Sex Offender Sentencing

Good recidivism methodology analysis as well in US v. McIlrath, No. 07-1266 (7th Cir. Jan. 10, 2008) (available here), which has been described as a must-read.

A Case of Bad Law But Good Decision?

I, for one, would have favored letting the suit proceed, contrary to the majority of the federal judges in this case. They do know best on which side their bread is buttered unlike others, who have no clue, or don't care, where the dough comes from.

Oh, you didn't know? It grows on trees. By this standard we will soon have many more of the environmentally conscious on the benches but hopefully not in the sense of bench warmers.

Opinion (7-2; Jan. 8) in John R. Sand & Gravel v. United States (06-1164) is now available here. HT SCOTUSBLOG.

Criminal Matters Upcoming

Thanks to SCOTUSBLOG here are the certs granted from January 4:

Three of the six are criminal matters. How interesting!

Docket: 06-7517
Case name: Irizarry v. United States
Issue: Whether a judge must give both sides notice in advance of imposing a criminal sentence that departs from the Sentencing Guidelines.

• Opinion below (11th Circuit)
• Petition for certiorari
• Brief in opposition

__________________

Docket: 07-210
Case name: John Bridge v. Phoenix Bond & Indemnity Co., et al.
Issue: Whether plaintiffs who did not rely on but were nonetheless harmed by false statements made to third parties can establish proximate cause in a civil RICO action.

• Opinion below (7th Circuit)
• Petition for certiorari
• Brief in opposition
• Amicus brief of McKesson Corporation (in support of the petitioner)

__________________

Docket: 07-330
Case name: Greenlaw v. United States
Issue: Whether a federal circuit court may sua sponte increase a defendant’s sentence in the absence of a cross-appeal by the government.

• Opinion below (8th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

__________________

Docket: 07-343
Case name: Kennedy v. Louisiana
Issue: Whether the Eighth Amendment bar on cruel and unusual punishment prohibits capital punishment for the crime of child rape.

• Opinion below (Supreme Court of Louisiana)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of Louisiana Public Defender Offices in Parishes Impacted by Hurricanes Katrina and Rita (in support of the petitioner)
• Amicus brief of the National Association of Social Workers, et al. (in support of the petitioner)
• Amicus brief of the National Association of Criminal Defense Lawyers (in support of the petitioner)

__________________

Docket: 07-411
Case name: Plains Commerce Bank v. Long Family Land & Cattle
Issue: Whether Indian tribes’ courts have authority to decide a civil lawsuit that involves business dealings between a company owned by a member of the tribe and a bank that owns land on a reservation, but itself is not owned by a tribal member.

• Opinion below (8th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

__________________

Docket: 07-552
Case name: Sprint Communications Company, et al. v. APCC Services
Issue: Whether a plaintiff assigned the right to pursue a legal claim, but which stands to gain no proceeds from the outcome of the litigation, has established standing under Article III. (Disclosure: Akin Gump represents the petitioner.)

• Opinion below (D.C. Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of Qwest Communications, Inc. (in support of the petitioners)

Not Quite Business As Usual

Via How Appealing: Yesterday's edition of The Times and Democrat of Orangeburg, South Carolina contained an article that begins, "The South Carolina Appellate Court has handed down a decision that upheld a circuit court judge's 2005 contempt ruling after a St. Matthews woman instructed the judge to kiss her derriere. Judith Law will serve extra time in jail after losing an appeal on a 2005 contempt-of-court charge for offering the written instruction to a circuit court judge." You can access last month's unpublished ruling of the South Carolina Court of Appeals at this link.

OBE and Newsletter

I have been recently OBE (namely Thanksgiving, Christmas, New Years revelry), nonetheless the December/January newsletter is up at the link to your right.

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)

A Bit of History

Here, we have the foreblawgers. HT: How Appealing

Why The Confession? Come to Papa

Check out this case, a rare instance in which the Government is actually caught red-handed obtaining a false confession. How many other confessions are false, but cannot be proven to be false? If the pilot had never inquired about his tranceiver Higazy would still be in jail. HT: How Appealing.

Here is the final ruling, which Howard Bashman points out is controversial due to fact that the court sought to restrict access to the original ruling. Curiouser and Curiouser.

DNA Releases Another Innocent Prisoner

Here is a link to a story of exoneree in New York, Jeffrey Deskovic, released last year, incarcerated since he was sixteen. I feel his pain.

Ball's Blue?

This certainly looks interesting!
Happy Turkey Day, y'all. (HT Grits)

As does this, Holiday Reading, thanks to Doc Berman:

American Buffalo: Vanishing Acquittals and the Gradual Extinction of the Federal Criminal Trial Lawyer by Frank O. Bowman III

Abstract: This essay is an invited response to Professor Ronald Wright's impressive study of the fact that the acquittal rate in federal criminal trials is declining even faster than the rate of trials themselves, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. PA. L. REV. 79 (2005). The essay concurs with Professor Wright's conclusion that one significant factor driving down both federal trial and acquittal rates is the government's use of the markedly increased bargaining leverage afforded to prosecutors by the post-1987 federal sentencing system consisting of the U.S. Sentencing Guidelines interacting with various statutory mandatory minimum penalties. It offers some additional evidence in the form of statistical data and personal experience supporting that conclusion.

However, the essay goes on to wonder whether Professor Wright's proposed explanations for the disproportionate decline in federal acquittal rates capture the whole story. It suggests that part of the explanation for both the continuing decline of trials and the disproportionate decline in acquittals may be the gradual extinction of true trial lawyers, particularly in U.S. Attorney's Offices. The essay concludes by expressing concern that the decline of trial lawyers may be having deleterious affects on the justice system as a whole.

And this, also reported widely already:

As detailed in this AP report, "Georgia's top court overturned a state law Wednesday that banned registered sex offenders from living within 1,000 feet of schools, churches and other areas where children congregate." Though the outcome itself is noteworthy, the legal theory behind the ruling in Mann v. Dept. of Corrections (available here) is particularly interesting and could garner US Supreme Court attention: the court finds a takings problem with the law. Here is a key paragraph from the ruling:

Looking to the magnitude and character of the burden OCGA § 42-1- 15 imposes on the property rights of registered sex offenders and how that burden is distributed among property owners, Lingle, supra, 544 U.S. at 542; see also Mann, supra, we conclude that, under the circumstances present here, justice requires that the burden of safeguarding minors from encounters with registered sexual offenders must be "spread among taxpayers through the payment of compensation." Lingle, supra at 543. We therefore find that OCGA § 42-1-15 (a) is unconstitutional because it permits the regulatory taking of appellant's property without just and adequate compensation. Accordingly, we reverse the trial court's ruling denying appellant's request for declaratory relief in regard to the residency restriction.

That's Grits

From Grits,

Sign Our Judicial Complaint Against Judge Sharon Keller

If you are as shocked as we were by Judge Sharon Keller saying "We close at 5" and refusing to accept an appeal 20 minutes after 5 PM by lawyers representing a man about to be executed, then sign on to this complaint. We will submit this complaint to the State Commission on Judicial Conduct on November 16, 2007, which is also the day we will have a protest at the Texas Court of Criminal Appeals at 4:45pm. Anyone can sign the complaint. In order for your name to count on the complaint for the submission, you must provide all the requested contact information, including your phone number and occupation. If you would like to download a copy of the complaint for your records, click here.

If you would like to help us with a donation, please click the button to the left or send a check made out to Texas Moratorium Network to 3616 Far West Blvd, Suite 117, Box 251, Austin, Texas 78731. Donations are not tax-deductible. If you have questions, please call 512-302-6715.

SCOTUS FOCUS

The January Calendar is here (thanks SCOTUS blog!)
Seven of the twelve so far scheduled are clearly criminal law cases, including the lethal injection case.

Here is a link to the Fourth Amendment case: the State High Court was right on this one. If the states refuse to provide a remedy for a violation of state law, law that is "within the scope or reach" of the constitution, then they must be held to it. The states should not re-write the fourth amendment and then fail to enforce their own revision.

The Gitmo Detainee Cases march on: here is link to reply briefs.

The fallout from Carey v Musladin is beginning to hit the ground, as seen here, in a brief in opposition to certiorari, involving defendant's habeas relief under either Cronic or Strickland. The brief does an exceptional job of clarifying the notion of "clearly established law"... as well as the distinctions among Hill, Cronic, Strickland lines of ineffectiveness of assistance of counsel claims.

Finally, here's one for the Crow's Nest. GPS Tracking could-go-all-the-way-

Wild Guesses -- Riding Bareback

Two models of the presidency are at odds, one whose founding father was George Washington, the other whose founding father was Richard Nixon. Under the aegis of Dick Cheney, who considered the scandal in Watergate to be a political trick to topple Nixon, the original vision has been entrenched and extended. Cheney is the pluperfect staff man, beginning as Donald Rumsfeld's assistant in the Nixon White House, and was aptly code-named "Backseat" by the Secret Service when he pulled the strings in the Ford White House as chief of staff. For Cheney and the president under his tutelage, eagerly acting as "The Decider" on decision memos carefully packaged by "Backseat," the Constitution is a defective instrument remedied by unlimited executive power.

Who wrote this?

Where was it published?

Hint: (Sidney Blumenthal is joining the Hillary Clinton campaign as a senior advisor, and this is his last column for Salon.)

Update -- More good stuff here: In ways that Nixon did not achieve, Bush has reduced the entire presidency and its functions to the commander in chief in wartime. And in order to sustain this role he has projected a never-ending war against a distant, faceless foe, ubiquitous and lethal. Fear and panic became the chief motifs substituting for democratic persuasion to engineer the consent of the governed, and here

So vital is torture to the imperial presidency that Bush staked the nomination of his new attorney general, Michael Mukasey, on his refusal to oppose a ritual designed during the Spanish Inquisition to purge sinful heresy: waterboarding. Were Mukasey to have called waterboarding torture, as it surely is, he would have been obligated to prosecute those responsible for war crimes. also here,

On Oct. 25, Sen. Dick Durbin of Illinois received written responses from Mukasey to questions he had submitted. In one question, Durbin asked about a report that Mukasey had met with unnamed conservative figures to discuss his legal views and allay any misgivings they might have.

The list of names extracted from Mukasey by Durbin passed by unnoticed in the controversy. Mukasey revealed that on order of "officials within the White House" he sat down with six prominent right-wing leaders, whose gathering constituted a de facto subcommittee of the "Inner Party" of the conservative movement. Those present were Reagan's attorney general, Edwin Meese III; former Reagan and Bush I legal officials Lee Casey and David Rivkin; the executive vice president of the Federalist Society, Leonard Leo; the president of the Ethics and Public Policy Center, Edward Whelan; and the chief counsel for the American Center for Law and Justice (founded by Pat Robertson), Jay Sekulow.

Mukasey's meeting with this group at the insistence of the White House amounted to a supra-official confirmation hearing. The incident demonstrates that the Bush imperial presidency is a central tenet of the permanent elite of the party extending beyond his administration. Politicizing paranoia, subsuming intelligence by ideology, purging and deputizing prosecutors, dismissing law by fiat (signing statements) and holding in contempt checks and balances are not temporary measures. It is no accident, as the Marxists (or neoconservatives) say, that President Bush will address the 25th anniversary gala of the Federalist Society on Thursday.

and finally,

Now, on a personal note, I have reached the end of my critique of the Bush administration, having elaborated it for years. (In fact, my book on "The Strange Death of Republican America" will be published in April 2008.) As events continue to unfold there will undoubtedly be many more things to say about Bush, Cheney, their administration and the Republican field. But given the momentous stakes, I have decided that nothing is more important than committing myself wholly to the outcome. Therefore, beginning here, the tone changes.

Readers know of my background in the Clinton White House. (See "The Clinton Wars.") They are familiar with my long friendship with Sen. Hillary Clinton. When she recently asked me to join her campaign as senior advisor I felt I must accept, though not out of obligation but, rather, wholeheartedly. There will be other times and places for me to explain how I have seen her grow into the person I now feel is best qualified and suited to restore the presidency, an office I observed and participated in for four years and about whose nature, I know from working closely with her, she has a deep grasp.

I believe that the reason the Republicans have promoted the talking point that Hillary is unelectable is that they fear that more than any other candidate she can create a majority coalition, win and govern. They fear more than loss in one election; they fear the end of the Republican era beginning with Nixon. They know that she has the knowledge, skill and ability to govern. They know that she has already taken everything they can throw against her and is still standing.

Just as the disintegration of the Democrats brought about the rise of the Republicans, the collapse of the Republicans has created an opening for the Democrats. But the Democrats have been victims of their own false euphoria, sanctimony and illusions before. Now, only the Democrats can revive the Republicans. Nixon, Reagan and Bush were all beneficiaries of Democratic disarray and strategic incompetence. The Democrats have snatched defeat from the jaws of victory before and it can happen again, even under these circumstances, when history is turning the Democrats' way.

The Democrats at key junctures have been seduced by the illusion of anti-politics to their own detriment. Anti-politics upholds a self-righteous ideal of purity that somehow political conflict can be transcended on angels' wings. The consequences on the right of an assumption of moral superiority and hubris are apparent. Their plight stands as a cautionary tale, but not only as an object lesson for them. Still, the Republican will to power remains ferocious. The hard struggle will require the most capable political leadership, willing to undertake the most difficult tasks, and grace under pressure.

More on Moratorium on DP

Here is a good link to discussions about the recent developments in SCOTUS and the death penalty.

Re: Thinking Age of Consent

Food for thought here:
If nothing else, the article points out how the sex offender laws are netting individuals who have not traditionally been thought engaged in criminal behavior.

UPDATED

And here, about how the laws are ineffective.

Also here, describing how the "worst of the worst" fare in Virginia.