentencing laws for felon-in-possession crimes might be subject to successful constitutional attack if (and when?) lower courts get serious about applying a rigorous standard of review in Second Amendment cases.

A few related Second Amendment posts:

May 4, 2010 in Second Amendment issues | Permalink | Comments (1) | TrackBack

Illinois on the verge of banning all sex offenders from all public parks

This local story from Illinois, which is headlined "Sex offender public park ban bill goes to governor," reports on the latest state restriction on sex offenders in the works. Here are the basics:

Passed by state lawmakers, legislation that would ban convicted sex offenders from stepping foot in any public Illinois parks now awaits Gov. Pat Quinn's signature.  The legislation, sponsored by State Sen. Kirk Dillard, R-Hinsdale, prevents all sexual predators and child sex offenders from being in or loitering within 500 feet of a public park.

Illinois currently prohibits sex offenders from being in or loitering within 500 feet of public recreational areas when children are present.  The new legislation would keep make it a crime to be near or enter a park at any time.

"Sexual offenders don't need to be hanging around public parks where there are lots of kids and lots of people walking or running alone," Dillard said recently in a press release. "Unfortunately, we've seen some terrible tragedies in public parks.  We need to keep these individuals out of areas where there is often limited oversight by law enforcement officers, as well as surroundings that offer seclusion."...

If signed by the governor, the new law would make the violation a Class A misdemeanor and boost any subsequent violation to a Class 4 felony.

May 4, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack

May 3, 2010

California legislator urging state to adopt one-drug execution protocol being used by Ohio

I was intrigued and pleased to see this news item in the Stockton Record from California, which is headlined "Lawmaker pushes for state to adopt execution method." Here are the basic detail:

A Southern California lawmaker is pushing California to follow Ohio's lead and adopt a single-drug method for carrying out executions.

Sen. Tom Harman, a Huntington Beach Republican, said Friday that lengthy delays to the execution of Stockton's Michael Angelo Morales prompted him to sponsor the bill. Harman is running for California attorney general. "This is one of the ways we could speed this up and let justice be done," he said. "Let's just get on with it."...

Harman said Ohio has adopted the single-drug method - relying solely on a lethal dose of the anesthetic sodium thiopental. Ohio has executed five men with the approach adopted in November. Washington adopted a similar method in March, but has yet to use it. Harman said he believes California will follow suit. In April, his bill passed the Senate Public Safety Committee, a sign that it will continue to gain support and become law, he said.

The single-drug approach is common sense, he said. "This sounds simple. It sounds easy," he said. "That's why we're pushing this one."

Harman is bound to confront opposition in a hotly debated fight over California's use of capital punishment.

Natasha Minsker, ACLU of Northern California's Death Penalty Policy program director, said no amount of changes will fix California's troubled capital punishment system. For starters, it costs the state a lot of money that could be better spent solving crimes. "Those kinds of problems can only be fixed by replacing the death penalty system with permanent imprisonment," she said. "We're investing in things that don't work."

Particularly because opponents of the three-drug lethal injection method have long promoted a one-drug protocol as more humane, I was pleased when Ohio adopted the one-drug execution method late last year.  And Ohio has now completed five executions with no apparent difficulties using this better execution protocol.  In light of thse developments, I have been a bit surprised and quite disappointed that few other states have made a serious effort to adopt a one-drug lethal injection protocol.  Thus, in the absence of any new claims that the three-drug approach is preferable to a one-drug execution protocol, it is good to see at least some folks in California talking about following Ohio's lead here.

Some related posts:

May 3, 2010 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (2) | TrackBack

NY Gov Paterson creates special pardon panel for legal immigrants

Some helpful readers alerted me to this fascinating news out of New York's Governor's Office, as here reported by the New York Times:

In a major rebuke of federal immigration policy, Gov. David A. Paterson announced on Monday that he would create a special pardon panel to review cases involving legal immigrants who are at risk of deportation for minor or old convictions.

Mr. Paterson’s move will give many immigrants facing deportation renewed hope and places the governor into the middle of the country’s immigration debate.

The announcement comes as the federal government has taken an increasingly hard line in its interpretation of existing immigration law, leaving a growing number of legal immigrants who have criminal records facing deportation.

“Some of our immigration laws, particularly with respect to deportation, are embarrassingly and wrongly inflexible,” Mr. Paterson said in a speech on Monday at an annual gathering of the state’s top judges. “In New York we believe in renewal,” he added. “In New York we believe in rehabilitation.”

State officials say they believe thousands of legal immigrants could fall into the category of cases that they are interested in reviewing.  A new five-member panel made up of existing state employees, called the Special Immigration Board of Pardons, will review the cases.

Now, only a handful of such cases are pending before the Paterson administration, but they anticipate that the creation of the panel will prompt an influx of hundreds of new petitions for pardons.

This official press release from the Governor, which is titled "Governor Paterson Creates Panel to Review Cases of Legal Immigrants Facing Deportation," provides more information about this new pardon development.  Here is a snippet from the press release:

Due to retroactive changes in federal immigration laws in the mid-1990s, there may be thousands of individuals in New York State who entered the United States legally but are now facing deportation for crimes that did not, at the time of conviction, carry the consequence of deportation. In other cases, individuals may have been unaware of the immigration consequences of guilty pleas or convictions for certain crimes.  These individuals may have had convictions many years ago, and federal immigration authorities are seeking to deport them years later when, for instance, they apply for citizenship or to renew their permanent resident status.

In many of these cases, the individual's efforts towards rehabilitation, their years of living in the community without any contact with law enforcement, and the positive contributions they have made to society are not factored into whether the individual will be deported.  In addition, they may be deported to a country they left as a child, where they have no relatives and may not speak the language, and their deportation may tear them away from their United States citizen children or spouse.  As demonstrated by several recent examples, such deportation can cause a significant injustice in particular cases, which can only be remedied by the Governor's exercise of a pardon.

May 3, 2010 in Clemency and Pardons, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (8) | TrackBack

Intriguing Ninth Circuit ruling on post-mortem restitution obligations

The Ninth Circuit handed down an intriguing opinion today in US v. Rich, No. 08-30153 (9th Cir. May 3, 2010) (available here), concerning an order of restitution after a Ponzi scheme conviction.  Here is how the panel opinion describes its inquiry:

We consider whether the estate of a criminal defendant who dies pending appeal of his fraud conviction must continue to pay restitution to victims.

And here is the heart of the basic answer that the panel provides:

There is no doubt that “death pending appeal of a criminal conviction abates not only the appeal but all proceedings in the prosecution from its inception.”  United States v. Oberlin, 718 F.2d 894, 895 (9th Cir. 1983) (citing Durham v. United States, 401 U.S. 481 (1971) (per curiam)). This principle, called the rule of abatement ab initio, prevents, among other things, recovery against the estate of a fine imposed as part of the conviction and sentence and use of an abated conviction against the estate in related civil litigation.  The rationale for abatement ab initio is that “the interests of justice ordinarily require that [the deceased] not stand convicted without resolution of the merits of his appeal.” Oberlin, 718 F.2d at 896...

Just as it is inappropriate to impose restitution on a living individual who was never indicted or convicted, so it is inappropriate to impose restitution on the estate of a deceased individual who, in the eyes of the law, was never indicted or convicted.  Abatement ab initio means what it says.

May 3, 2010 in Criminal Sentences Alternatives, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

"'Shifting positions' on medical pot cited in reduced sentence"

The title of this post is the headline of this new item from the "Weed Wars" section of the Sacramento Bee. Here are the details:

One of the most compelling cases pitting California's medical marijuana law vs. federal authority to prosecute medicinal pot unfolded in the coastal town of Morro Bay. There, Charles Lynch opened a marijuana dispensary called Central Coast Compassionate Caregivers in early 2006. The mayor, City Council members and officials from the local chamber of commerce came out for the ribbon-cutting.

But in 2007, at the behest of the San Luis Obispo County Sheriff's Department, federal drug agents raided the dispensary. Lynch was arrested on five felony counts, including conspiracy to distribute marijuana and providing marijuana to person under 21.

In 2008, Lynch was convicted on all counts and sentenced to five years in federal prison. But last week, in a sentencing memo affirming an his earlier decision to cut Lynch's sentence to one year and one day, U.S. District Judge George H. Wu signaled that federal attitudes have changed on medical marijuana. He wrote: "Individuals such as Lynch are caught in the middle of the shifting positions of governmental authority."

Notably, the judge also said he believed that marijuana should be downgraded from its current federal status as a Schedule 1 drug - an illegal substance with no accepted medical use....

In reducing Lynch's sentence, Judge Wu cited a less antagonistic approach toward state-allowed medical marijuana by the Obama administration and Attorney General Eric Holder than under the Bush administration and former Attorney General Alberto Gonzales.

He also said Lynch's case "falls outside of the heartland of typical marijuana distribution cases." He noted that the dispensary operator had no criminal record and "the objective of the distribution was...to provide the marijuana for therapeutic reasons to persons with diagnosed medical needs pursuant to California state laws."

The ruling was hailed by Joe Elford, chief counsel for Americans for Safe Access, who had argued for leniency for Lynch.  "Judge Wu's sentencing order...begs the question of why the federal government is still prosecuting medical marijuana cases," Elford said in a statement.

The full text of Judge Wu's sentencing ruling in Lynch runs 41 pages and is available at this link.  In addition, this press release from Americans for Safe Access provides more information and backstory concerning the ruling.

May 3, 2010 in Drug Offense Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0) | TrackBack

Can, should and will district judges start giving effect to proposed amended guidelines ASAP?

This article from the Wall Street Journal, which is headlined "New Factors to Help Judges Determine Leniency," effectively the proposed new federal guideline amendments released on Friday by the US Sentencing Commission (basics here):

New rules will make it easier for federal judges to consider criminal defendants' military service, age, and mental and emotional conditions in determining more lenient prison sentences, a federal agency announced on Friday.

Defense lawyers and some judges cheered the move by the U.S. Sentencing Commission, which develops advisory guidelines that most federal judges use to calculate sentences. The commission had been considering updating the rules.

As a result of the changes, which takes effect on Nov. 1, some defendants could receive a reduction of several months or several years, said Mauro Wolfe, a former federal prosecutor who is now a defense attorney in New York.  "Judges will start paying more attention to this around the country," said John Kane, a federal judge in Denver. Mr. Kane recently gave a sentence of probation, rather than prison, to an Iraq war veteran. Previously the sentencing commission said factors such as age and military service "are not ordinarily relevant in determining" whether a lower sentence is warranted....

The new rules potentially reduce the prison sentence for some defendants with recent criminal history. Separately, they allow judges to send certain nonviolent drug offenders to treatment programs rather than prison.

There has been a judicial movement toward more-lenient sentencing for certain types of defendants in recent years. For example, a growing number of federal judges have given breaks to individuals convicted of viewing child pornography but who aren't themselves molesters, according to recent data.

As more military veterans return from Iraq and Afghanistan and have developed behavioral problems, some judges started taking their military service into account when deciding on prison time.

Some federal judges also give credit for charitable giving and other good deeds. However, the commission on Friday didn't budge on its stance that judges generally shouldn't take into consideration such acts.

As spotlighted by the question in the title to this post, these proposed guideline amendments set up one of the most interesting and intricate formal legal questions of the post Bookerera --- namely whether district judges can and/or should and/or will start giving effect to the substance of these new guidelines during sentencings over ne next six months while the proposed amendments are subject to congressional review. 

Formally, as the WSJ piece notes, the proposed amended guidelines do not become legally effective until November 1, 2010, and Congress has authority during this period to pass legislation to reject the Sentencing Commission's proposed changes.  But it seem very unlikely that Congress will reject these changes, and district courts right now have an on-going obligation to sentence in accord with the provisions of 3553(a).  And, given that the Commission has now formally and functionally indicated its view the provisions of 3553(a) are better served by sentencing in accord with its amended guidelines, a district court should probably feel free, and maybe even should feel and obligation, to sentence in accord with this new proposed guidelines ASAP.

I heard reports back when the USSC lowered the crack guidelines that a lot of sentencings were simply put on hold during this six-month interregnum when newly issued guidelines are formally still just proposed amendments.  But these new proposed amendments, especially the provisions concerning the consideration of age and mental/emotional conditions, could implicate almost every pending sentencing.  (For example, in the high-profile Rubashkin case (basics here and here), both the defendant's age and mental/emotional condition were stressed by the defense as a reason for a more lenient sentence.) 

Consequently, unless district courts are prepared to postpone all sentencings not controlled by mandatory minimum sentencing terms, judges will have to confront in some manner the question of whether and how to give effect to these new proposed guidelines in pending cases.  And, with luck, some of these judges will author thoughtful written opinions to perhaps get a real common-law dialogue started concerning precisely how best to give effect to military service, age, and mental and emotional conditions at sentencing.

Related posts on the new proposed sentencing guidelines :

May 3, 2010 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences | Permalink | Comments (5) | TrackBack

SCOTUS keeps us waiting for Graham and Sullivan, though provides some news while we wait

Today was the last scheduled day for the Supreme Court to release opinions until the second half of May, and neither of the two opinions released this morning are blockbusters.  It has now been nearly six months since the oral argument in the two juve LWOP cases from Florida, Graham and Sullivan, and it now appears that May 17th is the earliest these decisions could arrive.

Meanwhile, the court did reverse another habeas grant from the Sixth Circuit today in Renico v. Lett, No. No. 09–338 (May 3, 2010) (available here).  Here is how the opinion for the Court (authored by the Chief Justice) gets started:

This case requires us to review the grant of a writ of habeas corpus to a state prisoner under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. §2254(d). The District Court in this case issued the writ to respondent Reginald Lett on the ground that his Michigan murder conviction violated the Double Jeopardy Clause of the Constitution, and the U.S. Court of Appeals for the Sixth Circuit affirmed.  In doing so, however, these courts misapplied AEDPA’s deferential standard of review.  Because we conclude that the Michigan Supreme Court’s application of federal law was not unreasonable, we reverse.

In addition, SCOTUSblog reports that the Justices have "invited the views of the SG in 09-920, Simmons v. Galvin, a case involving the felon disenfranchisement law in Mass."  It will be interested to see what the Solicitor General's office has to say in response to this invitation because the case raises a host of interesting legal and social issues at the intersection of crime, race and politics.

May 3, 2010 in Sentences Reconsidered, Who Sentences | Permalink | Comments (2) | TrackBack

May 2, 2010

"Group to censure physicians who play role in lethal injections"

The title of this post is the headline of this notable article from today's Washington Post, which reviews the latest effort by a group of doctors to prevent physician involvement in lethal injections.  Here are excerpts:

A national physicians organization has quietly decided to revoke the certification of any member who participates in executing a prisoner by lethal injection.

The mandate from the American Board of Anesthesiologists reflects its leaders' belief that "we are healers, not executioners," board secretary Mark A. Rockoff said. Although the American Medical Association has long opposed doctor involvement, the anesthesiologists' group is the first to say it will harshly penalize a health-care worker for abetting lethal injections. The loss of certification would prevent an anesthesiologist from working in most hospitals.

About half of the 35 states performing executions, including Virginia and North Carolina, require a doctor to be present. Other states have also recruited doctors, including anesthesiologists, to play a role in executions involving lethal injections. In some jurisdictions, anesthesiologists consult prison officials on dosages. In others, they insert catheters and infuse the three-drug cocktails.

While death penalty opponents welcome the move because it raises yet more questions about lethal injections, capital punishment supporters contend that doctors are not needed during the procedures, which can be administered by prison employees. But as questions mount about the types and combinations of drugs used and whether they cause undue suffering, states have been turning to doctors for advice and assistance. With 3,200 prisoners now on death rows across the country, most of the 50 executions performed each year since 2008 have used lethal injections....

Under the policy, which the group's 40,000 members learned about in February, any of these activities could lead to a loss of certification. Anesthesiologists can get state medical licenses without certification, but most hospitals require it.

Thus far, no doctors have been disciplined, Rockoff said, but several anesthesiologists, including some who have worked as execution consultants or testified in capital punishment litigation, said the step has had a chilling effect. "They are clearly drawing a line in the sand and saying, 'If you cross this, we'll come after you,' " said Bryan A. Liang, a law professor at California Western School of Law and a professor of anesthesiology at the University of California at San Diego.

"It sure will deter me. For the ABA to threaten to pull your board certification is a big deal," said one anesthesiologist who has consulted for prison officials in his state about drug dosages. Arguing that the decision should be left up to individual doctors' consciences, none of those who criticized the policy agreed to be named, saying they feared repercussions....

Some death penalty supporters said nurses or emergency medical technicians are well-equipped to perform executions.  "Some think it's an effective argument to say you need a doctor to do this," said Michael Rushford, president of the Criminal Justice Legal Foundation, which supports the death penalty.  "You don't need a doctor to do this.  It's a counterfeit argument."

This story further convinces me that it will only be a matter of time before most states that want to continue using the death penalty in a serious way will turn to the one-drug lethal injection protocol that has proved successful so far in Ohio.  The need for doctor involvement seems further diminished by the one-drug approach, and Ohio was able to engineer and has now been regularly utilizing this method of execution with only very limited help from medical authorities.

May 2, 2010 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (15) | TrackBack

Interesting review of the age of killers and those killed in Alabama

Homicide-defendantsjpg-5e7a6570ddce64ba_large This feature story from the Birmingham News, which is headlined "The killing years: Accused killers in the Birmingham area, and victims, often under age 25," provides an interesting review of the chronological dynamics surrounding those killed and those who are killers in one of Alabama's major urban regions. Here is how the piece starts:

When people are murdered in Jefferson County, chances are the killer was a male under 25 using a gun. More than half of the accused killers in the county were 24 or younger, according to a Birmingham News analysis of homicides from 2006 through 2009. Nine times out of 10, the victims were shot to death.

The percentage of homicides with defendants under age 25 who used guns in Jefferson County substantially exceeds the national average, statistics show.  In Birmingham, where nearly three-quarters of the county's murders occurred, the disparity was even worse from 2006-2009.

Ages 16 through 24 are the killing years here.  That age group comprised 56 percent of the accused killers in Birmingham and 54 percent across the county those four years.

Nationally, 42 percent of the homicide defendants were 17 through 24, according to FBI statistics, which do not break out separate numbers for 16-year-olds.  The 17-24 age group made up 52 percent of the homicide defendants in Birmingham and 50 percent across Jefferson County.

"We're seeing more violence from that age group, more kids with cold hearts," said A.C. Roper, Birmingham's police chief. "Quite often we've heard kids say, 'Well, the victim went to a better place,' and chalk it up as if they were doing God's will or something."

Ages 16 through 24 also are the dying years.  About 16 percent of Birmingham's population is in that age group, but 33 percent of its homicide victims die that young.

"The one issue that has caused me the greatest concern is seeing young men gunned down in the streets by other young men," said Roper, whose 19-year-old brother was murdered while holding his infant son during a 1992 robbery attempt.

May 2, 2010 in Offender Characteristics | Permalink | Comments (4) | TrackBack

"Legalizing marijuana not really a dopey idea"

The title of this post is the headline of this new commentary by Michael Stetz of the San Diego Union Tribune, which includes some notable and important data about prison populations and arrests in California. Here are excerpts:

Who knows, in the near future, on a Friday night after a tough week of work, those so inclined could legally fire up a joint. And who knows, by California allowing that, some of this might happen:

A) The tax base gets a much-needed bump.

B) Cops can chase real bad guys, not recreational pot smokers.

C) The medical marijuana farce goes up in smoke because the drug can be had legally. (A lot of bad backs? Mysteriously cured!)

D) And another possible consequence: Prisons would have more room to house society’s worst criminals, particularly violent sex offenders....

A referendum will be on the November ballot, permitting personal use of the drug for those 21 and over. Cities or counties could allow for its sale and tax it. (Or not, it’ll be up to them.) It’ll also be OK for people to grow small amounts of it. “It would free up prison spaces for really, really bad guys,” said Aaron Smith, California policy director for the Marijuana Policy Project.

Granted, California’s prisons are not overflowing with marijuana criminals. Only about 1,630 — or 1 percent — are serving time for either having significant amounts of marijuana, selling the drug or cultivating it. But 1,630 spaces are 1,630 spaces. (Enjoy one, John Gardner.) By comparison, there are 2,446 inmates — or 1.4 percent — serving time for rape....

In 2008, the most current year for statistics, 78,000 marijuana arrests were made statewide. About four-fifths were for small amounts of marijuana — less than an ounce. It’s a misdemeanor, so you don’t get jail time, but it’s on your record.

These misdemeanor arrests have been skyrocketing, jumping 127 percent from 1990 to 2008. While cops are going like gangbusters against pot smokers, they’re not doing so well when it comes to violent criminals. In 1999, the statewide clearance rate for violent crimes was 50 percent. In 2008, it was 43.5 percent.

“One of the best reasons for doing this is it allows for the reallocation of law enforcement,” said Quintin Mecke, spokesman for San Francisco Assemblyman Tom Ammiano, who has introduced legislation to legalize marijuana for those over 21.

May 2, 2010 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (4) | TrackBack