SCOTUS on Gall and Kimbrough

Link here to more good stuff from Berman on the Gall and Kimbrough decisions. Additional commentary from SCOTUSBLOG.

Here's Justice Ginsburg in Kimbrough: We hold that, under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only, and that the Court of Appeals erred in holding the crack/powder disparity effectively mandatory. A district judge must include the Guidelines range in the array of factors warranting consideration. The judge may determine, however, that, in the particular case, a within- Guidelines sentence is “greater than necessary” to serve the objectives of sentencing. 18 U. S. C. §3553(a) (2000 ed. and Supp. V). In making that determination, the judge may consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses.

And Justice Stevens in Gall: We now hold that, while the extent of the difference between a particular sentence and the recommended Guidelines range is surely relevant, courts of appeals must review all sentences — whether inside, just outside, or significantly outside the Guidelines range — under a deferential abuse-of-discretion standard. We also hold that the sentence imposed by the experienced District Judge in this case was reasonable.

Watson case was also decided today (Dec. 10) by the Supreme Court. Again from Doc Berman, "Here's the basics from SCOTUSblog:

In the last of three rulings on Monday, the Court decided unanimously that one does not “use” a gun, for purposes of imposing a mandatory five-year sentence, if the person receives the gun in a trade for drugs. Justice David H. Souter wrote the opinion in Watson v. U.S. (06-571).

The opinion in Watson (06-571) is here, and this ruling (along with Gall and Kimbrough) reinforce my view that the US Supreme Court is right now the most pro-defendant appellate court on criminal sentencing issues in the nation. Whatever one thinks about the Court's purported moves to the right on other issues, in the arena of criminal sentencing, federal defendants certainly should be more hopeful arguing before the current Justices than before any other group of appellate judges.

Crack Cocaine Sentencing

Here is the Sentencing Commission official press release concerning decision to make new crack cocaine sentencing guidelines retroactive. HT: Doc Berman

And here is a very interesting excerpt, including many stats on "Re-entry," from US News and World Report (Alex Kingsbury, reporting). Ka Shing, more thanks to the analysis from Doc.

Though not quite stated in these terms, some of the debate over the retroactivity of the new crack amendments is really a debate about whether the offenders that might benefit from the reduced sentences are prepared to re-enter the community and become productive citizens. Against this backdrop, this new article about reentry realities in US News & World Report is a must read. Here are some highlights:

Getting cons to stay ex-cons has long been one of the most vexing challenges of the criminal justice system. One out of every 31 American adults is in jail, on parole, or on probation, and the central reality is this: Nearly everyone who enters the prison system eventually gets out.

The problem is, most of those ex-offenders quickly find themselves back inside. Today, ending the cycle of recidivism has become an increasingly urgent problem as communities nationwide are forced to absorb record numbers of prisoners who also often struggle with addiction and other illness.

There are more than 1.5 million people in state or federal prison for serious offenses and 750,000 others in jail for more minor crimes. Prison populations have swelled since the early 1970s, and now offenders are returning to their neighborhoods at a rate of more than 1,400 per day. In 1994, nearly 457,000 prisoners were released from state and federal custody, and in 2005, almost 699,000 prisoners were released. That is the largest single exodus of ex-convicts in American history....

The process of coordinated prisoner reintegration is now known as "re-entry," rather than rehabilitation or release. Whereas rehabilitation assumed that individuals could change on their own, re-entry focuses on educating employers and communities about how they can help the offender on the outside. It aims to break though the red tape that has historically delayed social services for felons and to prevent the snags — like drug treatment programs that reject offenders who have been clean only a short time — that keep them from making a healthy return to society.

In practice, that means synchronizing many different social and correctional services while offenders are still inmates and continuing that assistance after their release. Re-entry programs don't necessarily require more funding, just better coordination of existing resources like job training and stable housing. "Rehab is focused on the individual offender; re-entry is about communities, families, children, coworkers, and neighbors," says Amy Solomon, a criminal justice researcher at the Urban Institute.

Moratorium Continues

Doug also says: As detailed in this SCOTUSblog post, the Justices continue to block every state effort to go forward with lethal injections. Here's the basics:

The Supreme Court on Wednesday afternoon delayed the execution of Thomas D. Arthur, previously scheduled for 6 p.m. on Thursday. Arthur has a petition pending (Arthur v. Allen, 07-395) challenging the state’s use of a lethal injection protocol to carry out executions.... The Court in recent weeks has not permitted any execution to proceed when the inmate has sought a stay while challenging lethal injection. It is scheduled to hold a hearing on such challenges on Jan. 7 at 10 a.m.

Growth is Not Good

From Doc Berman, these statistics come home for the holidays:

Among many holiday season traditions for sentencing fans is the release by the Bureau of Justice Statistics of its national head count of the number of persons in State and Federal prisons, and the number of persons on probation and parole, at yearend the prior year. Here are links to these data-filled reports:

• Prisoners in 2006
• Probation and Parole in the United States, 2006

Here are some of the statistical highlights from this press release discussing both reports:

The U.S. adult correctional population — incarcerated or in the community — reached 7.2 million men and women, an increase of 159,500 during the year, the Justice Department’s Bureau of Justice Statistics (BJS) announced today in a new report. About 3.2 percent of the U.S. adult population, or 1 in every 31 adults, was in the nation’s prisons or jails or on probation or parole at the end of 2006.

The number of men and women who were being supervised on probation or parole in the United States at year-end 2006 reached 5 million for the first time, an increase of 87,852 (or 1.8 percent) during the year. A separate study found that on December 31, 2006, there were 1,570,861 inmates under state and federal jurisdiction, an increase of 42,932 (or 2.8 percent) in 2006.

During 2006 the number of inmates under state jurisdiction rose by 37,504 (2.8 percent). The number of prisoners under federal jurisdiction rose by 5,428 (2.9 percent).

In 2006 the number of prisoners in the 10 states with the largest prison populations increased by 3.2 percent, which was more than three times the average annual growth rate (0.9 percent) in these states from 2000 through 2005. These states accounted for 65 percent of the overall increase in the U.S. prison population during 2006. The federal system remained the largest prison system with 193,046 inmates under its jurisdiction.

Retroactivity and Crack, Jack

Crack, Retroactivity and Hilary are the topic of this good post by Doc Berman, with additional good sources on this technical, but political, subject.

Iraq, America and Future Insanity

Senator Schumer and other Democrats on the Joint Economic Committee have been trying (not very successfully, so far) to get other policy makers and the public at large to focus on the sheer insanity of pumping hundreds of billions — if not trillions — of public dollars into a failed venture with no end even remotely in view.

There are myriad better ways to use the many millions of dollars that the U.S. spends on Iraq every day. Two important long-term investments that come to mind — and that would put large numbers of Americans to work — are the development of a serious strategy for achieving energy independence over the next several years and the creation of a large-scale program for rebuilding the aging American infrastructure.

New York Times (Herbert)