Federal Sentencing at the Ninth Circuit: Douglas Berman at Sentencing Law and Policy posted his thoughts on today's Ninth Circuit sentencing decision in Tapia-Romero, No. 05-50121 (9th Cir. May 1, 2008). Berman's commentary questions whether the Ninth Circuit was correct to uphold the district court's determination that "cost to society of imprisoning a defendant is not a factor to be considered in determining the appropriate length of a defendant's term of imprisonment." Berman wonders how far the decision will be taken, and whether it will lead to the prohibition of cost-benefit analysis in all federal sentencing determinations.

Posted by Lauren Altdoerffer at 03:30 PM | Permalink | Comments (0)

Adam Liptak has this article in the New York Times today on the controversy over incarceration rates and how ours is so much higher than Europe's. The article begins with the usual stuff we hear all the time. Later, it quotes Paul Cassell and an article of ours for the proposition that locking up criminals really has saved a lot of people from victimization. The articles cites "specialists" for "dismiss[ing] race as an important distinguishing factor." That is significant, and unusual, as for some folks race seems to be the explanation of first resort on every conceivable subject.

One point I would have liked to see expanded on is this: "From 1981 to 1996, according to Justice Department statistics, the risk of punishment rose in the United States and fell in England. The crime rates predictably moved in the opposite directions, falling in the United States and rising in England."

As noted on this blog Monday, the comparative data are more dramatic than that. Liptak notes elsewhere in the article that the United States has (present tense) lower burglary and robbery rates than England, but omits the fact that this is a fairly recent development. Americans have gone from a much greater risk of these crimes, compared to England and France, to a significantly lower risk. The tougher sentencing has been a big part of that.

Posted by Kent Scheidegger at 11:44 AM | Permalink | Comments (0)

Nearly lost in the hubbub over Baze v. Rees were two federal sentencing decisions handed down by the high court this week. For those who practice mainly in the state courts, the results are less important than the statutory interpretation principles applied. These are likely to have persuasive value in state cases.

Continue reading "Statutory Interpretation" »

Posted by Kent Scheidegger at 03:33 PM | Permalink | Comments (1)

As American states struggle with how to deal with prison overcrowding and the attendant budget problems, this WSJ article by Gabriel Kahn gives us a splendid example from across the pond on how not to do it:

Less than two years ago, Italy's prison system faced a crisis: Built to hold 43,000 inmates, it was straining to contain more than 60,000.

So the government crafted an emergency plan. It swung open the prison doors and let more than a third of the inmates go free.

Within months, bank robberies jumped by 20%. Kidnappings and fraud also rose, as did computer crime, arson and purse-snatchings. The prison population, however, fell so much that for awhile Italy had more prison guards than prisoners to guard.

Continue reading "Italy Shows How Not to Deal With Prison Overcrowding" »

Posted by Kent Scheidegger at 11:34 AM | Permalink | Comments (0)

James Q. Wilson has this op-ed in the Sunday LA Times, responding to the Pew report about 1 in 100 in prison and the accompanying hullabaloo.

In the last 10 years, the effect of prison on crime rates has been studied by many scholars. The Pew report doesn't mention any of them. Among them is Steven Levitt, coauthor of "Freakonomics." He and others have shown that states that sent a higher fraction of convicts to prison had lower rates of crime, even after controlling for all of the other ways (poverty, urbanization and the proportion of young men in the population) that the states differed. A high risk of punishment reduces crime. Deterrence works.

But so does putting people in prison. The typical criminal commits from 12 to 16 crimes a year (not counting drug offenses). Locking him up spares society those crimes. Several scholars have separately estimated that the increase in the size of our prison population has driven down crime rates by 25%.

Posted by Kent Scheidegger at 07:05 PM | Permalink | Comments (0)

The Third Circuit has ordered a new sentencing hearing in the case of Mumia Abu-Jamal, who was convicted of killing Philadelphia Police Officer Daniel Faulkner in 1981. The lengthy 118 page opinion is here and the Fox news story here. Faulkner's memorial site can me found here.

Update:

Michael C. Moynihan over at Reason's blog Hit & Run says:

Remember Mumia Abu-Jamal, the cop-killing NPR contributor who rallied legions of campus radicals during the 1990s to protest his innocence? There was a time when every demonstration —anti-globalization, anti-war, anti-whatever—featured an organized division of "Free Mumia" types. In 2002, the Paris City Council conferred honorary citizen status on Jamal, and in 2006 the city named a street after him. Quite a step down from Rue Eisenhower and Place du Général Patton. But the Mumia cause soon faded—when everyone (but Parisian politicians) realized that he was guilty. In his book Dude, Where's My Country, Michael Moore admitted that "Mumia probably killed that guy."

Perhaps that's one reason why so many folks are skeptical of the various innocence projects which seem heavy on the rhetoric and loose with the facts.

Posted by Steven K. Erickson at 09:27 AM | Permalink | Comments (0) | TrackBacks (0)

As mentioned previously, the idea that pedophilia is a mental illness on par with schizophrenia or other strongly biologically caused illnesses of the mind is weak. Yet that hasn't stopped many from suggesting otherwise. And when it comes to the civil commitment of sex offenders, the Supreme Court has concluded that a link between a mental abnormality and volitional control is necessary to justify commitment.

To establish whether someone is a sexual predator, courts almost always rely on psychological experts to ascertain whether the criteria are met. Even if states retain considerable leeway in defining the mental abnormalities and personality disorders that make an individual eligible for commitment, the experts must utilize behavioral science to arrive at their conclusions. After all, that's why the courts entertain behavioral experts in these matters instead of, say, automotive experts. Like most areas of science, behavioral science experts use tests to help them formulate their opinions; and in the area of sex offender assessments, the tests used vary widely and are applied in a variety of clinical and legal situations. But the sheer ease in which these same tests can confirm a mental abnormality in one case and suggest a high risk for recidivism among someone without mental illness in another says a lot about the strange marriage between behavioral science and criminal law.

Continue reading "What's in a Name? " »

Posted by Steven K. Erickson at 05:49 AM | Permalink | Comments (0) | TrackBacks (0)

When one reads stories like this, it's easy to understand the public sentiment for strong punishments against sex offenders. Likewise, the horrific story of Megan Kanka which spurred the development of the various sex offender registries is another reminder why public and legislative sentiment is so inclined to favor restrictive measures against sex offenders.

But as the wise saying goes, good intentions aren't enough in this life. Perhaps this is the case with some of our sex offender policies. For instance, Doug Berman points us to a news story from St. Louis Post-Dispatch, headlined "Technology keeps eye on sex offenders."

Continue reading "Thinking Carefully About Sex Offender Policies " »

Posted by Steven K. Erickson at 05:58 AM | Permalink | Comments (0) | TrackBacks (1)

Jose Padilla was sentenced to 17 years, 4 months for conspiracy to commit terrorism, Curt Anderson reports for AP. He is a U.S. citizen who was detained on charges of a "dirty bomb" plot, leading to this Supreme Court decision on jurisdiction in habeas corpus cases.

The sentence today does not reflect the most serious charges against Padilla. The information gained from him during interrogation is inadmissible in a regular criminal trial under the Miranda rule.

The AP story says, "Padilla's lawyers argued for a lenient sentence," meaning no more than 10 years. But he has gotten off leniently. If even a portion of the plots alleged are true, he is guilty of "levying war against [the United States], or ... adhering to their Enemies, giving them Aid and Comfort," U.S. Const. Art. III § 3, i.e., treason. The appropriate punishment for that crime is death.

Posted by Kent Scheidegger at 09:43 AM | Permalink | Comments (0)

In Calloway v. Montgomery, No. 07-1148 (USCA7, Jan 14, 2008), Judge Evans has some fun with a murderer who ducked the rap by adopting the unlikely alias of Robert Ducks. It actually worked for 22 years. The opinion deals with two issues: (1) What is the "clearly established" Supreme Court precedent on lesser included offense instructions in noncapital cases? Answer: there isn't any. (2) Does it present an Apprendi problem for a judge to decide which local offense a prior offense from another jurisdiction corresponds to? Answer: no. "Almendarez-Torres still lives."

Posted by Kent Scheidegger at 01:57 PM | Permalink | Comments (1)

The U.S. Supreme Court's Monday orders list is here. No surprises. The cases granted for briefing and argument this term were announced after the conference on Friday, including the Giles case discussed here.

Among the cases turned down today is Black v. California, the California Supreme Court's decision on remand after Cunningham. See People v. Black, 41 Cal. 4th 799, 161 P.3d 1130 (2007).

Orin Kerr has this post at VC on the oral argument in Virginia v. Moore this morning. "On the whole, the argument went extremely well for Virginia. In the first half hour, the Justices seemed to think Virginia's position was so obviously correct that they appeared rather bored." Look for a frothing denunciation of the opinion in the 2009 pocket part of LaFave's Search and Seizure.

Posted by Kent Scheidegger at 09:14 AM | Permalink | Comments (0)

On New Year's Day in Stockton, California, Lynette Denney died, "for the second time," reports Sara Cardine in the Stockton Record. In 1980, when she was 22, Angelo Michael Melendez shot her in the head and left her for dead. Lynette had refused to have sex with Melendez, and he shot her "at point-blank range under each eye." Miraculously, she didn't die, but complications following surgery "caused her to fall into a permanent, semi-vegetative state." As described in the story, her family cared for her for the next 27 years.

And what sentence did Melendez get for this crime? A mere seven years, and he was released on parole after five. Not only was that a grossly inadequate sentence as a matter of just deserts, but it left this monster free to do it again, and the second time he made sure the victim did not survive. Melendez is presently on death row for the murder of 19-year-old Koi Wilson, also of Stockton.

In 1987, in reaction to the Larry Singleton fiasco, the California Legislature created the crime of aggravated mayhem, Penal Code section 205, punishable by an indeterminate life term. Had this law been in effect in 1980, Melendez could have been adequately punished for the crime against Lynette Denney, and Koi Wilson would probably still be alive.

When you hear calls to roll back sentencing laws and repeat the mistakes of the 1960s, remember Lynette and Koi.

Posted by Kent Scheidegger at 03:11 PM | Permalink | Comments (1)

Lili O. Graue, David T. R. Berry, Jessica A. Clark, Myriam J. Sollman, Michelle Cardi, Jaclyn Hopkins, & Dellynda Werline (2007), Identification of Feigned Mental Retardation Using the New Generation of Malingering Detection Instruments: Preliminary Findings, Clinical Neuropsychologist, 21(6), 929-942.

Abstract: A recent Supreme Court decision - Atkins v. Virginia, 536 U.S. 304 (2002) - prohibiting the execution of mentally retarded (MR) defendants may have raised the attractiveness of feigning this condition in the criminal justice system. Unfortunately, very few published studies have addressed the detection of feigned MR. The present report compared results from tests of intelligence, psychiatric feigning, and neurocognitive faking in a group of 26 mild MR participants (MR) and 25 demographically matched community volunteers asked to feign MR (CVM). Results showed that the CVM suppressed their IQ scores to approximate closely the level of MR participants. WAIS-III and psychiatric malingering measures were relatively ineffective at discriminating feigned from genuine MR. Although neurocognitive malingering tests were more accurate, their reduced specificity in MR participants was of potential concern. Revised cutting scores, set to maintain a Specificity rate of about .95 in MR clients, were identified, although they require cross-validation. Overall, these results suggest that new cutting scores will likely need to be validated to detect feigned MR using current malingering instruments.

The authors are all with the University of Kentucky, Lexington. Research Digest Blog has this summary.

Posted by CJLF Staff at 04:33 PM | Permalink | Comments (0) | TrackBacks (0)

Doug Berman highlights a potential case that might be granted cert by the Supreme Court involving a 30 year sentence for a teen who killed his grandparents when he was 12 years old. Ed Silverman adds an interesting twist to the case: apparently the convicted defendant, Christopher Pittman, was taking the antidepressant Zoloft at the time of the killings. There's been a lot of allegations that antidepressants have the propensity to cause suicides, particularly in children. Yet there's strong evidence against this notion (including an international study). The link between antidepressants and violence against others is even less compelling (View image)

Update: The Last Psychiatrist has this very good post about the misinterpretation of a study examining the perception of violence, kids, and mental illness:

I had thought the entire infrastructure of psychiatry rested on the very foundational idea that psychiatric disorders, especially depression, are responsible for increased risk of violence to the self. And these quotes are even more weird given that they come from Ohio and Indiana-- the two states responsible for over half the increase in female youth suicides in the whole country. You know, the increase that everyone is blaming on antidepressants.

But words are lies, and you can use loose language like "violence" and "dangerous" and "youth" and "kids"-- bending its meaning to whatever you need it to mean at that moment-- to make any point you want. The actual arguments for this position can be be flipped when necessary (e.g. Nasrallah saying a school shooting isn't "evil" but "medical illness.") You can do this if you manipulate words, e.g. conflating school shooting and suicide to "violence," and then making "violence" mean what you need it to mean at that moment.

Posted by Steven K. Erickson at 08:42 AM | Permalink | Comments (0) | TrackBacks (1)

The U.S. Supreme Court announced three opinions today on federal sentencing matters. We won't be covering them much here. There is commentary at SL&P and SCOTUSblog. In a nutshell:

Watson v. United States rejected the preposterous notion that a person "uses" a gun within the meaning 18 U. S. C. §924(c)(1)(A) by receiving it in trade for drugs.

Kimbrough v. United States held that under the post-Booker federal sentencing system, a judge can decide that the much-criticized guideline that considers an amount of crack cocaine equal to 100 times as much powder is unreasonable and need not be followed.

Gall v. United States held that under the same post-Booker regime, appellate courts consider all district court sentencing decisions under the same abuse-of-discretion standard, not a different standard depending on whether it's inside or outside the guidelines.

The orders list had no grants, as expected given that grants were announced Friday.

Posted by Kent Scheidegger at 10:15 AM | Permalink | Comments (1) | TrackBacks (0)

The California Supreme Court decided today that a criminal court can order restitution to the spouse of a homicide victim for the lost support the victim would have provided. The opinion in People v. Giordano, S138382 is here. Justice Moreno wrote the opinion, joined by 5 others. Justice Kennard dissented.

Posted by Kent Scheidegger at 05:13 PM | Permalink | Comments (0) | TrackBacks (0)

Yesterday, the California Court of Appeal decided the case of Anna Ayala, who infamously tried to defraud Wendy's by putting a human finger in her own chili. Henry Lee of the SF Chron has this story. The case involves issues under the U.S. Supreme Court's decision in Cunningham v. California and the California Supreme Court's follow-up in People v. Sandoval. As we all know, "eeeewwww, gross!" is not one of the sentencing factors specified in the California Rules of Court.

Continue reading "Cunningham, Chili, & Fingers" »

Posted by Kent Scheidegger at 10:57 AM | Permalink | Comments (0)

Time constraints prevent me for commenting at length about these articles, but both look quite interesting (subscription required):

Swanson JW, Van Dorn RA, Swartz MS, Smith A, Elbogen EB, Monahan J. Alternative Pathways to Violence in Persons with Schizophrenia: The Role of Childhood Antisocial Behavior Problems. Law Hum Behav . 2007 Jun 30.

Abstract: Violence in schizophrenia patients may result from many factors besides the symptoms of schizophrenia. This study examined the relationship between childhood antisocial behavior and adult violence using data from the NIMH CATIE study. The prevalence of violence was higher among patients with a history of childhood conduct problems than among those without this history (28.2% vs. 14.6%; P < 0.001). In the conduct-problems group, violence was associated with current substance use at levels below diagnostic criteria. Positive psychotic symptoms were linked to violence only in the group without conduct problems. Findings suggest that violence among adults with schizophrenia may follow at least two distinct pathways—one associated with premorbid conditions, including antisocial conduct, and another associated with the acute psychopathology of schizophrenia.

Alter AL, Kernochan J, Darley JM. Transgression Wrongfulness Outweighs its Harmfulness as a Determinant of Sentence Severity. Law Hum Behav. 2007 August.

Abstract: When students suggest sentences for criminal offenders, do they rely more heavily on the harmfulness or on the wrongfulness of the offender's conduct? In Study 1, 116 Princeton University undergraduates rated the harmfulness and wrongfulness of, and suggested appropriate sentences for, a series of crimes. As expected, participants emphasized wrongfulness when choosing an appropriate criminal punishment. In Study 2, 33 Princeton undergraduates made similar ratings for violations of the University Honor Code, and rated their contempt for fabricated amendments to the Code that required sentencers to focus either only on harmfulness or only on wrongfulness. Again, sentences more closely reflected wrongfulness ratings, and participants were more contemptuous of the harmfulness-based proposal. We also consider the theoretical and practical implications of these findings for sentencing laws and policy.

Posted by Steven K. Erickson at 05:36 AM | Permalink | Comments (0)

As I mentioned before, there's an interesting twist to the sex offender problem which involves the growing recognition that women can be sex offenders as well as men. This story from Interested-Participant, however, gives me pause:

The trial of 41-year-old mother-of-two, Phill Raije Rian, for sexual assault of a 16-year-old neighborhood boy concluded this month. Rian allegedly performed oral sex on the teen, who she knew because he mowed her lawn, on three occasions, each of which lasted between 15 and 30 minutes.

Rian was reportedly sentenced to 23 years in prison for these crimes. Being hard on sex offenders is understandable and right in most cases. But when the crimes involve the facts that this case does, one wonders whether this is the best sentence for all involved, especially when we consider that many offenders convicted of homicide crimes do not receive such lengthy sentences.

Posted by Steven K. Erickson at 06:32 AM | Permalink | Comments (1)

The California Supreme Court has released its opinions in People v. Black, following a GVR for reconsideration in light of Cunningham v. California, and People v. Sandoval. Here are some notes following a very quick read.

For cases pending on appeal, only one valid finding of an aggravating circumstance is needed to make the defendant eligible for the upper term and therefore satisfy the requirement of Cunningham and allow affirmance of the sentence. In Black's case, the jury made a finding that rendered Black ineligible for probation under California law and was also an aggravating circumstance for the term choice. The judge may find additional circumstances to inform the sentence choice. The sentence was therefore affirmed outright.

For cases where a remand is necessary, the Court in Sandoval eliminated the requirement that an aggravating circumstance be found, instead giving the judge the discretion to choose any of the three terms without such a finding. This is the same fix the Legislature enacted, but the statute did not specify whether it applied to pending cases. It also follows, in general approach, the remedial portion of United States v. Booker, where the U.S. Supreme Court took the mandatory portion of the law that created the constitutional problem and made it not mandatory. An ex post facto objection to such a fix is discussed and rejected.

Both opinions are unanimous, by Chief Justice Ronald George.

Posted by Kent Scheidegger at 10:11 AM | Permalink | Comments (0)

The California Supreme Court has announced that it will issue opinions in two coping-with-Cunningham cases tomorrow, People v. Black and People v. Sandoval. This cases relate to how the courts will cope with existing cases after the U.S. Supreme Court overturned a part of California sentencing law. The Legislature has enacted a fix for future cases.

Posted by Kent Scheidegger at 09:13 AM | Permalink | Comments (0)

The Ninth Circuit partially fixed one of its own errors today. The case involves extradition, sentencing, and the doctrine of specialty. In another case decided Friday, we saw a stunning display of how far some lawyers will go making "disproportionality" arguments.

Continue reading "Extradition and Sentencing" »

Posted by Kent Scheidegger at 11:34 AM | Permalink | Comments (0)

It's been clear for some time that Congress overreacted to the crack "epidemic" in the mid-1980s by providing the same sentence for 5 grams of crack cocaine as for 500 grams of powder. Stated another way, a major pusher with 499 grams of powder cocaine gets a lower sentence than a smaller fish with 5 grams of crack. Though it is generally agreed something needs to be done, there has been deadlock on exactly what to do.

Senators Sessions, Pryor, Cornyn, and Salazar have introduced S. 1383, available through Thomas. This bill reduces the powder threshold for the mandatory minimum from 5kg to 4kg and increases that for crack from 5g to 20g, leaving a 20/1 ratio. The bill also seeks to increase the sentencing spread between leaders and minor followers in drug enterprises, directing the Sentencing Commission to increase the former and decrease the latter.

Senator Biden has introduced S. 1711 (hat tip, SL&P). The text isn't on Thomas yet, but his introductory remarks are in the Congressional Record at S8614-S8615. One historical nugget in his remarks: The Reagan Administration proposed a 20/1 ratio. It was Sens. Biden, Byrd, and Dole who upped it to 100.

Posted by Kent Scheidegger at 01:36 PM | Permalink | Comments (0)

The U.S. Supreme Court today issued its long-awaited decision in Rita v. United States. The Court held that a federal court of appeals can presume on appeal that a within-Guideline sentence is reasonable in the post-Booker regime. Copious commentary on the direct implications of this decision for federal sentencing is available at Sentencing Law and Policy. Lyle Denniston at SCOTUSblog had this analysis at 10:03 a.m. A commenter asks how he can do that. Good question.

Also of interest are the implications of this decision for Blakely challenges to state sentencing systems, particularly the "how the heck do we cope with Cunningham" cases presently pending before the California Supreme Court. I think the decision bodes well for the argument that only minimal adjustment is needed for the existing cases and that the legislative fix for new cases is valid.

In the old cases, the defendants are claiming that all facts going into the decision to impose the upper term must be found by the jury. Nope.

This Court’'s Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence.... The Sixth Amendment question, the Court has said, is whether the law forbids a judge to increase a defendant’'s sentence unless the judge finds facts that the jury did not find (and the offender did not concede).

The California law at issue in Cunningham did forbid the upper term unless the judge found one aggravating fact. After that, Rita confirms, judge fact-finding is okay. In the new law, there is no fact-finding requirement at all.

Posted by Kent Scheidegger at 11:37 AM | Permalink | Comments (1)

The U.S. Supreme Court dropped the federal sentencing case of the deceased Mario Claiborne, as expected. The order reads:

The Court is advised that the petitioner died in St. Louis, Missouri, on May 30, 2007. The judgment of the United States Court of Appeals for the Eighth Circuit is therefore vacated as moot. See United States v. Munsingwear, Inc., 340 U. S. 36 (1950).

This order is unlike those issued in state cases, where the high court only vacates its own order granting certiorari and dismisses the petition. Compare Pasch v. Illinois, 510 U.S. 910 (1993). In this federal case, the lower court decision is vacated. The citation to Munsingwear emphasizes that the lower court decision is no longer precedent.

In other Supreme Court action, the Court noted once again the deference due the trial judge in juror challenge questions in Uttecht v. Brown. The decision was 5-4 along the usual lines. Mark Sherman reports for AP. Further comment is here.

The Court also summarily reversed the Tenth Circuit in a prisoner rights case, admonishing them not to be too strict in pleading requirements, especially for pro se prisoners. The decision in Erickson v. Pardus is here. Justice Thomas dissents on the merits, and Justice Scalia dissents from the decision to grant certiorari.

Posted by Kent Scheidegger at 08:03 AM | Permalink | Comments (0)

The U.S. Supreme Court denied certiorari this morning in Washington v. VanDelft, No. 06-1081, regarding the application of the Apprendi-Blakely line of cases to consecutive sentencing. The orders list is here. The certiorari petition is available here via SCOTUSblog.

Meanwhile, on the opposite coast, the California Supreme Court hears oral argument in People v. Sandoval, S148917. In People v. Black, 113 P.3d 534 (2005), Cal. Supreme had rejected the proposition that Blakely impacts consecutive sentencing in California. Although not squarely within the question presented (which is just how to cope with Cunningham on the upper term issue), Sandoval maintains that Cunningham requires reexamination of that aspect of Black as well. CJLF's brief is here. The consecutive sentencing discussion is on brief pages 10-14, pdf file pages 20-24.

Posted by Kent Scheidegger at 08:42 AM | Permalink | Comments (0)

The Maryland General Assembly has passed a bill to make twice-convicted drug-dealer eligible for parole, according to this story by Lisa Rein in the Washington Post (h/t Corrections Sentencing). Apparently in Maryland parole can be granted after a mere quarter of the sentence has been served. Gov. O'Malley is undecided whether to sign it. "But he faces a conflict between his liberal sensibilities and his experience as a two-term mayor of Baltimore, where he saw daily homicides committed by drug addicts." That says a lot about "liberal sensibilities."

There is much discussion about the importance of treatment for drug addicts. But the devil is in the details. A mandatory treatment law must have teeth, or else it is just a fraud on the public, promising treatment but really just lowering sentences.

Posted by Kent Scheidegger at 04:01 PM | Permalink | Comments (0)

A federal judge has ruled that the motion Talibanista John Walker Lindh made for reduction of his sentence can remain secret, according to this AP story by Larry Neumeister. The AP had submitted an FOIA request for the petition, hoping "there might be allegations of government misconduct in the papers."

The government responded that the documents should be kept secret because they are similar to personal and medical records and because no evidence of government misconduct in the case had been alleged.

The judge actually bought that.

U.S. District Judge Loretta A. Preska decided the documents can remain sealed because prosecutors said Lindh's motion did not contain allegations of government misconduct.

Huh? Since when is a defendant's motion to reduce his sentence analogous to a medical record? Criminal defendants are prosecuted in the name of the general public. We are the real parties to the action, and the prosecutor is only our advocate. Criminal cases are the public's business, and their records should be open except for special exceptions to protect the privacy of innocent parties. The public interest in open proceedings is not limited to allegations of government misconduct.

Posted by Kent Scheidegger at 05:29 PM | Permalink | Comments (0)

Tomorrow is federal sentencing day in the Supreme Court, with the much anticipated oral arguments in Rita v. United States, No. 06-5754, and Claiborne v. United States, No. 06-5618. An interesting article by Frank Bowman is available here via SL&P. While suggesting what the Court should do about Blakely, Bowman reiterates his belief that it was a "huge mistake" in the first place. I second the motion. A commenter at SL&P suggests he dump the hackneyed Humpty Dumpty quote at the top of the article. I'll second that motion, also.

Also at SL&P, Doug Berman gives us this "shameless self-promotion" of links to his prior work on the cases and on Blakely and Booker issues generally.

Lyle Denniston at SCOTUSblog has this post. The Medill write-ups are here and here.

Posted by Kent Scheidegger at 08:25 AM | Permalink | Comments (1)

Andy Furillo of the SacBee has a more extensive article now on the hearing on SB 40, the fix to the Cunningham problem. This prospective-only fix was supported by representatives of both the prosecution and defense sides. The measure will probably sail through the Legislature from this point.

But what about the old cases? The L.A.D.A.'s representative is quoted saying they are bracing for the wave of habeas petitions. They do not intend to roll over and allow the worst felons to have their sentences reduced to the middle term. They intend to ask to have juries empaneled to find the requisite aggravating fact where necessary and to take up on appeal any decision by a trial judge refusing to do so. This could get very expensive.

Just how expensive depends on how far back Cunningham is retroactive for cases already final on appeal. The possible dates are the dates of Cunningham itself (not likely), Blakely (the correct answer, IMHO) or Apprendi. We would know the answer to the Blakely retroactivity question if the Supreme Court had chosen an appropriate vehicle to answer it, but they misstepped with Burton, as previously noted here.

Posted by Kent Scheidegger at 08:59 AM | Permalink | Comments (0)

Senator Gloria Romero, who chairs the California Senate Public Safety Committee, has introduced a legislative fix for the Cunningham v. California problem. For technical reasons, the new bill is an "amendment" to an unrelated previous bill that deletes and replaces the entire text of the bill, SB 40. Update: Andy Furillo of the Sacramento Bee reports that the bill passed out of committee 4-0.

The key passage (and only substantive change) is this amendment to Penal Code § 1170(b):

When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime the choice of the appropriate term shall rest within the sound discretion of the court.

The requirement of a finding of fact to impose the upper term, included in the original Determinate Sentencing Law as a protection for the defendant, would be deleted. In the surreal world of Blakely, this protection renders the statute unconstitutional, and its deletion reinstates the statute. As a practical matter, though, it wasn't much of a protection, because there are no real people or real crimes for which some aggravating fact cannot be found. So, if this amendment goes through, California sentencing will operate as it did before Cunningham for essentially all practical purposes.

Continue reading "Cunningham Legislative Fix" »

Posted by Kent Scheidegger at 02:38 PM | Permalink | Comments (2)

I've seen this movie before. In the wake of Penry v. Lynaugh, 492 U.S. 302 (1989) many Texas defense attorneys made the Catch-22 argument. The Eighth Amendment, as amended interpreted by the Supreme Court, says you cannot sentence a defendant to death without considering mitigating factors beyond those contained in the Texas special issues. However, the Texas statute (until its 1991 amendment) provided no authority for the jury to consider additional factors. Therefore, the argument went, no one could be sentenced to death in Texas. The Texas judges didn't buy it and proceeded to craft ameliorative instructions. The aftereffects are presently before the Supreme Court in Smith v. Texas.

Now this argument is being tried in noncapital cases in California, in the wake of Cunningham. Virginia Hennessey of the Monterey Herald reports on a case where a similar argument is being advanced. The main charge, murder with special circumstances, presents no Cunningham problem. California law has long provided for a jury verdict beyond a reasonable doubt on those circumstances. However, Daryl Lipska is also charged with lesser offenses, raising the issue of an upper term under the Determinate Sentencing Law if he beats the murder rap. The defense argument is that the Legislature hasn't provided a procedure for juries to make the additional findings in DSL cases. The implication is that until the Legislature acts, nobody can receive the upper term in California, no matter how aggravated the case.

That outcome is so patently unjust and contrary to the purpose of the law, it is hard to believe it will get any traction. We know from bitter experience that there is no such thing as an argument so far-fetched that no judge will accept it, but it is virtually certain that the California Supreme Court will reject this argument in the end.

The California District Attorneys' Association had its winter meeting last week. The general feeling there was that Cunningham is a manageable problem.

Posted by Kent Scheidegger at 01:19 PM | Permalink | Comments (1)

A reader over at SL&P notes that the Supreme Court on Jan. 16 asked the Solicitor General to respond to a certiorari petition claiming that 21 U.S.C. § 841 violates multiple constitutional rights. That section specifies punishment for possessing various quantities of drugs, and it equates 5 grams of crack with 500 grams of powder cocaine. The case is Jackson v. United States, No. 06-8391. The Ninth Circuit's unpublished memorandum (by Judges Pregerson, Nelson, and Graber) simply notes that the arguments are foreclosed by circuit precedent.

Posted by Kent Scheidegger at 02:59 PM | Permalink | Comments (0)

One version of California Sentencing Commission legislation has seen the light of day. AB 160 by Assemblywoman Lieber seems to be a skeleton bill. It creates the commission and says it will issue guidelines, but how the guildelines fit or replace the current system is not specified.

Politically, the bill calls for six members of the commission to be appointed by legislative leaders, outnumbering the five appointed by the governor. That is very bad news and reason enough for fierce Republican opposition and, if it comes to that, a veto, and, failing that, a referendum. In California's unusual politics, the leadership of the Legislature is solidly in the hands of the left wing of the Democratic party. Republicans and moderate Democrats (largely from the Central Valley) together constitute a majority, but those moderates never become the leaders. The leaders come from the most deeply partisan areas where being on the fringe wins the primary and the general election is a foregone conclusion. I hesitate to say that the legislative leaders actually care more about the criminals than the victims, but their actions are often consistent with such a view. Any plan that puts this crowd in de facto control of California sentencing needs to be killed, and the sooner the better.

Posted by Kent Scheidegger at 04:10 PM | Permalink | Comments (0)

The attempt of the California Supreme Court and Attorney General to Blakely-proof California's three-tier sentencing system with a dubious analogy to post-Booker federal sentencing was shot down today. The U.S. Supreme Court didn't buy it in a 6-3 decision in Cunningham v. California. The requirement that the upper term could be imposed only on a finding of an aggravating circumstance replaced an earlier system of unfettered discretion in the parole board, after the court sentenced the defendant to an indeterminate term. The determinate sentencing law provided more structure and a more predictable relationship between crime and punishment. Let no good deed go unpunished.

Update: The Governor's statement, in its entirety: "We are working with the Attorney General to determine the impact this decision will have on the state. I support longer sentences for criminals who deserve them. As Governor I will work to ensure that this decision will not be a threat to public safety."

Posted by Kent Scheidegger at 08:31 AM | Permalink | Comments (1)

Our collection of briefs in Burton v. Stewart, the Blakely retroactivity case, has been updated to include the supplemental brief for the state.

Posted by Kent Scheidegger at 03:08 PM | Permalink | Comments (0)

Gary Fields has this article in the Wall Street Journal on sentencing issues in the new Congress, with the crack-powder sentencing disparity at the top of the list of incoming Judiciary Chairman John Conyers. There seems to be broad agreement that it is wrong for the sentence for 5 grams of crack to be greater than the sentence for 499 grams of powder. The story quotes representatives of both police chiefs and rank-and-file officers opposing reduction of crack sentencing. The chiefs say the answer to the disparity is to increase sentences for powder.

Families Against Mandatory Minimums weighs in saying to evaluate crack sentencing separately and not compare it to powder. That's a curious argument. There are enough children of movers and shakers doing coke that increasing powder sentences to present crack levels isn't going to happen, and so the disparity argument would seem to be their most effective one. FAMM's argument to evaluate crack sentencing on its own merits seems to overestimate the likelihood that a majority will agree with them on the merits.

Continue reading "Cocaine and Congress" »

Posted by Kent Scheidegger at 08:18 AM | Permalink | Comments (0)

Our prisons are chock full of "nonviolent" felons who can be let out without any danger to the rest of us, the drumbeat goes. From San Francisco comes a cautionary tale.

Demian Bulwa and Wyatt Buchanan report in the SF Chron that Marlon Ruff was classified as a "nonviolent" prisoner. Despite the fact he was convicted of robbery, he was classified as nonviolent because he hadn't used a weapon. He "only" punched an armored car guard and stole $4600. He wasn't exactly released, but he was placed in a minimum-security program from which he easily walked away.

Last Friday, the "nonviolent" Mr. Ruff murdered San Francisco Police Officer Bryan Tuvera, who was attempting to take him into custody. Officer Tuvera's funeral will be this coming Friday.

Before we decide on any lighter sentences for "nonviolent" felons, we should be considerably more specific about what that means.

Posted by Kent Scheidegger at 08:01 AM | Permalink | Comments (1)

The Bureau of Justice Statistics has released its annual report on prison populations. As usual, the report emphasizes the number of people in prison and what they call the "incarceration rate," i.e., the number in prison relative to the total population. The latter invariably prompts much hand-wringing every time it is announced, even though by itself it is a nearly useless number that tells us almost nothing about policy.

This "incarceration rate" is actually made up of at least two factors which must be determined and considered separately to see anything meaningful. The number of prisoners per capita is the product of prisoners per criminal times criminals per capita. For the algebraically inclined, Pr/Pop = Pr/Cr * Cr/Pop. The first factor is the percentage of criminals society chooses to lock up; the second is the percentage of people who choose to commit crimes. Because the two factors represent different choices by different people, it makes little sense to lump them together, and the undifferentiated product of the two tells us very little. A high "incarceration rate" could mean a society has strict sentencing policies, or it could mean the society is plagued with a high crime rate, or it could be a combination of the two.

The first factor could actually be broken down further as prisoners per criminal we catch times the proportion of criminals we catch. That separation would further separate our ability and determination to catch criminals from our determination to punish the ones we catch.

The situation is further complicated by interrelation of the factors. The probabilities of being caught and of being punished if caught are factors that go into a rational actor's decision to commit a crime. Were the low sentencing rates of the 60s and 70s a cause of the high crime rates of the 80s and 90s and the subsequent high sentencing rates? Quite possibly. The increase in prison population in California from the Three Strikes Law was much less than projected. That may be in part because the law contributed to California's rapidly declining crime rate. A dated but possibly still interesting article on these topics by yours truly and Michael Rushford is available here.

Stand by for a raft of simplistic denunciations that ignore these issues and cite the "incarceration rate" as proof that America is a cruel and heartless society. Bonus points to any reader who finds a single mention of how many people have not been robbed, raped, or murdered because we toughened up sentencing in the 80s and 90s.

Posted by Kent Scheidegger at 03:37 PM | Permalink | Comments (5)

Aryan Brotherhood honcho Barry "The Baron" Mills was sentenced to no incremental punishment at all for the killings of black inmates Frank Joyner and Abdul Salaam in a prison race riot in 1997. On paper, he received four consecutive life terms for these and other crimes, but more prison terms mean nothing for a person already in prison for life. As noted here, the jury voted 9 to 3 for the death penalty, but in the surreal world of federal capital sentencing, the 3 prevail over the 9.

"Defense attorneys said they were disappointed, but not surprised, with the sentences," according to this AP article by Gillian Flaccus, and they think they have good arguments for appeal. Let's hope so. A life sentence that results from deadlock is not protected by the Double Jeopardy Clause. See Sattazahn v. Pennsylvania, 537 U.S. 101 (2003).

Continue reading "Aryan Brotherhood Sentencing" »

Posted by Kent Scheidegger at 04:34 PM | Permalink | Comments (0)

   I will split the discussion of the Burton argument into two parts, jurisdiction first and retroactivity in a later post.

   The Court is clearly well aware of the jurisdictional successive petition problem in this case, and fears that it might make a major change in successive petition law by inadvertence appear to be unfounded. Most observers appear to think the Court will dispose of the case on jurisdiction. See, e.g., the AP story by Mark Sherman and Lyle Denniston at SCOTUSblog.

   Burton filed two federal habeas petitions: one challenging his conviction while his resentencing was still on appeal in the state courts, and the present petition after the state courts had rejected his sentencing claims. The second petition is therefore successive and subject to the very strict limits on successive petitions in the Antiterrorism and Effective Death Penalty Act of 1996. Jeffrey Fisher, for the defendant, says on pages 15 and 17 that the district court should have dismissed the first petition for lack of jurisdiction but that there is no proper objection to the second. This is so wrong it is painful to read. When a prisoner has exhausted state remedies on some claims but not others and files a habeas petition on the exhausted claims, the habeas court does not lack jurisdiction to consider them. Rose v. Lundy, 455 U.S. 509 (1982) is very clear that if a petitioner does proceed with his exhausted claims, he risks being barred by the successive petition rule if returns later with the others. Ideally, the district judge should advise a pro se petitioner of this consequence, but it is not required. As our brief notes at page 6, there is a warning in the form that prisoners are required to use.

   From their questions on pages 12-15, it appears that Justices Kennedy, Souter, and Ginsburg are aware of how wrong Fisher's argument is. At 15:20-23, Justice Souter says, "But if the first proceeding was not in fact jurisdictionally barred, then you would lose under the second and successive objection in this case, right?" Right.

   On pages 26-29, the state DSG makes a fact-specific argument based on the timing of the judgments in this case. It's a valid argument and a possible winner, but I personally hope the Court does not rule on this basis. The precedent thus set would leave open the question of whether prisoners can file two federal habeas petitions when the timing is different from this case, a question which should be answered with a loud, clear "no."

   The federal ASG argues (p. 45) that it doesn't matter for federal prisoners because the statute is different. 28 U.S.C. § 2255 authorizes a motion to vacate, set aside, or correct a sentence and so must necessarily follow any resentencing required by the decision on the direct appeal. A point that could have been made here is that Congress understood when it enacted that statute that is was a complete replacement for habeas corpus as a collateral attack, so this statute illustrates that habeas also should follow any required resentencing.

   On rebuttal, Fisher claims again that the state should have objected to the first petition and is now barred from objecting to the second (p. 50). Nope.  Nonexhaustion of other claims not mentioned in the petition is no ground for objecting to a habeas petition. You can't default an issue by not making a meritless objection, and you have no obligation to warn your opponent he is defaulting claims he may want to make in the future. Further, the successive petition rule in AEDPA goes to subject matter jurisdiction. Such issues cannot be defaulted.

   The transcript tends to confirm what the observers of the argument concluded. This case will probably go down on the successive petition rule. Doug Berman thinks this will be a "major ruling on habeas law," but I think it will be relatively minor as Supreme Court cases go. It will confirm what the habeas lawyers have known for a long time, at least since Lundy in 1982.

Posted by Kent Scheidegger at 03:31 PM | Permalink | Comments (0)

UPDATE 2: The transcript is available.

UPDATE (10:35am PST Tuesday): Lyle Denniston reports at SCOTUSblog that the jurisdictional question was indeed a major portion of the argument. We will wait for the transcript before commenting on the Teague v. AEDPA issue.

---------------------------------------------------------------------------

The long awaited argument in Burton v. Waddington is tomorrow, and the high court will consider the retroactive application of Blakely v. Washington to sentences already affirmed on appeal when that decision came down. Here are links to CJLF's press release, briefs in the case (including ours), and Lyle Denniston's comments on SCOTUSblog.

Press coverage may be limited as there might be other newsworthy events tomorrow, but the Court's same-day transcript should be available, and we will post a link here.

Here are a couple of things to look for. First, how much interest is there in the question of whether the Court even has jurisdiction of this apparently successive petition? To rule that this petition is not successive would be a massive change in habeas corpus law. Yet petitioner is acting like it's no big deal, not mentioning it in his main brief and devoting only four pages to it in the reply.

Second, will petitioner stick to his argument that Blakely was simultaneously not "new" and "watershed"? That is, can he say with a straight face that Blakely changed nothing and Blakely changed everything? Which Justice will pounce first if he does?

Third, will Justice Scalia remember that he wrote, on the very same day he wrote Blakely, "it is unlikely that any [rule qualifying for retroactivity on habeas] has yet to emerge."

Posted by Kent Scheidegger at 05:22 PM | Permalink | Comments (0)

The Supreme Court granted certiorari today in two cases to further explore the fallout from United States v. Booker regarding how the "reasonableness" of a sentence fits with Sentencing Guidelines after Booker's demotion of the Guidelines to advisory status. Here are the docket and Eighth Circuit opinion in Claiborne v. United States, No. 06-5618, and the docket and Fourth Circuit opinion in Rita v. United States, No. 06-5754. The Court did not put the briefing on a fast track, so we are probably looking at argument at the very end of February at the earliest. Lyle Denniston has this post at SCOTUSblog, and Doug Berman at SL&P is overjoyed.

Posted by Kent Scheidegger at 11:34 AM | Permalink | Comments (0)

Louis Morin at UCLA asked us to post the following announcement, which we are pleased to do:

Announcing new SSRN journal: Corrections and Sentencing Law and Policy. UCLA law professor Sharon Dolovich and Washington University law professor Margo Schlanger are co-editors of a new Social Science Research Network journal, Corrections and Sentencing Law and Policy. Corrections and Sentencing Law and Policy Abstracts will provide a forum for works-in-progress, abstracts, and completed articles dealing with the broad range of doctrinal, theoretical, and policy issues relating to the punishment, sentencing, and re-entry of convicted criminal offenders. Topics include (but are not limited to) prison and jail conditions and life; prisoners' rights; probation, parole, and re-entry; prison and jail administration; imprisonment and diversionary sentencing, and the death penalty. The journal also invites submissions dealing with the implications of incarceration and other criminal punishments for families, communities, and society as a whole. Contributions from all disciplines are welcome, and scholars working in this area are encouraged to submit their work.

Continue reading "New SSRN Journal -- Corrections and Sentencing Law and Policy" »

Posted by Kent Scheidegger at 10:34 AM | Permalink | Comments (0)

The "bottom side" briefs have been filed in Burton v. Waddington, the Blakely retroactivity case. The briefs so far (all except the reply) are collected here.

As the State's brief and CJLF's amicus brief point out, the Court made a stunningly poor choice of vehicle for deciding Blakely retroactivity. There is a huge jurisdictional question that the Ninth Circuit just blew by. If the Supreme Court actually affirmed that holding, it would be more important than the question they actually took this case to decide. In addition, Burton's sentence is legally justified entirely on his criminal record without any other facts. The state appellate court so held, and this holding of state law is binding on the federal habeas court. Unless the Court wants to overrule Almendarez-Torres v. United States, there is no Blakely error here.

Posted by Kent Scheidegger at 03:26 PM | Permalink | Comments (1)

In United States v. Mills, the Aryan Brotherhood case noted in the previous post, U.S. District Judge David Carter of the Central District of California held that the Confrontation Clause applies to the entire penalty phase in a federal capital case, not just the factors needed to make the defendant eligible for the death penalty. This decision conflicts with Judge Henry Hudson's opinion in United States v. Jordan, 357 F. Supp. 2d 889 (E.D. Va. 2005). If the district court split develops into a circuit split, which is likely, this dispute is headed for the Supreme Court. In my humble opinion, Jordan is correct.

Continue reading "Aryan Brotherhood Decision" »

Posted by Kent Scheidegger at 04:48 PM | Permalink | Comments (3)

Doug Berman points us to a new blog, Corrections Sentencing, "a place for corrections/sentencing policy readers seeking latest information and research, answers to questions and concerns, or just general conversation on shared worlds." The current (as of Wednesday morning) post is titled "What Works and How do we know it works." It is a discussion of evidence-based policy in sentencing, the idea that policy should be based on methods proven to work with hard evidence rather than ideology. Insistence on hard evidence might have prevented the disaster of the 1960s and 1970s, when our sentencing policy went soft on the unfounded assumption that we knew how to "fix" criminals. Crimes rates soared. As those who have forgotten this history prepare to repeat it, skeptical and critical examination of the proposals are very much in order.

We welcome Corrections Sentencing to the discussion and look forward to a stimulating exchange of ideas and information.

Posted by Kent Scheidegger at 10:54 AM | Permalink | Comments (0)

If there was one thing I thought nearly all Supreme Court-watchers could agree on, it was that the two newest Justices were exactly as we expected them to be: very competent, writing solid opinions, leaning conservative but willing to vote for the other side when the law so requires. Justice Alito's first opinion for the Court, for example, was a unanimous reversal for a South Carolina murderer. So along comes Senator Edward Kennedy, with an op-ed in the Washington Post titled "Roberts and Alito Misled Us." For comments on his comments, see Bench Memos here and the Volokh Conspiracy here.

Morris Hoffman and Stephen Morse have this thoughtful piece in the New York Times on the insanity defense. They note that the concept of responsibility is a moral judgment, not a scientific one, and that the insanity defense should be narrow but not eliminated altogether.

Posted by Kent Scheidegger at 06:40 PM | Permalink | Comments (0)

Doug Berman at Sentencing Law and Policy has this post on the continuing lethal injection controversy. Although we see this issue from very different perspectives, there are two points of agreement: (1) the lethal injection issue is getting attention way out of proportion to its actual importance; and (2) the people who claim that the issue is generating a wholesale reexamination of capital punishment are full of hot air. Doug also has a post decrying the extremely restrictive conditions at "supermax" prisons.

On the other hand, as AP reports he