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May 12, 2012

Another obvious mandatory sentencing injustice in Florida "warning shot" case

As reported in this CNN story, headlined "Florida woman sentenced to 20 years in controversial warning shot case," another high-profile shooting case in Florida has produced a different kind of criminal justice controversy.  Here are the details:

Saying he had no discretion under state law, a judge sentenced a Jacksonville, Florida, woman to 20 years in prison Friday for firing a warning shot in an effort to scare off her abusive husband.

Marissa Alexander unsuccessfully tried to use Florida's controversial "stand your ground" law to derail the prosecution, but a jury in March convicted her of aggravated assault after just 12 minutes of deliberation.

The case, which was prosecuted by the same state attorney who is handling the Trayvon Martin case, has gained the attention of civil rights leaders who say the African-American woman was persecuted because of her race.

After the sentencing, Rep. Corrine Brown confronted State Attorney Angela Corey in the hallway, accusing her of being overzealous, according to video from CNN affiliate WJXT. "There is no justification for 20 years," Brown told Corey during an exchange frequently interrupted by onlookers.  "All the community was asking for was mercy and justice," she said.

Corey said she had offered Alexander a plea bargain that would have resulted in a three-year prison sentence, but Alexander chose to take the case to a jury trial, where a conviction would carry a mandatory sentence under a Florida law known as "10-20-life." The law mandates increased penalties for some felonies, including aggravated assault, in which a gun is carried or used.

Corey said the case deserved to be prosecuted because Alexander fired in the direction of a room where two children were standing. Alexander said she was attempting to flee her husband, Rico Gray, on August 1, 2010, when she picked up a handgun and fired a shot into a wall.  She said her husband had read cell phone text messages that she had written to her ex-husband, got angry and tried to strangle her.

She said she escaped and ran to the garage, intending to drive away.  But, she said, she forgot her keys, so she picked up her gun and went back into the house. She said her husband threatened to kill her, so she fired one shot. "I believe when he threatened to kill me, that's what he was absolutely going to do," she said.  "That's what he intended to do. Had I not discharged my weapon at that point, I would not be here."...

A jury convicted Alexander in March and Judge James Daniel denied her request for a new trial in April.  Daniel handed down the sentence Friday after an emotional sentencing hearing during which Alexander's parents, 11-year-old daughter and pastor spoke on her behalf.

Several people had to be escorted from the courtroom after breaking out singing and chanting about a perceived lack of justice in the case, but Daniel made a point to say that he had no choice under state law. "Under the state's 10-20-life law, a conviction for aggravated assault where a firearm has been discharged carries a minimum and maximum sentence of 20 years without regarding to any extenuating or mitigating circumstances that may be present, such as those in this case," Daniel said.

Brown, the Jacksonville congresswoman, told reporters after the sentencing that the case was a product of "institutional racism."

"She was overcharged by the prosecutor.  Period," Brown said.  "She never should have been charged."  Brown has been more complimentary about Corey's work in the Trayvon Martin case, where her office filed second degree murder charges against neighborhood watch volunteer George Zimmerman in the February 26 death of the unarmed African-American teen-ager.

It is sad, very disappointing and ultimately quite harmful that Rep. Corrine Brown is apparently so eager to assert that the injustice in this case reflects "institutional racism" and misuse of prosecutorial discretion.  It seems far more appropriate to complain that the injustice in this case reflects structural flaws in Florida's sentencing laws and mistakes by the state legislature to fail to provide a safety-valve from the application of broad mandatory sentencing provisions.

As the CNN story reveals, the prosecutor apparently had the ability and authority to prevent application of Florida's "10-20-life" sentencing law if Marissa Alexander had been wiling to forgo her constitutional right to trial to have the judicial system consider her self-defense claims.  But after Alexander decided to exercise her trial rights, then her conviction apparently deprived a judge or any other authority the ability and authority to sentence her to anything less than 20 years in prison.  Without knowing more about the case, I am not sure if the three-year term offered in the plea or even a lesser sentence would have been appropriate, but it seem obvious to me that a 20-year term is grossly excessive for Alexander's offense conduct.

Bemoaning this case as a reflection of "institutional racism" brings far more heat than light to this dark (but not uncommon) example of mandatory sentencing injustice.  A focus instead on the problems with letting only prosecutors and not judges decide if a case merits an exception to strict sentencing rules could help this case engender needed structural reforms rather than more racial polarization.  Helpfully, the folks at FAMM are effectively using this case to bring attention to these critical sentencing matters, but I fear that the eagerness of Rep. Corrine Brown to play the race card will eclipse FAMM's efforts to use this kind of case to foster sober and needed sentencing reforms.

Though I am not certain of the sentencing commutation authority of Florida's Governor, this case seems to cry out for executive clemency.  Though involving a very offense environments, I am reminded of the high-profile "border agent" case from a few years ago in which two federal border agents got saddled with a sentences of more than a decade after failed self-defenses claims due mandatory federal gun sentencing provisions.  On his last day in office, as detailed here, President George W. Bush justifably commuted the sentences of these border agents.  I hope Florida's Governor has both the power and the wisdom to use the same means to undue an obvious sentencing injustice in this case.

May 12, 2012 in Clemency and Pardons, Examples of "over-punishment", Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences | Permalink | Comments (34) | TrackBack

Victim calls sentence for deadly DWI offense an "insult to humanity"

Regular readers know of my long-standing criticisms and concerns about what often seem to me to be unduly lenient sentences for drunk driving offenses. These readers will thus not be surprised that this recent local article from North Carolina caught my attention. The piece is headlined "Victim's father: Drunken driver sentences 'an insult to humanity'," and here are excerpts:

Kristie Lee is buried on her family's farm in Wayne County, a constant reminder of a life cut short. The 37-year-old mother of two was leaving a Mount Olive church on Oct. 17, 2010, when a drunken driver hit her car head-on, killing her.

A court found Hermelindo Castro guilty in her death and sentenced him to the maximum penalty under the law -- 3 ½ years in prison. Lee's family members say that sentence is too short. They're not alone. “It is not just an insult to a father, but it's an insult to humanity,” said Doug Jernigan, Lee’s father.

In cases like Lee’s, victims' families often want to blame the judge for what they see as a light sentence that doesn't fit the seriousness of the crime. However, North Carolina judges are bound by strict, structured sentencing guidelines, leaving them with few options. “I just don't believe it's that much different than taking a loaded gun and going into a place of business and firing,” said Kimberly Smith, Lee’s sister.

Wayne County Superior Court Judge Arnold Jones shares their frustration and has taken a rare stand for a judge by speaking out against what he believes are inadequate sentencing guidelines for felony death by vehicle. “Yes, it is frustrating. I'm human. I get frustrated. A lot of people do,” Jones said. “But I've still got to uphold my oath, and that's what I'm going to do to the best of my ability.”

The judge has dealt with many families who have lost loved ones to drunken drivers and says that talking to them “has been the most difficult and heart-wrenching thing I've had to do.” “What are we going to do to protect your children and my children from this kind of thing happening to them?” Jones said.

Sen. Buck Newton, R-Nash, has met with ... families about the possibility of sponsoring legislation to increase the penalties in cases [involving drunk driving deaths]. A similar bill, Senate Bill 393, was proposed last year, but never got out of committee. “Good people get killed. Good people get maimed. Terrible things happen when people drink and drive,” Newton said.

Most drivers who cause a death while drunk are charged with felony death by vehicle. In rare cases, North Carolina district attorneys will charge them with second-degree murder. However, those cases can be difficult to prove because prosecutors need to show an aggravating circumstance, such as a prior drunken driving charge, and prove malice to a jury, which can be a tough sell.

Raleigh defense attorney Karl Knudsen says he believes that, for lawmakers, upping the penalties for drunken driving deaths is more about politics than logic. “Nobody ever lost a vote being too tough on drinking and driving,” Knudsen said, adding that not everyone deserves the harshest penalties. “There are going to be people that are very good people who are going to unintentionally cause a death that they are going to regret for the rest of their lives.”

Some related posts on sentencing drunk drivers:

May 12, 2012 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (6) | TrackBack

May 11, 2012

Former president of Poland urges "Saying No to Costly Drug Laws"

Aleksander Kwasniewski, the president of Poland from 1995 to 2005, has this notable op-ed in the New York Times under the headline "Saying No to Costly Drug Laws." Here are excerpts:

In the year 2000, as the president of Poland, I signed one of Europe’s most conservative laws on drug possession. Any amount of illicit substances a person possessed meant they were eligible for up to three years in prison. Our hope was that this would help to liberate Poland, and especially its youths, from drugs that not only have a potential to ruin the lives of the people who abuse them but also have been propelling the spread of H.I.V. among people who inject them....

We assumed that giving the criminal justice system the power to arrest, prosecute and jail people caught with even minuscule amounts of drugs, including marijuana, would improve police effectiveness in bringing to justice persons responsible for supplying illicit drugs. We also expected that the prospect of being put behind bars would deter people from abusing illegal drugs, and thus dampen demand.

We were mistaken on both of our assumptions. Jail sentences for the possession of illicit drugs — in any amount and for any purpose — did not lead to the jailing of drug traffickers. Nor did it prove to be a deterrent to drug abuse.

What the law did do, however, was enable the police to increase their arrest numbers by hauling in droves of young people caught with small amounts of marijuana. More than a half of all arrests under the law were of people aged 24 and younger. Criminalization of drug users resulted in a dramatic increase in the number of identified cases of drug possession: from 2,815 in 2000 to 30,548 in 2008....

It is my hope that political and community leaders in other countries, especially in Eastern Europe, will learn from Poland’s experience in criminalizing drug possession, a move that clearly fell short of its goals. Such a policy failure should not be repeated anywhere else in the world.

For this reason, I decided to join the Global Commission on Drug Policy, an effort by former heads of state — including César Gaviria of Colombia, Fernando Henrique Cardoso of Brazil, Ruth Dreifuss of Switzerland and Ernesto Zedillo of Mexico — to advocate for reform of ineffective drug laws. I feel honored to have become the first former president of a country from Eastern Europe to join this body. I very much encourage political leaders from other regions of the world to sign on and show their support for policies that actually protect citizens.

The Global Commission offers a set of policy recommendations that should be the cornerstones of drug laws around the world. One of the main approaches that the commission supports is the decriminalization of drug use and possession of drugs for personal use....

Political leaders these days have ample evidence as to which approaches to drug policy actually help societies function better, and rigorous scientific investigation should always form the basis of policy making. Our role as politicians is to protect our communities and improve the functioning of our states. This may mean that we have to admit to having made mistakes. Fortunately now we know how to correct them.

May 11, 2012 in Drug Offense Sentencing, Sentencing around the world | Permalink | Comments (3) | TrackBack

"Too young to shave, but old enough for solitary"

The title of this post is the title of this recent article from the ACLU Blog of Rights, which gets started this way:

As any parent knows, teenagers are different than adults. This common-sense observation is backed by hard scientific evidence; we know that an adolescent’s brain continues to grow and develop well into his or her twenties. The fact that teenagers’ brains are still developing makes them especially vulnerable to trauma of all kinds, including the trauma of social isolation and sensory deprivation.

That’s why the leading American child psychiatry association just approved a policy statement opposing the use of solitary confinement in correctional facilities for juveniles. The American Academy of Child & Adolescent Psychiatry represents over 7,500 child and adolescent psychiatrists and other interested physicians.

This groundbreaking policy statement from adolescent psychiatry experts comes not a moment too soon. While recent settlements in ACLU lawsuits in Montana and Mississippi include limits on solitary confinement for youth, the practice remains alarmingly widespread, with thousands of persons under 18 held in solitary on any given day, in juvenile facilities as well as in adult jails and prisons.

May 11, 2012 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (5) | TrackBack

May 10, 2012

New Jersey prosecutors request (some but not max) prison time for Dharun Ravi's webcam crimes

As reported in this local article, local prosecutors in New Jersey in a sentencing filing today "portrayed Dharun Ravi as callous and unrepentant — displaying little concern that his roommate might have committed suicide — in recommending the former Rutgers student serve prison time for a hate crime conviction in a webcam spying trial that captivated the nation."  Here is more about the filing:

In court documents filed Thursday, the state, on behalf of Clementi and M.B., seeks prison time for Ravi — although not the maximum 10-year sentence that he faces.

In making their case for incarceration, prosecutors sought to contrast the image portrayed last week in a filing by defense attorneys in which they submitted letters from Ravi’s friends that characterized him as considerate and helpful....

First Assistant Middlesex County Prosecutor Julia McClure wrote in the papers filed in state Superior Court in New Brunswick ... that “defendant has failed to accept any degree of responsibility for the numerous criminal acts he committed, and shows no remorse for same, despite significant evidence pointing directly at him.”

The full 14-page sentencing memorandum submitted by prosecutors is available at this link.

Recent related posts:

May 10, 2012 in Celebrity sentencings, Offense Characteristics | Permalink | Comments (3) | TrackBack

"Drug crime sends first-time offender grandmom to prison for life"

628x471The title of this post is the headline of this new article from the Houston Chronicle, which carries the subheadline "Houstonian, who has no secrets to trade, is doing more time than drug lords."  Here is more about the crime and punishment of the woman pictured here:

The U.S. government didn't offer a reward for the capture of Houston grandmother Elisa Castillo, nor did it accuse her of touching drugs, ordering killings, or getting rich off crime.  But three years after a jury convicted her in a conspiracy to smuggle at least a ton of cocaine on tour buses from Mexico to Houston, the 56-year-old first-time offender is locked up for life -- without parole.  "It is ridiculous," said Castillo, who is a generation older than her cell mates, and is known as "grandma" at the prison here. "I am no one."

Convicted of being a manager in the conspiracy, she is serving a longer sentence than some of the hemisphere's most notorious crime bosses -- men who had multimillion-dollar prices on their heads before their capture. The drug capos had something to trade: the secrets of criminal organizations.

The biggest drug lords have pleaded guilty in exchange for more lenient sentences.  Castillo said she has nothing to offer in a system rife with inconsistencies and behind-the-scenes scrambling that amounts to a judicial game of Let's Make A Deal.

"Our criminal justice system is broke; it needs to be completely revamped," declared Terry Nelson, who was a federal agent for over 30 years and is on the executive board of Law Enforcement Against Prohibition. "They have the power, and if you don't play the game, they'll throw the book at you."

Castillo maintains her innocence, saying she was tricked into unknowingly helping transport drugs and money for a big trafficker in Mexico. But she refused to plead guilty and went to trial....

Gulf Cartel lord Osiel Cardenas Guillen ... once led one of Mexico's most powerful syndicates and created the Zetas gang. He pleaded guilty in Houston and is to be released by 2025. He'll be 57.

As the federal prison system has no parole, Castillo has no prospect of ever going home. "Any reasonable person would look at this and say, 'God, are you kidding?' " said attorney David Bires, who represented Castillo on an unsuccessful appeal.  "It is not right."...

Castillo is adamant about her innocence. "Put yourself in my shoes. When you are innocent, you are innocent," she said. "I don't say I am perfect. I am not … but I can guarantee you 100 percent that I am innocent of this."

At the urging of her boyfriend, Martin Ovalle, Castillo became partners with a smooth-talking Mexican resident who said he wanted to set up a Houston-based bus company.  But the buses were light on passengers and shuttled thousands of pounds of cocaine into the United States and millions of dollars back to Mexico.  Her lawyers argued she was naive.

Castillo claims she didn't know about the drug operation, but agents said she should have known something was wrong when quantities of money and drugs were repeatedly found on the coaches. "After hearing all the evidence as presented from both the government and defense in this case, the jury found her guilty … ," said Kenneth Magidson, chief prosecutor here.

Former federal prosecutor Mark W. White III said if Castillo had something to share, she might have benefited from a sentence reduction for cooperating. "Information is a cooperating defendant's stock in trade," White said, "and if you don't have any, … the chances are you won't get a good deal."

May 10, 2012 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (34) | TrackBack

Rhode Island Gov to appeal to SCOTUS to resist turning over murderer to feds

As reported in this AP article, the "tug-of-war over an inmate in Rhode Island custody in a possible death penalty case escalated Wednesday as Gov. Lincoln Chafee said he will appeal to the U.S. Supreme Court a federal court ruling allowing the inmate to stand trial in federal court."  Here is more:

Chafee said the court's close vote shows a split in the interpretation of the Interstate Agreement on Detainers Act, which allows governors to refuse to surrender inmates. The U.S. 1st Circuit Court of Appeals voted 3-2 on Monday that Jason Pleau, 34, may stand trial in federal court where he faces a possible death penalty prosecution over a fatal robbery.

Rhode Island does not have the death penalty. The governor invoked the concept of states' rights in the fight over Pleau, who is accused of fatally shooting a gas station manager outside a Woonsocket bank in 2010.

"Given the close vote of the full court, which demonstrates a genuine split in the interpretation of the law, the state of Rhode Island must seek to protect both the strong states' rights issues at stake and the legitimacy of its longstanding public policy against the death penalty," Chafee said in a statement....

Federal prosecutors have not said whether Pleau would face the death penalty if convicted of killing 49-year-old David Main. Rhode Island-based U.S. Attorney Peter F. Neronha said in a statement after the Appeals Court ruling that his office is ready to move forward with the case. A spokesman for Neronha would not comment on Chafee's announcement....

Main's sister, Deborah Smith, told Chafee in an email Tuesday that his fight to keep Pleau in state custody is "obstructing justice." She told the governor it is time to stop wasting taxpayers' money.

Chafee said he regrets that the case continues to cause pain for Main's family. "I extend once again my most sincere condolences to them for their terrible loss, which resulted from such a senseless crime," he said.

Related prior posts:  

May 10, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (14) | TrackBack

May 9, 2012

South Carolina Supreme Court declares lifetime sex offender GPS tracking unconstitutional on various grounds

The South Carolina Supreme Court has a very interesting (and seemingly ground-breaking) constitutional ruling concerning GPS tracking of a sex offender.  The ruling in SC v. Dykes, No. 27124 (S.C. May 9, 2012) (available here), is a bit hard to figure out: the first opinion seems to announce the opinion for the court, but then a footnote at the state of Justice Hearn's opinion states that "[b]ecause a majority of the Court has joined the separate concurring opinion of Justice Kittredge, his concurrence is now the controlling opinion in this case." I will quote the first paragraph from both opinions in the case, because they both are noteworthy, starting here with the opinion of Justice Hearn:

Jennifer Rayanne Dykes appeals the circuit court's order that she be subject to satellite monitoring for the rest of her natural life pursuant to Section 23-3-540(C) of the South Carolina Code (Supp. 2010). She lodges five constitutional challenges to this statute: it violates her substantive due process rights, her right to procedural due process, the Ex Post Facto clause, the Equal Protection Clause, and her right to be free from unreasonable searches and seizures. We hold the mandatory imposition of lifetime satellite monitoring violates Dykes' substantive due process rights and reverse and remand for further proceedings.

The very lengthy opinion by Justice Hearn, which apparently garnered only two (of the five) votes on the court, is thereafter followed by a shorter opinion by Justice Kittredge which starts this way:

I concur in result. I commend my learned colleague for her scholarly research, and I agree with the majority's general proposition that persons have a fundamental right "to be let alone."  But I respectfully disagree that Appellant, as a convicted child sex offender, possesses a right that is fundamental in the constitutional sense.  I do not view Appellant's purported right as fundamental.  I would find Appellant possesses a liberty interest entitled to constitutional protection, for all persons most assuredly have a liberty interest to be free from unreasonable governmental interference.  I would find that the challenged mandatory lifetime, non-reviewable satellite monitoring provision in section 23-3-540(C) is arbitrary and fails the minimal rational relationship test.

Long story short, it appears that all members of the South Carolina Supreme Court have concluded that the mandatory lifetime satellite monitoring now required by stature in South Carolina for sex offender Jennifer Rayanne Dykes is unconstitutional.  (I mention the full name of the defendant in this case because I cannot help but wonder, yet again, if the defendant's gender may have played at least an unconscious role in this notable outcome.  I do not think it is implausible to at least suspect this case might well have come out another way if the the defendant was named Johnny Rex Dykes.)

I have not kept count of how many states are like South Carolina in requiring lifetime GPS monitoring of many sex offenders, but I am pretty sure this ruling could (and should?) have ripple effects in at least a few other jurisdictions.  I am also sure that both constitutional scholars and those interested in the intersection of modern technology and criminal justice doctrines ought to check out the Dykes opinions.

May 9, 2012 in Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Technocorrections, Who Sentences | Permalink | Comments (19) | TrackBack

ACS event in DC tomorrow on presidential clemency and drug sentencing

If I was within ready driving distance of DC, I would make extra sure to find time to attend this notable ACS event scheduled for tomorrow morning (Thursday, May 10), which is titled "Reimagining the Constitutional Pardon Power: Does the President Have a Role in Making Drug Sentences Fairer?". The program has an awesome line-up of important speakers from both the academy and practice, including former Maryland Governor Robert Ehrlich, and former White House Counsel Gregory Craig.  Here is how the ACS website sets up the event:

On Thursday, May 10, 2012, at 10:00 a.m., the American Constitution Society for Law and Policy and the Open Society Foundations will host “Reimagining the Constitutional Pardon Power: Does the President Have a Role in Making Drug Sentences Fairer?” In Article II of the U.S. Constitution, the President’s pardon power resides with little fuss or fanfare, likely a result of its infrequent use. Article II, Section 2 provides that the President "shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." Despite this explicit authority, and the thousands of clemency petitions received by the Department of Justice each Administration – close to 6,000 such petitions have been received by the Obama Administration thus far – the pardon power is a tool rarely used in our criminal justice system. As the Administration wraps up its first term in office having granted 23 clemency petitions, we consider whether the pardon power should be used as a tool for balancing unfair sentencing laws in the criminal justice system.

The President took a step in this direction when he commuted the sentence of federal prisoner Eugenia Jennings, who was serving a 22-year sentence for a nonviolent, crack cocaine offense. Should clemency in this context become customary? Is there a viable pardon process that can be used? If pardon power is exercised regularly, how do we ensure fair and nondiscriminatory procedures? Are governors setting an example at the state level for how pardon powers should be used? These questions and others will be considered by the program’s panel of experts.

May 9, 2012 in Clemency and Pardons, Drug Offense Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Could I be (and should I want to be) federal prisoner Keith Judd's DNC delegate from West Virginia?

120508_keith_russel_judd_apThe question in the title of this post is meant — sort of, maybe — as a joke in light of the notable primary voting news out of West Virginia reported in this AP article, headlined "Against Obama, even a jailbird gets some votes." Here are the basics:

Just how unpopular is President Barack Obama in some parts of the country?  Enough that a man in prison in Texas got 4 out of 10 votes in West Virginia's Democratic presidential primary.

The inmate, Keith Judd, is serving time at the Federal Correctional Institution in Texarkana, Texas, for making threats at the University of New Mexico in 1999.  Obama received 59 percent of the vote to Judd's 41 percent.

For some West Virginia Democrats, simply running against Obama is enough to get Judd votes. "I voted against Obama," said Ronnie Brown, a 43-year-old electrician from Cross Lanes who called himself a conservative Democrat.  "I don't like him. He didn't carry the state before and I'm not going to let him carry it again."  When asked which presidential candidate he voted for, Brown said, "That guy out of Texas."

Judd got on the state ballot by paying a $2,500 fee and filing a form known as a notarized certification of announcement, said Jake Glance, a spokesman for the Secretary of State's office.

Attracting at least 15 percent of the vote would normally qualify a candidate for a delegate to the Democratic National Convention.  But state Democratic Party Executive Director Derek Scarbro said no one has filed to be a delegate for Judd. The state party also believes that Judd has failed to file paperwork required of presidential candidates, but officials continue to research the matter, Scarbro said.

It would be silly (and surely inaccurate) to claim that democratic primary voters in West Virginia voted for Keith Judd over Barack Obama because they were hopeful that a federal felon would push Democrats to make sentencing and prison reform a higher priority within the party.  But it would not be silly (nor inaccurate) to claim that all the people of West Virginia who voted in the primary for Judd ought to have their votes represented at the Democratic National Convention by a delegate (like me) who is not going to to just fall in line with all the Obama supporters and who will go to the DNC with some of Judd's interests and concerns in mind. 

Of course, I neither live or work in West Virginia, but the same is true for Keith Judd.  (This Politico piece about Judd explains that he "currently resides in a low-security prison in Texas — Federal Correctional Institution Texarkana — where he’s serving a 210-month sentence for extortion connected to making threats at the University of New Mexico in 1999.  His projected release date is June. 24, 2013.")   For that reason, and so many others, I really think I could be the perfect person to head down to Charlotte in late summer and represent the tens of thousands of West Virginia democrats who indicated last night that they are eager for some new voices to be heard at the DNC.

May 9, 2012 in Elections and sentencing issues in political debates, Prisons and prisoners, Who Sentences | Permalink | Comments (3) | TrackBack

Former federal prosecutor urges "Mandatory minimums for kingpins only"

This recent National Law Journal commentary by Jim Walden, a former federal prosecutor in EDNY, voices support for US District Judge John Gleeson's recent recommendation in US v. Dossie, No. 11-CR-237 (EDNY Mar. 30, 2012) (discussed here), that federal prosecutors show much more restraint in their use of federal drug statutes that carry mandatory minimum sentencing terms.  Here are excerpts:

I support the war on drugs. Indeed, I can fairly be called a hawk. I spent most of my nearly nine-year career as a federal prosecutor attacking (largely white and Asian) drug-trafficking organizations and putting their members behind bars for long stretches. For every wide-eyed, liberal, young lawyer I meet who naïvely criticizes the wisdom and resources this "war" has entailed, I issue the same challenge: Read the daily papers and keep track of drug-related murders, assaults, robberies, break-ins and general violence for six months — and then explain to me why drug enforcement should not be one of our top enforcement priorities.

Cracking down on the street-level organizations, and stopping the collateral damage they inflict, is a laudable goal, an essential one.  Doing so at the expense of fairness and equity is not, and street-level traffickers should not face the same consequences Congress intended for kingpins.

No one would describe Judge John Gleeson of the Eastern District of New York as "soft" on drug crime, and some might describe him as fairly "hawkish" himself. His prestigious career as a federal prosecutor, spanning almost two decades, bears this out.... In a recent case, U.S. v. Dossie, Gleeson called on U.S. Attorney General Eric Holder Jr. to reform DOJ's inconsistent and irrational use of mandatory-minimum sentences in drug cases, reserving them for drug kingpins, as Congress intended.  In clear and terse prose, Gleeson described a system that works to "strip criminal defendants of the due-process rights we consider fundamental to our justice system."

The specific case concerned — of course — a young, black, street-level dealer, who turned to drug distribution to support his habit. This did not stop DOJ from seeking to enforce a harsh mandatory-minimum sentence.  Gleeson's conclusion is clear: "This case illustrates how mandatory minimum sentences in drug cases distort the sentencing process and mandate unjust sentences."  He respectfully urged the attorney general to reform DOJ's policy, reserving the use of mandatory-minimum penalties for the managers and leaders of drug enterprises whom Congress intended to target.

Eric Holder should listen to John Gleeson.

May 9, 2012 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (4) | TrackBack

"Continued Racial Disparities in the Capital of Capital Punishment? The Rosenthal Era"

The title of this post is the title of this notable new paper on SSRN from Professor Scott Phillips. Here is the abstract:

Given the substantial amount of research that has been conducted throughout the United States regarding the relationship between race and capital punishment, one might assume that much of the attention has been focused on Harris County, Texas.  After all, Harris County -- home to Houston and surrounding areas -- is the capital of capital punishment. Indeed, if Harris County were a state it would rank second in executions after Texas.  Yet only one study has examined whether race influences the death penalty in Houston. Specifically, Phillips (2008) reports that death was more likely to be imposed against black defendants, and more likely to be imposed on behalf of white victims, during the period from 1992 to 1999 -- the final years of Johnny Homes tenure as District Attorney.  After Holmes retired, Charles Rosenthal served as District Attorney from January 1, 2001 to February 15, 2008.

Did racial disparities continue during the Rosenthal administration?  The current research suggests that the impact of defendant race disappeared, but the impact of victim race continued: death sentences were imposed on behalf of white victims at 2.5 times the rate one would expect if the system were blind to race, and death sentences were imposed on behalf of white female victims at 5 times the rate one would expect if the system were blind to race and gender.  Such disparities are particularly troubling because Rosenthal was forced out of office in a scandal that included racist emails.  Given the disparities, coupled with racist emails from the elected official who decides whether to seek the death penalty, the paper contemplates a key question: Should the state of Texas be allowed to execute inmates who were sentenced to death in Harris County during the Rosenthal administration?

May 9, 2012 in Data on sentencing, Death Penalty Reforms, Race, Class, and Gender, Who Sentences | Permalink | Comments (10) | TrackBack

May 8, 2012

Noting President Obama's (still) stingy clemency record

The folks at MSNBC has this new piece, headlined "President Obama 'stingy' on pardons, says clemency expert," which includes data that are familiar to regular readers. Here are excerpts:

President Barack Obama is on track to be one of the least forgiving of presidents in U.S. history — as measured by his use of presidential pardon powers, according to a political science professor who blogs about clemency exercised by presidents and governors.

"It is fair to say two things," said P.S. Ruckman Jr., who teaches at Rock Valley College in Rockville, Ill. "One is (Obama) is definitely being exceptionally stingy. There’s no doubt about that. There’s also no doubt that this is in a way unexpected."

As president, Obama has pardoned 23 people, including one commuted sentence, in his first 40 months in office. Barring a dramatic flurry of clemency from the White House in the coming eight months, Obama will be among the bottom two or three presidents for granting pardons in his first term, Ruckman said....

While campaigning for office, Obama was critical of the mandatory minimum penalties for drugs, especially those that specified much heavier sentences for those using crack cocaine than to the ones associated with more expensive powder cocaine. Mandatory minimums, which emerged in the 1980s, are partially responsible for swelling federal prison populations — to 218,261 on the week of May 3, compared to 24,363 in 1980, according to government documents.

In April 2010, the president signed into law the Fair Sentencing Act, which aimed to even out the mandatory minimums, which critics say are discriminatory to African Americans. But Obama did not — as some expected or hoped — go on to throw open the doors for large numbers of people incarcerated under the old mandatory sentences....

Obama could step it up in the last quarter. Historically, presidents do tend to grant more pardons in the fourth quarter of each year, especially the fourth quarter of the final year in the term, Ruckman said.  Among recent presidents, George W. Bush had granted 37 pardons and commutations at about this point in his first term. By the end of the year, he had added another 32....

Obama may also be reserving acts of clemency for his second term, if he gets one. Presidents Bill Clinton and George W. Bush both granted many more pardons in their second terms than they did in their first....  But none of these recent presidents comes close to President Franklin Delano Roosevelt in the use of pardon power. He granted about 600 pardons and commutations by the end of his first term, and about 2,800 over the course of his historic 12 years in office (1933-1945) before the two-term limit went into effect.

But even among modern presidents, Obama's current pace keeps him firmly among the most conservative American presidents to use these powers of forgiveness.  The average age of individuals pardoned by Obama is about 61, according to Ruckman and the average time between the original sentence and executive clemency granted by this president is 24.3 years.

May 8, 2012 in Clemency and Pardons, Who Sentences | Permalink | Comments (3) | TrackBack

A gendered outcome?: lifetime probation for female teacher's aide engaged in sex acts with middle-schoolers

Though this local reportabout a state sex offender sentencing in Arizona is a bit prurient, the story (and all its prurient details) reinforces my sense that adult females sexually involved with under-age boys sometimes get much more lenient sentencing treatment than similarly situated males.  The story is headlined "Gabriela Compton, Former Middle School Teacher's Aide, Gets Probation for Sexing One Student and Sexting Another," and here are the basics:

Welcome to the wide world of teacher sex-scandal sentencing, as former middle school teacher's aide Gabriela Compton was sentenced this morning to a life on probation. Compton, now 21, was arrested in March 2011 after principals at Phoenix's Western Valley Middle School found out Compton had been sending nudie pictures to students.  As you can imagine, the teenage boys on the receiving end of those pictures didn't exactly keep the pics to themselves.

According to court documents previously obtained by New Times, the police investigation led to the cops finding out Compton had groped a student, and had sex with another.

Compton exchanged cell phone numbers with a 14-year-old male student in late February 2011, according to the documents, and the student asked Compton to send him a picture of herself. Compton cut to the chase, and sent over the picture of her topless, according to the documents, and the student sent her a picture back of a penis.... After a few more rounds of sexting, Compton picked up the boy and a few of his friends to drive them home, except she took a quick detour to have sex with the 14-year-old student in the back of her van while parked in an industrial park near 67th Avenue and Van Buren Road, the documents said.

Then a 13-year-old student told his story to the cops. He told police he did the sexting thing with Compton as well, and he and the 14-year-old student compared notes the nude pictures of Compton they received, according to the documents. The documents also stated Compton told the boy that she wanted to "rub his cock," and he replied by telling the teacher's aide that he wanted to grab her breasts -- and you betcha the teenaged boy told police he did, after Compton bought him some shoes and a shirt at the mall.

Compton asked the boy if he wanted to have sex, according to the documents, and told him that they could do it "for his birthday," which was coming up, but apparently not before Compton's arrest.

This additional AP story about this case provides more of the notable sentencing details (and less of the prurient ones):

Maricopa County prosecutors say 21-year-old Gabriela Compton was sentenced Tuesday to three terms of lifetime probation with sex offender terms for three counts of sex abuse. Compton was indicted in April 2011 on three counts each of sexual abuse and sexual conduct with a minor and one count of furnishing obscene or harmful items to minors.

Prosecutors say she entered into a plea agreement.  Compton could have faced a prison sentence of at least 39 years if she was convicted on all seven counts.  Compton was a special-education instructional aide at Western Valley Middle School.  She was put on administrative leave in March 2011 and resigned soon afterward.

I am not a specialist on Arizona sex offender laws and sentencing, but I suspect that absent the plea deal, this sex offender was potentially facing decades of mandatory prison time.  I also suspect that the judge's sentencing decision to give a teacher's aide who preyed on students only probation (albeit a lifetime term) would likely be subject to lots of controversy... if the aide was a man and the victims were girls.  But when a woman molests (willing and eager?) young teenagers, then sentencing outcomes are (justifiably?) seen in a somewhat different light.

May 8, 2012 in Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Sex Offender Sentencing | Permalink | Comments (28) | TrackBack

Call for papers for ABA/AALS joint conference this Fall in DC

I have been really intrigued and impressed by special criminal justice programs that have been put together by the ABA each fall over the last few years. To its credit, the ABA has made a special effort in these events to connect criminal justice practitioners and academics (as evidenced by the speakers brought together at last year's event).  Consequently, I am pleased to be able to promoted this "Call for Papers — Criminal Justice" in conjunction with this year's planned event:

On Oct. 25-26, 2012, the ABA and the AALS will present a joint conference on criminal justice at the Washington Court Hotel in Washington, D.C.  The first event of the conference, on the afternoon of Thursday, Oct. 25, is a workshop for scholarly papers relating to criminal justice.  All papers on criminal law, criminal procedure, or criminal justice topics are welcome. 

Participants will present their work in a roundtable format, and abstracts or drafts will be shared among presenters and discussants in advance of the workshop.  Workshop presenters must also attend the criminal justice panels on Friday, Oct. 26. This is an excellent opportunity for academics at any stage of their careers, or those who would like to transition to academia, to workshop pieces at an early stage of development or obtain feedback on more developed pieces.  Workshop presenters will be responsible for their own travel and hotel costs, and will be required to pay the conference registration fee.

To apply to workshop a paper, please email an abstract of your paper of no more than 500 words to both Michael Mannheimer at mannheimem1@nku.edu and Laurent Sacharoff at lsacharo@uark.edu by Aug. 15, 2012.  Space is limited and presenters will be chosen by members of the organizing committee.

May 8, 2012 in Recommended reading, Who Sentences | Permalink | Comments (0) | TrackBack

Reviewing the uncertain state of capital justice in the state of North Carolina

North Carolina has been an especially interesting any dynamic death penalty state of late, and this new lengthy local article provides a kind of "state of the capital state" review of many of the reasons why.  The piece is headlined "Complex challenges put NC death penalty on life support," and here are excerpts:

North Carolina, which has 156 prisoners on death row, has not executed an inmate since Aug. 18, 2006, when Samuel R. Flippen was put to death by lethal injection for the beating death of his two-year-old step daughter.  Since then, a complex and evolving set of legal challenges have imposed a de facto moratorium on the death penalty in North Carolina.

The controversial Racial Justice Act, a 2009 law that allows death row prisoners to use statistical evidence of discrimination to appeal their sentence, has played a part in this stalemate.  But so have other prisoner appeals that question whether the state's execution method is cruel and unusual or their crimes were investigated fairly.

Even those who say the death penalty is needed have doubts when it might ultimately be enforced here. "The easy answer is nobody really knows," said Peg Dorer, executive director of the N.C. Conference of District Attorneys. "If it ever does resume, I'd say it will be 20 years."...

Of the 156 North Carolina inmates awaiting execution, 106 were sentenced before 2000. Even before the current morass of legal cases and appeals, prosecutors were seeking and winning death sentences less often.

There are several reasons for the decline in death penalty prosecutions, including a 2001 change to state law.  In the 1990s, district attorneys were required to pursue the death penalty in all first degree-murder cases with aggravating circumstances.  But in 2001, the General Assembly gave prosecutors the discretion whether or not to seek the death penalty for such cases. "Once that happened, there was a dramatic drop off in the number of capital trials," said Wake County District Attorney Colon Willoughby, Jr.  District attorneys became more selective about when they would ask for death sentences....

The specter of putting an innocent person to death looms over those who would seek the sentence. Anti-death penalty groups point to the 140 people nationwide who, after having been sentenced to death, have been exonerated of those same crimes. Among those 140 was former North Carolina death row inmate Alan Gell, who was convicted of a 1995 murder but later found not guilty....

"I think there will be a case of someone who is now on (North Carolina's) death row who it will turn out to be innocent," said Tye Hunter, executive director of the Center for Death Penalty Litigation. "I expect that case to come before the summer is over."  Each such case, he said, chips away at the willingness of those involved in capital trials -- prosecutors and juries especially -- to impose the death penalty. So, too, has the time and cost involved in death penalty litigation....

[A legal challenge to NC's execution methods] heard in state courts has just begun to make its way through the appeals process.  It takes aim at whether the state's lethal injection method could lead to cruel and unusual punishment. "We have a three-drug execution protocol. If the execution team messes up and makes a mistake on the first drug, the second two are going to cause torture," said David Weiss, a lawyer who argued this case on behalf of four death row inmates....

Judge Donald Stephens ruled on March 9 that the procedure was constitutional.... That case has now been appealed. It it likely to go straight to North Carolina's Supreme Court without stopping at the Court of Appeals.... [I]n addition to the state case, several North Carolina death row inmates also have appealed their sentences to the federal courts. "Those federal cases have been on hold since 2006," Weiss said....

But for many current death row inmates, there appears to be a more promising route of appeal.  Passed in 2009, the Racial Justice Act allows death row inmates to challenge their sentences based on statistical evidence that racial discrimination could have affected their trial, such as when jurors were chosen.  If such a claim is successful, the inmate's sentence is commuted from death to life in prison.

Marcus Robinson, who was convicted in1994 of first-degree murder in Cumberland County, was the first defendant to have his RJA claim heard. In April, Superior Court Judge Gregory Weeks found that Robinson's lawyers had shown that race was a factor in the selection of his jury.

With Robinson's success, there are only 156 inmates left on death row. Of those, 154 have brought Racial Justice Act claims, even though in many were of the same race as their victims. Rep. Paul "Skip" Stam, R-Wake, an opponent of the Racial Justice Act, says the outcome of the case is counter-intuitive. "Why would (Robinson) get life in prison if his jury was tainted," he asked. "If you really thought there was a problem with the jury, why would it affect the sentence and not the verdict?"

Stam helped lead an effort last fall and winter to repeal the Racial Justice Act. Gov. Bev Perdue, a Democrat, vetoed that measure and lawmakers fell one vote short of the number needed to override her veto.  Even if lawmakers do repeal the act, there is some question among lawyers whether or not the claims already filed would proceed....

As Racial Justice Act claims play themselves out, it's possible for other issues to arise. Hunter, with the Center for Death Penalty Litigation, said his staff was still looking at problems with evidence analysis in the state crime lab.  The recent case of Greg Taylor, who spent 6,149 days in prison for a murder he didn't commit, was freed after being able to show the SBI crime lab used scientifically unsound blood analysis techniques. Hunter said that questions remain about other work the crime lab did in the case of other defendants.

May 8, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Two distinct Sixth Circuit opinions struggle through career offender issues

The Sixth Circuit today released two lengthy opinions concerning application of the severe career offender provisions federal sentencing guidelines: US v. Horn, No. 11-5470 (6th Cir. May 8, 2012) (available here); US v. Jackson, No. 10-3923 (6th Cir. May 8, 2012) (available here). 

For many reasons, these panel opinions defy a simple summary, but both are must-reads for any and all practitioners (in the Sixth Circuit or elsewhere) dealing with career offender sentencing issues on appeal.  Because the case involving a victory for the defendant on appeal (Jackson) produced a split panel, it seems quite possible (even likely?) that federal prosecutors might seek further review of what the dissent describes as an issue involving an "intricate interaction among cases, statutes, and the United States Sentencing Guidelines."

May 8, 2012 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

"Why I Want a Medical Marijuana Dispensary Near My Children's School"

The title of this post is the headline of this potent commentary appearing at the Huffington Post, which is authored by Tamar Todd, a Staff Attorney at the Drug Policy Alliance.  Here are excerpts:

Last week, one of California's oldest and most respected medical marijuana dispensaries, Berkeley Patients Group, closed its doors. It shut down because its landlord, like dozens across the state, received a letter from United States Attorney Melinda Haag threatening to seize the property for renting to a medical marijuana dispensary located within 1,000 feet of a school.  My three children attend elementary school and preschool in West Berkeley, just blocks from Berkeley Patients Group.  The notion that the closure of Berkeley Patients Group is going to somehow serve to protect my children is patently absurd.

Berkeley Patients Group served thousands of medical marijuana patients in the Berkeley area for 12 years.  It was an industry leader and a model of compassion and legal integrity. It was in strict compliance with state and local law, and has long worked with the City of Berkeley and the local community to provide a safe and responsible service to patients in need.  As a small business, it employed 75 people and was one of the top sales tax generators in the city.

Ms. Haag has claimed that one of her concerns about dispensaries that are in close proximity to schools and parks and playgrounds is the possibility they could be the target of violence or armed robbery.  Banks and pharmacies are also targets of armed robberies and there are a number of them located in West Berkeley.  Like Berkeley Patients Group, they have security.  There is no evidence to suggest, and I have never felt, that it is dangerous to send my children to a school that happened to be near a bank, or a pharmacy....

Ms. Haag has chosen to use her presumably limited resources to deprive the thousands of patients who frequent Berkeley Patients Group a legal, regulated, secure place to purchase desperately needed medicine.  Of course, the closure of Berkeley Patients Group does not mean that these thousands of people will stop buying and using medical marijuana.  They are sick, in pain, and are allowed to purchase and consume marijuana under settled California law (a law that was approved by voters overwhelmingly).  Ms. Haag says that she is not going after medical marijuana patients.  But she must understand that patients will now simply have to find marijuana elsewhere, from the streets, and near schools and parks.  Ms. Haag has not made these areas safer; she has simply increased the demand for an illegal and dangerous drug market.

Ms. Haag also claims that her crackdown on dispensaries is necessary because of problematic marijuana use by high school students.  The reality is that between 1996 (when California passed its medical marijuana law) and 2008 there was an overall decrease in teens' marijuana use.  An analysis commissioned by the California Department of Alcohol and Drug Programs found "no evidence" to support the claim that legalization of medical marijuana in California increased marijuana use during this period....

Most offensive is the notion that legal access to medical marijuana sends the wrong message to kids.  I find the existence of legal medical marijuana very easy to explain to my children.  This is what I tell them: Research and science matter.  The opinions of medical professionals matter.  We should have compassion for those who are very sick, and even for those who are just a little sick; for those suffering the effects of chemotherapy or for returning veterans suffering from PTSD; that we should help meet people's needs and ease pain as best we can (even if it goes against the conventional wisdom or drug war ideology).  I tell my children that it is better for people to buy marijuana from a safe, well-regulated source, than on the street.

I tell my children that the lives of children in Mexico matter too, where United States drug policy has led to the narcotics-related murders of nearly 50,000 people over the last five years, including thousands of children.  That is the harm to children caused by marijuana prohibition, and a drug market that Ms. Haag's actions directly fuel.  The "threat" posed by Berkeley Patients Group, and other dispensaries like it, pales in comparison.

May 8, 2012 in Drug Offense Sentencing, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (7) | TrackBack

May 7, 2012

En banc First Circuit says RI must turn over murderer to the feds for capital prosecution

As reported in this local article, the full First Circuit today "ruled that [Rhode Island] Governor Chafee must surrender Jason Wayne Pleau to federal custody to be tried for the murder of a gas station manager David Main in September 2010."  Here is more about the notable en banc ruling (which can be found at this link):

The majority of the court rejected Chafee's arguments that the state had the right to refuse to turn Pleau over under an agreement that governs the transfer of inmates between states and the federal government.

If Chafee were to prevail, "Pleau could be permanently immune from prosecution ...," the judges wrote, continuing, "Instead of a place of confinement, the state prison would become a refuge against federal charges."

Chafee had refused to surrender Pleau based on what he called Rhode Island's longstanding opposition to the death penalty. He could face the death penalty for his crimes under federal law.

I suspect an appeal to the Supreme Court may follow, but I also suspect that the Justices may be disinclined to get into this notable fight.

Related prior posts: 

May 7, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (24) | TrackBack

Fascinating discussion of Second Amendment in Tenth Circuit's affirmance of alien-in-possession conviction

The Tenth Circuit handed down a really interesting opinion this afternoon in the course of rejecting a set of constitutional attacks on 18 U.S.C. §§ 922(g)(5)(A), which prohibits illegal aliens from possessing firearms.  As explained at the start of the opinion in US v. Huitron-Guizar, No. 11-8051 (11th Cir. May 7, 2012) (available here), the defendant in this case moved "to dismiss the indictment on grounds that § 922(g)(5) unconstitutionally abridges the right to bear arms as interpreted in District of Columbia v. Heller, 554 U.S. 570 (2008), and violates the Fourteenth Amendment’s Equal Protection Clause (which applies to the federal government through the Fifth Amendment’s Due Process Clause)."  Here are some of the many interesting passages from the Tenth Circuit 's discussion:

The right to bear arms, however venerable, is qualified by what one might call the “who,” “what,” “where,” “when,” and “why.”...

Our issue concerns the “who.” Section 922(g), a part of the amended Gun Control Act of 1968, forbids gun possession by nine classes of individuals: felons, fugitives, addicts or users of controlled substances, the mentally ill, illegal and non-immigrant aliens, the dishonorably discharged, renouncers of their citizenship, those subject to court orders for harassing, stalking, or threatening intimate partners or their children, and those convicted for misdemeanor domestic violence.  No Second Amendment challenge since Heller to any of these provisions has succeeded....

Mr. Huitron-Guizar agrees that those guilty of serious crimes and the mentally ill are sensibly stripped of firearms they might otherwise lawfully keep.  Yet he wonders what it is about aliens that permits Congress to impose what he considers a similar disability?...

The [Supreme] Court [in a 1990 Fourth Amendment ruling] seemed unwilling to say that illegal aliens, who reside here voluntarily and who accept some social obligations, have no rights the government is bound to respect when, say, they protest a raid or detention. Instead, Verdugo-Urquidez teaches that “People” is a word of broader content than “citizens,” and of narrower content than “persons.”...

How, historically, has this country regulated weapon possession by foreigners?  Are we to understand gun ownership as among the private rights not generally denied aliens, like printing newspapers or tending a farm, or one of the rights tied to self-government, like voting and jury service, largely limited to citizens?...

We think we can avoid the constitutional question by assuming, for purposes of this case, that the Second Amendment, as a “right of the people,” could very well include, in the absence of a statute restricting such a right, at least some aliens unlawfully here — and still easily find § 922(g)(5) constitutional.

Among the many joys that come from reading all of the Tenth Circuit's work in this case is to see how quickly the panel dispatches a very original (and very unlikely to succeed) effort to spin a political controversy into an argument for a reduced sentence: "Finally, the argument that a departure or variance was in order based on governmental conduct is meritless.  The attempt to connect, in a vague, freewheeling way, the gun possession at issue here with the Fast and Furious Operation of the Bureau of Alcohol, Tobacco, Firearms and Explosives is not persuasive."

May 7, 2012 in Offender Characteristics, Second Amendment issues | Permalink | Comments (8) | TrackBack

Split Eighth Circuit upholds supervised release condition prohibiting "photographic depictions of child nudity"

Though potential of even great interest to First Amendment gurus than sentencing fans, a split panel of the Eighth Circuit provides a fascinating read today in US v. Kelly, No. 11-1421 (8th Cir. May 7, 2012) (available here). These excerpts from the opinion for the Court sets up what is at issue and the basic holding: 

After a jury convicted A.J. Kelly of being a felon in possession of a firearm, the district court sentenced Kelly to 115 months' imprisonment and 36 months' supervised release.   As part of Kelly's supervised release, the district court imposed several special conditions. Kelly challenged one of these conditions, which concerned possession of materials containing nudity or depicting or alluding to sexual activity. United States v. Kelly, 625 F.3d 516, 517 (8th Cir. 2010).  Finding merit in Kelly's challenge, a panel from this circuit remanded for re-sentencing, id. at 517, and the district court amended the special condition. Kelly now appeals the amended special condition, and we affirm....

On remand, the district court re-sentenced Kelly and amended special condition fifteen. The amended condition provided, "The Defendant shall neither possess nor have under his control any material, legal or illegal, that contains child pornography, or photographic depictions of child nudity or of children engaged in any sexual activity."  To support this condition, the district court made [a number of] individualized findings ... [and] referenced a prior offense where Kelly was convicted of first-degree sexual assault of a child."

Though the majority opinion upholding this condition is notable, it is the concurring opinion authored by Judge Beam and especially the dissenting opinion authored which make the opinion a must-read.  I cannot readily summarize all the terms of the debate, but I can quote the final portion of Judge Bye's dissent to spotlight why it seems this case has garnered some strong judicial feelings:

The majority's decision to affirm the district court not only erodes our applicable criminal and constitutional precedents, but it further exposes our court to the just criticism of a public which already is skeptical of the judicial system. Criminal defendants, as well as the general public, expect that "[t]he punishment should fit the crime." DuBose v. State of Minn., 893 F.2d 169, 172 (8th Cir. 1990) (Arnold, J., concurring in part and dissenting in part).  What message do we communicate about our own judgment when we announce a federal firearm offender can be sent back to prison because he possessed a photograph of his newborn son, or because Kelly's probation officer just happened to conduct a home visit on the same day a relative mailed him a birth announcement of a niece or nephew?

I, for one, expect more.  I expect probation officers in the federal system to consider carefully the special conditions of supervised release they recommend and ensure such conditions are rationally connected and narrowly tailored to a defendant's specific correctional needs, without creating absurd and illogical pitfalls and traps for defendants on supervised release.  I expect the same of district courts when they consider whether to adopt those recommendations.  I expect the same of the lawyers employed by the Department of Justice when defending such conditions in our courts.  I also expect our appellate courts to apply the law rationally and even-handedly, and with the exercise of common sense, when determining whether such conditions comport with constitutional limits.

The majority's decision to affirm the district court reflects a failure of our justice system on all of these levels.  Because I cannot sit idly by and remain silent in the wake of such failures, I must respectfully dissent.

May 7, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (14) | TrackBack

Stressing AEDPA deference, split Ninth Circuit upholds 3-strikes sentence for failing to register

Late Friday, the Ninth Circuit issued a notable habeas opinion in Crosby v. Schwartz, No. 10-17726 (9th Cir. May 4, 2012) (available here), which rejects a defendant's Eighth Amendment attack on his three-strikes prison sentence of 26-years-to-life based on his failure to register as a sex offender.  Here is an excerpt from the majority opinion:

Taken together, these three cases [involving similar Eighth Amendment claims] emphasize a consistent principle found in the sex offender registration context — whether the crime is a de minimis crime for which a life sentence is disproportionate is related to how closely the violation is tied to helping achieve the purposes of the sex offender registration statute. See Gonzalez, 551 F.3d at 884-85; Carmony, 127 Cal. App. 4th at 1078-79; Meeks, 123 Cal. App. 4th at 708-10. Thus, the state court was not objectively unreasonable when it concluded that Crosby’s failure to register after he moved was not a mere technical offense. Crosby was no longer living at his last registered address at the time of his arrest, and his failure to register impeded the police’s ability to find him for surveillance.  The state court’s decision is even more reasonable because, unlike the defendant in Carmony, there was evidence that Crosby was actively attempting to evade his obligation to register through the theft and falsifying of stolen identification cards.

Additionally, the California Court of Appeal found that Crosby’s prior convictions were serious and violent crimes.  It noted that during the incident resulting in the rape and forcible copulation convictions, Crosby engaged in multiple acts of violence and threatened the life of the victim.  It was further noted that during the prior robbery conviction, Crosby and an accomplice robbed a restaurant at gunpoint.  The use of violence in Crosby’s prior convictions distinguishes his case from those in which the inference of disproportionality was found to be met by the court....

Crosby’s challenge arises under AEDPA, and we must give the appropriate deference to California Court of Appeal’s decision.  In light of the various cases that have dealt precisely with sex offender registration convictions under the gross disproportionality principle, it was not an unreasonable application of clearly established federal law for the California Court of Appeal to affirm Crosby’s sentence under the Eighth Amendment.

An intriguing partial dissent by Judge Noonan expresses deep concern about arguments from California's lawyers that he sees as advancing the "remarkable contention ... that there is no limit to the punishment that the state may prescribe for any recidivist." He goes on to lament the implications of this argument with a notable classic reference:

In California’s sweeping gloss, proportionality in sentencing a recidivist has been eliminated.  The repeat felon, however technical his felony, is to be “incapacitated.”  With a severity worthy of Sparta, the state of California will bring to book those who thrice fall afoul of any felony provision in its legislation.

I do not believe that the humane restraint of the Eighth Amendment has been so removed from its role in measuring the proportion of the penalty to the offense.

May 7, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (13) | TrackBack

"Realignment of Incarcerative Punishment: Sentencing Reform and the Conditions of Confinement"

The title of this post is the title of this timely new piece by Ken Strutin now available via SSRN.  Here is the abstract:

Part I of this article begins with a review of the state of incarceration as viewed through the lens of prison populations.  Then in Part II, the Supreme Court’s watershed decision in Brown v. Plata is explored, along with an analysis of its justifications for upholding a mass release order to remedy the inadequate medical and mental health facilities in an overcrowded state prison system.  Part III describes California’s novel choice of realignment legislation to comply with this order as a legislative approach that does not result in mass release but rather a mass redirection of incoming offenders away from state prisons and into the local corrections system. The potential for criminal sentencing reform inspired by the Court’s decision and the state’s realignment policy are further explored in Part IV, which examines past and present efforts to fine-tune incarcerative sentencing outcomes mindful of the conditions of confinement.  Finally, additional suggestions for uncovering and taking into account the conditions of confinement as an aid to reform are considered at different points along the adjudication spectrum.

May 7, 2012 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0) | TrackBack

May 6, 2012

Making a full-throated pitch for SCOTUS to again address reasonableness review

Regular readers may know that I am generally underwhelmed with how some circuits have approached reasonableness review, and I have long been troubled with the disinclination of some circuit to review rigorously within-Guideline sentences. Driven in part by those concerns, I have authored an amicus brief support in cert in the US v. Rubashkin case in which I lament the state of reasonableness review and urge SCOTUS involvement. The full amicus (which I filed aided by the fine folks at the Washington Legal Foundation) can be downloaded below, and here are excerpts from the state of the argument:

Problematically, in the half-decade since this Court’s rulings in Rita, Gall, and Kimbrough v. United States, 552 U.S. 85 (2007), the circuit courts have developed inconsistent and sometimes constitutionally suspect approaches to reasonableness review.  Some circuits now regularly reverse sentences as procedurally unreasonable; others almost never do. Some circuits now regularly engage with the statutory factors of § 3553(a) when reviewing for substantive reasonableness; others almost never do.  Accordingly, reasonableness review is not helping to “iron out sentencing differences” nationwide, but rather is exacerbating these differences.  Tellingly, in recent official testimony, the U.S. Department of Justice has lamented the circuits’ disparate approaches to reasonableness review, and the U.S. Sentencing Commission has urged Congress to amend the SRA to resolve circuit splits over the application of reasonableness review.  And many federal judges and commentators have asserted that appellate review of sentences — and all of modern federal sentencing under advisory Guidelines — would benefit significantly from this Court’s further guidance on the contours of reasonableness review.

Reasonableness review has been distinctly dysfunctional in those circuits that have adopted a so-called “presumption of reasonableness” for reviewing within-Guideline sentences.  Curiously, there has yet to be a single appellate ruling that expounds upon — or, for that matter, even discusses — when and how this “presumption” can be rebutted or the legal consequences of any (phantom) rebuttal.  Rather than function as the true “presumption” this Court outlined in Rita, the “presumption of reasonableness” has been used to convert the Guidelines into a sentencing safe-harbor, making all within-Guideline sentences effectively immune from substantive reasonableness review.  (Indeed, despite the appeal of thousands of within-Guideline sentences since Rita, not one single within-Guideline sentence has been found substantively unreasonable in the “presumption” circuits.)  That some circuits treat within-Guideline sentences as per se reasonable not only conflicts with this Court’s clear holding in Rita and Congress’s instructions in § 3553(a), but also raises serious constitutional concerns in light of this Court’s Sixth Amendment jurisprudence in Booker and its progeny....

[D]ue to the Eighth Circuit’s routine of always affirming within-Guideline sentences, the district court approached the sentencing of Mr. Rubashkin as if only the Guidelines mattered; in turn, the Eighth Circuit affirmed an extreme prison sentence for a nonviolent first offender using the rubber-stamp approach to reasonableness review it has adopted only for within-Guideline sentences.  This case thus highlights how some (but not all) district courts are still disregarding the statutory instructions of § 3553(a) that Booker made central to federal sentencing, and how some (but not all) circuit courts are disregarding this Court’s instructions for reasonableness review set forth in Rita, Gall, an Kimbrough.  Absent this Court’s intervention, the rulings below will stand as a high-profile reminder that district and circuit courts can feel free to treat Booker and its progeny as merely a lengthy “tale told by [the Justices], full of sound and fury, signifying nothing.” William Shakespeare, Macbeth, Act V, Scene 5.

Download WLF-Rubashkin v United States

May 6, 2012 in Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7) | TrackBack

Note examines "vastly different" circuit views on internet bans for supervised release

Via Concurring Opinions, I discovered this new student note titled "You Don’t Have Mail: The Permissibility of InternetUse Bans in Child Pornography Cases and the Need for Uniformity Across the Circuits."  Here is the abstract:

The federal courts of appeal have formed vastly different conclusions with respect to the reasonableness of Internet-use bans as a term of supervised release in virtual child pornography cases.  All courts ground their decisions in 18 U.S.C. § 3583(d), the federal statute governing supervised release conditions.  Nonetheless, when presented with seemingly analogous facts, some courts uphold Internet-use bans, whereas others strike them down.  Courts upholding such bans conclude that they constitute effective deterrents and ensure public safety.  Courts overturning the bans, on the other hand, assert that they unreasonably deprive offenders of their liberty interests.

Because decisions regarding the permissibility of Internet-use bans are, under the current statutory regime, incoherent at best and arbitrary at worst, Congress should amend § 3583(d) to provide judges with meaningful, cyberspecific guidance.  Accordingly, this Note proposes that Congress adopt the UNIFORM Act, which sets forth child pornography–specific guidelines for determining the terms for supervised release.  Inspired by the United States Sentencing Guidelines and extracted from the caselaw regarding the permissibility of Internet-use bans, the UNIFORM Act seeks to limit judges’ sentencing discretion in child pornography cases.  At bottom, this Note posits a commonsense compromise, informed by existing statutes and caselaw, which would achieve consistency in an area of the law currently plagued by judicial ambiguity.

May 6, 2012 in Criminal Sentences Alternatives, Sex Offender Sentencing, Technocorrections, Who Sentences | Permalink | Comments (1) | TrackBack

California assemblyman says "Death Penalty Needs Streamlining, Not Repeal"

A leader in the California Assembly, Curt Hagman, has this new commentary making a pitch for reforming rather than repealing the death penalty in his state.  Here is how his commentary starts and ends:

The death penalty has no middle ground -- you are either for or against it.  In November, voters will decide whether to replace the death penalty with a sentence of life in prison without parole.  Death penalty opponents are now trying to appeal to our pocketbooks saying that it simply "costs too much."

Can a price on be put on justice?  Like countless other Californians, I support the death penalty because it is the strongest statement that we as a society can make against the cold-blooded killers of innocent human beings.  The death penalty deters crime and ensures that those who have murdered can never murder again.

Opponents have put forward the argument that the endless prisoner appeals and court delays have driven up costs over the years.  But who is responsible for the endless prisoner appeals and court delays?  The very same people now arguing for repeal!  They have created the very atmosphere that they rail against in which the death penalty is too costly.  The death penalty opponents are the ones that use our legal system to create costly appeals, and these continuous appeals create the high costs they like to protest about.  A verdict, already arrived at by a jury of peers, is not carried out because of their legal wrangling....

If death penalty skeptics are truly concerned about costs, they should work with us to lower them, but that is not their real goal. The death penalty exists because of the horrific crimes committed against the citizens of California.  And the high cost of implementing the law is driven by the very people that are against the law.

I do not think it is essential or even wise for ardent death penalty opponents to dispute that they drive up the costs of the adminstration of the death penalty.  To have a truly honest debate over proposals for death penalty repeal, I think abolitionist should be content (and perhaps even eager) to concede that, unless and until they can achieve their goal of death penalty repeal, they will continue to use all lawful means to delay and drive up the expense of death sentencing and executions.  Upon making such candid statements, the abolitionists can and should then say that the ballot initiative has the benefit of allowing all voters in California decide whether they want to preserve a capital system that passionate advocate groups will always in the future try to make as costly and inefficient and ineffective as possible.

Some recent related posts:

May 6, 2012 in Death Penalty Reforms, Who Sentences | Permalink | Comments (35) | TrackBack