Sentencing Law and Policy

Some reactions to President Obama's first set of pardons

This article in the Politico, which reports on the first set of pardons issued by President Obama (basics here) includes some quotes from various pardon experts about what Obama has and still has not now done with his historic clemency powers.  Here are excerpt:

[C]lemency advocates say the pardons, while politically cautious, are an important first step. "I'm very happy that he's gotten the ball rolling. I hope this means he will start pardoning on a regular and generous basis," said Margaret Love, who ran the Justice Department's pardon office under presidents George H.W. Bush and Bill Clinton....

Molly Gill of Families Against Mandatory Minimums, said her organization is “thrilled” that the president has begun to use his power to impart justice. “He took a long time to do it, but the people who received these pardons, I’m sure, are thrilled," said Gill, whose group works to eliminate disproportionately harsh minimum sentences for crimes like drug possession.

However, Gill expressed some regret that Obama didn’t act boldly. “These were easy cases. These were not tough calls," she said. "I think that maybe reflects still a lot of political concerns involved with politicians' fear of looking soft on crime."...

Four of the pardons were for people found guilty of cocaine-related offenses — a crime that has become the focus of a campaign for equity in sentencing for those convicted of dealing crack cocaine as well as those found to have sold or possessed the drug’s powdered form. However, Obama did not grant any commutations to inmates serving lengthy sentences as a result of tough sentencing guidelines or mandatory minimum drug sentences.

"The lack of commutations, for one thing is disappointing," Gill said. "There are still some problems with the Office of the Pardon Attorney handling these cases. I find it hard to believe that with thousands of people getting mandatory minimum sentences on drug crimes every year the Office of the Pardon Attorney cannot find a handful of deserving people to send home early."

Back in August, Obama signed a bill that reduced the penalties for some crack cocaine offenses, but the reductions had no effect on those already serving time. Some opponents of tough drug laws have urged Obama to issue commutations to prisoners who are serving more time than they would if convicted today, but the White House has, so far, given a chilly response to that suggestion.

“Pardons don’t mean much anymore, except no doubt to the recipients. The crimes are long passed. Time served is long gone,” said George Lardner, author of a forthcoming book on executive clemency. “This does nothing to affirm the importance of the pardon power. It just gets him under the wire so he can claim that George W. Bush took more time than he did.”

In October, POLITICO reported that Obama began denying clemency requests for the first time, denying 605 commutation petitions and 71 pardon applications. Last month, Obama denied another 552 commutations and 60 pardon requests, a White House spokesman said.

One observer noted that the details on the time served by those Obama pardoned for drug offenses and the time served shows how the justice system has changed in recent decades. One pardon recipient got probation for conspiring to distribute cocaine. Another got 30 days in jail. Such offenses often bring a sentence of 10 years or more in the federal system these days.

"Are All Murderers Mentally Ill?"

The title of this post is the headline of this commentary from The Atlantic.  Here are excerpts:

Elaine Whitfield Sharp is a defense attorney who has worked on hundreds of murder cases over the past 20 years [who see a] fundamental problem with capital punishment....  "You see, I truly believe that murderers are mentally ill," she explains. "Their brains don't work like the rest of ours do.  To deliberately kill someone requires crossing a profound boundary.  Most of us couldn't do it. We couldn't even think about it.  But they can.  They do.  Why?  Because they're mentally ill.  And fundamentally, as a society, I believe it is barbaric to kill people who are ill."

That doesn't mean Sharp thinks murderers should be excused for their behavior or set free.  "Clearly, we need to lock these people up, and keep them away from the rest of us," she continues.  "Because they're not going to stay within acceptable bounds. They're a danger to others."  But she says most of us make the mistake, when we hear about a murderer, of projecting that they're like us and simply choosing to do this heinous crime. And so, imagining ourselves doing something so terrible, we feel they should be severely punished for that choice.  "But," Sharp argues, "they're not like us.  That's why they can do it."...

"Murderers seem to have no appreciation of boundaries," Sharp explains. "And it shows up in all aspects of their lives.  Most criminals I deal with are very narcissistic.  They're blame-shifters, manipulative, and can't feel anyone else's pain but their own.  A consistent hallmark, in fact, particularly of killers, is this extreme narcissism."  Sharp points to the book People of the Lie, by the late M. Scott Peck, as a good description of a killer's personality disorder.

"These people are always the victim, it's always someone else's fault, they have no sense of other people's boundaries, and they really can't see how twisted that view is," she says. "It's a disorder."...

Certainly the evidence, or perhaps just awareness, of how widespread mental illness is among criminals, and especially those incarcerated for violent crimes, seems to be growing.  In 1999, the Bureau of Justice Statistics (BJS) estimated the percentage of inmates suffering from a significant mental condition at 16 percent.  In a comparable report issued in 2006, the BJS revised that number upward to over 50 percent....

Again, Sharp and the others aren't arguing that violent criminals and murderers should be allowed to go free.  But if, in fact, murderers who commit grisly crimes do so because of warped minds -- perhaps because of trauma and abuse endured as children, or perhaps because of organic, biological deficits -- if, in fact, they are mentally ill in ways that make it impossible for them to see the world or appropriate boundaries and behaviors the way the rest of us do.  Is it appropriate, ethical, or right to kill them for their acts?  Or is it, as Sharp argues, a barbaric thing for a civilized society to do?

Even if one were to accept the premise that all or most murderers are mentally ill, I think such an assertion would provide greater support for life imprisonment without parole for all murderers than for categorical abolition of the death penalty.

President Obama finally grants first pardons of his presidency!!

At long last, and only 682 days into his presidency, President Barack Obama has finally made some use of his constitutional pardon authority.  Everyone should thanks PS Ruckman for providing in this post these specific details about the nine grants today:

Six out of the nine pardons were granted to individuals whose violations were so minor they were not even given prison sentences, only probation. Story developing!

James Bernard Banks (1972) UT, illegal possession of government property (2 years probation)
James Dixon (1960) GA, liquor violations (2 years probation)
Laurens Dorsey (1998) NY, false statements (5 years probation, restitution)
Ronald Lee Foster (1963) NC, coin mutilation (1 year probation. fine)
Timothy James Gallagher (1982) AZ, cocaine (3 years probation)
Roxanne Kay Hettinger (1986) IA, cocaine (30 days, 3 years probation)
Edgar Leopold Kranz, Jr. (1994) military (24 months)
Floretta Leavy (1984) IL, cocaine/marijuana (1 year and 1 day)
Scoey Lathaniel Morris (1999) TX, counterfeiting (3 years probation, fine)

I hope to blog more on this front after answering 1L question about their upcoming Crim Law exam. In the meantime, everyone should check out Pardon Power for coverage (and await surely forthcoming commentary from Margaret Colgate Love and other pardon pundits).

Notable new sentencing opinion from Judge Gertner for low-level crack dealer

Long-time readers know that  and today US District Judge Nancy Gertner long ago earned her place in my Sentencing Judges Hall of Fame by effectively exploring a range of important issues through detailed sentencing opinion in the immediate wake of Blakely and Booker.  And I am pleased now to report that, though basic sentencing law is now more settled, Judge Gertner continues to write opinions that knock important sentencing issues out of the park. 

Earlier this week, for example, she produced a fascinating discussion of post-Booker sentencing issues through a 26-page decision in US v. Wigham, No. 06cr10328-NG (D. Mass. Nov. 30, 2010), which can be downloaded below.  Sentencing fans will want to read the opinion in full, and here is a snippet to whet the appetite:

Once I determine that a Guideline sentence does not apply, I must then decide what sentence is appropriate to meet the statutory sentencing purposes of 18 U.S.C. § 3553(a) as Booker directs. See 543 U.S. at 224.  In this regard, I will use the approach which I used in other drug sweep cases, described in United States v. Garrison, 560 F. Supp. 2d 83 (D. Mass. 2008).  In Garrison, I evaluated and compared the sentences imposed on men picked up in the same sweep, the same geographical area, with the same charges -- including sentences imposed by other judges -- to the case of the defendant before me.  In effect, Garrison makes the sentences of individuals imposed by other judicial officers function as precedent for my sentence, part of a common law of sentencing.

The government criticizes the Garrison approach, arguing that it will somehow exacerbate disparity in this jurisdiction and cites to a recent article by Professor Ryan Scott ("Scott"), Inter-Judge Sentencing Disparity After Booker: A First Look (Ind. Legal Studies Research, Paper No. 140, 2010), which reflected concerns about Massachusetts federal sentencing. As I describe below, Scott’s article defines disparity in terms of the extent to which District of Massachusetts judges are following the Sentencing Guidelines.  Following the Guidelines, it suggests, promotes the kind of sentencing consistency that the Sentencing Reform Act aimed for.

I disagree with the premise, as I describe below. S imilarly situated with respect to the Guideline categories does not necessarily mean similarly situated with respect to the defendant’s actual role in the criminal endeavor or his real culpability.  Guideline categories (like career offender guidelines) are frequently over broad, giving the same "score" to individuals who are not remotely similar and ignoring critical differences between them (their role in the offense, their mens rea) that should bear on punishment. In any event, in this case, the government’s position touting the Scott article was ironic. It agreed that the Guideline sentence is far too high for Whigham.

To the extent that Scott's findings suggest differences in the approach to the Guidelines among the judges in Massachusetts, they should be carefully evaluated, which I do below. The critical question is what these disparities reflect -- whether they reflect the untutored preferences of particular judges, as often occurred pre-Guidelines, or real jurisprudential differences involving Guidelines that are problematic.  In my judgment, they reflect the latter; the good faith, reasoned evaluations of Guidelines and facts.  Even before Booker, the Guidelines contemplated that district court judges would depart from the Guidelines on occasion, that the Commission would consider these departures and amend the Guidelines, if appropriate, allowing for a collaborative evolution of Guideline law.  After Booker, more of the work of that evolution is to be done by the appeals courts than the Commission -- determining which approaches are "reasonable" and which are not.

In the short term, until there is precedent in the areas in which there are real issues, like the career offender and crack cocaine Guidelines, differences in approach across cases are unavoidable.  That is all the more reason for using the Garrison approach, at the very least, looking carefully at the sentences given to individuals in a given sweep, in the same geographic area, in roughly the same time period, having the same role in the offense.

Let me be clear -- in answer both to Professor Scott and the critics of advisory Guidelines: When I choose not to follow the Guidelines, it is not because I simply disagree with them and seek to substitute my own philosophy of sentencing.  It is because the Guideline at issue is wholly inconsistent to the purposes of sentencing under 18 U.S.C. § 3553(a).  And when I assign a non-Guidelines sentence, I am likewise not picking a number out of the air, but keying what I do, to the extent possible, with the sentences and reasoning of other judges, and the evidence that I have been given.  Finally, I write decisions so that my reasoning is clear and may usefully serve as precedent to others.

Download WhighamSentMemoNov30th2010AMENDED

Misdemeanor defendants in NYC left in jail (and perhaps pleading guilty) when unable to make small bail

Though misdemeanor crimes and sentencing rarely make headlined, this notable new article in the New York Times highlights how many are impacted in one city by how such cases get processed.  The piece is headlined "N.Y.C. Misdemeanor Defendants Lack Bail Money," and here is how it starts:

Thousands of people arrested on low-level crimes in New York City spend days languishing in jail, not because they have been found guilty but because they are too poor to post bail, according to a report to be released on Friday.

The report, which examines the bail conditions for people charged with nonfelonies like smoking marijuana in public, jumping a subway turnstile or shoplifting, found that the overwhelming majority of defendants in cases in which bail was set at $1,000 or less were unable to pay and were sent to jail, where they remained, on average, for more than two weeks.  The report comes as the number of arrests for low-level misdemeanors, often referred to as quality-of-life crimes, is rising.

Human Rights Watch, an advocacy group that most often focuses on abuses abroad, obtained data on nonfelony defendants arrested in the city in 2008.  In more than three-quarters of the 117,064 cases, defendants were released on their own recognizance.

In 19,137 cases from that year, bail was set at $1,000 or less.  The report found that 87 percent of the defendants in those cases did not post bail and went to jail to await trial. They remained for an average of 15.7 days.

“Here we are locking people up for want of a couple of hundred dollars,” said Jamie Fellner, senior counsel with the domestic program of the advocacy group. “Pretrial liberty should not be conditioned on the size of your bank account,” Ms. Fellner said.

The report raised the possibility that many of the poorer defendants pleaded guilty at arraignment for sentences with no jail time, simply to avoid being behind bars while awaiting trial.  “The client is placed with a choice of staying out of jail and being on Rikers Island and fighting their case,” said Robin Steinberg, the director of the Bronx Defenders, a nonprofit group that provides legal representation to Bronx residents charged with crimes.  “Almost anybody would plead guilty.  It creates a pressure on poor people in the criminal justice system for them to plead guilty without regard to whether they were guilty or not guilty.”

Ohio Supreme Court concludes state lacks post-conviction mechanism to challenge execution methods

As detailed in this local article, a divided Ohio Supreme Court ruled today ruled that there is "no basis under Ohio law to challenge the lethal injection method of execution."  Here's more of the basics of this ruling and a related dismissal of another appeal:

In a 5-2 decision, the court said the General Assembly "has not yet provided an Ohio law cause of action for Ohio courts to process challenges to a lethal-injection protocol."...

In another death penalty case, the court rejected a suit filed by attorneys representing convicted killer Romell Broom that be removed from Death Row because the state tried unsuccessfully to execute him 15 months ago.  Without comment, the court unanimously turned down the request by attorneys Timothy F. Sweeney of Cleveland S. Adele Shank of Columbus.

The full opinion for the Court in Scott v. Houk, No. 2010-Ohio-5805 (Dec. 2, 2010) (available here), is only a few paragraphs long.  But there are two notable concurrences and dissents that make great reading for folks interested in the relationship between rights and remedies and related federalism issues.  Here are excerpts from the order of the Court:

On July 29, 2009, Judge John Adams of the United States District Court, Northern District of Ohio, Eastern Division, certified the following question of state law to this court: “Is there a post-conviction or other forum to litigate the issue of whether Ohio’s lethal injection protocol is constitutional under Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520,170 L.Ed.2d 420 (2008), or under Ohio law?”  The district court recertified the question to us on September 3, 2009, due to an inadvertent failure to provide notice of the original order to the parties.  We accepted the question for review.  123 Ohio St.3d 1420, 2009-Ohio-5340, 914 N.E.2d 1062.  On September 14, 2010, we heard oral argument from the petitioner. The respondent forfeited his argument by not filing a merit brief....

The Ohio General Assembly has not yet provided an Ohio law cause of action for Ohio courts to process challenges to a lethal-injection protocol, and given the review available on this issue through Section 1983, Title 42, U.S.Code, for injunctive relief against appropriate officers or federal habeas corpus petitions, we need not judicially craft a separate method of review under Ohio law.  Accordingly, until the General Assembly explicitly expands state review of death penalty cases by creating a methodology for reviewing Ohio’s lethal-injection protocol, we must answer the certified question as follows:  There is no state postconviction relief or other state-law mode of action to litigate the issue of whether a specific lethal-injection protocol is constitutional under Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420, or under Ohio law.

"'Perfect Storm of Injustice'? N.J. Man Serving 7 Years for Guns He Legally Owned"

The title of this post is the headline of this notable story via ABC News.  Here are some of the details, which appears to involve yet another example of mandatory minimum sentencing terms producing another example of excessive over-punishment:

Brian Aitken, 25, a successful media consultant, had been in the process of selling his home in Colorado and moving to a suburban New Jersey apartment to be closer to his son, 2.   But on the afternoon of Jan. 3, 2009, the stress of a recent divorce and messy cross-country move caused him to crack.  Aitken stormed out of his parent's suburban home in Mount Laurel, N.J., hopped into his car filled with belongings and set out on a drive to cool off.

Aitken's mother, a social worker trained to be sensitive to suicidal indicators, instinctively dialed 911 but abruptly hung up, second-guessing her reaction.  But police tracked the call, came to the Aitken's home and greeted Brian when he returned to make sure he was OK. Then, they asked to search his car.

Buried in the trunk, beneath piles of clothes and boxes of dishes, was a black duffle bag holding a boot box containing two handguns; "unloaded, disassembled, cleaned and wrapped in a cloth," his father said.  There were also several large-capacity magazines and cartons of hollow-point bullets.

Aitken had legally purchased the guns at a Denver sporting goods store two years earlier, he said.  But transporting a gun without a special permit or in a handful of exempt situations is illegal in New Jersey, giving officers no choice but to arrest Aitken and charge him with a crime.  The magazines and bullets are also illegal in the state, experts said....

"For quite some time I was pretty confident as soon as intelligent people with logical minds took a look at what happened they might slap him with a fine or something," Aitken's father Larry said. "When the prosecutor came down with an indictment, I was dumbfounded."

But after a two and a half day trial in August, a jury convicted Aitken of the charges and a judge sentenced him to 7 years in prison.  So family and friends have launched a grassroots campaign to set him free, even appealing to New Jersey Gov. Chris Christie for a pardon or reprieve....

[T]he judge in the case did not allow the jury to consider the moving exemption during the trail, ruling that no evidence was presented that Aitken was actually moving at the time the guns were found.  Aitken did not testify in the trial.

"The defendant's attorneys presented evidence that his house was for sale and that at the time of arrest he was travelling from one residence in New Jersey to another," Joel Bewley, a spokesman for the Burlington County Prosecutor's Office, told ABC News.... "This sentence was entirely and statutorily mandated upon this conviction," Bewley said.

Georgia federal prosecutor endorses resentencing of defendants sentenced by disgraced federal judge Jack Camp

This new AP story out of Atlanta provides heartening reminder that federal prosecutors will sometimes take proactively steps to ensure justice is served (especially when a federal judge goes bad).  Here are some of the details:

Federal prosecutors in Georgia are disclosing allegations that a federal judge in Atlanta, already convicted of drug possession, may have shown racial bias when sentencing defendants earlier this year.

U.S. Attorney Sally Yates says a woman who developed a personal relationship with former U.S. Senior Judge Jack Camp in May has told prosecutors he said he had a difficult time sentencing black men because they reminded him of someone he didn't like.

Yates says her office will comply with requests from defendants who want a review of their cases before Camp. For those sentenced by Camp from May through September, Yates says prosecutors will not oppose requests for re-sentencing.

The full statement today made by US Attorney Yates can be found in this link.  The statement is remarkable in various respects, and here are some legnthy excerpts:

The United States Attorney's Office has one responsibility -- to seek justice. To fulfill that responsibility, we are today disclosing information that we have recently discovered to the public as well as to defendants who may be affected by this information.

On November 19, 2010, former Senior District Judge Jack T. Camp ("Camp") pleaded guilty to aiding a felon in possessing illegal drugs, possessing illegal drugs, and converting government property to private use. Our office is recused from the prosecution of Camp, which is being handled by the Public Integrity Section of the Department of Justice....

We have since reviewed the information provided by Public Integrity and interviewed individuals with close connections to the criminal allegations, including Camp.  We believe that the prompt disclosure of any arguably significant information is critical to our mission of fair and impartial justice.  Consequently, we are providing information beyond that which we are legally required to disclose [and] we have identified the following information that we believe should be disclosed immediately: ...

According to witnesses and Camp, from approximately May, 2010 until the end of September, 2010, on a roughly biweekly basis, Camp engaged in the illegal use of controlled substances.  During this approximately four-month period, Camp consumed marijuana, powder cocaine, Xanax, Roxicontin, and other unknown prescription painkillers....

A second area of inquiry pertains to witnesses' statements relating to potential racial bias. Witness 1, who became acquainted with and developed a personal relationship with Camp in approximately May of 2010, stated that Camp disliked a particular individual ("Individual A"), who was African-American and who also had a personal relationship with Witness 1.  According to Witness 1, Camp told her that when African-American men appeared before him, he had a difficult time adjudicating their cases and specifically determining their sentences because he could not differentiate them from Individual A in light of his feelings about Individual A....

Finally, Witness 1 said that Camp described a case where a female defendant reminded Camp of Witness 1, so he gave her a 12-month sentence instead of the suggested 60-month sentence.  We identified a case during this period where Camp sentenced a white female defendant to a 15-month prison term instead of the 30-37 months recommended by the Sentencing Guidelines.  There is also evidence that confirms that Camp consulted with Witness 1 during the relevant period regarding the sentences that he imposed....

When our office confronted Camp with the above allegations, he said that he did not make the statements attributed to him by either Witness 1 or Witness 2.  He further denied ever taking any judicial action based on racial bias....

Our only interest in any case that we have prosecuted before Camp is ensuring that justice is served. To that end, given these disturbing facts and allegations, this office will evaluate any criminal case adjudicated by Camp for impairment or bias that a defendant requests that we review.  Furthermore, from May of 2010 forward, there is evidence that Camp's judicial decision-making process may have been impacted by bias and/or impairment and it has been established that he was involved in criminal conduct during this period. Therefore, we will not object to a defendant's request for a resentencing in any case in which the defendant was sentenced during this time.

In addition to wondering how many defendants Judge Camp sentenced since May 2010, I am also wondering whether and how this information might come to impact Judge Camp's own upcoming sentencing.  I have suggested in prior posts that Judge Camp seemed to get a pretty sweet plea deal in light of his offense conduct, and now I am even more troubled by what this bad judge was doing. I think evidence of his perversion of a fair justice system he swore to uphold ought to be an aggravating factor in his ultimate sentencign pursuant to the purpose provisions set forth in 18 USC 3553(a)(2).

Related prior posts (which generated lots of notable comments):

• "Federal judge charged with buying drugs from stripper" 
• Federal judge cutting deal to avoid prison time for drugs, guns and stripper activities

Should an inmate be able to use Facebook?

The question in the title of this post is prompted by this ABC News story which is headlined "Convicted Murderer Justin Walker Used a Blackberry to Talk to Friends on Facebook While in Prison."  Here is how it begins:

The mother of an Oklahoma man who was shot to death is furious that her son's killer was able to get a Blackberry in his cell and has been corresponding with friends and posting photos on Facebook.

Cathy Lawrence, the mother of slain Sheriff Dwight Woodrell Jr., told ABCNews.com that Justin Walker, the man serving a 30-year sentence for her son's murder, doesn't deserve to be alive, let alone to be updating his Facebook status.

Justice Stevens' consistent belief in the death penalty and a notable attack on this reality

I have now had a chance to read closely retired Justice John Paul Stevens's piece in the New York Review of Books reviewing David Garland's book "Peculiar Institution: America's Death Penalty in an Age of Abolition" (discussed here; available here).  I actually see the piece as supportive of a narrow, well-functioning death penalty based on these two paragraphs:

Under Justice Stewart’s approach, a jury composed of twelve local citizens selected with less regard to their death penalty views than occurs today — in that respect, a truer cross-section of the community—would determine individual defendants’ fates.  Once chosen, such jurors would not be inflamed by victim-impact statements; they would be insulated from race-based decisions by prosecutors; and they would weigh the offender’s culpability against relevant mitigating circumstances in determining his fate.  There are crimes for which such a jury would almost certainly impose a death sentence if so authorized.  A portion of the Baldus study that Professor Garland does not discuss found a significant category of extremely serious crimes for which prosecutors consistently seek, and juries consistently impose, the death penalty without regard to race.

The Michigan statute [abolishing the death penalty for all regular crimes in 1846] assumed that treason was one such offense.  Timothy McVeigh’s bombing of the federal office building named after Judge Murragh in Oklahoma City is surely another.  I imagine that attempted assassination of the Pope would qualify, as could murder of a law enforcement officer or prison guard, and perhaps the kind of crime — serial killing of students —described in Garland’s prologue.  Garland does not tell us whether he would be an abolitionist in such cases.  Rather than treating the death penalty as an all-or-nothing issue, I wish he had commented on the narrower regime that Justice Stewart envisioned.

I read these passages as an endorsement by Justice Stevens of a narrow death penalty that seeks to ensure that the truly "worst of the worst," but only the worst of the worst, are executed for their crimes.  (Also interesting here is the suggestion by Justice Stevens that attempted murder of the Pope would qualify as a "worst of the worst" offense.)

To his credit, David Von Drehle sees the nuance in Justice Stevens' position and he assails this position in this long Time essay headlined "Stevens' Death Penalty Case Lets Himself Off Too Easily." Here is a passage from this interesting essay:

In his recent essay, Stevens writes trenchantly about the major twists and turns, rulings and reversals, that have helped to make a ruin of death penalty law in the years since the troika endorsed guided discretion.  He decries decisions, where he dissented, that have made it easier to screen out death penalty opponents from capital juries, and re-opened the door for accomplices — and not just murderers — to face death sentences.  But what he omits is the fact that these and other disputed cases were rooted in the underlying failure of the original architecture.  Guided discretion is a concept at war with itself: it tries to open the process of handing out death sentences to the light of human judgment, while at the same time fencing it off from the taint of human passion and individual differences.

Simply put, the death penalty seeks to separate the very worst of the worst for ultimate punishment.  But it fails to appreciate that individual prosecutors, judges and juries will have their own ideas about who is "worst." In his essay, Stevens suggests that the impulse of the troika's work was to greatly limit and rationalize the use of the death penalty, guiding lower courts away from arbitrary, excessive or racially discriminatory conclusions, but it didn't work that way.  Within a few years of their decision, America's death rows were twice as populous as they had been before Furman. Today, a single death row — California's — houses more condemned prisoners than lived in all the prisons in the United States combined, back when the death penalty was struck down.  And what is the chance of being executed in the Golden State today?  About the same as being struck by lightning.

Guided discretion was an idea or theory that looked pretty on paper but could not survive contact with the real world.  One man's "worst" was another man's not-quite-so-bad. Within a short time after the Stevens-approved architecture was in place, judges across America were literally arguing in opinions over issues like whether it is worse to be shot at close range, with the gun cold against your head, or at longer range, with the attendant chance of maiming or slow death.  Worse to have your throat cut or to be stabbed multiple times in the chest?  Worse to die at the hands of a stranger or a loved one?  Multiply such riddles by several thousand and you can begin to understand why the death penalty machine in the United States rarely comes to finality.

In short, Von Drehle is embracing Justice Blackmun's end-of-service view that the modern "guided discretion" approach to the death penalty is doomed to fail.  But, I find myself always draw to the more nuanced view suggested by Justice Stevens even though I agree that "individual prosecutors, judges and juries will have their own ideas about who is worst."

I am always drawn to fixing the modern US death penalty because, when operating properly (as it does in many states and in the federal system), it gives every individual prosecutor, trial judge and trial jury (as well as appellate courts and governors) the chance to veto a death sentence if and whenever not fully convinced a defendant is truly among the "worst of the worst."  At the same time, preserving this system allows society to condemn Tim McVeigh and DC sniper John Allen Muhammad and Steven Hayes and other mass murderers to a more serious punishment than the long prison terms we (too readily) give to lots of lesser criminals.

"Social Historical Studies of Women, Crime, and Courts"

The title of this post is the title of this notable article available via SSRN that provides an interesting perspective on some social and legal criminal justice history. Here is the abstract:

While traditional criminology has ignored the historical dimension of female crime, social historical literature has examined the interplay between gender and the criminal process in a variety of historical settings.  This review examines studies focusing on changes in crime, prosecution, conviction, and punishment patterns over time, as well as studies in particular settings.  From these studies we conclude that crime has not always been a predominantly male phenomenon and that female crime rates have changed over time.  We also conclude that, within the different categories, women defendants in particular were perceived through a gendered perspective, and their criminalization and punishment, as well as its representation in popular culture, reflected this special perspective.

New charges against pardoned sex offender causing a stir in Minnesota

As detailed in this local article, which is headlined "Pawlenty seeking perjury investigation against sex offender he helped pardon," an ugly pardon story is in the works in Minnesota. Here are the basics:

Gov. Tim Pawlenty says the sex offender that he joined in pardoning two years ago may have committed perjury to get his criminal record wiped clean.  If so, the governor wants him prosecuted for that offense in addition to new molestation charges.

Pawlenty said he sent letters to prosecutors Wednesday urging them to investigate whether Jeremy Giefer of Vernon Center lied to the state pardon board to have his criminal record expunged.  Last month, Giefer was charged with sexually abusing a girl more than 250 times before and after he was pardoned in 2008.

"If the current allegations against him result in a conviction or any indications of criminal behavior, he perjured himself and lied to us and may have committed other forms of fraud or misrepresentation before a governmental agency or board," the governor said.  If that's the case, he said Giefer should be charged with lying under oath.

Pawlenty was a member of the three-person board that pardoned Giefer, now 36.  The other pardon board members were Attorney General Lori Swanson and then-Chief Justice Eric Magnuson of the Minnesota Supreme Court.

In 1993, Giefer was convicted of having sex with his 14-year-old girlfriend, whom he later married.  He served 45 days in jail and was free when the pardon was granted.

Last month, Giefer, now 36, was charged in Blue Earth County District Court with 12 felonies, including five of first-degree sexual conduct. The complaint says the victim told police the abuse began when she was 9 and continued until she was 16....

[Pawlenty] said the board would not have pardoned Giefer if it had been aware of the latest sexual abuse charges.  He noted that during his tenure the board has never released anyone from prison or jail early.  Pardons have been granted only after sentences were served.

A few more thoughts on applying the FSA to not-yet-sentenced defendants

As regular readers know, I am troubled by the Justice Department's view that any defendant who committed a crack offense before the enactment of the Fair Sentencing Act should get no benefit from the the FSA's statutory provisions.  Because I think the argument for applying the FSA to defendants awaiting initial sentencing is especially strong, I have previously here posted an amicus letterthat I submitted in a New York case with my thoughts about why the FSA's provisions should be applied to cases in the pipeline that have not yet been sentenced.

Earlier this week, I submitted another letter in this case that is particularly focused on the Government's claim that, with regards to the FSA's applicability, there is no basis for distinguishing between already sentenced defendants and not yet sentenced defendants.  That full letter is available for download below, and here are two key paragraphs of my argument:

Critically, the Government seeks to obscure the important and sensible distinction between applying the FSA retrospectively to defendants who had been already sentencedas of its enactment date, and applying the FSA prospectively to defendants not yet sentenced as of its enactment date.  It is reasonable and sensible to suggest that Congress concluded that offenders who were sentenced before the FSA became law should not be able to demand a return to court for a complete “redo” — with all the added expense and uncertainty of the resentencing process — based on the FSA’s new sentencing provisions and its ordered revision of the federal sentencing guidelines.  But it is neither reasonable nor sensible to suggest that Congress concluded that only minor crack offenders who have not yet been sentenced should be subject to harsher (now-amended) sentencing laws while all major crack offenders who have not yet been sentenced should get the benefits of the amended sentencing provisions of the FSA.

Stated slightly differently, it is reasonable to assume and conclude that concerns about finality and judicial economy may have kept Congress from wanting to enable already sentenceddefendants from reopening and relitigating the sentences they received before the FSA became law.  But it is not sensible to assume or conclude that concerns about finality and judicial economy may have kept Congress from wanting to enable not-yet-sentenceddefendants from being initially sentenced pursuant to the FSA’s new sentencing structure.  In fact, judicial economy is better served by making the terms of the FSA’s sentencing structure applicable to all not-yet-sentenced defendants: a simple, straight-forward rule applying the FSA to pending cases would prevent sentencing judges in many cases from having now to figure out (1) whether a defendant’s offense conduct took place before or after the FSA enactment, and/or (2) whether and how a defendant’s sentence should be governed by the new crack sentencing guidelines or the old crack sentencing statute.  Indeed, though it is easy to understand how Congress’s interest in sentencing fairness, consistency and judicial economy supports application of the FSA to all not-yet-sentenced defendants, it is hard to understand or even to identify any valid congressional interest that would be served by continuing to apply the older (and now amended) crack sentencing provisions to only not-yet-sentenced minor crack offenders.

Download FSA pipeline applicability follow-up letter

Some recent related posts:

• Adding my two cents concerning application of the FSA to pending cases
• New USDC opinion applying new FSA law to not-yet-sentenced defendants
• Seeking ground reports on the FSA's application to not-yet-sentenced cases
• 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?
• Does Abbott provide new and added support for applying the FSA to pending cases?
• Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases

"Multiple murder suspect had benefited from three-strikes leniency"

The title of this post is the headline of this remarkable story in today's Los Angeles Times.  Here is how the piece starts:

To hear him tell his story, John Wesley Ewell was the victim of an overly harsh criminal justice system.  The South Los Angeles hairstylist complained to journalists over the last decade about the unfairness of the state's tough three-strikes law, saying he lived in fear that even a small offense would land him back in prison for life.

He even appeared on the "The Montel Williams Show" to argue the case against three strikes.  A caption that flashed on the screen when Ewell spoke read: "Afraid to leave his house because he has 2 'Strikes.'"

But Ewell is now charged with murdering four people in a series of home invasion robberies that terrorized the South Bay this fall.  On Tuesday, he pleaded not guilty during a brief appearance at the Airport Courthouse.

Far from embodying the severity of the justice system, Ewell benefited from its lenience over the last 16 years, according to a Times review of court records and interviews.

Ewell has a lengthy criminal history that includes two robbery convictions from the 1980s. Nevertheless, the Los Angeles County district attorney's office decided on four occasions against seeking to use the full weight of the three-strikes law when he was charged with new crimes.

And this year, after Ewell was arrested three times for allegedly stealing from Home Depot stores, a judge agreed to delay sending Ewell to prison so he could take care of some medical problems.  It was during that delay, authorities say, that Ewell robbed three homes and killed the victims.

"He should have been in prison a long time ago," said Leamon "Kelly" Turnage, whose parents were among the victims.  "It is a shock to me that no one is willing to take responsibility for letting this killer go."

Ewell's case is likely to fuel more debate about the practice of many California prosecutors to seek less than the maximum sentence for some three-strikers. 

Under the law, offenders with two previous convictions for serious or violent crimes can be sentenced to prison for 25 years to life if they are convicted of another felony, no matter how minor. But most prosecutors use discretion in deciding when to seek life terms.  Since 2000, the L.A. County district attorney's office has generally prohibited prosecutors from seeking possible life sentences when a defendant's third strike is not serious or violent.

Prosecutors repeatedly exercised this discretion in Ewell's favor.  Critics argue that the district attorney's policy fails to adequately protect society.  The law, they say, deliberately counted minor crimes as third strikes to put away repeat offenders before they hurt other victims.

Prosecutors say it is unfair to suggest that they — or anyone else — could have predicted that Ewell would turn to such violence.  At 53, he appeared to be little more than a petty thief and hardly fit the profile of a killer.  "I really don't think anybody could pretend to anticipate that … this guy would suddenly go from stealing things from Home Depot to murdering old people," said Los Angeles County Head Deputy Dist. Atty. John Lynch.

The district attorney's policy has won widespread support as a just way of dealing with minor offenders who might have serious criminal pasts.  Although a handful of criminals have benefited from the policy only to later commit violent crimes, the vast majority of offenders prosecuted under the policy have not gone on to kill or carry out other serious crimes.

Detectives describe Ewell as a man who led a double life. Residents of his Harbor Gateway community of Los Angeles knew him as a friendly handyman willing to help others.  But investigators said he was a career criminal whose offenses stretched over more than 30 years.

US Sentencing Commission unveils pretty new website

Heading over to the US Sentencing Commission's official website today is even more exciting than usual because the site has a pretty new look.  Kudos to the USSC for the website face-lift.

Will the Chief Justice seek consensus in the California prison overcrowding case?

I had a chance last night to read the full and lengthy transcript of the oral argument in Schwarzenegger v. Plata (which is available here), and the whole thing is fascinating.  Justice Alito's tough questions to the prisoner advocate continued to burnish his well-deserved reputation of being the most pro-government, pro-prosecution of the current Justices, while Justices Breyer, Ginsburg and Sotomayor posed some of the toughest questions to California's lawyer.  And not only old swing Justice Kennedy, but also new (swing?) Justice Kagan seemed to be trying to figure out how the potent prison crowding reduction order might be tweaked to engineer a resolution of Plata that everyone could live with.

Because the legal and factual issues in Plata are dynamic and uncertain, the Justice I am now thinking is most important to the resolution of this case is Chief Justice Roberts.  There is no crisp, plain right/wrong resolution in Plataand really no enduringly significant jurisprudential concerns, and yet the outcome of the case and also the reasoning (and rhetoric) used by the Court in reaching an outcome will still surely have lots of sentencing law and policy reverberations. 

For these reasons, the Chief's oft-stated interest in having more consensus on the Court could (and perhaps should) come to the fore in Plata.  And, as suggested above, it seems that both Justices Kennedy and Kagan may be especially interested and eager to find split-the-difference resolution to this case that all (or almost all) of the Justices can join.

Candidly, I am not sure if I would prefer to see a unanimous minimalist opinion in Plata that delicately balances all the competing issues, or would instead like the Justices to deliver a 5-4 opinion with lots of rhetoric flying.  But I am sure that the Chief Justice seems to me to be the key player in shaping just what becomes of Plata.

An innocence-based pitch for California capital clemency for Kevin Cooper

The potent pair of Alan Dershowitz and David Rivkin have this new op-ed in the Los Angeles Times, which is headlined "A time for clemency: Kevin Cooper was sentenced to death. But there are enough flaws in his case that the governor should step in to save him." Here is how the op-ed starts and finishes:

"The state of California may be about to execute an innocent man." That is the warning of Judge William Fletcher of the U.S. 9th Circuit Court of Appeals in a 101-page dissent from the court's decision to uphold the murder conviction of Kevin Cooper. Although the courts lack the power to grant clemency, the governor has the responsibility to do so when justice requires it. Now Gov. Arnold Schwarzenegger is duty-bound to use that power to save a possibly innocent man from death....

Schwarzenegger now bears the responsibility to see that justice is not irreparably perverted by putting Cooper to death. We ask the governor to commute Cooper's sentence to lifetime imprisonment without a chance for parole. All citizens, no matter where they stand on the death penalty, should demand no less.

"Veterans’ Courts and Criminal Responsibility: A Problem Solving History & Approach to the Liminality of Combat Trauma"

The title of this post is the title of this interesting book chapter by Professor Justin Holbrook. Here is the abstract:

In September 2010, a federal judge dismissed a criminal case involving a veteran accused of assaulting a federal police officer to allow the case to be heard by the Buffalo Veterans Treatment Court, a division of Buffalo City Court.  For those involved in veterans’ advocacy and treatment, the case is significant for a number of reasons.

First, it is the first criminal case nationwide to be transferred from federal court to a local veterans treatment court where the goal is to treat — rather than simply punish — those facing the liminal effects of military combat.  Second, the case reignites the still unsettled controversy over whether problem-solving courts generally, and veterans courts specifically, unfairly shift the focus of justice away from the retributive interests of victims to the rehabilitative interests of perpetrators.  Third, the case serves as a signal reminder to all justice system stakeholders, including parties, judges, attorneys, and treatment professionals, of the potential benefits of sidestepping courtroom adversity in favor of a coordinated effort that seeks to ameliorate victim concerns while advancing treatment opportunities for veterans suffering from combat-related trauma.  This chapter explores these issues in light of the history of combat-related trauma and the development of veterans’ treatment courts around the country.

Early assessments of SCOTUS oral argument in California prison overcrowding case

This morning the Supreme Court heard extended oral arguments in the California prison overcrowding case Schwarzenegger v. Plata (basic SCOTUSblog review here).  How Appealing has effectively here collected linksto lots of early media coverage of the argument, and Lyle Denniston's reporting here on SCOTUSblog starts his account of the argument this way:

In an argument that at times came close to being rowdy, the Supreme Court’s members jousted on Monday over whether to take on themselves the management of the way California provides medical care for some 140,000 prison inmates, or to leave that chore to a lower court that some Justices thought had done it right and some thought had botched the job.  In the end, the final choice seemed likely to reside with Justice Anthony M. Kennedy, who insisted that the lower court be left with a lot of discretion but who just as plainly showed he was not entirely satisfied with how it had used that leeway.

An argument that ran just a few minutes over the already expanded schedule of 80 minutes found Justices raising their voices and interrupting each other with some frequency as Chief Justice John G. Roberts, Jr., tried only occasionally and gently to referee.  All of the Court’s members except Justice Clarence Thomas were warmly engaged, and seemed determined at times to drive the arguments of counsel in Schwarzenegger v. Plata, et al. (08-1233) — the first case to reach the Court on the power of the courts to order a release of thousands of inmates from over-crowded prisons under a 1996 federal law.

The full and lengthy transcript of the oral argument in Schwarzenegger v. Plata is now available here, and I hope to have my own (original?) comments on this argument if/when time permits.  In the meantime, I welcome reader perspectives and predictions.

"Indiana budget leaders target prison population reductions"

The title of this post is the headline of this local article from Indiana, which gets started this way:

State budget leaders appear ready to make big changes in Indiana’s criminal sentencing system to try to stymie or even reduce the growth in the prison population.

But members of the State Budget Committee said Monday the General Assembly will need more detailed data and lots of political courage to make changes that save money and better serve inmates and the public.

The data should come in December, when the Pew Center on the States and the Council of State Governments Justice Center finishes an intensive study of the state’s criminal justice system and makes recommendations for a sentencing overhaul.  The latter could be more difficult. State lawmakers have made a habit, in reacting to crimes, of passing laws that create new felonies or lengthen sentences.

“This is going to be a big issue in the 2011 session,” said Rep. Peggy Welch, D-Bloomington, a member of the State Budget Committee and the budget-writing House Ways and Means Committee. “I challenge all of us to have the courage to do what needs to be done.”

"TN Supreme Court halts 4 executions over lethal injection questions"

The title of this post is the headline of this article in The Tennessean, which discusses a ruling coming late yesterday from the Tennessee Supreme Court. Here is how the article begins:

Just days after saying the execution of Stephen Michael West could go forward, the Tennessee Supreme Court changed its mind, saying there are unanswered questions about the way the state performs lethal injections.

The last-minute decision puts four executions indefinitely on hold and surprised even West's attorney, Assistant Federal Defender Stephen Ferrell.

"Reconsideration is something that traditionally doesn't happen all that often," Ferrell said. "But I'm glad to see they saw the lack of our opportunity to have any input. I'm pleased they were able to admit they may have made the first decision too hastily."

The court stayed the executions amid concern that inmates might be conscious and in pain during lethal injections, which could be considered "cruel and unusual punishment." Last week, the court approved checking for consciousness by having a warden shake the inmate and brush a hand across t he eyelashes. But the court reversed itself Monday, saying West's attorneys deserve a chance to challenge the new method's constitutionality.

The stay came just 30 hours before West was to be put to death. He had even made his last meal request: an extra-large Domino's pizza with everything on it except black olives and pineapple.

By Monday evening, West was taken off death watch at the Riverbend Maximum Security Institution. And he wouldn't be getting his pizza.

West was convicted in 1986 in the murder of Wanda Romines and her 15-year-old daughter, Sheila, in Union County. The state declined to comment on the ruling, but Romines' nephew, Eddie Campbell, was distressed by the court's decision.

"I just can't believe it's happening," Campbell said. "He had a trial, and he had a fair trial, and he's had every appeal that he could possibly have in the last 24 years and eight months. He was given the death penalty, and it should have been the death penalty two times over."

Split Illinois House committee vote moves forward death penalty abolition bill

As detailed in this local article, "Illinois’ death penalty would be abolished under a bill that cleared a House committee Tuesday on a 4-3 party-line vote."  Here are more of the basics:

The bill still needs approval from the full House and the Senate before it would go to Gov. Pat Quinn for his OK. 

The legislation is sponsored by Rep. Karen Yarbrough, D-Maywood, who said the death penalty is applied unequally and has no deterrent effect.  The Illinois State Bar Association and the American Civil Liberties Union of Illinois both appeared at the hearing in support of the legislation.

But a number of prosecutors urged retaining the death penalty, and said the issue deserved more debate than could be provided during the Legislature’s six-day fall veto session.

Private prison in Idaho under investigation after inmate beating video discovered

As detailed in this pair of new AP articles, a private Idaho prison run by that Corrections Corporation of America is being investigated concerning allegations that guard rely on inmate-on-inmate violence to manage prisoners:

• Video shows guards standing idle while inmate attacked

• FBI investigates Idaho private prison

Second Circuit "emphatically" rejects white-collar defendant's complaints about loss calculations

Anyone involved in any federal white-collar sentencing disputes will want to be sure to check out the Second Circuit's work today in US v. Woolf Turk, No. 09-5091 (2d Cir. Nov. 30, 2010) (available here). The panel opinion gets started this way:

Defendant-appellant Ivy Woolf Turk appeals the sentence imposed on her by the United States District Court for the Southern District of New York (Buchwald, J.) after she pleaded guilty to a single count of conspiracy to commit mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343, 1349.  The district court sentenced Woolf Turk principally to 60 months’ imprisonment and ordered her to pay $29,660,192.36 in restitution to the victims of the mortgage fraud she perpetrated.

On appeal, Woolf Turk’s main argument is that the district court, in applying the United States Sentencing Guidelines, erred in calculating the amount of loss that Woolf Turk’s fraud caused.  Specifically, she argues that the loss amount should be treated as zero because, at the time her fraud was discovered, there was still market value in the real property that purportedly collateralized the loans she had fraudulently obtained, and if that property had been sold before the collapse of the housing market, her victims could have been made whole.  She also argues that the district court erred in: (1) finding that there were more than 50 victims; (2) failing to conduct an individualized assessment of the factors in 18 U.S.C. § 3553(a); and (3) imposing a substantively unreasonable sentence.

For the reasons that follow, we emphatically reject Woolf Turk’s principal argument.  We also find no merit in her other claims of error, and thus affirm her sentence.

"Most federal judges not comfortable with tough guidelines"

The title of this post is the headline of this article about federal child porn sentencing realities appearing in today's Pittsburgh Post-Gazzette.  Here is how it gets started:

Before Richard Leo Smith III could ask for leniency for possessing child pornography, a federal judge in Pittsburgh signaled he would grant it.  The judge disagrees with guidelines that recommend a minimum of more than six years in prison.  "The guideline is largely the product of congressional directives," U.S. District Judge Gary Lancaster said recently, before sentencing Smith, 28, of Indiana Township to 2-1/2 years in prison.

A survey this year suggests a similar scenario plays out frequently across the country. About 70 percent of federal judges think sentencing guidelines for possession or receipt of child pornography are unreasonable.  The U.S. Sentencing Commission intends to review the guidelines.  The stakes could hardly be higher: years of defendants' lives vs. the safety of children.

Public defender Penn Hackney, who represented Smith, told Lancaster that uncertainty about the guidelines put him in a bind.  Some federal judges limit sentences to probation in such cases; others hand out 10 years or more in prison.  "This landscape is so shifting, I don't know what to ask for anymore," Hackney said.

Some related prior federal child porn prosecution and sentencing posts:

• "More federal child porn prosecutions in Texas than bank robberies, mail fraud or wire fraud"
• Split Third Circuit affirms way below-guideline sentence in major(?) child porn ruling
• "The Efficacy of Severe Child Pornography Sentencing: Empirical Validity or Political Rhetoric?"
• Major reasonableness ruling from Second Circuit in child porn downloading case
• Fascinating data on recent trends and circuit specifics for federal child porn sentences
• Is DOJ eager for (and obliquely urging) reducing the severity of the federal sentencing guideline for child porn downloading?
• "Federal judges argue for reduced sentences for child-porn convicts"
• Thorough and thoughtful district court defense of federal child porn guidelines
• "Judge Weinstein Takes On Child Pornography Laws"
• Effective local reporting on realities and debates surrounding federal sentencing guidelines for child porn
• "Disentangling Child Pornography from Child Sex Abuse"
• Noting the latest data showing reduced (but disparate) federal sentences for child porn downloaders

SL&P honored again by ABA Journal's list of Blawg 100

I am once again very pleased and very honored to report that this blog has once again been selected as one of the ABA Journal's Blawg 100.  I am grateful that ABAJ's annual list of the best of the blawgosphere has included this blog every year now for four years running. Here is how the ABA Journal describes my blog this year in its Criminal Justice category: "Ohio State University law professor Douglas Berman posts several times a day, keeping 'sentencing fans' updated on the latest news stories, commentary, cert grants, rulings, argument transcripts, research and scholarship on criminal penalties." That sounds about right.

Here is how the ABA Journal, which again has devoted its December cover story to the blawgosphere, describes its latest listing of top law blogs:

In our 4th annual Blawg 100, we organized a bit differently and created some new categories.  Yet we know that many blogs defy categories.  We have a "lighter fare" grouping, but you can find witty and funny blogs in any category.  More of our readers had a hand in the selections this time around: We received more than 1,250 blawg amici, or friend-of-the-blawg, nominations; you'll see some of the testimonials on the pages that follow.  This year, more bloggers embraced Twitter, though law profs are trailing the pack.

In addition to thanking the ABA Journal for giving me this honor each year, I want to again thank all the readers and commentors who always (and in various ways) help me find the energy (and often the insights) to keep this blog going. I genuinely believe I remain energized to maintain this blog largely because I so greatly enjoy the engagement, and still learn so much, from readers and commentators concerning the array of topics I discuss.

Notable FSA application letter from large number of defense counsel to USA for SDNY

As regular readers know, I have been following closely the debates over the application of the new sentencing terms of the Fair Sentencing Act to pending cases.  Indeed, through this amicus letter submitted in a pending case in the Southern District of New York, I have exaplained my view that there is "strong contextual support" for application of the FSA to all pending not-yet-sentenced cases.  In addition, this post of mine from a few weeks ago 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?". 

Against this brackdrop, I am pleased to be able to post a letter addressed to Preet Bharara, the United States Attorney of the Southern District of New Yorkset today, which asks about local FSA policy and it signed by a large group of criminal defense attorneys representing defendants in New York. Here is a snippet:

As you're undoubtedly aware, about two weeks ago, Senators Durbin and Leahy wrote Attorney General Holder to urge him to direct federal prosecutors to take the position that the Fair Sentencing Act of 2010 (the "FSA") should be applied to not-yet-sentenced defendants (a copy of their letter is enclosed). Consistent with legislative history we have canvassed in motions submitted in cases throughout this district, the two Senators explain that Congress intended the FSA to apply to all defendants who had not yet been sentenced when the law took effect.1 Judges are already starting to apply the FSA to pending cases over the Government's objection. See, e.g., United States v. Douglas, 2010 WL 4260221 (D. Me. 2010) (Hornby, J.). Included among them is the Honorable Shira A. Scheindlin, who recently applied the FSA to the sentencing of a defendant whose conduct predated its enactment. See United States v. Jeannette Garcia, 09 Cr. 1054 (SAS).

In light of the Senators' letter and what we believe will be an increasing number of decisions applying the FSA to pending cases, we write to inquire whether you plan to adopt a policy requiring (or at least allowing) prosecutors in this district to support defense motions to apply the FSA to such cases. Not only do we believe it would be consistent with congressional intent, the goal of sentencing consistency would be furthered by a uniform policy that accords with the decision of Judge Scheindlin and other district judges. Many of us have more than one client that would be affected by a change in policy. We note that the large number of dispositions that would undoubtedly follow would provide the added benefit of conserving prosecutorial and judicial resources that could be better applied to other cases.

Download Letter to Hon Preet Bharara 11-29-10

Some recent related posts:

• Adding my two cents concerning application of the FSA to pending cases
• New USDC opinion applying new FSA law to not-yet-sentenced defendants
• Seeking ground reports on the FSA's application to not-yet-sentenced cases
• 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?
• Does Abbott provide new and added support for applying the FSA to pending cases?
• Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases

Defendant's post-plea rant on Craigslist costs him sentence reduction for accepting responsibility

The Eighth Circuit has an interesting little "new-media" sentencing opinion today in US v. Wineman, No. 10-1121 (8th Cir. Nov. 29, 2010) (available here). These two paragraphs from the opinion provide some of the particulars:

Wineman emphasizes that the Craigslist rant did not deny any aspect of his role in the conspiracy, did not identify any undercover law enforcement officers or informants, and did not request any retaliation against law enforcement.  He characterizes the rant merely as an expression of frustration with his physical disability and the denial of disability benefits.  Notwithstanding the rant, Wineman argues that his timely guilty plea, his timely admission of all relevant conduct (including drug quantity and possession of a firearm), and his assistance in helping authorities recover methamphetamine from his residence are sufficient to merit a reduction for acceptance of responsibility.

Wineman is correct that a timely guilty plea and admission of relevant conduct “constitute significant evidence of acceptance of responsibility,” but “this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility.”  United States v. Nguyen, 52 F.3d 192, 194 (8th Cir. 1995) (quoting U.S.S.G. § 3E1.1 cmt. n.3).  “The key issue is whether the defendant has shown ‘a recognition and affirmative responsibility for the offense and sincere remorse.’” Id.  In this case, we agree with the district court that the Craigslist rant is inconsistent with any acceptance of responsibility by Wineman.  In the rant, Wineman places responsibility for his offense on the “addicts” who bought his product and on the unnamed officials who denied him disability benefits.  Wineman’s only regret appears to be that law enforcement officers and informants had the temerity to disrupt the methamphetamine “service” he provided to his community, a service he equates to the local “gas station or grocery store.”  This is far removed from “a recognition and affirmative responsibility for the offense and sincere remorse.”  Nguyen, 52 F.3d at 194.

California capital case prompts notable statement supporting denial of cert

In with orders and other matters coming from SCOTUS this morning is this statementrespecting the denial of the petition for writ of certiorari in Gamache v. California, No. 10-5196, authored Justice Sonia Sotomayor and joined by Justices Ginsburg, Breyer and Kagan.  As these excerpts highlight (with most cites omitted), this (unusual?) statement provides still more evidence of the extra special attention given to capital cases by at least some Justices:

After a jury convicted Richard Gamache of first-degree murder and sentenced him to death, Gamache’s counsel and the trial court learned that during deliberations, court personnel inadvertently gave the jury a videotape that had not been admitted into evidence.  During its deliberations, the jury watched the video twice in full and a third time inpart before reaching its verdict.  The video showed a police interview of Gamache and his codefendants on the day ofthe murder in which Gamache confessed to the crime in graphic terms....

On appeal, the California Supreme Court held that the jury’s access to the tape was indisputably error, ... [but seemed to have improperly] allocat[ed] the burden to the defendant to demonstrate prejudice....  However, it appears from the court’s recitation of the evidence and its analysis that the court found that theerror at issue was harmless, regardless of the burden allocation....

I nonetheless write respecting the denial of certiorari because the allocation of the burden of proving harmlessness can be outcome determinative in some cases.  With all that is at stake in capital cases, cf. Kyles v. Whitley, 514 U. S. 419, 422 (1995) (“‘[O]ur duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case’” (quoting Burger v. Kemp, 483 U. S. 776, 785 (1987)),in future cases the California courts should take care to ensure that their burden allocation conforms to the commands of Chapman.  In this case, however, because it seems that the burden allocation would not have altered the court’s prejudice analysis, I do not disagree with the denial of certiorari.

I cannot recall many instances in which a group of Justices have signed on to a statement supporting the denial of cert except when other Justices' have dissented from a cert denial. In this (unique?) setting, it appears that the three Justices who have been most vocal in expressing concerns with death penalty adminstration, with new Justice Kagan along for the ride, were eager to remind the California Supreme Court and other lower courts that they will be continuing to "search for constitutional error with painstaking care ... in [every] capital case."

Lots of criminal justice action as SCOTUS gets back into action

This morning, the Supreme Court begins hearing arguments in its December sitting with two habeas cases Wall v. Kholi, which concerns a statute of limitations issue, and Walker v. Martin, which concerns a state procedural default issue.  These cases serve as a kind of prelude to these two big sentencing-related cases to be heard later in the sitting:

• On Tuesday, November 30, the Justices will hear the California prison overcrowding case Schwarzenegger v. Plata (SCOTUSblog review here).  Here is a local press report about the case via the Mercury News.  How Appealing also has links here to other Plata preview pieces.

• On Monday, December 6, the Justices will hear the federal resentencing case Pepper v. United States (SCOTUSblog review here).  Here is a local press report about the case via the Des Moines Register.

Both Pepper and Plata have the potential to be blockbuster rulings.  But in part because the defendants seem to have a good shot at victory in both cases, I will not be at all surprised if we get relatively "minimalist" rulings in Pepper and Plata.

"States ask Texas to supply ingredient for executions"

The title of this post is the headline of this article in today's USA Today.  Here are excerpts:

As the supply of a key drug used in lethal injections dwindles, state officials are knocking on the door of the busiest execution chamber in the country for help.

Some states that have the death penalty have asked Texas for doses of sodium thiopental, the so-called knockout drug, used as part of the three-drug cocktail in executions by lethal injection, accordingto Michelle Lyons, spokeswoman for the Texas Department of Criminal Justice.  She would not identify the states that requested assistance.

The state has declined to make its supply available even though all of its 39 available doses are set to expire in March and there are only three executions scheduled in the state before then, Lyons said.

States — including Arizona, Oklahoma, Ohio, Tennessee and Kentucky — have scrambled to acquire the drug. Sodium thiopental renders the condemned inmate unconscious, so the prisoner does not feel pain. Hospira, the lone federally approved producer of the drug, has said new batches of the substance would not be available until next year.

Lyons said that despite the looming expiration of Texas' extra inventory, "we do not have plans to distribute the drug to other states. We have a responsibility to ensure we have an adequate supply of the drug on hand to carry out any executions scheduled in the state of Texas," Lyons said.

States with shortages are trying to find suppliers abroad or proposing radical changes in their execution protocols to deal with the lack of drugs.

• In Oklahoma last week, a federal judge approved the use of pentobarbital, a drug used in euthanizing animals, to replace sodium thiopental in lethal injections. Oklahoma Assistant Attorney General Stephen Krise said the state was "forced" to find an alternative when sodium thiopental became "unavailable."
• In Arizona last month, the U.S. Supreme Court allowed the execution of convicted murderer Jeffrey Landrigan after his attorneys challenged the state's acquisition of sodium thiopental from an undisclosed supplier in Britain.
• In Kentucky in August, Gov. Steve Beshear, a Democrat, postponed the signing of two death warrants because of the shortage of sodium thiopental.  "The (state's) repeated attempts to obtain additional thiopental have so far been unsuccessful," Beshear said in written statement.

Justice John Paul Stevens continues his campaign against the modern death penalty

As detailed in this New York Times article, which is headlined "Ex-Justice Criticizes Death Penalty," the most recently retired Supreme Court Justice is continuing to assail the modern administration of the death penalty in the United States.  Here is how the Times piece begins:

In 1976, just six months after he joined the Supreme Court, Justice John Paul Stevens voted to reinstate capital punishment after a four-year moratorium.  With the right procedures, he wrote, it is possible to ensure “evenhanded, rational and consistent imposition of death sentences under law.”

In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional. But the reason for that change of heart, after more than three decades on the court and some 1,100 executions, has in many ways remained a mystery, and now Justice Stevens has provided an explanation.

In a detailed, candid and critical essay to be published this week in The New York Review of Books, he wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.

The essay is remarkable in itself.  But it is also a sign that at 90, Justice Stevens is intent on speaking his mind on issues that may have been off limits while he was on the court.

In the process, he is forging a new model of what to expect from Supreme Court justices after they leave the bench, one that includes high-profile interviews and provocative speeches.  He will be on “60 Minutes” on Sunday night.

Retired Justice John Paul Stevens's piece in the New York Review of Books is a review of David Garland's book "Peculiar Institution: America's Death Penalty in an Age of Abolition."  It is now available at this link, and here are a few paragraphs from the start of the lengthy review:

David Garland is a well-respected sociologist and legal scholar who taught courses on crime and punishment at the University of Edinburgh before relocating to the United States over a decade ago. His recent Peculiar Institution: America’s Death Penalty in an Age of Abolition is the product of his attempt to learn “why the United States is such an outlier in the severity of its criminal sentencing.”  Thus, while the book primarily concerns the death penalty, it also illuminates the broader, dramatic differences between American and Western European prison sentences....

[D]espite its ostensible amorality, his work makes a powerful argument that will persuade many readers that the death penalty is unwise and unjustified.

His explanation of why the United States retains capital punishment is based, in part, on the greater importance of local decision-making as compared with the more centralized European governments with which he was familiar before moving to New York.  Some of his eminently readable prose reminds me of Alexis de Tocqueville’s nineteenth-century narrative about his visit to America; it has the objective, thought-provoking quality of an astute observer rather than that of an interested participant in American politics.

UPDATE: The 60 Minutes segment with JPS is now available at this link.

Editorial urges crack/powder parity even after FSA

Because I fear that the push for crack sentencing reforms will lose steam now that the Fair Sentencing Act became law, I was pleased to see this new editorial in the Grand Rapids Press headlined "Goverment should treat crack, powder cocaine offenders the same." Here are excerpts:

The same drug crime is being committed whether a person snorts powder cocaine in the suburbs or smokes crack cocaine in the ’hood.

One form of cocaine should not be sentenced harsher than another. A federal law took effect this month that finally eliminates much of the disparity in prison sentences that’s resulted in blacks disproportionately doing harder time.

Punishment for breaking the law should be tough but fair. The new guidelines are a strong step in the right direction — but “fairer” isn’t the same as “fair.” Congress should seek parity.

Crack is the cheaper form of cocaine, and it is used predominantly by low-income people in urban areas. Blacks represent roughly 80 percent of those sentenced to longer prison terms for crack cocaine crimes....

Last year, Lanny Breuer, assistant Attorney General for the Criminal Division of the Justice Department, testified before a Senate Committee that “we cannot ignore the mounting evidence that the current cocaine sentencing disparity is difficult to justify based on the facts and science, including evidence that crack is not an inherently more addictive substance than powder cocaine.”...

Everyone wants to keep communities safe and see the devastating impact illegal drugs have on families and communities decline. But laws must be smart, tough and fair. Just as federal officials said there was no definitive evidence behind the rationale for the adoption of the 100-to-1 ratio, there is none for 18-to-1. Congress should enact 1-to-1 parity.

Public trust and confidence are vital to an effective criminal justice system.

"More federal child porn prosecutions in Texas than bank robberies, mail fraud or wire fraud"

The title of this post is from this post at the always terrific "Grits for Breakfast." The Grits post spotlights this effective Dallas Morning News article, headlined "Texas inmate is part of growing child porn trend that has ruined lives," about a particular downloader of kiddie porn who received only a two-year federal prison term even though "typically, people who view child porn get more prison time than people who sexually abuse children." Here is more from the newspaper piece:

Child porn possession has been a federal crime since 1990. In the last decade, federal prosecutions more than doubled in Texas and nationwide. In Texas, the cases have grown faster than nearly any category of federal offense, according to Syracuse University's TRAC database. Since October 2007, more child porn cases have been filed in Texas than old-school federal prosecutions for bank robbery or bank fraud, mail fraud or wire fraud.

The cases often involve seemingly ordinary people with stable jobs and families. The nearly 1,000 Texans prosecuted since 2000 include band instructors and businessmen, physicians and pastors and prison guards, restaurant managers and retirees....

Researchers say understanding of offenders is in its infancy. There's little data to differentiate passive voyeurs from active predators, and no definitive way to assess future risks for offenders.... "Some people who don't necessarily want to get involved with kids do get hooked," said psychiatrist Fred Berlin, founder of Johns Hopkins University's sexual disorders clinic.

He and other experts say many offenders don't know how to stop.  And the public remains largely unaware that, typically, people who view child porn get more prison time than people who sexually abuse children.

In the last decade, according to a federal public defender's 2009 analysis, the mean federal child porn sentence increased by nearly six years in the decade ending in 2007 to more than 7 ½ years in prison.

Some experts note that those increases came without any scientific data or rationale. Most offenders ... have no prior records –- let alone sex offenses.

The piece also has this notable chart spotlighing the significant the growth in federal child porn prosecutions both nationally and in Texas in recent years.