CrimProf Blog

Cali's Setencing Structure Will Probably Not Get Expected Overhaul

From sacbee.com: With the legislative session heading into the home stretch, an ambitious plan to overhaul California's criminal sentencing structure is facing dim prospects in the Governor's Office.

Two bills are circulating in the Legislature that would create a California sentencing commission with the ability to change the length of prison terms. But a spokesman for Gov. Arnold Schwarzenegger suggested it is highly unlikely that either commission bill would get signed into law.

"We're open to debate, but the governor has serious reservations about what's being proposed in the Legislature," Schwarzenegger spokesman Aaron McLear said in an interview. "He thinks that final authority (on sentencing laws) should be with elected officials who are accountable to the people."

Rest of Article. . . [Mark Godsey]

The Depravity Scale: Adding Method to Judging Criminal Depravity?

This NYTimes story focuses on the efforts to two researchers to develop a framework with which to objectively gauge the culpability of particularly cold-blooded killers. The article explains how the work of one the researchers, Dr. Michael Wellner, a clinical associate professor of psychiatry, who developed the so-called "depravity scale," could apply in death penalty proceedings.  He is at work on the “depravity scale” to aid juries in separating the worst of the worst from the really bad. It is based on an Internet survey that asks respondents to rank various acts in order of heinousness.

From TheDepravityScale.org: "To minimize the arbitrariness of how courts determine the worst of crimes, and to eliminate bias in sentencing, the Depravity Scale research aims to establish societal standards of what makes a crime depraved, and to develop a standardized instrument based on specific characteristics of a crime that must be proven in order to merit more severe sentences.

This research will refine into the Depravity Standard, an objective measure based on forensic evidence. This instrument distinguishes not who is depraved but rather, what aspects of a given crime are depraved and the degree of a specific crime's depravity."

According to the reasearchers, the depravity scale research will enhance fairness in sentencing, given that it is race, gender and socio-economic blind.  But, CrimProf Robert Blecker, an authority on the death penalty at New York Law School who sits on an advisory board assisting Dr. Welner, is worried about how a numerical scale would be used in practice. “Would it remove the arbitrariness?” he asked. “Or merely give the illusion of objectivity?” Story here. . . [Michele Berry]

Lower Cts in Shambles When it Comes to Sentencing Guidelines

From slate.com: Sentencing is supposed to be the straightforward moment in a criminal trial—easy arithmetic compared to the subjective assessments of jurors and attorneys. But ever since the Supreme Court got into the sentencing biz back in 2000, sentencing has been a mess. The court struck down federal mandatory sentencing guidelines in 2005, and some state guidelines have fallen as well. And in a 6-3 decision Monday, the justices killed the California sentencing guidelines.

The California case is the latest battle in a strange war that has turned natural judicial enemies into allies, set Congress against the courts, and given law professors a new life's work. Some of the justices probably have had their eye on easing the sentencing load on defendants, more and more of whom have been getting locked up for longer and longer periods.

But the court can't make pro-defendant reform its explicit aim—that sort of policy decision is the legislature's job, after all, and in any case the cobbled-together majority behind the recent decisions would never hold together. So, for now, at least, the court's war on sentencing has enraged the lower courts and left the law in a shambles. These cases showcase destruction—this is what it looks like when the Supreme Court lays waste.

The 2000 case that got the court started, Apprendi v. New Jersey, seemed to unveil a new constitutional right. The court suggested that the Sixth Amendment's guarantee of trial by jury means that a defendant can't be sentenced above the maximum specified in a statute unless a jury finds the facts that justify the increase. What does that mean?

According to this week's ruling, Cunningham v. California, for example, a legislature may not set the penalty for child sexual abuse at six to 12 years and then authorize a judge to send a sex abuser away for 16 years if the judge finds, for example, that the victim was particularly vulnerable or the abuser violent or dangerous. For one thing, those facts haven't been found by a jury. For another, they allow for a higher sentence based on a lower standard of proof than the one required for conviction: preponderance of the evidence, rather than guilt beyond a reasonable doubt.

Rest of Article. . . [Mark Godsey]

More on Cunningham v. California

Like Mark posted, in a 6-3 ruling yesterday, SCOTUS rejected California's 30 year-old sentencing law.  The crux of the the ruling is that judges cannot increase prison terms based on evidence that was never considered by a jury.  While the ruling is unlikely to benefit a significant segment of California's bulging prison population, legal experts say it should influence state leaders as they press forward with plans to overhaul the state's sentencing system.  Thousands of California inmates will now have a basis to argue for modest breaks in their sentences. The Supreme Court ruling, however, does not impact California's three-strikes-and-you're-out law or most serious criminals facing potential life terms for murder, rape and other violent felonies. More likely it will affect the typical felony case against burglars, robbers and defendants who commit sexual assault who do not face those stiff punishments

For prosecutors and defense lawyers, it could take months to evaluate the complex ruling and its consequences for inmates doing time. Michael Kresser, director of a San Jose-based appellate project that handles the bulk of criminal appeals from the South Bay, estimates he has about 200 cases from Santa Clara and nearby counties in which defendants may be able to argue for a sentencing break. Full story from San Jose Mercury. . . [Michele Berry]

Texas Court of Criminal Appeals: Above "the Law"?

Above the law?  Well, it depends on what you consider "the law."  According to a Texas Court of Criminal Appeals (CCA) plurality, in Ex Parte Medellin: (1) an International Court of Justice (ICJ) decision (Case Concerning Avena and Other Mexican Nationals from March 2004) and (2) presidential directive from GW Bush ordering states to comply with that ICJ decision, do not constitute binding federal "law"--therefore, the ICJ Avena decision (holding that the US denied the rights to consular notification and consultation in violation of Article 36 of the Vienna Convention to 49 Mexican nationals (including Jose Ernest Medellin) sentenced to die in Texas and other states) and Bush directive, do not preempt the Texas Code of Criminal Procedure, and the Texas CCA is in no way bound to review a death row inmate's case.

For these reasons, the CCA chose to follow Texas Code of Criminal Procedure Article 11.071 §5(a).  This Article confines the court's authority to consider the merits or grant relief of a death row inmate's successive state habeas writ application to the limited instances when the inmate could not have previously presented the claim because the legal basis for the claim was unavailable.  According to the CCA, the Bush directive and the ICJ's decision in Avena do not qualify as previously unavailable factual or legal bases for filing a successive writ.  Here are the plurality and concurring opinions in Ex Parte Medellin.  Full story from Texas Lawyer. . . [Michele Berry]

SCOTUS Reviews CA's Sentencing Rules; CrimProf Jeffrey Fisher Weighs in

Today the Supreme Court heard the case Cunningham v. California.  The Court reviewed whether California's Determinate Sentencing Law, by permitting judges to impose enhanced (upper term) sentences based on determination of facts not found by jury or admitted by the defendant, violates the 6th and 14th Amendments. 

John Cunningham, a former Richmond police officer, was sentenced to a 16 year prision term for sexually abusing his son.  Under California's determinate sentencing law, which dates back to 1977, all felonies except murder and a few others punishable by up to life in prison are subject to three possible sentences. For Cunningham's crime, continuous sexual abuse of a child, the options are 6, 12 or 16 years. The defendant must be sentenced to the middle term unless the judge justifies the higher or lower term by finding specific factors. Only about 15 percent of defendants sentenced in California are in Cunningham's category -- those whose judges chose the longest of three possible sentences prescribed by a verdict. But according to Stanford CrimProf Jeffrey Fisher, the judge's power to select that term, based on information that never goes before a jury, gives prosecutors in many other cases leverage in charging decisions and plea-bargain negotiations.  CrimProf Fisher, who filed arguements supporting John Cunningham, says a ruling in Cunningham's favor will affect most felony prosecutions in the state.  More on the case. . . [Michele Berry]

The Great Sentencing Debate Continues: to Affirm or Reverse, that is the Question

From National Law Journal: Nationally, circuits have been grappling with how much leeway to give trial judges in fashioning sentences that are either more or less lenient than the traditional guideline range established by the U.S. Sentencing Commission.  The 8th Circuit's decision in U.S. v. McDonald, No. 05-1617 is just one recent example.

The 8th Circuit overturned the 11-year prison term for repeat offender Jeffrey A. McDonald in a methamphetamine case because it was less than half the recommended sentencing guideline range of 22 to 27 years and just one year more than the law's minimum limit. The court ordered resentencing without such an extreme variance. 

Since the Booker decision, which gave judges discretion to shape reasonable sentences, the 8th Circuit has reversed 25 sentences below the guideline range while affirming four, yet affirmed 16 sentences above guideline range while reversing just one. 8th Circuit Judge Kermit Bye pointed this out in his dissent.  "If we fail to implement the promise of Booker and do not relinquish greater discretion to experienced district court judges whose proximity to sentencing renders them eminently more qualified to appreciate the subtleties of each case, we will find ourselves the architects of a new -- and equally unconstitutional -- de facto mandatory sentencing system crafted from the ashes of the last," Bye wrote. More. . . [Michele Berry]

Prosecutor's Study Claims NY Revised Drug Laws Freed KingPins

From nytimes.com: A year and a half after the New York Legislature revised the drug laws in an effort to reduce harsh prison sentences for low-level offenders, a study by Prosecutor Bridget G. Brennan, examined 84 drug offenders prosecuted by her office who have asked for resentencing since the laws were changed in 2004. The offenders had been convicted of possessing or selling enough hard drugs to make them eligible for sentences of at least 15 years to life.

The study found that judges granted lower sentences to 65 of those prisoners, and 22 of them, or about 34 percent, were either what she called "kingpins," leaders of international drug organizations, or "major traffickers," that is, leaders of local drug operations that moved large quantities of narcotics. Of the kingpins and major traffickers, 16 were granted relief from lifetime parole, and four of them have been released, she said.

The study looked only at those cases handled by her office, which accounted for about a quarter of the prisoners released statewide since the 2004 reforms. Advocates of the reforms said yesterday that because the special prosecutor was charged with handling the most serious cases, the study was somewhat skewed. Still, the study offers the first prosecutor's perspective of how the reforms have played out at a time when legislators are still debating whether they went too far or whether to relax the sentencing laws even further. Rest of Article. . . [Mark Godsey]

PA Debates Compassionate Release for Elderly Inmates

Story from Philly Inquirer here.  [Mark Godsey]

Probation in Texas: Anything Goes

This Dallas Morning News article in which Minnesota CrimProf Kevin Reitz is quoted describes two probationers supervized by the same judge.  One was convicted of robbery, got probation, failed a drug test and was resentenced to life.  The other was convicted of murder, failed five drug tests while on probation and was given reduced conditions of probation.

Second Circuit Issues Major Sentencing Decision

On Monday, the Second Circuit issued a major decision on reasonableness review in sentencing. In United States v. Fernandez, Docket No. 05-1596-cr (2d Cir. April 3, 2006) (decision found here) The Second Circuit addressed the following questions:

1. Does the Second Circuit possess statutory authority to review a sentence within the relevant Guidelines range for reasonableness?

2. Is a sentence within the relevant Guidelines range entitled to a presumption of reasonableness?

3. Does 18 U.S.C. § 3553(a)(6), which obliges sentencing judges to consider unwarranted disparities in sentencing, apply to differently situated defendants?

4. Does the duty to consider the sentencing factors of 18 U.S.C. § 3553(a) requires a sentencing judge to discuss on the record during the sentencing proceeding each of the factors or each argument that a defendant makes relating to those factors?

5. Can a sentencing judge take a defendant's cooperation with authorities into account under 18 U.S.C. § 3553(a) even if the Government has not made a § 5K1.1 downward departure motion?

For a detailed discussion, see the Second Circuit Sentencing Blog. [Mark Godsey, thanks to Harlan Protass]

Southern District of Florida Sees Little Change in Sentencing Post-Booker

When the U.S. Supreme Court issued its landmark sentencing rulings in U.S. v. Booker and U.S. v. Fanfan, defense attorneys in South Florida rejoiced, but 15 months later, prosecutors are the ones reeping the benefits. Judges in the area have opted to stay mostly within the guidelines, at a rate well above the national rate.

A new study by the U.S. Sentencing Commission found that judges in the Southern District of Florida, which covers the area from Key West to Fort Pierce, have been among the strictest in the nation in sticking to the guidelines. They stayed within the guideline range in 77.5% of 1,951 cases sentenced, whereas the Northern district of Florida sentenced within the guidelines 71.7% of the time and the Middle district, 65.6%.  But even more striking, the Sourthern District of Florida rate is significantly higher than the national rate. Nationally, across 94 judicial districts, federal sentences fell within the guidelines in 62.2 % of 65,368 cases.

How come? Some cite pressure from the Republican-controlled Congress and the Justice Department as a reason to be nervous about using more discretion in sentencing. "No one wants to be the judge that sticks his head out to be chopped off," said one. More. . . [Mark Godsey]

Harvard Reentry Conference

M  A  C  D  L Massachusetts Association of Criminal Defense Lawyers

The Criminal Justice Institute and the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School will co-host a national conference, entitled ReThinking Re-Entry: Confronting Perpetual Punishment, on March 31 - April 1, 2006.   Among the topics which panelists will discuss and explore in depth are addiction, community impact, disenfranchisement, economics and education, employment, housing, mental health, public policy, and women/families.   This conference will bring together a broad cross-section of stakeholders - academics, corrections officials, community based organizations, formerly incarcerated people and their families, youth, service providers, government officials and representatives of the media.   To learn more, go to

www.law.harvard.edu/academics/clinical/cji/events.htm

Welcome to the Blogosphere: Second Circuit Sentencing Blog

Cardozo adjunct crimprof and criminal defense lawyer Harlan Protass recently created the “Second Circuit Sentencing Blog” (http://www.fedsentencinglaw.com).  It is an analytic library of all substantive sentencing decisions in the Second Circuit (including district courts).  It is well worth checking out. (Jack Chin)

Corrections Corporation of America Put Human Waste in Inmate Food

Or at least some ex-employees did, the company admits.  Inmates were forced to eat the food or go hungry.

Non-Profit Private Prisons More Effective

Yale CrimStudent David Pozen has this Boston Globe OpEd summarizing research he did suggesting that non-profit, private prisons have the lowest recidivism rates, followed by public prisons, with private, for-profit institutions having the highest rates. [Jack Chin]

NYT: Prisons Shackle Prisoners During Childbirth

Story here. [Jack Chin]

Pardons in Pennsylvania

Story here. [Jack Chin]

New ABA Criminal Justice book - Criminal Lawyer's Guide to Immigration Law, 2nd

""The Criminal Lawyer's Guide to Immigration Law: Questions and Answers, 2nd Edition" (product code 5090100) has just been published by the ABA Criminal Justice Section. To purchase this book or for more information, go to http://www.abanet.org/abapubs/books/5090100 or call toll-free 1-800-285-2221.

Set up in a unique question-and-answer format, this concise guide focuses on the criminal lawyer's most common questions about immigration law and representing noncitizens, from "Who exactly is an alien?" to "Are removal hearings conducted like criminal proceedings?" The answers are clear and carefully focused and in most instances direct you to specific cases or more in-depth resources.

From an overview of immigration law to guidance for specific situations, this convenient reference addresses immigration court and procedures, immigration consequences of criminal convictions, extradition, and prisoner issues -- a variety of real-life situations you face as a criminal lawyer with noncitizen clients or witnesses.

The "Guide" is an invaluable resource for both federal and state criminal law practitioners. Federal lawyers will find the chapters covering alien smuggling and hostage taking, immigration document fraud and false statements, and illegal entry and reentry (pretrial through sentencing) to be the most up-to-date source of information on handling these cases. All criminal practitioners will find essential the chapters on immigration consequences of criminal convictions, as well as border stops, getting witnesses and evidence from abroad, international extradition, treaty transfers, and how the PATRIOT Act affects aliens."

Republican, Democrat Judges Differ on Sentences

Federal judges who are Republicans punish street crimes more severely, Democrats punish white collar crimes. Northwestern CrimProfs Emerson Tiller and Max Schanzenbach did the study.