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November 20, 2010

"Attorney: Man Dealing With Poison Ivy, Not Masturbating"

A helpful reader altered me to this amusing article carrying the headline that I made the title of this post.  Here are the comical details:

A sex offender treatment supervisor for a Kentucky prison has been charged with indecent exposure. Charles Lickteig II, 48, is now on administrative leave from the Luther Luckett Correctional Complex in LaGrange.

According to court records, Lickteig had stopped his vehicle at Lime Kiln Lane and U.S. 42 when a woman pulled up beside him. She claimed Lickteig's genitals were exposed and he was masturbating.  She also said Lickteig looked at her and he knew she saw him.

Court records also said the woman later saw Lickteig at the same intersection and was able to get the license plate number to Lickteig's car and called police. Licktieg was arrested on Oct. 14 and pleaded not guilty to second-degree indecent exposure.

Lickteig's attorney, Alex Dathorne, said Lickteig was also a police officer for eight years. "So he's quite in tune with the seriousness of these allegations and also the embarrassment that goes with simply making the allegations," Dathorne said.

Dathorne said there may be a reasonable explanation for what is now a very serious charge....  Dathorne said his client was not sexually gratifying himself, but instead, Lickteig was trying to deal with a severe case of poison ivy.

November 20, 2010 in Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

"State Victim Advocate: Too Many Plea Deals"

The title of this post is the headline of this interesting new piece in the Hartford Courant.  Here are excerpts:

More than 95 percent of cases in the state's court system over the past four years were resolved without a trial, meaning too many end with plea bargains built on watered-down charges, the state victim advocate said Friday.  People have died as a result, specifically in domestic violence cases, said the advocate, Michelle Cruz.

Cruz outlined her concerns in a four-page letter to the state Office of Policy and Management Thursday.  She asked for a study of the number of criminal trials in the state, how long it takes to prosecute them, how many cases are resolved with plea bargains and why....

Although some sentences arise from plea deals for valid reasons, Cruz wrote, "the plea bargain process has been exploited."  Defendant often agree to plead guilty to a lesser charges in order to avoid a trial.  There are times when plea bargains are legitimate, Cruz said — such as if the state lacks evidence or wants to avoid having a child testify against someone who has sexually abused him or her.  But there are too many "administrative" plea bargains, she said.

"After three years of being in Connecticut looking at cases, what I see is a pattern of defendants who are allowed to plea to a more lenient charge that often doesn't resemble the conduct," said Cruz, who was a prosecutor in Massachusetts.  The lesser, substituted charge "doesn't reflect the seriousness of the offense," she said.

Her letter also said too many undeserving defendants are put in programs that keep them out of jail, and that, in general, court cases take too long to resolve.  Cruz cited some specific examples of what she considers improper plea deals:

--Charges in a manslaughter case stemming from a double-fatal, drunken driving crash on I-95 were reduced to driving under the influence and evading responsibility.

--A man who was put in a diversionary program after a domestic violence case later killed his wife and then himself in West Haven.

--A charge of violation of a protective order in a domestic violence case was reduced to breach of peace; the defendant has since been charged with killing another woman.

--A home invasion charge was reduced to burglary....

State Rep. Michael Lawlor, chairman of the legislature's judiciary committee, said he agrees that there are not enough trials and that it is a problem.  He said that he has spoken with Chief State's Attorney Kevin Kane about the lack of trials — which he said is mostly a problem in lower courts where less serious cases are handled — and that Kane agrees there has to be more of an effort to bring cases to trial.

Lawlor, a criminal justice professor who also is a former state's attorney, said prosecutors who don't often take cases to trial get "rusty" and become more and more reluctant to try cases.  Good defense attorneys can sense this and will push for a better deal for their clients in exchange for a guilty plea, he said.  "I do think the end result is plea bargains are more lenient than you want them to be," Lawlor said.

Changes to encourage more trials, such as moving staff around and providing extra training, may happen in the next few years under the leadership of Gov.-elect Dannel Malloy, himself a former prosecutor, Lawlor said.

November 20, 2010 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5) | TrackBack

Complaints about capital justice delayed in Nevada

Echoing a similar piece from Ohio noted earlier this week, a local station in Las Vegas has this new piece about capital justice delayed in Nevada.  The story is headlined "Victim's Families Wait Decades for Death Penalties to be Carried Out," and here are excerpts:

For all practical purposes, the death penalty in Nevada functions as a sentence of life without parole.  In the last 30 years, the state has executed just one person who wasn't a volunteer.  Advocates on both sides of the issue agree the system doesn't work, but no one is more frustrated by it than the families of the victims....

[M]ore than half of the 83 inmates currently on death row have been there a decade or longer. Two have surpassed the 30 year mark.  They are delayed due to constitutionally-protected appeals of the process that put them there.

"I can sympathize with the victims," said Chief Deputy District Attorney Steve Owens. "We have a death penalty. Is it being carried out the way it was intended? I don't think so. I don't see that we ever really reach an end where people are running out of their appellate rights."...

"They shouldn't be allowed a second and third and fourth bite at the apple," said Owens. "You shouldn't have to review a case for 20 years to decide whether this was a valid imposition of the death penalty."

UNLV law professor Christopher Blakesley echoes the frustrations on both sides of the debate.  Yet ultimately, he defends the existing process absent a workable alternative. "You have to do it right because there are so many innocent people that we're finding out have been convicted and if you don't go through all this, they'll be executed," he said.

People like former Nevada death row inmate Ronnie Milligan, recently ordered released after 20 years.  Evidence uncovered during his death penalty appeal suggests he may be innocent of murder.

November 20, 2010 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (7) | TrackBack

November 19, 2010

Texas Court of Criminal Appeals rejects attack on juve LWOP for murderer

As detailed in this report in the Austin American-Statesman, earlier this week the Texas Court of Criminal Appeals held that "sentencing juvenile murderers to life in prison without any chance of parole is not unreasonably harsh."  Here are more details (along with links inserted to the opinions ):

Chris Joshua Meadoux, convicted of killing two San Antonio friends when he was 16, argued that his no-parole sentence violated the U.S. Constitution's ban on cruel and unusual punishment because juveniles lack maturity, judgment and an adult's sense of responsibility.

But in a 7-2 ruling, the state's highest criminal court said that juveniles may be less morally culpable than adults, but some actions justify imposing the second-harshest penalty available in Texas.

"Given the enormity of the crimes committed by juvenile capital offenders, the Legislature could reasonably conclude that such offenders are incorrigible and that the only prudent course of action is to separate them from society forever," said the opinion [available here], written by Judge Charles Holcomb.  

Although Texas law no longer allows the practice, life without parole was available for juvenile capital murder defendants who were tried as adults from 2005 to 2009.  Twenty teens were sentenced to remain jailed until they die, including Meadoux, now 20.  

A dissenting opinion [available here] by Judge Lawrence Meyers said the court should have ordered new punishment hearings for Meadoux and the other juvenile offenders. Meyers noted that after the U.S. Supreme Court banned executing juvenile killers in 2005, sentences for the affected inmates were commuted to life terms with the possibility of parole after 40 years served. "It's ridiculous to say that a juvenile who was not even eligible for the death penalty" should receive a harsher no-parole sentence, he wrote in the dissent joined by Judge Cheryl Johnson.

In 2005, the Texas Legislature voted to let jurors choose life without parole or execution for capital murder.  Four years later, the law was amended to ban no-parole sentences for those who committed murder while younger than 18.   Several legislators said the move was intended to correct an oversight in the 2005 law, but the no-parole ban was not made retroactive....

The case is Meadoux v. Texas, PD-0123-10.

November 19, 2010 in Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (7) | TrackBack

Notable new publication on deterrence from The Sentencing Project

Today I received an e-mail about a new publication about deterrence from the folks at The Sentencing Project.  Here is the text:

We are pleased to let you know of our new publication, Deterrence in Criminal Justice: Evaluating Certainty versus Severity of Punishment by Valerie Wright, Ph.D. The report addresses a key concern for policy makers regarding whether deterrence is better achieved by increasing the likelihood of apprehension or increasing the severity of sanctions. Overall, the report concludes that:
  • Enhancing the certainty of punishment is far more likely to produce deterrent effects than increasing the severity of punishment.
  • Particularly at high levels of incarceration, there is no significant public safety benefit to increasing the severity of sentences by imposing longer prison terms.
  • Policies such as “three strikes and you’re out” and mandatory minimum sentences only burden state budgets without increasing public safety.
  • Evidence-based approaches would require increasing the certainty of punishment by improving the likelihood of detection.
At a time when fiscal concerns have propelled policymakers to consider means of controlling corrections budgets, the findings on deterrence suggest that a focus on examining harsh sentencing practices is long overdue.  In many cases prison terms could be shortened without having any adverse effects on public safety.  I hope you find this publication useful in your work.

November 19, 2010 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

"It's 'give back' time: Locally grown foods and criminal sentences"

The title of this post is the headline of this interesting op-ed in today's Chicago Tribune authored by Professors Lynn Branham and Bruce Branham.  As the title hints, the piece has a creative proposal for an alternative sentencing program. Here are excerpts:

A few months ago, the two of us were, once again, victims of crime — burglary and theft. We felt what so many crime victims feel. Invaded. Vulnerable. Angry.

What we soon discovered, though, was that there were limits — rational limits — to our anger toward those who had victimized us. When we asked each other whether we wanted these people sent to jail or perhaps even prison if they were caught and convicted, the answer, to our surprise, was no. We wanted something more.

What we really wanted was not to "get back" at the perpetrators of the crimes. What we wanted was for them to "give back" for the harm their crimes had caused.

That harm, we recognized, went far beyond us. Those who commit crimes also fracture neighborhoods and communities, instilling all of us with resentment, fear and distrust.

So if we were to craft a penalty for the malefactors who stole from us, what would it entail? Work. Hard work. Productive work. Work that makes amends for their crimes by helping others.

Which brings us to what many consider the "wastelands" in Chicago. You know. The places rived by crime and poverty. The places from which a disproportionate percentage of the inmates in the local jail and the state's prisons hail. The places where hope can seem mythical.

What people may not know about these areas of the city is how difficult, and sometimes impossible, it is for people living in them to obtain fresh or homegrown foods. There is, it is true, a burgeoning movement in this country to make locally grown foods readily available. The goals are to make our meals tastier, our health improved and our waistlines, hopefully, smaller.

But the local foods movement has largely missed the poor and decimated parts of urban cities.  One of us, a horticulturist, witnessed this gap while working with a ministry in Chicago that wants to grow and distribute fresh produce to the poor.  During that endeavor, it became apparent to both of us that a structure needs to be put in place to facilitate the growing, preserving, distribution and preparation of healthy foods in poor neighborhoods of Chicago.

That structure can come from what many might consider the most unlikely of sources — the criminal justice system.  Prisons and jails in this state are overflowing with inmates whiling away their time, at enormous expense to taxpayers.  Many of these criminals can be enlisted in making locally grown foods readily accessible to the poor.  Tilling, planting, weeding, harvesting and distributing fresh produce, as well as preserving some of it, takes a lot of time. And that is something that inmates have an abundant supply of.

The local foods work crews laboring to help the poor, however, would not be composed solely of incarcerated individuals.  In fact, developing a structure to provide judges the option of imposing this kind of "work sentence" would obviate the need or perceived need to incarcerate many of those who now wind up in prison or jail.  These exorbitantly expensive incarceration resources could then be conserved for the violent and incorrigible offenders for whom incarceration is the only viable sentencing alternative.

November 19, 2010 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Federal judge cutting deal to avoid prison time for drugs, guns and stripper activities

As reported in this piece in the Atlanta Journal-Constitution, which is headlined "Federal judge to plead guilty in drug case," senior U.S. District Judge Jack Camp appears to have worked out a sweet plea deal following his arrest on various drug and gun offenses.  Here are some of the specifics:

Senior U.S. District Judge Jack Camp, whose arrest on charges of buying drugs and his relationship with a stripper shocked the state's legal community, will plead guilty Friday to federal charges, his lawyer said.  “We’ve reached a mutually agreeable resolution of the case,” Atlanta attorney Bill Morrison said Thursday.  Morrison would not disclose the specific charges the judge would plead guilty to.

Camp, 67, is scheduled to enter his plea in Atlanta before Senior U.S. District Judge Thomas Hogan, a judge from Washington who was assigned the case.  On Thursday, Hogan disclosed Camp's decision to enter a guilty plea in an entry on the court's online docket sheet.

In a court filing Thursday, federal prosecutors indicated Camp will plead guilty to at least one felony charge -- aiding and abetting a felon's possession of cocaine, a painkiller and marijuana.  The filing did not disclose whether Camp will enter pleas to other charges.

Camp could avoid prison time if, as expected, his agreement with federal prosecutors does not require him to plead guilty to the most serious charge against him — being an illegal drug user who was found in possession of a handgun — said Steve Sadow, an Atlanta defense attorney who is not involved in the case.  Federal sentencing guidelines recommend at least five months in prison for that charge, Sadow said. If Camp pleads guilty to lesser charges, he could receive probation, home confinement or time in a halfway house, he said.

Camp, a member of a prominent Coweta County family, was appointed to the federal bench by President Ronald Reagan in 1988.  He was serving as chief judge when he took senior status at the end of 2008.

Camp was arrested in early October, and a detailed affidavit by an FBI agent accused the judge of buying cocaine, marijuana and prescription painkillers.  The affidavit said Camp shared the drugs with an exotic dancer he met last spring at the Goldrush Showbar in Atlanta.

Camp, who is married, met the dancer when he purchased a private dance from her, the affidavit said.  He returned the next night and purchased another dance and sex from her, and the two then began a relationship that revolved around drug use and sex, according to court records.

The stripper began cooperating with the FBI, and on Oct. 1 she asked Camp to follow her to a drug deal to protect her.  Camp agreed, saying, "I'll watch your back anytime. ... I not only have my little pistol, I've got my big pistol so, uh, we'll take care of any problems that come up," the affidavit said.

Though federal practitioners can and should correct me if I am wrong, I believe it is fairly uncommon that a defendant involved in a series of drug transactions with the involvement of firearms will be able to cut a plea deal that enable him to potentially avoid any prison time. I am not directly asserting that Judge Camp is getting special treatment, but I do think the judge's own familiarity with the ins-and-outs of federal criminal law and practice likely played a significant role in how this case is getting resolved.

In the end, I will be surprised if any plea deal here locks in a specific sentence of Judge Camp. Assuming the deal leaves Judge Hogan with some sentencing discretion, I would not be surprised if Judge Camp still may face some hard time. (And perhaps readers might want to give Judge Hogan some early sentencing advice via the comments.)

Related post (which generated lots of comments):

UPDATE:  This new AP report provides details on the basics of the plea that was entered today:

U.S. Senior Judge Jack T. Camp pleaded guilty to the felony charge of aiding and abetting a felon's possession of cocaine when he bought drugs for the stripper, who was secretly cooperating with authorities. He also pleaded guilty to two misdemeanors: possession of illegal drugs and illegally giving the stripper his government-issued laptop.

Camp, 67, faces up to four years in federal prison when he is sentenced March 4, but he is likely to get less time. Camp also agreed to resign from the bench and cooperate with any questions authorities may have regarding the cases he handled while he was being investigated.

When a judge asked Camp if the charges were accurate, he replied, "I regret ... I am embarrassed to say it is, your honor." Neither he nor his attorneys offered any explanation for his actions.

November 19, 2010 in Booker in district courts, Celebrity sentencings, Drug Offense Sentencing, Gun policy and sentencing, Who Sentences | Permalink | Comments (14) | TrackBack

Out-going Ohio Governor giving focused attention to clemency requests

As detailed in this local article, which is headlined "Gov. Strickland plans to decide on 1,200 clemency requests before leaving office," Ohio's out-going governor is planning to get through a huge pile of clemency petitions before he is out of his job.  Here are some details:

Before leaving office Jan. 9, Gov. Ted Strickland said he hopes to make decisions on all 1,200 applications for clemency now piled on his desk. “I’ve been working through them. I’ve been spending hours and hours and hours.  I spent about three hours this morning working on them,” Strickland said on Thursday.

He said these days he is spending the majority of his time on the clemency applications and he expects to rule on a batch of clemency requests within a week or so.  Strickland, a former prison psychologist, said some applications aren’t good candidates for extensive consideration while others are more complex....

A year ago, Strickland granted 68 pardons, commuted 10 sentences and denied 218 other requests for clemency.  During his tenure, he also granted commutation to five death row inmates but signed off on the executions of 17 men....

“I’m trying to be fair and deliberative in my decision making.  I don’t want to just start picking and choosing what I look at based upon, I mean, A lot of people are calling about a lot of cases: ‘Can you look at this?’...I don’t think that’s the way this process ought to be handled,” he said.  “I think it ought to be handled carefully and deliberatively and that’s what I’m trying to do.”

During his eight years as governor, Republican Bob Taft granted 77 clemency requests, or 5.7 percent of the 1,355 applications received and processed.  And in his final days in office in 1991, Democrat Richard Celeste sparked headlines when he commuted the sentences of eight death row inmates to life without parole and granted pardons for 25 women who blamed their crimes on battered women syndrome.

November 19, 2010 in Criminal Sentences Alternatives, Who Sentences | Permalink | Comments (0) | TrackBack

Senator Dorgan pushing AG Holder to push states on AWA sex offender tracking

As detailed in this news piece, which is headlined "Senator to push states to comply with sex offenders law," at least one member of the Senate is not happy that the Justice Department keeps giving states more time to comply with the sex offender registration provisions of the Adam Walsh Act.  Here are the details:

A senator who sponsored a key provision in the Adam Walsh Act mandating better tracking of convicted sex offenders wants the Department of Justice to stop allowing states to ignore a key provision of the law.

Sen. Byron Dorgan, D-N.D., said Thursday he would ask the Justice department to stop giving extensions to the 46 states that have failed to come into compliance with the landmark 2006 law.  The first deadline for the states was in July 2009.  The deadline has since been extended twice.

Dorgan said that, without extensions, the states risk losing tens of millions of dollars if they don't update their tracking systems — and in some cases pass state laws — by the current July 2011 deadline.

Because states keep their own sex offender databases, their records often don't sync well with files from other jurisdictions. A driving idea behind the Adam Walsh legislation was that uniform definitions and bookkeeping standards would help form a more seamless national tracking system, helping make sure convicted sex offenders don't slip through the cracks....

Dorgan's action comes less than two weeks after a Scripps Howard News Service investigation found that the location of 100,000 convicted sex offenders is unknown to authorities. In all, more than 700,000 offenders have been convicted of a sex crime in the United States — a number that has grown by 100,000 since 2006, according to records from the National Center for Missing and Exploited Children.

At issue is the Sex Offender Registration and Notification Act, which is part of the Adam Walsh law.  The registration provision requires a three-tiered offender classification system and the listing of offenders for between 15 years and life, depending on the severity of the crime.

Only four states — Delaware, Florida, Ohio and South Dakota — have the upgraded systems in place, though some other states are close to being onboard....  Under the Adam Walsh law, states that don't update their sex offender tracking may lose 10 percent of their share of funds from the Edward Byrne Memorial Justice Assistance Grant program, the primary federal source of funds for state and local criminal justice programs.

Previous deadlines to enact the tighter sex offender rules came and went without the Justice department withholding the grant money.  "It's now time to say to the rest of them, 'Look, you've had time to comply if you've decided not to comply, here's the penalty — you're going to lose a portion of your Byrne Grant funding'" Dorgan said.

November 19, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (15) | TrackBack

"Rethinking Criminal Justice — Why Black Prosecutors Matter"

The title of this post is the headline of this interesting new piece appearing in New America Media.  Here is how it begins:

Nearly three weeks after the midterm elections, the winner of the hard-fought race to become California’s next attorney general has not been determined. Kamala Harris, the San Francisco district attorney, holds a razor-thin lead over Steve Cooley, her Los Angeles County counterpart, with some 680,000 votes remaining to be counted.

While the stakes are highest for California residents, the AG race is also being watched closely in legal circles nationwide, especially by people concerned about criminal justic policies and practices that have a harmful affect on communities of color.  They support Harris’ efforts to address these issues.

As San Francisco’s chief prosecutor, Harris is among a current crop of elected black DAs who are transforming the way crime is addressed, suspects are prosecuted, and punishment is meted out.  Her innovative approaches for being “Smart on Crime,” instead of simply “tough on crime” are have gained political currency for being thoughtful and pragmatic and are being borrowed by DAs around the country, particularly those in communities with large black, Latino or other minority populations.

November 19, 2010 in Elections and sentencing issues in political debates, Race, Class, and Gender, Who Sentences | Permalink | Comments (3) | TrackBack

Regular executions not stopping complaints about capital justice delayed in Ohio

I was intrigued and somewhat surprised to see this segment, headlined "Death Penalty Cases Stalled In Appeals Court," on my late local news last night.  Complaints about the slow pace of death penalty appeals seem less common when a state is regularly conducting executions, but Ohio's monthly executions of late did not even get mentioned in this local piece spotlighting appellate delays in the review of Ohio capital cases.  Here are excerpts:

They have been convicted of murder and sentenced to death but in many cases their appeals and their death sentences -- are stuck on hold.   Proceedings at the Sixth Circuit Court of Appeals, which covers several states including Ohio, often stall, even after all of the arguments have been made, 10 Investigates' Paul Aker reported on Thursday....

Three men broke into Norman Stout's home 26 years ago.  They attacked him and fired two gunshots at his head, one of them striking Stout between his eyes.... The attackers then went after his wife of 34 years, Mary Jane Norman. "I did hear the last four shots that killed her," Stout said....

The court sentenced two of the attackers to prison, but decided one of them, David Stumpf, should die for the crime.  While Stout was spending his years visiting his wife at the cemetery, Stumpf spent them appealing his death penalty ruling.

Finally, Stumpf got a hearing before the U.S. Supreme Court, but it sent the case back to the Sixth Circuit Court of Appeals.  The case was argued more than three years ago but there is still no decision.

Ohio's Attorney General recently filed a motion asking the court to rule, Aker reported. Stumpf is still alive and Stout still waits for an answer. "I want them to do their job," Stout said. "To earn the money they're drawing monthly."

[I]t is not just one case being delayed.  10 Investigates scoured thousands of court records and isolated cases involving death penalty issues.... The investigation revealed six cases, five from Ohio, that all involved murders committed in the 1980s or early 1990s.  10 Investigates also examined four nearby circuit courts and between all of them, there were only two cases that had waited anywhere near a year, Aker reported....

Officials could not talk about the specifics of the case, but Chief Judge Alice Batchelder said death penalty cases often take a long time because judges need to thoroughly review records and the outcomes are so important.  Batchelder also said the court has to deal with an extremely high caseload.

Until the court finds a way to speed up the process, an 80-year-old man with lead in his brain and a hole in heart has no choice but endure the pain of waiting.  "The system is broken," Stout said.

November 19, 2010 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2) | TrackBack

November 18, 2010

"Ghailani Still Faces Stiff Penalty for Bombings"

The title of this post is the headline of this lengthy and effective new CBS News piece discussing some of the sentencing issues following yesterday's conviction (on only one of 285 counts) of a former GITMO detainee tried in civilian court.  Here are excerpts:

When he is sentenced in January, al Qaeda operative Ahmed Khalfan Ghailani, 36, faces a minimum 20 years of imprisonment, and a possible life sentence, for his conviction Wednesday for his role in the 1998 U.S. embassy bombings in East Africa.

In the first federal terrorism trial of a former detainee at the prison camp at the U.S. naval base in Guantanamo Bay, Cuba, a civilian jury found Ghailani guilty, but only of one of 285 counts levied against him: conspiracy to destroy buildings and property of United States by means of an explosive.

Although the jury determined Ghailani had a hand in a conspiracy that resulted in death, the panel found him personally not guilty on all 224 murder counts -- 11 for those who died in truck bombing of the American embassy in Dar es Salaam, Tanzania, the focus of his trial, and for the 213 people who died in nearly simultaneous explosion in Nairobi, Kenya, on Aug. 7, 1998.

"At the start of this trial, we believed Ahmed was truly innocent of all these charges," lead defense attorney Peter Quijano said outside the Lower Manhattan courthouse Wednesday evening. "We still truly believe he is innocent of all the charges."...

The jury found Ghailani not guilty of four other conspiracy counts, including the top count of the indictment, al Qaeda's global conspiracy to kill Americans, which would have guaranteed the same life sentence being served by four men convicted in the embassy bombings conspiracy in a 2001 trial.

U.S. District Judge Lewis Kaplan, who presided over the month-long trial, scheduled Ghailani's sentencing hearing for January 25, 2011, at 11 a.m. "He will face, and we will seek, the maximum sentence of life without parole when he is sentenced in January," said Preet Bharara, U.S. attorney for the Southern District of New York, in a written statement....

The jury was told that Ghailani was captured in Pakistan in July 2004, but was provided no information about his alleged activities while a fugitive for six years following the Africa bombings or anything about his six years in custody.

He spent two years in a secret CIA prison overseas, where he was subjected to "enhanced interrogation techniques" his lawyers called torture. Then he was moved to Guantanamo for three years before his transfer to the U.S. last year. He has been held in the high security wing of the Metropolitan Correctional Center adjacent to the courthouse....

Over the course of the past month, the jury heard 13 days of testimony and evidence, with 50 prosecution witnesses and hundreds of government exhibits, and two days of closing arguments.  More than a third of the witnesses, including embassy bombing survivors from Africa and FBI agents, had previously testified in the 2001 trial. The defense called no witnesses, nor did the defendant testify....

The government has achieved more than 200 convictions in terrorism-related prosecutions since 9/11 and a 90 percent conviction rate, according the the NYU Center on Law and Security, which tracks theses cases....

With Ghailani facing a 20 year minimum sentence, his attorneys plan to argue that he should get credit for six years served in U.S, custody, a consideration with other al Qaeda suspects detained as "enemy combatants" prior to seeing their legal situations resolved in federal court, such as Jose Padilla and Ali al-Marri.  The defense teams also plans to file a motion for a new trial on the one conspiracy count for which Ghailani was convicted.

If prosecutors fell short, they failed to persuade all the jurors that Ghailani knowingly and willfully participated in the overall al Qaeda conspiracy or that he knew its lethal goals in East Africa.  "We never disputed that he engaged in certain conduct," Quijano said of Ghailani.  "The question both strategically as well as legally, was whether there was proof that he knew."

Unsurprisingly, most of the immediate post-verdict discussion has been about what this result means for the Obama Administration's apparent interest in trying many former GITMO detainee in civilian courts. But, also unsurprisingly, I am immediately interested in the array of unique (and not-so-unique) sentencing issues that Judge Kaplan will be facing. The Government will surely emphasize so-called "acquitted conduct" as part of its advocacy for an LWOP sentence, and I have a feeling prosecutors will adopt an approach to guideline calculations that will have the advisory range urge life as well. Meanwhile, the defense seem likely to urge the minimum sentence of 20 years (as well as credit for time served), and it is especially interesting to speculate about how both sides will spin arguments around all the 3553(a) factors. In other words, sentencing fans, stay tuned.

November 18, 2010 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4) | TrackBack

Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases

I am very pleased to have learned this morning of a potent two-page letter, dated November 17, 2010, signed by Senator Patrick Leahy and Senator Dick Durbin to Attorney General Eric Holder, which urges the Justice Department to "apply [the Fair Sentencing Act's] modified mandatory minimums to all defendants who have not yet been sentenced, including those whose conduct predates the legislation's enactment."  Here is most of the text from the letter (which can be downloaded below):

The preamble of the Fair Sentencing Act states that its purpose is to "restore fairness to Federal cocaine sentencing." While the Fair Sentencing Act did not completely eliminate the sentencing disparity between crack and powder cocaine, as the Justice Department had advocated, it did significantly reduce the disparity. We believe this will decrease racial disparities and help restore confidence in the criminal justice system, especially in minority communities.

Our goal in passing the Fair Sentencing Act was to restore fairness to Federal cocaine sentencing as soon as possible. As Senator Durbin said when the Fair Sentencing Act passed the Senate: "We have talked about the need to address the crack-powder disparity for too long. Every day that passes without taking action to solve this problem is another day that people are being sentenced under a law that virtually everyone agrees is unjust." You expressed a similar sentiment in testimony before the Senate Judiciary Committee, when you urged Congress to eliminate the crack-powder disparity: "The stakes are simply too high to let reform in this area wait any longer."

This sense of urgency is why we required the U.S. Sentencing Commission to promulgate an emergency amendment to the Sentencing Guidelines. The revised Guidelines took effect on November 1,2010, and will apply to all defendants who have not yet been sentenced.

And this sense of urgency is why the Fair Sentencing Act's reduced crack penalties should apply to defendants whose conduct predates enactment of the legislation but who have not yet been sentenced. Otherwise, defendants will continue to be sentenced under a law that Congress has determined is unfair for the next five years, until the statute of limitations runs on conduct prior to the enactment of the Fair Sentencing Act. This absurd result is obviously inconsistent with the purpose of the Fair Sentencing Act.

As you know, Judge D. Brock Hornby, an appointee of President George H.W. Bush, recently held that the Fair Sentencing Act's reduced mandatory minimums apply to defendants who have not yet been sentenced. In his opinion, Judge Hornby wrote, "what possible reason could there be to want judges to continue to impose new sentences that are not 'fair' over the next five years while the statute of limitations runs? ... I would find it gravely disquieting to apply hereafter a sentencing penalty that Congress has declared to be unfair." We wholeheartedly agree with Judge Hornby.

We were therefore disturbed to learn that the Justice Department apparently has taken the position that the Fair Sentencing Act should not apply to defendants who have not yet been sentenced if their conduct took place prior to the legislation's enactment. In his opinion, Judge Hornby states that the Assistant U.S. Attorney in the case said he understood this to be the position of the Department of Justice.

Regardless of the legal merits of this position, the Justice Department has the authority and responsibility to seek sentences consistent with the Fair Sentencing Act as a matter of prosecutorial discretion. This is consistent with your view that reforming the sentencing disparity "cannot wait any longer." It is also consistent with the Justice Department's mission statement, which states that the Department should "seek just punishment for those guilty of unlawful behavior" and "ensure fair and impartial administration of justice for all Americans."... In this instance, justice requires that defendants not be sentenced for the next five years under a law that Congress has determined is unfair.

Therefore, we urge you to issue guidance to federal prosecutors instructing them to seek sentences consistent with the Fair Sentencing Act's reduced mandatory minimums for defendants who have not yet been sentenced, regardless of when their conduct took place. Additionally, please provide us with any guidance that you have already issued to federal prosecutors regarding implementation of the Fair Sentencing Act.

Download Fair Sentencing Act AG Holder letter 111710

Regular readers may recall this post of mine from a few weeks ago in which I wondered "Why is Obama's DOJ, after urging Congress to 'completely eliminate' any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?".  I am extraordinarily pleased to discover that two US Senators who played a leading role in the FSA's enactment are wondering the same thing.

I hope and certainly expect that this important and potent letter generates more of an official response from the Justice Department than did by blog post.  More importantly, I hope (though I am not sure if we can expect) that this important and potent letter greatly increases the likelihood that many not-yet-sentenced defendants will be subject to the FSA's new sentencing provisions.

Some recent related posts:

November 18, 2010 in New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4) | TrackBack

"Arizona mandatory-sentencing laws targeted"

The title of this post is the headline of this article about a debate over budget-driven sentencing reform talk among legislators in Arizona.  Here are excerpts:

A GOP lawmaker on Wednesday vowed to propose legislation next year that would give Arizona judges more discretion when sentencing criminals, but another promised to block it.

Rep. Cecil Ash, R-Mesa, who chairs a state legislative committee studying prison sentencing, said the bill would seek to loosen mandatory-sentencing laws, provide more just punishment and save Arizona money.  Mandatory-sentencing laws adopted in the 1990s in Arizona and across the nation have "tied the hands of judges" and left Arizonans paying millions of dollars to imprison non-violent criminals, he said....

Growth in the inmate population has made the state's prison system Arizona's third-largest expense behind education and health care, Ash said.  According to a Department of Corrections analysis, Arizona's prison population is roughly 10 times bigger than it was 30 years ago.

Ash said Arizona had surpassed many states' incarceration rates. "With a population of roughly 6.5 million, we have over 40,000 inmates," Ash said. "The state of Washington, with a population slightly larger than Arizona, has roughly 18,000."

Ash cited the state's budget crisis as reason for looking for ways to decrease spending in the state's corrections system. "I think we can make some improvements that ensure public safety," he said. "The purpose isn't to let people out of prison early; the purpose is to stop wasting resources."

But fellow GOP lawmaker Sen. Ron Gould, the incoming chairman of the Senate Judiciary Committee, said Tuesday that Ash's bill would "never see the light of day."  Gould heads the committee that the bill would likely be assigned to.

"Just because he's a member of my party . . . it's not getting my support," Gould said. "It's beyond a money issue.  It's a principal issue.  I think I have the support of 21 (Senate) Republicans who are not going to allow (for) letting criminals out early."

The attitudes and rhetoric used by state Senator Gould here presents the critical impediment to cost-effective sentencing reforms. I remain hopeful that tea-party types will generally not tolerate politicians placing off-limits entirely cuts in the third-biggest government expense, but this article again highlights the reality that many readily assert that fiscally conservative cuts should not be made to any big government criminal justice expenditures.

November 18, 2010 in Mandatory minimum sentencing statutes, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0) | TrackBack

November 17, 2010

Post-Graham resentencing of juve rapist in Florida already testing meaning of Graham

This local article from Florida, which is headlined "Teenage rapist Jose Walle re-sentenced to 65 years in prison," spotlights the impact of, and enduring questions surrounding, the Supreme Court's recent Graham decision declaring unconstitutional any LWOP sentence for a nonhomicide juvenile offender. Here is how the piece starts:

Circuit Judge Chet A. Tharpe disagreed with a U.S. Supreme Court decision forcing him to re-sentence teenage rapist Jose Walle, who was only 13 when he terrorized two Apollo Beach waitresses at gunpoint.  But on Wednesday, he obeyed the high court, which deemed life sentences unconstitutional for juveniles who didn't kill.

Walle hung his head as Tharpe sentenced him to 65 years in prison, which he will begin to serve after completing the 27 years he got in Pinellas for another rape.  Taking into consideration credits prisoners get, he would be about 91 years old when he gets a chance at freedom.

The defense, which had asked for 27 years to run concurrent to the Pinellas sentence, plans to appeal.  The Supreme Court ruling requires a meaningful opportunity for release.

Prosecutors said even a 75-year sentence would have guaranteed that, taking into consideration Walle's life expectancy and the multiple life felonies he committed. Assistant State Attorney Rita Peters argues that the ruling applies to each crime, not the cumulative years of the sentences for multiple crimes.

But Robert Batey, a criminal law professor at Stetson University College of Law, thinks the Supreme Court was most concerned about the total sentence in comparison to the juvenile's age.  He believes the defense can make a good argument that Tharpe's sentence violates the ruling.

An appellate court may have to decide how consecutive sentences weigh into the math.

Tharpe adhered to the spirit of his original sentence, when he said he needed to protect the public from Walle, whom Tharpe was certain would one day kill.  "Jose Walle knew the difference between right and wrong," Tharpe said Wednesday.  "He has forfeited his right to live in a free society."

November 17, 2010 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (4) | TrackBack

Animal creulty sentence of 12 years in prison stirring debate in Puerto Rico

As detailed in this AP article, in Puerto Rico a "12-year prison sentence for a man who dragged a horse behind his truck has touched off a debate over whether a new animal cruelty law goes too far, when even homicide can result in lighter penalties." Here is more about the case and the controversy:

Georgenan Lopez, who is in his early 20s, is the first person convicted by a jury under the law implemented in August 2008 in response to complaints that the island is indifferent to cruel treatment of animals.

The criticism gained traction - and publicity - in 2007 when authorities seized dozens of dogs from public housing projects and threw them to their deaths from a bridge.

Lopez's attorney said Wednesday that he will appeal, calling the sentence excessive, unusual and cruel, since convictions for crimes like second-degree murder often yield lesser sentences. "They are comparing an animal to a human being," lawyer Julian Claudio said. "The animal didn't even die."

Prosecutor Andres Fernandez said the horse was dragged for about 15 minutes behind the truck as it tried to keep its balance and kept falling down. He said it had a rope around its neck that was tied to the vehicle. He declined to comment on the sentence except to say that the judge was following the law.

Osvaldo Toledo, president of Puerto Rico's Association of Attorneys, said the length of the sentence in a case where the animal survived sets a dangerous precedent.... Toledo added that he would ask lawmakers to review the animal cruelty law to ensure that penalties are in line with the crime.

According to a transcript of the sentencing, Judge Jose Montijo told Lopez he had an attitude problem and did not communicate well with people, and noted that the accused faced burglary and drug charges previously....

Since the dragging incident last February, the mare has gained weight but still limps and can never be ridden, said Lisa Embree, who runs a horse rescue group in northwest Puerto Rico that adopted the animal, dubbed "Little Miracles." She said she feels sorry for Lopez's family, but praised the tough sentence as an important measure to reduce animal abuse.

November 17, 2010 in Offense Characteristics, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

"Nevada judge sentencing some to service, not jail"

The title of this post is the headline of this encouraging local article, and here are excerpts:

In the first days of his three-month stint as interim East Fork justice of the peace, Senior Judge Steven R. McMorris began the process of introducing community service in sentencing minor offenders.

As a result, the population of the Douglas County Jail has been reduced, and county and nonprofit organizations have realized thousands of dollars in savings by employing offenders whose unpaid labor is valued at $20 an hour.

McMorris enlisted the help of Chief Alternative Sentencing Officer Michael Beam and Tahoe Township Judge Richard Glasson in setting up community service. Glasson has had the alternative in place in his court for eight years.

So far, the program has placed workers in the Douglas County libraries, senior center, animal shelter, Indian Hills General Improvement District, area thrift shops, parks, the town of Genoa and the Carson Valley Arts Council....

David Dubra of Gardnerville elected community service in lieu of 48 hours jail time for a first offense of driving under the influence. The 61-year-old was placed at Douglas County Senior Center in Gardnerville and was grateful for the opportunity to remain out of jail.

Dubra said he would work at the senior center with pride. “I’m not crying about it,” he said. “I am quite willing to do it. I’ll bust my butt for them.” Dubra said because of his wife’s health, he was unable to leave her alone for 48 hours had he gone to jail....

Glasson estimated that his court is responsible for generating about 8,000 hours of community service a year. He said offenders sentenced to community service can be placed in any Nevada government agency or charitable or nonprofit organizations.

November 17, 2010 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

ACLU files complaint attacking constitutionality of LWOP for nine juves convicted of murder in Michigan

As detailed in this local article, which is headlined "ACLU fights law sentencing kids to life in prison," the American Civil Liberties Union "sued the State of Michigan today on behalf of nine people who were sentenced to life in prison without the possibility for parole for crimes they committed as juveniles." Here are more details from the press report:

The lawsuit, filed in U.S. District Court in Detroit, says Michigan’s sentencing laws constitute cruel and unusual punishment and violate the constitutional rights of the inmates. All nine were sentenced for first-degree murder or felony murder.

“These life without parole sentences ignore the very real differences between children and adults, abandoning the concepts of redemption and second chances,” Deborah Labelle, lawyer for the ACLU of Michigan’s Juvenile Life Without Parole Initiative, said in a statement accompanying the suit....

Under state law, 14-year-olds charged with certain felonies must be tried as adults. If convicted, they must be sentenced to life in prison without the possibility of parole, eliminating any discretion on the part of the judge....

Today’s lawsuit is part of a national campaign by the ACLU and other groups to overturn juvenile lifer laws. It said 43 states have such laws, but five states — Michigan, Pennsylvania, Louisiana, Florida and California — account for two-thirds of people serving life sentences for crimes committed as juveniles. The ACLU said Michigan has 350 such inmates.

Most of the nine plaintiffs in the case are well into adulthood. They include: Matthew Bentley, 28, who was sentenced to life in prison when he killed a homeowner in Huron County during a break-in when he was 14; Henry Hill Jr., 47, who was sentenced in 1982 for a fatal shooting during a confrontation with other boys in a park in Saginaw even though the ACLU said he didn’t fire the fatal shots; and Jennifer Pruitt, 33, who was sentenced in 1993 in the robbery-murder of a neighbor in Pontiac.

The ACLU said Hill fired shots in the air, not at the victims, and that Pruitt, a 16-year-old runaway, was not aware that the woman who took her was planning to rob the victim.

The ACLU has this press release about the suit on its website, along with this webpage with profiles and pictures of the nine plaintiffs in the suit.  Intriguingly, one of the nine is a woman, and six of the eight male plaintiffs appear to African-American.  This additional ACLU webpageprovides links to additional resources about juve LWOP, including this link to the full 34-page complaint filed today.

November 17, 2010 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

Eleventh Circuit affirms variance of 7+ years above child porn guideline range

The Eleventh Circuit has a notable opinion today in US v. Turner, No. 09-15074 (11th Cir. Nov. 17, 2010) (available here), which affirms an 25-year above-guideline sentence for a child porn downloader.  The district court threw the book at the defendant in this case in large part because, two decades before his child porn possession, had been convicted in Alabama state court first degree sexual assault of a toddler.  The Eleventh Circuit rejected various guideline-based and reasonableness-based challenges to the sentence.

The defendant's criminal history in Turner makes the outcome in the case not all that surprising or troublesome.  Nevertheless, I found it notable that, while so many district judges and circuit courts have been heard to lament the undue severity of the child porn guidelines as applied to those who only download images from the internet, this case provides an example of a district judge concluding that these same guidelines were not nearly severe enough in one particular case. 

November 17, 2010 in Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Indiana Attorney General urges examination of death penalty's costs

As detailed in this effective local article, which is headlined "Lawmakers urged to debate steep costs of death penalty," Indiana's AG is urging his state to consider seriously the economics of the administration of the death penalty.  Here are excerpts from the piece:

Attorney General Greg Zoeller used a legal summit to kick-start a statewide discussion of the financial burdens associated with the death penalty in Indiana.  He told 75 lawyers and law students at a University of Notre Dame event Monday that state lawmakers and policymakers should take a hard look at the costs and fiscal burden of capital punishment cases in Indiana.

But he did not call for a repeal of or moratorium on the death penalty. He also had no specific proposals.  Zoeller said the costs for a lengthy capital murder case can be exorbitant for a county government, including the costs of death penalty-qualified defense lawyers, expert witnesses, courthouse security and lodging for sequestered jurors.

And the costs to taxpayers continue to accumulate during the appeals process that can take 10 years or longer to play out.  It cost more than $500,000 in defense costs alone to try a recent death penalty case in Warrick County, Zoeller spokesman Bryan Corbin said.

And at a time of shrinking revenue and when the judicial branch has little flexibility to cut budgets, Zoeller said legislators and policymakers should look carefully at cost structures driving the expense of death penalty cases at the trial and appellate levels.

“It is time that we in the criminal justice system have a candid conversation about the economic impact of capital punishment in Indiana,” he said.  “I don’t claim to know the answers, but as the state government’s lawyer sworn to uphold the laws of Indiana, I hope we can trigger a frank discussion of these questions.  We serve the crime victims and our constituents –- the taxpayers –- best if we confront a problem directly and objectively.”

Sen. Brent Steele, R-Bedford, chairman of the Senate Corrections, Criminal and Civil Matters Committee, said he doesn’t think lawmakers are interested in getting rid of the death penalty.  “There are some cases that are so heinous in nature that the only penalty that is just is death,” he said....

Larry Landis, executive director of the Indiana Public Defenders Council, believes attempts to cut costs could cause shortcuts in defendants’ due process, increasing the chance of that an innocent person would be executed.  “Cost is really a false issue,” Landis said. “We’re only dealing with a handful of cases filed each year. … In terms of criminal justice expenditures, it’s a drop in the bucket.”...

“If you want to avoid the expense of a death penalty case, don’t file it.  File it as a life-without-parole case, you get the same result, without all of the expense,” Landis said.

November 17, 2010 in Death Penalty Reforms, Who Sentences | Permalink | Comments (9) | TrackBack

"Reimagining Criminal Justice"

The title of this post is the title of this provocative new article from Cecelia Klingele, Michael Scott and Walter Dickey available via SSRN. Here is the abstract:

The criminal justice system needs more than reform.  It requires reimagining.  In its present state, by every measure that matters, the criminal justice system is failing to deliver what can fairly be expected of it.  Many crimes are never reported, and most crimes that are reported go unsolved.  When offenders are identified and apprehended, they are often processed through the criminal justice system in a manner that values expediency over enhanced public safety.  Despite falling crime rates, many communities remain unsafe.  Limitations on the capacity of law enforcement agencies, prosecutors' offices, trial courts, and correctional programs prevent the criminal justice system, as presently configured, from responding to the volume of cases it processes with the time and attention needed to ensure justice is done and public welfare and security are advanced.

In response to these glaring deficiencies in the current system, many policymakers and advocates have demanded increased resources for more patrol officers, more prosecutors, and more prisons -- as though more of what is not working will somehow fix the problem. We take the position that more fundamental changes are needed if the criminal justice system is to succeed in its dual goals of reducing crime and serving the ends of justice.  In this Essay, we set forth the reasons for our belief that the system needs to be re-imagined, asserting that whether the measure is efficiency, effectiveness, or equity, the current system fails to deliver.  We explore the meaning of public safety, emphasizing that the traditional tools of arrest, prosecution, and conviction, standing alone, are unlikely to make homes, streets, and neighborhoods secure in any meaningful way. Drawing primarily on examples from the field of policing, we point to examples of ways in which local communities have successfully tackled discrete public safety problems, relying less on the invocation of the traditional criminal justice system and more on the creative use of state power and community resources.  From those examples, we derive three principles that link the best of these efforts.  We then consider the implications of our imagined criminal justice system for the roles of police, prosecutors, judges, and correctional agents, and for legal research and education as well.  Finally, we acknowledge practical and theoretical obstacles to the change we advocate, and end with our reasons for optimism about the future of the criminal justice system.

November 17, 2010 in Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

November 16, 2010

Does Abbott provide new and added support for applying the FSA to pending cases?

The Supreme Court's unanimous (and unsurprising) opinion in Abbott v. US (available here; discussed here), which adopted the government's approach to the application of the special firearm sentencing provisions set forth in 924(c), may seem of little relevance to anyone but defendants who face multiple sentences for multiple offenses that carry multiple mandatory minimum sentence provisions.  But, for anyone currently litigating another (now hot) statutory sentencing issue, Abbottis still worth a close read.  Specifically, I think defendants and attorneys arguing that the new Fair Sentencing Act's provisions concerning crack sentencing should apply to pending cases can draw some new and added support from the Justices' work in Abbott.  Let me explain my thinking.

First, at slip op. 10 of the Abbott opinion, the Supreme Court stresses the "primary objective" of the statutory amendment at issue in that case.   The Abbottcourt reasons that because Congress meant to broaden the reach of the gun sentences set out in 924(c), the defendant's arguments to limit the reach of that statute were not compelling.  I think the inverse argument could be made concerning the "primary objective" of the new FSA amendments to crack sentencing provisions: because Congress clearly meant to reduce the scope and impact of the disparity between crack and powder offenses, the government's arguments to limit the applicability of the new statute seem to me to be less than compelling.

Second, at slip op. 11 of the Abbottopinion, the Supreme Court stresses the defendants' suggested statutory reading "would result in sentencing anomalies Congress surely did not intend" because, under that reading, "the worst offenders would often secure the shortest sentences."  A similar argument can be made concerning the government's suggested approach to the FSA: because the US Sentencing Commission has amended and made applicable new crack guidelines that plainly apply to pending case involving large quantities of crack, the failure to give the new FSA statutory provision in yet-to-be-sentenced cases means that only "the worst offenders would often secure the shortest sentences" as a result of the FSA's changes while cases are still in the pipeline.

Third, at slip op. 14 of the Abbottopinion, the Supreme Court rejects the defendants' suggestion that Congress expected the federal sentencing guideline to serve as a gap-filler because there is not any indication that "Congress was contemplating the Guidelines' relationship" to mandatory minimum sentencing when it amended 924(c).  But, in sharp contrast, Congress in the FSA plainly and expressly did contemplate the Guidelines' relationship to crack sentencing statutes when it enacted the fair Sentencing Act.  Thus, the kind of Guideline-centric statutory construction claim rejected in Abbottshould have far more force in the FSA setting.

Fourth, at slip op. 16 of the Abbott opinion, the Supreme Court asserts there is "strong contextual support" for government's statutory interpretation in that case.  In contrast,  as I suggested in this amicus letter submitted in a pending case in the Southern District of New York, I see "strong contextual support" for defendants' proposed application of the FSA to all pending not-yet-sentenced cases.

Some recent related posts:

November 16, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact | Permalink | Comments (3) | TrackBack

Blakely meets Crawford in interesting NC appeals court ruling

A couple of helpful readers alerted me to an interesting opinion issued today by a North Carolina intermediate appellate court in North Carolina v. Hurt, No. COA09-442 (N.C. App. Nov. 16, 2010) (available here). This paragraph from early in the opinion highlights why Hurt is a must-read for all hard-core Sixth Amendment fans:

Whether a defendant has a right to confront witnesses against him at sentencing trials conducted pursuant to Blakely is an issue of first impression in our courts.  Defendant contends that United States Supreme Court decisions Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004), and, by extension, Melendez-Diaz v. Massachusetts, 557 U.S. __, 174 L. Ed. 2d 314 (2009), should apply at all sentencing proceedings, whether capital or non-capital, that are held before a jury.  For the reasons discussed herein, we agree that the Confrontation Clause of the Sixth Amendment applies to all sentencing proceedings where a jury makes the determination of a fact or facts that, if found, increase the defendant’s sentence beyond the statutory maximum.  Thus, because the trial court’s admission of testimonial hearsay evidence during the aggravation phase of Defendant’s sentencing proceedings violated the Confrontation Clauses of the federal and state constitutions and the constitutional errors were not harmless beyond a reasonable doubt, we remand this case for a new sentencing hearing.

November 16, 2010 in Blakely in the States, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (6) | TrackBack

New (biased?) death penalty poll provides more grist for debate

This morning I received via e-mail this press release from the Death Penalty Information Center headlined "Poll Shows Growing Support for Alternatives to the Death Penalty; Capital Punishment Ranked Lowest Among Budget Priorities." Here is how the release starts:

The Death Penalty Information Center today released the results of one of the most comprehensive studies ever conducted of Americans’ views on the death penalty. A national poll of 1,500 registered voters conducted by Lake Research Partners shows growing support for alternatives to the death penalty compared with previous polls.  A clear majority of voters (61%) would choose a punishment other than the death penalty for murder, including life with no possibility of parole and with restitution to the victim’s family (39%), life with no possibility of parole (13%), or life with the possibility of parole (9%).

In states with the death penalty, a plurality of voters said it would make no difference in their vote if a representative supported repeal of the death penalty; and a majority (62%) said either it would make no difference (38%) or they would be more likely to vote for such a representative (24%).

“For decades, politicians have equated being tough on crime with support for the death penalty, but this research suggests voters want their elected officials to be smart on crime, use tax dollars wisely, and fund the services they care about the most.  Capital punishment is not a high priority for voters and is not the ‘third rail’ of politics,” said Richard Dieter, Executive Director of Death Penalty Information Center.

“We see a real openness to considering life with no possibility for parole as a punishment for murder and a real awareness among Americans of the many problems with the death penalty.  It is likely we will see Americans moving away from support for the death penalty as states and local governments grapple with tight budgets and as today’s younger voters and Latinos move into the core of the electorate,” said pollster Celinda Lake.

Lots more details about the poll result and other specifics are available via this DPIC page. Though I am not an expert on polling, based on a quick review of stuff at DPIC, I cannot help but express concern that this latest poll was conduct in a way designed to prompt anti-death-penalty responses.

Specifically, the key question about support for the death penalty sets forth a series of alternatives for what the "penalty for murder should be." Because relatively few of even the most passionate death penalty advocates want all murders of all types always sentenced to death, I am not surprised that this prompt does not get a majority of people expressing affinity for the death penalty. But if the query was recast to ask "what is the maximum penalty that should be legally available for the most heinous and brutal murderers," I suspect the polling result would look very different.

Notably, another recent poll with a seemingly more balanced question reporoted well over 80% support for the death penalty (discussed here).  For this reason and others, I doubt this new DPIC poll will move many politicians (or hearts and minds) on this topic.  Nevertheless, I always find it is interesting to see how committed advocates will try to more the needle on these kinds of criminal justice issues.

November 16, 2010 in Death Penalty Reforms, Who Sentences | Permalink | Comments (19) | TrackBack

Notable commentary about California's sex offender residency restrictions

A couple of major papers in California have a couple of notable commentaries about the state's sex offender residency restrictions.  First, the Sacremento Bee has this editorial, headlined "Jessica's Law needs a major overhaul." Here is a snippet:

Proposition 83, the 2006 initiative popularly known as Jessica's Law, banned sexual predators from living within 2,000 feet of public and private schools and parks where children regularly congregate.

The initiative promised that those restrictions would make us all safer.  Voters believed the sales job, approving the measure overwhelmingly, 70.5 percent for it and 29.5 percent against.

As it turned out, the measure has fallen short of promises. Unrealistic restrictions have made it impossible for hundreds of paroled sex offenders to find legal places to live. Predictably, homelessness has soared.  Before voters approved the initiative, 88 registered sex offenders on parole were homeless. Today, 2,100 sex offender parolees are considered to be transient, a 24-fold increase. The Sex Offender Supervision and GPS Task Force stated the obvious in a report released last week: "Homeless sex offenders put the public at risk."

This is no soft-on-crime panel. Composed of police chiefs, victims' advocates, and parole and probation officers, the task force found that homeless parolees were more unstable and therefore more likely to abscond from supervision or to reoffend. Homelessness makes GPS tracking, another key feature of Jessica's Law, more expensive and more difficult to carry out.

Second, there is this op-ed from a public defender in the Los Angeles Times, which is headlined "Stop the sex offender fear-mongering." Here is how it starts:

Some critics of Los Angeles County Superior Court Judge Peter Espinoza's order temporarily staying enforcement of the sex offender residency restrictions of Jessica's Law, reported by The Times on Nov. 5, are exploiting the legitimate fears of decent people.  These critics ignore the reality that these particular residency restrictions apply to all paroled sex registrants, most of whom have never harmed a child, and do not effectively protect our children.  In fact, by creating a crisis of homelessness among sex registrants, broad residency restrictions actually endanger our community.  Ordinarily, the recidivism rate among the vast preponderance of sex offenders is low.  Why destabilize them and create a far greater risk of reoffending?  Indeed, Espinoza's order came after the defenders of the residency restriction failed to offer any evidence or argument to the contrary.

Some related recent posts:

November 16, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Big dispute over guideline calculation for convicted former Chicago police commander

This new article from the Chicago Tribune, which is headlined "Prosecutors: Burge should spend decades in prison; Lawyers say they'll seek probation for perjury, obstruction convictions," spotlights a notable guideline calculation dispute in a notable federal criminal case.  Here are the details:

Federal prosecutors will seek at least 24 years in prison for disgraced former Chicago police Cmdr. Jon Burge, saying his torture of criminal suspects decades ago shook public confidence in law enforcement and the criminal justice system.

Such a stiff sentence for Burge's conviction on perjury and obstruction of justice is sure to stir debate at his sentencing Jan. 20.  The probation office has recommended that Burge face 15 to 21 months in prison under federal sentencing guidelines, while his lawyers have said they would seek probation, noting that when Burge was convicted when he was 62 and had prostate cancer.

In court papers filed last week, prosecutors disputed the probation office's findings, saying Burge deserved a sentence of about 24 to 30 years under the sentencing guidelines.  The government cited the "stain" that Burge's torture of suspects left on the department and the more than $30 million the city has spent on lawyers and payouts to Burge's victims as a result of many lawsuits....

A jury convicted Burge in June on all three counts of obstruction of justice and perjury for lying in a 2003 civil lawsuit when he denied he knew of or took part in torture under his command at the Calumet Area headquarters on the city's South Side.

For years it looked as if Burge would escape criminal charges altogether.  He was fired from the Police Department in 1993 for torturing a cop killer, but a four-year investigation by special Cook County prosecutors concluded in 2006 that the statute of limitations on the claims of abuse had long passed.  It wasn't until 2008 that federal prosecutors figured out a way to indict him — not for the tortures themselves, but for lying about them.

November 16, 2010 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

November 15, 2010

With all votes now counted, Arizona passes medical marijuana initiative

As detailed in this new CNN piece, which is headlined "Arizona voters approve medical marijuana law," it now appears almost official that Arizona voters approved the state's medical marijuana initiative earlier this month. Here are the specifics (along with a roll-call of states in which medical pot is now legal):

Almost two weeks after polls closed, Arizona voters have approved a medical marijuana law, state officials said Monday.  The close vote -- by a margin of 4,341 votes -- will be certified by the Arizona Secretary of State's Office on November 29, said spokesman Matthew Benson.  A ballot count from Maricopa County over the weekend allowed state officials to provide the results, he said.

Arizona becomes the 15th state, along with the District of Columbia, to have passed a medical marijuana law since 1996, said a spokesman with the advocacy group Medical Marijuana Project. The Arizona law will allow patients with "debilitating medical conditions" to use cannabis if they have a recommendation from their physician....

Arizona's Proposition 203, approved 841,346 to 837,005, will allow about 120 clinics to dispense marijuana to patients with prescriptions, project officials said.  Patients who live more than 25 miles from a dispensary can grow their own marijuana.

The other states with medical marijuana laws are Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Oregon, New Jersey, New Mexico, Nevada, Rhode Island, Vermont and Washington, project officials said.

November 15, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0) | TrackBack

"Talking About Prosecutors"

The title of this post is the title of this intriguing looking article by Professor Alafair Burke, which is avaiable via SSRN. Here is the abstract:

This Article explores the narrative that the scholarly literature on wrongful convictions uses to talk about prosecutors. In the prevailing narrative of the wrongful conviction literature, stories of bad prosecutorial decision making in the cases against Genarlow Wilson, the Jena Six, and three Duke lacrosse players are merely high-profile examples of misconduct that happens every day in America’s prosecutors’ offices and courtrooms. What emerges from the current discourse on wrongful convictions is a language of fault — fault placed on prosecutors who fail to value justice at each turn of the proceedings.

Separate from the empirical question of how widespread intentional misconduct is among prosecutors, this Article questions the efficacy of fault-based rhetoric in a world in which prosecutors view wrongful convictions as statistical anomalies, their antagonists as uncommonly bad apples, and themselves as ethical lawyers.  The rhetoric of fault is counterproductive because it alienates the very parties who hold the power to initiate many of the most promising reforms of the movement.  In contrast, this Article suggests the use of a “no-fault” rhetoric that focuses on structural and cognitive impediments to neutral prosecutorial decision-making.  A “no-fault” rhetoric that emphasizes how even ethical prosecutors might inadvertently contribute to wrongful convictions carries the potential to fold prosecutors into the movement while simultaneously pressuring them to initiate self-focused reforms.

November 15, 2010 in Recommended reading, Who Sentences | Permalink | Comments (3) | TrackBack

Out-going Ohio Gov Ted Strickland commutes death sentence on eve of execution

The Columbus Dispatch has this breaking news, headlined "Strickland spares killer of child from execution."  Here are the details:

In the last death penalty case he will face as governor, Ted Strickland this morning spared the life of convicted killer Sidney Cornwell of Mahoning County. Cornwell was scheduled to be executed at 10 a.m. Tuesday at the Southern Ohio Correctional Facility near Lucasville. He shot to death 3-year-old Jessica Bellew on the porch of her home in 1996.

Strickland said while there is "absolutely no doubt that Mr. Cornwell is guilty of the crime of aggravated murder -- and he has admitted that," he determined that the death penalty was not appropriate given mitigating circumstances that were not presented at the time of sentencing.

Strickland noted that Cornwell suffers from a genetic disorder known as Klinefelter's syndrome, which impacts both body and mind, a fact unknown to both the trial judge and jury.  "Because the trial jury and sentencing judge did not have information at the time of sentencing about Mr. Cornwell's Klinefelter's syndrome, I have concluded that it would be inappropriate to proceed with the death penalty in this case. There can be no doubt that Mr. Cornwell's conduct still necessitates severe punishment.  Accordingly, I have decided to commute his sentence to a term of life in prison without the possibility of parole."

Governor Strickland's full statement in support of this sentence commutation can be found at this link.  Notably, the statement cites dissenting two opinions, one from a one member of the parole board and one from a member of the Sixth Circuit panel, in support of the decision to grant clemency.  Among other stories, this clemency reveals the potential impact of authoring dissenting opinions in a variety of contexts.  

As my post title hints, I think it is fair to suggest that Governor Strickland, who presided over a record 17 execution during his single term in office, might not have granted this clemency had he been re-elected and was looking forward to governing the state for another four years.  But with those kinds of concerns not present following his close loss to new incoming Ohio Governor John Kasich, Strickland may have felt more free to close with a high-profile capital commutation.

November 15, 2010 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (11) | TrackBack

SCOTUS grants certiorari on two pauper defendant criminal justice petitions

In addition to handing down a unanimous ruling in the Abbott mandatory minimum case (noted here), the SUpreme Court granted cert this morning to two new cases, Tolentino v. New York and Fowler v. United States.  I believe Tolentino deals with an exclusionary rule issue from the New York state courts, and that Fowler deals with the application of a federal murder statute.  (SCOTUSblog will likely have key papers from this cases up before long.)

Though time will tell if either Tolentino or Fowler will be consequential cases, I already find it significant that the Justices decided to take up two cases in which criminal defendants lost appeals below.  This fact along does not ensure a pro-defendant ruling from SCOTUS, but it does suggest that at least four Justices were at least not too pleased with how the government won below in these cases.

November 15, 2010 in Sentences Reconsidered, Who Sentences | Permalink | Comments (2) | TrackBack

SCOTUS adopts majority reading of 924(c) mandatory minimum provisions in Abbott

The Supreme Court today handed down its opinion in Abbott v. US, No. 09–479 (S. Ct. Nov. 15, 2010) (available here). The Justices unaniminously (and unsurprisingly) adopted the government's approach to the application of the mandatory minimum gun sentences set forth in 924(c). Here is a key paragraph from the start of Justice Ginsburg's opinion for the Court:

We hold, in accord with the courts below, and in line with the majority of the Courts of Appeals, that a defendant is subject to a mandatory, consecutive sentence for a § 924(c) conviction, and is not spared from that sentence by virtue of receiving a higher mandatory minimum on a different count of conviction.  Under the “except” clause aswe comprehend it, a §924(c) offender is not subject to stacked sentences for violating §924(c).  If he possessed,brandished, and discharged a gun, the mandatory penalty would be 10 years, not 22.  He is, however, subject to the highest mandatory minimum specified for his conduct in §924(c), unless another provision of law directed to conduct proscribed by §924(c) imposes an even greater mandatory minimum.

November 15, 2010 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (8) | TrackBack

November 14, 2010

"Backers of Legal Marijuana Find Silver Lining in Defeat of California Measure"

The title of this post is the headline of this piece from today's New York Times.  Here is how it starts:

Proposition 19, which would have legalized marijuana in California, received more votes than the Republican nominee for governor, Meg Whitman.  It also received untold news coverage, bringing the debate a new level of legitimacy in the eyes of many supporters. And while it lost — with 46 percent of the vote — its showing at the polls was strong enough that those supporters are confidently planning to bring it back before voters in California, and perhaps other states, in 2012.

“We’re going to win,” said Aaron Houston, the executive director of Students for Sensible Drug Policy, a nonprofit group in Washington.  “And we’re going to win a whole lot sooner than anybody thinks.”

But for all that heady talk, proponents of legalization still face a series of stiff challenges, including winning over older members of the electorate — who overwhelmingly rejected the measure — as well as wary elected officials from both political parties.  And while most advocates say that Proposition 19 was a high-water mark for the movement, many admit that the road to legalization will also require new campaign ideas, more money and a tighter, more detailed message to overcome persistent cultural concerns about the drug.

“The Prop 19 campaign really did not do anything to help people get over their fear of marijuana, the substance,” said Steve Fox, director of government relations for the Marijuana Policy Project, a national organization that has helped pass medical marijuana laws.  “If people believed marijuana is a dangerous drug that people shouldn’t use before the campaign, that is probably how they felt at the end of the campaign.”

In California, Proposition 19’s showing was exactly in line with a pre-election Gallup survey that found 46 percent of Americans’ favoring legalization.  That support has been growing for years, particularly in the Western states, where 58 percent now support legalization, according to Gallup.

But in an off-year election, one critical demographic for the “Yes” side simply did not show up in California: the youth vote.  “It appears that the bump that we hoped for, those hopes were overstated,” said Ethan Nadelmann, the executive director of the Drug Policy Alliance, which advocates for liberalizing drug laws.  “Clearly, we were overly optimistic.”

November 14, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (5) | TrackBack

Cases being dismissed in Georgia due to overcrowded dockets and lack of resources

A helpful reader altered me to this notable article from the Atlanta Journal-Constitution, which is headlined "Fulton cases thrown out because trials long delayed: More Fulton prosecutions may be thrown out on speedy-trial grounds."  Here is how it starts:

Kenya Kemp was stunned when she learned the Georgia Supreme Court had dismissed the case against her brother’s alleged killers.  When she found out a reason why — that Fulton County prosecutors did not investigate the case for nearly four years — she was livid.

“I feel it’s a big injustice, that they really dropped the ball,” Kemp, 29, said last week. “Those two guys, all they can do is walk away scot-free. My brother, he had three beautiful kids.  All they can do is stand over his tombstone.”

In its ruling last Monday, a divided state Supreme Court upheld a trial judge’s ruling dismissing murder charges against the two men accused of gunning down Kenneth Kemp by firing at least five shots in his back on Aug. 7, 2005.  From late that year until July 2009, prosecutors abandoned the case, the court noted.  By the time the district attorney’s office obtained an indictment in August 2009, the apartments where the killing occurred had been condemned.

The ruling is one of a number handed down over the past year in which appellate courts have dismissed Fulton cases on grounds the state waited too long to either indict the case or bring it to trial.  Other challenges seeking to dismiss Fulton prosecutions on speedy-trial grounds are pending.  These cases include defendants accused of murder, child molestation, elderly abuse and armed robbery, according to court records.

“Fulton is particularly prone to this problem because of the overcrowded docket and lack of resources,” said Ashleigh Merchant, a lawyer representing a defendant who prevailed on a speedy-trial motion.  “When there is an overcrowded docket, someone needs to come in and re-evaluate cases to determine which cases have a higher priority.”

November 14, 2010 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (8) | TrackBack

"Hundreds Die of Illnesses in County Jails"

The title of this post is the headline of this piece from the Texas Tribune.  Here are some excerpts:

Sheriffs say that they are doing everything they can to care for people who come to them with a multitude of physical and mental illnesses that are exacerbated by drug and alcohol addiction.  And, they say, they are struggling to meet the health care needs of more inmates at a time when budgets are dwindling.

There are no state standards for health care in county jails, but criminal justice advocates and correctional facility experts say the large number of illness-related deaths prove they are needed.  “People aren’t dying of old age in jails,” said Michele Deitch, a jail conditions expert and professor at the University of Texas at Austin’s Lyndon B. Johnson School of Public Affairs.  “Those numbers are more likely to be reflective of medical care concerns.”

The data analyzed by the Tribune related to more than 1,500 deaths that occurred in law enforcement custody statewide from January 2005 through September 2009. Nearly 500 of those deaths were inmates who were in the custody of the state’s 254 sheriff’s departments.  Some were the result of high-intensity pursuits or suicides that occurred before an offender was arrested. Some happened during the course of the arrest, when a person was shot, tased or restrained by officers.

But more than half of the deaths reported by county law enforcement — 282 — happened as a result of an illness contracted before or during incarceration.  Many inmates died of heart conditions; some of cancer or liver and kidney problems; and others of afflictions ranging from AIDS to seizure disorders and pneumonia.

November 14, 2010 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3) | TrackBack