Sentencing Law and Policy

Latest USSC data on retroactivity of crack guidelines reduced by FSA

I just noticed on the US Sentencing Commission's website this new data report on "Fair Sentencing Act Amendment Retroactivity."  The report is described this way: "This report provides data concerning the retroactive application of the 2011 amendment to the federal sentencing guidelines implementing the Fair Sentencing Act of 2010."

Based on the information reflected in Table 8 of this data report and elsewhere, it appears that nearly 6600 defendants received, on average, a 29-month reduction in their crack sentences thanks to the new FSA crack guidelines being made retroactive.  That adds up to nearly 16,000 cumulative years of federal imprisonment eliminated and an economic saving to federal taxpayers of approximately a half-billion dollars (based on a conservative estimate of a taxpayer cost of roughly $30,000 per prisoner for each year of federal incarceration). 

Notably, according to Table 5 of this data report, more than 85% of those benefiting from reduced crack sentences are black prisons.  The historically racialized reality of federal crack prosecutions is thus again on display as one reviews this data. 

Here is to hoping, especially during the holiday season, that all the persons who benefited from the new reduced FSA crack sentences will turn their lives around.  If these defendants who received reduced sentences find ways to become productive (and tax-paying) citizens, the benefits to society will profoundly transcend the saved incarceration costs.

 

 

Any "halftime" assessment of Obama judges' impact on sentencing jurisprudence?

The question in the title of this post is prompted by this new Washington Post article headlined "Obama’s impact on federal judiciary." The piece is most about partisan battles over appointments, though it starts and ends with these judicial branch basics:

It takes a calculator and perhaps the rigor of Sherlock Holmes to cut through the partisan rhetoric about President Obama’s first-term record on judicial nominations.  But the bottom line is clear enough.

There are more vacancies on the federal courts now than when Obama took office nearly four years ago.  And he is the first president in generations to fail to put a nominee on the U.S. Court of Appeals for the D.C. Circuit, the second most influential court in the land and traditionally a training ground for Supreme Court justices.

Obama has, of course, left his mark on the high court by nominating Sonia Sotomayor and Elena Kagan.  Their confirmations leave those two seats for decades in liberal hands, and marked a historic diversification of the court.

But, depending on what the Senate does in these final days,Obama’s record on the rest of the federal judiciary will show one more opening on the nation’s powerful 13 courts of appeal than when he took office, and more than a dozen additional vacant district court judgeships....

But as [scholar Russell] Wheeler points out, a two-term president almost always has a major impact on the makeup of the federal judiciary.  “Democratic appointees, who in 2009 constituted about a third of active circuit judges, might constitute about two-thirds in 2017,” Wheeler wrote.

In any answer to the question in the title of this post, it is especially easy to focus on notable sentencing votes and opinions authored by Prez Obama's Supreme Court nominees (e.g., Kagan wrote Miller; Sotomayor wrote Pepper; both were key fourth and/or fifth votes on lots of the 5-4 rulings in favor of criminal defendants). But I would be eager to hear from anyone laboring the the federal district and circuit courts concerning any Obama appointments to the lower courts who have already had a distinctive impact on sentencing law and policy.

Some older and more recent posts on Prez Obama's judicial appointments:

• Judging, politics, sentencing and elections
• A modest(?) proposal for filling the bench from the ivory tower
• Should President Obama be praised or assailed for his approach to judicial nominations so far?
• Seeking thoughts on a "professional judiciary" for sentencing law
• The growing (and justified) complaints about Obama's approach to judicial nominations
• Laments about judicial vacancies and federal criminal justice stats in Chief's year-end report
• Should Prez Obama become much more aggressive on judicial appointments if he gets a second term? How exactly?

Some holiday-themed sentencing headlines for Festivus celebrants

I am not sure if there is any enduring importance to the stories linked below, but they all caught my eye today as I was making my usual review of sentencing headlines via Google news. 

Especially if one is celebrating Festivus today and is eager to have a special criminal-justice-portion of the traditional "Airing of Grievances", I suspect the stories below might make for helpful holiday dinner table conversations.  Indeed, though there are a number of serious (and not-quite-so-serious) stories lurking behind the various headlines below, I think we could have an amusing Festivus contest involving Feats of (intellectual) Strength by seeing who can come up with the most clever "Onion-type" story to accompany one or more of these headlines:

• "Toys for Tots giveaway cancelled after news of registered sex offender"

• "Pope pardons former butler who stole and leaked documents"

• "Santa's gifts are special deliveries from prison"

• "Naughty 'Santa' Mike Busey busted for selling booze at the Sausage Castle"

• "Windsor police investigate Bad Santa"

• "The Supreme Court's Twelve Days of Christmas, 2012"

Happy Festivus one and all.

"The Presumption of Punishment"

The title of this post is the title of this interesting-looking new piece by Shima Baradaran which is now up on SSRN. Here is the abstract:

The presumption of innocence undergirds the American criminal justice system.  It is so fundamental that it is derived from the concepts of due process and the importance of a fair trial.  An informed historical understanding of the interaction between the presumption of innocence and key tenets of due process can help clarify the meaning and application of the presumption of innocence in the modern day.

Due Process, as developed throughout English and U.S. Colonial history leading up to the formation of the U.S. Constitution, has two important implications.  First, due process provides a general guarantee of liberty against punishment or imprisonment without a fair trial.  Second, due process requires that a jury, as opposed to a judge, determine the factual guilt of a defendant at trial.  These two key tenets were historically fundamental to due process and should guide how the presumption of innocence impacts various stages of trial, including pretrial detention decisions and sentencing.  Returning to a historical understanding of due process requires that judges not determine facts or punish individuals before a trial has occurred.

Latest OSJCL issue with "McClesky at 25" symposium now available on-line

As noted in this prior prior post, the Fall 2012 issue of the Ohio State Journal of Criminal Law has a lead symposium focused on "McClesky at 25."  The whole issue is now available on line at this link, and here are all the articles in the symposium:

McClesky at 25 OSJCL Symposium Articles:

• Douglas A. Berman, McCleskey at 25: Reexamining the “Fear of Too Much Justice" , 10 Ohio St. J. Crim. L. 1 (2012).

• Scott E. Sundby,  The Loss of Constitutional Faith: McCleskey v. Kemp and the Dark Side of Procedure, 10 Ohio St. J. Crim. L. 5 (2012).

• John H. Blume & Sherri Lynn Johnson, Unholy Parallels between McCleskey v. Kemp and Plessy v. Ferguson: Why McCleskey (Still) Matters, 10 Ohio St. J. Crim. L. 37 (2012).

• G. Ben Cohen, McCleskey’s Omission: The Racial Geography of Retribution, 10 Ohio St. J. Crim. L. 65 (2012).

• Robert P. Mosteller, Responding to McCleskey and Batson: The North Carolina Racial Justice Act Confronts Racial Peremptory Challenges in Death Cases, 10 Ohio St. J. Crim. L. 103 (2012).

• Kent Scheidegger, Rebutting the Myths About Race and the Death Penalty, 10 Ohio St. J. Crim. L. 147 (2012).

"Military Veterans, Culpability, and Blame"

The title of this post is the title of this notable new paper by Youngjae Lee, which I just noticed via SSRN.  Here is the abstract:

Recently in Porter v. McCollum, the United States Supreme Court, citing “a long tradition of according leniency to veterans in recognition of their service,” held that a defense lawyer’s failure to present his client’s military service record as mitigating evidence during his sentencing for two murders amounted to ineffective assistance of counsel. The purpose of this article is to assess, from the just deserts perspective, the grounds to believe that veterans who commit crimes are to be blamed less by the State than offenders without such backgrounds.

Two rationales for a differential treatment of military veterans who commit crimes are typically set forth. The Porter Court raised each, stating that we should treat veterans differently “in recognition of” both “their service” and “the intense stress and mental and emotional toll” of combat. The former factor suggests there being a “social contributions” or gratitude-based discount, whereas the latter factor points towards a “mental disturbance” discount. This article analyzes the two accounts and raises some doubts about both. This article then argues that a military veteran who commits a crime should not be blamed to the full extent of his blameworthiness, not necessarily because of his mental capacity nor because of his social contribution, but because the State’s hand in producing his criminality undermines its standing to blame him.

"Marijuana, Not Yet Legal for Californians, Might as Well Be"

The title of this post is the headline of this new New York Times article, which gets started this way:

Let Colorado and Washington be the marijuana trailblazers.  Let them struggle with the messy details of what it means to actually legalize the drug.  Marijuana is, as a practical matter, already legal in much of California.

No matter that its recreational use remains technically against the law.  Marijuana has, in many parts of this state, become the equivalent of a beer in a paper bag on the streets of Greenwich Village.  It is losing whatever stigma it ever had and still has in many parts of the country, including New York City, where the kind of open marijuana use that is common here would attract the attention of any passing law officer.

“It’s shocking, from my perspective, the number of people that we all know who are recreational marijuana users,” said Gavin Newsom, the lieutenant governor.  “These are incredibly upstanding citizens: Leaders in our community, and exceptional people. Increasingly, people are willing to share how they use it and not be ashamed of it.”

Marijuana can be smelled in suburban backyards in neighborhoods from Hollywood to Topanga Canyon as dusk falls — what in other places is known as the cocktail hour — often wafting in from three sides.  In some homes in Beverly Hills and San Francisco, it is offered at the start of a dinner party with the customary ease of a host offering a chilled Bombay Sapphire martini.

Lighting up a cigarette (the tobacco kind) can get you booted from many venues in this rigorously antitobacco state.  But no one seemed to mind as marijuana smoke filled the air at an outdoor concert at the Hollywood Bowl in September or even in the much more intimate, enclosed atmosphere of the Troubadour in West Hollywood during a Mountain Goats concert last week.

Arnold Schwarzenegger, the former Republican governor, ticked off the acceptance of open marijuana smoking in a list of reasons he thought Venice was such a wonderful place for his morning bicycle rides.  With so many people smoking in so many places, he said in an interview this year, there was no reason to light up one’s own joint.  “You just inhale, and you live off everyone else,” said Mr. Schwarzenegger, who as governor signed a law decriminalizing possession of small amounts of marijuana.

This article makes me especially interested to hear from those who oppose on-going pot prohibition reform efforts concerning whether they would prefer to reform-minded states commit to de jure legalization as in Colorado and Washington now or only to de facto legalization as in California (and others states?).

As scripted in plea deal, Peter Madoff gets 10 years for his role in Ponzi scheme

As reported in this Bloomberg News article, headlined "Peter Madoff Gets 10 Years for His Role in Brother’s Ponzi Fraud," another participant in perhaps the biggest-ever white-collar crime was sentenced yesterday.  But, as the article details, the sentencing included limited drama because the outcome had already been essentially pre-arranged by the parties via a plea deal:

Peter Madoff, who pleaded guilty to aiding Bernard Madoff’s fraud while claiming he didn’t know his older brother was running a vast, decades-long Ponzi scheme, was sentenced to 10 years in prison.

U.S. District Judge Laura Taylor Swain yesterday sentenced Peter Madoff after considering pleas from victims of the fraud that she not show him any mercy. As part of an agreement with prosecutors, Madoff agreed not to seek less than the maximum 10- year prison term allowed by law.

In a 55-minute hearing in Manhattan, Swain said the notion that Peter Madoff didn’t know about the wide-ranging fraud at firm is “frankly, not believable.”  She urged him to cooperate with investigators who are trying to unravel the Ponzi scheme at his former firm.  “I challenge you to be honest about all that you have done and all that you have seen,” Swain told Madoff before pronouncing sentence.

Peter Madoff, 67, becomes the second person sentenced in the fraud at Bernard L. Madoff Investment Securities LLC, which was exposed in December 2008.  Bernard Madoff, who admitted masterminding the scheme, is serving a 150-year sentence in a North Carolina federal prison....

Swain also sentenced Madoff to one year probation when he’s released and she approved a forfeiture order that Madoff agreed to under which he must surrender all his assets, including Social Security proceeds, up to $143.1 billion. Swain approved the arrangement, which she called “draconian,” saying it “seals Peter Madoff’s financial ruination.”...

Two victims of the Madoff fraud, Michael T. DeVita and Amy Luria Nissenbaum, addressed the court.  “I ask that you show the same degree of compassion for Peter Madoff that he showed for us -- none,” DeVita said, urging Swain to set aside Madoff’s plea agreement and sentence him to more than 10 years.  “He benefited from this scam for over 30 years and he should be in prison for the same amount of time,” Nissenbaum told Swain....

Anthony Sabino, who teaches law at St. John’s University in New York, said many victims of the Madoff fraud are unlikely to be satisfied with Peter Madoff’s sentence, particularly in comparison with the 150 years his brother received.  “Ten years -- it just seems to be on the low end of the scale,” Sabino said.

In papers filed with the court, Peter Madoff’s lawyer, John R. Wing, said his client was “a victim of his brother’s Ponzi scheme.”  Peter Madoff’s “world was shattered” when his brother disclosed the fraud to him, Wing said in the letter, which was made public this week.

Peter Madoff’s guilty plea to two criminal charges came three years to the day after his brother was sentenced to 150 years in prison.  During his plea hearing, Peter Madoff told the court he had no knowledge of Bernard Madoff’s scheme until Dec. 9, 2008, the night his brother confessed to him that the investment business was a sham.  Bernard Madoff was arrested and confessed to authorities two days later, on Dec. 11.

Peter Madoff pleaded guilty to one count of conspiracy and one count of falsifying records of an investment adviser.  Both offenses carry maximum sentences of five years in prison. Peter Madoff admitted to improperly avoiding taxes by having the firm pay many of his expenses, which he didn’t report as income.  He also said he filed false reports with regulators that helped conceal the fraud.  After learning of the Ponzi scheme, Peter Madoff said he helped his brother parcel out $300 million remaining in the firm to select friends and family members.

Peter Madoff repeatedly lied and violated the trust investors had in the firm, prosecutors said. His crimes began in about 1996 and continued until December 2008 when the firm collapsed, according to the government.  Had regulators and clients known the truth about the compliance program overseen by Peter Madoff, “it is possible that the fraud would have been detected years earlier and losses to the many victims would have been avoided,” prosecutors said in court papers Dec. 14....

Federal prosecutors have obtained guilty pleas from Madoff’s former chief financial officer, Frank DiPascali, his former accountant, David Friehling, and former employees Craig Kugel, David Kugel, Enrica Cotellessa-Pitz, Irwin Lipkin and Eric Lipkin.  They haven’t yet been sentenced.  Also facing charges are former employees Daniel Bonventre, Annette Bongiorno, Joann Crupi, Jerome O’Hara and George Perez. They have pleaded not guilty.

Just Sentencing # 7: The problem of disparate racial impact; concluding remarks

Richard Frase, guest-blogging on Just Sentencing: Principles and Procedures for a Workable System (Oxford 2012):

In my last post I examined one of the most difficult and important problems of punishment theory and practice: sentencing enhancements for repeat offending (prior and/or multiple current convictions).  In this final post, I’ll examine a second (but related) difficult and important problem: the disparate racial impact of seemingly race-neutral sentencing policies, and the resulting stark racial and ethnic disproportionality of prison and jail populations.  I address this topic in greater detail in the final chapter of my book.  

One of the most serious collateral consequences of punishment, and one that is so pervasive that I believe it requires recognition of a separate sentencing principle and accompanying procedures, is the tendency of severe criminal penalties to compound and worsen the plight of already disadvantaged minority groups, thus reinforcing and perpetuating social inequality.  Like my model’s desert-based limits, the social equality principle sets upper and occasionally lower limits on sanction severity, and may also affect decisions about the form of punishment.

The need to forthrightly confront this problem is clear.  Notwithstanding gains in civil rights and social status for many nonwhite Americans, there remains a core of multiply disadvantaged, predominately black citizens who seem condemned to an unending cycle of poverty, heightened risk of becoming an offender (and/or crime victim), incarceration, and release to worsened disadvantage followed by repeated crime and further (usually, enhanced) punishment.  The results of this repeating cycle can be seen in the substantial and persistent racial disproportionality of inmate populations.  Although some white Americans are victims of similar long-term, multidimensional disadvantage, the disadvantage suffered by nonwhites, especially blacks, is of a different order of magnitude — more profound, harder to escape, and more likely to persist across multiple generations.

A model sentencing system must protect disadvantaged minority citizens both as potential victims (providing an additional ground for minimum sanction severity) and as offenders (limiting maximum severity or the form of punishment, even if in the short run greater severity or a different form of punishment might help protect minority or other victims).  Unfortunately, recent American sentencing practices, combined with lack of metropolitan regional planning and inadequate social welfare programs, seem to have worsened social and racial inequalities. Such inequalities breed crime, and undermine respect for and cooperation with law enforcement.  Of course, the criminal justice system cannot solve deeply entrenched social inequalities, but it can, and must, avoid making them worse.

The inequality-perpetuating effects of punishment can be attacked on both the systemic and the individual-case levels.  At the systemic level, guidelines commissions are well-equipped to tackle these issues.  Such commissions have and should make use of their capacity to conduct racial-impact assessments, identify the racially disparate effects of particular sentencing policies, and propose guidelines rules and needed legislative changes to reduce those effects.  For example, guidelines and statutes could be devised or modified to give limited weight to the offender’s prior conviction record, in light of the strongly disparate impact of this factor.  It is particularly important to reduce or eliminate criminal history score components that have little if any validity as predictors of recidivism risk.  It may also be appropriate to give lesser or “capped” weight to certain types of prior record with especially strong disparate impact, for example: 1) traffic, drug, and public-order convictions that reflect disparities in law enforcement practices; and 2) a series of prior crimes (especially: drug possession and low-level sale) that reflects addiction, disadvantaged circumstances, or other factors that would cause the offender’s unadjusted “record” to overstate his culpability and (if his condition could be or has been treated) his recidivism risk. My model also recommends that sentencing commissions identify and make recommendations for reducing the disparate impacts of collateral consequences of conviction, since these further perpetuate social disadvantage, and cause more crime.

Addressing inequality issues is more problematic at the case level, given the difficulty of making reliable and consistent assessments on an individualized basis. But there may be room for courts to tailor at least the form and sometimes the severity of the sentence, to reflect cases where an executed prison term would seriously worsen the offender’s disadvantage, or where his or her deprived background and lack of good options to avoid criminal involvement strongly suggests diminished culpability.  Of course, some of these offenders do pose a higher risk, especially to other disadvantaged persons.  But total confinement in prison or jail is not the only way to manage that risk. Such offenders can be released under close supervision, GPS monitoring, halfway-house or other periodic community confinement, in- or outpatient treatment, and other intermediate sanctions that avoid the damaging effects of incarceration on already disadvantaged offenders.  Although resources to support these alternatives are limited in most jurisdictions, is it both fair and a better long-term crime-control strategy to give disadvantaged, high-risk offenders priority access to those resources.

But, a critic might ask — isn’t my approach modeled on the sentencing guidelines system in Minnesota?  And doesn’t Minnesota have one of the highest rates of racial disparity in its prison and jail populations? Chapter 5 of my book (building on an earlier Crime and Justice article), examines this issue in some detail. Although Minnesota’s inmate racial disparities are not as high as they once were, they are still above the national average for states.  But most of the disparity is present from the point of arrest, and seems to reflect racial differences in offending which in turn result from Minnesota’s unusually high rates of socio-economic racial disparity. When I traced disparity rates through later stages of criminal processing (focusing on black and non-Hispanic white offenders), I found a substantial increase at the point at which the sentencing guidelines are applied: recommended-prison rates are almost 50 percent more disparate than felony-conviction rates.  And well over half of this substantial jump-up in disparity results from the strong and racially disparate impact of offender criminal history in the sentencing of crimes of medium and low severity.  That strong disparate impact is not an inherent feature of guidelines sentencing; it could easily be changed -- and would be, under my model.  

I have not made as detailed a study of criminal history’s contribution to racial disparity in other jurisdictions.  But the available data, and nationwide averages, indicate very substantial racial differences in criminal history; the more weight a jurisdiction gives to this sentencing factor, the more disparate its sentences will be.

Mandatory-minimum sentence laws are also known to have disparate impacts, and the same is undoubtedly true for other seemingly race-neutral sentencing policies (the most notorious example being crack versus powder cocaine penalties).  We need to identify those policies, and make sure they are well-grounded and parsimonious. Otherwise, racial minorities and all of society will continue to incur substantial and unnecessarily high costs, both human and economic.  Chapter 5 of my book catalogues the wide variety of ways in which criminal conviction, and especially incarceration, compounds disadvantage, and thus also the risk of crime, for offenders, their families, and their communities.

This is my last post in this series.  Thanks again to Doug Berman for letting me guest-blog the past two weeks, and thanks to readers for your interest.  I'm sure that everyone will find some things in my model they disagree with, and other things they like.  In a way, that's the main point of the book: the need to find a hybrid approach that most people can live with, balancing competing sentencing purposes and procedural values within a structural framework that has proven workable in practice.  I hope you've been stimulated by what you’ve read, and that you'll consider taking a look at the book.

"Empirical evidence suggests a sure fire way to dramatically lower gun homicides: repeal drug laws"

The title of this post is drawn from the title of this lengthy must-read post by Dan Kahan over at The Cultural Cognition Project blog. The post not only satiates my desire to have some distinct (and seemingly more productive) discussions about gun violence in the wake of the Newtown massacre than being provided by traditional media outlets, but it also makes a bunch of points that ought to be of interest to all persons on all sides of the tired-old gun-control debates. Dan's terrific post should be read in full, and I hope this taste (with some of his many links) will encourage everyone to click through to it:

I now want to point out that in fact, while the empirical evidence on the relationship between gun control and homicide is (at this time at least) utterly inconclusive, there certainly are policies out there that we have very solid evidence to believe would reduce gun-related homicides very substantially.

The one at the top of the list, in my view, is to legalize recreational drugs such as marijuana and cocaine.

The theory behind this policy prescription is that illegal markets breed competition-driven violence among suppliers by offering the prospect of monopoly profits and by denying them lawful means for enforcing commercial obligations.

The evidence is ample.  In addition to empirical studies of drug-law enforcement and crime rates, it includes the marked increase in homicide rates that attended alcohol prohibition and the subsequent, dramatic deline of it after repeal of the 18th Amendment.

Actually, it's pretty interesting to look at homicide rates over a broader historical time frame than typically is brought into view by those who opportunistically crop the picture in one way or another to support their position for or against gun control.  What you see is that there is a pretty steady historical trend toward decline in the US punctuated by expected noisy interludes but also by what appear to be some genuine, and genuinely dramatic, jumps & declines.

One of the jumps appears to have occurred with the onset of prohibition and one of the declines with repeal of prohibition. Social scientists doing their best to understand the evidence generally have concluded that that those are real shifts, and that they really were caused by prohibition and repeal.

Criminologists looking at the impact of drug prohibition can use the models developed in connection with alcohol prohibition and other modeling strategies to try to assess the impact of drug prohibition on crime.  Obviously the evidence needs to be interpreted, supports reasonable competing interpretations, and can never do more than justify provisional conclusions, ones that are necessarily subject to revision in light of new evidence, new analyses, and so forth.

But I'd say the weight of the evidence pretty convincingly shows that drug-related homicides generated as a consequence of drug prohibition are tremendously high and account for much of the difference in the homicide rates in the U.S. and those in comparable liberal market societies....

There is a very interesting empirical study, though, by economist Jeffrey Miron, who concludes that the available evidence is consistent with the hypothesis that the difference in homicide rates in the US and in other liberal market societies is attributable to our drug prohibition policies.  Gun availability in the US, according to this hypothesis, doesn't directly account for the difference in homicide rates between the US and these countries; rather, gun availability mediates the impact between drug prohibition and homicide rates in the US, because the criminogenic properties of drug prohibition create both a demand to murder competitors and a demand for guns to use for that purpose....

Repealing drug laws would do more -- much, much, much more -- than banning assault rifles (a measure I would agree is quite appropriate); barring carrying of concealed handguns in public (I'd vote for that in my state, if after hearing from people who felt differently from me, I could give an account of my position that fairly meets their points and doesn't trade on tacit hostility toward or mere incomprehension of whatever contribution owning a gun makes to their experience of a meaningful free life); closing the "gun show" loophole; extending waiting periods etc.  Or at least there is evidence for believing that, and we are entitled to make policy on the best understanding we can form of how the world works so long as we are open to new evidence and aren't otherwise interfering with liberties that we ought, in a liberal society, to respect.

Prior related posts following Newton masacre:

• Could latest tragic mass shooting prompt renewed consideration of "smart gun" technologies?
• "Smart Gun Technology Could Have Blocked Adam Lanza"

Split Ninth Circuit en banc ruling rejects effort to qualify for safety-valve via state sentence modification

As reported in this post from back in July 2011, an interesting split Ninth Circuit panel decision in US v. Yepez concluded that federal courts must respect the modification of a state sentence at a subsequent federal sentencing.  The Ninth Circuit subsequently decided to review this matter en banc, and the en banc court today comes down the other way now in US v. Yepez, No. 09-50271 (9th Cir. Dec. 20, 2012) (available here).  Here is a summary of the ruling in Yepez as prepared by court staff:

Affirming one defendant’s federal drug sentence and vacating another, the en banc court held that a state court’s order terminating a defendant’s probation for a state offense “nunc pro tunc” as of the day before the defendant committed his federal crime cannot alter the fact that the defendant had the status of probationer when he committed his federal crime.

The en banc court concluded that the defendants therefore remained ineligible for safety valve relief under 18 U.S.C. § 3553(f) from the mandatory minimum sentence because they were properly assessed two criminal history points pursuant to U.S.S.G. § 4A1.1(d) for committing the federal crime “while under any criminal justice sentence, including probation.”

Dissenting, Judge Wardlaw (joined by Judges Pregerson, Reinhardt, Thomas, and W. Fletcher) wrote that because neither Congress, the safety valve provision, nor the Sentencing Guidelines address this question, fundamental principles of justice, federalism, and comity, as well as the rule of lenity and the parsimony principle of 18 U.S.C. § 3553(a), permit district courts to exercise their broad sentencing discretion when calculating criminal history scores for purposes of safety valve relief, and then to exercise that same discretion in determining the appropriate sentence length.

The per curiam majority opinion in Yepez runs only about six pages, while the spirited dissent runs more than 30 pages and provides a running start (complete with cites to Justice Scalia's new book) for a potential cert petition for the defendants.

Prior related posts:

• Fascinating split Ninth Circuit opinion holds federal courts must respect modified state sentence
• Ninth Circuit to review en banc whether federal courts must respect modified state sentence

Three decades and huge (record?) restitution sentence in federal child porn case from Texas

A helpful reader alerted me to what seems like a record-setting sentence handed down yesterday in a notable federal child porn prosecution out of Texas.  This local article about the sentencing provides the details:

Misty, a victim of child abuse that began when she was 4 years old, wrote that there is another “little me” being seen on the Internet by child pornography abusers.  Prosecutor V. LaTawn Warsaw read the young woman’s victim impact statement during the sentencing of Robert Hedrick, 61, the former president of Pan American Airways, who was convicted in May of five counts relating to child pornography.

U.S. District Judge Andrew S. Hanen sentenced Hedrick to 30 years in prison and ordered him to pay more than $5 million in restitution to known victims of child pornography whose images of abuse were found on Hedrick’s computer....

The government had asked for a 90-year sentence, but Hanen said because of Hedrick’s age a 30-year sentence was appropriate....

Investigators identified 99 known series of child pornography, along with 549 known images of child victims on Hedrick’s computer — just a fraction of the more than 2,400 images and 18 videos of child pornography it held.  Many of the children in the images are unidentified, Homeland Security Investigations Agent Joseph Baker testified....

Hedrick maintained his innocence.  “I can’t ask the court for anything.  I was framed.  I didn’t do what I was charged and convicted of,” he said, adding that he can’t say he is sorry or show remorse for something he didn’t do. Hedrick plans to appeal....

During the trial, however, evidence showed that Hedrick shared 136 images of adult and child pornography with detectives who were posing as 13- and 14-year-old girls.  According to testimony during the trial, Hedrick contacted the undercover investigators in Louisiana and Wisconsin through Yahoo instant messenger and email more than 20 times.

He also was convicted of asking the agents to provide him with images of themselves in sexually explicit sex acts.  The government introduced a web cam video of Hedrick masturbating for an undercover detective who identified herself as a 14-year-old girl from Louisiana....

Here is a breakdown of the victims to whom Robert L. Hedrick was ordered to pay more than $5 million in restitution....

• $3,388,417 to the victim of the Misty series;
• $1,145,300 to the victim of the Jan-Feb series;
• $803,924 to the victim of the Vicky series;
• $68,821 to the victim of the Cindy series.

Much can be said, of course, about the imposition of 30 years' in federal prison for a man in his 60s for what he did on the internet.  (Recall that now-infamous child molester Jerry Sandusky got a state sentence of 30-60 years.)  I find even more noteworthy that federal prosecutors could, with a straight face and as officers of the court, assert in this sentencing proceeding that they believed that only a 90-year federal prison term(!) was "sufficient but not greater than necessary" to serve the purposes of punishment set forth by Congress in 18 USC 3553(a).

In addition, the restitution amount imposed here is higher than I can recall seeing in any other child pornography case and thus may set a record for this kind of prosecution.  Moreover, unlike in many other child porn downloading cases, it seems possible that this defendant could pay some or perhaps all of this huge restitution amount. This reality not only raises the stakes for this defendant's planned appeal, but also potentially impacts whether and how the victims in this case will want or need to seek additional restitution awards from other child porn downloaders in future federal prosecutions.

Wisconsin talk of GPS tracking all with domestic violence restraining orders

The Milwaukee Journal-Sentinel has this interesting lengthy article about a new technocorrections development in Wisconsin.  The piece is headlined "Walker: GPS monitoring needed for those with restraining orders," and here are excerpts:

Gov. Scott Walker wants people who have domestic violence restraining orders issued against them placed on GPS monitoring so victims will be alerted when their assailants are nearby.  The idea — which Walker said is still under development and may be included in the state budget he introduces in February — is in response to the October shooting at the Azana Salon & Spa in Brookfield.

The proposal comes as policy-makers around the country debate how to prevent mass shootings like Friday's massacre in Connecticut that killed 20 first-graders and six adults. The perpetrator, Adam Lanza, killed his mother before going on the rampage at Sandy Hook Elementary School in Newtown, where he then killed himself.

Walker said Wednesday that for now he is focused more on this year's shootings in Brookfield and at the Sikh Temple of Wisconsin in Oak Creek because more information is known about them.  He said more details about what happened in Connecticut are likely to come out in the weeks ahead, and that would provide the public a better sense of what laws, if any, need to change....

The Connecticut shooting comes just months after two deadly sprees in Wisconsin.  In August, white supremacist Wade Michael Page killed six people at the Sikh temple before he was shot by police and then killed himself.  In October, Radcliffe Haughton killed his estranged wife Zina and two of her co-workers at Azana, wounded four others and took his own life.

The Republican governor said he is "very interested" in including in his budget proposal a provision that people with domestic violence restraining orders against them be placed on global-positioning monitors.  He said he is still working on details....

Walker signed a law this year that allows judges to put people on GPS tracking if they violate a restraining order and are found to be more likely than not to cause serious bodily harm to the person who sought the order.  The law takes full effect in 2014.   The measure passed with overwhelming support.  Only Sens. Glenn Grothman (R-West Bend) and Lena Taylor (D-Milwaukee) voted against it.

Grothman expressed concerns about Walker's latest proposal. "It sounds like a lot of money, but having the government monitor that many people seems a little offensive," he said.  More than 15,000 new restraining orders and injunctions are issued a year on average in Wisconsin, according to the state Department of Corrections.  The agency's data does not say how many of those were related to domestic violence.

"I've always been afraid that over time government will use GPS technology to keep track of a larger and larger segment of the population," Grothman said.  "It does not take a strong burden of proof to get a restraining order, and I don't think we need 15,000 people in this state being monitored."

Walker said the cost would be borne by the people who had restraining orders issued against them.  The Department of Corrections monitors some sex offenders at a cost of $6.90 a day per offender.  If those under a domestic violence restraining order were put on GPS monitoring and charged the same rate for six months, it would cost them more than $1,200.  If those people could not afford to pay for their monitoring, it could add up to millions of dollars a year that taxpayers would pick up.

Tony Gibart, policy development coordinator for the Wisconsin Coalition Against Domestic Violence, said his group supports increased monitoring of domestic abusers but noted that many issues in Walker's proposal would need to be worked out.  "I think there are a lot of legal and practical matters that would have to be thought through," Gibart said.

Many with restraining orders against them won't be able to pay, he said.  Additionally, victims and assailants often share children, and the assailant is responsible for helping to pay to take care of the children.  If they have to pay for their GPS devices, that makes it harder for them to pay costs such as child support....

Tamara Packard, a civil rights attorney in Madison, said she has civil liberties concerns in the government tracking a person who hasn't been convicted of any crime.  "The question is whether that's something that's possible under the Constitution and whether that's something that we want in our society," Packard said.

Just Sentencing # 6: The problem of sentencing enhancements for prior and multiple current convictions

Richard Frase, guest-blogging on Just Sentencing: Principles and Procedures for a Workable System (Oxford 2012):

In my first five guest-blog posts I discussed the need for a new hybrid sentencing theory, limiting retributive and other core principles underlying my model, the reasons why presumptive guidelines are the best choice among existing sentencing structures, and how my model incorporates that structure and other procedures.  My last two posts will examine two of the most difficult and important problems of punishment theory and practice, each of which is the subject a chapter in my book. 

Today’s post addresses sentencing enhancements based on the offender’s prior and/or multiple current convictions.  Although separate (and inconsistent) rules often apply to prior convictions and multiple current offenses, these can also be seen as simply two forms of repeated offending.  Repeat offending is generally deemed to justify greater sentencing severity to facilitate incapacitation, other risk management measures, and deterrence. Some writers have also offered retributive justifications for prior-record enhancements.  Existing laws and practices reflect these various theories: prior-record enhancements are found in virtually all modern sentencing systems (but with widely-varying formulas). And these enhancements apply frequently — the majority of offenders have at least some prior record.  As for multiple current offenses, most systems authorize consecutive or other enhanced sentencing. 

The rationales for and permissible degree of both types of repeat-offender enhancements are greatly in need of clarification and limitation.  Here is how the sentencing model in my book resolves these issues.

Prior convictions. Retributive theorists have failed to articulate convincing or even consistent rationales to justify and limit prior-record enhancements. Some retributive theorists reject all such enhancements; others argue that an offender’s blameworthiness steadily increases, the more serious his prior conviction record; a third group claims that offenders with little or no prior record are not fully blameworthy for their latest crime(s).  Utilitarian theories provide more consistent and plausible rationales; in particular, it seems reasonable to view the extent of an offender’s prior record as a useful proxy for his degree of recidivism risk.  But there has been almost no empirical validation of the effectiveness and efficiency of existing criminal history scores, and score components, as predictors of recidivism. Substantial risk-based enhancements also undercut the important retributive (and utilitarian) goal of making sentence severity proportional to current-offense severity.  

Chapter 4 of my book examines various rationales for prior record enhancements, concludes that heightened offender risk provides the most satisfactory rationale, and proposes a structure to ensure that such enhancements operate within offense-proportionality limits.  Specifically, I argue that guidelines offense severity levels (grid “rows”) should be substantially non-overlapping.  (These are typical-offense sentencing ranges; aggravating or mitigating circumstances of the current offense(s) permit departure and imposition of a higher or lower sentence.)  With this simple structural change,  offender prior record will have less weight, in determining recommended non-departure sentences, than under many existing guidelines systems. The strongly overlapped severity levels found in those systems mean that high-record offenders have recommended custody terms as much as thirty times longer than first offenders, and more severe than sentences recommended for low-record offenders who have committed much more serious crimes. Reducing the weight given to prior convictions will thus better achieve limiting-retributive and expressive (offense seriousness) purposes than under many existing guidelines systems. (However, almost all guidelines already partially accept the priority of offense seriousness: prior-record enhancements are “capped” — at some point additional priors have no further effect on recommended-sentence severity.)  Another important reason to limit the sentencing weight of prior convictions is that this factor tends to have a much greater impact on racial and ethnic-minority offenders, thus substantially increasing the racial disproportionality of inmate populations, compounding the post-release disadvantage of these offenders, and threatening social equality goals.

My book also recommends that guidelines systems develop empirically validated risk-assessment tools to supplement or replace criminal history scoring as the mechanism to determine recommended sentences within each offense-severity level. Such tools would only employ normatively acceptable factors (including some components of prior record) that are shown to add risk-predictive power without unacceptably high racial disparate impact. It seems likely that a major low-risk factor will be the offender’s age; criminological research has repeatedly shown that many offenders in their 40s and older are past their peak offending years or likely to soon desist entirely.  Yet these are often the offenders with the most extensive criminal history scores; almost all guidelines systems apply such scores without regard to offender age, thus locking up large numbers of aging, low-risk offenders (most of whom have been convicted of medium- or low-severity crimes).

Multiple current offenses.  Retributive and utilitarian theory is even more inadequate — indeed, almost completely silent — on the question of which multiple offenses should be sentenced consecutively; perhaps for that reason, most sentencing systems simply leave this matter up to the court’s discretion.

I argue that there should be a general presumption in favor of concurrent sentencing. The guidelines in Minnesota and several other states include a similar presumption, but with exceptions whose scope and rationales are often unclear. (I also argue in favor of several forms of “concurrent plus” sentencing found in several existing systems, in particular: counting multiple current offenses as prior convictions.)  When the presumption is overcome and consecutive sentences are imposed, there should be a further presumption that, except in very exceptional cases, the total prison term will not exceed twice the highest recommended (top-of-cell) term applicable to the most serious of the multiple crimes being sentenced.  A similar presumptive doubling limit is found in several state guidelines systems and in the revised Model Penal Code. The (now-advisory) federal guidelines formula is even stricter, limiting multiple-count sentencing enhancements to about 50 percent (above the most-serious-crime sentence).

The two presumptions set out above serve the goal of parsimony and lessen the risk that many defendants with multiple current offenses will receive sentences in excess of desert and valid utilitarian punishment needs. Although such needs and desert do justify consecutive sentencing in some cases, in other cases they do not.  For example, multiple current offenses can reflect short-term or situational factors such as a lost job that suggest lower culpability and dangerousness.  And in multiple-current-offense cases we can never be sure that the offender would have gone on to commit the later crime(s) if he had been caught, punished, and perhaps rehabilitated after the first one. The presumptions in favor of concurrent sentencing and against more-than-doubling give these offenders the benefit of the doubt, in the absence of contrary evidence justifying departure from one or both presumptions.

A further reason to limit the size of consecutive-sentence (and also prior-conviction) enhancements is that eligibility for such enhancements is subject to the vagaries of prosecutorial charging and plea-bargaining discretion — prosecutors can maximize, or minimize, the number of current charges, and thus also the offender’s future criminal history score.

That’s it for now.  My last guest-blog post will address another difficult and important problem of punishment theory and practice: racial disproportionality in prison and jail inmate populations.  I’ll also offer a few concluding remarks to wrap up this series of posts.

Prior posts in series so far:

• Overview
• Existing sentencing theories are inadequate
• A restated and expanded limiting retributive model
• Existing sentencing structures – Which are the best?
• My sentencing model's structural features and procedures

"Smart Gun Technology Could Have Blocked Adam Lanza"

The title of this post is the headline of this new Huffington Post commentary by David Shuster, which I view as a long-needed and welcome example of a new kind of discourse over gun control needed in the wake of the Newtown massacre.  Here are excerpts:

As our leaders begin the uncertain political debate over gun control, there is a simple and straightforward policy solution right now that would uphold gun owners' 2nd amendment rights and still keep our kids safer.  It's called "smart gun technology."

The system is similar to "smart technology" already in use for things like cars, iPhones and security doors.  A computer microchip measures the bio-metric details of the person attempting to activate the product. If the details match the rightful owner, the device is "enabled." If the details don't match, the device will not work or open.

Smart gun technology has been around for years. CBS News profiled a New Jersey institute that was perfecting it in 2009. Science Daily had a story about the emerging technology back in 2005,

The most reliable smart gun technology involves a grip recognition system.  There are 16 digital sensor chips embedded in the handle. The computerized sensors capture the unique pattern and pressure of your grip, plus the specific size of your hand.  If someone else tries to use the gun, the information will not match the stored pattern of the gun owner's — and the weapon will not fire....

[T]his technology, as well as similar versions involving fingerprint recognition, could be embedded in guns today.  But for years, the National Rifle Association has blocked these efforts, in part because they would make guns costlier to produce and purchase.  The NRA has also insisted that smart gun technology would infringe upon the Second Amendment. Constitutional experts say that argument is absurd.  The Constitution allows for all kinds of product regulations....

The best argument against smart gun technology is a logistical one. It could prevent a homeowner who wrestles away an intruder's gun from firing it back at them. I think we can agree, however, that such MacGyver-like situations are exceedingly rare.  And the fact is, 10 to 15 percent of guns used in home invasions, robberies and mass shootings are weapons that have been stolen.

Furthermore, smart gun technology allows for multiple biometric "identities" to be stored in one gun.  This would solve a problem for police or members of the military who may want to have the option of "sharing weapons."

In the case of the Connecticut massacre, is it possible that Adam Lanza's mother, a gun enthusiast who reportedly took her sons to the range, would have embedded Adam's biometric data on her weapons if that was possible?  Sure.  But family baby sitters have told reporters that Nancy Lanza repeatedly urged "caution" around Adam and was worried about his behavioral problems....

The weapons Adam Lanza relied on were not his. They belonged to his mother, the only person entitled to use them.  And while she may have taught her son how to fire the weapons at shooting ranges over the years, she was the sole owner of the weapons, not him.  If smart technology had been in place, the weapons would have likely been useless to Adam Lanza.

And that's the point. Congress and the President should begin their new effort at preventing mass shootings by mandating something that might have made a different in Newtown, Conn. — require smart gun technology in all weapons.  Just as our nation insists on basic quality standards for cars, houses, tools, air, water, and etc, insisting on basic features for all weapons that may be "fired" is perfectly reasonable.

It's not about taking guns away.  It's about making sure that guns can't be fired by anybody but their lawful owners.  Is that too much to ask?

As long-time readers know, I have been talking up smart-gun technology on this blog for years (examples here and here), and I have been sincerely hoping that the horrific shooting in Connecticut will start generating new and needed buzz on this encouraging front. This Huff Post commentary is a good start, and I sure hope the new leadership and initiatives coming from President Obama and VP Biden (basics here from the AP) will be focused like a laser on the potential pros and cons of smart guns.

Prior posts both old and new:

• Technology, smart guns, GPS tracking and a better Second Amendment
• More on smart guns, dumb technologies and market realities
• Could latest tragic mass shooting prompt renewed consideration of "smart gun" technologies?

Celebrity witness for high-profile (and interesting) federal sentencing appeal

I have blogged a good deal about the long-running federal criminal travails of Cameron Douglas, in part because the involvement of celebrities at sentencing is intriguing and in part because of the many legal and social issues raised by the seemingly lenient sentence Cameron Douglas was given at his first federal sentencing and the seemingly harsh sentence he got the second time around (some backstory here). 

Today, all these travails came before the Second Circuit for oral argument.  This new AP article about the argument hints that a notable reasonableness ruling might be in the offing:

Michael Douglas was among spectators Wednesday as an appeals court panel heard attorneys argue whether his son was treated too harshly when he was sent to prison for nearly 10 years for drug crimes.  The actor sat in the back of a Manhattan courtroom the size of a basketball court as three judges from the 2nd U.S. Circuit Court of Appeals heard attorney Paul Shechtman complain that Cameron Douglas got the stiffest sentence ever — 4 1/2 years in prison — for being caught with drugs in prison. The time was added last year to a five-year prison sentence Cameron Douglas was already serving....

The appeals panel, unlikely to release a written opinion for weeks or even months, did not indicate through its questions whether it will order a resentencing.  Like the sentencing judge, it seemed troubled by crimes Cameron Douglas, 34, committed after he was given leniency in return for cooperating against two of his former drug suppliers.  Without the benefit of cooperation, he would have faced a mandatory 10-year prison term after he pleaded guilty to narcotics distribution charges on Jan. 27, 2010.

Shechtman said only 2 percent of inmates are prosecuted when they are caught with drugs behind bars.  And he said the Bureau of Prisons had already punished Cameron Douglas with 11 months in segregation and by taking away nearly three months of good behavior credit.

Assistant U.S. Attorney Justin Anderson said Judge Richard M. Berman properly considered the unique characteristics of Cameron Douglas' crimes.  Cameron Douglas has admitted that he had a girlfriend sneak drugs to him after he was first arrested and was staying at his mother's place under tight bail conditions and that he convinced a female lawyer who had a romantic interest in him to sneak drugs to him in prison.  He also has admitted continuing to use drugs in prison.  "Extraordinary cases require extraordinary sentences," Anderson said....

Judge Guido Calabresi asked Anderson why Berman was not entitled to impose a sentence that was double what prosecutors were requesting and was nearly five times what the Probation Department recommended after he became disappointed with the number of chances Cameron Douglas had squandered.  Judge Gerard Lynch said it was understandable that Berman would think: "This guy got a big break and he screwed up."

Shechtman called Cameron Douglas' behavior "purely the conduct of an addict."  Lynch asked whether Berman was entitled to say drug offenders "have to clean up their act and I'm not going to see addiction as a justification."

Shechtman said he was not suggesting his client should not be punished but rather "54 months is an unreasonable sentence."

Prior posts concerning Cameron Douglas's federal sentencings:

• Does having celebrity "a-listers" ask for leniency help a defendant's cause at sentencing?
• Cameron Douglas sentenced to five years for federal drug offense
• "Did Michael Douglas' Son Get Celeb Treatment With Reduced Sentence?"
• Should we care that Cameron Douglas, though sentenced to 5 years in prison, will likely be out in 2012?
• Stiff sentence given to Cameron Douglas for drug possession while in prison
• Celebrity federal drug sentencing appeal prompts doctors' brief urging treatment over punishment

Novel post-trial federal "sentencing settlement" for Montana medical marijuana provider

As reported in this local article, headlined "In plea deal, most of marijuana caregiver's convictions to be dropped," there has been a notable (and disturbing?) development in a notable (and disturbing?) federal criminal case involving a Montana medical marijuana provider.  Here are the details:

In a highly unusual move, federal prosecutors have agreed to drop six of eight marijuana convictions for Christopher Williams in exchange for his agreeing to waive his right to appeal.  In addition, the government has agreed to ask U.S. District Judge Dana Christensen to dismiss the $1,728,000 criminal forfeiture awarded to the government by a jury earlier this year.

The agreement was outlined under a settlement filed Tuesday in U.S. District Court.  In the document, signed by Williams, U.S. Assistant Attorney Joe Thaggard, and federal public defender Michael Donahoe, they note that this agreement “constitutes the final and best offer to resolve this matter.”

Williams, a medical marijuana caregiver, was convicted by a 12-member jury in September after a four-day trial.  He was facing a minimum mandatory sentence of between 85 and 92 years, due in part to four counts that involved possessing a firearm in furtherance of a drug trafficking crime.  Sentences for those counts, by law, had to run consecutively.

Immediately after his conviction, Thaggard had offered to drop some of the charges, but they still involved a 10-year mandatory minimum sentence.  Williams rejected the offer, saying he was willing to spend the rest of his life in prison to fight what he believed were violations of his constitutional rights.

Under the newest deal, the federal government dropped convictions for conspiracy to manufacture and possess with the intent to distribute marijuana; manufacture of marijuana; possession with intent to distribute marijuana; and three counts of possessing a firearm in furtherance of a drug trafficking crime.  His convictions for one count of possessing a firearm in connection with drug trafficking and one count of possession with intent to distribute marijuana will stand.

He faces a maximum term of five years for the distribution of marijuana charge and a mandatory minimum of five years — and a maximum of life — for the firearm-related charge.

Kari Boiter, a friend of Williams, reported late Tuesday that she had talked to him via a phone call.  He was incarcerated at the time at the Missoula County Detention Facility. Boiter says Williams told her it wasn’t easy for him to give up his constitutional fight, but as he navigated the complex federal penal system, it became clear that punishment was the only thing that was guaranteed.

“With the rest of my life literally hanging in the balance, I simply could not withstand the pressure any longer,” Williams said in a statement released by Boiter.  “If Judge Christensen shows mercy and limits my sentence to the five year mandatory minimum, I could be present at my 16-year-old son’s college graduation.  This would most likely be impossible had I rejected the latest compromise.”

Williams was a partner in Montana Cannabis, which operated distribution centers in Helena, Billings, Miles City and Missoula, and had a large marijuana greenhouse west of Helena on Highway 12.  The four partners — Williams, Chris Lindsey, Thomas Daubert and Richard Flor — said they tried to set the “gold standard” for medical marijuana businesses after voters overwhelmingly passed legislation in 2004 permitting caregivers to distribute marijuana to people with physical ailments.

But under a federal crackdown in March 2011, Montana Cannabis was one of about 25 medical marijuana businesses that were raided, since marijuana is still considered a Schedule 1 narcotic under federal laws. Williams is the only person in Montana to take his case all the way to trial.

Daubert, Lindsey and Flor all pleaded guilty to various marijuana possession and distribution charges. Daubert received a sentence of five years on probation; Lindsey is expected to be sentenced Jan. 4 and prosecutors have agreed to seek a sentence similar to Daubert’s based upon Lindsey’s health problems and limited involvement in Montana Cannabis. Flor, who was sentenced to 10 years in prison, died from health-related complications while incarcerated....

It’s unknown whether Williams’ sentencing hearing, slated for Jan. 4 in Missoula, will still take place on that date.

As a matter of equitable substantive sentencing justice, I am very pleased to learn that Chris Williams is no longer facing a federal mandatory sentence of essentially LWOP for distrubuting marijuana in compliance with Montana law. But as a matter of constitutional law and federal criminal procedure, I find this new novel "sentencing settlement" disturbing from various perspectives. Let me explain:

Start with the government actors: though federal prosecutors have broad charging and bargaining discretion, what gives them authority to drop 75% of presumptively lawful convictions after a presumptive lawful jury trial?  Unless and until prosecutors articulate a constitutional or legal reason for dropping thse convictions, this decision appears to be a form of "prosecution nullification" that strikes me even more lawless than "jury nullification."  Prosecutors frequently contest and complain about the power of juries to nullify a prosecutor's criminal charges based on equitable rather than legal claims; here is appears that federal prosecutors are deciding to nullify a jury's criminal convictions based on equitable rather than legal claims.  

Even more worrisome, federal prosecutors in this case are going to nullify 75% of presumptively lawful convictions after a presumptive lawful jury trial in order to secure a deal to avoid any appellate scrutiny of the (also suspect?) convictions to be preserved.  If federal prosecutors believe there is a sound legal or equitable basis for dropping some of these convictions, why not just drop them without demanding anything in return from the defendant rather than requiring him to give up his statutory rights to appeal his other convictions and sentence?  Prosecutors here are not merely nullifying many jury convictions, but they are doing so only after essentially blackmailing the defendant to give up his rights to contest his other convictions on appeal.

Turning to the defense side:  though I completely understand why Chris Williams (especially after a few months in federal lock-up) decided to give up right to an uncertain appeal in order to avoid the prospect of a certain mandatory LWOP federal sentence, I am not sure how his attorneys can feel fully comfortable representing this deal as a knowing and voluntary settlement.  Based on the comments from the defendant quoted above, it seems plain to me that Chris Williams was essentially coerced by the threat of an extreme (and I think unconstitutional) sentence into giving up his appeal rights.  The jury convictions and the extreme mandatory sentencing terms here functioned in this case as a kind of legal sword of Damocles hanging over the defendant's head; Williams appears to have decided to accept this "sentencing settlement" waiving appeal rights only because prosecutors kept swinging this sword past his neck.

Especially because I want Chris Williams to be able to go to his 16-year-old son’s college graduation, I do not want to prevent him from getting the obvious benefit of this deal.  But because I also want Chris Williams to be able to pursue on appeal all his constitutional claims on all his convictions and sentence, I hope the judge in this case accepts this novel "sentencing settlement" while striking the waiver of appeal rights as, in this setting, void as against public policy.

Just Sentencing # 5: My sentencing model's structural features and procedures

Richard Frase, guest-blogging on Just Sentencing: Principles and Procedures for a Workable System (Oxford 2012):

In my last guest-blog post I examined existing American sentencing structures and the need for a new model that builds on the best of them.  In this post I’ll summarize the structure and most important procedural features of the model proposed in my book.  That model was inspired by the sentencing guidelines systems in Minnesota, Washington, Oregon, Kansas, and North Carolina.  Most of the features of my model have been implemented and proven workable in those five states (and are also often found in other guidelines states).  My model also proposes modest improvements in these systems to better achieve the limiting-retributive and other principles identified in my earlier post (#3). 

State sentencing guidelines as the structural model. Existing limiting retributive theory needs further specification, in particular: how wide are the sentencing ranges? My model resolves this critical ambiguity by adopting a structure based on the presumptive guidelines found in the five states listed above. In these systems recommended sentencing ranges substantially constrain case-level discretion and its corresponding potential for disparity, while still leaving considerable room (within the range, or by regulated departure) for individualization of the sentence.

A permanent, independent, and adequately-funded sentencing commission. As explained in my previous post (#4), presumptive guidelines implemented and monitored by an independent sentencing commission improve the consistency and rationality of sentencing policy, ensure that such policy is informed by data on sentencing practices, and help to insulate policy from short-term political and media pressures.  Such commissions are especially valuable as a tool of resource management; they help the legislature prioritize the use of expensive correctional resources, prevent prison overcrowding, and avoid piecemeal legislation in response to the latest appeal to raise this penalty or that one.

Required resource- and demographic-impact assessments. Under my model (as in the five states) the resource management tasks noted above are greatly facilitated by assessments of the expected impact of existing and proposed policies on correctional resources.  Such projections are more accurate under presumptive, parole-abolition guidelines because sentencing in such a system is more predictable and the sentencing commission can collect the needed data and develop expertise in making projections.  Demographic-impact assessments likewise work better in such a system; they can be used to reduce, or at least not make worse, racially disparate impacts of sentencing policies.

Legally binding guidelines enforced by active but not overly intrusive appellate review.  Most of the recommended sentences under my model are presumed to be correct in the absence of unusual circumstances, and departures are subject to appellate review to correct errors and develop sentencing law. But the standard of review leaves trial courts with sufficient discretion to take into account particular case facts and tailor the sentence accordingly. In certain cases my model permits judges to vary from guidelines recommendations by stating reasons but without that variance being deemed a departure that would attract closer appellate scrutiny and require compliance with Blakely procedures.

Required statements of reasons for departures, and for some non-departures. A statement of reasons for departure or variance from guidelines recommendations is a feature of almost all guidelines systems, and serves to clarify the trial court’s analysis and facilitate appellate review.

Limited sentence enhancements for prior convictions and multiple current offenses. Repeat offending is deemed an aggravating factor in almost all sentencing systems, but the justification for such enhancements needs clarification and limitation. My model bases prior-record enhancements solely on assumed greater risk, not increased desert, and specifies that such enhancements must operate within substantially non-overlapping offense-severity levels (guidelines grid “rows”), thus increasing current-offense proportionality.  For multiple current offenses there is a presumption against consecutive sentencing and, in case of departure, a further presumption that the total should not exceed twice the maximum presumptive sentence for the most serious offense.  These limitations promote parsimony, reduce disparate impacts on non-white offenders, and lessen the impact of charging discretion.

Frequent use of suspended-execution sentences.  Suspended sentences to prison, jail, or a fine are frequently used in most sentencing systems.  My model encourages such suspensions because they are less costly and harmful to offenders and their families than an executed sentence; at the same time, they have useful expressive value (conveying the degree of seriousness of the offender’s crimes), give offenders a strong incentive to comply with required conditions, and leave substantial room for later tightening of sanctions in case of noncooperation or new evidence of offender risk.

Encouraged intermediate sanctions with maximum but no minimum severity limits.  Most offenders do not need to be sent to state prison, and many will be made more crime-prone if they are, yet risk management or expressive goals (re: offense seriousness) may require sanctions more restrictive than unsupervised probation.  Frequent, offense-proportionate use of community-based punishments is encouraged by: state-paid subsidies to local corrections programs for each offender in specified categories who is kept out of state prison; sanction equivalency scales to validate the punishment value of noncustodial sanctions; and presumptive limits on the aggregate severity of those sanctions.  But, consistent with parsimony, there should be no presumptive minimum-required severity of intermediate sanctions.  Such minimums are rarely found in state guidelines, would further complicate sentencing decisions, and are not likely to be regularly or consistently enforced.

Limits on sentence modifications via revocation or changed conditions of release. In many states revocations of probation and post-prison release account for a high proportion of prison admissions. Sentencing commissions should discourage revocations by developing rules that: 1) place upper limits on the severity of release conditions (making technical violations less likely); 2) encourage a graduated response to violations of conditions, not immediate revocation; 3) specify types of violations that do and don’t ordinarily merit custodial sanctions; and 4) set presumptive upper limits on the severity of such sanctions.

Abolition of parole-release discretion, with supervised release unrelated to good time. In the five presumptive-guidelines states listed earlier, defendants serve the entire prison sentence imposed by the judge, subject only to reductions for good conduct. Parole-release discretion should be rejected for several reasons: time-of-release decisions are often inconsistent and unreliable; parole discretion is not needed to control prison crowding (guidelines permit that to be done on the front end, see above); such discretion lacks transparency, violates victim needs for “truth in sentencing,” and permits administrators to exercise sentencing power instead of judges; and parole discretion makes it harder for legislatures and commissions to accurately predict future prison populations (to set priorities in prison use and avoid overcrowding).  Most offenders released from prison do need a period of parole-like supervised release, but its duration should be based on the severity of the conviction offense, not on the offender’s remaining prison term or earned good-time credits.

Inmate good-conduct credits that are moderate in amount, but reflect program participation. Parole-abolition states generally grant good-conduct credits to maintain prison order and give inmates an incentive to participate in prison programming. The 33 percent credit in my model falls about in the middle of the range of state credit formulas.  But offenders must in any case be granted initial release when they have served 85 percent, with the remaining sentence reserved to sanction release violations.

My last two posts will examine two of the most difficult and important problems of punishment theory and practice: sentencing of offenders with prior and/or multiple current convictions; and racial disproportionality in prison and jail inmate populations.

Prior posts in series so far:

• Overview
• Existing sentencing theories are inadequate
• A restated and expanded limiting retributive model
• Existing sentencing structures – Which are the best?

"Head of Pardons Office Withheld Facts From White House in Key Case"

The title of this post is the headline of this new article by Dafna Linzer of ProPublica reporting on a notable report emerging from within the Justice Department concerning a notable controversy over a notable clemency case. Here is how the piece starts:

The head of the Justice Department's pardons office failed to accurately convey key information to the Bush White House regarding a federal inmate's plea for early release, the department's inspector general concluded in a report released Tuesday.

In overseeing the case of Clarence Aaron, the report found that Pardon Attorney Ronald L. Rodgers engaged in "conduct that fell substantially short of the high standards expected of Department of Justice employees and the duty he owed the President of the United States."

In a measure of the seriousness of the evidence against Rodgers, Inspector General Michael E. Horowitz referred his findings to the deputy attorney general for "a determination as to whether administrative action is appropriate."

Rodgers's advice to the president, the inspector general concluded, "was colored by his concern ... that the White House might grant Aaron clemency presently and his desire that this not happen." The report includes excerpts of emails Rodgers sent to another Justice Department official expressing hope that Aaron's request be denied.

"The details that emerge from this report about the way the Justice Department handled my client's case shock me," said Aaron's attorney, Margaret Love. "Justice is long overdue for Clarence Aaron, and I hope the president will take immediate action to free him."

The pardons office has come under increased scrutiny in the last year since ProPublica and The Washington Post began reporting on race disparity in the selection of pardon recipients and the handling of the Aaron case. ProPublica's study showed that white applicants have been nearly four times as likely as minorities to be pardoned. Aaron is African American....

Rodgers, a career civil servant and former military judge, took over the pardons office in 2008. Despite calls for his resignation, he has remained in office. Nearly all pardon recipients are preselected by Rodgers and he personally reviews each application from federal inmates seeking early release. Under his leadership, denial recommendations have soared while pardons have been rarely granted.

Justice spokesman Wyn Hornbuckle that Attorney General Eric H. Holder Jr. had full confidence in Rodgers. Hornbuckle declined to reiterate that support Tuesday. He said Holder's deputy, James Cole, was reviewing the inspector general's findings and that "further comment would not be appropriate." The Justice Department refused requests for interviews with Cole or Rodgers.

The White House relies almost exclusively on Rodgers in deciding whom the president will forgive or release from prison. Asked whether the president also has confidence in Rodgers's advice, the White House declined to comment.

Over at his Pardon Power blog, PS Ruckman has provided the full DOJ Inspector General report at this link and he provides highlights from the report in this post titled "SHOCK! O.I.G. Blasts U.S. Pardon Attorney."   The folks at FAMM also have this new press release in response to this report, which includes these passages:

FAMM President Julie Stewart today said she felt “maddened but validated” by a report confirming serious misconduct by the Office of the Pardon Attorney (OPA) in its handling of the clemency request of federal prisoner Clarence Aaron, a first-time, nonviolent drug offender serving life without parole....

Says Stewart, "The report confirms what thousands of clemency denials imply: the Office of the Pardon Attorney has a 'just say no' attitude when it comes to clemency requests, no matter how deserving the prisoner or how unjust the sentence.  That kind of culture doesn’t serve the interests of justice, the president, or the public.  Prisoners grow, change, and deserve second chances.  But they’ll never get them unless the president reforms the pardon attorney’s office and ensures that everyone gets a fair shake."

DPIC reports slight uptick in number of death sentences imposed in 2012

The Death Penalty Information Center released its year-end report on death penalty developments today, and the full eight-page report is available at this link.  This press release from DPIC about the report echoes its theme of the death penalty in decline by making these points at the outset:

Only nine states carried out executions this year, equaling the fewest number of states to do so in 20 years, according to a new report released today by the Death Penalty Information Center (DPIC).  More than half of the states (29) either have no death penalty or have not carried out an execution in five years. The number of executions in 2012 (43) was 56 percent less than the peak in 1999 and equal to last year’s total.

The number of new death sentences in 2012 was the second lowest since the death penalty was reinstated in 1976.  Seventy-eight people were sentenced to death in 2012, representing a 75 percent decline since 1996 when there were 315 sentences.

Many death penalty states with histories of high use had no new death sentences or no executions in 2012. North Carolina, South Carolina, and Virginia (which is second to Texas in total executions since 1976) had no death sentences and no executions.  No executions were carried out in Alabama, Georgia, Louisiana, or Missouri.

“Capital punishment is becoming marginalized and meaningless in most of the country,” said Richard Dieter, DPIC’s Executive Director and the author of the report. “In 2012, fewer states have the death penalty, fewer carried out executions, and death sentences and executions were clustered in a small number of states.  It is very likely that more states will take up the question of death penalty repeal in the years ahead.”

Especially as compared to death penalty's modern heyday in the United States (which roughly corresponds to the half-decade following the oklahoma City bombing and President Bill Clinton's second term in office), this basic narrative of the capital punishment in decline is accurate.  But as my post headline and the graphic above notes, the very latest developments suggest a flattening out of the declining trend. 

Despite the controversy over the Troy Davis execution and the initiative repeal effort in California this year, there was still apparently a slight uptick in the total number of death sentences imposed throughout the United States.  And, as the data from DPIC here reveal, the 43 executions in 2012 is right around the average number of yearly executions throughout the United States over the past half-decade.  Thus, assuming recent capital past is prologue, we can and should reasonably predict on average six or seven death sentences and three or four executions every month in the United States for the foreseeable future.

On a related front, I wonder if anyone has any good data on the number of LWOP sentences imposed in 2012 or before.  I have long worried that a small reduction in death sentences imposed within a jurisdiction might sometimes result in disproportionately large increase in the number of LWOP sentences in that jurisdiction.  I do not have rigorous data to back up my concerns here, and I would be grateful for any information anyone may have about relationships between death sentencing trends and imprisonment trends in 2012 or before.