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November 6, 2010

"A no-pardon Justice Department"

The title of this post is the headline of this potent new commentary in the Los Angeles Times authored by Samuel Morison, a former staff attorney in the Justice Department's Office of the Pardon Attorney.  Here are excerpts:

The Times' well-intentioned Oct. 30 editorial bemoaning that fact that President Obama hasn't yet granted any pardons or commutations, in which the editorial board correctly notes that the president is "aided in such decisions by the Office of the Pardon Attorney in the Justice Department," betrays a profound misunderstanding of the role the pardon office plays in the clemency advisory process. In particular, The Times writes, "Ideally, presidents would give great deference to the pardon attorney's recommendations and take a liberal view of the clemency power, exercising it often and on the basis of clear standards."

This assertion is hopelessly confused.  In fact, the problem in the vast majority of garden-variety clemency cases — those involving ordinary applicants for whom a grant of clemency would not cause any public controversy — is precisely that recent presidents have given far too much deference to the pardon attorney's office.  Having spent more than 10 years as a staff attorney in that office, I can say with some authority that the prevailing view within the Justice Department is that the pardon attorney's sole institutional function is to defend the department's prosecutorial prerogatives.  There is little, if any, pretense of neutrality, much less liberality....

As a result, there is a strong presumption within the pardon office that the number of favorable recommendations should be kept to an absolute minimum, regardless of the equitable merits of any individual petition. This stance ignores the reality of a burgeoning federal prison population of more than 200,000 inmates, many serving lengthy sentences for nonviolent drug offenses, and the proliferation of collateral disabilities that hinder ex-offenders' ability to restart their lives, which the attorney general himself has criticized as a "recipe for high recidivism."

Yet the bureaucratic managers of the Justice Department's clemency program continue to churn out a steady stream of almost uniformly negative advice, in a politically calculated attempt to restrain (rather than inform) the president's exercise of discretion.  This advisory record presupposes, falsely, that the federal criminal justice system is virtually flawless; that injustices almost never occur, sentences are almost never excessive, circumstances almost never change, and mercy is almost never appropriate.

No disinterested person really believes this.  Even if most prosecutors, judges and legislators act with the best of intentions, they can and do make mistakes with some regularity, which often are evident only with the benefit of hindsight.  Not surprisingly, the frank acknowledgment of such mistakes tends to strengthen, rather than undermine, public confidence in the legitimacy of the system....

Accordingly, if Obama is going to "take a liberal view of the clemency power, exercising it often and on the basis of clear standards," as The Times suggests, he will have to defer less to the jaundiced advice he receives from the Justice Department and rely more on his own moral judgment.

Some older and newer related posts:

November 6, 2010 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (16) | TrackBack

November 5, 2010

US Sentencing Commission report on mandatory minimums coming in Fall 2011

As noted in this prior post, in October 2009, Congress directed the US Sentencing Commission to undertake a comprehensive review of mandatory minimum sentencing penalties and to report its findings and recommendations to Congress within a year.  I learned today at the awesome ABA event that the USSC got an extension on its due date and that we now can/should not expect to see the USSC's big mandatory minimum report until probably October 2011.  Oh well.

I suspect the report will be worth the wait, and today I urged members of the USSC to release data about the application of mandatory minimums provisions ASAP.  Though I am somewhat disappointed we all now have to wait another year to get the USSC's wisdom on the wisdom of mandatory minimum sentencing provisions in the post-Booker world, I am somewhat hopeful that we might get some data from the USSC on this front sooner rather than later.

November 5, 2010 in Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (1) | TrackBack

"Former lawmaker gets 5 years for child porn"

The title of this post is the headline of this AP article about a New Jersey state child porn sentencing decision, which gets started this way:

A former Democratic state assemblyman who championed legislation to fight child pornography was sentenced Thursday to a five-year term for viewing nude images of underage girls.

The state Corrections Department will decide within 10 days whether Neil Cohen, 59, will serve his term in prison or a mental hospital. He could be eligible for release and placed under intense supervision in several months. Cohen represented Union County for 17 years. He resigned from the legislature after his July 2008 arrest.

Appearing pale and unsteady, Cohen did not speak during sentencing. His lawyer, Mark Tuohey, told the judge Cohen has been suicidal and has chronic depression, among other mental-health issues. He has been hospitalized for months, Tuohey said.

Judge Gerald Council imposed the sentence in Mercer County Superior Court. "This is a sad day," the judge said. "But for this incident, he had an unblemished record."

Cohen pleaded guilty in April to endangering the welfare of a child (distribution of child pornography). The five-year term was negotiated as part of the plea. The former lawmaker admitted viewing images of young girls on computers in his legislative and law offices.

Anthony Picione, the deputy attorney general who prosecuted the case, said 34 images of girls in stages of undress were found on the computers. Authorities matched some of the images to photos on the list of Missing and Exploited Children, he said.

November 5, 2010 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Eleventh Circuit punts Troy Davis case up to SCOTUS

As detailed in this AP article, a "federal appeals panel [has] dismissed an appeal from Georgia death row inmate Troy Davis ... [saying] he should appeal the case only to the U.S. Supreme Court."  The Eleventh Circuit ruling is available here, and here is a key passage:

The district court emphasized that the Supreme Court exercised its original jurisdiction when it transferred the case to the district court. The district court reasoned that it was clear that the Supreme Court was exercising its original jurisdiction because if it were operating within the confines of its appellate jurisdiction, “it would have been unable to entertain the petition because [Davis] had not obtained leave to file a second or successive petition.” Dist. Court Order at 2, citing Felker v. Turpin, 518 U.S. 651, 661, 116 S. Ct. 2333, 2338–39 (1996).

We agree with the district court’s reasoning....

November 5, 2010 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (1) | TrackBack

"Using Graham v. Florida to Challenge Juvenile Transfer Laws"

The title of this post is the title of this new article by Neelum Arya, the Research and Policy Director at the Campaign for Youth Justice. Here is an excerpt from the introduction:

This Article suggests that lawyers consider using Graham to ensure that every child under the age of eighteen, regardless of whether the child has been given a JLWOP sentence, is entitled to a chance to "atone for his crimes and learn from his mistakes" so that he may demonstrate that the bad acts he committed as a teenager are not representative of his true character.  Graham is not merely an extension or incremental continuation of Roper, but provides significant fodder for a reexamination of our juvenile justice policies more broadly, including the possibility of removing retribution as a valid goal of the criminal justice system as applied to youth, and firmly establishing a constitutional right to rehabilitation.  Graham is revolutionary in that it cuts to the heart of why we have a juvenile justice system, why it is separate from the adult system, and hopefully will make us rethink why we let the two bleed together so often.  Although Graham directly addresses the constitutionality of JLWOP sentences, the author argues that there are several collateral holdings within Graham relevant to challenge the transfer of youth to the adult system as well.

November 5, 2010 in Assessing Graham and its aftermath, Offender Characteristics | Permalink | Comments (0) | TrackBack

State judge declares California sex offender residency restriction unconstitutional

As detailed in this Los Angeles Times article, " a Los Angeles judge issued an opinion this week blocking enforcement of provisions a state law restricting how close those offenders can live from parks or schools." Here is more:

Superior Court Judge Peter Espinoza issued the 10-page ruling after four registered sex offenders petitioned the court, arguing that the legislation known as Jessica's Law was unconstitutional.

He said the court had received about 650 habeas corpus petitions raising similar legal issues, and that hundreds more were being prepared by the public defender's and alternate public defender's offices.  "The court is not a 'potted plant' and need not sit idly by in the face of immediate, ongoing and significant violations of parolee constitutional rights," Espinoza wrote.

Proposition 83, which is better known as Jessica's Law and was overwhelmingly passed by state voters in 2006, imposes strict residency requirements on sex offenders, including requirements forbidding them from residing within 2,000 feet of any public or private school or park where children regularly gather.  Before the law passed, those residency requirements were imposed only on offenders whose victims were children.

Civil rights attorneys have argued that provisions of the law make it impossible for some registered sex offenders to live in densely populated cities.  Nearly all of San Francisco, for example, is off-limits to sex offenders because of the number of parks and schools close to housing. Los Angeles officials also said that there are few places in the city where sex offenders can find housing that meets Jessica's Law requirements.

The California Supreme Court ruled in February that registered sex offenders could challenge residency requirements in the law if it proves impossible to avoid living near parks and schools. State corrections officials said Wednesday that they could not comment on the specifics of Espinoza's ruling, but said they would continue to ensure residency restrictions are imposed in cases where there is a valid reason to continue enforcing them....

In his opinion, Espinoza cited comments by Los Angeles Police Chief Charlie Beck that the Jessica's Law restrictions had resulted in "a marked increase of homeless/transient registrants."  The judge noted that in 2007, there were 30 homeless sex offenders on active parole in the city of Los Angeles.  By September of this year, that number had jumped to 259.

November 5, 2010 in Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Overcrowded jail lacks room for non-violent offender who keep trying to get in

A helpful reader altered me to this amusing local article, which is headlined "Thief can't get in, now won't go to jail." Here are the basics:

Despite being a criminal, Carla Freeman's persistence paid off Wednesday when a judge decided she didn't have to go to jail after all.

Freeman, 28, was an employee in 2004 at the Pleasant Ridge Home Depot when she was charged with voiding sales for friends and letting them take items without paying. She was convicted of theft and placed on probation with the stipulation she pay $2,278 for Home Depot restitution, court costs and fines. Six years later, though, Freeman hadn't paid that money so Hamilton County Common Pleas Court Judge Melba Marsh ordered Freeman's probation ended and told her to go to jail for 180 days.

Freeman reported Jan. 4 to the jail to serve her sentence. She was turned away because the overcrowded jail had no room for her. For about two years, the jail has been turning low-level, non-violent criminals away, often telling them to return later to serve the sentences, because there was no room.

Freeman showed up at the jail again March 8 and she again was told to come back later due to overcrowding. She tried several more times, each time being turned away. "She's tried eight times to get in and can't," Freeman's attorney, Ed Noe, said Wednesday. She tried again April 16, June 2, July 7, Aug. 8, Sept. 17 and Oct. 15....

"That's not unusual at all, especially for females," sheriff's spokesman Steve Barnett said Wednesday. "We just don't have room for them."

Freeman has been trying to get into the jail for so long, Noe said, that she just gave birth and likely wouldn't be accepted in her next scheduled reporting date, Nov. 29. "They don't take breast-feeders," Marsh said of the jailers.

Noe filed a motion asking Marsh to release Freeman.   Marsh agreed and ordered Freeman released.

November 5, 2010 in Prisons and prisoners, Who Sentences | Permalink | Comments (3) | TrackBack

November 4, 2010

Off to DC to participate in ABA's "Sentencing & Reentry Institute and Criminal Justice Legal Educators Colloquium"

I am closing out a exciting (but really long) week by heading inside the Beltway this evening in order to attend and participate all day tomorrow in the the American Bar Association's "Third Annual Sentencing & Reentry Institute and Criminal Justice Legal Educators Colloquium."  All the details of this amazing event can be found in this brochure, and I am hoping to learn some blog-worthy stuff while in DC.

Because I have never been very good at that whole live-blogging thing, I doubt I will have many posts about the conference until the weekend. But I am expecting to have some new insights on how the new post-election political landscape might impact directly sentencing law, policy and practice in the months ahead.

November 4, 2010 in On blogging, Who Sentences | Permalink | Comments (3) | TrackBack

Why pot legalization fans are likely to try again in 2012

This new piece from the Los Angeles Times, which is headlined "Despite rejecting Prop. 19, Californians lean toward legalizing marijuana, poll finds," highlights why the marijuana legalization debate is not likely to stop in California anytime soon. Here is how the piece begins:

California voters rejected Prop. 19, but a post-election poll found that they still lean toward legalizing marijuana for recreational use and, if young voters had turned out as heavily on Tuesday as they do for presidential elections, the result would have been a close call.

The survey, conducted by the polling firm Greenberg Quinlan Rosner, suggests that California voters had qualms with this initiative, but remain open to the idea. A majority, 52%, said marijuana laws, like alcohol prohibition, do more harm than good.

“There’s a fair amount of latent support for legalization in California,” said Anna Greenberg, the firm’s senior vice president. “It is our view, looking at this research, that if indeed legalization goes on ballot in 2012 in California, that it is poised to win.”

Voters think marijuana should be legalized, 49% to 41%, with 10% uncertain, the poll found, but were evenly split over whether they thought it was inevitable in California.

“The question about legalizing marijuana is no longer when, it’s no longer whether, it’s how,” said Ethan Nadelmann, the executive director of the Drug Policy Alliance. “There’s a really strong body of people who will be ready to pull the lever in the future.

November 4, 2010 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (13) | TrackBack

Eleventh Circuit to review en banc notable pro-defendant habeas ruling in Gilbert

As reported in this prior post, which I titled "Eleventh Circuit gives the 'Great Writ' some notable life," back in June a panel handed down a notable federal habeas ruling in Gilbert v. US, No. 09-12513 (11th Cir. June 21, 2010) (available here).  Thanks to a number of helpful readers, I just learned of this order coming from the Circuit ordering that the panel's ruling be vacated and that the matter be considered en banc by the entire Eleventh Circuit.

November 4, 2010 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0) | TrackBack

"Memory and Punishment"

The title of this post is the title of this interesting looking new piece from O. Carter Snead that is now available via SSRN. Here is the abstract:

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law.  Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role.  Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice.

For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered — by the offender, by the sentencing authority, and by the broader community.  Because this is so, new neurobiological techniques to modify memory — including interventions to erase some or all memory, to dampen the emotional/affective content of memory, and to enhance the duration and intensity of memory — pose, in principle, special challenges for the just and effective distribution of punishment.  This article identifies and analyzes the substance and contours of these challenges. It is meant to prepare the necessary groundwork for future scholarship on how the law, as enacted, enforced, and interpreted, should respond (if at all) to such concerns.

November 4, 2010 in Purposes of Punishment and Sentencing, Recommended reading, Victims' Rights At Sentencing | Permalink | Comments (1) | TrackBack

Looking closely at the tougher sentences approved by Oregon voters in Measure 73

As detailed in this local commentary, which is headlined "Aftermath of Measure 73: Voters tell state to sober up on DUII," the citizens of Oregon used direct democracy to get tougher on drunk drivers and sex offenders.  Here are the details and some spin:

Oregon voters just passed another crime measure the state can't afford. That leaves the Legislature with two choices: Suspend this crime measure like the last one, or adapt to it.

Adapting is the only defensible choice.  In fact, Measure 73 may force the state to get smarter about impaired driving on the first arrest, rather than waiting for multiple arrests or fatalities to acknowledge problems with drug addiction, alcoholism and public safety.

Actually, let's talk in more human terms.  At least seven people died in apparent DUII crashes in Oregon during a three-week stretch in September.  Two teenagers struck dead in a Salem crosswalk.  Two grandparents hit in Klamath Falls. Two passengers killed near Florence. One driver dead in the Molalla River.  Seven lives ended, and for what? "If those were seven murders in 21 days, we would be outraged," says assistant attorney general Deena Ryerson, who specializes in drunken-driving cases for the state Department of Justice.

Voters warmly embraced Measure 73 in Tuesday's election, giving it an approval rating of 57 percent.  The citizen initiative is a classic populist concoction of tougher penalties for society's least sympathetic characters -- sex offenders and repeat drunken drivers.  Its passage was a sure thing from the moment it qualified for the ballot.

Surprisingly, the tougher penalties for sex offenders won't cost much money, since Oregon already locks up many of its worst offenders for life. The costly part is the provision requiring 90-day jail sentences for drunken drivers on their third DUII conviction.  Because of state sentencing guidelines for felonies, that 90-day sentence can turn into 13 months behind bars, according to the Oregon Criminal Justice Commission.

"One thing to figure out is where to put those people," says Multnomah County Circuit Judge Eric Bloch, a leading voice on county DUII policy. Bloch worries the new measure (not to mention the state budget crisis) could undermine the success of the county's voluntary supervision program for repeat offenders, which lets judges use rewards and sanctions to force people to face their addictions....

Fortunately, Measure 73 isn't just an unfunded mandate.  It's also a call to action.  Several counties, including Multnomah, are finding earlier and more reliable ways to sort the chronic impaired drivers from those who are scared straight by their first DUII arrest.  That allows judges to zero in on drivers who pose a greater public safety threat -- whether because of indifference, addiction or both....

What's more, state lawmakers can use the next session to tweak the state's DUII laws in a few low-cost ways.  For example, they can tighten up the state's ignition interlock laws, which look tough on paper but fall apart in real life.  Since the cost of the interlock is paid mostly by drivers, it's an affordable way for Oregon to make the roads safer -- and it helps offenders in areas without adequate public transit get to work.

During the campaign, initiative sponsor Kevin Mannix expressed his frustration at the Legislature for refusing to take drunken driving more seriously.  Lawmakers often flinch at sanctions that might inconvenience the proverbial average drinker, upset the beverage lobby or require more than a couple days of jail for the first few arrests. "This measure," Mannix said in September, "is meant to wake folks up on drunk driving."

I hope he's right.  Set aside the wisdom of passing unfunded mandates during a budget crisis.  Remember those seven deaths in September, and ask what Oregon has to lose by trying something different.

Regular readers know that I have long be urging sentencing law and policy to "wake folks up on drunk driving," so I am pleased that Oregonians have made this chnage on their own. A mere 90 days as a mandataory jail term for the third drunk driving offense is the kind of measured mandatory minimum sentence I think should serve public policy and public safety well.

November 4, 2010 in Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

November 3, 2010

What death penalty tea leaves might be read from the 2010 election cycle?

This local story from about a state race impacted by the high-profile capital case, which is titled "Death Penalty Politics Weigh on Connecticut Election," has me thinking out loud in this space about what the 2010 might mean in terms of death penalty law, policy and politics. 

One simple (and perhaps accurate) analysis might be to say that having more statehouses and more of Congress in the hands of Republicans will mean more politicians actively supporting the imposition of death sentences and seeking to speeding the path of those on death row to the execution chamber.  And yet, no intricate and dynamic story of law and policy that has so many motivated and involved non-elected players (i.e., defense lawyers and many judges) is ever fully captured via a simple analysis.

Indeed, death penalty opponents might find a silver lining in the the outcomes of races in California for Governor and Attorney General, two big races in which death penalty issues were raised and in which candidates with anti-death-penalty histories performed strongly.  (I believe the AG race will be going to a recount.)  Relatedly, Maryland re-elected an avowed abolitionist as its Governor, and Ohio voted out an incumbent Governor and AG who were extra tough on the death penalty and helped my Ohio the Texas of the north (though I doubt their replacements plan to take the state's foot off the execution pedal).

So, dear readers, do you think the death penalty continues a post-Baze comeback as a result of yesterday's election, or are there much bigger forces than just a mid-term now actively shaping the distinctly American modern capital punishment legal and policy story?

November 3, 2010 in Death Penalty Reforms, Who Sentences | Permalink | Comments (14) | TrackBack

Ninth Circuit adopts invented exception to victims' right to restitution

A helpful reader altered me to an interesting little unanimous panel opinion from the Ninth Circuit today in US v. Lazarenko, No. 08-10185 (9th Cir. Nov. 3, 2010) (available here).  Here is how the opinion starts:

Defendant Pavel Ivanovich Lazarenko, former Prime Minister of Ukraine, was convicted of money laundering and conspiracy to commit money laundering.  See United States v. Lazarenko, 564 F.3d 1026 (9th Cir.), cert. denied, 130 S. Ct. 491 (2009).  In this appeal, Lazarenko challenges the district court’s order of restitution of more than $19 million to his co-conspirator, Peter Kiritchenko.  We hold that, in the absence of exceptional circumstances, a co-conspirator cannot recover restitution.  Because no exceptional circumstances exist here, we reverse and vacate the order of restitution.

This Lazarenko ruling acknowledges that it is making up law here when the plain text clearly does not exclude certain types of victims from the right to obtain restitution:

[Applicable victim restitution statutes set forth a] definition [that] looks only to whether the person was harmed; it does not consider whether the person also was a co-conspirator. Under the plain text of the MVRA and VWPA, therefore, co-conspirators have just as much right to restitution as do innocent victims.

But courts have recognized that Congress could not have intended that result.  Otherwise, the federal courts would be involved in redistributing funds among wholly guilty co-conspirators, where one or more co-conspirators may have cheated their comrades. Indeed, the Second Circuit has held that an order of restitution from one co-conspirator to another was “an error so fundamental and so adversely reflecting on the public reputation of the judicial proceedings that we may, and do, deal with it sua sponte.” United States v. Reifler, 446 F.3d 65, 127 (2d Cir. 2006); see also United States v. Weir, 861 F.2d 542, 546 (9th Cir. 1988) (suggesting that it would be improper to consider a participant to a crime as a victim of the crime for purposes of restitution).  In other words, because a literal application of the plain text leads to absurd results, the plain text does not control.

We agree with the Second Circuit that, as a general rule, an order of restitution to a co-conspirator is a “fundamental” error that “adversely reflect[s] on the public reputation of the judicial proceedings.” Reifler, 446 F.3d at 127. Indeed, we suggested the same in Weir, 861 F.2d at 546. Only in exceptional circumstances would Congress have intended that a coconspirator to a crime be entitled to restitution.

I wonder if all committed textualists (including some on the Supreme Court), as well as all those committed to broad interpretations of victim rights, fully concur with the Ninth Circuit's decision in Lazarenko to invent an exception (with its own exception circumstances exception) to the plain term of the federal statutes providing for victim restitution. 

To me, it is not obviously absurd that a federal offender's punishment should include a requirement of restitution to all victims financially harmed even if those victims are co-consiprators.  Indeed, the rule adoped here would seem to give major fraudsters a tangible incentive to seek to co-opt their biggest victims into their frauds if/when they start fearing apprehension so as to reduce the risk of owing those victims restitution if/when convicted.

November 3, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (5) | TrackBack

Seeking the best pitches (and pitchers) for the start of clemency season

The election season of 2010 is official over, and we probably have at least a few weeks before the start of the 2012 season start.  That fact alone, plus the coming holidays and the lame duck status of many Governors in many states, all adds up to make today officially the start of clemency season.  And, with the political conditions right, I hope readers might spotlight some of the best clemency pitches (and pitchers) as the season gets revved up.

November 3, 2010 in Clemency and Pardons, Who Sentences | Permalink | Comments (4) | TrackBack

Proposition 19 losing based on early reporting of precincts ... and ultimately falls short

This CNN page seems to be providing the most up-to-date information about voting on California's marijuana legalization proposition.  And, as of this writing, the Proposition is losing 56% to 44% with about one sixth of all precincts reporting results.  I suspect this margin will remain as all the votes come in, and I will provide an update in the morning.

UPDATE:  With 89 precinct reporting as of 6am EDT, the break-down is now 54% to 46% against Proposition 19.  This relatively close, but still negative, outcome will surely produce some interesting spin by both sides.  And the very interesting follow-up question, now that the proposition has been narrowly defeated, becomes whether a variation on Prop 19 gets on the 2012 ballot in California (and perhaps elsewhere).

More generally, the relatively low turnout of younger voters this cycle seems to have contributed to a tough election season for all pot initiatives.  In Oregon and South Dakota, medical marijuana ballot measures have lost, and the outcome in Arizona looks to be trending the same way (though the yes side is only a few thousand votes behind with over 1.3 million votes cast).

November 3, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (24) | TrackBack

November 2, 2010

Seeking ground reports on the FSA's application to not-yet-sentenced cases

To my knowledge and as of this writing, the opinion by US District Judge D. Brock Hornby last week in US v. Douglas, No. 09-202-P-H (D. Maine Oct. 27, 2010) (available here), is the only written district court decision expressly holding that a defendant guilty of committing a crack offense before the Fair Sentencing Act became law in August 2010, but "not yet sentenced on November 1, 2010, is to be sentenced under the amended Guidelines[] and the Fair Sentencing Act's altered mandatory minimums ... "  I did hear today from a federal public defender, however, that a district judge in the District of Massachusetts formally adopted Judge Hornby's opinion in a similar case in his court.

I assume that this issue is arising in federal district courts around the nation, and I would be grateful if any and all folks "in the know" would consider using the comments to report on what it going on in various districts.   Regular readers may recall that, as I sought to explained in this amicus letter  submitted in a pending case in the Southern District of New York, I believe that a fair reading of congressional intent and statutory construction principles call for the FSA to apply to pending cases as soon as possible.  But the Justice Department apparently does not agree with my reading of congressional intent (see my lament here), and perhaps other district judges see this differently as well.

Happily, I have been granted some argument time in the case before SDNY District Judge Kenneth Karas in which I submitted this amicus letter on this issue.  The argument is scheduled for December 8, and I will report further on the matter as events develop (to the extent reasonably permitted by blogging/lawyering ethical norms).

November 2, 2010 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3) | TrackBack

When will the US Sentencing Commission's (now overdue?) mandatory minimum report come out?

As noted in this recent post, in October 2009, Congress directed the US Sentencing Commission to undertake a comprehensive review of mandatory minimum sentencing penalties and to report its findings and recommendations to Congress within a year.  I had marked the end of October 2010 as the time when this report was due, but the report has not yet been released and I have heard a rumor that the USSC got some sort of (secret?) extension on its deadline.

I am actually glad the USSC report on mandatory minimum has not come out yet; this week all the news is justifiably focused on today's election and its likely aftermath.  That said, I really would like to know when the US Sentencing Commission plans to release this important report.  (I would also like to know how and from whom the USSC got an extension, but that's not really a big deal if the report is still coming soon.) 

For various reasons, I think the coming lame duck period of Congress might be an especially good time for some needed reforms of some of the worst aspects of existing federal mandatory minimum sentencing provisions (such as, for example, the stacking of 924(c) mandatory minimums).  But it strike me as wise for Congress to await the USSC's forthcoming report before doing much on this front. 

Thus, I hope this (overdue?) USSC report on federal mandatory minimum sentencing provision is going to be coming out in the not too distant future.  I also hope that any readers in the know about this matter will use the comments to report (perhaps anonymously) on just what is now going on in this arena.

November 2, 2010 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

"Lincecum’s Endorsement Potential Clouded by Past Marijuana Use"

The title of this post is the headline of this new entry over at a Forbes blog.  Spotlighting parts of this Forbes post strikes me as a fitting way to simultaneously congratulate the new World Series champions and to pass the time until we get voting results late tonight from California on Proposition 19:

What a difference a year makes, but will companies bank their franchise on ‘The Franchise’ in light of his past illicit behavior?

On October 30th, 2009, San Francisco Giants pitching ace Tim Lincecum was pulled over for speeding in the state of Washington and subsequently handed over 3.3 grams of marijuana found in his car.  He was arrested on misdemeanor marijuana possession and paraphernalia use charges, though his attorney negotiated the dismissal of the pot charge and the reduction of the paraphernalia charge to a civil infraction.

On November 1st, 2010, Mr. Lincecum finds himself perhaps the most visible of many heroes from the Giants first World Series Champion since 1954 when they played in NY.

Mr. Lincecum earned the win in Games 1 and 5 of the World Series, beating the impressive Cliff Lee on both occasions. He split a pair of games with Philadelphia’s ace Roy Halladay in the NLCS, and he was flat out sick in a complete game, 14 strikeout 2 hit Game 1 performance in the NLDS against the Atlanta Braves. All on the heels of winning the National League Cy Young Award in consecutive years in 2008 and 2009....

Combine this with his youthful demeanor and charm, and you would think we have the makings of the next endorsement wunderkind. But not unlike how the Michael Phelps bong pictures which appeared soon after the 2008 Olympics may have dampened corporate enthusiasm to work with the swimming champion to some extent, Mr. Lincecum’s October 2009 incident in Washington may impact how quickly companies line up to sign him as a corporate endorser.

November 2, 2010 in Drug Offense Sentencing | Permalink | Comments (0) | TrackBack

"UK group says it's suing over US execution drug"

The title of this post is the headline of this AP article, which gets started this way:

A group opposed to the death penalty filed suit Tuesday to try to prevent a British company from exporting a drug that could be used in the execution of an American inmate.

Reprieve, a London-based rights group, and the London law firm Leigh Day & Co. are suing in the hope of forcing the government to regulate the export of sodium thiopental. The sedative, which is part of the three-drug cocktail used in lethal injections in the U.S., was scheduled to be exported from Britain to Tennessee imminently, Reprieve said.

The group warned that sodium thiopental would be used in the execution of 56-year-old Edmund Zagorski, who has been convicted of committing two murders in 1983.  The Department for Business Innovation and Skills has declined to block the export of the drug. "We can stop the export of these drugs," Reprieve Director Clive Stafford Smith said at a news conference. "But the (UK government) is dedicated to inaction."

I find amusing the British complaint that the UK government "is dedicated to inaction" on a day in which many American voters are going to the polls to vote for candidates who ran on the promise that they will make sure US governments are less active.

November 2, 2010 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1) | TrackBack

A sentencing fan's Election Day guide

Today's elections (in which I have already voted) do not present numerous major crime and punishment story lines to follow.  But there is one super-duper important direct democracy initiative to watch and  plenty of major (and minor) federal and state races that sentencing fans should keep an eye on.  Here I will briefly spotlight a few of my own (idiosyncratic?) sentencing law and policy takes on today's experiment in democracy:

1.  A real prospect for libertarian change at the federal level: The Tea Party Movement is not obviously committed to all the libertarian principles that would call for massive scaling back of the drug war and mass incarceration.  Nevertheless, the new blood pushing the Republican Party, from Rand Paul to Sarah Palin, seems much more committed to individual liberty and smaller federal government than most of the big-government statists now in Congress representing both parties.

Only a naive optimist could seriously predict that the next Congress will want or will be able to make healthy (and needed) reform of the federal criminal justice system a top priority.  Nevertheless, my inherently optimistic streak leads me to believe that if President Obama wants to move forward with shrewd reform advocacy (e.g., if he says "The Era of Big Government (spending on local crime issues) is over"), he might find a surprisingly receptive audience across the aisle after this election.

2.  A real need to keeping getting real about correction budgets at the state level: The last few years have seen numerous states finally dealing with the significant cost consequences of the "tough-on-crime" mass incarceration binge that defined the 1990s crime politics and policies.  But at least a few notable states (e.g., California and Florida and my own Ohio) have so far avoided making some really tough criminal justice spending choices while this election cycle was heating up.  I do not know which candidates in these states are most likely to deal with these fiscal realities most effectively, but I am sure that persistent economic challenges entail that all state officials elected in 2010 will need to get up to speed on these pressing budget and public safety issues ASAP.

3.  A new dawn (maybe) on pot prohibition and the entire drug war: As regular readers surely already know, I view California's Proposition 19 to be extremely consequential because its passage would be a huge step toward ending pot prohibition and toward serious reconsideration of the entire "war on drugs."  Indeed, even if Prop 19 loses but gets at least 40% of the total vote (and more than 50% of younger voters), we likely will continue to see robust and healthy discussion of the costs and benefits of pot prohibition and other aspects of the drug war.  But if Prop 19 goes down badly, say 65% to 35%, the process of retreating from the worst aspects of the drug war will continue to proceed very, very slowly.

Some related posts on the 2010 election and sentencing issues:

November 2, 2010 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates | Permalink | Comments (13) | TrackBack

November 1, 2010

Los Angeles Times calls out our "no-pardon president"

The reference to President Obama quoted in the title of this post comes from the headline of this editorial which ran in the Los Angeles Times over the weekend.  The full headline with the subhead was  "A no-pardon president; So far, President Obama hasn't approved a single request for a pardon or commutation of a sentence. That's a disappointment." Here are highlights from the editorial:

Just as a president is entitled to pardon anyone convicted or accused of a crime, he is free to dismiss any petitions for clemency without offering an explanation.  Indeed, he can choose never to issue any pardons or commutations of sentences at all.  Still, it's disappointing that President Obama so far hasn't approved even one request for a pardon or other form of clemency.

It's not that there is a shortage of claimants.  Earlier this month, Obama formally denied 605 petitions for commutation of sentences and 71 pardon requests.  It's hard to believe that none of those was deserving of approval....

Ideally, presidents would give great deference to the pardon attorney's recommendations and take a liberal view of the clemency power, exercising it often and on the basis of clear standards.  Their reluctance to do so likely reflects not the merits or demerits of particular petitions but the political liability of appearing soft on crime.  That reality has led some advocates of more pardons to hope that Obama is waiting to announce grants of clemency until after next week's election.  If so, we hope his first exercise of his clemency power won't be his last.

Some related posts:

November 1, 2010 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

"Convicted Felons Want The Right To Vote"

The title of this post is the headline of this timely Election Day eve story from National Public Radio.  Here is the set up:

A new study by the Sentencing Project shows that some 800,000 people with felony convictions have been given the right to vote over the past decade, thanks to reforms to laws governing eligibility in 23 states. But at least 5.3 million felons of voting age remain disenfranchised.

That number includes nearly 4 million who live in 35 states which deny people — on probation, parole or those who have completed their sentence — voting rights.  And critics say the ban has implications for the upcoming mid-term elections.

Host Michel Martin speaks with Mark Mauer, executive director of The Sentencing Project, which promotes sentencing reform; and Susan Barton, who leads A New Way of Life Reentry Project, a program to help formerly incarcerated women in south central Los Angeles.

UPDATE: I am pleased and amused that a pretty good political debate has broken out in the comments to this post by two persons willing to use their (real?) full names with their comments. I am even more pleased that the debate appears to have resulted in challenges/promises of donations to the Association of the United States Army and Feeding America.  Huzzah to my wonderful readers/commentors!

November 1, 2010 in Collateral consequences, Who Sentences | Permalink | Comments (34) | TrackBack

"The Quality of Mercy in New York: A Different Kind of State Challenge to Federal Immigration Policy"

The title of this post is the title of this great guest post by Margaret Love over at the ACS blog.  Here is how that posts starts and ends:

On October 21, The New York Times reported that Governor David Paterson had received more than 1000 pardon requests from legal immigrants facing deportation because of old or minor state crimes.  In May, Paterson had announced the creation of a panel to consider such requests, ostensibly to inject fairness into what he described as an "embarrassingly and wrongly inflexible" system that expels immigrants without considering the possibility that deportation in a particular case might be unwise or unjust.  Now, his term nearly up, the deadline for decision is fast approaching.  Having stirred this pot, whatever he does is bound to be controversial....

With the prospect of dozens or even hundreds of Paterson pardon grants becoming more real, The Times found advocates for immigrants euphoric: "People are being deported for indiscretions of their youth, and it's ripping families apart," one said. Another called for a replication of the pardon panel "far and wide."

The Federation for American Immigration Reform was reportedly less thrilled: "As a general rule, we would be opposed to governors or other local officials stacking the deck so that people who could legitimately be deported get to remain in the country."  FAIR spokesman Ira Mehlman complained that the governor was superseding the authority of Congress. "This is not his determination to make," he said....

Paterson's proposed pardons are well within the dispensing authority federal immigration law itself gives to governors.  Exempting particular individuals from the penalty of deportation is certainly not gaming the system, as Mr. Mehlman's use of the phrase "stacking the deck" would suggest....

In the end, Governor Paterson will be called upon to defend the merits of any particular pardons he issues or declines to issue in the next three months.  The evident care he is taking in staffing the hundreds of petitions filed with his panel evidences an awareness that his tenure as governor may be judged as much by his final acts of compassion as on anything else he has done in that office.  And he is to be commended, not criticized, for deciding to use his constitutional power in such a transparent and democratic way.  We should all wish him success in this endeavor, and hope that other governors and pardoning authorities -- including President Obama, who has yet to pardon anyone, much less a deportable immigrant -- will be encouraged by his example.

November 1, 2010 in Clemency and Pardons, Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

New SCOTUS cert grants on a number of criminal procedure issues

As detailed in this order list, the Supreme Court this morning granted cert in five new cases and it appears that at least three involve criminal justice matters.  Sentencing fans should not get too excited, however, as it appears that the three cases involve Fourth, Fifth and Sixth Amendment pre-trial issues. 

The cases still seem likely to garner significant buzz; they deal with various high-profile procedural concerns involving the exclusionary rule, Miranda warnings, and right to counsel.  This post by Lyle Denniston at SCOTUSblog spotlights some of the particulars.  As detailed in Lyle's post, sentencing fans might want to keep an eye on the right to counsel case if it gets past a procedural hurdle:

The Court took on a potentially significant case on the right of a poor person to have a lawyer when facing a possible jail sentence, but indicated that the case may have jurisdictional problems. In Turner v. Price, et al. (10-10), the main issue is whether a poor person has a constitutional right to a lawyer in a civil contempt case, if the proceeding could lead to being sent to jail or prison. The case involves a South Carolina man who has been put in jail for contempt three times for failure to pay child support. In accepting the case, however, the Court also told the two sides to brief and argue whether the Justices have jurisdiction to review the state Supreme Court decision in the case.

Relatedly, Justice Alito penned this dissent from the denial of certiorari in Wong v. Smith, an AEDPA habeas case out of California.  The opinion addresses an interesting trial procedure issue: e.g., Justice Alito notes, when complaining about the Ninth Circuit's habeas grant, that at "common law, the judge was empowered to weigh the evidence and share an opinion with the jury, even in matter of fact."   Also interesting is that the Chief Justice and Justice Scalia join this dissent, but this troika could not garner one more vote for cert from Justice Kennedy (who always takes a special interest in the work of the Ninth Circuit) or Justice Thomas (who often is troubled by federal courts not showing deference to state adjudications).

November 1, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3) | TrackBack

The new guidelines are here, new guidelines are here!

Among other exciting developments this November is the official effective date for both the newly amended sentencing guidelines put forth by the US Sentencing Commission back in May (discussed here) and the supplemental guidelines amendments implementing the Fair Sentencing Act's changes to crack sentencing (discussed here).  The USSC's website has all the now effective guidelines linked here and here.

This new Denver Post article, which is headlined "Federal sentencing guidelines change today for some drug crimes," takes local stock of the changes prompted by the FSA that become effective today:

New federal sentencing guidelines go into effect today, raising or reducing the time that drug offenders spend in prison depending on the quantity of drugs involved or the role the defendant played in the crime....

In Colorado, U.S. Attorney John Walsh says his prosecutors are still evaluating the new guidelines but that he doesn't expect to see notable changes in sentencing in drug cases. "The impact this will have on our cases as a group is less than it would be in those jurisdictions where they are bringing smaller crack cases," Walsh said. "Our focus has always been on major drug trafficking. While they have an impact, we don't think they are going to have a dramatic impact."...

Raymond Moore, Colorado's federal public defender, called the guideline changes a "political compromise" that doesn't go far enough to achieve fairness in sentencing.  "The effect of those additions may well offset the meager gains for the crack defendants and will undoubtedly increase the guideline range for a variety of noncrack defendants," he said.  "I am not Nostradamus, but my guess is that all the telling of the reduction in the guideline range will be more illusory than real and for some it will go up."

Some related posts on both sets of new guidelines:

UPDATE:  I am pleased to see that Jeralyn over at TalkLeft has this new post which spotlights one of the other big changes in the new, now-effective sentencing guidelines:

[T]here is one change that applies to all defendants that may be helpful. For the first time, those at Level 13 with a Category 1 criminal history (no more than 1 point), with a guideline range of 12-18 months, don't have to get a prison sentence.  That's because the Commission moved Level 13 from Zone D, where it's been since 1987 or whenever the zones were established, to Zone C.  All Zone D sentences must be to prison. In Zone C, alternative sentences are possible.

November 1, 2010 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (6) | TrackBack

October 31, 2010

"Battle Over California Marijuana Initiative Goes Down to the Wire"

The title of this post is the headline of this article from today's New York Times, which provides some pre-election analysis of Proposition 19.  Here are snippets:

[W]ith a growing number of Americans favoring legalization — a Gallup poll released last week found a record high 46 percent approving of legalizing marijuana — perhaps no ballot measure in the country will be more closely watched on Tuesday.

And while some polls here show the “yes” side on Proposition 19 trailing, even a close loss could have national impact, as groups seeking to change drug laws watch the results and consider backing legalization measures in other states.

“Win or lose, this thing has moved the ball much further down the field than anyone could have imagined,” said Ethan Nadelmann, the executive director of the Drug Policy Alliance, which supports Proposition 19. “It’s transformed the debate not only in California, but nationally and internationally.”...

Much of the ground game for Proposition 19 is centered in Oakland, where the measure’s co-sponsor, Richard Lee, has built his marijuana trade school — Oaksterdam — into a small empire, with a three-story headquarters in the downtown core. Mr. Lee, a former roadie who founded Oaksterdam in 2007, says he expects the vote to be close, and influential.

“I think we’ve made the issue a lot more legitimate,” he said, adding that he suspected several others states would consider votes on legalization in 2012, including Michigan, where Oaksterdam has a satellite campus.

Relatedly, the Los Angeles Times here reports on the latest poll numbers showing Prop 19 trailing 49% to 42%. I am pleased to see the poll numbers remaining close, and I am especially excited to see if the actual votes cast and counted on Tuesday will be in line with these poll numbers.

October 31, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (6) | TrackBack

FAMM amicus brief assails life (with parole) sentence for woman who let teen touch breasts

As detailed in this press release, which is titled "FAMM Urges Nevada Supreme Court to Reverse Mandatory Life Sentence for Michelle Lyn Taylor," the group Families Against Mandatory Minimums has filed an amicus brief in a notable sentencing case is Nevada Supreme Court. Here is more:

FAMM filed the amicus brief in support of Taylor’s appeal to challenge one of the most egregious outcomes of mandatory sentencing that the organization has ever encountered. In April, an Elko County jury convicted Taylor, 34, of lewdness with a minor under 14 for inducing a 13-year-old boy to touch her breast and soliciting him for sex.  Download FAMM's amicus brief [at this link].

While this behavior certainly deserves punishment, Taylor would have received a lesser sentence if she had murdered (25 to 50 years) or kidnapped (2 to 15 years) the boy. Conviction for lewdness with a minor under 14 carries a mandatory life sentence in Nevada with parole eligibility after 10 years.

“Sentencing Taylor to life in prison for acts that could have been charged as misdemeanors is unconstitutional, inhumane, and does not advance public safety. It violates both the Eighth Amendment ban on cruel and unusual punishment as well as Nevada’s ban on cruel or unusual punishment,” said Deborah Fleischaker, FAMM director of state legislative affairs.  “FAMM asks the Nevada Supreme Court to overturn Taylor’s cruel and disproportionate sentence.  We also urge the Nevada legislature to consider Taylor’s case, a prime example of the unintended consequences of mandatory minimums, and reform this sentencing law,” concluded Fleischaker.

Related post (which gets cited in brief):

October 31, 2010 in Assessing Graham and its aftermath, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (5) | TrackBack

New student note proposing new framework for assessing computer conditions

A helpful reader altered me to this notable new student note by Gabriel Gillett, headlined "A World Without Internet: A New Framework for Analyzing Supervised Release Conditions that Restrict Computer and Internet Access."  Here is the abstract:

This Note explores whether a condition of supervised release that restricts computer and Internet access violates the doctrine of unconstitutional conditions.  Although a circuit split has developed regarding the scope of a permissible restriction, as Courts of Appeals have been inundated with cases challenging the validity of these technology restrictions, no court has yet viewed these limits through the lens of the doctrine of unconstitutional conditions.  This Note begins with a discussion of the First Amendment and the theory of unconstitutional conditions, tracing their respective developments in cases relating to prisoners, speech, and the Internet age.  Next, it synthesizes the oft-criticized idea of unconstitutional conditions into a new three-prong framework, judging the propriety of a condition based on the government’s coerciveness in making the offer, the purpose for pursuing the condition, and the condition’s effect on protected speech.  Then, this Note surveys cases where courts have ruled on the validity of a computer or Internet restriction, and recasts their reasoning to discuss whether such a condition may be constitutional, using the coercion-purpose-effect framework.  Finally, this Note concludes that a condition is constitutional where it is accepted knowingly and voluntarily, is intended to protect the public rather than regulate speech indirectly, and where computer-monitoring and Internet-filtering technology is maximized to minimize First Amendment infringement.

October 31, 2010 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Examining the politics of crime and punishment in modern gubernatorial settings

Writing an original piece for The Crime Report, Steve Yoder provides an extensive and effective discussion of modern crime and justice politics and policies in this article headined "Crime and the Governors."  Here are excerpts:

If national legislators think they’ve been facing tough decisions during the economic crisis, they might try being a governor for a day.  Of the 50 states, 49 are legally required to balance their budgets and, as a result, state spending has cratered — falling in both 2009 and 2010, according to a survey by the National Association of State Budget Officers....

Forty states have cut their corrections budgets in the last two years, and several have prison systems in crisis.  But if gubernatorial candidates are planning to address the problems, they’re mostly not being specific about how.

California is the most prominent.  Next year, the U.S. Supreme Court will rule on a lower-court three-judge panel’s decision to require the agency to reduce the state’s inmate population by 40,000 — nearly one-quarter of the prisoner total — because of overcrowding.

But in a tight race, the gubernatorial candidates have shied away from addressing the issue in detail.  Democrat Jerry Brown, who is also the Attorney General, has defended the Schwarzenegger administration’s appeal to the high court for a reversal of the decision, as required by law.  For her part, Republican Meg Whitman has alleged that Brown has a history of being soft on crime, without offering much evidence.

Likewise, the probable winner in the Kansas race — Senator Sam Brownback — has yet to discuss how he’ll address the state’s overflowing prisons.  In August, the Kansas Sentencing Commission reported a prison population of 8269, ten more than the system’s capacity, and the commission projects the population rising by another 2000 over ten years.

Until recently, Kansas was a model of forward-thinking prison policy.  In response to a high rate of re-offending by ex-prisoners, in 2007 the state legislature funded a range of programs — such as education, drug treatment, and supportive housing — to help them reintegrate.  The approach appeared to work: the number of ex-offenders returning to prison dropped by 16 percent from 2007 to 2009.  But Republican state representative Pat Colloton told The Crime Report that when the economic crisis hit, the programs were cut.  In 2010, the number of former offenders returning to prison has spiked 16 percent, back to the 2007 level.... 

“I think whoever wins in Kansas is going to face some really difficult choices,” Roger Werholtz, Kansas’ corrections chief, told The Crime Report.  “You either spend more on corrections, taking the money from someplace else, or you look at controlling the [prison] population.  My view of the analysis that’s been done by the Sentencing Commission is that the only way you’re going to control the population is through sentencing policy.”

But if changes in sentencing are part of the solution to overcrowding in some states, they’re also being used by challengers to bludgeon incumbents.  In New Hampshire, the governor’s race has turned ugly over the Justice Reinvestment Act signed by Democratic governor John Lynch in June 2010....

[I]n at least two other states, front-running gubernatorial challengers are talking tough.  In Tennessee, Republican Bill Haslam, who has an 28-point lead over Democrat Mike McWherter in the latest poll, is running on tougher state sentencing laws, promising to minimize costs by using his management experience to improve the corrections system’s efficiency....

In Pennsylvania, the platform of front-runner Republican Tom Corbett doesn’t mention his crime policy.  But he is on record criticizing sentencing reform, expressing skepticism in 2008 of a state law passed that year that awarded prisoners time off their sentences for good behavior.  “I am going to take a look at what the crime rate is when that goes into effect,” he said, “and I want to see what it looks like five years from now,” adding that the law meant that Pennsylvania would no longer be a “truth in sentencing” state.

October 31, 2010 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Will the US Sentencing Commission's forthcoming mandatory minimum report make any big news?

In October 2009, Congress directed the US Sentencing Commission to undertake a comprehensive review of mandatory minimum sentencing penalties in one provision of the Matthew Shepard and James Byrd Hate Crimes Prevention Act, and report its findings and recommendations to Congress.  I believe that report is due to be released by the USSC this coming week, and I am eagerly waiting and hoping for the USSC to make some bold statements about the harms of the mandatory minimum sentencing provisions.

Even if the USSC report is not bold in terms of recommendations, it should still include lots of interesting and fresh data about the application and operation of mandatory minimum sentencing provisions.  As explained by the USSC's current chair at a May 2010 USSC hearing about mandatory minimums (transcript here), this USSC report is required to cover a lot of ground:

[F]irst, compilation of all mandatory minimum sentencing provisions under 17 federal law;

Second, an assessment of the effect of mandatory minimum sentencing provisions under federal law, on the goal of eliminating unwarranted sentencing disparity and other goals of sentencing; 

Third, an assessment of the impact of mandatory minimum sentencing provisions on the federal prison population;

Next, an assessment of the compatibility of mandatory minimum sentencing provisions under federal law and the sentencing guidelines system which was established under the Sentencing Reform Act of 1984, approximately 25, slightly more than 25 years ago; and also compatibility with the sentencing guidelines system in place since Booker v. United States, decided just a little bit over five years ago;

Next, the bill provides for a description of the interaction between mandatory minimum sentencing provisions under federal law and plea agreements entered into by practitioners; 

Next, the piece of legislation calls for a detailed empirical research study of the effect of mandatory minimum penalties under federal law, and a discussion of mechanisms other than mandatory minimum sentencing laws by which Congress can take action with respect to sentencing policy; [and]

The report may also include any other information that the Commission determines would contribute to a thorough assessment of mandatory minimum provisions under federal law.

October 31, 2010 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack