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July 3, 2010

Should local Wisconsin DA be lauded or lambasted for his broad reading of Heller and McDonald?

Thanks to this post by Eugene Volokh, I see that at least one law enforcement official thinks that Heller and McDonald should be interpretted quite broadly.  Here are snippets from this press release issued last week issued by the DA of Wisconsin's Jackson County:

Yesterday, ... the [Supreme] Court declared that the right to keep and bear arms is a fundamental right, and that self-defense is at the core of the freedoms protected by the amendment.

This Supreme Court ruling is binding on all states and local governments, and immediately renders some of Wisconsin’s current laws unconstitutional. Therefore, in keeping with my oath to uphold and defend the Constitution, I hereby declare that this office will no longer accept law enforcement referrals for violations of the following statutes:

  • Section 167.31, prohibiting uncased or loaded firearms in vehicles;
  • Section 941.23, prohibiting the carrying of concealed weapons, including firearms;
  • Section 941.235, prohibiting the possession of firearms in public buildings;
  • Section 941.237, prohibiting the possession of firearms in establishments where alcohol may be sold or served; and,
  • Section 941.24, prohibiting the possession of knives that open with a button, or by gravity, or thrust, or movement.

All of these statutes constitute unjustifiable infringements on the fundamental right of every law-abiding American to arm themselves for self-defense and the defense of their loved ones, co-workers, homes and communities. This change also invalidates Jackson County Ordinance Sections 9.01 (firearms in public buildings) and 9.29 (CCW)....

As with the other fundamental rights, such as the freedom of speech, of religion, of association, or of security in our homes, persons, and effects, government limitations on fundamental rights are lawful only in the rare case that the state can show a compelling governmental need that can be accomplished only by enacting a narrowly-tailored restriction, in terms of time, place and manner.  Clearly, a blanket prohibition against carrying your loaded firearm in your personal vehicle does not pass that test....

The fact is, criminals don’t pay attention to gun laws, only we good folks do.  After 15 years of criminal law practice, I can state positively that when criminals resolve to harm someone, no law will stop them. These so-called “public safety” laws only put decent law-abiding citizens at a dangerous disadvantage when it comes to their personal safety, and I for one am glad that this decades-long era of defective thinking on gun issues is over.

I will watch for the legislature to make needed corrections in these areas. In the meantime, while I am happy to declare that we will follow the Supreme Court’s ruling, I want to emphasize that with fundamental rights come grave responsibilities, and I will continue to vigorously enforce the laws against unlawfully using firearms, such as the prohibition against felons being armed; going armed while intoxicated; using a firearm to commit a crime; and endangering safety by negligent handling of a weapon, to name just a few.

In his post on this press release, Eugene Volokh adds these comments:

This strikes me as an overreading of McDonald and Heller, which made clear (whether or not correctly) that concealed carry bans and bans on carrying into public buildings are constitutional. But a D.A. is entitled, given his prosecutorial discretion, to refuse to enforce laws that he believes to be unconstitutional, even if the courts think the laws are constitutional.

As the title to mt post indicates, I am very interested in reader reactions to the express statement by a local DA saying he will, on questionable constitutional grounds, refuse to enfore a duly enacted state law.  Do folks think this is an appropriate way to respect fundamental right or a dangerous example of an executive official taking too much of the law into his own hands?

July 3, 2010 in Second Amendment issues, Who Sentences | Permalink | Comments (13) | TrackBack

July 2, 2010

"How The Recession Hurts Private Prisons"

The title of this post is the headline of this Newsweek feature.  Here is how the interesting piece gets started:

Baldwin, Mich., (population 1,107), will soon have more prison beds than full-time residents. On the outskirts of town, one of the country’s largest private prison companies recently spent $60 million to expand a former juvenile prison into a 1,755-bed facility meant to house illegal immigrants before deportation.  This is the same town where every summer locals gather for a carnival nicknamed Troutarama at which teenage girls vie for the crown of Ms. Lake County. Thirty-two percent of Baldwin’s families live below the poverty line, in a state with a 13.6 percent unemployment rate, compared to the national unemployment rate of 9.7 percent.  Baldwin residents were counting on the private prison to create jobs, but this past March, the federal government pulled back its funding on the bid.  This left the Geo Group, Inc., with an empty fortress in the middle of rural Michigan, 85 miles north of Grand Rapids.

A similar scenario is playing out across the country, in states such as California, Oklahoma, and Colorado, where entire private prisons now sit vacant.  The Huerfano County Correctional Facility in Colorado and the Diamondback Correctional Facility in Oklahoma temporarily shut their doors this spring after the state of Arizona stopped sending prisoners out of state in an effort to save money. Cornell Companies, one of the three largest private prison operators in the U.S., expects two of its California prisons to remain empty through 2010, while 11,600 of Correction Corporation of America’s beds were unoccupied as of early May.  The empty prisons are not a result of the number of inmates dropping. In fact, according to the Pew Public Safety Performance Project, the number of inmates rose in 2007 in Arizona, Ohio, Kentucky, Mississippi, and Florida.  Instead, the empty beds are because state corrections agencies are crowding prisoners into more facilities as they do in California, or trying to change legislation to make sentencing less harsh for nonviolent criminals.  The private prison industry’s reliable mix of housing state and federal inmates and illegal immigrants — a model that helped to fuel two decades of growth — is no longer a surefire way to get rich. “There are only so many places you can find people,” says Martin F. Horn, a former commissioner with the New York City Department of Correction and a lecturer at the John Jay College of Criminal Justice.

Though it’s certainly not disappearing and there are signs of a potential recovery for the sector, the private corrections business is under financial pressure to change its business plan, and as that happens, prison advocates worry that the industry and it’s bottom-line approach will come to dominate other areas of the justice system.  Rather than worrying about upping the number of inmates, private prison companies are tapping into overseas markets and offering a wider range of services.  GEO increased its revenue by $20.2 million in the last year by opening up prisons in Australia and the United Kingdom, while also eyeing contracts in South Africa and New Zealand.  Cornell runs halfway houses and youth prisons and has noticed an uptick in the demand for drug treatment, housing, or job placement programs that help prisoners reenter society.  “The challenge for reentry is funding,” says James Hyman, CEO and president of Cornell Companies.  “If states can’t fund programs for their star college graduates, how do they fund programs for the prisoners?”

July 2, 2010 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (3) | TrackBack

Public defenders in Kentucky challenging prosecutorial discretion in capital cases

As detailed in this local article, which is headlined "Kenton County case to be used as Ky. death penalty test," state public defenders in Kentucky are making a broad challenge to the exercise of prosecutorial discretion in death penalty cases.  Here are the basics:

Kentucky's public defenders have picked a Kenton County homicide case to challenge the constitutionality of allowing prosecutors to decide whether to seek the death penalty.

A person who commits a crime in one county may face death while a person who commits the same crime in another county may not face death.  That practice makes Kentucky's death penalty process "arbitrary and capricious," public defender Joanne Lynch argued Thursday in Kenton Circuit Court. She is representing Marion "Timmy" Lawson Parker III, 27, of Covington. He could be sent to death row if found guilty in the January beating and strangling of Shawn Davis, 28, of Covington.

While state law outlines what crimes are death penalty-eligible, there is no guideline to help individual prosecutors to decide when to apply it, Lynch said.  Under state law, the death penalty applies only in homicides in which an aggravating circumstance exists. Those include if the killing occurs during the commission of arson, robbery, burglary, rape or sodomy.

"As far as our research has shown, this is relatively a novel issue," Lynch said. "It has not been decided by the courts of the commonwealth."

Lawyers from the Kentucky Attorney General's Office traveled from Frankfort to defend the state's death penalty statute from the legal attack.  Robert Long of the attorney general's office said Lynch's argument is flawed because, if it was equally applied to all cases, prosecutors would lose all discretion in whether to decide to charge individuals....

Kenton Circuit Judge Gregory Bartlett said federal courts have a system to review all death penalty-applicable cases, even if the death penalty isn't sought. "They are arguing Kentucky may need a review of when death penalty cases are not sought," Bartlett said.

The judge declined, however, to weigh in on the debate. "What we have in essence here is a challenge to the legislation," Bartlett said. "I think this needs to be addressed, if not by the supreme court, then legislators."

By making the arguments now, Parker will be able to appeal on those constitutional grounds if he is ultimately found guilty of murder and sentenced to death.

July 2, 2010 in Death Penalty Reforms, Who Sentences | Permalink | Comments (7) | TrackBack

Seeking SCOTUS reflections for guest posts over holiday weekend

I am heading on the road this morning and will be away from my usual blog locales for an extended holiday period.  Blogging will continue, but will likely be relatively light over the next week or so.  During this period, I would really like to receive from thoughtful (and even not-so-thoughtful) reflections on the Supreme Court and sentencing that I might post in this space to provides some diverse reflections on the Roberts Court's past, present and future.

Folks are, of course, welcome to send me via e-mail comments on the SCOTUS Term that just wrapped up (my first reflections appear in this recent post).  But I would also love to be able to post comments on how sentencing (or broader criminal justice) issues are developing during the first few years of the Roberts Court.  Or about how Justice Souter's replacement by Justice Sotomayor and Justice Stevens replacement my (likely) Justice Kagan might impact where the Roberts Court is heading on various criminal justice issues.  Or about the nature and development of the SCOTUS docket and cert pool.  Or about any other related question.

If/when folks send me materials for guest posts, it would be helpful to indicate if and how you would like to be identified.  I am happy to post thoughtful comments without attribution, but I will be a bit more likely to post text if the author is prepared to sign his or her name to it.

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

July 1, 2010

New report details racial disparities in pot possession charges in California

As detailed in this press release, the Drug Policy Alliance (which advocates alternatives to the war on drugs) this week "released a report that documents widespread race-based disparities in the enforcement of low-level marijuana possession laws in California." Here are some details from the release:

Focused on the 25 largest counties in the state, t he report finds that African Americans are arrested for marijuana possession at substantially higher rates than whites, typically at double, triple or even quadruple the rate of whites. Further, blacks are arrested for marijuana possession far out of proportion to their percentage in the total population of the counties.

According to the report, “Targeting Blacks for Marijuana,” these disparities in marijuana possession arrest rates between whites and blacks cannot be explained by their patterns of marijuana use. U.S. government studies consistently find that young blacks consume marijuana at lower rates than young whites. The report was released to coincide with the official endorsement of Proposition 19, the Control and Tax Cannabis Initiative 2010, by the California State Conference of the NAACP. Proposition 19 will appear on the general election ballot November 3rd....

Led by Queens College sociologist Harry Levine, researchers studied arrest records from 2004 through 2008 in California’s 25 largest counties, home to about 90 percent of the state's population and almost all of the state's African Americans. Highlights of the report include [the finding that in] the 25 largest counties as a whole, blacks are 7% of the population but 20% of the people arrested for possessing marijuana.

The full report is available at this link.

July 1, 2010 in Drug Offense Sentencing, Race, Class, and Gender | Permalink | Comments (0) | TrackBack

"Sex offender faces prison for going to movie, authorities say"

The title of this post is the headline of this intriguing local Detroit story which highlights how GPS tracking can play a role in busting a sex offender for going to the wrong pop-culture event.  Here are the details:

A sex offender told to stay away from children is facing up to 15 years in prison for allegedly violating his probation.

Michael Keeler, 46, of Gregory appeared in Livingston Circuit Court today. Authorities say he went to MJR Theater in Brighton June 22 to see the blockbuster film "Toy Story 3," putting himself among children despite his probationary terms.

Livingston Judge Michael Hatty set bond at 10 percent of $10,000. A hearing is set for July 8.

Court records showed Keeler served one year in prison after pleading guilty to a charge of criminal sexual conduct, second degree, involving a child under age 13 in 2008.

His probation included lifetime of electronic monitoring and registry on the state's sex offender list. The judge said a GPS monitoring device confirmed his whereabouts on June 22.

July 1, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing, Technocorrections | Permalink | Comments (10) | TrackBack

Chicago's gun control response to the McDonald ruling

This AP story, which is headlined "Mayor Daley lays out strict gun rules for Chicago," provides the new sure-to-be-challenged gun regulations that Chicago has in the works now that the Supreme Court has made clear that it has to comply with the Second Amendment:

With the city's gun ban certain to be overturned, Mayor Richard Daley on Thursday introduced what city officials say is the strictest handgun ordinance in the United States.

The measure, which draws from ordinances around the country, would ban gun shops in Chicago and prohibit gun owners from stepping outside their homes, even onto their porches or garages, with a handgun....

"As long as I'm mayor, we will never give up or give in to gun violence that continues to threaten every part of our nation, including Chicago," said Daley, who was flanked by activists, city officials and the parents of a teenager whose son was shot and killed on a city bus while shielding a friend.

The ordinance, which Daley urged the City Council to pass, also would:

  • Limit the number of handguns residents can register to one per month and prohibit residents from having more than one handgun in operating order at any given time.
  • Require residents in homes with children to keep them in lock boxes or equipped with trigger locks.
  • Require prospective gun owners to take a four-hour class and one-hour training at a gun range. They would have to leave the city for training because Chicago prohibits new gun ranges and limits the use of existing ranges to police officers. Those restrictions were similar to those in an ordinance passed in Washington, D.C., after the high court struck down its ban two years ago.
  • Prohibit people from owning a gun if they were convicted of a violent crime, domestic violence or two or more convictions for driving under the influence of alcohol or drugs. Residents convicted of a gun offense would have to register with the police department.
  • Calls for the police department to maintain a registry of every handgun owner in the city, with the names and addresses to be made available to police officers, firefighters and other emergency responders.

Those who already have handguns in the city — which has been illegal since the city's ban was approved 28 years ago — would have 90 days to register those weapons, according to the proposed ordinance.

Residents convicted of violating the city's ordinance can face a fine up to $5,000 and be locked up for as long as 90 days for a first offense and a fine of up to $10,000 and as long as six months behind bars for subsequent convictions.

Perhaps readers can share their views as to which of these proposed regulations seem most likely to withstand or wither under a Second Amendment attack based on Heller and McDonald.

July 1, 2010 in Second Amendment issues | Permalink | Comments (12) | TrackBack

A first-cut criminal justice take on the SCOTUS Term that was

Because the just-completed Supreme Court Term was rich with criminal justices cases that were themselves rich with dynamic issues of constitutional and statutory law, it may not be possible to provide a simple criminal justice take on the Justices' work this past Term.  Nevertheless, I wanted here to express my first-cut perspective about the OT 2009 in the hope that readers might confirm or dispute my initial view.

Put most simply, I think the Term had a significant number of little wins for criminal defendants, but the vast majority of cases that could have potentially produced huge wins for defendants ended up being losses (or dismissed cases) or wins via relatively narrow opinions.  My view here may be skewed a bit by end-of-term cases like Barber and Comstock and Dillon and Dolan and HLP which were defendant losses that would have been huge if they came out the other way, and also by rulings like Carr and O'Brien and Skilling which were defense wins on possibly the most narrow of the reasonably available grounds.

That said, it is probably accurate to describe the two potentially biggest and most consequential cases, Graham concerning Eighth Amendment restrictions on extreme prison terms and Padilla concerning Sixth Amendment standards for assessing the effectiveness of an defense attorney's pre-plea advice, as big wins for criminal defendants.  Especially because of the strong defense-side facts/equities in these cases, wins by the state in these cases would have been a huge blow to future defendants hoping to advance a Sixth or Eighth Amendment claim in related settings.  And both Graham and Padilla have dicta that provide significant opportunities for defendants to try to extend these rulings in lower courts.  And yet, if recent history is any guide, prosecutors can reasonably hope (and defense attorneys should fear) that lower state and federal courts will generally be inclined to limit the reach of Graham and Padilla.

This cursory review of the SCOTUS criminal justice work in the past Term leaves out police procedure cases (which were mostly wins for prosecutors) and habeas procedure cases (which were mostly wins for the defense).  And the fact that there are so many cases to discuss reinforces my initial comment that a simple take on OT 2009 just may not possible.

July 1, 2010 in Who Sentences | Permalink | Comments (2) | TrackBack

Split Seventh Circuit upholds seemingly Carr-questionable SORNA conviction

A number of helpful readers have alerted me to a notable split Seventh Circuit opinion today in United States v. Vasquez, 09-2411 (7th Cir. July 1, 2010) (available here), which in the words of one reader "appears on quick glance to thumb its’ nose at the Supreme Court’s holding in Carr." The start of a lengthy dissent by Judge Manion provides a window into the dispute:

In reading the court’s opinion and the recent Supreme Court case Carr v. United States, this fact cannot be lost: there are seemingly two statutes at issue here.  There is § 2250 as we interpreted it in United States v. Dixon, and as the court continues to interpret it, and then there is § 2250 as the Supreme Court interpreted it in Carr.  That being said, I have two principal disagreements with the court’s opinion.  The first is that it gives Carr too limited a reading; the second is that its interpretation of § 2250 renders the statute constitutionally defective.

July 1, 2010 in Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Georgia to seek en banc review of Eleventh Circuit panel ruling about Atkins application

As detailed in this post from a few weeks ago, a Eleventh Circuit panel in Hill v. Schofield, No. 08-15444 (11th Cir. Jun. 18, 2010) (available here), declared unconstitutional Georgia's procedures for implementing the Atkins ruling prohibiting the execution of mentally retarded persons.  As detailed in this lengthy and effective Fulton County Daily Report article on the ruling, the state of Georgia is going to seek to get the ruling reconsidered.  Here are snippets from the article:

Although Georgia was the first state in the nation to outlaw the execution of mentally retarded defendants in 1988, it remains the only state to require an offender to provide proof of mental retardation beyond a reasonable doubt -- the most stringent legal standard, according to the opinion. The maximum penalty for mentally retarded offenders in Georgia is life imprisonment.

Twenty-two other states require a defendant to prove mental retardation by a preponderance of the evidence; four states have adopted a "clear and convincing standard" -- both less stringent, civil standards of proof. Three states have no uniform standard of proof with regard to mentally retarded capital defendants.

The findings of the 11th Circuit panel -- which included Judges Rosemary Barkett, Stanley Marcus and Frank M. Hull -- included a strong 29-page dissent by Hull, who said that the U.S. Supreme Court's 2002 decision outlawing the execution of mentally retarded defendants, Atkins v. Virginia, "left it for the states to develop the procedural and substantive guides for determining who is mentally retarded."...

State Attorney General Thurbert E. Baker, who is running for the state Democratic nomination for governor and whose office is defending the Georgia statute, will ask the the 11th Circuit to reconsider the ruling en banc, Baker spokesman Russell D. Willard said Tuesday. "We believe the majority decision was erroneous, and we look forward to making our argument before the full 11th Circuit," Willard said.  He declined to detail the nature of the errors, saying that they would be included in pleadings the attorney general will file "shortly."...

Brian Kammer, an attorney with the Georgia Resource Center who has been representing defendant Warren Lee Hill Jr. in state and federal appeals of his 1991 death sentence since 1996, said the appellate panel's ruling has reversed a "stark instance of injustice."

"The burden of proof has been challenged several times in different cases unsuccessfully in Georgia," Kammer said. "But it certainly hadn't gotten to 11th Circuit before now."  Hill's case, Kammer continued, "is a primary example of how the reasonable doubt burden of proof will likely result in the execution of the mentally retarded."

Whether or not the full Eleventh Circuit takes up this issue, I think there is a very good chance that the Supreme Court will be considering some variation on this Atkins implementation issue before too long.

July 1, 2010 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

June 30, 2010

In the Kagan hearings, were any core criminal justice issues been discussed?

The formal and direct questioning of SCOTUS nominee Elena Kagan wrapped up this afternoon.  Based on media reports, it seems that the death penalty and gun rights are the only criminal justice issues that were at any point discussed during the two days of Q+A between the Senators and Kagan.  I suppose this is not really all that surprising, but it is certainly disappointing given that dozens of cases come before the Supreme Court each Term dealing with core criminal justices issues ranging from police practices to criminal trial procedures to sentencing law.  Oh well.

I hope readers will let me know if I missed any noteworthy discussion of criminal justice issues during the hearings dealing with criminal justice issues other than death and guns.  I also hope readers will report on anything they think could still get in the way of Elena Kagan becoming Justice Kagan in short order.

UPDATE:  A helpful reader reported to me this exchange on federal crack/cocaine sentencing:

Here is what Kagan said in response to a question from Sen. Durbin on crack cocaine:

“Crack cocaine issue is one of the things I’ve had the most to do with as a policy matter. We suggested a 10-1 ratio because we thought that it was the practical approach to take. As a judge, the only thing that would matter would be the statute; unless and until Congress changes it, the current statute would apply.”

June 30, 2010 in Who Sentences | Permalink | Comments (2) | TrackBack

Interesting details about the first(?) post-McDonald suit brought in North Carolina

This local story out of North Carolina provides some of the interesting details surrounding the first high-profile challenge to a state gun law in the wake of the McDonald Second Amendment ruling earlier this week:

The same day the U.S. Supreme Court issued a ruling that gun rights advocates saw as an open door to challenge the constitutionality of firearms restrictions, a lawsuit was filed in federal court in North Carolina seeking an injunction against the governor and others from declaring states of emergency that restrict who can carry guns in public.

The suit was filed Monday by Second Amendment Foundation, Grass Roots North Carolina and three individuals against Gov. Bev Perdue, Reuben F. Young, secretary of the state Department of Crime Control and Public Safety, Stokes County and the City of King....

The North Carolina case, filed in the state's eastern federal district, questions whether state laws limiting who can carry guns in states of emergency are overreaching.  The suit also contends that government officials, under the state of emergency law, are allowed to prohibit the purchase, sale and possession of firearms and ammunition — actions the plaintiffs describe as violations of their Second Amendment rights.

Paul Valone, president of Grass Roots North Carolina, a gun rights advocacy group, said the suit was filed, in part, to test whether the state can impose such restrictions in times of emergency. "Not only will it get to that," Valone said Tuesday. "It will set binding precedent."

Under North Carolina law, the governor can declare states of emergency as can municipalities and counties.  Since Sept. 1, 2004, according to the lawsuit, at least a dozen states of emergency have been declared by a North Carolina governor.  All but one were weather-related — for hurricanes, tropical storms, snow and ice.  One was for the 2008 wildfire that swept through Hyde, Tyrell and Washington counties.

In some towns and cities, though, states of emergency are declared when large crowds are expected to gather in small places.  In such circumstances, law enforcement officers are able to confiscate weapons.

King, a Stokes County town of about 4,700 people nearly seven miles north of Winston-Salem, was named in the suit because in February, the mayor declared a state of emergency after a fierce winter snow and ice storm felled trees and damaged properties.  The mayor did so, according to city administrators, so that King could be a candidate for federal funds to help with the cleanup after the storm....

State law enforcement advocacy groups and North Carolinians Against Gun Violence, an advocate for gun controls, declined to comment about the specifics of the case.  "We want to wait for more input from law enforcement," said Roxane Kolar, executive director of North Carolinians Against Gun Violence.

Some old and new recent related posts on state litigation and McDonald

June 30, 2010 in Second Amendment issues | Permalink | Comments (3) | TrackBack

Notable new district court opinion addressing effort to defend child porn sentencing guidelines

Regular readers know well the robust on-going debate in the federal courts concerning the federal sentencing guidelines and appropriate sentencing for child porn offenses.  Though most detailed written sentencing opinion on the subject have assailed the operation and severity of the federal guidelines for child porn downloading offenses, earlier this year US District Judge John Adams issued a thoughtful opinion in US v. Cunningham, No. 1:09CR154 (N.D. Ohio Jan. 26, 2010) (discussed here) provided a detailed defense of the federal child porn guidelines.  Now I have received a new opinion from US District Judge Lynn Adelman, US v. Diaz, No. 09-CR-302 (E.D. Wisc. June 30, 2010) (available for download below), which takes on the reasoning of Cunningham and "respectfully disagree[s] with the court’s observations." Here is a snippet of this disagreement:

[T]he Cunningham court argued that the fact that certain enhancements apply on a frequent basis does not serve as a basis for negating the guidelines. Id. at 852-53.  But where, as here, the imposition of those enhancements results in sentences approaching the maximum in criminal history category I, the approach developed by the Commission breaks down. Specifically, the Commission developed the criminal history axis of the Grid based on its conclusion that a defendant’s past record of criminal conduct was directly relevant to the four purposes of sentencing: a defendant with a record is more culpable than a first offender and thus deserving of greater punishment; deterrence requires that a message be sent that repeat criminal behavior will aggravate the need for punishment with each recurrence; to protect the public, the likelihood of recidivism must be considered; and repeated criminal behavior is an indicator of a limited likelihood of successful rehabilitation.  See U.S.S.G. ch. 4 introductory commentary.  If even a first offender approaches the maximum based on the offense level alone, chapter four becomes irrelevant, and a first-time offender is treated similarly to a recidivist.  That is not what the Commission (or the Sentencing Reform Act) intended.

Download Diaz written sentencing memo

The academic in me who is interested in robust sentencing debate is especially intrigued and excited to see these district judges issuing dueling sentencing opinions providing thoughtful and thorough written accounts explaining just how and why they decided to exercise their sentencing discretion in a particular way.  But the citizen in me who is generally interested in federal defendants facing similar sentencing realities for similar criminal conduct is wondering if and when federal appellate courts or the Sentencing Commission or Congress will try to start herding the district court sentencing cats that continue to stray because the current sentencing guidelines appear to most participants to be providing very poor guidance in the vast majority of child porn downloading cases.

Some related prior federal child porn prosecution and sentencing posts:

June 30, 2010 in Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Fascinating Ninth Circuit ruling on whether prisoners have medical privacy rights

The Ninth Circuit issued an interesting ruling today concerning the medical privacy rights of a prisoner in Seaton v. Mayberg, No. 05-56894 (9th Cir. June 30, 2010) (available here). Here is how the main panel opinion starts and ends:

We address a claim to privacy rights in his medical records of a prisoner being evaluated for civil commitment....

One who goes to a physician in order to obtain medical benefit to himself or his family has substantial privacy interests that may or may not be constitutionally protected. One who is compelled to submit to medical examination for the benefit of the public, to determine whether because of mental disease he is likely to engage in sexually predatory behavior, does not.

June 30, 2010 in Prisons and prisoners, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Former NC lottery commissioner first(?) to get released based on Skilling honest service ruling

A helpful reader sent me an order entered yesterday in Geddings v. US (available for download below), in which a district court has ordered the release of a former North Carolina lottery commissioner based on the new narrowed interpretation of the federal honest services fraud statue set forth in last weeks Skilling decision. Here is a key snippet from the order:

On June 24, 2010, the court orderedthe United States to submita memorandum of law not later than June 29, 2010, addressing whether this court should grant post-conviction relief to Geddings.  On June 29, 2010, the United States submitted a memorandum acknowledging that under Skilling:

it is no longer a federal crime for state public officials to corrupt their public offices by engaging in undisclosed self-dealing. The new interpretation of Section 1346 does not cover the undisclosed self-dealing that Geddings committed in connection with his service as a North Carolina Lottery Commissioner. Consequently, the Government concedes that Geddings is entitled to have his conviction vacated.

Govt. Mem. 1.  The government also contends that Geddings is not entitled to relief under 28 U.S.C. § 2255 or 28 U.S.C. § 1651, but is entitled to relief under 28 U.S.C. § 2241. See id. at 2, 10-12 (citing In re Jones, 226 F.3d 328, 332 (4th Cir. 2000)).  The government moves the court "to release Geddings, as soon a practicable, pending the resolution of the Section 2241 process."  Govt. Mem. 2, 12-13.

Download Geddings Order 6-29-10 -- Release

I hope somebody will end up keeping track of how many convictions end up vacated as a result of the Skillingruling, as well as what sentences were imposes/served based on convictions that end up vacated.  Notably, Kevin Geddings got sentenced to 48 months in May 2007and was denied bail pending appeal in June that same year.

June 30, 2010 in Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1) | TrackBack

Split Second Circuit panel reverses death sentence for NYC double cop killer

As detailed in this New York Times report, which is headlined "Death Sentence Is Voided for Killer of 2 N.Y.P.D. Officers," the Second Circuit today has reversed a high-profile federal death sentence. Here are the basics:

A panel of federal judges has overturned the death sentence given to a Staten Island man convicted of killing two undercover New York City police detectives in 2003. In January 2007, when a federal jury sentenced the man, Ronell Wilson, to die by lethal injection for killing the detectives, the verdict was praised by prosecutors and the president of the Detectives Endowment Association.

Relatives of the two detectives — each shot in the back of the head in a car on a dead-end street on Staten Island in 2003 after posing as gun buyers — called out “God bless” after the jury foreman ordered sentences of death on five counts, the first successful federal capital punishment prosecution in New York State in more than 50 years.

But, a little more than three years later, a three-judge panel of the United States Court of Appeals for the Second Circuit overturned the death sentences on Wednesday. The judges ruled that federal prosecutors violated Mr. Wilson’s constitutional rights.

Here is a key section from the start of the majority opinion in US v. Wilson, No. 07-1320 (2d Cir. June 30, 2010) (available here):

[W]e vacate the death sentences, and remand, because two arguments made to the jury by the prosecution — both bearing on the critical issues of remorse, acceptance of responsibility, and future dangerousnessimpaired Wilson’s constitutional rights.  The government argued: [i] that Wilson put the government to its proof of guilt rather than plead guilty; and [ii] that Wilson’s allocution of remorse should be discredited because he failed to testify notwithstanding the fact that “[t]he path for that witness stand has never been blocked for Mr. Wilson.”  As to the first argument, although a guilty plea may properly be considered to support a sentence mitigation for acceptance of responsibility, the Sixth Amendment is violated when failure to plead guilty is treated as an aggravating circumstance.  As to the second, it is a fair argument for the prosecution to say that an allocution of remorse is unsworn and uncrossed, but the Fifth Amendment is violated when the defendant is denied a charge that limits the Fifth Amendment waiver to that which is said in the allocution and the jury is invited to consider more generally that the defendant declined to testify.  These constitutional violations were not harmless beyond a reasonable doubt.

Judge Livingston dissents from this portion of the panel's ruling, say this at the end of her opinion:

I conclude that if there was Fifth Amendment error here — and I find it doubtful — such error had no impact on the jury that sentenced Wilson.  With regard to the Sixth Amendment, there is simply no error to review. Having reached these conclusions, I believe the death sentences should be affirmed.

As the dissent highlights, these constitutional issues are not clear cut, which makes en banc review by the Second Circuit and/or a cert grants by the Supreme Court quite likely.  In other words, this legal battles over the defendant's death sentence have likely only just begun.

June 30, 2010 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (9) | TrackBack

Effective review of state gun laws likely to be challenged after McDonald

The AP has this effective new piece, headlined "Gun law challenges likely after high court ruling," which reviews the state gun restrictions that might soon be subject to post-McDonald litigation. Here is the article's list:

Among other laws already facing lawsuits or expected to be challenged:

  • Age limits that bar people younger than 21 from buying or owning guns
  • Lockbox and trigger-lock requirements to keep guns away from children
  • One-gun-a-month purchase limits in California, Maryland, New Jersey and Virginia
  • Georgia's prohibition on carrying guns into churches
  • Bans on guns in bars
  • California's outlawing of certain handguns
  • Assault weapons and ammunition bans
  • Federal and state prohibitions aimed at keeping domestic violence offenders from having guns.

I would be interested in hearing reader views on which of these laws seem most likely and least likely to survive Second Amendment challenges.

June 30, 2010 in Second Amendment issues | Permalink | Comments (7) | TrackBack

Texas about to conduct back-to-back executions

As detailed in this AP article, the execution chamber in Texas is due to be busy this week:

Condemned prisoner Jonathan Green faces lethal injection for the abduction, rape and strangling of a 12-year-old girl near Houston 10 years ago. Green is scheduled to die in the Texas death chamber in Huntsville on Wednesday evening. The 42-year-old inmate would be the 14th killer Texas has executed this year and the first of two on consecutive nights in the nation's most active death penalty state.

Assuming these executions are conducted, there will have been already 31 execution in the US in 2010, nearly as many as the number of executions that were conducted in all of 2008.  As revealed by this yearly execution data at DPIC, 2010 may be on pace to have as many or more executions than any other year in nearly a decade.

June 30, 2010 in Death Penalty Reforms | Permalink | Comments (3) | TrackBack

June 29, 2010

Fascinating racial justice debate on California pot legalization proposition

This AP article, which is headlined "Calif NAACP to back pot legalization initiative," provides an interesting example of how California's November ballot proposition that would decriminalize marijuana is already dividing some usual bedfellows:

The NAACP's California chapter pledged its support on Tuesday for a marijuana legalization ballot measure, saying current laws are unfairly used to target minorities. The group highlighted findings it says show the arrest rate among blacks for low-level marijuana crimes far exceed those of whites in the state's largest counties....

The NAACP's announcement outraged a Sacramento preacher who is leading opposition to the measure. International Faith-Based Coalition president Ron Allen said African-American leaders are distressed that one of the country's most respected civil rights organizations would disregard the harm caused by illicit drugs among blacks. "The NAACP does not represent the African-American community when it comes to legalizing marijuana," Allen said.

Drug legalization advocates hailed the endorsement as a major step forward in broadening the coalition of groups who support the reform of marijuana laws. Opponents of current drug prohibitions frequently point to the issue of race and drug arrests as evidence of a flawed national policy.

"There have not been high profile organizations or elected officials within African-American communities to say enough is enough, we have to end marijuana prohibition. This is really a first," said Stephen Gutwillig, California director of the Drug Policy Alliance.

Some related posts on pot policy and politics:

June 29, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Race, Class, and Gender | Permalink | Comments (1) | TrackBack

Kagan confirmation comedy club

This AP article, which summarizes some aspects of Day 2 of the confirmation hearings for SCOTUS nominee Elena Kagan, highlights some of her amusing answers to questions from the Senate Judiciary Committee:

She cracked up senators and the audience alike when she was asked about her whereabouts on Christmas Day, when there was an attempted airplane bombing, telling the committee: "You know, like all Jews, I was probably in a Chinese restaurant."

Kagan's humor got a thumbs-up from Sen. Arlen Specter, D-Pa., one of her most cantankerous questioners. Talking about television coverage of the courts, Kagan told Specter: "It means I'd have to get my hair done more often."

That left him momentarily speechless. Then he offered: "Let me commend you on that last comment, and I say that seriously. You have have shown a really admirable sense of humor, and I think that is really important."

Sen. Chuck Schumer, D-N.Y., later predicted Kagan would give Justice Antonin Scalia, who gets the most laughs on the high court, a run for his money.

On a more serious note, here are some headlines and links from various sources providing some substantive highlights of today's confirmation festivities:

Because I lacked the time or the energy to watch much of the hearings, I would be grateful if readers use the comments to report on anything they found particular noteworthy from the interchanges to so far.

June 29, 2010 in Who Sentences | Permalink | Comments (3) | TrackBack

A few final wins for criminal defendants on the final day of the SCOTUS Term

Though yesterday felt like the final day of the October 2009 Supreme Court Term, the Justices actually released today a final set of orders.  And, as effectively described in this SCOTUSblog post, this final set of orders included some notable victories for a few criminal defendants:

The Court sent back to lower courts for another look the convictions of the former Alabama governor and a top health industry executive on charges of arranging large campaign contributions in return for official favors on state health policy.  The lower courts are to reexamine those cases under the Court’s decision last week in Skilling v. United States — a ruling that significantly narrowed the federal fraud law as it applies to corruption schemes.   The returned cases are Scrushy v. U.S. (09-167), involving Richard M. Scrushy, founder and CEO of HealthSouth Corp., and Siegelman v. U.S. (09-182), involving former Gov. Don Eugene Siegelman. [SL&P addition: This order list also includes five other Skilling GVR's]...

Also sent back to a lower court was Maloney v. Rice (08-1592), a case in which Justice Sonia Sotomayor, when she was a member of the Second Circuit, had also ruled that the Second Amendment does not apply to state and local government levels.  The Maloney case did not involve guns, but rather tested a New York state law that bans personal possession of a martial arts device — a nunchaku — that also can be used as a weapon.   Justice Sotomayor did not take part in the Maloney order Tuesday.

Over the objection of four Justices, the Court issued a summary decision in a highly unusual death penalty case, in which the defense attorney had sought to win favor with the jury by portraying the individual’s childhood as stable, loving, and “essentially without incident” as a way to show that a death sentence would devastate the individual’s family, who wee shocked and dismayed by the crime.  But, the Court concluded Tuesday, that strategy backfired, and prosecutors used that background evidence. suggesting that the individual had led a “privileged” life,  in their closing argument and obtained a death sentence.  The majority said that the defense lawyer’s choice of that theory led to a completely inadequate investigation of a childhood that was immersed in parental abuse, and the youth had suffered head injuries that doctors deemed significant enough to impair his capacity.  The case involved Demarcus Ali Sears, convicted of murder in Georgia — a woman was kidnapped in Georgia, and killed in Kentucky.  Sears was sentenced to death.  The Court’s ruling came in an unsigned (“Per Curiam”) decision, apparently on a 5-4 vote.  Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., noted that they would have denied review.  Justice Antonin Scalia dissented, joined by Justice Clarence Thomas.  The case was Sears v. Upton (09-8854).

The substantive Sears ruling spotlights that there are still five votes to summarily reverse in those capital cases in which the affirmance of a state death sentence bothers the liberal wing of the Court. 

Especially in light of the historic role that Justice Stevens played in the evolution of the Court's capital jurisprudence, it is fitting that Justice Stevens engineered a final win for a capital defendant on his way off the Court.  And it is now useful and interesting to speculate as to whether likely future Justice Elena Kagan will be just as willing and eager to side with death row defendants in future Terms.

June 29, 2010 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3) | TrackBack

The "Silent Six" states worth watching for post-McDonald Second Amendment litigation

Back in October 2009 the Supreme Court accepted cert in the McDonald case, I asked in this post "What state and local issues will be litigated the most if (when?) Heller is incorporated?".  Though that post did not generate many responses, I suspect this question is now on the minds of many government lawyers who may be tasked with having to defend state and local gun regulations against new Second Amendment attacks in the wake of McDonald.

Though a diverse array of gun regulations will likely be subject to a diverse array of post-McDonald Second Amendment attacks in lower courts, I will be watching most closely how Second Amendment litigation unfolds in the six states that lack any state constitutional provisions concerning arms or gun rights: California, Iowa, Maryland, Minnesota, New Jersey and New York.  (Professor Eugene Volokh long ago created on-line this terrific list of state constitutional provisions concerning arms.)  Here are at least three reasons why these states — which I will call the "Silent Six" (or should it be Silencer Six) —  seem worth watching extra closely after McDonald:

1.  Lack of any controlling state constitutional law precedents.  In states with constitutional provisions concerning arms, there will be some judicial precedents that state judges can consider and reference when sorting through new Second Amendment claims.  But in the "Silent Six," state judges will be working on a mostly blank jurisprudential slate.  These state judges can and surely will look for guidance from gun rulings from other jurisdictions.  Still, the state judges in the "Silent Six" states will have a unique freedom (and unique necessity) to develop Second Amendment jurisprudence without any existing law to restrict or guide them.

2.  Large, diverse states with urban and rural settings.  Most of the "Silent Six" states are, relatively speaking, pretty big with big populations spread diversely around the state.   There are many rural parts of New York and California, for example, that are likely to be favorable to gun rights and to have local judges sympathetic to an expansive view of gun rights.  But there are also many urban centers in these states that tend to be hostile to gun rights and likely have local judges who reflect local attitudes.  Especially if and when early Second Amendment challenges are brought in these "Silent Six" states, early outcomes may turn on just where in the state a challenge is initially brought (and on which local judges are most eager to rule quickly on these claims).

3.  Mostly blue and politically important, dynamic states.  Most of the "Silent Six" tend to vote for Democrats, though Minnesota and New Jersey right now have high-profile Republican Governors.  Meanwhile, California, Maryland and New York have important state-wide elections taking place this November, and Iowa is where all Presidential campaigns get started.  These realities could make early constitutional litigation over state's gun regulations a hot political topic in the months (and years) ahead in the "Silent Six."  Against the backdrop of developing Second Amendment litigation, I wonder if former federal prosecutor and now Republican NJ Governor Chris Christie will continue to defend strict NJ gun control as he seemed to do in this interview with Sean Hannity back in October.  Similarly, as California laws get challenged, I wonder if Republican candidate Meg Whitman will stick with this reported statement last year that she "believes tough gun laws like assault weapon bans and handgun control are appropriate for California."

Some old and new recent related posts on state litigation and McDonald

June 29, 2010 in Second Amendment issues, Who Sentences | Permalink | Comments (11) | TrackBack

High-profile below-guideline political corruption sentence headed to Third Circuit

As detailed hereand in other posts linked below, last summer brought lots of discussion and debate over the 55-month prison sentence imposed on Pennsylvania state lawmaker Vincent Fumo for his convictions on various corruption charges.  Because Fumo was convicted at trial of many charges involving lots of corruption, most commentary assailed his below-guideline sentence as too lenient.  And now, as these newspaper reports highlight, this high-profile federal sentencing debate is going to be heading to the Third Circuit:

Because Fumo is in his late 60s and because the Sentencing Commission has new proposed amendments that indicate that age now is a potentially relevant departure factor, this case may be extra interesting in its briefing and argument concerning reasonableness review.  That said, I suspect the government's appeal will stress what it views as procedural errors that it will say played a role in the sentence Fumo got from the district court.

Related prior posts on Fumo sentencing:

June 29, 2010 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (3) | TrackBack

"Civil, Criminal, or Mary Jane: Stigma, Legislative Labels, and the Civil Case at the Heart of Criminal Procedure"

The title of this post is the title of this new piece on SSRN by Professor W. David Ball. David always has interesting stuff to say about the Supreme Court's Apprendi jurisprudence, and the abstract to this article spotlights this fact:

In criminal cases, any fact which increases the maximum punishment must be found by a jury beyond a reasonable doubt.  This rule, which comes from Apprendi v. New Jersey, looks to what facts do, not what they are called; in Justice Scalia’s memorable turn of phrase, it applies whether the legislature has labeled operant facts “elements, enhancements, or Mary Jane.”  Civil statutes, however, can deprive an individual of her liberty on identical facts without needing to meet the beyond a reasonable doubt standard of proof.  If Apprendi is, indeed, functional, why is it limited to formally criminal cases?  Why does it not apply to all punishments, no matter whether they are called civil, criminal, or Mary Jane?

One often-proposed answer is that Apprendi derives its holding exclusively from the Sixth Amendment, and the Sixth Amendment applies only to “criminal prosecutions.”  Apprendi is not, however, just a Sixth Amendment case.  Its “beyond a reasonable doubt” requirement comes from due process -- specifically, from a formally civil case, In re Winship, which explicitly rejects the idea that civil labels can insulate a state from heightened procedural obligations.  Apprendi’s application cannot, therefore, be limited on formal grounds to criminal cases.  To determine the limits of its application, one must instead return to the interests that both Winship and Apprendi identify as worthy of protection: the imposition of stigma and the deprivation of liberty.

This Article examines the due process roots of the Apprendi line and proposes that stigma is the substantive concern that separates retribution from regulation, punishment from public safety.  Using sociology’s modified labeling theory, I provide a substantive definition of stigma and explore how a unified due process approach, with stigma at its heart, might provide a more meaningful way to separate punishment from risk management.  This approach would move judicial discourse away from empty, taxonomic arguments about legislative labels towards an examination of the effects laws have on the lives of those subjected to them, a conversation which would more accurately and comprehensively address the values and interests at the heart of the justice system.

June 29, 2010 in Blakely Commentary and News, Criminal Sentences Alternatives, Who Sentences | Permalink | Comments (3) | TrackBack

A few notable capital cert denials in yesterday's SCOTUS action

As detailed in these local stories from Missouri and Texas, there were a few noteworthy denials of cert by the Supreme Court in capital cases within the order list released yesterday: 

June 29, 2010 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

"The Case for Treating Drug Addicts in Prison"

The title of this post is the headline of this interesting new piece in Newsweek.  Here is an excerpt:

Of the 2.3 million inmates in the U.S., more than half have a history of substance abuse and addiction. Not all those inmates are imprisoned on drug-related charges (although drug arrests have been rising steadily since the early 1990s; there were 195,700 arrests in 2007). But in many cases, their crimes, such as burglary, have been committed in the service of feeding their addictions....

Over the last few years, some in the justice system have warmed to the idea of treating drug addicts in addition to (or instead of) incarcerating them.  In some states, most notably Ohio, almost all first-time drug offenders and many second-timers are offered treatment. That is by no means the case nationally. According to a report released last year by the National Institute on Drug Abuse, just one fifth of inmates get some form of treatment.  That number may be lower in the near future: tight budgets are forcing many states to cut back or close down their existing treatment programs.  Kansas and Pennsylvania have already done so; California and Texas may follow suit in the next few months.

The irony here is that by lowering recidivism, the programs themselves save money in the long run.  The NIDA report released last year cited a remarkable statistic: heroin addicts who received no treatment in jail were seven times as likely as treated inmates to become re-addicted, and three times as likely to end up in prison again.  For every dollar spent, the programs save $2 to $6 by reducing the costs of re-incarceration, according to Human Rights Watch.  Looked at another way, the programs can save the justice system about $47,000 per inmate.

So why would prisons target their own treatment programs in an effort to cut costs?  Part of the reason is that pharmacological treatment — such as giving heroin addicts methadone to help them through withdrawal — requires a lot of regulation, and thus it’s expensive in the short run.... [P]oliticians may oppose treatment (at least publicly), especially if they’re worried about being seen as soft on crime. And even if they support the idea, with state budgets under a crunch, treatment can start to look expendable.

June 29, 2010 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack

June 28, 2010

Puzzling through the doctrine and dicta of McDonald on the Second Amendment's limits

As regular readers know, I have always had a hard time squaring the Heller opinion's doctrinal embrace of an individual Second Amendment right to keep and bear arms for self-defense with its dicta suggesting that former felons can still be criminally punished (sometimes severely) for gun possession.  The Supreme Court's explanation today in its McDonald opinion as to why and how Heller now applies to the states continues to puzzle me concerning the linkage of Second Amendment doctrine and dicta.

As for doctrine, Justice Alito's chief opinion calls self-defense "a basic right" and explains that "in Heller, we held that individual self-defense is 'the central component' of the Second Amendment right. Slip op.at 19 (emphasis in original).  In addition, Justice Alito's opinion repeatedly describes Second Amendment rights as "fundamental," and it expressly rejects the Respondents' arguments that "in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause."  Slip op. at 33.  In short, individual gun rights are "fundamental," they help safeguard another "basic right,"  and they must not be treated as "second-class [and thus] subject to an entirely different body of rules than the other Bill of Rights guarantees." 

But can anyone think of any other "fundamental" right, which fosters another "basic" right and is a "Bill of Rights guarantee," that legislatures can categorically and forever prohibit former felons from exercising?  Consider the First Amendment: would it be constitutional to prohibit former felons from writing a newspaper op-ed or from attending a church after they have fully completed their lawfully imposed punishment?  Or consider the Fifth Amendment: would it be constitutional to prohibit former felons from receiving just compensation when their property is taken?   (Of course, allowing former felons to retain some Second Amendment rights could pose a threat to public safety, but Justice Alito rightly notes that many constitutional rights have "controversial public safety implications."  Slip op. at 35-36.)

And yet, toward the end of his opinion, Justice Alito in dicta "repeats [Heller's] assurances" that the Court's Second Amendment rulings do "not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons'."  Slip op. at 39-40.  But doesn't this dicta essentially connote that the Second Amendment really is going to exist as "a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees"?

Some older posts on the Heller and felon gun rights:

June 28, 2010 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (44) | TrackBack

The Pepper cert grant and post-sentencing rehabilitation as a sentencing factor

As noted in this earlier post, this morning the Supreme Court granted cert in Pepper v. United States (docket here), which will call for a review of this Eighth Circuit opinion.  Though I have not yet tracked down the cert petition in Pepper, a helpful reader sent me the opposition to cert from the Solicitor General's office, and here are the questions presented appearing in this cert op (which can be downloaded below):

1. Whether, at petitioner’s resentencing following the government’s appeal, the district court was required to apply the same percentage departure from the Guidelines range for substantial assistance that had been applied at petitioner’s initial sentencing.

2. Whether post-sentencing rehabilitation is an impermissible basis for varying downward at resentencing from the advisory Guidelines range under 18 U.S.C. 3553(a).

Download Pepper_Cert_Op

Interestingly, though the SG's cert op in Pepper says the Eighth Circuit got Question 1 right, the SG concedes that the Eighth Circuit got Question 2 wrong.  Here is what the SG (none other that now-SCOTUS-nominee Elena Kagan) says on this front:

No provision in Section 3553(a) prohibits a court from considering at resentencing a defendant’s efforts at rehabilitation undertaken after his initial sentencing. On the contrary, Section 3553(a) specifically instructs sentencing courts to consider “the history and characteristics of the defendant.” 18 U.S.C. 3553(a)(1).  That phrase encompasses a defendant’s rehabilitative efforts, whether they occur before or after his original sentencing. Consideration of a defendant’s rehabilitation after his original sentencing may also be relevant to “the need for the sentence imposed” on resentencing “to protect the public from further crimes of the defendant,” another Section 3553(a) factor.  18 U.S.C. 3553(a)(2).   Accordingly, the court of appeals erred in concluding that, under the advisory Guidelines regime, postsentencing rehabilitation is never a permissible factor to consider in varying downward under Section 3553(a) from the advisory Guidelines range.

The SG in the Pepper cert op goes on to suggest that a GVR rather than plenary review is all that is needed to correct the Eighth Circuit's error here.  But obviously, the Justices decided that it wanted to give Pepper plenary review.

June 28, 2010 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6) | TrackBack

"Nightmare of federal sentencing guidelines"

The title of this post is the headline of this new commentary by Bob Barr in the Atlanta Journal Constitution. Here are a few excerpts which highlight how Barr uses a recent high-profile white-collar sentencing to make his points about federal sentencing laws and practices:

Last week I was in Cedar Rapids, Iowa, where I attended a hearing in federal court at which a 50-year old man was sentenced to 27 years in federal prison –- in effect, a life sentence. The defendant, Sholom Rubashkin, is not a murderer, serial rapist or child molester; he is not a drug king pin and he did not bilk hundreds of innocent investors out of billions of dollars. Rubashkin is a first-time offender who was convicted late last year of a number of white-collar offenses stemming from his management of a large kosher slaughterhouse and meat packing plant. For this, he received what amounts to a life sentence.

While I did not represent Rubashkin at his trial, I will be assisting in the appeal of his case. Among the likely grounds for appeal are the 27-year sentence he received and the calculations by which the judge determined the length of that sentence. My purpose here has not to do with the case itself, but rather with how this one incident illustrates major flaws in how those who run afoul of any of more than 4,000 federal criminal laws, are sentenced. It ought to worry everyone....

What the average, non-lawyer citizen –- and perhaps even many lawyers who do not practice federal criminal law –- probably fails to realize, is that ... men and women found guilty of white collar crimes far less severe than a Bernie Madoff’s can be sentenced for crimes alleged by the government to have been committed, but for which they were found innocent or which were actually dropped by the government....

Most Americans understand that individuals cannot be forced to testify against themselves in criminal proceedings. What the public likely does not know, however, is that if a defendant elects to testify at his own trial and is subsequently convicted, the fact that he asserted his innocence can be used against him in order to increase his sentence.... In [addition], the government can manipulate or control the amount of a victim’s “loss” so as to permit a judge to then increase a defendant’s sentence.

These circumstances represent the tip of an iceberg that has long infected sentencing procedures in federal court; a system in which complex and, in many respects, arbitrary calculations of “sentencing guidelines” can result in punishments that are not only unfair but truly absurd. It is a system that cries out for reform.

Related posts on the Rubashkin case:

June 28, 2010 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Fourth Circuit opinion reverses sentence when district judge refused to consider acquitted drug conduct

A notable circuit sentencing opinion today from the Fourth Circuit in US v. Young, No. No. 08-4117 (4th Cir. June 28, 2010) (available here), provides a little twist on the usual circuit approval of sentencing consideration of acquitted conduct. Here is how the Young opinion starts and some key passages of its analysis:

Darnell Young was convicted of drug-related charges and received a within-Guidelines sentence of 136 months’ imprisonment. Young appeals his convictions and sentence, and the government cross-appeals the sentence imposed by the district court. We reject Young’s challenges, but we agree with the government that the district court erred when it concluded that the drug-quantity determinations made by the jury prevented the court from finding a different quantity at sentencing. Accordingly, we affirm Young’s convictions, vacate his sentence, and remand for resentencing....

By determining that the evidence presented at trial established that Young’s crimes involved between 500 grams but less than five kilograms of cocaine, the jury in this case effectively acquitted Young of involvement with the distribution of more than five kilograms.  The district court was free to consider, as it would with any other acquitted conduct, whether the government could establish a higher quantity under a preponderance of the evidence standard.

To the extent that Young suggests the government was estopped from establishing a higher drug quantity at sentencing because it elected not to present that evidence at trial, the argument is without merit. The government at sentencing properly sought to establish as relevant conduct the total quantity of drugs attributable to Young.  "Relevant conduct" under the Guidelines, of course, often includes a broader range of conduct than the conduct underlying the offense of conviction.  See, e.g., United States v. Newsome, 322 F.3d 328, 339 (4th Cir. 2003).  This is particularly so in drug cases, where relevant conduct is defined to include "all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2).

The government’s decision to limit the evidence it presented at trial necessarily affected the jury’s drug-quantity determination, but that trial decision did not tie the hands of the government, or the district court, at sentencing.  There is no requirement that the government present its relevant conduct evidence at trial, nor is the district court at sentencing bound by the evidence presented at trial when determining drug quantity or other relevant conduct.

June 28, 2010 in Booker in the Circuits, Drug Offense Sentencing, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

The likely state criminal litigation impact of McDonald and state applications of the Second Amendment

Even before having a chance to skim the Supreme Court's important McDonald ruling concerning the application of the Second Amendment to the states, I can already predict one of its likely (and most consequential?) impacts:  lots of state court litigation over state criminal laws concerning the possession and use of firearms. 

As regular readers of this blog know, the vast majority of persons who have sought to expand and extend the Supreme Court’s landmark Second Amendment ruling in Heller in the last two years have not been folks like Otis McDonald, the lead plaintiff in the case decided by the Supreme Court today.  Rather, the most common Second Amendment litigant has been a federal defendant charged with some form of gun possession crime. Though these litigants have not yet had much success when pressing claims that Heller precludes or impacts federal efforts to criminalize certain problematic uses and possession of firearms, they have forced lower federal courts to grapple with the reach and limits of Second Amendment rights in a variety of criminal justice settings. 

Now that the Supreme Court has clarified that the Second Amendment applies to the states, there are likely a significant number state criminal defendants who will now start urging state courts to decide that the Second Amendment should block some state prosecutions based on gun possession and use.  And the many divisions in the McDonald opinion probably ensures that lower courts will be divided when ruling on these issues.

June 28, 2010 in Second Amendment issues, Who Sentences | Permalink | Comments (5) | TrackBack

SCOTUS takes up long-running federal sentencing case from Eighth Circuit

It appears that among the cert grants from the Supreme Court this morning is Pepper v. United States (docket here), which will call for a review of this Eighth Circuit opinion.  This Pepper case appears to have gone up and down the federal judicial ladder on sentencing issues for years, and it looks like Pepper might be a variation on the important Gall case from the Eighth Circuit that SCOTUS reversed a few years ago.  I will have a lot more on this important federal sentencing cert grant once I have a chance to review the particulars.

UPDATE:  Because the Eighth Circuit's most recent Pepper decision implicates so many issues, it is hard to even know how significant the SCOTUS cert grant in this case could prove to be.  That said, the case seems likely to provide the newer Justices with their most direct opportunity to express views on modern post-Booker federal sentencing realities.

June 28, 2010 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4) | TrackBack

SCOTUS decides Second Amendment applies to the states in 5-4 opinion

Here is the early report from SCOTUSblog on the long-anticipated McDonald Second Amendment incorporation decision:

Alito announces McDonald v. Chicago: reversed and remanded. Gun rights prevail.

The opinion concludes that the 14th Amendment does incorporate the Second Amendment right recognized in Heller to keep and bear arms in self defense.

Stevens dissents for himself. Breyer dissents, joined by Ginsburg and Sotomayor.

Here is more from the SCOTUSblog folks:

The majority seems divided, presumably on the precise standard.

The majority Justices do not support all parts of the Alito opinion, but all five agree that the 2d Amendment applies to state and local government.

Alito, in the part of the opinion joined by three Justices, concludes that the 2d Amendment is incorporated through the Due Process Clause. 

Thomas thinks the Amendment is incorporated, but not under Due Process. He appears to base incorporation on Privileges or Immunities.

The full opinion, which runs a full 214 pages, is available here.

June 28, 2010 in Second Amendment issues, Who Sentences | Permalink | Comments (1) | TrackBack

June 27, 2010

Conceiving compelling criminal justice questions for the Kagan confirmation hearings

It is always possible that some folks involved in the Kagan confirmation hearing might sometime check out this blog, and it is certainly likely these folks have not given too much time or attention to criminal justice issues because Elena Kagan's record is so spartan on crime and punishment matters.  For these reasons (and others), I hope readers might use this post as a forum for proposing compelling criminal justice questions for the Senators on the Judiciary Committee to ask during the Kagan confirmation hearings. 

Here are a half-dozen of the hundreds of criminal justice questions I would love to see asked of Kagan in light of some of the Supreme Court's recent criminal justice jurisprudence and her recent work as Solicitor General:

1.  Do you think the Supreme Court could and should take and decide more cases on the merits, and do you think it would be especially appropriate to take up more criminal justice issues?

2.   Do you think it is useful and appropriate for the Court to decide a significant number of criminal justice cases through summary disposition without full briefing and argument (as the Roberts Court has tended to do in recent terms)?

3.   Do you think criminal justice administration should be primarily the responsibility of the states and/or do you have concerns about the ever-growing size of the federal criminal justice system?

4.  What are your current views of the pros and cons of the modern exclusionary rule?

5.  What are your current views of the pros and cons of the modern death penalty?

6.   What are your current views of the pros and cons of the advisory federal sentencing system created by the Supreme Court through its Booker ruling?

I am sure these questions could be refined, and I am sure there are lots of others worth asking Kagan.  As we all gear up for the hearing, I hope readers might share their thoughts about good questions.

June 27, 2010 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

"Juvenile Life Without Parole (JLWOP): An Antidote to Congress’s One-Way Criminal Law Ratchet?"

The title of this post is the title of this forthcoming article by Scott Hechinger, which appears to be among the first major pieces of scholarship seeking to take stock of the LWOP landscape in the wake of the Supreme Court's Graham decision. As the abstract reveals, the piece also has some interesting things to say about how Congress deals with sentencing issues:

Despite Justice Kennedy’s implicit approval of life-without-parole sentences for crimes committed before the age of 18 (“JLWOP”) in Roper v. Simmons, the issue of JLWOP has since generated a wave of attention and advocacy from scholars, bloggers, and journalists, human rights organizations, state legislatures, and international bodies, victims and children’s rights groups, and federal and state courts.  Symbolic of, and perhaps in reaction to, the increased momentum of the JLWOP debate post-Roper, the Supreme Court granted review of the constitutionally of JLWOP for non-homicides in Sullivan v. Florida and Graham v. Floridawith the court ultimately barring JLWOP for non-homicide crimes in Graham. However, nearly 93% (over 2300) of the JWLOPers are incarcerated for homicide and their sentences remain unaffected.

In the post GrahamJLWOP legal landscape, the critical question now is: what next? This article will seek to provide an answer.

Given Congress’s virtually non-existent history of “leniency legislation,” it is not at all surprising that scant advocacy and scholarly attention has focused on the potential for Congressional action on the issue of JLWOP.  Those familiar with federal criminal legislation have serious cause to doubt federal intervention in this field. This article, however, will argue there are significant reasons to believe JLWOP can and very well might be the issue to buck the timeless “one-way ratchet” of federal criminal law legislation.

Congress has already moved on the issue of JLWOP.  The Juvenile Justice Accountability and Improvement Act (“JJAIA”) — introduced in the House of Representatives in 2007 and again in 2009 — proposes to use Congress's spending power to condition federal funds allocated for crime control on states allowing for meaningful parole or supervised release opportunities for individuals convicted of crimes committed before the age of eighteen.  While the legislation has yielded two substantively rich hearings, and some advocacy attention, neither bill has made it out of committee, though the sponsors plan to reintroduce it and continue to do so until it is passed.

The quicksand in which the JJAIA is currently mired is rooted in the same, considerable obstacles facing any Congressional attempt at leniency legislation.  First, there is an entrenched political process bias against leniency legislation in Congress grounded in the fear of appearing “soft on crime,” the perception — both real and perceived — that public opinion opposes leniency, and the existence of vast inequalities in interest group power. Second, whether for political cover or out of legitimate Constitutional concern, federalism costs associated with federal intrusion into the state’s traditional control over crime and punishment disincentivize Congressional action.

This article will use the JJAIA and the issue of JLWOP to evaluate and respond to these classic obstacles to federal leniency legislation.  I will argue first, that the political process bias that has doomed leniency legislation in the past is actually far weaker in the context of JLWOP.  Second, I will ultimately conclude that the passage of the JJAIA is both necessary and proper and Congress’s federalism concerns are overstated in the context of JLWOP.

Whether or not Congress will actually act to pass the JJAIA is not a question I can possibly answer nor one on which I will focus.  Assuming the status quo of Congressional reluctance and advocate skepticism, Congress will probably not pass this legislation, at least not in the near future. This paper will also not advocate for the abolition of JLWOP.  The goal of this paper is far more modest.  The aim is to highlight for criminal justice reformists the potential for Congress to pass smart criminal law legislation and to illustrate to Congressmen and women that ending JLWOP will neither be political suicide nor sound the death knell of federalism, as we know it.

June 27, 2010 in Assessing Graham and its aftermath, Scope of Imprisonment, Who Sentences | Permalink | Comments (11) | TrackBack