March 5, 2011
Smith on prison rape
Brenda V. Smith (American University - Washington College of Law) has posted Side by Side Comparison of Standard to Address Prison Rape: National Prison Rape Elimination Commission Standards and Proposed Standard of U.S. Department of Justice for Adult Prisons and Jails on SSRN. Here is the abstract:
This is a side by side comparison chart of the National Prison Rape Elimination Standards and the newly revised U.S. Department of Justice Standards.
This comparison chart was developed as an analytical tool and to assist individuals and organizations in understanding and commenting on the standards. Each chart contains: (1) the initial National Prison Rape Elimination Commission (NPREC) standard; (2) the revised DOJ standard; (3) DOJ’s reasoning for the change to the extent they provided one; (4) questions DOJ posed in relation to that specific standard; and (5) an area for analysis.
Friedman on last week's confrontation clause developments
March 3, 2011
Opinion on post-sentencing rehabilitation under the guidelines
The case is Pepper v. United States. Here is the syllabus:
After pleading guilty to drug charges, petitioner Pepper was sentenced under the Federal Sentencing Guidelines to 24 months’ imprisonment, a nearly 75 percent downward departure from the low end of the Guidelines range based in part on his substantial assistance, followed by five years of supervised release. In Pepper I, the Eighth Circuit reversed and remanded for resentencing in light of, inter alia, United States v. Booker, 543 U. S. 220. Pepper, who had begun serving his supervised release, testified at his resentencing hearing that he was no longer a drug addict, having completed a 500-hour drug treatment program while in prison; that he was enrolled in community college and had achieved very good grades; and that he was working part time. Pepper’s father testified that he and his son were no longer estranged, and Pepper’s probation officer testified that a 24-month sentence would be reasonable in light of Pepper’s substantial assistance, postsentencing rehabilitation, and demonstrated low recidivism risk. The District Court again sentenced Pepper to 24 months, granting a 40 percent downward departure based on Pepper’s substantial assistance and a further downward variance based on, inter alia, Pepper’s rehabilitation since his initial sentencing. In Pepper II, the Eighth Circuit again reversed and remanded for resentencing, concluding that Pepper’s postsentencing rehabilitation could not be considered as a factor supporting a downward variance, and directing that the case be assigned to a different district judge. After this Court vacated and remanded the Pepper II judgment in light of Gall v. United States, 552 U. S. 38, the Eighth Circuit, in Pepper III, reversed and remanded once more. At the second resentencing hearing, Pepper informed the new district judge that he was still in school, was about to be promoted at his job, and had married and was supporting his new family. Noting the nearly identical remand language of Pepper II and Pepper III, the court observed that it was not bound to reduce Pepper’s range by 40 percent for substantial assis-tance. Instead, it found him entitled to a 20 percent reduction and refused to grant a further downward variance for, inter alia, postsentencing rehabilitation. It imposed a 65-month prison term and 12 months of supervised release. In Pepper IV, the Eighth Circuit once again rejected Pepper’s postsentencing rehabilitation argument. It also rejected his claim that the law of the case from Pepper II and Pepper III required the District Court to reduce the applicable Guidelines range by at least 40 percent.
1. When a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation, and such evidence may, in appropriate cases, support a downward variance from the now-advisory Guidelines range. Pp. 9–27.
(a) Consistent with the principle that “the punishment should fit the offender and not merely the crime,” Williams v. New York, 337 U.S. 241, 247, this Court has observed a consistent and uniform policy “under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law,” id., at 246, particularly “the fullest information possible concerning the defendant’s life and characteristics,” id., at 247. That principle is codified at 18 U. S. C. §3661, which provides that “[n]o limitation shall be placed on the information” a sentencing court may consider “concerning the [defendant’s] background, character, and conduct,” and at §3553(a), which specifies that sentencing courts must consider, among other things, a defendant’s “history and characteristics,” §3553(a)(1). The Guidelines, which Booker made “effectively advisory,” 543 U. S., at 245, “should be the starting point and the initial benchmark,” but district courts may impose sentences within statutory limits based on appropriate consideration of all of the §3553(a) factors, subject to appellate review for “reasonableness,” Gall v. United States, 552 U. S. 38, 49–51. This sentencing framework applies both at initial sentencing and at any subsequent resentencing after a sentence has been set aside on appeal. Pp. 9–12.
(b) Postsentencing rehabilitation evidence may support a downward variance from the advisory Guidelines range. The plain language of §3661 makes clear that there is “[n]o limitation . . . on . . .background, character, and conduct” information, and it makes no distinction between an initial sentencing and a subsequent resentencing. In addition, postsentencing rehabilitation evidence may be
highly relevant to several §3553(a) factors that district courts are required to consider at sentencing. The extensive evidence of Pepper’s rehabilitation since his initial sentencing is clearly relevant to the selection of an appropriate sentence here. Most fundamentally, that evidence provides the most up-to-date picture of his “history and characteristics.” §3553(a)(1). At the time of his initial sentencing, he was an unemployed drug addict who was estranged from his family and sold drugs. By his second resentencing, he had been drug-free for nearly five years, was attending college, was a top employee slated for promotion, had re-established a relationship with his father, and was married and supporting a family. His postsentencing conduct also sheds light on the likelihood that he will engage in future criminal conduct, a central factor that sentencing courts mustconsider. See §§3553(a)(2)(B)–(C). Pp. 12–15.
(c) The contrary arguments advanced by amicus appointed to defend the judgment are unpersuasive. Pp. 15–26.
(1) While §3742(g)(2)—which prohibits a district court at re-sentencing from imposing a sentence outside the Guidelines range except upon a ground it relied upon at the prior sentencing—effectively precludes a court from considering postsentencing rehabilitation, that provision is invalid after Booker. Like the provisions invalidated in Booker—§§3553(b)(1) and 3742(e)—§3742(g)(2) requires district courts effectively to treat the Guidelines as mandatory in an entire set of cases. Thus, the proper remedy is to invalidate the provision. While applying §3742(g)(2) at resentencing would not always result in a Sixth Amendment violation, this Court rejects a partial invalidation that would leave the Guidelines effectively mandatory in some cases and advisory in others. The fact that §3742(g)(2) permits a resentencing court on remand to impose a non-Guidelines sentence where the prior sentence expressly relied on a departure upheld by the court of appeals also does not cure the constitutional infirmity. And the argument that any constitutional infirmity in §3742(g)(2) can be remedied by invalidating §3742(j)(1)(B) is rejected. Pp. 15–20.
(2) This Court finds unpersuasive amicus’ arguments focusing on Congress’ sentencing objectives under §3553(a). Contrary to amicus’ contention, §3742(g)(2) does not reflect a congressional purpose to preclude consideration of postsentencing rehabilitation evidence. Thus, that provision has no bearing on this Court’s analysis of whether §3553(a) permits consideration of such evidence. Nor is the consideration of postsentencing rehabilitation inconsistent with the sentencing factor in §3553(a)(5)—which directs sentencing courts to consider “any pertinent policy statement” of the Sentencing Commission—particularly as the pertinent policy statement in this case is based on unconvincing policy rationales not reflected in the relevant sentencing statutes. Consideration of postsentencing rehabilitation is also not inconsistent with §3553(a)(6)—which requires courts to consider “the need to avoid unwarranted sentenc[ing] disparities among defendants with similar records who have been found guilty of similar conduct”—as any disparity arises only from the normal trial and sentencing process. The differences in procedural opportunity that may result because some defendants are inevitably sentenced in error and must be resentenced are not the kinds of “unwarranted” sentencing disparities that Congress sought to eliminate under §3553(a)(6). Pp. 21–26.
(d) On remand, the District Court should consider and give appropriate weight to the postsentencing rehabilitation evidence, as well as any additional evidence concerning Pepper’s conduct since his last sentencing. Pp. 26–27.
2. Because the Eighth Circuit in Pepper III set aside Pepper’s entire sentence and remanded for de novo resentencing, the District Court was not bound by the law of the case doctrine to apply the same 40 percent departure applied by the original sentencing judge. To avoid undermining a district court’s original sentencing intent, an appellate court when reversing one part of a sentence “may vacate the entire sentence . . . so that, on remand, the trial court can reconfigure the sentencing plan . . . to satisfy [§3553(a)’s] sentencing factors.” Greenlaw v. United States, 554 U. S. 237, 253. That is what the Eighth Circuit did here. Pp. 27–30.
570 F. 3d 958, vacated in part, affirmed in part, and remanded.
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and GINSBURG, JJ., joined, and in which BREYER and ALITO, JJ., joined as to Part III. BREYER, J., filed an opin-ion concurring in part and concurring in the judgment. ALITO, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part. THOMAS, J., filed a dissenting opinion. KAGAN, J., took no part in the consideration or decision of the case.
Argument transcript on case involving pretextual use of material-witness statute
The case is Ashcroft v. al-Kidd.
Argument transcript in forensic reports case
The case is Bullcoming v. New Mexico.
March 1, 2011
Garnett on Land Use and Policing Policies
American land-use regulators increasingly embrace mixed-land-use "urban" neighborhoods, rather than single-land-use "suburban" ones, as a planning ideal. This shift away from traditional regulatory practice reflects a growing endorsement of Jane Jacobs’s influential argument that mixed-land-use urban neighborhoods are safer and more socially cohesive than single-use suburban ones. Proponents of regulatory reforms encouraging greater mixing of residential and commercial land uses, however, completely disregard a sizable empirical literature suggesting that commercial land uses generate, rather than suppress, crime and disorder and that suburban communities have higher levels of social capital than urban communities. This Article constructs a case for mixed-land-use planning that tackles the uncomfortable reality that these studies present. That case is built upon an apparent paradox: In urban communities, people do not, apparently, make us safer. But they do make us feel safer. This "People Paradox" suggests that, despite an apparent tension between city busyness and safety, land-use regulations that enable mixed-land-use neighborhoods may advance several important urban development goals. It also suggests an often-overlooked connection between land-use and policing policies.
Fourth Amendment conference at Ole Miss March 10-11
The National Center for Justice and the Rule of Law, at the University of Mississippi School of Law, presents its 10th annual symposium, entitled The Future of Fourth Amendment Analysis, on March 10-11. March 10 examines fundamental aspects of search and seizure principles, including the concepts of a search, seizure, security, and reasonableness. March 11 examines digital searches and seizures. It is web cast. The link and agenda are here.
Mikhail on Emotion, Neuroscience, and Law
John Mikhail (Georgetown University Law Center) has posted Emotion, Neuroscience, and Law: A Comment on Darwin and Greene (Emotion Review, Forthcoming) on SSRN. Here is the abstract:
Darwin’s (1871) observation that evolution has produced in us certain emotions responding to right and wrong conduct that lack any obvious basis in individual utility is a useful springboard from which to clarify the role of emotion in moral judgment. The problem is whether a certain class of moral judgments is “constituted” or “driven by” emotion (Greene 2008, p. 108) or merely correlated with emotion while being generated by unconscious computations (e.g., Huebner et al. 2008). With one exception, all of the “personal” vignettes devised by Greene and colleagues (2001, 2004) and subsequently used by other researchers (e.g., Koenigs et al. 2007) in their fMRI and behavioral studies of emotional engagement in moral judgment involve violent crimes or torts. These studies thus do much more than highlight the role of emotion in moral judgment; they also support the classical rationalist thesis that moral rules are engraved in the mind.
Opinion holding corporations lack privacy objection to FOIA disclosure
The case is FCC v. AT&T Inc. Here is the syllabus:
The Freedom of Information Act requires federal agencies to make records and documents publicly available upon request, subject to several statutory exemptions. One of those exemptions, Exemption 7(C),covers law enforcement records the disclosure of which “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U. S. C. §552(b)(7)(C). CompTel, a trade association, submitted a FOIA request for documents AT&T had provided to the Federal Communications Commission Enforcement Bureau during an investigation of that company. The Bureau found that Exemption 7(C) applied to individuals identified in AT&T’s submissions but not to the company itself, concluding that corporations do not have “personal privacy” interests as required by the exemption. The FCC agreed with the Bureau, but the Court of Appeals for the Third Circuit did not. It held that Exemption 7(C) extends to the “personal privacy” of corporations, reasoning that “personal” is the adjective form of the term “person,” which Congress has defined, as applicable here, to include corporations, §551(2).
Held: Corporations do not have “personal privacy” for the purposes ofExemption 7(C). Pp. 3–12.
(a) AT&T argues that the word “personal” in Exemption 7(C) incorporates the statutory definition of “person,” which includes corporations, §551(2). But adjectives do not always reflect the meaning of corresponding nouns. “Person” is a defined term in the statute; “personal” is not. When a statute does not define a term, the Court typically “give[s] the phrase its ordinary meaning.” Johnson v. United States, 559 U. S. ___, ___. “Personal” ordinarily refers to individuals. People do not generally use terms such as personal characteristics or personal correspondence to describe the characteristics or correspondence of corporations. In fact, “personal” is often used to mean precisely the opposite of business-related: We speak of personal expenses and business expenses, personal life and work life, personal opinion and a company’s view. Dictionary definitions also suggest that “personal” does not ordinarily relate to artificial “persons” like corporations.
AT&T contends that its reading of “personal” is supported by the common legal usage of the word “person.” Yet while “person,” in a legal setting, often refers to artificial entities, AT&T’s effort to ascribe a corresponding legal meaning to “personal” again elides the difference between “person” and “personal.” AT&T provides scant support for the proposition that “personal” denotes corporations, even in a legal context.
Regardless of whether “personal” can carry a legal meaning apart from its ordinary one, statutory language should be construed “in light of the terms surrounding it.” Leocal v. Ashcroft, 543 U. S. 1, 9. Exemption 7(C) refers not just to the word “personal,” but to the term “personal privacy.” “Personal” in that phrase conveys more than just “of a person”; it suggests a type of privacy evocative of human concerns—not the sort usually associated with an entity like AT&T. AT&T does not cite any other instance in which a court has expressly referred to a corporation’s “personal privacy.” Nor does it identify any other statute that does so. While AT&T argues that this Court has recognized “privacy” interests of corporations in the Fourth Amendment and double jeopardy contexts, this case does not call for the Court to pass on the scope of a corporation’s “privacy” interests as a matter of constitutional or common law. AT&T contends that the FCC has not demonstrated that the phrase “personal privacy” necessarily excludes corporations’ privacy. But construing statutory language is not merely an exercise in ascertaining “the outer limits of [a word’s] definitional possibilities,” Dolan v. Postal Service, 546 U. S. 481, 486, and AT&T has provided no sound reason in the statutory text or context to disregard the ordinary meaning of the phrase. Pp. 3–9.
(b) The meaning of “personal privacy” in Exemption 7(C) is further clarified by two pre-existing FOIA exemptions. Exemption 6, which Congress enacted eight years before Exemption 7(C), covers “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” §552(b)(6). This Court has regularly referred to Exemption 6 as involving an “individual’s right of privacy,” Department of State v. Ray, 502 U. S. 164, 175, and Congress used in Exemption 7(C) the same phrase—“personal privacy”—used in Exemption 6. In contrast, FOIA Exemption 4, which protects “trade secrets and commercial or financial information obtained from a person and privileged or confiden-tial,” §552(b)(4), clearly applies to corporations. Congress did not use any language similar to that in Exemption 4 in Exemption 7(C). Pp. 9–11.
582 F. 3d 490, reversed.
ROBERTS, C. J., delivered the opinion of the Court, in which all other Members joined, except KAGAN, J., who took no part in the consideration or decision of the case.
February 28, 2011
Argument transcript on meaning of "cocaine base"
The case is DePierre v. United States.
Opinion in case limiting Confrontation Clause
Held: Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because they had a "primary purpose . . . to enable police assistance to meet an ongoing emergency." Davis, 547 U. S., at 822. Therefore, their admission at Bryant’s trial did not violate the Confrontation Clause. Pp. 5– 32.
(a) In Crawford, this Court held that in order for testimonial evidence to be admissible, the Sixth Amendment "demands . . . unavailability and a prior opportunity for cross-examination." 541 U. S., at 68. Crawford did not "spell out a comprehensive definition of ‘testimonial,’ " but it noted that testimonial evidence includes, among other things, "police interrogations." Ibid. Thus, Sylvia Crawford’s statements during a station-house interrogation about a stabbing were testimonial, and their admission when her husband, the accused, had "no opportunity" for cross-examination due to spousal privilege made out a Sixth Amendment violation. In Davis and Hammon, both domestic violence cases, the Court explained that "[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the [interrogation’s] primary purpose . . . is to enable police assistance to meet an ongoing emergency,” but they “are testimonial when the circumstances objectively indicate that there is no such ongoing emegency, and that the[interrogation’s] primary purpose is to establish or prove past events potentially relevant to later criminal prosecution.” 547 U. S., at 822. Thus, a recording of a 911 call describing an ongoing domestic disturbance was nontestimonial in Davis, where the victim’s “elicited statements were necessary to be able to resolve
[the ongoing] emergency,” and the statements were not formal. Id.,at 827. But the statements in Hammon were testimonial, where the victim was interviewed after the event in a room separate from her husband and “deliberately recounted, in response to police questioning” the past events. Id., at 830. Here, the context is a nondomestic dispute, with the “ongoing emergency” extending beyond an initial victim to a potential threat to the responding police and the public.
This context requires additional clarification of what Davis meant by “the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Id., at 822. Pp. 5–12.
(b) To make the “primary purpose” determination, the Court must objectively evaluate the circumstances in which the encounter between the individual and the police occurs and the parties’ statements and actions. Pp. 12–23.
(1) The primary purpose inquiry is objective. The circumstances in which an encounter occurs—e.g., at or near a crime scene versus at a police station, during an ongoing emergency or afterwards—are clearly matters of objective fact. And the relevant inquiry into the parties’ statements and actions is not the subjective or actual purpose of the particular parties, but the purpose that reasonable participants would have had, as ascertained from the parties’ statements
and actions and the circumstances in which the encounter occurred. P. 13.
(2) The existence of an “ongoing emergency” at the time of the encounter is among the most important circumstances informing the interrogation’s “primary purpose.” See, e.g., Davis, 547 U. S., at 828–830. An emergency focuses the participants not on “prov[ing] past events potentially relevant to later criminal prosecution,” id., at 822, but on “end[ing] a threatening situation,” id., at 832. The Michigan Supreme Court failed to appreciate that whether an emergency exists and is ongoing is a highly context-dependent inquiry. An assessment of whether an emergency threatening the police and public is ongoing cannot narrowly focus on whether the threat to the first victim has been neutralized because the threat to the first responders and public may continue. The State Supreme Court also did not appreciate that an emergency’s duration and scope may depend in part on the type of weapon involved; the court below relied on Davis and Hammon, where the assailants used their fists, as controlling the scope of an emergency involving a gun. A victim’s medical condition is important to the primary purpose inquiry to the extent that it sheds light on the victim’s ability to have any purpose at all in responding to police questions and on the likelihood that any such purpose would be a tes-timonial one. It also provides important context for first respondersto judge the existence and magnitude of a continuing threat to the victim, themselves, and the public. This does not mean that an emergency lasts the entire time that a perpetrator is on the loose, but trial courts can determine in the first instance when an interrogation transitions from nontestimonial to testimonial. Finally, whether an ongoing emergency exists is simply one factor informing the ultimate inquiry regarding an interrogation’s “primary purpose.” Another is the encounter’s informality. Formality suggests the absence of anemergency, but informality does not necessarily indicate the presence of an emergency or the lack of testimonial intent. The facts here— the questioning occurred in an exposed, public area, before emergency medical services arrived, and in a disorganized fashion— distinguish this case from Crawford’s formal station-house interrogation. Pp. 14–20.
(3) The statements and actions of both the declarant and interrogators also provide objective evidence of the interrogation’s primary purpose. Looking to the contents of both the questions and the answers ameliorates problems that could arise from looking solely to one participant, since both interrogators and declarants may have mixed motives. Police officers’ dual responsibilities as both first responders and criminal investigators may lead them to act with different motives simultaneously or in quick succession. And during an ongoing emergency, victims may want the threat to end, but may not envision prosecution. Alternatively, a severely injured victim may have no purpose at all in answering questions. Taking into account such injuries does not make the inquiry subjective. The inquiry still focuses on the understanding and purpose of a reasonable victim in the actual victim’s circumstances, which prominently include the victim’s physical state. Objectively ascertaining the primary purpose of the interrogation by examining the statements and actions of all participants is also consistent with this Court’s prior holdings. E.g., Davis, 547 U. S., at 822–823, n. 1. Pp. 20–23.
(c) Here, the circumstances of the encounter as well as the statements and actions of Covington and the police objectively indicate that the interrogation’s “primary purpose” was “to enable police assistance to meet an ongoing emergency,” 547 U. S., at 822. The circumstances of the interrogation involved an armed shooter, whose motive for and location after the shooting were unknown and who had mortally wounded Covington within a few blocks and a few minutes of the location where police found Covington. Unlike the emergencies in Davis and Hammon, this dispute’s potential scope and thus the emergency encompassed a potential threat to the police and the public. And since this case involved a gun, the physical separation that was sufficient to end the emergency in Hammon was not necessarily sufficient to end the threat here. Informed by the circumstances of the ongoing emergency, the Court now turns to determining the “primary purpose of the interrogation” as evidenced by the statements and actions of Covington and the police. The circumstances of the encounter provide important context for understanding Covington’s statements to the police. When he responded to their questions, he was lying in a gas station parking lot bleeding from a mortal gunshot wound, and his answers were punctuated with questions about when emergency medical services would arrive. Thus, this Court cannot say that a person in his situation would have had a “primary purpose” “to establish or prove past events potentially relevant to later criminal prosecution.” Ibid. For their part, the police responded to a call that a man had been shot. They did not know why, where, or when the shooting had occurred; the shooter’s location; or anything else about the crime. They asked exactly the type ofquestions necessary to enable them “to meet an ongoing emergency.” Ibid. Nothing in Covington’s responses indicated to the police that there was no emergency or that the emergency had ended. Finally,this situation is more similar to the informal, harried 911 call in Davis than to the structured, station-house interview in Crawford. The officers all arrived at different times; asked, upon arrival, what had happened; and generally did not conduct a structured interrogation. The informality suggests that their primary purpose was to address what they considered to be an ongoing emergency, and the circumstances lacked a formality that would have alerted Covington to or focused him on the possible future prosecutorial use of his statements. Pp. 23–32.
483 Mich. 132, 768 N. W. 2d 65, vacated and remanded.
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, BREYER, and ALITO, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment. SCALIA, J., and GINSBURG, J., filed dissenting opinions. KAGAN, J., took no part in the consideration or decision of the case.
February 27, 2011
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