Recently in Sentencing Category

Oregon votes approved by a 61-39 vote Ballot Measure No. 57: "Increases sentences for drug trafficking, theft against elderly and specified repeat property and identity theft crimes; requires addiction treatment for certain offenders." Final tally here. Info page with link to full text here. An editorial by the Oregonian is here.

SL&P points us to this post at Drug War Chronicle bemoaning the passage of both Measures 57 and 61. They appear to be mistaken. Both the Oregonian editorial and the Secretary of State page linked above indicate that 61 was narrowly defeated.

"Documents show that a suspect in the Chicago murders of three members of Jennifer Hudson's family was arrested for drug possession in June, but state officials didn't revoke his parole," reports John O'Connor for AP.

At this point, of course, William Balfour is only a suspect and has not been charged with, much less convicted of, the murders of three people, including a 7-year-old boy. So, we will not jump to the conclusion that this case illustrates that the "nonviolent offenders" that the hand-wringing crowd assures us can be safely released includes people who will commit some horrible crimes if they are released. It may very well turn out to illustrate exactly that at some point in the future, and we will keep an eye on it.

Update: A later, more detailed story (at the same link) discloses that Balfour's original offense of conviction was indeed violent -- attempted murder and carjacking -- although the parole violation was drug possession. A new warrant for his arrest issued Saturday alleged "possessing a weapon and failing to attend anger management counseling and a substance abuse program."

In 1996, when Congress cracked down severely on habeas corpus petitions by prisoners who had already had one such review, it left an exception for "new rules of constitutional law, made retroactive to cases on collateral review by the Supreme Court." 28 U.S.C. § 2244(b)(2)(A). Cunningham v. California, 549 U.S. 270 (2007), which applied the Apprendi line of cases to California's three-tier system of noncapital felony sentencing, is not a new rule for this purpose, the Ninth Circuit held in Wright v. Dexter yesterday. If it were new, it wouldn't be retroactive, for the same reasons that the Supreme Court held Ring v. Arizona is not in Schriro v. Summerlin, 542 U.S. 348 (2004), but the opinion didn't mention that.

The window of prisoners who get new sentencing proceedings or reduced sentences as a result of Cunningham is small.

The Stockton Record has this editorial on several of the California ballot propositions. Here is the portion on Proposition 5:

"This is a bad idea masquerading as a good law. And what it would do is undermine, more likely destroy, the highly effective drug court system we have now. This proposition is opposed by every Superior Court judge in San Joaquin County, the men and women who daily deal with the shattering results of drug abuse. Cost will be an immediate problem, with the requirement that $150 million be put into the Substance Abuse Treatment Fund to pay for the balance of this year and then $460 million, adjusted yearly for inflation, be allocated every year thereafter. This proposition would set up an untried experiment, create an entirely new oversight bureaucracy and even limit the ability of legislative intervention by requiring a four-fifths vote of the Legislature to change things. That's a nearly impossible threshold, as our recent experience with the two-thirds vote on the state budget demonstrates. We have drug courts, and they work. We don't need a costly new experiment. If changes are needed in drug court, it is the Legislature's responsibility to make them."

In Oregon v. Ice, the Supreme Court heard argument on whether the Apprendi line of cases, requiring jury trial for facts that increase the maximum sentence that may be imposed, should be extended to cover consecutive as opposed to concurrent sentences for multiple crimes. CJLF's amicus brief in the case is here. Our pre-argument press release is here.

The first opinion of the U.S. Supreme Court's new term is out. Moore v. United States is a summary per curiam opinion, spanking the Eighth Circuit for an inadequate job of reconsidering its prior opinion in light of last term's crack sentencing case, Kimbrough v. United States. The government conceded error, so reversal is no big surprise.

A few notes on the Vice-President candidates and crime:

The Pewsitter website has a set of quotes from Gov. Sarah Palin, including this one from her 2006 campaign site:

"I support adequate funding for a strong public safety presence in Alaska. Feeling safe in our communities is something we cannot accept any compromise on. This includes policing in all its forms, the court system, prosecutors and corrections. If the legislature passed a death penalty law, I would sign it. We have a right to know that someone who rapes and murders a child or kills an innocent person in a drive by shooting will never be able to do that again."

The site quoted here is gone, replaced with an auto-refer to the McCain/Palin site.

Sen. Joseph Biden has a record that is decidedly mixed. He had a leading role in the enactment of what is arguably the most notorious sentencing law in modern American history, the law that makes possession of 5 grams of crack cocaine a more serious offense than possession of 499 grams of powder. To his credit, Biden has been candid about his own role in this misstep, explaining it in the Congressional Record, S8614 and S8615. Prior post here.

Sen. Biden also had a leading role in the enactment of the federal death penalty law. The law restored the death penalty for a wide variety of offenses, but it is needlessly complex and poorly written. It is ambiguous on the crucial question of what happens when the jury cannot agree, and the Supreme Court found that it requires a life sentence if even one juror holds out. (In California we have the sensible rule -- a hung jury on penalty is a hung jury, and the penalty phase can be retried). This rule has given life sentences to numerous murderers and terrorists, including conspirators in the embassy bombing and 9/11 plots. Biden has made no effort to fix this screw-up.

On habeas reform, Biden supported much of AEDPA, but he led the fight against the single most important reform -- the deference standard of 28 USC 2254(d).

The California Supreme Court today, 4-3, overturned Gov. Schwarzenegger's decision to deny parole to Sandra Lawrence, who murdered her lover's wife and then spent 11 years on the lam before surrendering in 1982. Justice Ming Chin wrote the dissent:

The Governor carefully considered whether petitioner, Sandra Davis Lawrence, is suitable for parole. He issued a reasoned report that assessed petitioner’s case individually. The report considered the relevant factors — both those supporting parole and those weighing against parole. It recognized the progress petitioner has made over the years that weighs in favor of parole. Nevertheless, balancing these factors, the Governor concluded “that her release from prison would pose an unreasonable risk of danger to society” and reversed the finding of the Board of Parole Hearings (Board) that she was suitable for parole.

The majority cites to no factual misstatements in this report. It agrees that evidence supports every fact cited. It identifies nothing the Governor did that was incorrect or contrary to his constitutional and statutory obligations. Rather, the majority simply substitutes its own judgment in place of the Governor’s considered judgment that petitioner is not suitable for parole.

Heinousness of the original offense, under today's decision, is relevant only to the extent that it indicates a present threat to public safety. A judgment that the prisoner committed an exceptionally heinous murder for which he or she just hasn't been punished sufficiently yet doesn't do it.

From my stack of post-SCOTUS-term catch-up reading comes this executive summary of a study titled "Assessing Consistency and Fairness in Sentencing: A Comparative Study in Three States." It was released May 22 by the National Center for State Courts. I was not able to find the full study on the web site. (Update: The full study is not online but is available from NCSC.)

Movements to curb discretion in sentencing came into vogue in the 1970s and 1980s due to a suspicion that too much discretion was contributing to discrimination on the basis of impermissible factors, especially race. That concern was a large factor in the Supreme Court's decision tossing out unbridled discretion in capital sentencing in Furman v. Georgia, 408 U.S. 238 (1972), as Justice Thomas explained in his great concurrence in Graham v. Collins, 506 U.S. 461 (1993).*

In noncapital sentencing, the same concerns brought about a political consensus that resulted in the enactment of guidelines systems. In federal sentencing, the Sentencing Reform Act creating the guidelines system was sponsored by the strange bedfellows of Ted Kennedy and Strom Thurmond. But do sentencing guidelines really minimize discrimination? The NCSC study supports the claim that they do.

From New South Wales, Australia, comes this study on "circle sentencing," an aspect of the "restorative justice" movement (hat tip: SL&P). Here is the abstract:

Circle sentencing is an alternative method of sentencing Aboriginal offenders which involves the offender’s community in the sentencing process. This bulletin considers whether people who participate in circle sentencing (1) show a reduction in the frequency of their offending, (2) take longer to reoffend and/or (3) reduce the seriousness of their offending. The results suggest that circle sentencing has no effect on any of these outcomes. Circle sentencing participants offended less in the 15 months following their circle. However, the same was also true of Aboriginal people sentenced in a traditional court setting (the control group). After a range of offender and offence characteristics were controlled for, we found no difference between the circle sentencing group and the control group in time to reoffend. Finally, there was no difference between the circle sentencing group and the control group in the percentage of offenders whose next offence was less serious than the reference offence.

ABC story here.