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July 10, 2010

"Status as Punishment: A Critical Guide to Padilla v. Kentucky"

Thie title of this post is the title of this new piece by Gabriel Chin and Margaret Colgate Love now available via SSRN. Here is the abstract:

There are only a handful of Supreme Court decisions in the past 50 years that can be said to have transformed the operation of the criminal justice system.  Padilla v. Kentucky may be such a case.  In Padilla, the Court ruled that criminal defense lawyers must advise their non-citizen clients considering a guilty plea that they are likely to be deported as a result. It is the first time the Court extended the Sixth Amendment right to counsel to a consequence of conviction that is not part of the court-imposed punishment.  The decision represents an important first step toward imposing constitutional discipline on the plea bargaining process.  As a practical matter, the decision will affect how all participants in a criminal case conduct themselves, not just defense counsel.

Padilla offers important protections for non-citizens who are in the criminal justice system.  But it has broader implications. In requiring consideration of indirect as well as direct consequences of conviction in connection with bargaining over the appropriate penalty, the decision implicates the concept of truth in sentencing itself.  Yet it is less surprising that the Court should extend the right to counsel to collateral consequences at the plea stage, than that it took so long to do so.  This essay places Padilla in the larger framework of modern criminal justice to understand its justifications and implications in policy terms.  It argues that the logic of the Padilla decision is not confined to deportation but extends to other severe and certain collateral consequences of conviction.  It reviews the reasons given for treating collateral consequences differently from other important consequences of conviction, and concludes that there is no principled basis for that distinction. Imposing collateral consequences has become an increasingly important function of the criminal justice system, so that they have to all intents and purposes become part and parcel of the criminal case.  Accordingly, an expanded duty of counsel represents sound public policy, based on considerations of safety and efficiency, judicial integrity, and fairness to individuals.  Finally, the essay describes efforts underway by the ABA and the Uniform Law Commission to make it possible for criminal defense attorneys to offer adequate advice about collateral consequences without unreasonable expense or delay.

July 10, 2010 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (6) | TrackBack

July 9, 2010

RAND study (foolishly?) tries to forecast impact of pot legalization in California

4W8RAND.xlgraphic.prod_affiliate.4 As detailed in this local newspaper article and this official press release, the RAND Corporation has produced this new study that examines many issues raised by proposals to legalize marijuana in California.  Here are the basics:

Legalizing pot may drop the price of a marijuana cigarette to as little as $1.50 in California, but taxing weed may create a whole new black market, according to a new RAND Corp. study.

The six-month study, released Wednesday by the renowned Santa Monica-based think tank, provides fuel for both sides of the debate over whether California should legalize marijuana for recreational use.

The study said legalizing marijuana in California would drop the price of pot by more than 80 percent and increase consumption. It also said California could generate annual tax revenues either far higher or much lower than a much-publicized $1.4 billion tax estimate by the state Board of Equalization last year.

For example, California tax revenues could swing upward if legalization leads to a surge of Amsterdam-style pot tourism or even lures out-of-state drug traffickers wanting to buy cheap California weed to resell elsewhere.

"It may depend on whether dealers outside of California can access marijuana in California and bring it back to their states," said Jonathan Caulkins, a Carnegie Mellon University researcher and co-director of RAND's Drug Policy Research Center. Potential tax revenues may be lower if an illicit, secondary market develops from people trafficking cheaper, non-taxed marijuana.

"One could hypothesize that people would be willing to pay that tax (on pot) because it would be a lot cheaper to what they're paying in an illegal market," said Rosalie Liccardo Pacula, a senior economist for the RAND Corp. "But there is room for a black market to emerge."

The study didn't take a position on either the November ballot initiative – Proposition 19 – to legalize recreational marijuana use or proposed separate state legislation to impose a $50-per-ounce pot tax.

Backers of the marijuana initiative said they were in accord with many of the study's findings. "This is what we've been saying all along: Legalization will lead to lower prices and some additional consumption," said Dale Gieringer, California director of the marijuana legalization group the National Organization for Reform of Marijuana Laws. "But the economic impact depends crucially on how you implement the taxation and regulations."...

"The RAND findings highlight the considerable uncertainty surrounding Proposition 19," said Roger Salazar, spokesman for Public Safety First, the campaign committee for initiative opponents. "This is a free-for-all. Tax revenues could go in all directions. And we could get sued by the federal government."

I am extremely pleased that the RAND folks are making a serious effort to assess and predict the potential impact of the pot legalization initiative in California.  And yet, as my post title is meant to hint, I think the impact of the passage of that initiative is quite unpredictable because there are so many institutional forces that can and will react in so many unpredictable ways. 

For instance, the federal government likely could (and perhaps would) bring litigation to try to prevent the implementation of the initiative (just as it has now brought suit to prevent Arizona from moving forward with its new immigration law).  Such a suit would directly alter and greatly complicate the impact and import of the legalization initiative.  Similarly, the California state legislature and/or its executive branch and/or public policy groups could seek to block the initiatives implementation in various (largely unpredictable) ways.  And so on.

In short, though I am sure passage of the California pot initiative would be a very big deal, I also think its short and long term practical impact is almost impossible to confidently predict right now.

Some related posts on pot policy and politics:

July 9, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1) | TrackBack

Some white-collar reasonableness review headlines

Some notable stories of notable white-collar federal sentences being appealed are making headlines these days:

UPDATE:  The government's full brief to the Third Circuit in the Fumo case, which runs 250+ pages(!), is available at this link.  I wonder how much of our federal tax dollars got spent on this brief, which is devoted to trying to make sure an elderly crooked politician has to spend a little more time in federal prison.

July 9, 2010 in Sentences Reconsidered, White-collar sentencing | Permalink | Comments (3) | TrackBack

July 8, 2010

Pleas deals by Roosskie agents leading to spy swap

Images The "sentencing" news from New York City in this high-profile russian agents case has me fondly recalling some of the classic quotes from my all-time favorite movie, especially Major Kong's expression of excitement about going "toe to toe with the Roosskies."  Here is the news from NYC federal court:

Ten Russian spy suspects pleaded guilty Thursday in federal court in New York and were promptly ordered deported to Russia as part of a deal under which U.S. officials said Moscow would release four prisoners accused of spying for the West.

Each of the 10 admitted acting secretly as an agent for Russia in violation of U.S. law requiring foreign agents to register with the government. U.S. District Judge Kimba M. Wood then sentenced each of them to time served since their June 27 arrests and ordered their deportation.  Documents submitted in federal court in Manhattan said Russia has agreed to release four prisoners incarcerated there "for alleged contact with Western intelligence agencies."

The four were not immediately named, but reports from Moscow Wednesday indicated that the government was preparing to release Igor Sutyagin, a prominent Russian scientist who has been imprisoned for 11 years on espionage charges he has steadfastly denied.  Three of the Russian prisoners were convicted of spying and are serving lengthy prison terms, the court documents said.

All have served at least "a number of years" in prison, and several are in poor health, according to the documents.  The Russian government has agreed to release them and their families for "resettlement," the documents said.... The deal represents the largest swap of espionage detainees since the Cold War.

Intriguingly, not everyone thinks this deal is ideal:

Stephen Sestanovich, a former National Security Council official and expert on Russia, questioned what he called the Obama administration's "catch and release" policy and whether the government obtained all the information it could from the accused spies.

"The Russians made their point about Sutyagin, keeping him in jail for 11 years," Sestanovich said. "What point do we make by keeping these guys in detention for 10 days?" He also said he wondered whether U.S. law-enforcement authorities are "happy with the idea of an early release."

Assistant U.S. Attorney Michael Farbiarz said at the start of Thursday's hearing that the 10 defendants wanted to enter guilty pleas.... A U.S. official confirmed Wednesday that talks between the two governments on a swap began last week shortly after the June 27 arrest of the suspects. The diplomatic discussions depended on lawyers reaching a plea arrangement in federal court in New York.

July 8, 2010 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (1) | TrackBack

Thanks, (slow) readers, for helping to make this blog among the very "stickiest"!

To understand what the post title means, check out this post and the law prof blog rankings from Paul Caron at TaxProf Blog.  And I am really grateful for all my readers (whether they read slow or fast), and also for all the commentors and those who send me materials to ensure I continue to enjoy very much being "stuck" with this blog.

July 8, 2010 in On blogging | Permalink | Comments (8) | TrackBack

Kudos to Professor Erik Luna for being cited by Lindsay Lohan in her Twitter rant about her jail sentence

I thought that I had reached a sentencing pop-culture zenith a few years ago when, as detailed here, ESPN's Mike & Mike made fun of me on their ESPN morning radio show.  But my good friend and colleague Professor Erik Luna has now clearly topped me; as detailed in this CBS News report, he got cited by Lindsay Lohan in a Twitter rant about her recent sentencing:

Lindsay Lohan is making it clear to the world that she thinks her 90-day jail sentence was an unjust ruling. In a series of posts on her Twitter account, the troubled Hollywood starlet protested her innocence while also expressing her frustration towards the "constitutionally perverted" justice system.

"It is clearly stated in Article 5 of the UN Universal Declaration of Human Rights that ... 'No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,'" she first wrote yesterday.

Moments later she tweeted a quote from a 2002 article by legal scholar Erik Luna: "'November 1 marked the 15th anniversary of the U.S. Sentencing Guidelines.  But there were no ... celebrations, parades, or other festivities in honor of this punishment scheme created by Congress and the US Sentencing Commission....'"

"'Instead, the day passed like most others during the last 15 years: Scores of federal defendants sentenced under a constitutionally perverted' ... system that saps moral judgment through its mechanical rules.'"...

Lohan received a 90-day jail sentence Tuesday after a Beverly Hills judge ruled she violated probation over a three-year-old drug case.

You just got to love when an (in)famous defendant starts citing international law and criticisms of federal sentencing law to complain about the state sentence she has received from a local judge.  Despite that technical concern about the subsatnce of Lindsay Lohan's Twitter rant, it is truly heartening to learn that troubled hollywood starlets still take time to read legal scholarship, even though it seems most judges and practicing lawyers have given up on the stuff.

Related recent Lohan sentencing posts:

July 8, 2010 in Celebrity sentencings | Permalink | Comments (15) | TrackBack

Judge Bright makes pitch for sentencing councils to deal with post-Booker disparities

A number of helpful readers have alerted me to the intriguing little concurrence penned by Judge Bright in US v. Ayala, No. 09-2123 (8th Cir. July 8, 2010) (available here).  Here are snippets from an interesting read:

Sentencing discretion should not become the justification for federal courts’ acceptance of disparity between similarly situated defendants. Disparity erodes public confidence in the fair administration of our criminal justice system....

If we can agree with Justice Jackson that disparity based on the identity of the sentencing judge has pernicious effects, how, in this age of discretion, can the federal judiciary address sentencing disparity? I suggest that federal sentencing judges, particularly those in multi-judge districts, examine and institute sentencing councils similar to those that existed before the guidelines....

Although sentencing councils did not eliminate sentencing disparity, they did reduce disparity. Importantly, councils provided a means for sentencing judges to receive valuable feedback on the type of sentence being contemplated.

Although needing substantial revision, the advisory guidelines may be helpful in reducing improper disparity. However, a guideline sentence often may not be appropriate and a judge should consider and analyze the statutory factors, see 18 U.S.C. § 3553(a), to arrive at a fair and reasonable result. Sentencing councils would assist federal judges in fashioning sentences in accordance with section 3553(a) and alert judges to situations where their personal viewpoints may result in a disparate sentence.

Moreover, because of our nation’s technological advances, today’s councils could include the viewpoints of judges from various geographical areas.  The recommendations of councils might be shared easily among the federal judiciary.

The judiciary’s work is not finished so long as sentencing in federal courts is affected by the fortuitous vel non circumstances described by Justice Jackson. Judges in the federal district courts as well as federal appellate judges need to address and reduce disparity in sentencing similar criminal offenders.  Otherwise, a sentence may largely reflect the ideology or viewpoint of the sentencing judge rather than the nature of the crime and history and characteristics of the offender.

July 8, 2010 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

"McDonald Signals The End Of Oregon’s Non-Unanimous Jury Rule"

The title of this post is the headline from this entry by Steve Sady at the Ninth Circuit Blog.  This post thoroughly and effectively walks through why and how the full incorporation holding in the McDonald Second Amendment case could and should eventually bring the demise of a less rigorous approach to the Sixth Amendment jury trial right in the states.  Here is how Sady's post starts:

The Supreme Court’s opinion in McDonald, which extended the federal Second Amendment protections in identical form to the States, should finally bring an end to Oregon’s deviant non-unanimous jury rule.  Assistant Federal Public Defender Renée Manes has been campaigning against the injustice of non-unanimous juries in what is probably the least friendly forum for such challenges: federal habeas corpus under the extremely restrictive standards of the Antiterrorism and Effective Death Penalty Act of 1996.  Now, McDonald gives us a new road map for state and federal court litigation.

July 8, 2010 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4) | TrackBack

Phony lawyer Howard Kieffer facing an upward departure in his federal sentencing

Persons who follow the federal sentencing system have long known the name Howard Kieffer, and this local story suggests he may now break new legal ground in the role of convicted defendant instead of in his previous (fraudulent) role as a lawyer.  The story is headlined "Judge plans to get tough in sentencing fake attorney," and here are excerpts:

U.S. District Judge Christine Arguello told fake attorney Howard O. Kieffer on Wednesday that, given his 30-year criminal history, she intends to send him to prison for longer than is recommended by sentencing guidelines.

Kieffer, 54, was convicted in April of wire fraud, making false statements and contempt of court. The con man pretended to be a licensed criminal attorney and represented an Aspen woman during a trial in Denver's federal court.

Gwen Bergman was accused of trying to hire a hit man to kill her son's father, and her family hired Kieffer for nearly $70,000. A check of federal records found Kieffer represented at least 16 clients in 10 different federal jurisdictions since 2004. He was caught in 2008.

"The roots of your scheme and your conduct throughout the years has been nothing but deception," Arguello said. "You used your knowledge of the court system to take advantage of the system, those families and the courts."

Arguello read from a long list of Kieffer's crimes, dating to 1976, when he was 20 years old and in possession of 20 pieces of stolen mail containing about $20,000 in checks....

Arguello said she doesn't believe the federal sentencing guidelines are sufficient in Kieffer's case.

The guidelines suggest Kieffer spend 60 months in prison at the same time as an 51-month prison sentence he is serving for the same criminal conduct out of North Dakota. Arguello intends to sentence Kieffer to prison time consecutive to the time he is already serving.

The judge asked Kieffer's attorney, Nathan Chambers, and Assistant U.S. Attorney Stewart Walz to submit briefs of their position on her intentions for a tougher prison term.

July 8, 2010 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (12) | TrackBack

July 7, 2010

Second Amendment lawsuit already filed against new Chicago gun regulations

As detailed in this brief report, a lawsuit has already been brought challenging the new gun regulations that were adopted in Chicago last week. Here are the basics:

As trader on the Chicago Mercantile Exchange who owns a farm is among a handful of people suing the city of Chicago and Mayor Richard Daley, claiming the new gun control ordinance infringes on their constitutional rights.

Chicago aldermen passed the ordinance last week, just four days after the U.S. Supreme Court struck down Chicago's longtime handgun ban on June 28.  The suit, filed Tuesday, asks the U.S. District Court to declare the ordinance "null and void" and prohibit the city from enforcing it.

The ordinance requires anyone who wants to keep a handgun at home to obtain a Chicago firearm permit, take firearms training and have no convictions for a violent crime, unlawful use of a firearm or two or more charges of driving under the influence of drugs or alcohol. Each weapon must be registered, and owners can only register one weapon each month, according to the ordinance.

The National Rifle Association immediately threw its support behind the lawsuit.  And the Illinois Association of Firearms Retailers is among those named as a plaintiff in the suit.

Thanks to David Kopel via The Volokh Conspiracy, I see that the complaint in this suit is available at this link.

Some old and new related posts on state litigation and McDonald

July 7, 2010 in Second Amendment issues, Weblogs, Who Sentences | Permalink | Comments (0) | TrackBack

"Can Genes And Brain Abnormalities Create Killers?"

The question in the title of this post is the headline of this NPR feature on Talk of the Nation which reviews some of the latest research and debate over brain science and criminal justice.  Here is how the lengthy segment is set up by the NPR folks:

Breakthroughs in neuroscience are changing the way criminals are defended in court.  Scientific research on brain scans and DNA has provided new insight on how some kinds of criminals are different from law-abiding citizens.  Differences in their brains and genes may predispose them to violence.

July 7, 2010 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

Eighth Circuit quickly rejects effort to extend Graham to juve priors

In US v. Scott, No. 09-2577 (8th Cir. July 6, 2010) (available here), an Eighth Circuit panel makes quick work of a defendant's claim that his life sentence for drug offenses violated the Eighth Amendment rights because the sentence was based in part on two prior drug felonies committed when he was under 18.  Here is the heart of the defendant's claim and the panel's rejection of it:

Scott argues that the Eighth Amendment prohibits enhancing his sentence based on his previous felony drug convictions because he was a juvenile when he committed those crimes. We note that while Scott committed his prior felony drug offenses as a juvenile, he was charged and convicted of both crimes as an adult.  Nonetheless, we have upheld the use of juvenile court adjudications to enhance subsequent sentences for adult convictions.  See United States v. Smalley, 294 F.3d 1030, 1032-33 (8th Cir. 2002).  Given the holding in Smalley that juvenile court adjudications may be used for enhancement purposes, we see no reason that convictions for crimes committed by juveniles who are convicted as adults cannot be similarly used.

The U.S. Supreme Court cases that Scott cites, Roper and Graham, do not change this result. These decisions established constitutional limits on certain sentences for offenses committed by juveniles.  However, Scott was twenty-five years old at the time he committed the conspiracy offense in this case.  Neither Roper nor Graham involved the use of prior offenses committed as a juvenile to enhance an adult conviction, as here.  The Roper decision addressed the constitutionality of imposing the death penalty for a murder committed by a juvenile and does not call into question our decision in SmalleySee United States v. Kirkland, 450 F.3d 804, 805 (8th Cir. 2006) (applying Smalley after Roper). Similarly, the Court’s analysis in Graham was limited to defendants sentenced to life in prison without parole for crimes committed as juveniles.  The Court in Graham did not call into question the constitutionality of using prior convictions, juvenile or otherwise, to enhance the sentence of a convicted adult. Therefore, we affirm the constitutionality of Scott’s life sentence under 21 U.S.C. § 841(b)(1)(A).

I think a lot more could and probably should be said about what Grahamcould and should mean for juve priors as the basis of severe sentence enhancements, but I am not at all surprised that the Eighth Circuit was inclined to give an effort to extend Graham short shrift.

July 7, 2010 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

"Black 'entitled’ to immediate bail, court filing says"

The title of this post is the headline of this article from a Canadian paper which provides the latest legal development following Conrad Black's victory in the Supreme Court in the apeeal of his fraud convictions.  Here are the details:

Conrad Black says he is “entitled” to be released on bail from a Florida prison pending his appeal because most of his fraud convictions have been thrown into question by the U.S. Supreme Court and, thus, his time behind bars could outdistance his ultimate sentence.

In a 19-page filing with the U.S. Court of Appeals for the Seventh Circuit, Lord Black argued yesterday that the circumstances surrounding his bail request have changed dramatically since the first time he applied — and was denied — in 2007, a few months after a Chicago jury convicted him.

“At nearly 66 years of age, he has a particularly strong interest in bringing finality to these proceedings,” his lawyer, Miguel Estrada, argues in the legal brief. The Washington-based lawyer added that any “additional time he spends in prison between now and a favourable ruling can never be returned to him.”

Last month, the U.S. Supreme Court unanimously set aside Lord Black’s three honest services fraud convictions because the controversial statute is limited to bribe or kickback schemes, which were not at issue in his criminal case....

“The Supreme Court’s rejection of the government’s fraud theory goes to the heart of the most hotly contested issues at Mr. Black’s trial – whether there was a scheme to defraud and whether Mr. Black ‘corruptly’ intended to obstruct the investigation of this non-crime..."

Lord Black was convicted on one count of obstruction of justice for removing 13 boxes from Hollinger Inc.’s Toronto head office, six days before he was due to be evicted by the company’s new management....

Even if the obstruction conviction remains, his lawyer argued, the amount of time Lord Black will likely be sentenced to serve under federal sentencing guidelines is shorter than the time he has already spent at the Coleman Federal Correctional Complex, which he entered in March, 2008.

“With good-time credit, Mr. Black has already served 32 months of his 78-month sentence. If the obstruction count alone remains in place ... the range would drop to 15-21 months,” Mr. Estrada said in the bail application.

July 7, 2010 in Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (3) | TrackBack

Lindsay Lohan provides yet another opportunity to debate the (un)real aspects of celebrity sentencing justice

As detailed in this piece from the always hard-hitting US Magazine, which is headlined "Lindsay Lohan Likely Won't Serve 90 Days," a former child star and current celebrity train wreck is putting another spotlight on how wayward celebrities get treated by criminal justice systems. Here are the basics:

She may have been ordered to serve 90 days in the slammer, but Lindsay Lohan probably won't stay behind bars for that long.

Steve Whitmore, a spokesperson for the Los Angeles Sheriff's Department, tells Access Hollywood that generally non-violent females, such as the 24-year-old actress, are eligible to serve just 25 percent of their sentence. In Lohan's case, that would wind up at around 22 days. The reason: Severe jail overcrowding. However, it remains unclear whether the judge will forbid an early release.

Three years ago, the actress served just 84 minutes of a 24-hour sentence at the women's Century Regional Detention Facility in Lynwood, Calif. She will likely report to the same facility July 20 when she is required to surrender.

And don't expect Lohan to get heckled by other inmates, either: She'll probably be held in seclusion, away from the general population, for her safety.

That's what happened to Paris Hilton in 2007. She was sentenced to 45 days in jail for violating the terms of her probation by repeatedly driving with a suspended license. She ended up serving 23 days.

July 7, 2010 in Celebrity sentencings | Permalink | Comments (13) | TrackBack

July 6, 2010

Another timely NASC conference this August in Alabama

I am pleased to highlight on this blog the National Association of Sentencing Commissions annual conference, which this year is being held in Point Clear, Alabama on August 8-10, 2010. This year's conference is titled "Sound Sentencing Policy: Balancing Justice and Dollars," and this year's agenda reveals how timely, thoughtful and forward-looking the program is for today's sentencing times . One of the conference organizers sent me an e-mail with this additional information about this year's event:

We are seeking to target a broader audience for the conference, and we hope many of your readers may be interested in attending.  The conference will offer plenaries, workshops and roundtable discussions on issues relating to sentencing practices and the hurdles criminal justice officials must overcome during these times of shrinking budgets and scarce resources, as well as innovative ways that states have faced these challenges.

Welcoming the conference attendees will be Alabama’s Chief Justice Sue Bell Cobb, Federal Circuit Judge, Bill Pryor, former Attorney General of Alabama and leader in establishing Alabama’s Sentencing Commission, and Commission Chair, Retired Circuit Judge Joe Colquitt, Beasley Professor of Law, University of Alabama School of Law.

A lot more information on the conference is available on the conference website at this link.

July 6, 2010 in Who Sentences | Permalink | Comments (1) | TrackBack

Considering alternative sentencing infrastructure in Colorado county

This interesting local article from Colorado, which is headlined "Commissioners look at alternative sentence building: Facility could ease jail pressures," provides an encouraging report showing that some communities are investing in more facilities providing alternatives to prison rather than just investing in prisons. Here are details:

Paying $10 million to boost alternative sentencing programs in the next couple of years could save Larimer County taxpayers tens of millions of dollars more down the road, officials say.

The county commissioners are considering a proposal to build a new facility near the detention center on Midpoint Drive in Fort Collins to house programs designed to keep people out of the jail while allowing them to pay their debt to society....

A new facility for the alternative sentencing department would also take pressure off the jail, which consistently houses more inmates than its funding can support, and delay the need for a costly expansion, officials say. Building a 500-bed jail would cost $70 million or $80 million.

Keeping one inmate in jail costs $125 per day, officials say. Alternative sentencing programs cost about $35 a day, with some of the cost offset by fees paid by clients to be part of the program.

A recent survey of county residents showed support for criminal justice programs that offer alternatives to jail time, Commissioner Steve Johnson said during a recent study session on the proposed facility.

Johnson said the jail and its funding is the biggest issue facing the county. "Doing nothing is not an option,” he said. “I think this is definitely the most responsible way to address the problem and still meet our responsibility to provide safety and justice in our community,” he said.

The current alternative sentencing building, a one-story structure next to the jail, was built in 1992. Because of overcrowding, conditions at the facility are “abysmal,” said Gary Darling, director of criminal justice services with the county.... Over the years, the space has been reconfigured to accommodate the growing programs. The building now has 112 work-release beds crammed into space that was meant for 32. Offices have been moved into closets and areas that once were parts of restrooms, Darling said....

Sheriff Jim Alderden told commissioners he would prefer to have them build a 500-bed jail so the department could do its duty and “lock up the bad guys.” But Alderden said he understands the county’s financial issues.

“Looking at what’s right for the community and what’s the fiscally responsible thing to do, this is the logical proposal,” he said. “You expand alternative sentencing, divert as much pressure off the jail as you can, address the programs that hopefully have an impact on the recidivism rate. “If you can stall the expansion of the jail, I think it is the fiscally responsible way to go.”

July 6, 2010 in Criminal Sentences Alternatives, Scope of Imprisonment, Who Sentences | Permalink | Comments (3) | TrackBack

Issue spotting the legal questions in the Troy Davis case

This new AP article, which is headlined "Troy Davis case full of murky legal questions," provides a basic overview of challenging issues that a high-profile capital case continues to generate. Here is a snippet:

Thanks to an order from the U.S. Supreme Court, a Georgia death row inmate was granted a hearing to prove his innocence to a federal judge — a chance afforded no American facing execution in nearly half a century.

Now that the court hearing is over, what happens next isn't so clear. The case of condemned inmate Troy Anthony Davis is so unusual, legal experts can't even agree on what the judge can do.

Davis' fate rests with a U.S. District Court judge who heard testimony in June from witnesses who say they lied at Davis' trial. Others say they heard another man confess to the 1989 slaying of Savannah police officer Mark MacPhail. Judge William T. Moore Jr. won't rule until after he reviews legal briefs from both sides due Wednesday.

Some experts say the judge could order a new trial.  Others say the judge could make a recommendation to the Supreme Court that Davis be freed from prison. There's also a possibility the judge could find Davis innocent, yet rule he's powerless to spare Davis' life.

"There is some ambiguity," said John H. Blume, a Cornell Law School professor who specializes in death penalty appeals. "Whenever you've got something this new, that hasn't happened all these years, you're really making your best guess."

In death penalty cases, federal courts normally consider only violations of due process and constitutional rights. When a divided Supreme Court granted Davis a hearing to prove his innocence last August, dissenting Justice Antonin Scalia called it "an extraordinary step — one not taken in nearly 50 years."...

If the judge rules against Davis and the Supreme Court upholds his decision, it's likely the end of his case — though Davis could make another appeal for clemency to the Georgia Board of Pardons and Paroles. If Davis succeeds in proving his innocence, things get murkier.

Michael Mears, a John Marshall Law School professor who's defended numerous capital cases in Georgia, suspects Davis may be granted a new trial.  That's what Davis' lawyers were seeking in 2007 when his latest round of appeals started.

But Stephen Bright, a Yale Law School lecturer and veteran death penalty attorney, argues a favorable ruling for Davis would likely result in the Supreme Court ordering Georgia authorities to free Davis. A second trial, he says, would amount to double jeopardy. "We're in totally uncharted waters," Bright said. "There would be arguments all over the ballpark on it."...

Complicating things further, the legal issues before the judge don't stop with Davis' innocence or guilt. The judge has asked lawyers to weigh in by Wednesday on two broader issues that could restrict his authority.

The judge's first question: Is he prohibited from helping Davis, even if he's innocent, by a 1996 law passed by Congress after the Oklahoma City bombing that limits death penalty appeals?  Scalia argued in his dissent that the Anti-Terrorism and Effective Death Penalty Act means federal courts are powerless to overrule Georgia courts that already rejected Davis' innocence claim.

The other legal question before the judge sounds like a no-brainer, but it's a constitutional issue the Supreme Court hasn't settled. Appeals courts found that Davis received a fair trial.  If he later proves he's innocent, would it be cruel and unusual punishment to execute him?  Or would putting him to death still be constitutional because Davis received a fair trial?

"It's the kind of claim you almost have to be a lawyer to make it sound even plausible," said Robert Schapiro, a professor of constitutional law at Emory Law School. "But the Supreme Court has never held that it violates the Eighth Amendment to execute someone who is actually innocent."  Still, legal experts say they doubt the Supreme Court would have ordered a hearing for Davis if it thought the federal courts were powerless to take action.

The judge hasn't laid out what options he's considering in Davis' case, and hasn't given himself a deadline to rule. The Supreme Court has recessed until October, so the wait could be weeks if not months.

July 6, 2010 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (8) | TrackBack

July 5, 2010

Is the increase in SCOTUS summary dispositions a positive development?

This piece from Tony Mauro via law.com, which is headlined "Summary rulings spike at the high court," reviews the affinity of the Roberts' Court for summary decisions.  Here are excerpts:

The Court seems to be putting more and more energy into a different kind of widget: namely, summary decisions in cases that have not been argued or fully briefed.  It's a trend may alter Supreme Court practice.

The Court issued 12 summary, unsigned rulings this term, more than any term in at least a decade, according to a study by Texas Solicitor General James Ho, a former clerk to Justice Clarence Thomas and a close student of the Court.

The uptick in these rulings began when Chief Justice John Roberts Jr. became chief justice in 2005, and could represent a quiet and relatively painless effort to bulk up the docket without lengthy and expensive briefing and argument.  "It's been suggested, including by some of the justices themselves, that the Court might decide more cases," said Ho. "Perhaps this is the Court's way of fulfilling that vision in a cost-effective way."

Roberts has spoken about summary dispositions positively as a method of "error correction," said Mayer Brown partner Stephen Shapiro, co-author of Supreme Court Practice, the leading guide for Court practitioners.  "Not every case demands full dress briefing and argument," he added.

Shapiro used to advise practitioners that in cert petitions and opposition briefs, they should focus, not on the merits of the case, but on whether it fits the Court's criteria for granting review. "We don't give that advice any more. Practitioners need to be aware that summary treatment is a possibility."...

In one case this term, Ho actually suggested to the Court that summary treatment could be a way to go, even as he asked for full review.  In Thaler v. Haynes, Ho said summary reversal would conserve "the Court's scarce resources." On Feb. 22 the justices ruled summarily in the state's favor, with the rare result that the high court reinstated a death sentence that the U.S. Court of Appeals for the 5th Circuit had set aside....

They are meaty decisions, not quick, one-paragraph judgments, and they tend to come in cases in which the standards and precedents involved are clear, and the petitioner claims the lower court's error is obvious....

Summary rulings occasionally include dissents, and they sometimes make news.  Sears v. Upton, issued June 29 on a 5-4 vote, sent a murder conviction and death sentence back to the Georgia Supreme Court.  On Jan. 13, Hollingsworth v. Perry halted plans to broadcast the Proposition 8 same-sex marriage trial in California.  Presley v. Georgia, issued January 19 in a case where a judge closed jury voir dire to spectators, is an important reaffirmation of the public nature of criminal trials.

As this brief review of the Court's work highlights, criminal justice cases (and especially capital cases) comprise a significant portion of the SCOTUS summary dispositions.  Given that many more criminal cases are appealed to the Supreme Court and also that more obvious lower court errors may well be more common in these kinds of cases, I am neither surprised nor troubled by this reality. 

More generally, because the Justices have well-developed and often firm views in capital cases, I might even urge the Justices to adopt a presumption of dealing with most capital appeals in summary form rather than setting these kinds of cases for full briefing and argument.  And if cert petitioners and respondents (as well as potential amici) are providing the Justices with this information they need to make an informed summary decision, I am inclined to say "the more, the merrier." 

July 5, 2010 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (6) | TrackBack

"Therapeutic Jurisprudence and its Application to Criminal Justice Research and Development"

The title of this post is the title of this new piece from Professor David Wexler now available via SSRN. Here is the abstract:

This essay, based on the 3rd Annual Martin Tansey Memorial Lecture, delivered May 26, 2010, at the Criminal Courts of Justice in Dublin, and sponsored by the Association of Criminal Justice Research and Development, introduces the perspective of therapeutic jurisprudence (TJ) and applies the perspective to several criminal justice issues, such as sentencing, probation, and parole. It calls for an academic-practitioner interdisciplinary and international partnership to enable the field to grow and flourish.

July 5, 2010 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

July 4, 2010

Celebrating our declaration of rights to "Life, Liberty and the pursuit of Happiness"

Declaration In addition to enjoying a beautiful day, I plan this afternoon to read aloud to my kids the full text of the Declaration of Independence.   And in this space, I encourage readers to comment on what this starting section of the document signed 234 years ago today should be thought to mean in the context of our modern American systems of criminal sentencing and punishment:

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

--That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.  Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.  But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government.

July 4, 2010 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (7) | TrackBack